Yerushalmi Gittin 5:3 ירושלמי גיטין ה׳:ג׳

MISHNAH: One cannot collect for usufruct⁴⁷If a robber took land by force, had its use for some time, and then sold it, the land itself can be reclaimed from the buyer but payment for the illicit use of the land can be exacted only from the robber himself., for improvement of the land⁴⁸If the buyer of some property makes improvements, such as planting fruit trees, and then loses the property through the foreclosure of a prior lien, he can recoup his expenses for the improvements only from the original seller directly., or for sustenance of the wife and the daughters⁴⁹It is a required condition in a ketubah that after the husband’s death his widow and unmarried daughters be sustained by the estate (Ketubot 4:11–12). While the ketubah itself is a mortgage lien on all real estate acquired by the husband, the additional conditions cannot be foreclosed as a mortgage. from incumbered property, for the public good⁵⁰All other Mishnah sources have an additional clause, either as original text or addition: “The finder shall not be made to swear, for the public good.” Since the statement is quoted in the Halakhah (Note 88), it should be read here also..

HALAKHAH: “One does not collect from encumbered property,”⁵³This quote from Mishnah 2 is not in its place. The reference is to Mishnah 3 and the list of items which cannot be subject to foreclosure from a buyer. etc. Rebbi Ḥanina said, because they have no fixed amount⁵⁴Mortgage liens are only fixed amounts. The same statement is in the Babli, 50b..

If [Reuben]⁵⁵Missing in the text but clearly demanded by the sequel. robbed a field from Simeon and sold it to Levi⁵⁶In all cases discussed, Levi is presumed to be an innocent buyer who did not know that the seller had no title., then Simeon came⁵⁷Who could prove his ownership in court. and foreclosed it from Levi; then Levi collects from Reuben’s encumbered property and Simeon collects the usufruct from Levi’s free property⁵⁸This follows the Mishnah and is unproblematic.. If Levi in the meantime improved [the property], Levi collects the capital from Reuben’s encumbered property and the improvement from Simeon’s free property. Rebbi Ḥiyya in the name of Rebbi Joḥanan said, only if a third party’s buying preceded the improvement by this one⁵⁹If Simeon sold property before he knew that Levi had improved the property which he is going to retake, the eventual obligation of Simeon towards Levi is no lien on the real estate sold to the third party. In the Babli, 51b, a similar but tannaïtic statement applies only in case the field was sold by the buyer from the robber to another person, whose innocent purchase is protected.. But if the improvement by this one preceded a third party’s buying, Levi can collect the capital even from Simeon’s encumbered property⁶⁰In this opinion, whose problematic aspect is discussed later, Simeon’s potential liability is an automatic lien on all his properties.. Rebbi Abba, Rebbi Ḥiyya in the name of Rebbi Joḥanan said: With usufruct one proceeds in the same way⁶¹There also, it depends on when the obligation of payment started. The Babli agrees, Baba Meṣi‘a 14b, where the situation described here is alluded to.. If he spent four denars and the improvement is worth six, Levi collects four denars from Reuben’s encumbered property and another two from Simeon’s free property. Rebbi Abin in the name of the rabbis there: Since he did not enter with permission, his hand is weak against Simeon⁶²Since for Simeon all that Levi did in his field was unauthorized, Simeon does not have to pay at all since he would pay only an amount equal to the smaller of investment or improvement, but since the investment is collected from Reuben, there is no enforceable claim against Simeon. (Cf. also Yebamot 15:3, Note 71.). Rebbi Yose ben Rebbi Abun in the name of the rabbis there: Since he entered with permission, his hand is strong against Reuben⁶³Since Reuben sold the field to Levi, the latter can collect from Reuben the value of the improvement, not only the amount of investment..

