Bava Kamma 89
וַהֲרֵי הִיא תַּחְתָּיו וּמְשַׁמַּשְׁתּוֹ; וְנִמְצְאוּ זוֹמְמִין; אֵין אוֹמְרִים יְשַׁלְּמוּ כׇּל כְּתוּבָּתָהּ, אֶלָּא טוֹבַת הֲנָאַת כְּתוּבָּתָהּ. אֵיזֶהוּ טוֹבַת הֲנָאַת כְּתוּבָּתָהּ? אוֹמְדִין כַּמָּה אָדָם רוֹצֶה לִיתֵּן בִּכְתוּבָּה שֶׁל זוֹ – שֶׁאִם נִתְאַרְמְלָה אוֹ נִתְגָּרְשָׁה, וְאִם מֵתָה – יִירָשֶׁנָּה בַּעֲלָהּ.
and she is under him and serves him, i.e., she was in fact still married to him, and then these witnesses were found to be conspiring witnesses who were attempting to deny this woman the ability to ever collect payment of her marriage contract, then the court does not say that the witnesses shall pay the entire value of her marriage contract. Rather, the court says that they shall pay the financial advantage of her marriage contract. The Gemara explains: What is the financial advantage of her marriage contract? The court evaluates how much a person would want to give to purchase the rights of this woman’s marriage contract, taking into account the halakha that if she becomes widowed or divorced the purchaser will receive its full value, but if she dies during her husband’s lifetime, her husband will inherit her property and the purchaser will receive nothing.
וְאִי סָלְקָא דַעְתָּךְ לֵיתַהּ לְתַקָּנַת אוּשָׁא, אַמַּאי יִירָשֶׁנָּה בַּעֲלָהּ? תְּזַבֵּין כְּתוּבְּתַהּ לִגְמָרֵי!
Rav Idi bar Avin continues: And if it enters your mind that there is no ordinance of Usha, why would her husband inherit from her? Let the woman sell her marriage contract entirely.
אָמַר אַבָּיֵי: אִם אָמְרוּ בְּנִכְסֵי מְלוֹג, יֹאמְרוּ בְּנִכְסֵי צֹאן בַּרְזֶל?!
Abaye said: This is not a proof for the existence of the ordinance of Usha, because even if there is no ordinance, and the Sages said that the woman retains the right to sell with regard to the usufruct property, would they also say that the woman retains the right to sell with regard to guaranteed property, which is listed among the possessions she brought into the marriage but is entirely under her husband’s authority? In any event, there is property that she does not have the right to sell and that the husband would inherit if she dies, regardless of whether or not there is an ordinance of Usha, so the marriage contract could not be sold for its full value.
אָמַר אַבָּיֵי: טוֹבַת הֲנָאָה, הוֹאִיל וַאֲתָא לְיָדַן, נֵימָא בַּהּ מִילְּתָא: טוֹבַת הֲנָאָה – לְאִשָּׁה הָוְיָא. דְּאִי סָלְקָא דַעְתָּךְ לְבַעַל הָוְיָא, לֵימְרוּ לַהּ עֵדִים: מַאי אַפְסֵדְינִּךְ? אִי הֲוָה מְזַבְּנַתְּ לַהּ לְטוֹבַת הֲנָאָה, בַּעַל הֲוָה שָׁקֵיל מִינִּךְ! אָמַר רַב שַׁלְמַן: מִשּׁוּם דְּאִיכָּא רְוַוח בֵּיתָא.
§ Abaye said: With regard to financial advantage, since discussion of this matter came to us, let us say something about it. The money received for selling the financial advantage is given only to the wife. For if it enters your mind to say that it is given to the husband, then let the conspiring witnesses, who have been rendered liable to pay a penalty to the wife, say to her: What loss have we caused you by testifying that you had received payment of your marriage contract? Even if you were to sell it for the financial advantage, your husband would have taken it from you. Rav Shalman said in response: She still would incur a loss, because there is a gain to the household. Even if the husband were to be the one to receive the payment from the sale, the financial situation of the household would be improved, leading to a concrete benefit for the wife as well. This offsets the wife’s potential loss.
