בעורר אבל בעומד מגופה של קרקע קנו מידו
in the case of one who immediately objects when the other comes to claim the portion he was promised, saying that he wrote what he did only in order to avoid a quarrel. However, in the case of one who waits while the other takes possession of the land before regretting his decision and requesting its return, the halakha is that one acquired from him the land itself, as he cannot retract his statement at this late stage.
אמר אמימר הלכתא מגופה של קרקע קנו מידו אמר ליה רב אשי לאמימר בעורר או בעומד למאי נפקא מינה לכדרב יוסף אמר ליה לא שמיע לי כלומר לא סבירא לי:
Ameimar said: The halakha is that one acquired from him the land itself. Rav Ashi said to Ameimar: Do you mean to teach this halakha with regard to one who immediately objects or with regard to one who waits? The Gemara comments: With regard to what opinion is there a practical difference? There is a difference according to Abaye’s explanation of the opinion of Rav Yosef. However, according to Rav Naḥman, in either case the other retains possession of the land. Ameimar said to him: I did not hear about Abaye’s explanation of the opinion of Rav Yosef. That is to say, I do not hold in accordance with it. I do not distinguish between these two cases.
אם כן למה כתב לה וכו': ותימא ליה מכל מילי סליקת נפשך אמר אביי יד בעל השטר על התחתונה
§ The mishna taught that if a husband says: I have no claim to your property, then he has not relinquished his right to benefit from the produce of the property or to inherit from his wife. The mishna asks: If this is so, and he still retains his rights, why would he write for her: I have no legal dealings or involvement with your property, and explains that his statement grants her permission to sell the property if she so wishes? The Gemara asks: And why does the wife not say to him: You removed yourself from everything? He wrote a general statement, which could be understood as a renouncement of all of his rights. Abaye said: There is a principle that the owner of the document is at a disadvantage. A document is always interpreted as narrowly as possible, to impose only the most limited obligations. Therefore, in this case, the husband is assumed to have relinquished only some of his rights.
ואימא מפירי אמר אביי בוצינא טב מקרא
The Gemara asks: And if this is so, why not say that the husband has merely withdrawn his rights from the produce? A gift or sale of the entire land is a significant matter, certainly in relation to the minor value of its produce. Why, then, is his statement not understood as a renunciation of his rights to the produce? Abaye said: There is a proverb that a cucumber in one’s possession is better than a gourd one will have only later. There is an assumption that the husband’s current access to the produce is more important to him than the future ability to sell the field.
ואימא מירושה אמר אביי מיתה שכיחא מכירה לא שכיחא וכי מסליק איניש נפשיה ממילתא דלא שכיחא ממילתא דשכיחא לא מסליק איניש נפשיה רב אשי אמר בנכסייך ולא בפירותיהן בנכסייך ולא לאחר מיתה:
The Gemara continues to inquire: And why not say that the husband has withdrawn his rights from the inheritance? This is the least important right of the husband, as he might die before her. Abaye said: Death is common, whereas a sale is not common, as one does not usually sell one’s ancestors’ inheritance. And when a person removes himself, it is assumed that he does so from an uncommon matter. However, a person does not remove himself from something that is common. Rav Ashi said a different reason: The wording of the document is: I have no claim to your property, indicating: But I am not relinquishing my claim to its produce. Similarly, the statement: To your property, means during your lifetime, indicating: But I am not relinquishing my claim to it after your death.
רבי יהודה אומר לעולם הוא אוכל פירי פירות: תנו רבנן אלו הן פירות ואלו הן פירי פירות הכניסה לו קרקע ועשתה פירות הרי הן פירות מכר פירות ולקח מהן קרקע ועשתה פירות הרי הן פירי פירות
§ The mishna taught that if a husband wrote: To your property and to its produce, he may not eat the produce. However, Rabbi Yehuda says: He always consumes the produce of the produce. The Sages taught with regard to the statement of Rabbi Yehuda: Which is considered the produce, and which is considered the produce of the produce? If she brought into the marriage for her husband land that produced produce, this is produce. If he sold the produce and purchased land from their sale, and this land produced produce, this is the produce of the produce.
איבעיא להו לרבי יהודה פירי פירות דוקא או דלמא עד עולם דוקא או דלמא תרוייהו דוקא
A dilemma was raised before the Sages: According to Rabbi Yehuda, who maintains that the husband renounces his rights to his wife’s property by writing: To their produce and the produce of the produce forever, is it specifically the phrase produce of the produce that makes his statement effective, and it is sufficient if he writes only this phrase? Or, perhaps he must specifically write forever, and that alone is sufficient. Or perhaps it is effective only if he specifically writes both of the statements.
אם תמצי לומר פירי פירות דוקא עד עולם למה לי הא קמ"ל כיון דכתב לה פירי פירות כמאן דכתב לה עד עולם דמי
The Gemara elaborates: If you say that it is specifically the phrase produce of the produce that makes the statement of the husband effective, why do I need the mishna to include the word forever? The Gemara suggests: This word teaches us that since he wrote to her: Produce of the produce, it is considered as though he wrote to her the term forever, but it does not matter if in practice he omitted this word.