⁶⁴This paragraph is discussed by Rashba in a letter to Meïri (Responsa attributed to Naḥmanides, #96). The text is practically identical with that of the ms. Reuben robbed a field from Simeon and sold it to Levi; Levi went and gave it to Jehudah as a gift. Then Simeon foreclosed it from Jehudah. Jehudah has no regress on Levi since it was a gift. Levi has regress on Reuben since it was a sale. Did he not give it away as a gift? He can say to him, it was my intention to give it to him so he would return me favors⁶⁵While goodwill cannot be easily quantified in monetary terms, it is of value and can be used in a claim against a robber.. Reuben robbed a field from Simeon and gave it to Levi as a gift; Levi sold it to Jehudah. Jehudah has regress on Levi since he sold it; Levi has no regress on Reuben since it was a gift; as Rebbi Yose said in the name of the rabbis: No easement is created by a gift.

Reuben robbed a field from Simeon and sold it to Levi, and he⁶⁶“He” seems to be Simeon, who has to go to court and obtain a document which gives him the right to take the field from Levi. did not have time to write the foreclosure document before he died: whose is it⁶⁷It should be obvious that the field is Simeon’s and after him his heirs. The paragraph is difficult to understand; the commentators all emend the text to fit their explanations, which can be disregarded. It seems that the question is to whom do the heirs have to address their foreclosure document.
The problem is an old one; Meïri, after Rashi the second most important Medieval commentator, asked Rashba for an explanation (cf. Note 64). Meïri’s text read טרפו “his forclosure document,” Rashba’s read תרפו “his sales document.” This is Rashba’s anwer:
“It is my opinion that our text is defective and it should be as follows: Reuben robbed a field from Simeon and sold it to Levi, then Reuben bought it from Simeon but before he could write the sales contract, he died. That is the case about which Samuel asked Rav in (Babli) Baba Meṣi‘a (15b), viz., if it turns out that the field was not his, but he went and bought it from the original owners, what are the rules? He told him, the first (the robber) sold to the second (the buyer) any present and future rights to the parcel.… And this is the explanation of this text according to my understanding: Reuben had robbed a field from Simeon and sold it to Levi who did not realize that it was robbed. Afterwards, Reuben bought the parcel from Simeon, but Simeon had not yet written the sales contract when Reuben died: who is the owner? Rav Huna and Ḥiyya bar Rav: One says if the document was first, if the sale was completed before he died, the sale was final and Reuben did not transfer [the field] to Levi; this shows that Reuben did not intend to leave the field in Levi’s hands, ostensibly to leave it to his heirs. He does not spell this out since the sales document was not yet written. The other one said, there is no difference between written and not written, he wants the field to be Levi’s since he did not dispose of the field in a will. (The same Rav Huna and Ḥiyya bar Rav disagree in the Babli Baba Meṣi‘a (16a) about the time available to the robber to act to protect his credit.) Rebbi Mana has a different explanation: He says that in any case the field belongs to Reuben, following Rami bar Ḥama (in the Babli, Baba Meṣi‘a 16a) who said that Levi’s contract was not worth the paper it was written on. But Rebbi Yose bar Abun is of the opposite opinion, since Levi can tell him, is the field not now before you that you can turn the sale into a valid one. This follows Rava (in the Babli, Baba Meṣi‘a 16a) who told Rami bar Ḥama that Levi acquired the property by the trust he put in Reuben.
But following your reading, since you read טרפו with ט, it is possible that this refers to a foreclosure document which Levi obtained against the robber after he had lost the field to Simeon, and that is the same disagreement we find there (in the Babli, Baba Meṣi‘a 16a); how long does a person have credit, Rav says until the start of court proceedings, Ḥiyya bar Rav says, until the foreclosure document was signed, and Rav Papa said, until the public sale.”? Rav Huna and Ḥiyya the son of Rav: One said, if he wrote the foreclosure document, it is Reuben’s, if not, it is Levi’s. The other one said, whether he wrote or did not write, it belongs to Levi. Rebbi Mana said, it is reasonable that it does not belong to Reuben since he can say to him, I sold you something which was not mine. Rebbi Yose said, it is not reasonable that it should not be Levi’s, since Reuben⁶⁸Rashba reads "Levi" as text, not as correction. can tell him, is this not before you? You are good to confirm the sale.

