052a - יש בכור פרק שמיני בכורות דף נ"ב, ע"א

Nor a woman for her kesubah,^[1]

ולא האשה בכתובתה - Not in improvement that [the property] gained: if the property was not worth the amount of the kesubah at the time of her husband’s death, and afterwards it increased in value, she takes only what it was worth; and not in what is due as in what is held.

nor daughters for their sustenance,^[2]

ולא הבנות - Where [the husband] had undertaken to feed [his wife’s] daughter, whom she had from another man, for five years: after his death she is fed only according to what the property was worth – not from the improvement and not from what is due.

nor the yavam.^[3]

ולא היבם - Who takes a double portion – his own share and the share of the dead brother whose wife he took in yibum: he does not take [in] his brother’s share, either in improvement or in what is due.

And none of them take in the improvement, nor in what is due as in what is held.^[4]

וכולן אין נוטלים כו' - The Gemara explains why [the Mishnah] states it.

Gemara

What is the reason?

The verse says (Devarim 21): “His is the right of the firstborn” – the right of the firstborn belongs to the man, and there is no right of the firstborn for the woman.^[5]

גמ' כי הוא ראשית אונו ולו משפט הבכורה - This implies that it refers to his own [property]; that is, in his property is the right of the firstborn, and not in his wife’s property.

And he does not take in the improvement^[6] – as it is written (Devarim 21): “of all that is found with him.”

לו - To the father, at the time of death.

Nor in what is due as in what is held^[7] – as it is written: “of all that is found with him.”

“Nor a woman for her kesubah.”^[8] Is that so? But Shmuel said: A creditor collects the improvement!^[9]

בעל חוב - One who lent money to another, and the borrower sold the property and the buyers improved it: the creditor seizes the land itself and the improvement. And this woman too is a creditor.

Rabbi Abba said: They taught it here as one of the leniencies of the kesubah.^[10]

מקולי כתובה - This is one of the leniencies of the kesubah.

Nor daughters for their sustenance.^[11]

What is the reason?

The conditions of the kesubah^[12] are like the kesubah itself.

Nor the yavam.^[13]

What is the reason?

The Merciful One called him “firstborn”.^[14]

בכור קרייה רחמנא - “And it shall be that the firstborn whom she bears” – and we establish it in Yevamos (24a) as speaking of the yavam, the Merciful One saying that the mitzvah of yibum falls on the eldest.

Abaye said: They taught this only of improvement that the property gained between the death and the yibum; but [improvement] between the yibum and the division^[15] – he takes.

What is the reason?

The Merciful One said (Devarim 25): “He shall succeed in the name of his dead brother” – and he has succeeded.

יקום על שם אחיו - And this refers to the inheritance, as it says in Yevamos (ibid., 24b): “The Merciful One called him firstborn” – his law is like a firstborn’s, that they do not take in what is due or in improvement between their father’s death and the yibum.

והרי קם - From the time he married his brother’s wife, the double share of the property is as if in his possession, and whatever improved while in his possession improved [for him]; so he takes a double portion even in the improvement.

Rava said: Even [improvement] between the yibum and the division he also does not take.

What is the reason?

Like a firstborn: just as a firstborn has nothing before the division, so too a yavam has nothing before the division.

And none of them take in the improvement.^[16]

Tosfos

ולא האשה בכתובתה ולא הבנות במזונותיהן ולא היבם - The reason [the Mishnah] does not count the husband – for Rav Pappa said in [Perek] Yesh Nochalin (Bava Basra 125b, and Tosfos there s.v. amar): the halachah is that the husband does not take in what is due as in what is held^[17] – is that he does take in the improvement, as Rabbeinu Shmuel explained there: since no one is heir but he, he acquires the property at once, and it improved within his inheritance. And it seems that since the husband does not take in what is due, so too he does not take from a loan owed to his wife, even [money] she lent from her nichsei melog while married to him. This is evident in [Perek] Shor Shenagach Daled VeHei (Bava Kamma 42b), that he does not inherit damages owed to his wife (according to the Rabbis), because it is like a loan: for [the Gemara] compares the ra’ui of the firstborn to the ra’ui of the husband, since it brings there, regarding the husband, the dispute of Rebbi and the Rabbis about the firstborn in Yesh Nochalin (Bava Basra 124a); so according to Rebbi it must be set where he divorced her, because [Rebbi] does not count a loan as ra’ui for the firstborn, and the same holds for the wife – for although the firstborn has a verse, they are learned from each other. And the Rabbis count it as ra’ui, even though had the damages come into her hand in her lifetime they would have had the status of nichsei melog, as is evident from the Mishnah of “the find of a wife” (Kesubos 65b). And the fact that in Yesh Nochalin (Bava Basra 124b) [the Gemara] left aside the husband, which it was discussing, and took the firstborn, who does not take a double portion in a loan – that is not because it holds that the husband does take a loan, for he certainly does not, as I explained; rather it gave the ruling about a loan for the firstborn because regarding the firstborn the Amoraim there disagree in that very passage, and so it left the husband and took the firstborn. Nor can one ask why [the Mishnah] does not teach them together – that the husband and the firstborn do not take in ra’ui as in what is held and do not take in a loan – because for the firstborn it is a full Mishnah, as we learned here that he does not take in ra’ui as in what is held; but for the husband, who does not take in ra’ui, [the Gemara] found neither Mishnah nor beraisa, only an Amora’s statement in Perek Yesh Nochalin (ibid. 113a), where Rabbi Abahu said in the name of Rabbi Yannai, and some carry it in the name of Rabbi Yehoshua: From where [do we know] that the husband does not take in ra’ui as in what is held? As it says, “And [Seguv] begot Yair, etc.”

והאמר שמואל בעל חוב גובה את השבח מקולי כתובה שנו כאן - Here [the Mishnah] deals with orphans, like the daughters with their sustenance, for the sustenance of the wife and the daughters is not collected from mortgaged property, as we learned in Perek HaNosei in Kesubos (101b). The Kuntres^[18] explained the daughters’ sustenance as where a man married a woman and undertook to feed her daughter; and according to his explanation there is no proof, for it could well be speaking of improvement made by buyers. But the word “daughters” does not imply that. For why would daughters differ from a son? The same applies to a son, if he made the undertaking with his wife, like the case taught among the five that are collected from free property: “and one who undertakes to feed his wife’s daughter and his wife’s son.” Nor should it have used the plural “daughters”; it should rather have taught “nor his wife’s daughter for her sustenance.” For the word “daughters” implies the daughters’ sustenance that we learned in HaNizakin (Gittin 48b), which [the daughter] eats by a stipulation of the court, as we learned in Perek Naarah Shenispatsah (Kesubos 52b): “If he did not write for her, ‘The female children you will have from me…’ etc., he is obligated, because it is a stipulation of the court.” Moreover, [the Gemara] here gives the reason “because the conditions of the kesubah” (are like the conditions of the court); but her daughter who is fed by an undertaking he made with his wife to feed her daughter for five years is not called a condition of the kesubah, for she is not fed by virtue of being her daughter – even someone else’s daughter would be fed if he undertook it with his wife, since she is like a creditor. Rather it speaks of the daughter’s sustenance that is a stipulation of the court, and those are not collected from mortgaged property, as we learned in Gittin in HaNizakin (48b) and in Kesubos, Perek HaNosei (101b). If so, it is certain that what they say here, that they collect not the improvement but only the principal, refers to [collecting] from orphans and not from buyers; and in the same way it speaks here of the kesubah, which does not collect [improvement] because “they taught it here as one of the leniencies of the kesubah,” as the reason given implies; but a creditor collects improvement, as Shmuel said, even from orphans, since, as I explained, we are dealing with orphans. And although it says in the first perek of Bava Metzia (15a) that a creditor collects improvement from buyers because the seller wrote this to the buyer: “I will stand up, clear and settle these sales – them, their labor and their improvement,” whereas the recipient of a gift, for whom he did not write so, does not [recover], since he has no one to return to – and for that very reason [the creditor] should not collect from orphans, who have no one to return to – one can distinguish between an heir and the recipient of a gift: an heir is like his father’s leg, and the creditor may collect the improvement from him as from his father; and because of “locking the door” [before borrowers] they had to enact that he collect the improvement from them, more than from a gift recipient, who has no tie to the father. And what we say in Perek HaMekabel (Bava Metzia 110a): “The orphans say, ‘We improved it,’ and the creditor says, ‘Your father improved it,’ etc.” – which implies that if the orphans improved it the creditor does not collect the improvement – that is only where he made it an apotiki,^[19] for there it also says that he does not collect from buyers; for Shmuel said: “Three [are given] the improvement by assessment and are paid off with money: a firstborn to the ordinary [brother], a creditor to orphans, and a creditor to buyers.” And from that statement of Shmuel it brings there that if the orphans bring proof that they improved it, we pay them off with money – which implies that all three are one case, of an apotiki. For [the Gemara] asks on it: “Did Shmuel say that a creditor gives the buyer the improvement? But Shmuel said, a creditor collects from the improvement!” and answers: “Here we are dealing with where he made it an apotiki” (as) – when he said that a creditor collects the improvement, it is where [the borrower] told him, “You shall have payment only from this”; once the due date arrived it counts as if he had collected it, and the fields remained the creditor’s; and [the other] planted it without permission and weakened the creditor’s hold on what was made an apotiki; since it counts as collected, he must pay the value of the improvement both to orphans and to buyers. And this is what it says at the start of the sugya about orphans: “Land, since it stands to be collected, is as if collected.” The Kuntres too explained it there as where it was made an apotiki, as is proven below in our passage. And what the Gemara answered at the start of the question from Shmuel: “Here where [the debt] reaches [the value of] the land and the improvement, there where it does not reach, etc.” – that does not stand in the conclusion, where we set it as a case where he made them an apotiki; for even where it reaches the land and the improvement he must pay the orphans and the buyers the value of their improvement, as I explained. Moreover, perforce this [case of] “the orphans say, ‘We improved it’” cannot be set where it does not reach the land and the improvement, for then even if their father improved it [the creditor] would not take it; rather it certainly speaks where it reaches the land and the improvement, and even so he does not take it if the orphans improved it, as explained, where they made it an apotiki. And on the first answer, which answered “here where it reaches the land, there where it does not, etc.,” [the Gemara] could have asked: if so, how shall we set this case of “the orphans said, ‘We improved it’”? If where it reaches, even if the orphans improved it he takes; and if where it does not, even if their father improved it he does not take! Rather, that answer does not refer to this passage of “the orphans say, ‘We improved it,’” but to the contradiction from Shmuel to Shmuel, which is also in the first perek of Bava Metzia (15a) and in HaGozel Kamma (Bava Kamma 95b).

Notes

1. 1. The Mishnah began on the previous amud [Bechoros 51b]: the firstborn does not take a double portion in the improvement, nor in what is due as in what is held. It now lists others who likewise do not. A kesubah is the sum a husband undertakes to pay his wife; a widow collects it from his estate.
2. 2. After a man’s death his daughters are fed from his estate until they are betrothed or come of age. Rashi explains this clause as a wife’s daughter from another man whom the husband undertook to feed; Tosfos explain it as the daughters’ sustenance that is a stipulation of the court.
3. 3. A yavam is the brother of a man who died childless; he marries the widow (Devarim 25:5–6) and also inherits his dead brother’s share in their father’s estate.
4. 4. Shevach (improvement) is a rise in the estate’s value after the death, before the division. Ra’ui (“what is due”) is property not yet in the deceased’s hands at his death but due to come to him, such as a debt owed to him or an inheritance that fell later; muchzak is what he held.
5. 5. This explains the Mishnah’s ruling on the previous amud [Bechoros 51b] that the firstborn does not take a double portion in his mother’s property: “his” – the father’s, not the mother’s.
6. 6. The Mishnah’s words. “All that is found with him” means what he had at the time of his death; improvement that came later was not found with him.
7. 7. The Mishnah’s words. Ra’ui, too, was not found with him at the time of his death.
8. 8. The Mishnah’s words: the widow collects her kesubah by the property’s value at the time of her husband’s death, and does not collect from improvement it gained afterwards.
9. 9. Shmuel’s ruling (Bava Metzia 15a): a creditor who seizes land from buyers takes it together with the improvement they added. A widow is a creditor for her kesubah, so why should she not collect the improvement?
10. 10. The Sages were lenient with the kesubah in several respects compared with an ordinary debt – for example, she collects from the poorest land (Gittin 48b).
11. 11. The Mishnah’s words: the daughters are fed by the property’s value at the time of the death, not from later improvement.
12. 12. Conditions of the kesubah are obligations the Sages attached to every kesubah even when not written, such as feeding the daughters after the husband’s death (“the female children”, Kesubos 52b).
13. 13. The Mishnah’s words: the yavam, who takes his dead brother’s share, does not take improvement or ra’ui in it.
14. 14. “And it shall be that the firstborn whom she bears shall succeed in the name of his dead brother” (Devarim 25:6). The Gemara in Yevamos (24a) reads it as referring to the yavam; since he is called “firstborn,” his share is treated like a firstborn’s.
15. 15. Between the yibum and the division: after he performed yibum, but before the brothers divided their father’s estate.
16. 16. This closing clause of the Mishnah looks redundant, since each case has already been said not to take improvement. The Gemara’s discussion of it continues on the next amud [Bechoros 52b].
17. 17. A husband inherits his wife. He does not take ra’ui, but he does take improvement, because he alone is heir and acquires the property at once.
18. 18. “The Kuntres” is Tosfos’ name for Rashi’s commentary.
19. 19. An apotiki is a field the borrower designated for the debt (“you shall have payment only from this”). Once the due date arrives it counts as already collected, so the creditor must pay whoever improved it for the improvement.