או דלמא קצובין ואע"פ שאינן כתובים
Or perhaps, in order to collect from liened property, it suffices that the obligation be of a fixed amount, even if it is not written?
ת"ש דאיתמר מי שמת והניח שתי בנות ובן וקדמה הראשונה ונטלה עישור נכסים ולא הספיקה שניה לגבות עד שמת הבן
The Gemara suggests: Come and hear an answer to this question from what was stated, that the amora’im disagree about the following issue: There is a case of one who died and left two daughters and a son, and the first daughter went ahead and took one-tenth of the estate as her dowry, as sons are obligated to sustain their deceased father’s daughters until they reach majority or become betrothed and to give them part of his estate as a dowry, as daughters do not inherit when there are sons; but the second daughter did not manage to collect her tenth of the estate for her dowry before the son died. Therefore, the entire estate fell to the two daughters, who then divide it between themselves, and there is a dispute as to how they divide the estate.
א"ר יוחנן שניה ויתרה וא"ל ר' חנינא גדולה מזו אמרו מוציאין לפרנסה ואין מוציאין למזונות ואת אמרת שניה ויתרה
Rabbi Yoḥanan says: The second daughter forfeited her one-tenth of the estate, and therefore she cannot demand that she should first receive one-tenth of the estate as her dowry, as did her sister, and that only afterward they divide what remains of the estate equally between themselves. And Rabbi Ḥanina said to him: Did they not say even more than this, that if the brother sold off property belonging to his father’s estate, payment for the daughter’s dowry can be appropriated from the buyer, but payment for her sustenance cannot be appropriated from him? If the father’s estate is liened to his daughter’s dowry, so that she can collect her dowry even from a third party who bought the property from the son, she should be able to collect it from her father’s estate before it is divided up between the daughters. And you say that the second daughter forfeited her one-tenth of the estate?
והא פרנסה דמיקץ קייצא מיכתב לא כתיבא וקא מוציאה
The Gemara tries to draw a conclusion with regard to the question that was raised previously: But isn’t the dowry mentioned by Rabbi Ḥanina, i.e., the dowry to which an orphan daughter is entitled from her father’s estate, of a fixed amount, i.e., one-tenth of the estate, and it is not written? And nevertheless, according to Rabbi Ḥanina, it can be appropriated from liened property that has been sold to another party.
שאני פרנסה כיון דאית לה קלא כמאן דכתיבא דמי
The Gemara rejects this argument: A dowry is different, since it generates publicity. If one dies and is survived by daughters, everyone knows that a portion of his estate is pledged for their dowries. Therefore, the obligation is considered to be as if it were written. In other situations, it might be necessary according to Rabbi Ḥanina that the obligation be both of a fixed amount and written.
מתיב רב הונא בר מנוח מתו בנותיהן נזונות מנכסים בני חורין
Rav Huna bar Manoaḥ raised an objection from a mishna (Ketubot 101b) that addresses the case of a woman who was married to a man with whom she had stipulated that he would sustain her daughter from a previous marriage. After receiving a divorce from him, she married a different man with whom she made the same stipulation, so that the stepdaughter receives sustenance from the two husbands. That mishna states: If the husbands died, then their own daughters, even from that same woman, are sustained only from the unsold property in their estate. This accords with the halakha taught in the mishna above (48b).
והיא נזונת מנכסים משועבדים מפני שהיא כבעלת חוב
The mishna in Ketubot continues: But the stepdaughter is sustained even from liened property that had been sold to a third party. This is due to the fact that her legal status is like that of a creditor, and therefore she has the right to collect her debt from property formerly owned by her stepfather, her debtor. This is difficult according to both opinions, as the stepdaughter’s sustenance is appropriated from liened property that has been sold to another person, despite it being neither a fixed amount nor written.
הכא במאי עסקינן בשקנו מידו
The Gemara answers: With what are we dealing here? We are dealing with a case where the mother acquired the right to the daughter’s sustenance from his possession, i.e., where they performed an act of acquisition confirming the stipulation. Consequently, it is considered as though the stipulation were been written and publicized, and so the property of the two husbands is liened for the stepdaughter’s sustenance.
אי הכי בנות נמי בשקנו לזו ולא קנו לזו
The Gemara asks: If that is so, that mishna is referring to a case where they performed an act acquisition, then the deceased’s own daughters as well should be entitled to collect their sustenance from liened property that has been sold to a third party. The Gemara rejects this argument: The mishna is referring to a case where the mother acquired the right to sustenance on behalf of this one, the stepdaughter, but did not acquire the right to sustenance on behalf of the other daughters.
מאי פסקא בת אשתו דהואי בשעת קנין מהני לה קנין בתו דלא הואי בשעת קנין לא מהני לה קנין
The Gemara asks: What is the reason for the decision of the tanna to record the halakha in a case where the mother acquired the right for this one but not for that one? The Gemara explains: With regard to his wife’s daughter from her previous marriage, who was alive at the time of the act of acquisition, i.e., when he gave the mother her marriage contract, the act of acquisition is effective for her. With regard to his own daughter from this mother, who was not alive at the time of the act of acquisition, the act of acquisition is not effective for her.
מי לא עסקינן דהוו תרוייהו בשעת קנין והיכי דמי דגרשה ואהדרה
The Gemara raises an objection: Are we not dealing here even with a case where both of them were alive at the time of the act of acquisition? And what are the circumstances? It is a case where after she was married to him and had a daughter from him, he divorced her and later remarried her, at which time an act of acquisition was performed to confirm the stipulation with regard to sustenance. As his own daughter was alive at the time, why is the act of acquisition not effective for his own daughter’s sustenance as it is for that of his stepdaughter?
