מִגְמָר נָמֵי לָא תִּגְמְרוּ מִינֵּיהּ דְּאֵין לַדַּיָּין אֶלָּא מַה שֶּׁעֵינָיו רוֹאוֹת but do not learn from it either, as a judge has only what his eyes see as the basis for his ruling. One must rule according to his own understanding.
בָּעֵי רָבָא בְּבָרִיא הֵיאַךְ כִּי קָאָמַר רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה בִּשְׁכִיב מְרַע דְּבַר אוֹרוֹתֵי הוּא אֲבָל בְּבָרִיא לָא אוֹ דִלְמָא אֲפִילּוּ בְּבָרִיא נָמֵי § Rava raises a dilemma: In the case of a healthy person who bequeaths his estate to one of his sons, how should the court rule? Should it be reasoned that when Rabbi Yoḥanan ben Beroka says that the bequeathal is valid, he said so specifically with regard to the case of a person on his deathbed, since he is capable of bequeathal, as the verse: “In the day that he causes his sons to inherit” (Deuteronomy 21:16), from which the validity of this bequeathal is derived, is referring specifically to the time of one’s death; but in the case of a healthy person, he did not say his ruling? Or perhaps he stated his ruling even in the case of a healthy person.
אֲמַר לֵיהּ רַב מְשַׁרְשְׁיָא לְרָבָא תָּא שְׁמַע דְּאָמַר לוֹ רַבִּי נָתָן לְרַבִּי שְׁנִיתֶם מִשְׁנַתְכֶם כְּרַבִּי יוֹחָנָן בֶּן בְּרוֹקָה דִּתְנַן לֹא כָּתַב לָהּ בְּנִין דִּיכְרִין דְּיִהְוֹין לִיךְ מִינַּאי אִינּוּן יִרְתוּן כֶּסֶף כְּתוּבְּתִיךְ יוֹתֵר עַל חוּלַקְיהוֹן דְּעִם אֲחוּהוֹן חַיָּיב שֶׁתְּנַאי בֵּית דִּין הוּא Rav Mesharshiyya said to Rava: Come and hear a resolution of your dilemma from a baraita, as Rabbi Natan said to Rabbi Yehuda HaNasi: You taught in your Mishna in accordance with the opinion of Rabbi Yoḥanan ben Beroka, as we learned in a mishna (Ketubot 52b): If the husband did not write for her in her marriage contract: Any male children you will have from me will inherit the money of your marriage contract in addition to their portion of the inheritance that they receive together with their brothers, he is nevertheless obligated as though he had written it, as it is a stipulation of the court and consequently takes effect even if it is not explicitly stated. This mishna is in accordance with the opinion of Rabbi Yoḥanan ben Beroka that one may add to the share of some of his sons at the expense of the others.
וְאָמַר לוֹ רַבִּי יִסְּבוּן תְּנַן And Rabbi Yehuda HaNasi said to him: We did not learn that the male children she has from him will inherit the money of the marriage contract; that version is not accurate. Rather, we learned that they will take the money of the marriage contract, as a gift. When a bequeathal is worded in this manner, it is valid in any event, as stated in the previous mishna (126b).
וְאָמַר רַבִּי יַלְדוּת הָיְתָה בִּי וְהֵעַזְתִּי פָּנַי בְּנָתָן הַבַּבְלִי אֶלָּא דְּקַיְימָא לַן בְּנִין דִּכְרִין לָא טָרְפָא מִמְּשַׁעְבְּדִי אִי סָלְקָא דַּעְתָּךְ יִסְּבוּן תְּנַן אַמַּאי לָא טָרְפָא מִמְּשַׁעְבְּדִי אֶלָּא שְׁמַע מִינַּהּ יִרְתוּן תְּנַן The baraita continues: And Rabbi Yehuda HaNasi later retracted his response, and said: My response was because of immaturity that I had in me, and I was insolent in the presence of Rabbi Natan the Babylonian by responding in a manner that is incorrect. It is incorrect for the following reason: But since we maintain that concerning an obligation detailed in a marriage document ensuring inheritance rights of a woman’s male children, the beneficiaries do not repossess liened property that has been sold, one can infer that they do not receive the money as a gift. As, if it enters your mind that we learned in the mishna that they will take the money as a gift, why don’t they repossess liened property? The gift was given to them before the property was sold to others. Rather, conclude from this claim that we learned in the mishna that they will inherit the money.
מַאן שָׁמְעַתְּ לֵיהּ דְּאִית לֵיהּ הַאי סְבָרָא רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה וּשְׁמַע מִינַּהּ אֲפִילּוּ בְּבָרִיא Rav Mesharshiyya concludes: Of whom have you heard that he holds this opinion that one can add to the inheritance of some of his sons at the expense of the others? It is the opinion of Rabbi Yoḥanan ben Beroka, and conclude from the mishna in Ketubot that his ruling applies even with regard to a healthy person, as one does not write a marriage contract on his deathbed. This resolves Rava’s dilemma.
