The Mishna says that a man can’t create a chazaka on his wife’s usufruct property. This implies that if he brought a document attesting to ownership, he could prove the purchase of the land. However, this is questioned from another Mishna (regarding a different case) in which a wife can claim she agreed to sale of her usufruct property only because she wanted to please her husband and can thus invalidate a document testifying to a sale. The Gemara explains why that Mishna is referring to a different case and would not be relevant here. The inference is also questioned by Ameimar’s statement that a man and woman who sell usufruct property did not do anything – the sale is invalid. Two possible answers are given. Another question on the Mishna itself is brought from Rav who holds that a married woman needs to protest (otherwise one can create a chazaka on her property). Initially, the Gemara thinks this is referring to her husband, but that contradicts the Mishna. Rav Yosef explains that it could be referring to another man in which case his statement has nothing to do with the Mishna.
Bava Batra
Masechet Bava Batra is sponsored by Lori Stark in loving memory of her mother in law, Sara Shapiro z”l and her father Nehemiah Sosewitz z”l.
This week’s learning is sponsored for the merit and safety of Haymanut (Emuna) Kasau, who was 9 years old when she disappeared from her home in Tzfat two years ago, on the 16th of Adar, 5784 (February 25, 2024), and whose whereabouts remain unknown.
Want to dedicate learning? Get started here:
Today’s daily daf tools:
Bava Batra
Masechet Bava Batra is sponsored by Lori Stark in loving memory of her mother in law, Sara Shapiro z”l and her father Nehemiah Sosewitz z”l.
This week’s learning is sponsored for the merit and safety of Haymanut (Emuna) Kasau, who was 9 years old when she disappeared from her home in Tzfat two years ago, on the 16th of Adar, 5784 (February 25, 2024), and whose whereabouts remain unknown.
Bava Batra 50
וְאַחַת שֶׁיִּחֵד לָהּ בִּכְתוּבָּתָהּ, וְאַחַת שֶׁהִכְנִיסָה לוֹ שׁוּם מִשֶּׁלָּהּ.
and one that he specified to her as payment for her marriage contract, even though it was not stipulated explicitly in the contract; and one in a case where she brought into the marriage an appraisal of a field from her own property that she owned prior to the marriage, which took on the status of guaranteed property, meaning that she will receive it if her husband dies or divorces her. If a field of one of these three types is sold with her approval, she can claim that she did not truly consent to this sale, but stated her consent only in order to please her husband.
לְמַעוֹטֵי מַאי? אִילֵּימָא לְמַעוֹטֵי שְׁאָר נְכָסִים – כׇּל שֶׁכֵּן דְּהָוְיָא לֵיהּ אֵיבָה, דְּאָמַר לַהּ: עֵינַיִךְ נָתַתְּ בְּגֵירוּשִׁין וּבְמִיתָה!
The Gemara clarifies: To exclude what type of property did Rabba specify these three types of fields? If we say that he intends to exclude the rest of the husband’s property secured to pay her marriage contract, it is all the more so the case that he will bear her enmity if she does not agree to the sale, as he will say to her: You have placed your eyes on divorce or on my death, i.e., you will not allow me to sell my property because you are expecting and planning for my death or our divorce. Therefore, she should be able to claim that she consented to the sale only in order to please her husband with regard to other property as well.
אֶלָּא לְמַעוֹטֵי נִכְסֵי מְלוֹג – הָאָמַר אַמֵּימָר: אִישׁ וְאִשָּׁה שֶׁמָּכְרוּ בְּנִכְסֵי מְלוֹג – לֹא עָשׂוּ וְלֹא כְּלוּם!
Rather, these three types of fields were specified in order to exclude usufruct property, i.e., property that belongs to the wife and remains in her possession while the husband has the right to enjoy the profits, in which case if the wife consents to the sale, it is valid. The Gemara asks: But doesn’t Ameimar say that if there was a man or a woman, i.e., a husband or a wife, who sold the wife’s usufruct property, they did not accomplish anything, as the sale does not take effect?
כִּי אִיתְּמַר דְּאַמֵּימַר – הֵיכָא דְּזַבֵּין אִיהוּ וּמִית, אַתְיָא אִיהִי וּמַפְּקָא; אִי נָמֵי זַבִּנָה אִיהִי וּמִתָה, אָתֵא אִיהוּ וּמַפֵּיק בְּתַקַּנְתָּא דְרַבָּנַן – וְכִדְרַבִּי יוֹסֵי בַּר חֲנִינָא, דְּאָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: בְּאוּשָׁא הִתְקִינוּ, הָאִשָּׁה שֶׁמָּכְרָה בְּנִכְסֵי מְלוֹג, וּמֵתָה – הַבַּעַל מוֹצִיא מִיַּד הַלָּקוֹחוֹת;
The Gemara answers: When the statement of Ameimar was stated, it was to say that neither the husband nor the wife can sell the property unilaterally. Where he sold the property and then died, she can come and remove it from the buyer. Alternatively, in a case where she sold it and then died, he can come and remove it, due to a rabbinic ordinance, and in accordance with the statement of Rabbi Yosei bar Ḥanina, as Rabbi Yosei bar Ḥanina says: When the Sanhedrin convened in Usha, they instituted that in the case of a woman who sold her usufruct property in her husband’s lifetime and then died, the husband repossesses it from the buyers.