Can one collect dowry from encumbered property⁷⁰Since providing a dowry for daughters is one of the obligatory conditions attached to a ketubah; cf. Ketubot 6:6.? ⁷¹This text is from Ketubot 6:6 (30d 1.59), explained there in Notes 93–97. Variant readings are noted כ. Rebbi Ze‘ira said that Rebbi Joḥanan does not collect. Who collects? Rebbi Ḥanina and Rebbi Ila collect. Rebbi Yasa was appointed custodian of orphans’ property. There were orphan [girls] who asked for dowry. He brought the case before Rebbi Eleazar and Rebbi Simeon bar Yaqim. Rebbi Simeon bar Yaqim said, is it not better to provide for them from their father’s estate rather than from charity? Rebbi Eleazar said to him: If such a case came before our teachers, our teachers would not touch it; would we act? Rebbi Yose said, I shall give to them, and if some orphans would get up and complained, I would give it to them. They stood up and complained⁷²This is the opposite of what is asserted in Ketubot..

A judgment was rendered⁷³In Ketubot (6:6, Note 98) it is only asserted that a judgment was given following R. Ḥanina. for Ṣippor bat Absalom. Rebbi Simon and Rebbi Jacob bar Idi in the name of Rebbi Simeon bar Abba: I and our teachers collected for her from movables⁷⁴Following the principle that local custom is the overriding determinant in the judicial interpretation of ketubah obligations; cf. Ketubot 6:4, Note 67., following the custom of her place.

Rav wrote to Rebbi, who transferred it to the Elder Rebbi Ḥiyya and Rebbi Ḥiyya wrote between the lines. If the orphans sold against the rules⁷⁵Since by talmudic rules, all obligations of a ketubah are to be satisfied by real estate, any sale while some of the obligations are still open is against the rules., one collects for dowry but one does not collect for sustenance⁷⁶The daughters, who do not inherit if there are sons, have a claim of (in general) 10% of their father’s estate as dowry. Cf. Ketubot 6:6. Since this claim exists even during the father’s lifetime, it has precedence over the widow’s claim to sustenance which starts only at her husband’s death.. If they accepted a lien⁷⁷This was Rav’s question. The lien is a mortgage obligation.. I do not know what this lien is⁷⁸This is R. Ḥiyya’s note. Was the mortgage taken during the father’s lifetime or after his death? In the Babli, Ketubot 69a, the question from the start was about a mortgage the heirs took out on real estate of their inheritance.. Levi stated: Both for a lien made by the father and for a lien made by the son, one collects for dowry⁷⁹From real estate sold or pledged. but one does not collect for sustenance⁸⁰This is also quoted as Rebbi’s opinion in the Babli, Ketubot 69a.. Rebbi Abba said, there is no mention of a lien made by the father, only a lien made by the son. If one cannot collect during the father’s lifetime⁸¹Mishnah Ketubot 4:6., not so much less after the father’s death? Rebbi Ḥama bar Uqba in the name of Rebbi Yose bar Ḥanina: If the daughters are married, the widow is sustained by them⁸²In the Babli, Ketubot 51a, the question never arises since the claims of the widow and the daughters are accorded equal status; this rule is quoted in Yebamot 15:3 (14d 1.68), Ketubot 4:8 (29a 1.25).. Rebbi Abba follows his own [opinion] and Rebbi Jehudah⁸²In the Babli, Ketubot 51a, the question never arises since the claims of the widow and the daughters are accorded equal status; this rule is quoted in Yebamot 15:3 (14d 1.68), Ketubot 4:8 (29a 1.25). follows his own [opinion]. For the sister of Rebbi Yose bar Ḥanina in the name of Rebbi Yose ben Rebbi Ḥaggai: Even if they died, the widow is sustained by them.

