Yerushalmi Peah 3:7 ירושלמי פאה ג׳:ז׳

MISHNAH: Rebbi Aqiba says: Any real estate¹¹⁸Even if its area is a fraction of a square inch. is subject to peah and first fruits¹¹⁹If it is used for agriculture., to write a prozbol¹²⁰Greek προσβολή, ή, "falling upon, application." As a legal term, "in an auction, document recording the knocking down of a lot to a purchaser" (L. & S.). Only in the Babli does the word appear with ס instead of ז; the etymology proposed would require s and not ζ but this may be a matter of local dialect. Prozbol was instituted by Hillel as a way to circumvent the annulment of debts in the Seventh Year in cases when that annulment would only be a rabbinic ordinance. Since only debts due to real persons are annulled by the Seventh Year, the creditor may deliver the debt to the court to be collected. Since the court is not a real person, the debt is not subject to annulment. The document may be written only as a lien on real estate. The details of prozbol are given in tractate Gittin. based on it, and to acquire simultaneously non-guaranteed property¹²¹Real estate is always sold with a title guarantee unless explicitly disclaimed. If the buyer loses the land he bought, either for lack of a valid title or because of a foreclosure of a pre-existing mortgage, he has regress on all other real estate owned by the seller. [The technical term אחריות “warranty” is אַחֵרָיוּת, corresponding to Latin alienatio “transfer of property to another person.”] with money or contract or possession¹²²Movable property can be acquired only by some act of taking possession, either actual or symbolic. This is necessary in order to determine the exact moment when responsibility for the article is transferred, to avoid situations in which the seller takes the money and then claims that the article was lost in an accident, leaving the buyer without any chance to prove that it was lost when the responsibility was the seller’s. However, since buying real estate is a stronger form of contract, a contract or understanding to buy real estate can be extended to include movables. In that case, the moment of transfer of property rights to the real estate is determining also for the movables. The ways of acquiring real estate are either a contract witnessed by two witnesses, or payment of cash in front of witnesses, or a court ruling confirming squatters’ rights. The general theory of these matters is discussed in tractate Qiddušin; the exact and restrictive definition of enforceable squatters’ rights is one of the topics of tractate Baba Batra..
If someone signs over his properties¹⁴⁸In a gift document. when bedridden and reserved for himself any real estate, his gift is permanent¹⁴⁹Since he reserved property, the document is a gift and not a will, on condition that it was executed under all conditions of a valid gift.; if he did not reserve any real estate for himself, his gift is not permanent¹⁵⁰If he did not reserve anything for himself, it is clear that he did not expect to survive. If he survives nevertheless, the entire document becomes void.. If he signs over his properties to his sons and signs over some real estate for his wife, she lost her ketubah¹⁵¹The ketubah is a mortgage on the husband’s entire property, to be paid to the wife at the termination of the marriage, after divorce or after the husband’s death. It represents the financial obligation of the husband to his wife; without such an obligation, any sexual relations between man and wife are considered illicit. The value of the obligation was fixed at 200 zuz(800 silver denars) for a virgin and 100 zuz (400 silver denars) for a previously married woman. A measure of the intended value of these sums is found in Mishnah 8:8,9, viz., that anyone with 200 zuz investment capital or 50 zuz business capital is living above the poverty line and barred from receiving charity.
The Halakhah explains the circumstances under which the wife may agree to be co-heir to the sons. The Mishnah appears in the context of the power of contracts involving real estate; the first part belongs to the matters treated in Baba Batra and Giṭṭin, the second part to Ketubot.. Rebbi Yose¹⁵²The Tanna, ben Ḥalaphta. says, if she accepted it, even if it was not in a written document, she lost her ketubah.

HALAKHAH: Rebbi Immi¹²³He is Rebbi Ammi, cf. Berakhot, pp. 76,85. asked in the name of Rebbi Simeon ben Laqish: Think of it, if there were only one ear! Before he cut, there was no obligation; after he cut, there will be nothing left!¹²⁴The question refers to the rule of Rebbi Aqiba, that even the tiniest amount of real estate carries an obligation of peah. If the plot is only big enough for one plant, there can never be an obligation since this would fall on the harvest, not on the bare earth. Hence, R. Aqiba also should be giving a minimal size of the plot which might carry an obligation of peah. The answer is that there might be a plant with multiple ears which is not cut but an ear of which is plucked. Then something is left on which the obligation might fall and R. Aqiba is justified. (Cf. the second paragraph in Halakhah 1:1.) Rebbi Ḥananiah in the name of Rebbi Phineas: Explain it if there was one stalk with five ears!

