Ketubot

could Rab, however, [it may be retorted,] hold the opinion that one's condition [though contrary to what is written in the Torah] is valid? Has it not in fact been stated: If a man says to another, '[I sell you this object] on condition that you have no claim for overreaching against me' [the buyer]. Rab ruled, has nevertheless a claim for overreaching against him,  and Samuel ruled, He has no claim for overreaching against him?  — [It is this] then [that was meant;] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down that IF A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, 'but not because of the reason he gave', for whereas R. Simeon b. Gamaliel is of the opinion that WHEN SHE DIES HE IS HER HEIR, Rab maintains that when she dies he is not her heir.  But is not this in agreement with his reason  and not with his ruling?  — This then [it is that was meant:] 'The halachah is in agreement with the ruling of R. Simeon b. Gamaliel' who laid down that WHEN SHE DIES HE IS HER HEIR, but not 'because of the reason he gave' for, whereas R. Simeon b. Gamaliel is of the opinion that only a condition that is contrary to a Pentateuchal law is null but one that is contrary only to a Rabbinic law  is valid, Rab maintains that even a condition contrary to a Rabbinic law  is also null. But this would be in agreement, would it not, with both his reason  and his ruling.  Rab only adding [greater force to it]?  This then [it is that was meant:] 'The halachah is in agreement with R. Simeon b. Gamaliel' who laid down that WHEN SHE DIES HE IS HER HEIR, but not 'because of the reason he gave', for, whereas R. Simeon b. Gamaliel holds that a husband's right of heirship is Pentateuchal and that [it is invalid because] WHEREVER A MAN MAKES A CONDITION WHICH IS CONTRARY TO WHAT IS WRITTEN IN THE TORAH, HIS CONDITION IS NULL AND VOID, Rab maintains that a husband's right of heirship is only a Rabbinic enactment and [that the condition is nevertheless null because] the Sages have imparted to their enactments the same force as that of Pentateuchal laws. But [could it be said,] that Rab is of the opinion that a husband's right of heirship is only Rabbinical when in fact we have learned:  R. Johanan b. Beroka ruled, 'If a husband is the heir of his wife he must [when the Jubilee year  arrives] return [the inheritance] to the members of her family and allow them a reduction of price';  and, in considering this statement, the objection was raised: What is really his  opinion? If he holds that a husband's right of heirship is Pentateuchal, why [it may be asked] should he return [the inheritance at all]?  And if [he  holds it to be only] Rabbinical, why [it may be objected] should [even a part of] its price be paid?  And Rab explained: He  holds in fact the opinion that a husband's right of heirship is Pentateuchal but  [here it is a case of a man], for instance, whose wife bequeathed to him a [family] graveyard, [and it is] in order [to avoid] a family taint  that the Rabbis have ruled, Let him take the price and return it; and by  'allow them a reduction in price' [was meant a deduction of] the cost of his wife's grave;  [the return of a family graveyard being] in agreement with what was taught: If a person has sold his [family] grave, the path to this grave, his halting place.  or his place of mourning, the members of his family may come and bury him perforce,  in order [to avert] a slight upon the family!  — Rab spoke here in accordance with R. Johanan b. Beroka's point of view but he himself does not uphold it. MISHNAH. IF A MAN DIED AND LEFT A WIFE,  A CREDITOR,  AND HEIRS  AND HE ALSO HAD A DEPOSIT OR A LOAN IN THE POSSESSION OF OTHERS, THIS, R. TARFON RULED, SHALL BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.  R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT  SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS  MUST TAKE AN OATH  THE HEIRS NEED NOT TAKE ANY OATH.  IF HE LEFT PRODUCE THAT WAS DETACHED FROM THE GROUND, THEN WHOEVER  SEIZES IT FIRST ACQUIRES POSSESSION. IF THE WIFE TOOK POSSESSION OF MORE THAN THE AMOUNT OF HER KETHUBAH, OR A CREDIT OR OF MORE THAN THE VALUE OF HIS DEBT, THE BALANCE, R. TARFON RULED, SHALL. BE GIVEN TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE.  R. AKIBA SAID: NO PITY IS TO BE SHEWN IN A MATTER OF LAW; AND IT SHALL RATHER BE GIVEN TO THE HEIRS, FOR WHEREAS ALL THE OTHERS  MUST TAKE AN OATH  THE HEIRS NEED NOT TAKE ANY OATH. GEMARA. What was the object of specifying both A LOAN and a DEPOSIT?  [Both were] required. For if A LOAN only had been mentioned it might have been presumed that only in that case did R. Tarfon maintain his view, because a loan is intended to be spent,  but that in the case of a deposit which is in existence  he agrees with R. Akiba.  And if the former  only had been mentioned it might have been assumed that only in that case did R. Akiba maintain his view  but that in the other case  he agrees with R. Tarfon.  [Hence both were] necessary. What is meant by TO THE ONE WHO IS UNDER THE GREATEST DISADVANTAGE? — R. Jose the son of R. Hanina replied: To the one who is under the greatest disadvantage in respect of proof.  R. Johanan replied: [The reference is] to the kethubah of the wife  [who was given this privilege] in order to maintain pleasantness  [between her and her husband].  [This dispute is the same] as that between the following Tannaim: R. Benjamin said, To the one who is under the greatest disadvantage in respect of proof.  and this is the proper [course to take]; R. Eleazar said.[The reference is] to the kethubah of the wife  [who was given this privilege] in order to maintain pleasantness  [between her and her husband].  IF HE LEFT PRODUCE THAT WAS DETACHED. As to R. Akiba,  what was the point in discussing the BALANCE when  the entire estate belongs to the heirs?  — The law is so indeed,  but since R. Tarfon spoke of the BALANCE, he also mentioned the BALANCE.