⁸³The Text is from Ketubot 4:8, Notes 200–201. Variant readings are given there. What is the situation of grandchildren? Rebbi Mana said, grandchildren are like children. Rebbi Yose said, grandchildren are not like children. Rebbi Samuel, son of Rebbi Yose ben Rebbi Ḥanina and Rebbi Mattaniah were sitting together. They wanted to say, the same situation applies to grandchildren here as there. Rebbi Yose ben Rebbi Ḥanina said to them, inheritance by biblical law jumped on grandchildren.

There⁸⁴Mishnah Ševuʻot 6:1. The subject is the biblical oath imposed on a person who denies an obligation (Ex. 22:8). The rabbinic interpretation of the expression אֲשֶׁר יֹאמַר כִּי הוּא זֶה is “if he [the defendant] agrees that there is a case.” If the defendant in a civil suit, in which there are no witnesses and no documents, denies the entire claim, he does not have to swear a biblical oath (he may have to swear a rabbinical oath). But if he agrees to part of the claim, he has to swear a biblical oath to free himself from the remainder. Only if the claim is advanced as tentative, then any admission by the defendant is a gift to the claimant and by rabbinic rule no oath of any kind is due., we have stated: “You⁸⁵The speaker is the claimant. have in your hand a mina of my father’s; you⁸⁶The speaker is the defendant. have to get from me only 50 denars. He does not have to swear since he is like a person who returns a find⁸⁷The heir is not conversant with all the details of his father’s business dealings. Since he cannot swear that the father had not received payment, he has no case if the defendant denies the entire claim. The partial admission of the claim is the equivalent of a gift by the defendant to the claimant..” Rebbi Eleazar said, in this case they instituted a regulation as they instituted for a find, as we have stated⁵⁰All other Mishnah sources have an additional clause, either as original text or addition: “The finder shall not be made to swear, for the public good.” Since the statement is quoted in the Halakhah (Note 88), it should be read here also.: “The finder of a lost object shall not swear because of the public good⁸⁸If the owner claims to have lost more than the finder returns, the finder cannot be made to swear that he did not retain anything for himself, since otherwise nobody would return any find..” Rebbi Abba said, this Mishnah [applies] when he said to him, you found my two oxen⁸⁹As explained later, one ox was found but the owner claims to have lost two. Returning one ox is not accepting part of a claim of two.. But if he⁹⁰The finder. said, I found your two oxen and returned both of them, but the other⁹¹The original owner. said, you returned only one, in that case they did not institute the rule⁹²He has to swear since both parties claim to be sure of their case.. Rebbi Pedat in the name of Rebbi Joḥanan: In this case they did institute⁹³This is a case of returning a find and the finder is protected.. But in the first case⁸⁹As explained later, one ox was found but the owner claims to have lost two. Returning one ox is not accepting part of a claim of two., it is a word of the Torah, as it was stated: I could think that if he said to him, you found my two oxen⁹⁴This cannot be more than a conjecture; the claimant cannot make a defendant swear about a hypothetical case., but the other said, I found only one, should he be obligated [to swear]? The verse⁹⁵Lev. 5:22, speaking of the sacrifice required of the person who swears falsely in the situation described in Ex. 22:8. says, “or if he found a find and disowned it;” that excludes this one who did not disown. But if he said to him, I was standing on my roof when I saw you dragging away two tied oxen, two tied oxen you dragged away from me⁹⁶The claimant asserts as a certainty that he saw his two oxen in the finder’s possession., and he says, only one I dragged away; in that case they made no regulation. Similarly: “I was standing with my father when he was dying and he claimed from you a mina and you agreed to it⁹⁷This is an assertion of a certain claim which falls under the rule of Ex. 22:8.,” and the other says, “I agreed only for 50;” in that case they made no regulation.