Rebbi Mana asked: Why does he not say: “Any crop is subject to peah?¹²⁵This is a continuation of the previous question. If peah is not a tax on the soil but on plants which grow on it, should not the principle be formulated in terms of the crop? The answer is that then one would need two separate sentences, one for peah and one for first fruits since only fruits of “your land” may be brought (Bikkurim1:2). Since the Mishnah was transmitted orally, that would make memorization much more difficult; a slight deviation from purely logical organization is therefore justified. The ease of memorization is a recognized principle in the formulation of Tannaïtic material.” But because he has to enunciate first fruits he formulates it as “real estate.”

It was stated: “And the appearance¹²⁶In the Temple, see Mishnah 1:1, note 4..” Rebbi Yose in the name of Rebbi Joḥanan: He who owns no real estate is freed from the appearance. Rebbi Mana asked: And why do we not say: He who has no real estate is freed from the declaration¹²⁷From Rashi and R. Samuel ben Meïr (Rashbam) in Babli Qiddušin 26a and Baba Batra 150b it is clear that in old Mishnah texts, the reading was that any real estate obligates its owner “for peah, first fruits, and declaration.” They negate the last term since they read it as referring to the declaration to be made in the Temple that the tithes of the last three years were given as required. Since tithes are due also from a tenant farmer or a sharecropper and, in case the farmer did not give tithes, even from the buyer of grain, and, in addition, the text does not require “tithes from your land,” there is no place for this clause in the Mishnah. The reference in Deut. 26:15 is to את האדמה אשר נתת לנו.
Nachmanides quotes an explanation that the “declaration” is the one required for first fruits (Deut. 26:3–10); he is followed by Meïri and R. Yom Tov ben Abraham Al-Išbili. The reference would be to Deut. 26:10: האדמה אשר נתת לי. There is no verse מן האדמה אשר נתת לנו., since it is written (Deut. 26:15): “From the land that You gave us.¹²⁸The text is slightly misquoted; it should read: “And the Land that You gave us.”” Rebbi Yose ben Rebbi Abun¹²⁹What R. Mana put forward as a possibility is a tradition for R. Yose bar Abun. taught a tradition in the name of Rebbi Joḥanan: “He who has no real estate is freed from the declaration, since it is written: From the land that You gave us.”

Rebbi Yose in the name of Rebbi Joshua ben Levi: He who has no real estate is free from the appearance since it is said (Ex. 34:24): “Nobody will illegally desire your land¹³⁰“When you go up to appear before the Eternal, your God, three times in the year.”.” It happened that one person left his grain heap¹³¹Unprotected.; when he returned, he found lions surrounding it. It happened that one left a chicken coop; when he returned, he found torn cats before it. One man left his house open; when he came, he found a snake rolled up on its tail¹³²Greek κέρκος, ἡ “tail of an animal” (Explanation of De Rossi.). Rebbi Phineas told the following story: Two brothers in Askalon had Gentile neighbors. These said, if those Jews go up to Jerusalem, we will take all they have. When they went up, the Holy One, praise to Him, alotted to them two angels who came and went in their likeness. When they returned, they sent them¹³³In the entire story from here on, the singular is frequently used for the plural. This happens in several Yerushalmi passages. valuable presents. They said to them: where have you been? They said to them, in Jerusalem. They said to them: Whom did you leave in your house? They said, nobody. They said: Praised be the God of the Jews Who did not let us act and did not abandon them!

