1)

A MAN WHO WAIVED HIS RIGHTS TO HIS WIFE'S PROPERTY

(a)

(Mishnah): If a man wrote to his wife 'I have no claim or dealings in your property', he eats the Peiros of her property in her lifetime, and inherits her if she dies;

1.

Question: If so, why did he write this?

2.

Answer: If she sold it or gave it away, it stands.

(b)

If he wrote 'I have no claim or dealings in your property nor in its Peiros', he does not eat the Peiros in her lifetime, but inherits the property if she dies;

(c)

R. Yehudah says, he always eats the Peiros of the Peiros, unless he writes, 'I have no claim or dealings in your property nor in its Peiros nor in the Peiros of its Peiros Ad Olam (ad infinitum)'.

(d)

If he wrote 'I have no claim or dealings in your property, nor in its Peiros, nor in the Peiros of its Peiros, in your lifetime and after your death', he does not eat the Peiros in her lifetime, and does not inherit her if she dies;

(e)

R. Shimon ben Gamliel says, if she dies he inherits her, because he stipulated contrary to Torah. Any stipulation contrary to Torah is void. (He holds that a husband inherits his wife mid'Oraisa.)

(f)

(Gemara - R. Chiya - Beraisa): The Mishnah applies (even) if he only said this.

(g)

Question: Even if he wrote this, why should it take effect?

1.

(Beraisa): If a man wrote to his friend (Rashi - his partner) 'I have no claim or dealings in this field', 'I have no business in it', (or) 'my hand is removed from it', these words are void. (Since he already owns it, he must give a gift to transfer it.)

(h)

Answer (d'Vei R. Yanai): The case is, he wrote to his wife during Eirusin. (He did not yet acquire her property.)

(i)

This is like the laws of Rav Kahana and Rava:

1.

(Rav Kahana): One may stipulate not to inherit an inheritance that does not come through his ancestors (e.g. inheriting his wife).

2.

(Rava): If one says 'I do not want Chachamim's enactment' in a case like this (the enactment was for his benefit), we heed him.

3.

Question: What case did Rava refer to?

4.

Answer: He referred to Rav Huna's law:

i.

(Rav Huna): A woman can tell her husband 'Do not feed me and I will not work for you' (since the enactment that he feeds her and receives her productivity was for her benefit).

(j)

Question: If this is like the laws of Rav Kahana and Rava, it should apply even if he wrote during Nisu'in!

(k)

Answer #1 (Abaye): After Nisu'in, the husband's Yad (power of acquisition) is equal to his wife's Yad (in her property. He is like a partner, so it is not enough to merely renounce his rights.)

(l)

Answer #2 (Rava): His Yad is stronger than her Yad.

1.

Abaye and Rava (do not argue here. They) only argue about (property that falls to) a Shomeres Yavam.

(m)

Question: If he made a Kinyan (acquisition through transferring a Kli) to waive his claims (Rashi - to the field, in the Beraisa; Tosfos - to his Nesu'ah), is this binding?

(n)

Answer #1 (Rav Yosef): The Kinyan was for claims (but the property is still his)!

(o)

Answer #2 (Rav Nachman): The Kinyan was for the property itself.

(p)

(Abaye): Presumably, Rav Yosef said only his law in a case when he immediately protested. If he protests only later, he agrees that he waived his rights to the property.

83b----------------------------------------83b

(q)

(Ameimar): The Halachah is, he waived his rights to the property.

(r)

Question (Rav Ashi): Is this when he protested later, or even if he protested right away?

1.

This determines whether Ameimar holds like Rav Yosef.

(s)

Answer (Ameimar): I do not hold like Rav Yosef.

2)

FROM WHAT DID HE WAIVE HIS RIGHTS?

(a)

(Mishnah): If so, why did he write to her?...

(b)

Question: She should be able to tell him that he waived all his rights!

(c)

Answer #1 (Abaye): One who holds a document has the lower hand (we say that he waived the smallest right, i.e. that if she sold it, the sale stands).

1.

Suggestion: Perhaps he waived the right to the Peiros (but keeps possession of the land itself)!!

2.

Rejection (Abaye): It is better to have a small gourd now than rights to a large one later. (It is better to have produce now, and to allow a future sale to take effect, so we assume that this was his intent.)

3.

Suggestion: Perhaps he waived the right to inherit her property! (This applies only if he outlives her.)

4.

Rejection (Abaye): A person waives his right to something that is uncommon (that she will sell her property), and not to something common (that he will inherit her).

(d)

Answer #2 (Rav Ashi): He wrote 'in your property' - not in its produce; 'in your property', not after your death (when it is no longer hers).

(e)

(Mishnah - R. Yehudah): He always eats Peiros of the Peiros...

(f)

(Beraisa): If she brings in land and it yields produce, they are Peiros. If he sold the produce and bought land, the produce of that land is Peiros of Peiros.

(g)

Question: According to R. Yehudah, must he say 'Peiros of Peiros' or 'Ad Olam (ad infinitum)' or both?

1.

Question: If he must say only 'Peiros of Peiros', why does the Mishnah say 'Ad Olam'?

2.

Answer: This teaches that saying 'Peiros of Peiros' is like saying 'ad infinitum'.

3.

Question: If he must say only 'Ad Olam', why does the Mishnah say 'Peiros of Peiros'?

4.

Answer: This teaches that even though he said 'Peiros of Peiros', he must still say 'ad infinitum'.

5.

Question: What is the rationale to require both?

6.

Answer: If he says only 'Peiros of Peiros', perhaps he forfeits them, but eats Peiros of Peiros of Peiros. If he says only 'Ad Olam', perhaps (he does not mean 'ad infinitum', rather, forever, and) he permanently forfeits Peiros, but does not forfeit Peiros of Peiros.

(h)

(The Gemara did not explicitly answer the question. According to the Rambam and the Ge'onim who say that the Halachah follows every 'Im Timtzi Lomar', perhaps both must be said.)

(i)

Question: If he wrote, 'I have no claim or dealings in your property, nor the Peiros of its Peiros', does he eat the Peiros?

1.

Did he waive his rights only to Peiros of Peiros, but not to Peiros?

2.

Or, perhaps he totally removed himself from the Peiros?

(j)

Answer: Clearly, he totally removed himself. If he retained rights to the Peiros, he will eat them, and there will not be any Peiros of Peiros!

(k)

Rejection - Question: If so, how will you explain the Mishnah? R. Yehudah says, he always eats the Peiros of Peiros... Since she eats the Peiros, there will not be Peiros of Peiros!

1.

Answer: You must say that the Mishnah teaches the law for when she leaves over Peiros (and they were used to buy land). Similarly, perhaps he stipulates not to receive Peiros of Peiros if he will happen to leave over Peiros and use them to buy land!

3)

CAN HE WAIVE HIS RIGHT TO INHERIT?

(a)

(Mishnah - R. Shimon ben Gamliel): If she dies he inherits...

(b)

(Rav): The Halachah follows R. Shimon ben Gamliel, but not for his reason.

(c)

Question: What does Rav mean?

(d)

Answer #1: Rav agrees that the Halachah is, if she dies, he inherits her. R. Shimon holds that a stipulation contrary to Torah is void, whereas Rav holds that such a stipulation is valid;

1.

Rav holds that a husband inherits mid'Rabanan, and Chachamim strengthened their enactment more than Torah laws (a stipulation against a mid'Rabanan law is void).

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