023a – שום היתומים – פרק ששי – ערכין, דף כג ע”א

Mishnah: If a man dedicates his property while a ketubah is owed to his wife,

R. Eliezer says: when he divorces her, he must make a vow of no benefit^[1];

מתני' ידור הנאה - A vow that he will never take her back, for perhaps as a scheme he divorces her so that she collects her ketubah from the hekdesh and he then takes her back.

R. Yehoshua says: he need not [do so].

Similarly, Rabban Shimon ben Gamliel said^[2]: [this applies] also to a guarantor for the wife's ketubah. If her husband divorces her, he must vow no benefit from her, lest he scheme against this guarantor's property and take his wife back.

What is their dispute?

R. Eliezer holds that a person may scheme against hekdesh^[3], and R. Yehoshua holds that a person may not scheme against hekdesh.

קינוניא - A scheme.

But [consider] what Rav Huna^[4] said: a dying man who dedicated all his property and said, 'a maneh for so-and-so is in my hand,' is trusted; by presumption one does not scheme against hekdesh.

Shall we say [this is] a tannaitic dispute^[5]?

גמ' לימא כתנאי אמרה לשמעתיה - And it is not the view of all.

No: they dispute only about a healthy man.

אלא בבריא - Because there R. Eliezer says that a person may scheme against the hekdesh, since whatever he takes from the hekdesh will be his.

But regarding a dying man, all agree that one may not scheme against hekdesh.

אבל בשכיב מרע - It refers to [a man about to] die.

Why?

A person does not sin for another's benefit.

אין אדם חוטא ולא לו - He will not sin to profit another. R. Eliezer holds that since they make him vow publicly not to take her back, the vow has no annulment; therefore the vow takes effect, and we make him vow.

Others say: regarding a healthy man, all agree [that] a person may scheme against hekdesh.

Here they dispute about a vow made in public^[6].

One [Master] holds that it has annulment^[7], and the other holds that it has no annulment.

יש לו הפרה - And for this reason he need not [vow], since annulment has no effect at all here.

Alternatively, [say that] all agree that a vow made in public has annulment, and here they dispute about a vow made at the urging of the many.

על דעת רבים - Where people tell him to vow.

But [consider] what Amemar^[8] said: a vow made in public has annulment; a vow made at the urging of the many has no annulment.

Shall we say [this is] a tannaitic dispute?

Moreover, R. Yehoshua says: he need not.

It should have said: it has no effect.

Rather, here they dispute about asking [a sage] concerning hekdesh^[9].

בשאלה דהקדש פליגי - R. Eliezer holds that one may not ask a sage about hekdesh; even if he says to the sage, "I did not vow in that way, and the hekdesh was a mistake," the sage still does not release his vow. Therefore this man, who regrets his dedication and finds no sage to release him, makes this scheme. R. Yehoshua holds that one may ask about hekdesh, and here he need not vow no-benefit; for if he were doing it as a scheme he would have had his vows released and would not need to divorce her.

And it was taught: one who dedicates his property while a ketubah is owed to his wife

והתניא - They dispute only in an easy matter, regarding asking [a sage].

R. Eliezer says: when he divorces her, he must vow no benefit.

R. Yehoshua says: he need not.

And R. Elazar son of R. Shimon said:

These are the words of Beit Shammai^[10], and these are the words of Beit Hillel.

הן הן דברי ב"ש הן הן כו' - The dispute of R. Eliezer and R. Yehoshua is the same as the dispute of Beit Shammai and Beit Hillel.

Beit Shammai say: a mistaken hekdesh is hekdesh^[11]; Beit Hillel say: a mistaken hekdesh is not hekdesh.

הקדש טעות הקדש - And there is no asking about hekdesh. A mistaken hekdesh is, for example, a white ox that left my house as hekdesh and was found to be black.

And so Rabban Shimon ben Gamliel^[12] used to say, etc.:

Moshe bar Atzri was a guarantor for his daughter-in-law's ketubah^[13], and Rav Huna, his son, was a Torah scholar^[14]; the matter troubled him.

Abaye said: Is there no one who will advise Rav Huna to divorce his wife, so that her ketubah is collected from her father, and then they may take her back again?

Rava said to him: But did we not learn: a vow of no benefit^[15]?

And Abaye [said]: Is it that anyone who divorces in court—

אטו כל דמגרש בבי דינא מגרש - That they would tell him, "Vow no benefit," and he should go quietly and divorce her.

in the end the matter came out: he was a kohen.

דכהן הוה - Rav Huna; and if he divorced her he could not take her back.

Abaye said: Poverty goes after the poor^[16].

But did Abaye say this?

Did not Abaye say: Who is a cunning evildoer^[17]? One who advises to sell property, like Rabban [Shimon ben] Gamliel.

כרשב"ג - In tractate Ketubot (95): one who says at death, "my property is yours, and after you it goes to so-and-so," and the first [heir] goes down and sells and eats, etc. R. Shimon ben Gamliel says: the second [heir] receives only what the first left over. Here too he is a cunning evildoer.

The healthy man is different; the Torah scholar is different.

And let it be deduced: a guarantor of a ketubah is not encumbered^[18].

Tosafot

לכי יגרשנה ידור הנאה - Difficult for R. [Eliezer]: why must he make a vow of no benefit? What is he doing? After all, he does not want her to collect from the hekdesh; on the contrary, the wife should be penalized, so that she collects from the hekdesh. The answer: since we are concerned that he scheme against the hekdesh, or against the guarantor who took surety for her, the Sages did not penalize her; and it is fitting for him to vow, in order to know whether his intent is to scheme, and his intent will not help him, since they made him vow.

אלא הא דא"ר הונא שכיב מרע שהקדיש כל נכסיו ואמר מנה לפלוני בידי נאמן כו' - And if you ask: in the last chapter of Bava Batra (175a) Rav Huna's statement is explained as a case where [the creditor] holds a document; then how does the concern of scheming apply here, since the document is established in the hand of so-and-so and he surely speaks the truth? The answer: there is certainly a concern of scheming here, for had he not said "a maneh for so-and-so is in my hand", then even with a document in his hand he could collect only with an oath; and now that he says it, he collects without an oath. So too in the chapter "Shevuas HaDayanim" (Shevuot 42b), where it is taught that one swears to a minor and to hekdesh; the Gemara explains "to hekdesh" as collecting from hekdesh property, and objects: we learned, from encumbered property one collects only with an oath; what difference is there between encumbered to a private person and encumbered to the Most High? The Gemara answers that one might have thought scheming is done against a private person but not against hekdesh, so it teaches otherwise. And Rav Huna said, a dying man who dedicated all his property and said, "a maneh for so-and-so is in my hand", is trusted; by presumption one does not scheme against hekdesh; this is only for a dying man, since a person does not sin for another's benefit, but a healthy man may scheme against hekdesh. So here too we say it. Yet it is difficult: according to what the Gemara concludes there, that Rav Huna said only of a dying man that one does not scheme against hekdesh, while a healthy man does; here he said that R. Eliezer and R. Yehoshua dispute about a healthy man, and R. Yehoshua says one does not scheme against hekdesh; so Rav Huna would disagree with R. Yehoshua? The answer: a minor scheme, such as freeing oneself from an oath, a healthy man does against hekdesh. And one may nonetheless properly bring proof from Rav Huna's statement against the Mishnah, all the more so: even a scheme about an oath, Rav Huna said one does not do against hekdesh; all the more so the scheme of our Mishnah, divorcing one's wife.

דחזקה אין אדם חוטא ולא לו - Therefore he is believed to collect without an oath. Although one does not seize encumbered property, or hekdesh (which is considered encumbered), except with an oath, as explained in "Shevuas HaDayanim" (Shevuot 42b and there), since we are not concerned that he scheme in order to admit how much he owes, so too here there is no reason to be concerned that he divorce his wife and take her back again; there is no sense that he would scheme against hekdesh in the matter of divorce beyond the other case.

מר סבר יש לו הפרה - Annulment: a husband has annulment - And if you say: even granting that he has annulment, we hold that one must specify the vow; and if he comes before a sage, the sage would not annul it for him. The answer: one need not specify the vow beyond its wording; one need not explain why he vowed. This is unlike the case in Gittin (35b, "HaSholeiach") of a kohen who married a woman in transgression and said, "a vow", he serves and descends and divorces, where one must explain; and so the sage does not release him there. But here the sage would not refrain from releasing it, even if he hears the wording of the vow.

בשאלה דהקדש קמיפלגי - Meaning: according to R. Yehoshua there is an asking [of a sage], and therefore he need not make a vow of no benefit from his wife if he divorces her, since we are not concerned that he does this as a scheme to collect from the hekdesh. Why would he divorce her, when he could ask about the hekdesh, and the hekdesh would be a mistake and then not be hekdesh? And it is somewhat difficult: the halachah is like Beit Hillel, that a hekdesh made in error is not hekdesh; so there is an asking. And how then does Rav Huna say that a person does scheme against hekdesh when healthy, since he could ask about the hekdesh as R. Yehoshua said? According to what we explained above it works out: a scheme about an oath, which is a light matter, he does, and does not ask about his hekdesh; but divorcing his wife in order to take her back, he does not do, since he could ask about his hekdesh.

ותיפוק ליה דערב הוא וכו' - Difficult: why did the Gemara not raise all these objections on the Mishnah in this way? The answer: on the Mishnah it did not wish to object, because it was simple to answer that [the creditor must first exhaust the debtor's property] (ואשתדיף).

Notes

1. 1. A vow of no benefit (ידור הנאה): the husband vows he will get no benefit from her, so that he cannot take her back.
2. 2. Abbreviation for "amar Rabban Shimon ben Gamliel" (Rabban Shimon ben Gamliel said). The rule applies also to a guarantor of the ketubah.
3. 3. Kinunya: a secret arrangement between two parties to scheme, achieving by indirect means what the law forbids. Rashi calls it a scheme.
4. 4. Rav Huna: a Babylonian amora.
5. 5. "Like a tannaitic dispute": the two views are of the same kind as the dispute between R. Eliezer and R. Yehoshua in the Mishnah.
6. 6. A vow made in public: taken before many people and under their urging, not merely on his own initiative.
7. 7. Hafarah (annulment): a husband (or father) may annul a vow, as in Numbers 30.
8. 8. Amemar: a Babylonian amora.
9. 9. Sheelah: asking a sage to release a vow. R. Yehoshua holds that one may ask about hekdesh.
10. 10. Beit Shammai and Beit Hillel: two schools of tannaim; in general the halachah follows Beit Hillel.
11. 11. A hekdesh made in error, e.g., a white ox consecrated that turned out black; by Beit Hillel it is not hekdesh.
12. 12. Rabban Shimon ben Gamliel: a tanna of the Yavneh generation. "Etc." (vekhu') marks that the Mishnah continues.
13. 13. Guarantor of his daughter-in-law's ketubah: if the husband does not pay, the guarantor must pay.
14. 14. Torah scholar (tzurba merabanan): a talmid chacham.
15. 15. What the clause means in practice: a husband who divorces his wife must vow no benefit from her, so that she cannot collect her ketubah from the hekdesh and he cannot take her back.
16. 16. A saying: poverty follows the poor; once a man has become poor, it is hard for him to climb out.
17. 17. Cunning evildoer: one who schemes to do harm; here, one who advises another to sell property.
18. 18. Not encumbered (lo mishtaabed): a guarantor of a ketubah is not bound to pay from his property.