From where that non-guaranteed property¹³⁵Movables, which cannot have a title guarantee. may be acquired with guaranteed property¹³⁶Real estate., by money, document, or possession? Rebbi Yose¹³⁷He is Rebbi Yasa, Assi. The entire paragraph is paralleled in Babli Qiddušin 26a–27a; there, the verse is simply quoted by Ḥizqiah himself. in the name of Ḥizqiah; Rebbi Jonah, Rebbi Ḥanina Tortaya in the name of Ḥizqiah, it is written (2Chr. 21:3): “Their father gave them many gifts, silver and gold and delicacies, with fortified cities in Jehudah¹³⁸The language implies that the gift of valuables was contingent on the gift of cities..” So far real estate and movables were at the same place. If real estate was at one place and movables elsewhere? Rebbi Abin bar Ḥiyya said, let us hear from the following: Rebbi Eliezer¹³⁹Reading in the Yerushalmi and Baba Batra 9:9, Babli Baba Batra 156b, and in Tosephta Baba Batra 10:12. The corresponding Mishnah, Baba Batra 9:9 reads R. Eliezer in the Yerushalmi and also in the Munich manuscript of the Babli, as well as in the Venice and Lublin prints. It was changed to R. Eleazar (ben Shamua) in modern prints of the Babli, following the reading at one place in Babli Qiddušin, on the authority of Rabbenu Tam (Tosaphot Baba Batra 156a) for stylistic reasons. However, the overwhelming majority of manuscript sources must have priority over arguments concerning style. said to them, it happened that a man from Madon¹⁴⁰A town in Galilee, on the heights overlooking the sea of Galilee, mentioned Joshua 11:1. The man was in Jerusalem, fell ill, and wanted to distribute his property to people in his home town, other than the legal heirs. was in Jerusalem, rich in movables. He wanted to distribute them, to give them as gifts. They said to him, you cannot do that¹⁴¹Transfer movable property as gift without the recipients taking possession at least symbolically. except if you acquire real estate. What did he do? He went and bought a rock¹⁴²A cheap piece of land without practical use. (In one interpretation in the Babli Baba Batra, he bought land the size of a sela‘, i. e., a tetradrachma, a silver coin about the size of a quarter. A pun may be intended, since Hebrew סלע also means “rock”.) near Jerusalem and said: The Northern part I give to X with a hundred amphoras of wine, the Southern part I give to Y with a hundred amphoras of oil. The matter came before the Sages and they upheld his words¹⁴³It seems that the legal heirs went to court to annul the distribution. Since the amphoras could not be placed on the rock, it is clear that real estate and movables were at different places.. Rebbi Ḥananiah said before Rebbi Mana: But was he not bedridden¹⁴⁴Many rules of transfer and wills are waved for seriously sick persons to assure them that their orders will be obeyed. The first example given by R. Ḥanania is generally accepted; the second one is then offered as interpretation of this Tosephta, that acquisition of movables remote from the land transferred might be valid only for bedridden persons.? For in general a person might give property rights only in writing, and here even orally. In general, a person might give only if real estate and movables are at the same place, but here the real estate even was at one place and the movables elsewhere. He said to him: But is there a difference for Rebbi Eliezer? The sick person for Rebbi Eliezer is like the healthy person for the rabbis¹⁴⁵In Mishnah Baba Batra 9:9, R. Eliezer (Bavli in some versions R. Eleazar) explicitly states that bedridden persons are not exempt from the stringent rules of transfer; he does not allow oral bequests..

There, we have stated¹⁴⁶In fact, it has been stated here. The main place of this and the preceding paragraph is Baba Batra 9:9, where “there”, i. e., Peah, makes sense.: “Any real estate is subject to peah and first fruits.” What is the use of “any” real estate¹⁴⁷The question presupposes that one may not acquire movables elsewhere with the contract for real property. The Yerushalmi accepts the answer given in the previous paragraph that only R. Eliezer allows acquisition of remote movables with real estate. The Babli (Qiddušin 26b) asks the same question after quoting R. Eliezer; the answer given here by R. Mattaniah is there ascribed to Rav Ashi, a late Amora. But the Babli adds another lengthy discussion whose explicit outcome is that movables anywhere can be acquired with a contract for real estate. This is a difference in practice between Yerushalmi and Babli.? Rebbi Mattaniah said, explain it if it had space for one stalk but a pearl was hidden in it.

Who is bedridden? Anyone who did not get sick suddenly¹⁵⁴But if he gets sick suddenly, he is called מְסוּכָּן “critical”.. It is customary for the relatives to visit him immediately; unrelated persons visit him after three days. If he falls ill suddenly, everybody visits him immediately. A clarification: Rebbi Ḥuna, Rebbi Phineas, and Rebbi Ḥizqiah went to visit Rebbi Yose after three days. He said to them: Do you want to sustain the baraita in my case¹⁵⁵To act as if you were unrelated, while you are as dear to me as any relative.?

“If he reserved any real estate for himself, his gift is permanent,” even if he did not recover¹⁵⁶Since he reserved property for himself, he did not think that he would die and the transaction is a valid gift.. “If he did not reserve any real estate for himself, his gift is not permanent” if he did recover¹⁵⁷He gave everything away because he thought that he would die and his action amounts to a will which is not valid as long as the testator is alive. Since the gift was not made in due form but under the special rule for sick people, it becomes invalid automatically when the testator recovers..