אלא בתו דבתנאי בית דין קאכלה לא מהני לה קנין בת אשתו דלאו בתנאי בית דין קאכלה מהני לה קנין
Rather, that the difference between them is as follows: With regard to his own daughter, who eats, i.e., is sustained, from his estate based on a stipulation of the court, as the daughter’s right to sustenance from her father’s estate is an inseparable part of her mother’s marriage contract, the act of acquisition that was performed is not effective for her, because her entitlement is derived from a different source, the stipulation of the court. With regard to his wife’s daughter, who eats from his estate not based on a stipulation of the court, as her entitlement is based on the explicit stipulation made between the husband and the wife, the act of acquisition is effective for her and enables her to collect her sustenance even from liened property that has been sold to a third party.
וכי מיגרע גרעה אלא בתו כיון דבתנאי בית דין קאכלה אימר צררי אתפסה
The Gemara challenges this explanation: But is a right that is rooted in two sources, both a stipulation of the court and an act of acquisition, inferior to a right that is rooted in an act of acquisition alone? The act of acquisition is in addition to the stipulation of the court, and should be effective for her as well. Rather, this is the difference between them: With regard to his own daughter, since his daughter eats from his estate based on a stipulation of the court, say that perhaps he already gave her money during his lifetime for her sustenance. Since there is uncertainty, she cannot recover her sustenance from liened property, even if an act of acquisition was performed to confirm the stipulation. With regard to the stepdaughter, there is no concern that perhaps he already gave her the money while he was alive. Therefore, if an act of acquisition was performed, she can collect her sustenance even from liened property that has been sold to another.
ת"ש א"ר נתן אימתי בזמן שקדם מקחו של שני לשבחו של ראשון
The Gemara continues its discussion with regard to collection from liened property that has been sold to a third party: Come and hear what Rabbi Natan said: When do we say that if one appropriated a field and sold it, and the buyer worked the land and enhanced it, and then the initial owner from whom the field had, been appropriated reclaimed the property the buyer can recover the increase in value of the field resulting from his enhancements only from unsold property in the robber’s possession but not from liened property that has been sold to another party? This is said when the purchase of the second buyer, i.e., the party who purchased the property that rightfully belonged to the robber, preceded the enhancements made by the first buyer to the appropriated property he purchased from the robber.
אבל קדם שבחו של ראשון למקחו של שני גובה מנכסים משועבדים אלמא משום דלא קדים הוא
But if the enhancements made by the first buyer preceded the acquisition of the second buyer, then he can collect the increase in value of the field resulting from his enhancements even from liened property that has been sold to the second buyer. Apparently, he cannot collect the increase in value from liened property because the enhancements did not precede the sale of the other field, not because the increase in value is not of a fixed amount or written in a deed.
תנאי היא דתניא אין מוציאין לאכילת פירות ולשבח קרקעות ולמזון אשה והבנות מנכסים משועבדים מפני תיקון העולם לפי שאין כתובין
The Gemara answers: Proof cannot be brought one way or the other from this baraita, since the issue is the subject of a dispute between tanna’im, as it is taught in another baraita: The court does not appropriate payment from liened property that has been sold to a third party for the consumption of produce or for the enhanced value of land or for the sustenance of a man’s wife and daughters. The reason why one cannot collect these debts from liened property is for the betterment of the world, because all these obligations are not written in any deed. If purchasers are at risk of losing the land they purchased to pay debts of the seller that had not been written, they will have no way to protect themselves, and no one will purchase land.
אמר ר' יוסי וכי מה תיקון העולם יש בזו והלא אין קצובין:
The baraita continues: Rabbi Yosei said: And what betterment of the world is there in this, in stating that the reason the land is not appropriated is only because the debt was not written? But isn’t the real reason that these obligations cannot be collected from liened property is that they are not of a fixed amount? No one would be willing to purchase land if the land were liened to an unlimited debt. It is clear in this baraita that the criteria for collection from liened property that has been sold to a third party are subject to a tannaitic dispute.
והמוצא מציאה לא ישבע: אמר ר' יצחק שני כיסין קשורין מצאת לי והלה אומר לא מצאתי אלא אחד נשבע שני שוורים קשורין מצאת לי והלה אומר לא היה אלא אחד אינו נשבע
§ The mishna teaches: And it was further instituted that one who finds a lost item and returns it to its rightful owner is not required to take an oath that he did not keep any part of the lost item for himself. This ordinance was also instituted for the betterment of the world. Rabbi Yitzḥak says: If the owner of the lost item brings a claim against the finder, saying: You found two money pouches tied together that belong to me, and the other person says: I found only one pouch, then the finder takes an oath, similar to anyone who admits to part of a claim. If the owner claims: You found two oxen tied together that belong to me, and the other person says: There was only one ox, the finder is not required to take an oath.
מ"ט שוורין מנתחי מהדדי כיסין לא מנתחי מהדדי
The Gemara explains: What is the reason for the difference between the two cases? It is that oxen become detached from each other. Consequently, it is possible that when the oxen were lost, there had been two that were tied together, but afterward they became separated and the finder found only one. By contrast, pouches do not become detached from each other. Since the finder admits that he found one of them, it stands to reason that he actually found both of them.
שני שוורין קשורין מצאת והלה אומר מצאתי והחזרתי לך אחד מהן הרי זה נשבע
Rabbi Yitzḥak also says: If the owner of the lost item says to the finder: You found two tied oxen, and the other person says: I found two oxen, but I already returned one of them to you, then the finder takes an oath.
ור' יצחק לית ליה המוצא מציאה לא ישבע מפני תיקון העולם
A question may be raised against these rulings of Rabbi Yitzḥak: But does Rabbi Yitzḥak not accept the halakha stated in the mishna that one who finds a lost item is not required to take an oath, this being an enactment instituted for the betterment of the world?