אָמַר רָבָא, הִלְכְתָא: טוֹבַת הֲנָאָה לָאִשָּׁה, וְאֵין הַבַּעַל אוֹכֵל פֵּירוֹת. מַאי טַעְמָא? פֵּירָא תַּקִּינוּ לֵיהּ רַבָּנַן, פֵּירָא דְפֵירָא לָא תַּקִּינוּ לֵיהּ רַבָּנַן.
Rava said: The halakha is that the money received for selling the financial advantage of the marriage contract is given only to the wife, and the husband does not even garner the profits from that money or from property the wife would purchase with that money. What is the reason? The Sages instituted that the profits of her property are for the husband, but the Sages did not institute that the profits of the profits are for him.
כִּי אֲתָא רַב פָּפָּא וְרַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ מִבֵּי רַב, אָמְרִי, תְּנֵינָא לְתַקָּנַת אוּשָׁא: הָעֶבֶד וְהָאִשָּׁה פְּגִיעָתָן רָעָה; הַחוֹבֵל בָּהֶן חַיָּיב, וְהֵם שֶׁחָבְלוּ בַּאֲחֵרִים – פְּטוּרִין. וְאִי סָלְקָא דַעְתָּךְ לֵיתַהּ לְתַקָּנַת אוּשָׁא, תְּזַבֵּין נִכְסֵי מְלוֹג וְתִתֵּן לֵיהּ!
§ When Rav Pappa and Rav Huna, son of Rav Yehoshua, came from the study hall of Rav they said: We learned a source for the ordinance of Usha in the mishna (87a): With regard to a slave or a married woman, an encounter with them is disadvantageous, since one who injures them is liable. But if they were the ones who injured others they are exempt, because they do not have money with which to pay. And if it enters your mind to say that there is no ordinance of Usha, there would be a method by which a married woman can obtain money with which to pay, as the court can have her sell her usufruct property and give the money received to the one she injured. It can therefore be inferred from the mishna that a woman cannot sell her usufruct property, in accordance with the ordinance of Usha.
וּלְטַעְמָיךְ, נְהִי נָמֵי דְּאִיתַיהּ לְתַקָּנַת אוּשָׁא – וְלָא מָצֵי מְזַבְּנָה לִגְמָרֵי; תְּזַבֵּין לְנִכְסֵי מְלוֹג בְּטוֹבַת הֲנָאָה, וְתִתֵּן לֵיהּ! אֶלָּא דְּלֵית לַהּ; הָכִי נָמֵי דְּלֵית לַהּ.
The Gemara responds: And according to your reasoning, though indeed there is an ordinance of Usha, and she cannot fully sell her usufruct property, she should nevertheless be able to sell her usufruct property for the financial advantage, i.e., the purchaser will pay her for the future rights to the property in the event that she gets divorced or is widowed, and she will give that money to the one she injured. Rather, it must be that the mishna is discussing a case where she does not have usufruct property of which she can sell the future rights. So too, there is no source from the mishna for the ordinance of Usha, as the mishna is discussing a case where she does not have usufruct property to sell.
וּתְזַבֵּין כְּתוּבְּתַהּ בְּטוֹבַת הֲנָאָה, וְתִתֵּן לֵיהּ! הָא מַנִּי – רַבִּי מֵאִיר הִיא, דְּאָמַר: אָסוּר לוֹ לְאָדָם שֶׁיְּשַׁהֶא אֶת אִשְׁתּוֹ אֲפִילּוּ שָׁעָה אַחַת בְּלֹא כְּתוּבָּה.
The Gemara questions the ruling of the mishna: Why does the mishna assert that a married woman will not have money with which to pay, but she should sell the financial advantage of her marriage contract and give the money received to the one she injured? The Gemara answers: In accordance with whose opinion is this ruling of the mishna? It is in accordance with the opinion of Rabbi Meir, who says that it is prohibited for a man to remain living together with his wife for even one hour without her having a marriage contract. Therefore, the woman cannot sell the financial advantage of her marriage contract.