Rebbi Abba, Rav Huna in the name of Rav¹⁵⁸In Baba Batra 9:6, this is a statement of R. Joḥanan in the name of R. Yannai, given as justification for the rules in the preceding paragraph.: They¹⁵⁹The rabbis, originators of the rule. declared oral instructions by a bedridden person equal to written and delivered ones¹⁶⁰A gift document becomes valid only on acceptance by the recipient or his representative. by a healthy person, on condition that he had died from that particular sickness and that he describes the property and says, give field X to Y¹⁶¹If the instructions are ambiguous or leave the implementation to a third party, they do not invalidate the claims of the legal heirs.. If he says, half of the field to X and half to Y, is that designated? Or only if he says: the Northern half, the Southern half¹⁶²In the interpretation of Maimonides (Zekhiah umattanah 3:5), the Babli in Ketubot 109b and Giṭṭin 8b accepts “half a field” as complete description which makes the gift valid and collectible. Since the Yerushalmi does not resolve the question, the law remains in doubt and, by the rule that the claimant has to prove his claim, the gift is not collectible.?

Rebbi Avina in the name of Rebbi Jeremiah¹⁶³In the parallel Baba Batra 9:6, the reading is: R. Jeremiah in the name of Rav.: If he reserved movables, he did not do anything¹⁶⁴Since the Mishnah formulates that only a reservation of real estate validates the gift.. Come and look: If he reserved any real estate, he has something to live on¹⁶⁵Presumably, the reservation clause means that he reserves enough to live on if he recovers. Nobody can live on the proceeds from real estate the size of a sela, but he can live comfortably as a dealer in gems and pearls. Hence, the exclusion of movables by R. Joḥanan does not seem to make sense.; if he reserved gems and pearls, does he have nothing to live on? Rebbi Yose said, this man knows that the gift of a bedridden person transfers property rights even verbally¹⁶⁶Rebbi Yose notes that the Mishnah and the commentary of R. Jeremiah refer to a written gift of a bedridden person. Since it is unnecessary in this case to write a document, the fact that the document was written confers on it the status of a gift by a healthy person. The reservation clause is purely formal and the argument about livelyhood is irrelevant.. Why did he write it with an obligation of acquisition, in order to give it the status of a gift by a healthy person.

If he reserved slaves¹⁶⁷In certain respects, slaves are treated like real estate, but in others like movables. In the Babli (Baba Batra 150a) they are defined as movable real estate. In the Babli also it seems that the exclusion of slaves has no legal consequence., about that R. Judan bar Pazi from Bar Delaiah stated something, but we do not know what he stated.

If he wrote for one and changed his mind and wrote for another¹⁶⁸A bedridden person who gave property away by a written document in which no real estate was reserved. Then he wrote a second document to supersede the first one. If all had been oral, there is no doubt that a later will would annul the prior one. If the document was simply written and nobody performed an act of acquisition, it seems that even for the Yerushalmi the document is not valid (this is the explicit position of the Babli Baba Batra 152b). Hence, somebody must have received the document for the beneficiary. According to Rav, this makes the gift absolute as explained by R. Yose earlier. According to R. Joḥanan (in the Babli, Samuel), since in any case the deed will automaticaly be rescinded if the donor recuperates, the document is not executable as long as the donor lives and, hence, it is rescindable by him., Rav says he cannot change his mind, Rav Abba bar Ḥuna and Rebbi Joḥanan say he may change his mind. What does it mean¹⁶⁹If the ownership of a slave is transferred in the gift document.? If his first and second masters were Cohanim and the third¹⁷⁰The first master is the donor, the second master is the beneficiary of the second gift, and the third master the beneficiary of the first gift. an Israel, in the opinion of Rav he may¹⁷¹This is the text of all manuscripts, including R. S. Cirillo. All commentators declare the text to be faulty and switch “may” and “may not” between Rav and Rebbi Joḥanan; however, this seems to be inadmissible. not eat terumah¹⁷²A slave is a family member; hence, the slave of a Cohen may eat terumah (in ritual purity), the slave of a Jewish non-Cohen (Israel, including Levites) may not eat terumah. In the opinion of Rav, the Israel is the master if the donor dies and, since a gift is retroactive as explained in the second paragraph following, the slave is disqualified from the moment of the symbolic act of acquisition of the first document., in the opinion of Rav Abba bar Ḥuna in the name of R. Joḥanan he may eat terumah¹⁷³Since both the donor and the legal recipient are Cohanim, the question of ownership is irrelevant.. Everybody agrees that if his first master was an Israel¹⁷⁴And both recipients are Cohanim., he may not eat terumah; maybe the giver will recuperate.