אֲבָל הֵיכָא דְּזַבִּינוּ תַּרְוַיְיהוּ לְעָלְמָא, אִי נָמֵי זַבִּנָה אִיהִי לְדִידֵיהּ – זְבִינַהּ זְבִינֵי.
But where the two of them sold it to someone, or if she sold it to her husband, the sale is valid. The inference that the Gemara drew from the mishna, that if the husband produces evidence that his wife sold usufruct property to him then he is regarded as the owner, is relevant when she sells her usufruct property to him.
וְאִיבָּעֵית אֵימָא: אַמֵּימָר דְּאָמַר – כְּרַבִּי אֶלְעָזָר,
And if you wish, say instead that Ameimar said his statement in accordance with the opinion of Rabbi Elazar, who holds that one can sell property only if he possesses the item itself and also has the right to enjoy its profits.
דְּתַנְיָא: הַמּוֹכֵר אֶת עַבְדּוֹ, וּפָסַק עִמּוֹ שֶׁיְּשַׁמְּשֶׁנּוּ שְׁלֹשִׁים יוֹם –
This is as it is taught in a baraita: In the case of one who sells his Canaanite slave to another, and contracted with him that the sale is on the condition that the slave will serve the seller for thirty days before he is transferred to the buyer, the outcome of this sale is that during those thirty days, the first master enjoys the use of the slave and the buyer is the owner of the slave himself. As detailed in the Torah (Exodus 21:18–21), if one strikes another and the injury leads directly to the victim’s death, the one who struck him is subject to court-imposed capital punishment. But if a master strikes his Canaanite slave, and the slave lingers with his injuries for more than a day or two days and then dies, the master is exempt from court-imposed capital punishment. The baraita addresses who is considered the owner of the slave with regard to this halakha.
רַבִּי מֵאִיר אוֹמֵר: הָרִאשׁוֹן יֶשְׁנוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, מִפְּנֵי שֶׁהוּא תַּחְתָּיו; וְהַשֵּׁנִי אֵינוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, מִפְּנֵי שֶׁאֵינוֹ תַּחְתָּיו –
The baraita states four opinions: Rabbi Meir says that during those thirty days, only the first master is included in the halakha of “a day or two days” (Exodus 21:21). Rabbi Meir holds that in this case, the first master is included in this exemption, because the slave is under his authority, as he enjoys the use of the slave, but the second master is not included in the halakha of “a day or two days,” because the slave is not under his authority.
קָסָבַר: קִנְיַן פֵּירוֹת כְּקִנְיַן הַגּוּף דָּמֵי.
Rabbi Meir’s reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is like ownership of the item itself. The status of the first master as the owner negates the possibility that the second master would be regarded as the owner with regard to this halakha, and he would not be included in the exemption.
רַבִּי יְהוּדָה אוֹמֵר: הַשֵּׁנִי יֶשְׁנוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, מִפְּנֵי שֶׁהוּא כַּסְפּוֹ; הָרִאשׁוֹן אֵינוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, שֶׁאֵינוֹ כַּסְפּוֹ – קָסָבַר: קִנְיַן פֵּירוֹת לָאו כְּקִנְיַן הַגּוּף דָּמֵי.
The baraita continues: Rabbi Yehuda says that the second master is included in the halakha of “a day or two days,” because the slave is “his money” (Exodus 21:21), i.e., his property; but the first master is not included in the halakha of “a day or two days,” because the slave is not “his money.” Rabbi Yehuda’s reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is not like ownership of the item itself. Therefore, the first master, who currently enjoys the use of the slave, does not have the status of an owner with regard to this halakha.
רַבִּי יוֹסֵי אוֹמֵר:
The baraita continues: Rabbi Yosei says that
שְׁנֵיהֶם יֶשְׁנָן בְּדִין יוֹם אוֹ יוֹמַיִם – זֶה מִפְּנֵי שֶׁהוּא תַּחְתָּיו, וְזֶה מִפְּנֵי שֶׁהוּא כַּסְפּוֹ – וּמְסַפְּקָא לֵיהּ אִי קִנְיַן פֵּירוֹת כְּקִנְיַן הַגּוּף דָּמֵי, אִי לָאו כְּקִנְיַן הַגּוּף דָּמֵי, וְסָפֵק נְפָשׁוֹת לְהָקֵל.
both of them are included in the halakha of “a day or two days.” This first master is included because the slave is under his authority, and that second master is included because the slave is “his money.” The Gemara explains Rabbi Yosei’s reasoning: And he is uncertain if ownership of the rights to use an item and the profits it engenders is like ownership of the item itself, in which case only the first master would be exempt, or if it is not like ownership of the item itself, in which case only the second master would be exempt. And where there is an uncertainty in a case of capital law, the ruling is to be lenient. Therefore, neither of them would receive court-imposed capital punishment in this case.
רַבִּי אֶלְעָזָר אוֹמֵר: שְׁנֵיהֶם אֵינָן בְּדִין יוֹם אוֹ יוֹמַיִם – זֶה לְפִי שֶׁאֵינוֹ תַּחְתָּיו, וְזֶה לְפִי שֶׁאֵינוֹ כַּסְפּוֹ.
The baraita continues: Rabbi Elazar says that both of them are not included in the halakha of “a day or two days,” and both would receive court-imposed capital punishment. This second master is not included because the slave is not under his authority, and that first master is not included because the slave is not “his money.” Rabbi Eliezer holds that one must both own the slave himself and enjoy the use of the slave to be included in the exemption.
וְאָמַר רָבָא: מַאי טַעְמָא דְּרַבִּי אֶלְעָזָר? אָמַר קְרָא: ״לֹא יֻקַּם כִּי כַסְפּוֹ הוּא״ – כַּסְפּוֹ הַמְיוּחָד לוֹ.
The Gemara explains how Ameimar’s statement is in accordance with the opinion of Rabbi Elazar. And Rava says: What is the reason for the opinion of Rabbi Elazar? The verse states: “Notwithstanding if he continue a day or two days, he shall not be punished; for he is his money” (Exodus 21:21), and he understands this to be referring to a slave that is “his money,” a slave that is unique to him, so this exemption does not apply to one who does not have total ownership of the slave. Rabbi Elazar holds that one is considered to own an item only if he owns the item itself and also enjoys the use of it. This is the source of Ameimar’s statement that neither the husband nor the wife can sell usufruct property: The husband cannot sell it because he does not own it, and the wife cannot sell it because only the husband has the right to enjoy the profits.
וְלֹא לָאִישׁ חֲזָקָה בְּנִכְסֵי אִשְׁתּוֹ. וְהָאָמַר רַב: אֵשֶׁת אִישׁ צְרִיכָה לְמַחוֹת! בְּמַאן? אִילֵימָא בְּאַחֵר – וְהָאָמַר רַב: אֵין מַחֲזִיקִין בְּנִכְסֵי אֵשֶׁת אִישׁ. אֶלָּא לָאו בְּבַעַל?
§ The mishna teaches that a man does not have the ability to establish the presumption of ownership with regard to his wife’s property. The Gemara asks: But doesn’t Rav say that a married woman must protest? The Gemara clarifies: With regard to whom must she protest? If we say: With regard to another, i.e., one who is not her husband who has taken possession of her property, that is problematic: But doesn’t Rav say that one cannot establish the presumption of ownership with regard to the property of a married woman, as she can claim that she did not lodge a protest because she expected her husband to do so? Rather, Rav’s intention must be that she must lodge a protest with regard to the husband. This indicates that absent her protest, it is possible for a husband to establish the presumption of ownership with regard to her property, in contrast to the ruling of the mishna.
אָמַר רָבָא: לְעוֹלָם בְּבַעַל, וּכְגוֹן שֶׁחָפַר בָּהּ בּוֹרוֹת, שִׁיחִין וּמְעָרוֹת.
Rava said: Actually, Rav is referring to her lodging a protest with regard to the husband, and is speaking of a case where he dug pits, ditches, and caves in her property. In other words, he did not simply work and profit from the land, but damaged it in a way that demonstrates that he considered himself the owner. If he does this for three years and she does not lodge a protest, he establishes the presumption of ownership. The mishna, which states that he cannot establish the presumption of ownership, is referring to standard use.
וְהָאָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: אֵין חֲזָקָה לִנְזָקִין!
The Gemara asks: But doesn’t Rav Naḥman say that Rabba bar Avuh said: There is no presumptive ownership with regard to damage? This is understood to mean that one cannot establish the presumption of ownership of another’s field by damaging it, as it is not considered to be standard use. Therefore, even after three years have passed the owner can remove one from his field. Since in this case the husband is damaging the field, he should not be able to establish the presumption of ownership.
אֵימָא: אֵין דִּין חֲזָקָה לִנְזָקִין.
The Gemara answers: Say that this means that the halakha of presumptive ownership does not apply with regard to damage, meaning that one who damages another’s property without the owner lodging a protest does not need three years to establish the presumption of ownership, but does so immediately, as an owner who sees another damage his land is expected to protest without delay. Consequently, a husband who digs pits and the like in his wife’s property without her lodging a protest establishes the presumption of ownership immediately.
אִי בָּעֵית אֵימָא: לָאו אִיתְּמַר עֲלַהּ, רַב מָרִי אָמַר: בְּקוּטְרָא, רַב זְבִיד אָמַר: בְּבֵית הַכִּסֵּא?
The Gemara offers an alternative answer. If you wish, say instead: Was it not stated with regard to the halakha that there is no presumptive ownership with regard to damage that Rav Mari says: Damage is referring specifically to smoke, and Rav Zevid says that it is referring to a bathroom? The statement that there is no presumptive ownership [ḥazaka] with regard to damage was not stated concerning establishing the presumption of ownership of property, but concerning acquiring the privilege [ḥazaka] to engage in certain activities on one’s own property, and is stating that even if one has engaged in activities that produce smoke or foul odors, the fact that the neighbors did not lodge a protest in the past does not prevent them from doing so in the future.
רַב יוֹסֵף אָמַר: לְעוֹלָם בְּאַחֵר, וּכְגוֹן שֶׁאֲכָלָהּ מִקְצָת חֲזָקָה בְּחַיֵּי הַבַּעַל, וְשָׁלֹשׁ לְאַחַר מִיתַת הַבַּעַל; מִיגּוֹ דְּאִי בָּעֵי אָמַר לַיהּ: ״אֲנָא זְבֵינְתַּהּ מִינָּךְ״, כִּי אָמַר לַהּ נָמֵי: ״אַתְּ זַבֵּינְתַּהּ לֵיהּ וְזַבְּנַהּ נִיהֲלִי״ – מְהֵימַן.
Rav Yosef said: Actually, Rav is referring to her lodging a protest with regard to another, and is speaking of a case where the one who has possession of her property worked and profited from the field for part of the time necessary to establish the presumption of ownership during the husband’s lifetime, and for three additional years after the husband’s death. In this case, if the woman does not lodge a protest, the possessor establishes the presumption of ownership, since if he wanted to, he could say to the woman: I purchased it from you and then possessed the field for three years, and he would be awarded the field. When he said to her as well: You sold the field to your husband and he sold it to me, he is deemed credible.
גּוּפָא – אָמַר רַב: אֵין מַחְזִיקִין בְּנִכְסֵי אֵשֶׁת אִישׁ.
The Gemara returns to discuss Rav’s statement: With regard to the matter itself, Rav says that one cannot establish the presumption of ownership with regard to the property of a married woman,
Today’s daily daf tools:
Delve Deeper
Broaden your understanding of the topics on this daf with classes and podcasts from top women Talmud scholars.
New to Talmud?
Check out our resources designed to help you navigate a page of Talmud – and study at the pace, level and style that fits you.
The Hadran Women’s Tapestry
Meet the diverse women learning Gemara at Hadran and hear their stories.
I heard about the syium in January 2020 & I was excited to start learning then the pandemic started. Learning Daf became something to focus on but also something stressful. As the world changed around me & my family I had to adjust my expectations for myself & the world. Daf Yomi & the Hadran podcast has been something I look forward to every day. It gives me a moment of centering & Judaism daily.
Denver, United States
When I started studying Hebrew at Brown University’s Hillel, I had no idea that almost 38 years later, I’m doing Daf Yomi. My Shabbat haburah is led by Rabbanit Leah Sarna. The women are a hoot. I’m tracking the completion of each tractate by reading Ilana Kurshan’s memoir, If All the Seas Were Ink.
Pennsylvania, United States
I started learning Daf Yomi in January 2020 after watching my grandfather, Mayer Penstein z”l, finish shas with the previous cycle. My grandfather made learning so much fun was so proud that his grandchildren wanted to join him. I was also inspired by Ilana Kurshan’s book, If All the Seas Were Ink. Two years in, I can say that it has enriched my life in so many ways.
New York, United States
I started learning daf in January, 2020, being inspired by watching the Siyyum Hashas in Binyanei Haumah. I wasn’t sure I would be able to keep up with the task. When I went to school, Gemara was not an option. Fast forward to March, 2022, and each day starts with the daf. The challenge is now learning the intricacies of delving into the actual learning. Hadran community, thank you!
Riverdale, NY, United States
I’ve been wanting to do Daf Yomi for years, but always wanted to start at the beginning and not in the middle of things. When the opportunity came in 2020, I decided: “this is now the time!” I’ve been posting my journey daily on social media, tracking my progress (#DafYomi); now it’s fully integrated into my daily routines. I’ve also inspired my partner to join, too!
Teaneck, United States
I started Daf during the pandemic. I listened to a number of podcasts by various Rebbeim until one day, I discovered Rabbanit Farbers podcast. Subsequently I joined the Hadran family in Eruvin. Not the easiest place to begin, Rabbanit Farber made it all understandable and fun. The online live group has bonded together and have really become a supportive, encouraging family.
Edmonton, Alberta, Canada
I was moved to tears by the Hadran Siyyum HaShas. I have learned Torah all my life, but never connected to learning Gemara on a regular basis until then. Seeing the sheer joy Talmud Torah at the siyyum, I felt compelled to be part of it, and I haven’t missed a day!
It’s not always easy, but it is so worthwhile, and it has strengthened my love of learning. It is part of my life now.
Beit Shemesh, Israel
I heard the new Daf Yomi cycle was starting and I was curious, so I searched online for a women’s class and was pleasently surprised to find Rabanit Michelle’s great class reviews in many online articles. It has been a splendid journey. It is a way to fill my days with Torah, learning so many amazing things I have never heard before during my Tanach learning at High School. Thanks so much .
Panama, Panama
I started learning Daf Yomi inspired by תָּפַסְתָּ מְרוּבֶּה לֹא תָּפַסְתָּ, תָּפַסְתָּ מוּעָט תָּפַסְתָּ. I thought I’d start the first page, and then see. I was swept up into the enthusiasm of the Hadran Siyum, and from there the momentum kept building. Rabbanit Michelle’s shiur gives me an anchor, a connection to an incredible virtual community, and an energy to face whatever the day brings.
בית שמש, Israel
It happened without intent (so am I yotzei?!) – I watched the women’s siyum live and was so moved by it that the next morning, I tuned in to Rabbanit Michelle’s shiur, and here I am, still learning every day, over 2 years later. Some days it all goes over my head, but others I grasp onto an idea or a story, and I ‘get it’ and that’s the best feeling in the world. So proud to be a Hadran learner.
Zichron Yaakov, Israel
I started the daf at the beginning of this cycle in January 2020. My husband, my children, grandchildren and siblings have been very supportive. As someone who learned and taught Tanach and mefarshim for many years, it has been an amazing adventure to complete the six sedarim of Mishnah, and now to study Talmud on a daily basis along with Rabbanit Michelle and the wonderful women of Hadran.
Jerusalem, Israel
I had tried to start after being inspired by the hadran siyum, but did not manage to stick to it. However, just before masechet taanit, our rav wrote a message to the shul WhatsApp encouraging people to start with masechet taanit, so I did! And this time, I’m hooked! I listen to the shiur every day , and am also trying to improve my skills.
Yad Binyamin, Israel
Phoenix, Arizona, United States
I started learning Gemara at the Yeshivah of Flatbush. And I resumed ‘ברוך ה decades later with Rabbanit Michele at Hadran. I started from Brachot and have had an exciting, rewarding experience throughout seder Moed!
Maale Adumim, Israel
I began learning with Rabbanit Michelle’s wonderful Talmud Skills class on Pesachim, which really enriched my Pesach seder, and I have been learning Daf Yomi off and on over the past year. Because I’m relatively new at this, there is a “chiddush” for me every time I learn, and the knowledge and insights of the group members add so much to my experience. I feel very lucky to be a part of this.
Karmiel, Israel
I learned Mishnayot more than twenty years ago and started with Gemara much later in life. Although I never managed to learn Daf Yomi consistently, I am learning since some years Gemara in depth and with much joy. Since last year I am studying at the International Halakha Scholars Program at the WIHL. I often listen to Rabbanit Farbers Gemara shiurim to understand better a specific sugyiah. I am grateful for the help and inspiration!
Berlin, Germany
Minneapolis, MN, United States
תמיד רציתי. למדתי גמרא בבית ספר בטורונטו קנדה. עליתי ארצה ולמדתי שזה לא מקובל. הופתעתי.
יצאתי לגימלאות לפני שנתיים וזה מאפשר את המחוייבות לדף יומי.
עבורי ההתמדה בלימוד מעגן אותי בקשר שלי ליהדות. אני תמיד מחפשת ותמיד. מוצאת מקור לקשר. ללימוד חדש ומחדש. קשר עם נשים לומדות מעמיק את החוויה ומשמעותית מאוד.
מיתר, ישראל
I began Daf Yomi with the last cycle. I was inspired by the Hadran Siyum in Yerushalayim to continue with this cycle. I have learned Daf Yomi with Rabanit Michelle in over 25 countries on 6 continents ( missing Australia)
Silver Spring, MD, United States
After reading the book, “ If All The Seas Were Ink “ by Ileana Kurshan I started studying Talmud. I searched and studied with several teachers until I found Michelle Farber. I have been studying with her for two years. I look forward every day to learn from her.
Virginia, United States
Bava Batra 50
וְאַחַת שֶׁיִּחֵד לָהּ בִּכְתוּבָּתָהּ, וְאַחַת שֶׁהִכְנִיסָה לוֹ שׁוּם מִשֶּׁלָּהּ.
and one that he specified to her as payment for her marriage contract, even though it was not stipulated explicitly in the contract; and one in a case where she brought into the marriage an appraisal of a field from her own property that she owned prior to the marriage, which took on the status of guaranteed property, meaning that she will receive it if her husband dies or divorces her. If a field of one of these three types is sold with her approval, she can claim that she did not truly consent to this sale, but stated her consent only in order to please her husband.
לְמַעוֹטֵי מַאי? אִילֵּימָא לְמַעוֹטֵי שְׁאָר נְכָסִים – כׇּל שֶׁכֵּן דְּהָוְיָא לֵיהּ אֵיבָה, דְּאָמַר לַהּ: עֵינַיִךְ נָתַתְּ בְּגֵירוּשִׁין וּבְמִיתָה!
The Gemara clarifies: To exclude what type of property did Rabba specify these three types of fields? If we say that he intends to exclude the rest of the husband’s property secured to pay her marriage contract, it is all the more so the case that he will bear her enmity if she does not agree to the sale, as he will say to her: You have placed your eyes on divorce or on my death, i.e., you will not allow me to sell my property because you are expecting and planning for my death or our divorce. Therefore, she should be able to claim that she consented to the sale only in order to please her husband with regard to other property as well.
אֶלָּא לְמַעוֹטֵי נִכְסֵי מְלוֹג – הָאָמַר אַמֵּימָר: אִישׁ וְאִשָּׁה שֶׁמָּכְרוּ בְּנִכְסֵי מְלוֹג – לֹא עָשׂוּ וְלֹא כְּלוּם!
Rather, these three types of fields were specified in order to exclude usufruct property, i.e., property that belongs to the wife and remains in her possession while the husband has the right to enjoy the profits, in which case if the wife consents to the sale, it is valid. The Gemara asks: But doesn’t Ameimar say that if there was a man or a woman, i.e., a husband or a wife, who sold the wife’s usufruct property, they did not accomplish anything, as the sale does not take effect?
כִּי אִיתְּמַר דְּאַמֵּימַר – הֵיכָא דְּזַבֵּין אִיהוּ וּמִית, אַתְיָא אִיהִי וּמַפְּקָא; אִי נָמֵי זַבִּנָה אִיהִי וּמִתָה, אָתֵא אִיהוּ וּמַפֵּיק בְּתַקַּנְתָּא דְרַבָּנַן – וְכִדְרַבִּי יוֹסֵי בַּר חֲנִינָא, דְּאָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: בְּאוּשָׁא הִתְקִינוּ, הָאִשָּׁה שֶׁמָּכְרָה בְּנִכְסֵי מְלוֹג, וּמֵתָה – הַבַּעַל מוֹצִיא מִיַּד הַלָּקוֹחוֹת;
The Gemara answers: When the statement of Ameimar was stated, it was to say that neither the husband nor the wife can sell the property unilaterally. Where he sold the property and then died, she can come and remove it from the buyer. Alternatively, in a case where she sold it and then died, he can come and remove it, due to a rabbinic ordinance, and in accordance with the statement of Rabbi Yosei bar Ḥanina, as Rabbi Yosei bar Ḥanina says: When the Sanhedrin convened in Usha, they instituted that in the case of a woman who sold her usufruct property in her husband’s lifetime and then died, the husband repossesses it from the buyers.
אֲבָל הֵיכָא דְּזַבִּינוּ תַּרְוַיְיהוּ לְעָלְמָא, אִי נָמֵי זַבִּנָה אִיהִי לְדִידֵיהּ – זְבִינַהּ זְבִינֵי.
But where the two of them sold it to someone, or if she sold it to her husband, the sale is valid. The inference that the Gemara drew from the mishna, that if the husband produces evidence that his wife sold usufruct property to him then he is regarded as the owner, is relevant when she sells her usufruct property to him.
וְאִיבָּעֵית אֵימָא: אַמֵּימָר דְּאָמַר – כְּרַבִּי אֶלְעָזָר,
And if you wish, say instead that Ameimar said his statement in accordance with the opinion of Rabbi Elazar, who holds that one can sell property only if he possesses the item itself and also has the right to enjoy its profits.
דְּתַנְיָא: הַמּוֹכֵר אֶת עַבְדּוֹ, וּפָסַק עִמּוֹ שֶׁיְּשַׁמְּשֶׁנּוּ שְׁלֹשִׁים יוֹם –
This is as it is taught in a baraita: In the case of one who sells his Canaanite slave to another, and contracted with him that the sale is on the condition that the slave will serve the seller for thirty days before he is transferred to the buyer, the outcome of this sale is that during those thirty days, the first master enjoys the use of the slave and the buyer is the owner of the slave himself. As detailed in the Torah (Exodus 21:18–21), if one strikes another and the injury leads directly to the victim’s death, the one who struck him is subject to court-imposed capital punishment. But if a master strikes his Canaanite slave, and the slave lingers with his injuries for more than a day or two days and then dies, the master is exempt from court-imposed capital punishment. The baraita addresses who is considered the owner of the slave with regard to this halakha.
רַבִּי מֵאִיר אוֹמֵר: הָרִאשׁוֹן יֶשְׁנוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, מִפְּנֵי שֶׁהוּא תַּחְתָּיו; וְהַשֵּׁנִי אֵינוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, מִפְּנֵי שֶׁאֵינוֹ תַּחְתָּיו –
The baraita states four opinions: Rabbi Meir says that during those thirty days, only the first master is included in the halakha of “a day or two days” (Exodus 21:21). Rabbi Meir holds that in this case, the first master is included in this exemption, because the slave is under his authority, as he enjoys the use of the slave, but the second master is not included in the halakha of “a day or two days,” because the slave is not under his authority.
קָסָבַר: קִנְיַן פֵּירוֹת כְּקִנְיַן הַגּוּף דָּמֵי.
Rabbi Meir’s reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is like ownership of the item itself. The status of the first master as the owner negates the possibility that the second master would be regarded as the owner with regard to this halakha, and he would not be included in the exemption.
רַבִּי יְהוּדָה אוֹמֵר: הַשֵּׁנִי יֶשְׁנוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, מִפְּנֵי שֶׁהוּא כַּסְפּוֹ; הָרִאשׁוֹן אֵינוֹ בְּדִין יוֹם אוֹ יוֹמַיִם, שֶׁאֵינוֹ כַּסְפּוֹ – קָסָבַר: קִנְיַן פֵּירוֹת לָאו כְּקִנְיַן הַגּוּף דָּמֵי.
The baraita continues: Rabbi Yehuda says that the second master is included in the halakha of “a day or two days,” because the slave is “his money” (Exodus 21:21), i.e., his property; but the first master is not included in the halakha of “a day or two days,” because the slave is not “his money.” Rabbi Yehuda’s reasoning is that he holds that ownership of the rights to use an item and the profits it engenders is not like ownership of the item itself. Therefore, the first master, who currently enjoys the use of the slave, does not have the status of an owner with regard to this halakha.
רַבִּי יוֹסֵי אוֹמֵר:
The baraita continues: Rabbi Yosei says that
שְׁנֵיהֶם יֶשְׁנָן בְּדִין יוֹם אוֹ יוֹמַיִם – זֶה מִפְּנֵי שֶׁהוּא תַּחְתָּיו, וְזֶה מִפְּנֵי שֶׁהוּא כַּסְפּוֹ – וּמְסַפְּקָא לֵיהּ אִי קִנְיַן פֵּירוֹת כְּקִנְיַן הַגּוּף דָּמֵי, אִי לָאו כְּקִנְיַן הַגּוּף דָּמֵי, וְסָפֵק נְפָשׁוֹת לְהָקֵל.
both of them are included in the halakha of “a day or two days.” This first master is included because the slave is under his authority, and that second master is included because the slave is “his money.” The Gemara explains Rabbi Yosei’s reasoning: And he is uncertain if ownership of the rights to use an item and the profits it engenders is like ownership of the item itself, in which case only the first master would be exempt, or if it is not like ownership of the item itself, in which case only the second master would be exempt. And where there is an uncertainty in a case of capital law, the ruling is to be lenient. Therefore, neither of them would receive court-imposed capital punishment in this case.
רַבִּי אֶלְעָזָר אוֹמֵר: שְׁנֵיהֶם אֵינָן בְּדִין יוֹם אוֹ יוֹמַיִם – זֶה לְפִי שֶׁאֵינוֹ תַּחְתָּיו, וְזֶה לְפִי שֶׁאֵינוֹ כַּסְפּוֹ.
The baraita continues: Rabbi Elazar says that both of them are not included in the halakha of “a day or two days,” and both would receive court-imposed capital punishment. This second master is not included because the slave is not under his authority, and that first master is not included because the slave is not “his money.” Rabbi Eliezer holds that one must both own the slave himself and enjoy the use of the slave to be included in the exemption.
וְאָמַר רָבָא: מַאי טַעְמָא דְּרַבִּי אֶלְעָזָר? אָמַר קְרָא: ״לֹא יֻקַּם כִּי כַסְפּוֹ הוּא״ – כַּסְפּוֹ הַמְיוּחָד לוֹ.
The Gemara explains how Ameimar’s statement is in accordance with the opinion of Rabbi Elazar. And Rava says: What is the reason for the opinion of Rabbi Elazar? The verse states: “Notwithstanding if he continue a day or two days, he shall not be punished; for he is his money” (Exodus 21:21), and he understands this to be referring to a slave that is “his money,” a slave that is unique to him, so this exemption does not apply to one who does not have total ownership of the slave. Rabbi Elazar holds that one is considered to own an item only if he owns the item itself and also enjoys the use of it. This is the source of Ameimar’s statement that neither the husband nor the wife can sell usufruct property: The husband cannot sell it because he does not own it, and the wife cannot sell it because only the husband has the right to enjoy the profits.