וְטַעְמָא מַאי – כְּדֵי שֶׁלֹּא תְּהֵא קַלָּה בְּעֵינָיו לְהוֹצִיאָהּ; הָכָא לָא מְגָרֵשׁ לַהּ – דְּאִי מְגָרֵשׁ לַהּ, אָתוּ הָנָךְ דְּזָבְנִי, גָּבוּ לַהּ לִכְתוּבְּתַהּ מִינֵּיהּ!
The Gemara asks: And what is the reason for the ruling of Rabbi Meir? It is so that she will not be demeaned in his eyes such that he will easily divorce her, as he would not suffer any adverse financial consequences by divorcing her. The Gemara asks: If that is the reason, then here, when she sold her marriage contract to others, the husband will not easily divorce her, as, if he would divorce her, those who purchased her marriage contract will come and collect payment of her marriage contract from the husband. It makes no difference to the husband whether he will have to pay the marriage contract to her or to the purchasers. Therefore, the reason for the ruling of the mishna cannot be based upon the statement of Rabbi Meir.
אֶלָּא טוֹבַת הֲנָאָה מִילֵּי נִינְהוּ, וּמִילֵּי לָא מִשְׁתַּעְבְּדִי.
Rather, the reason she is not required to sell the financial advantage of her marriage contract to pay the one she injured is that the financial advantage of her marriage contract is mere words, i.e., not a specific possession, but a legal entity that simply creates the possibility to collect its value at a later date. And mere words are not mortgaged for the payment of debts, in this case her debt to the injured party.
אַלְּמָה לָא? מִילֵּי דְּמִזְדַּבְּנִי בְּדִינָרֵי נִינְהוּ! אֶלָּא מִשּׁוּם דִּשְׁמוּאֵל, דְּאָמַר שְׁמוּאֵל: הַמּוֹכֵר שְׁטַר חוֹב לַחֲבֵירוֹ, וְחָזַר וּמְחָלוֹ – מָחוּל. וַאֲפִילּוּ יוֹרֵשׁ מוֹחֵל.
The Gemara questions this assertion: Why not? Why is financial advantage not mortgaged? They are words that are sold for dinars. Since the financial advantage of her marriage contract has a market value, it is mortgaged to pay the debt to the injured party. Rather, she is not required to sell the financial advantage of her marriage contract because of the statement of Shmuel, as Shmuel says: With regard to one who sells a promissory note to another, and the seller went back and forgave the debtor his debt, it is forgiven, and the promissory note is left valueless, since the debtor essentially had a non-transferable obligation to the creditor alone, and even the seller’s heir can forgive the debt. Since there is a concern that the woman will forgive the debt of her marriage contract after having sold it, causing a loss to the purchaser, she is not required to sell it.
אָמְרִי: זַבּוֹנֵי [תְּ]זַבֵּין וְתִתֵּן לֵיהּ, וְאִי מָחֲלָה לֵיהּ לְגַבֵּי בַעַל – תִּמְחֲלַהּ.
The Sages say: Let her sell the financial advantage of the marriage contract and give the money to the one she injured, and if she happens to forgive the debt of her marriage contract to her husband, she will forgive it. Just as it is generally permitted for one to sell a promissory note despite the fact that he could then forgive the debt, the same should hold true in this case as well.
אָמְרִי: כֹּל לְגַבֵּי בַעַל, וַדַּאי מָחֲלָה לֵיהּ. (וְאַפְסְדִינֵּיהּ לְהָהוּא זְבִינָא בְּיָדַיִם לָא אַפְסְדִינְהוּ.)
The Sages say: In any matter that will engender a benefit to her husband, she will certainly forgive the debt to him so that he will not have to pay the marriage contract. And with regard to causing a definite loss to that purchaser through direct action by having the woman sell the financial advantage of her marriage contract in a case where she will certainly forgive the debt, the Sages will not be willing to cause a definite loss to the purchaser.