Rebbi Yose ben Rebbi Abun in the name of Rav Ḥuna, a baraita supports Rav Abba bar Ḥuna and Rebbi Joḥanan: “¹⁷⁵The Tosephta (Baba Batra 8:9) has quite a different (Babylonian) version: A healthy person who wrote a will (in the abridged form only permitted to bedridden persons), a bedridden one who wrote a gift document (in the language prescribed for healthy people), even though he let somebody acquire for the recipient, they did not do anything (their documents are invalid). But if somebody wrote as agent for another person (who is sick and afraid of his family) a gift document and let it be acquired, his action is valid. A healthy person who wrote a will¹⁷⁶Greek διαθήκη “will, testament”. and a bedridden one who wrote a gift document¹⁷⁷In the language of a healthy person’s gift that becomes valid on acceptance. may change their minds.” A healthy person who wrote a will may change his mind, even as long as he is healthy. Similarly, a bedridden person who wrote a gift document may change his mind, even while he still is bedridden.

What is a will? “It should be granted to me to live¹⁷⁸This is the reading of the Venice print and Leyden manuscript, and in all quotes of this passage by medieval authors. The Rome manuscript has לחיות “to live”; this is the reading preferred by S. Lieberman. The Babli (Baba Batra 155b) has למיקם “to get up”. In any case, it is a wish that the testator should live and, in that case, the will should cease to be in force. and get up from bed, but if I should die, my properties should be given to X.” What is a gift? “All my properties are given as a gift to X from now on,” or it must be written: “as of today¹⁷⁹Since no gift document can enter into force after the death of its author. In the case of the will, it does not come into force, but there is an obligation on the heirs to fulfill the wishes of the dead. The language “from today” changes even a will into a gift..”

The sister of Rebbi Gurin¹⁸⁰An Amora of the fourth generation, student of R. Yose bar Ḥanina and R. Simeon ben Laqish. His brother’s name was Menaḥem. wrote her possessions over to her brother¹⁸¹It follows from the discussion of the case that the document contained the clause that it was valid “from today” even if it had a statement that it would become executable only after the testator’s death. The gift to the elder brother was written in the same terms.. His older brother came, made peace with her, and she wrote her possessions over to him. The case came before Rebbi Immi. He said: So says Rebbi Joḥanan, one may change his mind. Rebbi Zeïra said, but does Rebbi Joḥanan not agree that if it was written “from today” one may not change his mind¹⁸¹It follows from the discussion of the case that the document contained the clause that it was valid “from today” even if it had a statement that it would become executable only after the testator’s death. The gift to the elder brother was written in the same terms.? Rebbi Abbahu came in the name of Rebbi Joḥanan, one may not change his mind. Rebbi Illaï came in the name of Rebbi Joḥanan, one may not change his mind. Then Rebbi Immi remembered, and the judgement was reversed.

Rav said¹⁸²This refers to the last part of the Mishnah and explains the circumstances under which the ketubah may be replaced by part of the inheritance., if he lets them acquire through her¹⁸³If the wife is the person through whose acceptance the entire document becomes valid. Then it must be assumed that she agreed to its terms.. Samuel says, if he distributes in her presence¹⁸⁴And she does not object.. Rebbi Yose ben Ḥanina said, they stated here a relaxation of the laws of ketubah¹⁸⁵In the Babli (Baba Batra 132 ab), R. Yose ben Ḥanina, while still calling it a relaxation of the rules of ketubah, offers a third possibility: If the husband offered the real estate as settlement of the ketubah and she accepted. This is not accepted in the Yerushalmi, probably to avoid the possibility that the husband exerts undue pressure on his wife in a purely private transaction., and so stated bar Qappara that a relaxation of the laws of ketubah is proclaimed here¹⁸⁶Both according to Rav or to Samuel. The relaxation is explained by Rebbi Abba.. Rebbi Abba said, the reason of Rebbi Yose ben Ḥanina is that it applies not only to a ketubah of a mina¹⁸⁷100 zuz, the minimal ketubah of a previously married woman. Cf. Greek μνᾶ, ἡ, Latin mina, “sum or weight of 100 drachmae”, derived from Hebrew/Syriac/Accadic מנה. or two hundred¹⁸⁸200 zuz, the minimal ketubah of a virgin., but even regarding a ketubah of one thousand gold denars they proclaimed a relaxation of the laws of ketubah¹⁸⁹The value of a regular ketubah of 200 zuz is easily satisfied by real estate. But for a thousand gold denars, representing a few million $ buying power in today’s money, it is not likely that the full value will be covered by agricultural real estate..