וְלֹא לָאִישׁ חֲזָקָה בְּנִכְסֵי אִשְׁתּוֹ. וְהָאָמַר רַב: אֵשֶׁת אִישׁ צְרִיכָה לְמַחוֹת! בְּמַאן? אִילֵימָא בְּאַחֵר – וְהָאָמַר רַב: אֵין מַחֲזִיקִין בְּנִכְסֵי אֵשֶׁת אִישׁ. אֶלָּא לָאו בְּבַעַל?
§ The mishna teaches that a man does not have the ability to establish the presumption of ownership with regard to his wife’s property. The Gemara asks: But doesn’t Rav say that a married woman must protest? The Gemara clarifies: With regard to whom must she protest? If we say: With regard to another, i.e., one who is not her husband who has taken possession of her property, that is problematic: But doesn’t Rav say that one cannot establish the presumption of ownership with regard to the property of a married woman, as she can claim that she did not lodge a protest because she expected her husband to do so? Rather, Rav’s intention must be that she must lodge a protest with regard to the husband. This indicates that absent her protest, it is possible for a husband to establish the presumption of ownership with regard to her property, in contrast to the ruling of the mishna.
אָמַר רָבָא: לְעוֹלָם בְּבַעַל, וּכְגוֹן שֶׁחָפַר בָּהּ בּוֹרוֹת, שִׁיחִין וּמְעָרוֹת.
Rava said: Actually, Rav is referring to her lodging a protest with regard to the husband, and is speaking of a case where he dug pits, ditches, and caves in her property. In other words, he did not simply work and profit from the land, but damaged it in a way that demonstrates that he considered himself the owner. If he does this for three years and she does not lodge a protest, he establishes the presumption of ownership. The mishna, which states that he cannot establish the presumption of ownership, is referring to standard use.
וְהָאָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: אֵין חֲזָקָה לִנְזָקִין!
The Gemara asks: But doesn’t Rav Naḥman say that Rabba bar Avuh said: There is no presumptive ownership with regard to damage? This is understood to mean that one cannot establish the presumption of ownership of another’s field by damaging it, as it is not considered to be standard use. Therefore, even after three years have passed the owner can remove one from his field. Since in this case the husband is damaging the field, he should not be able to establish the presumption of ownership.
אֵימָא: אֵין דִּין חֲזָקָה לִנְזָקִין.
The Gemara answers: Say that this means that the halakha of presumptive ownership does not apply with regard to damage, meaning that one who damages another’s property without the owner lodging a protest does not need three years to establish the presumption of ownership, but does so immediately, as an owner who sees another damage his land is expected to protest without delay. Consequently, a husband who digs pits and the like in his wife’s property without her lodging a protest establishes the presumption of ownership immediately.
אִי בָּעֵית אֵימָא: לָאו אִיתְּמַר עֲלַהּ, רַב מָרִי אָמַר: בְּקוּטְרָא, רַב זְבִיד אָמַר: בְּבֵית הַכִּסֵּא?
The Gemara offers an alternative answer. If you wish, say instead: Was it not stated with regard to the halakha that there is no presumptive ownership with regard to damage that Rav Mari says: Damage is referring specifically to smoke, and Rav Zevid says that it is referring to a bathroom? The statement that there is no presumptive ownership [ḥazaka] with regard to damage was not stated concerning establishing the presumption of ownership of property, but concerning acquiring the privilege [ḥazaka] to engage in certain activities on one’s own property, and is stating that even if one has engaged in activities that produce smoke or foul odors, the fact that the neighbors did not lodge a protest in the past does not prevent them from doing so in the future.
רַב יוֹסֵף אָמַר: לְעוֹלָם בְּאַחֵר, וּכְגוֹן שֶׁאֲכָלָהּ מִקְצָת חֲזָקָה בְּחַיֵּי הַבַּעַל, וְשָׁלֹשׁ לְאַחַר מִיתַת הַבַּעַל; מִיגּוֹ דְּאִי בָּעֵי אָמַר לַיהּ: ״אֲנָא זְבֵינְתַּהּ מִינָּךְ״, כִּי אָמַר לַהּ נָמֵי: ״אַתְּ זַבֵּינְתַּהּ לֵיהּ וְזַבְּנַהּ נִיהֲלִי״ – מְהֵימַן.
Rav Yosef said: Actually, Rav is referring to her lodging a protest with regard to another, and is speaking of a case where the one who has possession of her property worked and profited from the field for part of the time necessary to establish the presumption of ownership during the husband’s lifetime, and for three additional years after the husband’s death. In this case, if the woman does not lodge a protest, the possessor establishes the presumption of ownership, since if he wanted to, he could say to the woman: I purchased it from you and then possessed the field for three years, and he would be awarded the field. When he said to her as well: You sold the field to your husband and he sold it to me, he is deemed credible.
גּוּפָא – אָמַר רַב: אֵין מַחְזִיקִין בְּנִכְסֵי אֵשֶׁת אִישׁ.
The Gemara returns to discuss Rav’s statement: With regard to the matter itself, Rav says that one cannot establish the presumption of ownership with regard to the property of a married woman,