אֲמַר לֵיהּ רַב פָּפָּא לְאַבָּיֵי בֵּין לְמַאן דְּאָמַר יִסְּבוּן וּבֵין לְמַאן דְּאָמַר יִרְתוּן הָא אֵין אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם Rav Pappa said to Abaye: How can one prove that the mishna in tractate Ketubot is in accordance with the opinion of Rabbi Yoḥanan ben Beroka? Whether according to the one who says that the correct version of the mishna is: They will take, and whether according to the one who says the correct version of the mishna is: They will inherit, the mishna is difficult, for the following reason: A person cannot transfer ownership of an entity that has not yet come into the world. How can the husband confer rights to his property to children that have yet to be born?
וַאֲפִילּוּ לְרַבִּי מֵאִיר דְּאָמַר אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם הָנֵי מִילֵּי לְדָבָר שֶׁיֶּשְׁנוֹ בָּעוֹלָם אֲבָל לְדָבָר שֶׁאֵינוֹ בָּעוֹלָם לֹא Rav Pappa explains: And even according to Rabbi Meir, who says that a person can transfer ownership of an entity that has not yet come into the world, this statement applies specifically in a case where he transfers the item to an entity, i.e., a person, that is in the world; but with regard to transferring ownership of an item to an entity that is not yet in the world, e.g., to his children that have yet to be born, this statement does not apply. Therefore, the ruling of the mishna is difficult according to all opinions.
אֶלָּא תְּנַאי בֵּית דִּין שָׁאנֵי הָכָא נָמֵי תְּנַאי בֵּית דִּין שָׁאנֵי Rav Pappa explains: Rather, evidently a stipulation of the court is different. Since this clause of the marriage contract was instituted by rabbinic ordinance, it is not subject to the standard halakhot of transferring property, and one can transfer ownership of an item to an entity that is not yet in the world. Accordingly, here too, with regard to the dispute between Rabbi Yoḥanan ben Beroka and the Rabbis, a stipulation of the court is different, and even according to the Rabbis, who disagree with the opinion of Rabbi Yoḥanan ben Beroka, one can bequeath the money of his wife’s marriage contract to the male children she will have from him in any manner he chooses. Consequently, there is no proof that the mishna is in accordance with the opinion of Rabbi Yoḥanan ben Beroka.
אֲמַר לֵיהּ מִשּׁוּם דְּקָא מַפֵּיק לַהּ בִּלְשׁוֹן יִרְתוּן Abaye said to him: The assertion that the mishna is in accordance with the opinion of Rabbi Yoḥanan ben Beroka is due to the fact that it expresses this bequeathal with the wording: They will inherit, as opposed to: They will take. This indicates that a person can normally apportion his inheritance to his sons in any manner he wishes, in accordance with the opinion of Rabbi Yoḥanan ben Beroka.
הֲדַר אָמַר אַבָּיֵי לָאו מִילְּתָא הִיא דַּאֲמַרִי דִּתְנַן לֹא כָּתַב לָהּ בְּנָן נוּקְבָן דְּיִהְוְיָין לִיכִי מִינַּאי יִהְוְיָין יָתְבָן בְּבֵיתִי וְיִתַּזְנָן מִנִּכְסַאי עַד דְּתִילַּקְחָן לְגוּבְרִין חַיָּיב שֶׁהוּא תְּנַאי בֵּית דִּין Abaye then said: That which I said is not correct. The expression: They will inherit, is appropriate even according to the Rabbis, who disagree with Rabbi Yoḥanan ben Beroka, as we learned in the continuation of that mishna that even if the husband did not write for his wife: Any female children you will have from me will sit in my house and be sustained from my property until they are taken by men, i.e., until they are married, he is nevertheless obligated as though he had written it, as it too is a stipulation of the court.
וְהָוֵה לָזֶה בְּמַתָּנָה וְלָזֶה בִּירוּשָׁה וְכֹל לָזֶה בִּירוּשָּׁה וְלָזֶה בְּמַתָּנָה אֲפִילּוּ רַבָּנַן מוֹדוּ And since these two clauses are written adjacent to each other in the marriage contract, it is effectively a case where one bequeaths his estate to two people: To this one, the daughters, as a gift, and to that one, the sons, as an inheritance. And in any case where one bequeaths his estate to this person as an inheritance and to that person as a gift, even the Rabbis concede that the bequest is valid even if it is to people who are not his heirs, as it is considered a gift with regard to both recipients.
אֲמַר לֵיהּ רַב נְחוּמִי וְאִית דְּאָמַר רַב חֲנַנְיָה בַּר מִנְיוֹמֵי לְאַבָּיֵי Rav Naḥumi, and some say it was Rav Ḥananya bar Minyumi, said to Abaye: