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Week 64 - Friday - 16 February 2001

KETUBOT: CHAPTER 8: MISHNAH 4

Rabbi Shimon says, Wherever he has an advantage upon her entry, he has a disadvantage at her exit; wherever he is at a disadvantage upon her entry, he has an advantage upon her exit: produce which is attached to the soil - at her entry is his, and at her exit is hers; and that which is detached from the soil - at her entry is hers, and at her exit is his.

Kehati

The previous mishnah taught the Sages' distinction between produce which falls to the woman when it is attached to the soil and produce which falls to the woman when it is detached from the soil: whereas attached produce is considered usufruct, detached produce is considered principal. Our mishnah discusses the rights of the husband to attached and (or) detached produce when he divorces his wife.

Rabbi Shimon says, wherever he - the husband, has an advantage - i.e., he is entitled to usufruct - upon her entry - when she marries him, he has a disadvantage - he is not entitled to this usufruct - upon her exit - when she is divorced. Conversely: wherever he is at a disadvantage - and not entitled - upon her entry he has an advantage upon her exit - and is entitled to the usufruct upon her divorce. How so?

Produce which is attached to the soil - which fell to the woman, at her entry - when she marries him, is his - the husband's, since it is considered usufruct as taught by the Sages in the preceding mishnah, and at her exit - at the time of her divorce, if she possesses produce attached to the Soil, it - is hers - and she takes her land together with the attached produce; and that – produce which is detached from the soil - that fell to her, at her entry - when she married him, is hers - since it is considered principal, and land should be purchased with it from which the husband enjoys the usufruct, as taught in the preceding mishnah, and at her exit - when she is divorced, if she possesses produce detached from the Soil, - it is his - the husband's; since he detached the produce beforehand, it belongs to him by the law of usufructuary property. The Gemara explains that the Sages disagree with Rabbi Shimon regarding produce attached to the soil and hold that just as this produce belongs to the husband when she marries him, it also belongs to him if they divorce, since according to the Sages, all produce which grows while the land is under the husband's authority belongs to him (Ket. 79b, Gemara and Rashi). The halakhah follows Rabbi Shimon (R. Yitzhak Alfasi; Rambam, Hil. Ishut 22:24).

Some authorities question the decision to uphold Rabbi Shimon's opinion, since there is a general rule that if the opinion of an individual is disputed by the Sages, the halakhah follows the majority. They therefore adduce an alternative version in the Gemara: "Attached at her exit is being taught" - accordingly the Sages do not disagree with Rabbi Shimon, but rather Rabbi Shimon teaches the law regarding produce that is attached at the time of the divorce and incidentally repeats the Sages' ruling from the preceding mishnah (Ba'al HaMe'or, Hasagot Haravad).

KETUBOT: CHAPTER 8: MISHNAH 5

If old bondmen and bondwomen fell to her - they should be sold, and land should be purchased with them, and he enjoys the usufruct. Rabban Shimon ben Gamliel says, She does not sell, because they are the pride of her father's house. If old olive trees and grape vines fell to her - they should be sold for wood, and land should be purchased with them, and he enjoys the fruits. Rabbi Yehudah says, She does not sell, because they are the pride of her father's house. One who spent money on his wife's property, if he spent much and consumed little, little and consumed much - that which he spent, he spent, and that which he consumed he consumed. He spent and did not consume - he takes an oath how much he spent, and he takes.

Kehati

The law that when money or produce fell to a woman "they should be sold, and land should be purchased with them," taught above was enacted by the Sages (as explained there) in order to protect the woman's property and preserve her principal, while her husband enjoys the usufruct. Our mishnah augments this law, and teaches that the woman may prevent the sale of property she inherits when it represents the "pride of her father's house."

If old bondmen and bondwomen - who are only fit for light work, and moreover might soon die, fell to her - as an inheritance from her father's house, they should be sold - her husband may sell them, and she cannot prevent him, and land should be purchased with - the money received for - them, and he - the husband, enjoys the usufruct - from this land. Rabban Shimon ben Gamliel says, She does not sell - the wife can prevent the sale of the bondmen and the bondwomen, because they are the pride - the grandeur, of her father's house - according to Rashi: they enhance their fame and glory and that of her father's house. If old olives trees and grape vines - which produce little fruit, fell to her - they should be sold - her husband may sell them - for wood - and she cannot prevent him, and land should be purchased with them - with their proceeds, and he - the husband enjoys the usufruct - from this land.

Rabbi Yehudah says, She does not sell - the wife can prevent the sale of the olive trees and the grape vines, because they are the pride of her father's house - as was explained above. The Gemara states: "The disagreement concerns a field which does not belong to her (the olive trees and the grape vines are on someone else's field), but if on her own field all agree that she does not sell, because they are the pride of her father's house." One who spent money on his wife's - usufructuary - property - in order to improve it, if he spent much and consumed little - a small amount of produce, or he spent little and consumed much - produce, and he now wants to divorce her, that which he spent he spent, and that which he consumed he consumed - and he cannot recover his expenses. He spent - money on his wife's property, and did not consume - any produce at all and he proceeds to divorce her, he takes an oath how much he spent, and he takes - the Gemara explains that if the improvement of the property equals or surpasses his expenses, he takes an oath and recoups his expenses. If, however, his expenses outweighed the improvement, he may only claim the worth of the improvement, and he loses the rest.

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