ואם תמצי לומר עד עולם דוקא פירי פירות למה לי הא קמ"ל אע"ג דכתב לה פירי פירות אי כתב לה עד עולם אין אי לא לא
Conversely, the Gemara asks: And if you say that he must specifically write the word forever, why do I need the mishna to include the phrase: Produce of the produce? The Gemara suggests: This phrase teaches us that although he wrote to her: Produce of the produce, if he also wrote to her the word forever, then yes, he has renounced his rights. However, if he did not write this, then he has not withdrawn his rights from her property, and he may consume the produce of the produce of the produce.
ואם תמצי לומר תרוייהו דוקא תרתי למה לי צריכא דאי כתב לה פירי פירות ולא כתב לה עד עולם הוה אמינא פירי פירות הוא דלא אכיל אבל פירא דפירי פירות אכיל להכי איצטריך עד עולם ואי כתב לה עד עולם ולא כתב לה פירי פירות הוה אמינא לעולם אפירות קאי להכי איצטריך פירי פירות:
And if you say that it is effective only if he specifically writes both of the statements, why do I need two expressions? The Gemara answers: It is necessary to include both phrases, for if he had written for her only: Produce of the produce, and not written for her: Forever, I would say that it is the produce of the produce that he may not consume, but the produce of the produce of the produce he may consume. For this reason, it was necessary to also write forever. And if he had written for her only: Forever, and had not written for her: Produce of the produce, I would say that forever is referring to the produce, i.e., the husband permanently relinquishes his claim to the produce itself, but he retains his right to the produce of the produce. For this reason, it was also necessary to specify produce of the produce.
איבעיא להו כתב לה דין ודברים אין לי בנכסייך ובפירי פירות מהו שיאכל פירות מפירי פירות סליק נפשיה מפירי לא סליק נפשיה או דלמא מכל מילי סליק נפשיה
A dilemma was raised before the Sages: If the husband wrote to his wife: I have no claim to your property or to the produce of your produce, what is the halakha with regard to the possibility that he may consume the produce itself? Has he removed himself from the produce of the produce, but from the produce itself, which he failed to mention, he has not removed himself? Or perhaps he has removed himself from all matters, as the produce of the produce includes the produce itself?
פשיטא דמכל מילי סליק נפשיה דאי אמרת מפירי פירות סליק נפשיה מפירי לא סליק נפשיה כיון דאכלינהו לפירות פירי פירות מהיכא
The Gemara answers: It is obvious that he has removed himself from all matters, for if you say that he has removed himself only from the produce of the produce, while from the produce itself he has not removed himself, since he consumes the produce, from where will there be produce of the produce?
וליטעמיך הא דתנן רבי יהודה אומר לעולם הוא אוכל פירי פירות כו' כיון דאכלינהו לפירי פירי פירות מהיכא אלא בדשיירא הכא נמי בדשייר:
The Gemara answers: But according to your reasoning, the same question could be asked about the case discussed in the mishna, as we learned in the mishna: Rabbi Yehuda says: He always consumes the produce of the produce, until he writes for her: Or to their produce, or to the produce of their produce forever. This indicates that if he did not write: To their produce, he would be allowed to consume the produce, just not the produce of the produce. Here too, it could be asked: Since he consumes the produce, from where will he have produce of the produce? Rather, it must be that this is referring to one who left over some of the produce, which he used to purchase land, of whose produce he consumes. If so, here too, this is a case of one who left over some of the produce, from which he acquired land, and it is the produce of this land to which he has no rights. The dilemma is left unresolved.
רבן שמעון בן גמליאל אומר כו': אמר רב הלכה כרבן שמעון בן גמליאל ולא מטעמיה
§ The mishna taught: Rabban Shimon ben Gamliel says: Even if he wrote: I have no claim to your property, or to its produce, or to the produce of its produce, in your lifetime and after your death, he nevertheless inherits from her. This is because his condition is void, as it runs counter to what is written in the Torah. Rav said: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel that a husband inherits from his wife, but not because of his line of reasoning.
מאי הלכה כרבן שמעון בן גמליאל ולא מטעמיה אילימא הלכה כרשב"ג דאמר אם מתה יירשנה ולאו מטעמיה דאילו רשב"ג סבר מתנה על מה שכתוב בתורה תנאו בטל ורב סבר תנאו קיים וקסבר ירושת הבעל דרבנן וחכמים עשו חיזוק לדבריהם יותר משל תורה
The Gemara asks: What is the meaning of this statement: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel, but not because of his line of reasoning? What does Rav mean? If we say that Rav agrees that the halakha is in accordance with the opinion of Rabban Shimon ben Gamliel, who said that if she dies he inherits from her, but Rav maintains this opinion not because of Rabban Shimon ben Gamliel’s line of reasoning, as Rabban Shimon ben Gamliel holds that if one stipulates counter to that which is written in the Torah, his condition is void, and then Rav must hold that his condition is valid. But that is not so. Rav accepts Rabban Shimon ben Gamliel’s conclusion, for he holds that the inheritance of a husband is by rabbinic law, and for this reason his condition is void, as the Sages reinforced their pronouncements with greater severity than those of Torah law and decreed that the inheritance of a husband cannot be canceled in any manner.