Deuteronômio 21:15 Referências do Talmudee: Jerusalem Talmud Bava Batra, Jerusalem Talmud Niddah & Jerusalem Talmud Ketubot

So far a daughter²³In all paragraphs dealing with the laws of inheritance, Num. 27:6–11, 36:8–9, Deut. 21:15–17, only the father is mentioned. One might infer that these laws do not apply to the mother’s estate. Since Num. 36:8 mentions the daughter as heiress, one infers that the daughter inherits from her mother (Sifry Num. 134).. A son? Since the daughter, whose power is diminished regarding the father’s property, has her power increased regarding the mother’s property, should the son’s power not be increased regarding the mother’s property, since his power is increased regarding the father’s property? It turns out that for the daughter one infers from the verse and for the son from an argument de minore ad majus. Does the son precede the daughter? Rebbi Simeon ben Eleazar said in the name of Rebbi Zachariah the butcher’s son: So did Rebbi Simeon ben Jehudah say in the name of Rebbi Simeon: Both son and daughter are equal for the mother’s tribe²⁴Babli 111a; Tosephta 7:10. Rebbi Mallukh in the name of Rebbi Joshua ben Levi: Practice follows Rebbi Zachariah. Rebbi Yannai the Kappadokian had a case; the judges were Rav Huna²⁵One has to read Rebbi Huna; the second generation Babylonian Rav Huna could not sit in a court together with two Galilean fourth generation judges, even though in the Babli, 111a, Rav Huna is reported to have erroneously followed R. Zachariah., Rebbi Jehudah ben Pazi, and Rebbi Aḥa. Rebbi Aḥa told them: Our brothers outside the Land are unqualified and err in practice; in particular they rely on Rebbi Mallukh in the name of Rebbi Joshua ben Levi, but it is not so. Rebbi Simon in the name of Rebbi Joshua ben Levi: Practice does not follow Rebbi Zachariah. Rebbi Abba the son of Rebbi Ḥiyya in the name of Rebbi Joḥanan: Practice does not follow Rebbi Zachariah. Rebbi Eleazar the father of Rebbi Isaac bar Naḥman²⁶From here it seems that “bar Naḥman” was his family name. in the name of Rebbi Hoshaiah: Practice does not follow Rebbi Zachariah. ²⁴Babli 111a; Tosephta 7:10. Rebbi Yannai and Rebbi Joḥanan were sitting when Rebbi Yudan the Prince came and asked concerning: “Any daughter who is an heiress of the tribes,” what is the rule? He²⁷R. Yannai. the senior authority. said to him, it binds the father’s tribe together with the mother’s tribe. Since from the father’s tribe there is nothing for the daughter when there is a son, so also from the mother’s tribe there is nothing for the daughter when there is a son. Or is it the other way around? Since from the mother’s tribe there is something for the daughter when there is a son, so also from the father’s tribe is there something for the daughter when there is a son²⁸This is R. Yudan the Prince’s objection.? Rebbi Joḥanan said to him²⁹Probably one should read, parallel to the Babli: He said to R. Joḥanan; since the student R. Joḥanan could not tell his teacher R. Yannai to insult the patriarch to his face., let us leave; that man does not want to listen to words of instruction.

If it was in pieces and the head came out, what is the rule? Rebbi Yasa said, Rebbi Joḥanan and Rebbi Eleazar disagree. Rebbi Joḥanan said, its head counts for most of it. Rebbi Eleazar said, its head is like any other of its limbs¹⁴⁰Their disagreement is confirmed in the Babli, 29a.. A Mishnah disagrees with Rebbi Joḥanan: “If it came out in pieces or defective, it is born as soon as most of its body came out.” Explain it if its head came out¹⁴¹The head is called “most of the body”.. A Mishnah disagrees with Rebbi Eleazar: “If it was a regular birth¹⁴²If the head appeared first, even if it was a stillbirth with an incomplete body., when most of its head came out.” Did not the first part say, the head is nothing?¹⁴³A “regular birth” must refer to a fully formed body since otherwise the first statement, that one needs most of the body, contradicts the second, that the skull with the forehead is enough. From the last statement of the Mishnah there is no objection to R. Eleazar since it does not speak of a defective fetus. Explain it¹⁴⁴The first, but not the second statement of the second half of the Mishnah. about the incomplete body. Rebbi Jonathan and Rebbi Simeon ben Laqish; Rebbi Jonathan agrees with Rebbi Joḥanan¹⁴⁵Here ends the Genizah fragment., Rebbi Simeon ben Laqish with Rebbi Eleazar. Rebbi Ze‘ira showed the colleagues his forehead with the skull¹⁴⁶That a birth is counted only from the moment that the forehead with the greater part of the skull had appeared.. One of the house of Gamliel ben Rebbi Leani asked before Rebbi Mana: Since you say, it is a child, does this not imply that one who comes after him is firstborn neither for inheritance nor for the Cohen¹⁴⁷Mishnah Bekhorot 8:1 states that any child born after an initial miscarriage such as described in this Chapter is a firstborn for inheritance but not for redemption by a Cohen (Ex.13:15).. He said to him, explain it if both were stillborn¹⁴⁸Obviously any miscarriage produces a stillborn baby. The rules of the firstborn for inheritance have nothing to do with those of the firstborn for redemption. While the firstborn for inheritance must be born (Deut 21:15), he cannot have been delivered by caesarean section and he must be the father’s first (Deut 21:17), but not necessarily the mother’s. Since a miscarriage is not counted for the father, only for the mother, the next child still can claim the double part of the inheritance (Sifry Deut. 217)..

²³⁹A similar, but more tersely and clearly formulated text is in Baba Batra 8:6. There, we have stated²⁴⁰Mishnah Baba Batra 8:6. The biblical law of inheritance (Num. 27:8–11) states that inheritances should be distributed to the next of kin; it is implied that all persons of the same degree of relationship shall be treated equally (except for the rule of the firstborn. Deut. 21:15–17). In Mishnah 8:5, the anonymous majority states that a person may make a will in which he distributes his property unevenly. The will will be valid if formulated in the language of gifts, invalid in the language of inheritance. In Mishnah 8:6, R. Joḥanan ben Beroqa states that even the language of gifts is acceptable if and only if the recipient is a legal heir directly in line; e. g., one son among many, but not a daughter in the presence of sons since daughters inherit only if there are no sons. If there are no sons, R. Joḥanan ben Beroqa will accept unequal distribution of the estate among the daughters. The Mishnah here is formulated following Ben Beroqa since it accepts unequal distribution of the estate even without writing (Babli Baba Batra 131a).: “Rebbi Joḥanan ben Beroqa says, if he speaks about somebody who is a legal heir, his statements are valid, but about somebody who is not a legal heir, his statements are invalid.” Rebbi Joḥanan said, Ben Beroqa spoke only about a son among sons or a (daughter)²⁴¹This was the first (correct) word written by the scribe who then (incorrectly) crossed it out and replaced it by “son” to produce a meaningless sentence. son among daughters, not about a daughter and brother or a brother among daughters. Rebbi Yasa in the name of Rebbi Joḥanan: There was a case and Rebbi decided following Rebbi Joḥanan ben Beroqa. Rebbi Ze‘ira, Rebbi Yasa in the name of Rebbi Joḥanan: Rebbi asked Nathan the Babylonian, why did they say that practice follows Rebbi Joḥanan ben Beroqa? Rebbi Abba, Rebbi Ḥiyya in the name of Rebbi Joḥanan: What is the reason? He asked Nathan the Babylonian, why did the Sages say that practice follows Rebbi Joḥanan ben Beroqa²⁴²Since the Mishnah in Ketubot is anonymous, it represents practice and it follows R. Joḥanan ben Beroqa. The Babli, Baba Batra 131a, presents the question in slightly different form and ends up by denying its validity. The Babli holds (seemingly against the Yerushalmi) that property rights based on a ketubah stipulation are strictly weaker than those mentioned in the ketubah contract in that they cannot be asserted against third parties.? Are you not the one who stated “shall inherit”? (He said to him, you stated “shall take”; he came to him)²⁴³The fragments of sentences in this parenthesis make no sense; they belong to nearby texts and the scribe seems to have been unsure about the order of the sentences. It is best to leave the parenthesis unexplained.. He said to him, there is no “shall inherit” but “shall take”²⁴⁴It is not quite clear whether this is Rebbi’s or R. Nathan the Babylonian’s statement. It changes the language of the Mishnah, that the woman’s sons “shall take her ketubah”, making the transaction one of a gift valid from the time of the marriage. Therefore, the rules of inheritance are irrelevant and there is no relation between the Mishnah here and Ben Beroqa’s statement about wills. (Everybody agrees that by a gift “valid now but executed only after my death”, a person can freely dispose of his assets without regard to biblical laws of inheritance.). When he came to his father, he said to him²⁴⁵When Rebbi came to Rabban Simeon ben Gamliel, the latter affirmed the text of the Mishnah as the correct one.: you disadvantaged Nathan the Bablylonian; there is no “shall take” but “shall inherit”. Rebbi Yose ben Rebbi Abun said, this is what he told him: I made an error in what I taught you; there is no “shall take” but “shall inherit”. Rebbi Ze‘ira said, this is one of the leniencies of the ketubah stipulations. In general, a person can transfer rights only by a document; here even verbally. In general, a person cannot transfer rights to somebody not yet existing; here to the non-existing²⁴⁶At the date of the marriage, no sons are yet born. For everybody except R. Meïr, the unborn cannot be the recipient of a gift (other than through a guardian); the same argument is in the Babli, loc. cit.. Rebbi Jeremiah said before Rebbi Ze‘ira: I am wondering how the rabbis can compare ketubah to inheritance, for inheritance is a biblical law but ketubah is from their words²⁴⁷Ketubah is purely a rabbinic institution (or better, a generally followed practice in post-exilic Judaism, inspired by but not derived from the biblical “bridal gift”.) This is the opinion of Rabban Simeon ben Gamliel, cf. the last paragraph of this tractate.
Since the Mishnah text is Rabban Simeon ben Gamliel’s, the question is relevant.; how can one argue this? Even if you say that ketubah is a biblical law, do they not agree that the stipulations of the ketubah are from their words²⁴⁸Therefore, there is no connection between the ketubah stipulations and the laws of inheritance.?