Bava Batra 50

ואחת שיחד לה בכתובתה ואחת שהכניסה לו שום משלה

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.

למעוטי מאי אילימא למעוטי שאר נכסים כל שכן דהויא ליה איבה דאמר לה עיניך נתת בגירושין ובמיתה

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.

אלא למעוטי נכסי מלוג האמר אמימר איש ואשה שמכרו בנכסי מלוג לא עשו ולא כלום

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?

כי איתמר דאמימר היכא דזבין איהו ומית אתיא איהי ומפקא אי נמי זבנה איהי ומתה אתא איהו ומפיק בתקנתא דרבנן וכדרבי יוסי בר חנינא דאמר רבי יוסי בר חנינא באושא התקינו האשה שמכרה בנכסי מלוג ומתה הבעל מוציא מיד הלקוחות

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.

אבל היכא דזבינו תרוייהו לעלמא אי נמי זבנה איהי לדידיה זבינה זביני

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.

ואיבעית אימא אמימר דאמר כרבי אלעזר

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.

דתניא המוכר את עבדו ופסק עמו שישמשנו שלשים יום

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.

רבי מאיר אומר הראשון ישנו בדין יום או יומים מפני שהוא תחתיו והשני אינו בדין יום או יומים מפני שאינו תחתיו

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.

קסבר קנין פירות כקנין הגוף דמי

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.

רבי יהודה אומר השני ישנו בדין יום או יומים מפני שהוא כספו הראשון אינו בדין יום או יומים שאינו כספו קסבר קנין פירות לאו כקנין הגוף דמי

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.

רבי יוסי אומר

The baraita continues: Rabbi Yosei says that

שניהם ישנן בדין יום או יומים זה מפני שהוא תחתיו וזה מפני שהוא כספו ומספקא ליה אי קנין פירות כקנין הגוף דמי אי לאו כקנין הגוף דמי וספק נפשות להקל

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.

רבי אלעזר אומר שניהם אינן בדין יום או יומים זה לפי שאינו תחתיו וזה לפי שאינו כספו

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.

ואמר רבא מאי טעמא דרבי אלעזר אמר קרא לא יקם כי כספו הוא כספו המיוחד לו

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.

ולא לאיש חזקה בנכסי אשתו והאמר רב אשת איש צריכה למחות במאן אילימא באחר והאמר רב אין מחזיקין בנכסי אשת איש אלא לאו בבעל

§ 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.

אמר רבא לעולם בבעל וכגון שחפר בה בורות שיחין ומערות

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.

והאמר רב נחמן אמר רבה בר אבוה אין חזקה לנזקין

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.

אימא אין דין חזקה לנזקין

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.

אי בעית אימא לאו איתמר עלה רב מרי אמר בקוטרא רב זביד אמר בבית הכסא

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.

רב יוסף אמר לעולם באחר וכגון שאכלה מקצת חזקה בחיי הבעל ושלש לאחר מיתת הבעל מיגו דאי בעי אמר ליה אנא זבינתה מינך כי אמר לה נמי את זבינתה ליה וזבנה ניהלי מהימן

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.

גופא אמר רב אין מחזיקין בנכסי אשת איש

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,