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Bava Kama, 89

1) A WOMAN'S ABILITY TO SELL THE RIGHTS TO HER KESUVAH

QUESTION: The Gemara explains that a woman's Kesuvah is worth money to her even before her husband dies or divorces her. The reason is because she can sell to someone else her rights to collect the Kesuvah in the event that she is divorced or widowed. This value is referred to as "Tovas Hana'ah," since its value is less than the full value of the Kesuvah.

Why is it possible for the woman to sell her rights to collect the Kesuvah? It should be considered a "Davar she'Lo Ba l'Olam," an item which does not yet exist, which cannot be sold! In fact, the Gemara applies this principle to a similar case in Kesuvos (59a), in which a married woman is Makdish her earnings (Ma'aseh Yadayim) from the moment that she will be divorced. The Gemara teaches that since the husband is entitled to receive his wife's earnings, she cannot be Makdish her Ma'aseh Yadayim while she is still married, because it is not hers to be Makdish. The Gemara rules that because of this she cannot even be Makdish it for after she becomes divorced, since it is a "Davar she'Lo Ba l'Olam." Just like she cannot be Makdish something that will become hers only upon divorce, she cannot *sell* something that will become hers only upon divorce! What is the difference between her Kesuvah and her Ma'aseh Yadayim?

The PNEI YEHOSHUA asks this question. He adds that he "thought about it from every side, but could not find a suitable answer."

ANSWERS:

(a) The PNEI YEHOSHUA and the TUMIM (66:41) suggest that our Sugya follows the opinions of Rav Papa and Rav Huna brei d'Rav Yehoshua in the Gemara's Havah Amina in Kesuvos. These Amora'im posit that a woman *can* be Makdish her Ma'aseh Yadayim for after she becomes divorced. Although the Gemara concludes otherwise, our Gemara is quoting Rav Papa and Rav Huna brei d'Rav Yehoshua, and they are following their own opinions as expressed in Kesuvos -- that what a woman receives after her divorce is not considered a "Davar she'Lo Ba l'Olam." (Rav Papa, however, only considers a wife's Ma'aseh Yadayim to be "Ba l'Olam," since the woman owns her hands which are presently "in the world." This would not apply to the Kesuvah.)

They add that this might be why the RAMBAM (Hilchos Chovel u'Mazik 4:21) does not specify that a woman is exempt from paying for damages only when she has no Kesuvah and no Nichsei Milug. He rules like the conclusion of the Gemara in Kesuvos, which states that a woman *cannot* sell her Nichsei Milug or her Kesuvah for "Tovas Hana'ah."

(b) The YAM HA'TALMUD disagrees with the Pnei Yehoshua and explains that a Kesuvah is just like any other Shtar Chov, deed of debt. There are a number of Gemaras which discuss the sale of a Shtar Chov (see Bava Basra 75a) and do not consider it to be a "Davar she'Lo Ba l'Olam." The reason is because the debt creates a Shi'abud, a lien, on the property that is presently in the possession of the borrower, and it is that lien which is present and is a "Davar she'Ba l'Olam" and which can be transferred through the transfer of ownership of the Shtar. This cannot be compared to the case of the Gemara in Kesuvos, which is discussing something which the woman will produce only after she will be divorced.

The Pnei Yehoshua himself considers this possibility but rejects it because a Shtar Chov normally entitles the recipient (the one who receives the Shtar Chov) to a benefit that is definite. A Kesuvah, however, provides no guaranteed benefits, since it is given to the woman only on the condition that the husband divorces her or dies before she does. Therefore, it should be considered a "Davar she'Lo Ba l'Olam." Other Acharonim, however, do not differentiate between a Kesuvah and a normal Shtar Chov. Although the Kesuvah is conditional, the Shtar that obligates its giving if the conditions *are* fulfilled is not considered a "Davar she'Lo Ba l'Olam," since it creates a conditional lien on the husband's property.

QUESTION: Rava rules that the money given for Tovas Hana'ah of the Kesuvah (see previous Insight) goes to the woman, and the husband does not receive the Peros produced by that money. The reason for this, the Gemara explains, is because when the Rabanan instituted that the husband receives Peros, they did not institute that he receives the Peros of Peros. The wording of the Gemara implies that Tovas Hana'ah is Peros and the husband does not receive the Peros of that Tovas Hana'ah because it is Peros of Peros.

However, this seems to be self-contradictory. If the Tovas Hana'ah is considered Peros, then the husband should receive *all* of the Tovas Hana'ah, just like he receives all of the normal Peros of his wife's property! (RASHBA)

ANSWER: The RASHBA cites the RA'AVAD who explains that when the Gemara says that the Rabanan instituted that the husband receives Peros, it is not referring to the Tovas Hana'ah of the Kesuvah. Rather, it is referring to the normal Peros that grow from his wife's property. Tovas Hana'ah is what the Gemara refers to as Peros of Peros, since it is a benefit that is not part of the regular Peros that grows from the field; it is external to the field itself.

The Shitah Mekubetzes cites RABEINU YEHONASAN MI'LUNIL who explains this more clearly. He writes that benefits which can be derived from the field without detracting, in any way, from the normal benefits that the husband receives constantly from the field (i.e. the fruits that grow from it) are called Peros of Peros, since they are a secondary level of benefit. Since Tovas Hana'ah is in this second category, the husband receives neither the Guf nor the Peros of the Tovas Hana'ah.

(This is also the intention of TOSFOS, DH Peira d'Peira.)

QUESTIONS: The Gemara asks why a woman has no property with which to pay for damages that she causes while she is married. The Gemara asks that she should pay for the damage by selling the Tovas Hana'ah of her Kesuvah and giving the money that she receives as payment for the damages. When the Gemara explains why the wife cannot sell the Tovas Hana'ah of her Kesuvah to an outside party (the reason is because we are concerned that afterwards she will be Mochel the Kesuvah to her husband and cause the Tovas Hana'ah that the buyer purchased to become worthless). The Gemara asks that she should give the Tovas Hana'ah of her Kesuvah directly to the person she damaged himself, as payment for the damages! The Gemara answers that this, too, is not an option (again, because the woman will certainly be Mochel the Kesuvah to her husband and cause the Tovas Hana'ah to become worthless).

There are a number of questions on this Gemara.

(a) If we are concerned that the woman might be Mochel the Kesuvah to her husband, then we should not incriminate the woman for causing damage even in order to have her pay *after* she is divorced! How will she pay after she is divorced if she will be Mochel the Kesuvah to her husband?

(b) Why does the woman have to sell her Kesuvah for its Tovas Hana'ah in order for the Nizak to receive payment for the damages done to him? Since the woman will have to pay her Kesuvah to the Nizak upon her divorce, the Nizak himself can sell that Kesuvah for Tovas Hana'ah at present, just like the woman can sell it! He can approach another person and offer to sell this woman's Kesuvah which she will have to pay him as compensation for damages, should she become divorced or widowed! (RAV Y. LANDY)

ANSWERS:

(a) Even if the woman does not receive a Kesuvah or Nichsei Milug upon her divorce, anything that she produces after her divorce is considered her own money, since she has no husband. It is from that money that she will have to pay the Nizak. (This, in fact, is what the Mishnah means when it says that an Eved must pay for damages after he is freed. The money that he pays is money that he earns after he attains his freedom.)

(b) The simple answer to our second question would be that the Nizak does not want to have to bother with finding a buyer for the Tovas Hana'ah of the Kesuvah. Rather, he wants cash. Therefore, we require the woman to sell the Kesuvah for Tovas Hana'ah and to give the money that she receives to the Nizak as compensation for the damages.

However, this will not suffice to explain the later part of the Gemara, which suggests that the woman should give the Tovas Hana'ah of the Kesuvah directly to the Nizak as compensation for damages. If the woman pays in such a manner, then the Nizak does not receive any concrete compensation at all -- until after the husband dies and the Nizak receives her Kesuvah. What, then, is gained by having the woman give the Tovas Hana'ah to the Nizak before she receives the actual Kesuvah? (This question is posed by MAHARI KATZ in the Shitah Mekubetzes.)