וְכִי תֵּימָא: (זְבִינָא) [תְּזַבְּנַיהּ] נִיהֲלֵיהּ לְהָהוּא דַּחֲבַלָה בֵּיהּ בְּטוֹבַת הֲנָאָה,
The Gemara offers another suggestion: And if you would say that she should sell her marriage contract to that one whom she injured in order to receive the money for the financial advantage,
דְּאִי מָחֲלָה לְגַבֵּי בַעַל – לָא קָא מַפְסֵיד, דְּהַשְׁתָּא נָמֵי לָא מִידֵּי קָא יָהֲבָה לֵיהּ! סוֹף סוֹף, כֹּל לְגַבֵּי בַעַל – וַדַּאי מָחֲלָה, וְאַטְרוֹחֵי בֵּי דִינָא בִּכְדִי לָא מַטְרְחִינַן.
so that even if she were to forgive the debt of her marriage contract with regard to her husband, the one she injured would not lose anything, as now as well she is not giving him any payment, one could respond that ultimately, in any matter that will engender a benefit to her husband, she will certainly forgive the debt with regard to him. And we do not trouble the courts to supervise the sale of the financial advantage without cause.
אֶלָּא הָא דְּתַנְיָא: וְכֵן הִיא שֶׁחָבְלָה בְּבַעְלָהּ – לֹא הִפְסִידָה כְּתוּבָּתָהּ, אַמַּאי? תְּזַבְּנִינַּהּ נִיהֲלֵיהּ לִכְתוּבְּתַהּ לְבַעְלַהּ בְּטוֹבַת הֲנָאָה – בְּהָא חֲבָלָה, דְּאִי מָחֲלָה לְגַבֵּי בַעַל, לֵיכָּא פְּסֵידָא!
The Gemara asks: But if the reason she does not sell the financial advantage of her marriage contract to obtain money with which to pay the injured party is that she would then forgive the debt of the marriage contract, then with regard to that which is taught in a baraita (Tosefta 9:22): And similarly, in a case where she was the one who injured her husband she has not lost her marriage contract as a result, as he does not collect compensation from the properties she brought into the marriage that are enumerated in the marriage contract, why does she not lose it? Let her sell the financial advantage of her marriage contract to her husband in order to obtain the money to compensate him for that injury that she caused him, as, if she will forgive the debt of her marriage contract with regard to her husband there will be no loss for the purchaser, i.e., her husband.
הָא וַדַּאי רַבִּי מֵאִיר הִיא, דְּאָמַר: אָסוּר לְאָדָם שֶׁיְּשַׁהֶא אֶת אִשְׁתּוֹ אֲפִילּוּ שָׁעָה אַחַת בְּלֹא כְּתוּבָּה.
The Gemara answers: This baraita is certainly in accordance with the opinion of Rabbi Meir, who says that it is prohibited for a man to remain living together with his wife for even one hour without her having a marriage contract. Therefore, the woman cannot sell the financial advantage of her marriage contract to her husband.
וְטַעְמָא מַאי – כְּדֵי שֶׁלֹּא תְּהֵא קַלָּה בְּעֵינָיו לְהוֹצִיאָהּ; הָכָא מְגָרֵשׁ לַהּ, וְגָבֵי לֵיהּ בַּחֲבָלֵיהּ מִינַּהּ. אִי הָכִי, הַשְׁתָּא נָמֵי – מְגָרֵשׁ לַהּ, וְגָבֵי לֵיהּ בַּחֲבָלֵיהּ מִינַּהּ!
The Gemara asks: And what is the reason for the ruling of Rabbi Meir? It is so that she will not be demeaned in his eyes such that he will easily divorce her, and here, if she were to sell the marriage contract to him, he would then divorce her and collect the properties listed in the marriage contract as payment for his injuries from her. If that is so, even now, where she does not sell her marriage contract to him, he will divorce her, and once she is divorced, he will collect the properties listed in the marriage contract as payment for his injuries from her. Preventing her from selling the marriage contract to him will not serve as an impediment to his divorcing her.
כְּגוֹן דִּנְפִישָׁ[א] כְּתוּבְּתַהּ, דְּמִשּׁוּם הָהוּא פּוּרְתָּא לָא מַפְסֵיד טוּבָא.
The Gemara answers: The baraita is discussing a case where there is a large sum recorded in her marriage contract, so that because of that slight sum due him as compensation for his injuries, he would not be willing to lose the large sum that he would have to pay were he to divorce her. Therefore, the marriage contract does serve as an impediment to his divorcing her.
