Egyptian-Hebrew stream·Mishnah·Shabbat — Chapter XIII

Source context

Theme

Tannaitic legal-ethical transmission through oral repetition and codified precedent

Steiner

not engaged in the GA corpus

Cross-tradition

• Oral Torah doctrine (Rabbinic Judaism)The Mishnaic chapter exemplifies the principle that authoritative tradition is sustained through structured oral repetition (shanah), preserving legal and ethical rulings across generations without written fixation until codification.
• Aristotelian habituation ethicsCross-tradition congruence appears in the Aristotelian view that moral character is formed through repeated practice (hexis), structurally parallel to the Mishnaic method of inculcating right conduct through iterative oral rehearsal of precedent.

Chapter XIII

CHAPTER XIII.

§ 1. R. Eleazar saith, "Whoever weaves three threads at the [first] beginning [of a weft], or one thread while the weft is in progress, is guilty;" but the sages decide, "that whether at the first beginning or end [of a weft] the prescribed quantity is two threads."

§ 2. Whoever ties two threads, whether in the warp or in the shoot, or in a fine or coarse sieve, or in a basket, is guilty. [Moreover], he who sews two stitches, or tears, with intent to sew two stitches, [is guilty].

§ 3. Whoever tears something in a rage, or at a death, and all who in a passion spoil [or destroy], are absolved. Whoever spoils [breaks] in order to repair the prescribed quantity, [which decides his being guilty], is [guilty] according to the [extent of the necessary] repairs.

§ 4. The prescribed quantity of wool, washed, carded, dyed, or spun, is that of a double sit; 1 and, in the weaving of two threads, the prescribed quantity is that of one sit in width.

§ 5. R Jehudah saith, "Whoever hunts a bird into a cage, or a deer into a house, is guilty." The sages decide, "a bird into a cage, a deer into a house, a court, or an inclosure for animals." 2 R. Simeon ben Gamaliel saith, "Not all inclosures are alike." The rule is, when the capture is incomplete, he is absolved; but when the capture is not incomplete he is guilty. The meaning is, whatsoever must be chased a second time renders guilty; whatsoever is completely in a man's power does not render guilty.

§ 6. If a stag enter a house, and one man shuts him in, he is guilty; if two shut him in, they are absolved; if one man is not able to shut him in, and [therefore] two shut him in, they are guilty. 3 R. Simeon absolves them.

§ 7. If one man places himself in the door [entry, to prevent the deer from getting out again], but does not [completely] fill it, and a second person places [himself next to him], and does fill it, the second is guilty. If the first places himself in the door [entry], and fills it, and a second person comes and places himself at his side,

although the first should afterwards get up and go away [leaving the second in the entry], the first is guilty, and the second is absolved. For what is this like? Like as if he had locked his house to secure his property, and a stag is found secured within it.

Footnotes

56:1 The size of a full span: between the first and middle finger is a sit, the space between the thumb and middle finger is a double sit.

56:2 ‏ביברין‎, from the Latin vivarium; a kind of den or inclosure, in which wild animals were kept.

56:3 Vide our note 1, p. 27.

Chapter XIII

CHAPTER XIII.

§ 1. Beth Shammai hold that the right of refusal [‏מיאון‎] 1 is permitted to those who are betrothed only; but Beth Hillel extend it to those [minors] also who had been married [under the nuptial canopy]. 2 According to Beth Shammai [the right of refusal] is only available against the husband, but not against the brother-in-law [in case of Yeboom]; but Beth Hillel permit it against either. Beth Shammai will only allow [the refusal] when it was made in the presence of the husband; but Beth Hillel permit it in his absence, as well as in his presence. Beth Shammai require the refusal to be made [formally] before a Beth Din [tribunal]; but Beth Hillel consider a refusal not made before a tribunal sufficient. Beth Hillel said to Beth Shammai, "A girl may thus, during her minority, refuse four or five men." But the school of Shammai replied, "The daughters of Israel are not to be thus loosely dealt with, therefore, as soon as such a girl expressed her refusal, she must wait [to be again betrothed] till she has attained her majority, or expressed her refusal of the man to whom she is betrothed, 3 and marries another immediately.

§ 2. What minor [orphan girl] is hound to make a formal refusal? She who, with her consent, was married by her mother or brothers, but when she had been married. by them without her consent, she need not, to annul this marriage, pronounce a formal refusal. R. Hanina ben Atignos saith, "Any child who was then 4 incapable of taking care of the money, &c. [given her as her marriage bond] is also not required to make a formal refusal." R. Eleazar saith, "The act of a minor is a nullity, and such a girl can only be considered in the same light as one who had been seduced. Should she be the daughter of an Israelite, and he a priest, she may not eat heave, but if she is a priest's daughter, and he an Israelite, she may eat thereof."

§ 3. R. Eleazar ben Jacob saith, "When the prolonged stay of such a woman 5 [who had been divorced from her husband] is owing to affection for him, she must be considered as his wife; but if it did not proceed from that cause, 6 she is not to be considered as his wife.

§ 4. When such a female has once formally expressed her refusal [of the man she was betrothed to], he may marry her near relatives, and she may marry his, and she is not disqualified from being married to one of the priesthood; but if he divorced her, he may not marry her, nor she his near relatives, and she is disqualified to be married to a priest. If he divorced her, and then desired to take her back, when she formally refused him, and married another from whom she was subsequently separated, or became a widow, the first husband may take her back; but if she had expressed her refusal, and the man took her again and then divorced her, upon which she was married to another, and became a widow, or was divorced, then the first husband may not take her back; the rule is when a Get was given after a declaration of refusal, he may not take her back, but he may do so if the refusal was posterior to the Get in point of time.

§ 5. When a woman who expressed her refusal of a man to whom she was betrothed, was married to another, and divorced by him; then again to a third, whom she refused, and thereupon married a fourth, by whom she was divorced; then again to a fifth, of whom she expressed a refusal: then is she not allowed to return to any of the men who had divorced her, but she may return to one of those whom she had refused.

§ 6. If a person divorced his wife and took her back, his brother may [at his decease without issue] marry her by Yeboom; but R. Eleazar prohibits this. Thus also may an orphan who had been divorced, and taken back, be married by Yeboom; but R. Eleazar prohibits this also. A female who, in her minority had been given in marriage by her father, and received a Get, is to he considered an orphan, even during her father's life. All agree, however, that in case he [i.e. the man from whom she was divorced] took her back she may not [at his desire] be married to his brother by Yeboom.

§ 7. When two brothers are married to two sisters who are minors and orphans, and the husband of one dies, then the widow is released from Yeboom, as the sister of the brother-in-law's wife; also when both females are deaf and dumb. When one of the sisters has attained her majority, and the other is yet a minor, should the minor's husband die, she is released from Yeboom, as sister of the brother-in-law's wife. R. Eleazar says, "When the husband of the elder sister dies, the youngest sister must be instructed to refuse." 7 Rabbon Gamaliel saith, "If she refuses, it is well; if not, let her wait till she attains her majority; and then her sister will be released as a wife's sister." R. Joshua saith, "Such a man deserves commiseration, on account of his own wife, and his sister-in-law, because he must part with his wife by a Get, and is bound to receive Chalitzah from his sister-in-law.

§ 8. When a person who had married two orphans 8 in their minority dies, then the connexion which the surviving brother may have with one of them, or the Chalitzah he received front one of them, does also release her rival. The same applies in respect to deaf and dumb females; 9 but if one of the females is a minor, and the other is deaf and dumb, connexion with one does not release her rival. When one is sound, [i.e. neither deaf or dumb], and the other deaf and dumb, then does connexion with the sound one release her who is deaf and dumb, but not on the reverse case. If one has attained her majority, and the other is a minor, connexion with the eldest releases the younger, but not in the reverse case.

§ 9. When the husband of two orphans who are minors dies, and that the brother on whom the obligation of Yeboom devolved, had connexion first with one and then with the other, or that one of his brothers had connexion with the other sister-in-law, the first is not thereby disqualified to remain his wife. 10 The same applies to the case of two deaf and dumb women under the same circumstances.

[paragraph continues] If one of the females is a minor, and the other deaf and dumb, and the brother on whom the duty of Yeboom devolved had connexion first with the minor, and then with the deaf and dumb one, or that a brother of his had connexion with this latter, the minor is not thereby disqualified to remain his wife, but if he had connexion first with the deaf and dumb one, and then with the minor, or that his brother had connexion with the minor, the deaf and dumb became disqualified to be his wife.

§ 10. When one of the females is sound [i.e. not deaf and dumb] and the other deaf and dumb, and the Yabam 11 had connexion with the first mentioned, and afterwards with the last mentioned of his sisters-in-law, or that his brother had connexion with the latter, the sound one has not thereby . become disqualified to be his [the Yabam's] wife. If he had connexion first with the deaf and dumb woman, and then with the sound one, or that his brother had afterwards connexion with the sound one, the deaf and dumb female is disqualified.

§ 11. When one of the females is of age, and the other a minor, if the Yabam had connexion with the elder, and then with the minor, or that his brother had connexion with the latter, the elder is not disqualified. If he had connexion first with the minor, and then with the elder, or that his brother had connexion with this latter, the minor is disqualified. R. Eleazar saith, "The minor is to be instructed to make use of her right of refusal."

§ 12. When the Yabam and his sister-in-law are both minors, and had connexion together, they must grow up with each other [i.e. the Yabam has not the power to divorce her during his minority]. If the widow had then attained her majority, she must wait till he has attained his. If the widow declares within thirty days [after the marriage by Yeboom has taken place] that her husband has not consummated the marriage, he will be compelled to allow her to perform to him the ceremony of Chalitzah. When she made the mentioned declaration after the expiration of the thirty days, he is to be requested to allow her to perform Chalitzah to him; but when he admits the truth [of her accusation of the non-consummation of the marriage] he will be compelled even after a twelve month, to allow her to perform to him the ceremony of Chalitzah.

§ 13. When a woman made a vow during her husband's life not

to receive any benefit whatever from the brother-in-law on whom the duty of Yeboom devolves, the latter will be compelled to allow her to perform the ceremony of Chalitzah to him: if she made this vow after the death of her husband, he is to be requested to allow her to perform Chalitzah to him; but when she made the vow with the intention of being thereby freed from the claim the brother-in-law has on her, he is in that case merely to be requested to allow her to perform to him the ceremony of Chalitzah.

Footnotes

227:1 Namely, that of an orphan girl, who, during her minority, was betrothed by her mother or brothers, and who, on attaining her majority, has a right to refuse her consent, and render the betrothing void.

227:2 Which completes the marriage.

227:3 According to the school of Shammai she is not entitled to refuse again.

227:4 When she is under the age of six, or even of ten years, in case she is innocent, and did not well know the meaning, or was not aware of the extent of the engagement she had entered into.

228:5 Namely, the orphan who had been betrothed in her infancy, &c., who had not refused the husband intended for her, but had been rejected and divorced by him.

228:6 When she expressed her refusal, and insisted on having her engagement annulled.

229:7 And as her marriage thus becomes void, her husband may marry her sister.

229:8 Who are not related.

229:9 This must be understood as limited to the connexion with the brother-in-law, but not to the Chalitzah, which a deaf and dumb woman is not qualified to perform.

229:10 The reason is this, either the marriage with these minors is legal, or it is not; if it is legal, then the first becomes at once the brother-in-law's lawful wife by Yeboom, by the act of connexion with him; and the connexion he had with the second is unlawful connexion; and if the marriage was illegal, then both widows are only strangers to the supposed brother-in-law.

230:11 This word signifies the brother-in-law, on whom the duty of Yeboom has devolved, by the death of his brother without issue.

Chapter XIII

CHAPTER XIII.

§ 1. Two rigorous magistrates were in Jerusalem, Admon and Hanan ben Abishalom. Hanan pronounced two decisions, and Admon seven. 1 [In the case of] a man that went beyond seas, and whose wife claimed her maintenance [out of his real estate], Hanan decided she must be put upon her oath at the close [of the proceedings], but not at the commencement 2 [thereof]. The sons of high priests disputed with him, and maintained that she must be put upon her oath at the commencement as well as at the close [of the proceedings]. R. Dosa ben Harkeenos adopted their opinion, but R. Jochanan ben Zachai declared, "Hanan had decided justly, and that she is not to be sworn till the close [of the proceedings]."

§ 2. [In the case of] a man that went beyond seas, and another

man took upon himself to maintain the wife [during her husband's absence], Hanan decided, "He [who of his own accord supported her] has lost his money." 3 The sons of high priests disputed with him, and maintained, "He must swear how much he expended [in her support], and he then recovers it." R. Dosa ben Harkeenos adopted their opinion; but R. Jochanan ben Zachai declared, "Hanan decided justly: for the man has placed his money on the antlers of a stag." 4

§ 3. Admon pronounced seven decisions. [In the case of] a man who at his death leaves sons and daughters, [the rule is that] if the property be ample, the sons inherit [the estate], and the daughters must be maintained [by the sons]; but if the property be scanty, the daughters must be maintained, even though the sons must go from door to door [to beg their bread]. [In opposition to this rule] Admon remarked, "What, because I am a male, am I to be the sufferer?" 5 Rabbon Gamaliel said, "I approve of Admon's remark."

§ 4. [In the case of] a man who sued his neighbour for [certain] jars of oil, and the defendant admits that he owes him for the oil-jars [but denied owing for the oil], Admon decided, "As he admits the demand in part, he must be sworn." The sages said, "This is no admission [as it differs] in kind with the demand." 6 Rabbon Gamaliel said, "I approve of Admon's decision."

§ 5. [In the case of] a man who engages to give [certain] monies to his [intended] son-in-law [as a marriage portion to his daughter], and afterwards holds up his leg at him, 7 [the rule is, the husband may]

let her sit until her head gets grey. Admon decided, "She has a right to say, 'Had I entered into this engagement for myself [and deceived thee], I ought to sit [forsaken] until my head gets grey; but as it is my father who engaged for me, what can I do? Either take me to thee [as thy wife], or discharge me [from my marriage obligation by divorce].'" Rabbon Gamaliel said, "I approve of Admon's decision."

§ 6. [In the case of] a man who disputed the title to a field, 8 and was himself a subscribing witness, 9 Admon held, "He [the ejector] may plead '[I come forward now because] the second [holder] I can [more] easily [contest possession with] than the first, who was too powerful for me.'" 10 But the sages say, "He [the ejector] has forfeited his title [and right to the field]." 11 If he had designated 12 [the field in question] as boundary to another [field], he also forfeits his right and title."

§ 7. [In the case of] a man who went beyond seas, and [during his absence] loses the path [leading to] his field, 13 Admon held, "He may make a short cut to it;" but the sages hold, "He must purchase a path, though it cost him one hundred maneh, as otherwise he must fly through the air 14 [to get to his field]."

§ 8. [In the case of] a man who [sueing another for debt] produced a bond, while the defendant produced a deed of sale [dated subsequent to the bond], by which the plaintiff conveyed to him a field, Admon remarked, "He [the defendant] can plead, 'Had I been in thy debt, it was for thee to recover thy due when thou didst sell me thy field;'" 15 but the sages say, "This [the] plaintiff was a prudent [man]; he sold him the land in order that he might be able to seize on it as security [for his debt]." 16

§ 9. [In the case of] two men, who [sueing each other for debt] produce cross bonds against each other, Admon remarked "[The holder of the last dated bond has a right to plead] 'Had I been in thy debt, why didst thou borrow of me?'" 17 But the sages decided, "That each is entitled to recover [the amount of] the bond he holds." 18

§ 10. [With respect] to marriages [the following] three provinces [are considered as distinct countries, viz.] Judea, [the land] beyond the Jordan, and Galilee. A woman cannot be compelled to [follow her husband who will] remove [out of her own country] from a town to a town, or from a borough to a borough; but within her own country she is compelled to remove [with her husband] from a town to a town, or from a borough to a borough, but not from a town to a borough, or from a borough to a town. 19 She can be compelled to

move [with him] from an inferior dwelling to a superior one; but she is not compelled to move [with him] from a superior dwelling to an inferior one. R. Simeon ben Gamaliel saith "[She cannot be compelled to move] even from an inferior dwelling to a superior one, because the superior one [if new and previously uninhabited] may occasion sickness." 20

§ 11. All [persons] can be compelled to move into the land of Israel, but none can be compelled to move out of it. All persons can be compelled to move into Jerusalem, but none can be compelled to move out of it. [This rule applies] alike to men, to women, and to bondmen. 21 Has a man married a woman in the land of Israel, and divorced her in the land of Israel, he must pay her [the amount of her Ketubah] in the coin of the land of Israel. Has he married her in the land of Israel, and divorced her in Cappadocia, he may pay her [the amount of her Ketubah] in the coin of the land of Israel. 22 Has he married her in Cappadocia, and divorced her in the land of Israel, he may pay her in the coin of the land of Israel. R. Simeon saith, "He must pay her in the coin of Cappadocia." Has he married her in Cappadocia, and divorced her in Cappadocia, he must pay her [the amount of her Ketubah] in Cappadocia.

Footnotes

274:1 Which the sages did not all approve of, but of which some obtained the force of law.

274:2 Not until she claims the amount of her Ketubah, having ascertained that her husband is dead; or, according to Rambam, not until the husband returns and pleads, "I left thee sufficient means for thy maintenance," when she must be sworn that he did not do so.

275:3 As the husband on his return may say, "I did not request or authorise thee to advance any money for such a purpose, and therefore have not undertaken to repay it." If, however, the advance was made at the woman's request, and under her promise that it should be repaid, the man may sue her, and she summon her husband, who in that case is bound to repay it, unless he can swear that he left her sufficient means for her support.

275:4 A figurative expression, signifying that risking his money in such an advance, is placing it in jeopardy as great as if he had put it on the antlers of a stag, which runs away with it without his being able to overtake it.

275:5 And forfeit every right to share in the little my father left? Not so!

275:6 The sages assume that the demand made is for the oil only; for had the plaintiff considered the jars as a distinct portion of his claim, he would have sued defendant for "certain jars containing oil." And as the demand made is for oil only, while the admission is restricted to jars, which form no part of the plaintiff's demand, Admon's decision is wrong. R. Gamaliel, however, agrees with Admon that "jars of oil" means both jars and oil.

275:7 ‏פשט לו את הרגל‎ "holds his foot out to him," a gesture of contempt, as if he p. 276 said, "Take thy dowry out of the dust on my shoe." Rambam explains, "If after the wedding the father runs away to a far country;" according to this exposition, the phrase of the text would run, "gives him leg-bail."

276:8 Of which he declares he has been forcibly dispossessed.

276:9 To the deed of sale, by which the alleged usurper conveys this very field to the purchaser whose title he disputes.

276:10 Commentators explain his plea in the following manner. "The man who forcibly dispossessed me was so powerful and influential that I preferred to submit, and even tacitly to sanction his usurpation, rather than involve myself in a ruinous contest; and I attested the deed of sale because I wished the field to get into the hands of a man of my own standing, against whom I could enforce my rights."

276:11 His sanctioning the sale by his attestation is a complete renunciation of his rights.

276:12 If, when selling another field, he has in the conveyance described the disputed field—bordering on the one which he sells—as belonging to the alleged forcible holder, by which description he acknowledges his title.

276:13 It having been seized, and made arable by one of the adjoining landowners.

276:14 Admon and the sages agree that should the fields adjoining his own belong to different proprietors, he must purchase a right of path, as every one of the neighbours will say, "Prove that it is I, and no one else, who has seized on thy property." They also agree that if all the adjoining fields belong to one proprietor, the man has a right to cut a path, as in that case there can be no doubt p. 277 that the great proprietor must have seized on his property. The dispute arises from the circumstance that the adjoining fields, though originally the property of different persons, have eventually become the property of one man. The expression "fly through the air" is used to denote the legal impossibility of getting to his field, as any other way he commits a trespass on his neighbour's grounds.

277:15 Assuming that the sale arose from want of money, which could not have been the case had the bond been valid, as the plaintiff would then naturally have enforced payment rather than sell his land; that consequently the bond produced must either have been previously paid, or is a forgery.

277:16 Assuming that as the debtor possessed no immoveable or other tangible property, the plaintiff got him to buy land, by which means he gained a security for his demand.

277:17 Assuming that he borrowed from want of money, which he would not have done had the bond been valid, as the plaintiff would then naturally have enforced payment rather than contract a debt. That consequently the bond bearing the first date must either have been paid before the last dated bond was given, or is a forgery.

277:18 Assuming that the bonds arose from bona fide business, and not from want of money.

277:19 Because in boroughs the comforts of life are not so readily obtained, and in p. 278 towns the air is not so pure. In either case she is exposed to a change of habits that may be painful or injurious to her.

278:20 But if the bridegroom resides in one country, and marries in another, the wife is bound to go with him, as that is assumed to be a necessary condition of the marriage.

278:21 If the husband wishes to move to Palestine or Jerusalem, and the wife will not, he may divorce her without paying her Ketubah. If she wishes to move thither, and he will not, he must divorce her, and pay her Ketubah. The converse of this rule holds good in case of removal from Palestine and Jerusalem. The bondman spoken of in the text is not only the Hebrew engaged for a term of years, but also the Gentile, who from any other country has fled to Palestine or Jerusalem.

278:22 The coin of Palestine, though of the same denomination as that of Cappadocia, is lighter, and therefore of less value. The name of Cappadocia stands generally for any country in which the coin bears the same name as in Palestine, while the intrinsic value is different.

Treatises XXV. Nedarim to XXVII. Sootah [synopses]

[Contains laws relating to vows made by females, which the father and the husband have the power to annul, founded on Numbers xxx. 4–16.]

[Relates to vows of abstinence. The precepts are founded on Numbers vi. 1–21.]

[Contains laws relating to the woman suspected of adultery, founded on Numbers v. 11–31.]

Introduction

Introduction.

Under this title the laws relating to the Get [i.e. bill or letter of divorce, of which the word Gittin is the plural term] are specified, without which document no marriage can be legally dissolved. The texts of the Holy Law on which the regulations of this Treatise are founded, are contained in chapter xxiv. of Deuteronomy.

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