The DARCHEI DAVID answers that it is indeed beneficial for the Nizak to receive the Tovas Hana'ah immediately from the woman. The reason for this is because if he waits until the husband dies, the amount that he will receive from the woman will be exactly equal to the value of the damage that she caused him. If she did 100 Zuz worth of damage, he will take 100 Zuz worth of the Kesuvah. However, if the woman pays the Nizak by giving him the Tovas Hana'ah of the Kesuvah immediately, then he will receive a much greater portion of the Kesuvah, since the Tovas Hana'ah of 100 Zuz is always worth less than 100 Zuz. Therefore, 100 Zuz worth of Tovas Hana'ah could be worth 150 or 200 Zuz of the Kesuvah after the husband dies.

89b

QUESTION: The Gemara concludes that a married woman is exempt from paying for damages that she causes only because she cannot use the Tovas Hana'ah as payment. When the Gemara asks why she does not use the Tovas Hana'ah of her Nichsei Milug as payment, the Gemara answers that the Mishnah is discussing a case of a woman who has no Nichsei Milug. This is the ruling of the ROSH (8:9), who rules that if the woman has Nichsei Milug or Nichsei Tzon Barzel, then she is required to sell them for their Tovas Hana'ah in order to pay for the damages that she caused.

Why, then, does RASHI on the Mishnah (87a, DH Chayavin l'Shalem) write that a woman cannot pay with Nichsei Milug since her Nichsei Milug are Meshu'abad to the husband for Peros and for Yerushah (if she dies first)? As the HAGAHOS ASHRI points out, this implies that the woman *does* have property of Nichsei Milug, but she cannot use the produce of the Nichsei Milug, or the Nichsei Milug itself, as payment since it is Meshu'abad to her husband. This seems to contradict the Gemara that says that the case of the woman in the Mishnah is one in which the woman has *no* Nichsei Milug! (PNEI YEHOSHUA, REBBI AKIVA EIGER)

ANSWERS:

(a) The SHILTEI GIBORIM suggests that according to the Gemara's conclusion, just as the woman cannot pay with the Tovas Hana'ah of her Kesuvah (because she will be Mochel the Kesuvah to her husband after selling it, making the Tovas Hana'ah worthless), so, too, she cannot pay with the Tovas Hana'ah of the Nichsei Milug or Nichsei Tzon Barzel (since she will be Mochel these benefits to her husband as well, making the Tovas Hana'ah worthless). He adduces support for this from the fact that our Gemara seems to compare the Tosefes Kesuvah to the Kesuvah with regard to selling it for the Tovas Hana'ah, and Tosefes Kesuvah is part of the Nichsei Tzon Barzel.

However, the PNEI YEHOSHUA and REBBI AKIVA EIGER and others take strong opposition to this view. They point out that none of the reasons given by the Rishonim to explain why a person can be Mochel a loan after selling it would apply to being Mochel the Nichsei Milug or Nichsei Tzon Barzel after selling them for their Tovas Hana'ah. (See Insights to Kesuvos 85:1.)

One reason why a seller may be Mochel the loan after he has sold the loan is because a loan cannot be sold mid'Oraisa. This, however, applies only to a loan which is merely a Shi'abud. This would not apply to the Nichsei Milug, which is actually her property, which can certainly be sold mid'Oraisa.

Another reason why a seller may be Mochel the loan after selling it is because he cannot sell the Shi'abud ha'Guf at all, even mid'Rabanan, but only the Shi'abud Mamon. This again would not apply to Nichsei Milug, since the woman is selling the actual property, and not just a Shi'abud (the Shi'abud that the husband has on her property is simply being removed upon his death).

(b) Perhaps Rashi does not mean to say that the woman is not obligated to sell her Nichsei Milug for Tovas Hana'ah. Rashi is not addressing the Tovas Hana'ah (for that is addressed later, in the Gemara). Rashi is simply explaining why the woman cannot pay with the actual Peros of the Nichsei Milug, or with the Guf of the Nichsei Milug, before her husband's death. Rashi answers that these benefits are Meshu'abad to the husband. The reason why the woman cannot pay with the Tovas Hana'ah is for the reason that our Gemara says -- she has no Tovas Hana'ah (and not that she has no Nichsei Milug), such as in a case where she has already sold the Tovas Hana'ah. (M. Kornfeld)