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Week 64 - Thursday - 15 February 2001

KETUBOT: CHAPTER 8: MISHNAH 2

Rabbi Shimon distinguishes between property and property: property that is known to the husband -- she may not sell, and if she sold and or gave -- it is invalid. That is not known to the husband -- she may not sell, but if she sold or gave -- it is valid.

Kehati

The preceding mishnah taught that the wife may not sell her property or give it away after the marriage, for since the husband is entitled to the property as nikhsei melug, usufructuary property, whereof the husband enjoys the dividends, he is therefore in this sense the "owner" of such property. If she sold the property or gave it away, our mishnah distinguishes between that which falls to her after marriage and property which falls to her before marriage: In the former case, the husband may seize it from the purchasers, whereas in the latter, even if she sold it or gave it away after her marriage, Rabban Gamliel rules that the sale or gift is valid. The Gemara, however, quotes the following baraita: "Our Sages took a second vote: accordingly, both if it fell to her before betrothal, or after betrothal, and she subsequently wed -- the husband may seize it from the purchasers." Rambam concurs in this ruling: "If the woman sold usufructuary property after she wed, even though this property fell to her before she was betrothed -- the husband may seize usufruct from the purchasers, during her entire lifetime. But not the land itself, for he has no claim upon usufructuary property's principal until she dies. If she predeceases him, he may seize the property itself from the purchasers without compensation" (Hil. Ishut 22:7). Our mishnah cites the opinion of Rabbi Shimon, whereby there is nevertheless a difference between property that is known to the husband and that which is unknown to him, as will be explained in the mishnah.

Rabbi Shimon distinguishes between property and property -- the kind whose sale is invalid; and the kind whose sale is valid:

Property that is known to the husband -- he knows that it fell to her; according to another interpretation, he knows that it will fall to her (Rabbeinu Asher), she may not sell -- it, after her marriage, even if it fell to her before marriage, and if she sold or gave -- it away after the husband knew about this property, as explained, it -- the sale or the gift, is invalid -- for the husband can claim that he married her on condition that this property remain in her possession. Property that fell to her, and

That is not -- yet -- known to the husband, she may not -- as of principle -- sell -- even this property, for it is pledged to her husband's right to enjoy its dividends, but if she sold or gave -- the property, before the husband knew about it, it -- the sale or the gift is valid -- even if it fell to her after marriage, since he did not know about it, he has no claim upon it (Tosefot Yom Tov). The halakhah follows Rabbi Shimon (R. Yitzhak Alfasi; Rambam, Hil. Ishut 22:8). The Gemara records the following disagreement between Amoraim: "Which is known and which is unknown property? Rabbi Yose b. Rabbi Hanina says, Known -- i.e., land; unknown -- i.e., chattels. And Rabbi Yohanan says, both this and this is known. And which is unknown? When she happens to dwell here and property fell to her overseas" (in which case the husband is unlikely to know about it); the same applies to property which fell to her in the same country without his knowledge -- (Shitah Mekubetzet). The halakhah follows Rabbi Yohanan (Rabbeinu Nissim; Rambam, ibid.).

KETUBOT: CHAPTER 8: MISHNAH 3

If money fell to her, land should be purchased with it, and he enjoys the usufruct; produce which is detached from the soil -- land should be purchased with it, and he enjoys the usufruct. And that which is attached to the soil: Rabbi Meir said, They assess it, how much it is worth with produce, and how much it is worth without produce, and with the balance -- land should be purchased with it, and he enjoys the usufruct. But the Sages say, That which is attached to the soil is his, and that which is detached from the soil is hers, and land should be purchased with it, and he enjoys the usufruct.

Kehati

In mishnah 6:1 (above), it was taught that when a married woman receives money for "shame" and "impairment," land should be purchased with this money, and the husband enjoys its usufruct. Our mishnah lists further cases of money or produce that falls to the wife, wherein the law of "land should be purchased with it, and the husband enjoys the usufruct" applies.

If money fell to her -- if after marriage she inherited money or received a gift, land should be purchased with it -- so that her principal will be preserved, and he -- the husband, enjoys the usufruct -- from the land, as is the law regarding land which she inherits. And similarly, if produce which is detached from the soil -- falls to her, land should be purchased with it, and he enjoys the usufruct -- since this produce is governed by the law of usufructuary property (see above mishnah 1) according to which the principal belongs to her.

And that which is attached to the soil -- e.g., she inherited land with unharvested produce: Rabbi Meir said, They assess it -- the land, how much it -- the land, is worth - now, with produce -- growing on it, and how much it is worth without produce, and with the balance -- the difference in the price of unharvested land, land should be purchased, and he enjoys the usufruct -- it is considered as principal. Rabbi Meir holds that what grew under the authority of the husband is considered usufruct and belongs to him, and what did not grow under his authority belongs to her and is considered principal, and the husband enjoys the usufruct.

But the Sages say, That which is attached to the soil -- produce which falls to her while it is still attached to the soil, is his -- the husband's, since even the produce which did not grow under his authority was considered as usufruct by the Sages because the land fell to her together with it, and thus the principal is maintained for her in the land; and -- but -- that -- produce, which is separated from the soil -- that falls to her -- is hers, and land should be purchased with it, and he enjoys the usufruct -- for it is considered principal according to all opinions, as was explained in the first section of the mishnah.

According to Melekhet Shelomo, the Sages repeated the law of "produce which is detached from the soil," already applied by the First Tanna, in order to teach that only the produce which is actually detached from the soil is hers, but ripe produce, about to be reaped, is considered, in the context of this law, as produce attached to the soil, which belongs to the husband (see also Tosefot Yom Tov, who gives another reason for the apparently superfluous concluding statement of the Sages).

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