וְאִי דִּנְפִישָׁא כְּתוּבְּתַהּ מִכְּתוּבָּה דְּאוֹרָיְיתָא, נוֹקְמַהּ אַכְּתוּבָּה דְּאוֹרָיְיתָא – וְאִידַּךְ תְּזַבְּנַהּ נִיהֲלֵיהּ בַּחֲבָלֵיהּ!
The Gemara suggests: But if in fact the baraita is discussing a case where the sum recorded in her marriage contract is larger than the sum recorded in a marriage contract required by Torah law, let them establish her marriage contract at the sum of a marriage contract required by Torah law, and with regard to the other, additional, sum, let her sell it to her husband as payment for his injuries. Since she will be left with a marriage contract of standard value, they would be allowed to remain living together.
כְּגוֹן דְּלָא נְפִישָׁא כְּתוּבְּתַהּ מִכְּתוּבָּה דְּאוֹרָיְיתָא; דְּהָוֵי חֲבָלֵיהּ אַרְבְּעָה זוּזֵי, דְּמִשּׁוּם אַרְבְּעָה זוּזֵי לָא מַפְסֵיד עֶשְׂרִים וְחַמְשָׁה.
The Gemara answers: The baraita is discussing a case where the sum recorded in her marriage contract is not larger than the sum recorded in a marriage contract required by Torah law, that payment for his injury was assessed to be four dinars, and because of a gain of four dinars, the husband would not be willing to lose twenty-five dinars, which is the value of a marriage contract required by Torah law.
אֶלָּא הָא דְּתַנְיָא: כְּשֵׁם שֶׁלֹּא תִּמְכּוֹר וְהִיא תַּחְתָּיו, כָּךְ לֹא תַּפְסִיד וְהִיא תַּחְתָּיו; וְהָא זִימְנִין מַשְׁכַּח לַהּ דְּמַפְסְדָא, וְהֵיכִי דָּמֵי – כְּגוֹן דִּנְפִישָׁא כְּתוּבְּתַהּ מִכְּתוּבָּה דְּאוֹרָיְיתָא!
The Gemara asks: But with regard to that which is taught in the latter case of the baraita: Just as she does not sell her marriage contract to obtain money to pay damages while she is under him, i.e., married to her husband, so too, she does not lose the value of her marriage contract to pay damages while she is under him. But there are times when she will be found to have lost the value of her marriage contract, and what are the circumstances? It would be a case where the sum recorded in her marriage contract is larger than the sum recorded in a marriage contract required by Torah law. In that case she would be obligated to sell the portion of the marriage contract representing the additional amount in order to obtain money with which to compensate the one she injured.
אָמַר רָבָא: סֵיפָא אֲתָאן לִכְתוּבַּת בְּנִין דִּכְרִין.
Rava said in response: In the latter clause of that baraita, we arrive at the stipulation in the marriage contract that the male offspring inherit payment of their mother’s marriage contract, and it is not discussing the sale of a marriage contract in general.
וְהָכִי קָתָנֵי: כְּשֵׁם שֶׁהַמּוֹכֶרֶת כְּתוּבָּתָהּ לַאֲחֵרִים – לֹא הִפְסִידָה כְּתוּבַּת בְּנִין דִּכְרִין, מַאי טַעְמָא – זוּזֵי הוּא דְּאַנְסוּהָ; כָּךְ מוֹכֶרֶת כְּתוּבָּתָהּ לְבַעְלָהּ – לֹא הִפְסִידָה כְּתוּבַּת בְּנִין דִּכְרִין, מַאי טַעְמָא? זוּזֵי הוּא דְּאַנְסוּהָ.
And this is what the baraita is teaching: Just as the halakha stipulates that a woman who sells her marriage contract to others does not lose the future implementation of the stipulation in the marriage contract that the male offspring inherit payment of their mother’s marriage contract, and Rava clarifies: What is the reason for this? The need for money is what caused her to sell it under duress, and she did not intend to abrogate her sons’ rights to inherit the property in the future. Rava continues his explanation of the baraita: So too, a woman who sells her marriage contract to her husband does not lose the future implementation of the stipulation in the marriage contract that the male offspring inherit payment of their mother’s marriage contract, and Rava clarifies: What is the reason for this? The need for money is what caused her to sell it under duress.
לֵימָא תַּקָּנַת אוּשָׁא תַּנָּאֵי הִיא? דְּתָנֵי חֲדָא: עַבְדֵי מְלוֹג יוֹצְאִין בְּשֵׁן וָעַיִן לָאִשָּׁה, אֲבָל לֹא לָאִישׁ. וְתַנְיָא אִידַּךְ: לֹא לָאִישׁ וְלֹא לָאִשָּׁה.
§ The Gemara returns to the earlier discussion and suggests: Shall we say that the issue whether or not there was an ordinance of Usha instituting that the wife cannot sell her usufruct property is a dispute between tanna’im? As it is taught in one baraita: Canaanite slaves that the woman brought into the marriage as usufruct property are emancipated by having a tooth knocked out or an eye blinded by the woman, i.e., the wife, as is the halakha when the owner of a slave knocks out the slave’s tooth or blinds his eye, but they are not emancipated by having a tooth knocked out or an eye blinded by the man, i.e., the husband, as he is not their owner. And it is taught in another baraita: The slave is not emancipated if his tooth was knocked out or his eye was blinded, nor by the man nor by the woman.
סַבְרוּהָ, דְּכוּלֵּי עָלְמָא – קִנְיַן פֵּירוֹת לָאו כְּקִנְיַן הַגּוּף דָּמֵי; מַאי, לָאו בְּהָא קָא מִיפַּלְגִי: דְּמַאן דְּאָמַר לָאִשָּׁה – לֵית לֵיהּ תַּקָּנַת אוּשָׁא, וּמַאן דְּאָמַר לֹא לָאִישׁ וְלֹא לָאִשָּׁה – אִית לֵיהּ תַּקָּנַת אוּשָׁא?
The Gemara continues its analysis: They assumed that everyone holds that ownership of the rights to use an item and to its produce, which the husband has with regard to usufruct property, is not like ownership of the item itself, which is why the husband is not considered the owner of the slaves. What, is it not so that the two baraitot disagree with regard to this: That the one who says that the slave is emancipated if he was struck by the woman holds that there is no ordinance of Usha? Since she retains the right to sell her usufruct property, she is considered the full owner of the slaves with regard to the halakha of their being emancipated. And the one who says that the slave is not emancipated if he was struck by the man and not if he was struck by the woman holds that there is an ordinance of Usha. Since she cannot sell her usufruct property, she is not considered to be the full owner of the slaves with regard to the halakha of their being emancipated.
לָא; דְּכוּלֵּי עָלְמָא אִית לְהוּ תַּקָּנַת אוּשָׁא; אֶלָּא כָּאן קוֹדֶם תַּקָּנָה, כָּאן לְאַחַר תַּקָּנָה.
The Gemara offers an alternative explanation: No; perhaps it is the case that everyone holds that there is an ordinance of Usha. But here, in the first baraita, it is referring to the time before the ordinance was instituted, and since the wife had the right to sell her usufruct property, she is considered the full owner of the slaves with regard to the halakha of their being emancipated, while there, in the second baraita, it is referring to the time after the ordinance was instituted, and since she could no longer sell her usufruct property, she is not considered to be the full owner of the slaves with regard to the halakha of their being emancipated.
וְאִי בָּעֵית אֵימָא: אִידֵּי וְאִידֵּי לְאַחַר תַּקָּנָה, וְאִית לְהוּ תַּקָּנַת אוּשָׁא; אֶלָּא לְמַאן דְּאָמַר לָאִשָּׁה וְלֹא לָאִישׁ – מַאי טַעְמָא? כִּדְרָבָא, דְּאָמַר רָבָא:
The Gemara offers an alternative explanation: And if you wish, say instead that both this baraita and that baraita are referring to the time after the ordinance was instituted, and the tanna in each baraita holds that there is an ordinance of Usha. Rather, according to the one who says that the slave is emancipated if he is struck by the woman but not if he is struck by the man, what is the reason? It is in accordance with the statement of Rava, as Rava said:
