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Kesuvos, 79

1) PREVENTING HER HUSBAND FROM RECEIVING HER PROPERTY

QUESTIONS: The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. The husband normally receives the rights to the Peros (fruits) of his wife's property and to inherit it from her when she dies. The woman is able to prevent her husband from receiving the Peros and from inheriting the property by giving away the property as a gift to someone else before the marriage ("Mavrachas"). As a result, the property no longer belongs to her as far as the husband is concerned.

The Gemara says that when the woman makes such a Kinyan, the recipient does *not* fully acquire the property in case the husband dies before the wife. Rather, as soon as her husband dies, the property belongs to *her*, and the recipient of the "gift" has no rights at all to the property.

The Gemara explains that this technique applies only when the woman gives away *all* of her property as a gift to someone else before the marriage. If she only gives away *part* of her property, then the recipient indeed acquires it fully, unless she specifies at the time of the Kinyan that she is giving it away "from today, when I want." (We will discuss this conditional Kinyan later.)

The Gemara asks at the end of the Sugya that since the recipient to whom she gives all of her property does not really acquire it, the Kinyan is not a valid Kinyan. If so, the husband should receive the Peros of the property and inherit it when she dies! (The Gemara answers that when the woman "gives away" her property, it becomes like "property that is unknown to the husband" to which he does not receive any rights, as Rebbi Shimon in the Mishnah (78a) states.)

There are two basic ambiguities in this Gemara. To what extent is the Kinyan with which the woman gives all or part of her property to a third party valid? Is it merely a symbolic act intended to fool the husband, or does it have some real validity to it? After all, the Gemara only seems to question the status of the land when the woman becomes *divorced* (or when her husband dies). What about while she is still married, or if the woman dies before her husband? Who is the true owner of the property at that point: the woman or the recipient of her "gift?"

If the act of Kinyan does have some validity, why does the Gemara ask that since the Kinyan is *not* valid the husband should receive all rights to the property?

ANSWERS:

(a) The TOSFOS RID indeed proves from the fact that the Gemara asks that the property should go to the husband since the recipient does not actually acquire it, that the recipient has no rights at all to the property. He may not eat the Peros, nor does he inherit it when the woman dies. (The AVNEI MILU'IM EH 90:7 understands from RASHI DH v'Iy Lo Kananhi that Rashi also learns that the recipient has no rights at all to the property, but this inference may be argued.) The woman, therefore, may eat the Peros of the property and sell the property (through a non-Mavrachas, valid sale) while she is alive, and if she does not sell it her heirs (other than the husband) inherit it when she dies before her husband. The only accomplishment of the Kinyan is that it keeps the property away from her husband.

(b) However, the ROSH (8:2) writes that it is logical that the recipient does receive the Peros of the property while the woman is alive, and he does inherit it after the woman dies. With regard to these two consequences (receiving the Peros and inheriting the property after the woman's death), the Kinyan is valid.

His logic is that the only reason why the Kinyan is not valid is because we have an automatic assumption ("Umdena") that a woman does not give away all of her property leaving herself penniless, and therefore she really does not have intention to give it away (see Rashi DH Ha b'Chula). On the other hand, there is also an assumption ("Umdena") that she *does* want the recipient to acquire the property if she dies, so that her husband will not get it. Her purpose is to keep the property away from the husband, the Rosh explains, and if the recipient does not receive it then her husband will certainly inherit it, because he is the closest-related family member. The RAMBAN writes a similar line of reasoning. The same applies with regard to the Peros of the property. She certainly wants the recipient to have the Peros -- both so that the husband will not get them, and so that the recipient will tend to the field and take care of it.

The AVNEI MILU'IM (EH 90:8) questions this. What Kinyan has been made that can take the rights of the property away from the husband after she dies? Obviously, she has not given it fully to the recipient of the "gift," because the Gemara makes it clear that if her husband dies before she does, the property then belongs to *her* and not to the recipient of her gift. In addition, the Rosh himself writes that if the woman wants to sell the property to someone else, she may do so at any point. It is for this reason that the Gemara asks that the husband should indeed receive the property since the recipient does not truly own it. Accordingly, when she dies, her husband should automatically inherit the property!

The logic suggested later by the Gemara that this property is like "property unknown to the husband" (from which the husband does not receive certain benefits) clearly does not suffice to prevent the husband from inheriting the property according to the Rosh. The Rosh writes that if the recipient would not acquire the property, then the husband would get it. Apparently he maintains that property unknown to the husband *is* inherited by the husband. What the Mishnah says about such property is just that if the wife sells or gives away the property before she dies, the transaction is valid and the husband no longer can inherit it. (We will discuss this more in answer (c) below.) Thus, with regard to the Peros, the recipient would be permitted to eat them because the woman allows him to take her Peros as they grow, essentially "giving" them away to him one by one. With regard to inheriting the property after she dies, though, why should the recipient be able to take it away from the husband? It automatically becomes the husband's as soon as his wife dies!

An answer could be suggested according to what the Avnei Milu'im himself writes later (EH 90:10). The Avnei Milu'im says that we rule that "Mitzvah l'Kayem Divrei ha'Mes" -- "it is a Mitzvah to fulfill the request of a dying person after his death." For this reason we must give his property to whomever he specified before he died, if the property was set aside during his lifetime for that purpose (see SHULCHAN ARUCH Choshen Mishpat 252). Here, too, perhaps the woman's property is given to the recipient because of "Mitzvah l'Kayem Divrei ha'Mes," since the property was already set aside during her lifetime to be given away to him (since he, and not the husband, was already eating the Peros of the property). Alternatively, the woman might intend to give the recipient her property "from today, if anything is left of it after I die" ("v'Acharai li'Ploni," see Bava Basra 137a). When such a Kinyan is made, the recipient does not own the Peros of the property until the giver dies, and if the giver sells it before she dies the recipient has no claim to it. (M. Kornfeld)

What, then, is the Gemara asking when it says that the husband should have the rights to the property since the recipient does not own it? The recipient *does* have the Peros of the property! (It is clear from the Rosh and Ramban that the Gemara's question is directed to the case of a woman who gives *all* of her property away, and not the case of a woman who gives part of her property away.)

The answer is that the Gemara's question is that the recipient does not really *own* the Peros or property after the woman dies. Rather, he is receiving the Peros each day due to the woman's Mechilah; it is as if she is giving him the Peros as a gift as they grow (AVNEI MILU'IM 90:8). With regard to the fate of the property after her death, the recipient receives the inheritance because of "Mitzvah l'Kayem Divrei ha'Mes."

(c) The TOSFOS RID originally wanted to rule similarly to the Rosh, that the recipient may eat the Peros during the husband's lifetime and he inherits the woman if she dies, but not because of the "Umdena" that she wants the recipient to receive the property as suggested by the Rosh. Rather, he suggests that in those cases there is *no* "Umdena" that she does *not* want the recipient to receive it. After her death she does not care if she has no money, and while she is married she also does not care since her husband supports her. Therefore, the gift would be valid during her lifetime with regard to the Peros during her marriage and with regard to inheriting the property from her (just like the sale is valid when she gives away only part of her property).

The Tosfos Rid rejects this explanation, though, because of the difficulty involved in interpreting the Gemara's question that the husband should receive the property since the recipient does not receive it. According to this explanation, the recipient *does* have a valid Kinyan on the property during the marriage and after the wife's death!

The RAN, however, points out that it seems that the RAMBAM does explain the Gemara in this manner. In answer to the Tosfos Rid's question, the Rambam explains that the Gemara is not asking that the gift is not valid when she gives all of her property away. Rather, it is asking that the gift is not valid when she gives *part* of her property away and says that she is giving it "from today, when she wants." In such a case, the Kinyan would be valid only if she later expresses her will that the Kinyan be valid, as Rashi explains. The Gemara is asking that if she dies without expressing her will that the Kinyan be valid, the Kinyan should *not* be valid and the husband should inherit her property! To this the Gemara answers that the property is like "property unknown to the husband" and therefore the husband has no rights to it, the Ran explains.

(According to the Rambam, it seems that if the woman gives away *all* of her property, then the recipient has full rights to it during her lifetime. Therefore, even if she decides to give it or sell it to someone else, she may not do so, because she fully gave it to the recipient (unless her husband dies). The Rosh and Rishonim who do not agree with this and say that she *may* sell the property during her husband's lifetime base their ruling on the Gemara's question, that the husband should own it since the recipient has no rights to it. According to the Rambam, though, that question is not referring to a woman who gives away *all* of her property.)

The Ran questions this approach, though. Even according to Rebbi Shimon (who distinguishes between property known to the husband and property unknown to him) we do not find that the husband loses his right to *inherit* "property unknown to the husband." Rebbi Shimon of our Mishnah says only that if the wife sells such property, the sale is valid. As long as she does not sell it, the husband inherits the property!

This point seems to be the topic of dispute among the Rishonim. From the Tosfos Rid, it seems that according to Rebbi Shimon, the husband does not even receive the Peros or inherit the property that was unknown to him. From the Ran, it seems that the husband has the right to inherit the property but does not receive the Peros. The Ramban (78a) implies that the husband both receives the Peros and inherits the property; the only right he does not have is the right to object if she sells the property. (See AVNEI MILU'IM EH 90:10.)

The Ran cites an answer to his question from "some who say" that the woman who gives away her property in such a manner indeed does *not* prevent her husband from inheriting her, unless she sells her property. The Ran himself rules like this as well, in the case where the woman gives away part of her property. However, the Rambam says that the husband *does not* inherit her in a case where she gives away part of her property (because it becomes "property unknown to the husband," as the Gemara says). The Ran explains that the Rambam must be ruling that way because of a Takanah d'Rabanan: since the husband's right to inherit the woman is only mid'Rabanan according to the Rambam (Hilchos Ishus 12), and here the woman shows that she does not want her husband to inherit her, the Rabanan did not give him the inheritance.

QUESTION: The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. The woman is able to prevent her husband from receiving the property by giving away the property as a gift to someone else before the marriage. As a result, the property no longer belongs to her as far as the husband is concerned.

The Gemara says that when the woman makes such a Kinyan, the recipient does *not* fully acquire the property in case the husband dies before the wife. Rather, as soon as her husband dies, the property belongs to *her*, and the recipient of the "gift" has no rights to the property (see previous Insight).

The Gemara explains that this applies only when the woman gives away *all* of her property as a gift to someone else before the marriage. If she only gives away *part* of her property, then the recipient indeed acquires it fully, unless she specifies at the time of the Kinyan that "this property is being giving as a gift to you *from today, when I want*." If the husband later attempts to take the property, she will simply say that she wants to give it to the recipient. If the recipient attempts to take the property, she will simply say that she does not want to give it as a gift.

How can she change her mind? Once she says that she wants to give it to the recipient (when her husband has come to claim it), how can she change her mind and take it away from the recipient? The property has already become his!

ANSWERS:

(a) The RE'AH explains that both the husband and the recipient are afraid to claim the property, because each one knows that the woman is able to give it to the other one. Therefore, neither one will actually make a claim for it.

(b) The CHAZON ISH (76:13) says that she may continually say to each one that she has not yet made up her mind. As a result. neither one will be able to take the property.

(c) When the woman stipulates that the property will belong to the recipient "when I want," she means that if she decides in her heart that she wants to give it to him, then it will be his. Consequently, even if she says otherwise, we do not know what is in her heart, and she can always claim later that "I only told my husband that I wanted to give it to you because I wanted to keep it away from him, but I really wanted to keep it for myself and I had no intention for you to acquire it." The rule of "Devarim sheb'Lev Einam Devarim" will not apply here, since she specifically stipulated that the gift should depend on what she thinks *in her heart*. (M. Kornfeld -- this might be Rashi's intention here.)

(d) RABEINU CHANANEL (cited by the Rosh) and the TOSFOS RID and others explain the woman's stipulation differently than Rashi. She does not mean that the gift should take effect from today when she later wants it to take effect. Rather, she means that the gift should take effect *now*, and when she later wants *to annul* the Kinyan, it should be annulled. (The RITVA says that this does not fit with the wording of the Gemara at all.)

According to this explanation, while her husband is alive she does not say anything, and therefore the husband does not get the Peros, and the recipient does. If she dies before her husband, the recipient continues to get the Peros and he fully acquires the property. If the husband dies first, then she annuls the Kinyan so that the recipient no longer has rights to the property.

The KORBAN NESANEL (8:2:50) explains that the Rishonim seem to be following their respective opinions elsewhere. The Gemara earlier (73b) cites a Machlokes Tana'im regarding what a person means when he marries a woman and says that the marriage will take effect only "on condition that my father consents." Does he mean that it should only take effect if his father explicitly says that he consents (but if his father remains silent, the marriage does not take effect), or that it takes effect automatically and it only becomes annulled if his father explicitly says that he does *not* consent (but if his father remains silent, it takes effect)?

The ROSH rules in the latter manner, that the stipulation is fulfilled as long as there is no explicit annulment, and that is why he cites Rabeinu Chananel who says that here, also, the Kinyan loses its effect if the woman later says that she does not want it to take effect (but if she remains silent, it takes effect). The RAMBAM, who learns like Rashi that when the woman says "when I want," she means that the Kinyan will only take effect when she explicitly states that she wants it to take effect, is following his view (Hilchos Ishus 7:1) that "on condition that my father consents" means that the marriage only takes effect when his father explicitly consents and says "yes" to the marriage.

OPINIONS: The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. The woman is able to prevent her husband from receiving the Peros and from inheriting the property by giving away the property as a gift to someone else before the marriage. As a result, the property no longer belongs to her as far as the husband is concerned, but it does not really belong to the recipient of the gift because she only gave it to him in order to prevent it from going to her husband.

The Gemara asks at the end of the Sugya that since the recipient to whom she gives all of her property does not really acquire it, the Kinyan is not a valid Kinyan, and thus the husband should receive it! The Gemara answers that when the woman "gives away" her property, it becomes "like property that is unknown to the husband" to which he does not receive any rights, as Rebbi Shimon in the Mishnah (78a) states. Since the husband does not expect to receive the property that the woman gave away, it is considered unknown to him and thus he does not receive it.

Is this true, however, for a husband who is a Talmid Chacham and who knows that his wife's gift was meaningless and that she still owns the property? In such a case the husband *does* know that the property is actually his. Will he get the property, or will the recipient still be able to take it?

(a) RASHI (DH k'Nechasim) explains that when he married her, he was under the impression that she gave away her property to someone else as a full-fledged gift. According to Rashi, the husband does not receive the property because we assume that he was not aware that she stipulated when she gave away the property that it is only being given away in order to thwart him. But if he proves that he was aware of her intentions, then perhaps the property does belong to him.

(Rashi might be following his own opinion elsewhere. On the bottom of 78b Rashi explains that the husband loses rights to the property only if the wife *stipulated verbally* at the time of the gift that she is only giving it away to thwart her husband (see Insights to 78b). According to the other Rishonim, no verbal stipulation is necessary. Any time the wife gives away all of her property immediately prior to the marriage, it is assumed that she meant to thwart her husband. If so, the husband himself can easily inquire whether or not the property was given away immediately before the wedding, and he will immediately discover that the Kinyan was not really valid.)

(b) The RASH (cited by the ROSH 8:2) and the RE'AH explain that when the Gemara says that the property she gave away is "like property that is unknown to the husband," it does not mean that the husband does not know about it. Rather, it means that the *Rabanan enacted* that this property has the same status as Rebbi Shimon gives to "property unknown to the husband." The Rabanan made this enactment in order to help the woman.

TOSFOS and the ROSH reject this approach because the Gemara says that it is "like property that is unknown to the husband, *and* according to Rebbi Shimon." This implies that only if we hold like Rebbi Shimon will this answer be true. According to the Rash, though, it will be true even if we do not hold like Rebbi Shimon; the Gemara is saying that when a woman gives away her property before she gets married in order to keep it away from her husband, the Rabanan enacted that it attains the status which Rebbi Shimon gives to "property that is unknown to the husband."

(c) The TOSFOS RID rejects Tosfos' explanation as well. He explains that the extra word "and" does not imply that this answer is only true according to Rebbi Shimon, because then the Gemara still could have left out the extra word "and." The word "and" implies that the answer of the Gemara is based on the *logic* of Rebbi Shimon, but that in the Gemara's case, that logic will be accepted even by the Rabanan.

The Gemara means that Rebbi Shimon rules that the husband does not have rights to the "property that is unknown" to him because he does not expect to own that property ("Ye'ush"). Similarly, in this case, where the woman gives away her property, the husband does not expect to receive that property and thus he relinquishes all rights to it. Even though the Rabanan argue with Rebbi Shimon in the case where the husband actually did not know about the property, in this case, where the husband knows about it but he still does not expect to receive it, then even the Rabanan will agree, since he knowingly relinquishes his rights to the property.

79b

QUESTION: The Mishnah and Gemara teach that a husband and his wife each have the right to ensure that the property which she brings into the marriage, the Nichsei Melug, do not become entirely depleted. Therefore, any item that will become entirely consumed or depleted when used is to be sold, and the proceeds are to be invested in the purchase of land (non-consumable property). The husband is entitled to the fruits of the land, while the land itself remains the property (Nichsei Melug) of the woman. If an item itself will not become consumed through use, then the husband may reap the fruits of the item itself without first investing it in land.

Chananyah and the Rabanan argue regarding the ownership of the offspring of an animal or a Shifchah (maidservant) which the woman brought into the marriage as Nichsei Melug. Chananyah says that the husband is entitled to the offspring. He explains that the mother animal or mother Shifchah is not considered consumable property, since we do not expect them to die, and therefore the husband may use them as much as he wants. Since we do not expect them to die, we do not have to keep the offspring in the woman's possession in order to take its mother's place when its mother dies. Rather, the husband may take the offspring and use it for whatever purposes he wants.

The Rabanan argue in the case of the offspring of the Shifchah. They say that the offspring of the Shifchah must be reserved for the wife, because they hold that we *do* fear that the Shifchah will die, in which case the offspring will have to take the mother's place in order to keep the property of the wife from becoming depleted. Therefore, the husband may not do anything he wants with the offspring of the Shifchah (such as sell it). (If they sell the original Shifchah and buy land with the proceeds, that is the best way of protecting its value and preventing the wife's possessions from becoming depleted. However, the Rabanan did not go so far as to require that they sell the Shifchah, since there is no actual depletion right now and the concern that it will die is not such a strong concern -- RAMBAN and others).)

However, regarding the offspring of the woman's animal, the Rabanan hold that the offspring does not have to be kept for the wife in order to replace its mother even though there is a concern that the mother animal might die, because even if it does die, its hide will remain. Since something will remain of the animal, the wife's property will not become completely depleted even if the animal dies.

The Amora'im rule like Chananyah that the offspring in both cases belong to the husband.

The Gemara then tells us that Rav Nachman rules that if the wife brings into the marriage a milk-producing goat or a fleece-growing lamb or an egg-laying chicken, "the husband may consume them until they are all used up." RASHI (DH Ochel v'Holech) explains that this means that the husband may continue milking and using these animals until they no longer provide any milk or other products. The reason we do not fear that the wife's property will be depleted, Rashi explains, is because even after the animals die, their hides (or feathers) remain.

Why does Rashi need to say that the hides will remain, and that is why the wife's property will not be depleted? Rav Nachman rules like Chananyah, who says that we are not concerned that an animal might die and become depleted from the wife's property! Thus, the reason why the animal will not be depleted is because we are not afraid it will die -- and not because the hide will remain! The reason that the hide will remain was the reason of the Rabanan (who are concerned that the animal will die), but we rule like Chananyah! (RAMBAN, RITVA)

ANSWERS:

(a) The RASHASH suggests that Rashi is explaining that once the Gemara proposes the logic according to the Rabanan that the hide remains and that is why the item does not become depleted, then Chananyah, too, holds that the animal is not depleted only because its hide will remain, and not because we do not fear that it will die. Even though Chananyah says that we do not fear that a Shifchah will be depleted even though, if she dies, she leaves no hide, that is because he holds that with regard to a Shifchah, who is a person, we do *not* fear that she will die, because "Adam Is Lei Mazal" -- a person has Mazal (Shabbos 53b, Bava Kama 2b). Animals, on the other hand, do not have Mazal, and thus we are afraid that they will die. Hence, even according to Chananyah, the only reason there is no concern that the animal will become completely depleted is because its hide remains.

This approach is problematic. What forced Rashi to change the simple understanding of Chananyah's opinion? Chananyah anyway must hold in the case of the Shifchah that we are not afraid that it will die. so why does he not say the same in the case of an animal? Moreover, TOSFOS (DH Sha'ani Hasam) points out that the logic that the hide remains should not be sufficient reason, because then the husband should be able to slaughter the animal itself. We know, though, that he is not allowed to slaughter the animal itself, but only the offspring. Why, then, does Rashi explain that Chananyah holds of this logic, if it is not necessary to explain Chananyah that way?

(b) RASHI might have been bothered by the implication of the next Mishnah. The Mishnah says that if a woman inherits elderly servants, then they must be sold and land bought with them in order that they not die and become depleted. As the Rishonim point out, even though we are not afraid that a young servant or animal will die, if the servant is already old, then even Chananyah agrees that we are afraid that it will die, and therefore it must be sold and exchanged for land.

According to the Mishnah later, how could the Gemara say that the husband may use up all the milk until the animal no longer provides milk? This implies that the husband may use the animal even when it becomes old. At that point, however, it should be like old servants (as mentioned in that Mishnah) that must be sold in order to protect the woman's principle. Why, then, may the husband continue milking the animal?

It must be that Chananyah agrees with the Rabanan that if the hide will remain, there is no concern for depletion of her property. Chananyah only says that we are not concerned about for death in the case of a *young* animal. In the case of an old animal, though, the only reason for why there is no depletion of her property is because the hide remains. Since an old Shifchah has no hide, it will become depleted upon death and therefore it must be sold, like the next Mishnah says.

According to this, it is clear what Rav Nachman is teaching us when he says that the husband may use up the milk: he is teaching that even Chananyah agrees that since the hide remains and the woman's property is not depleted, an old goat does not have to be sold. (This answers the Ritva's question, who asks what new point Rav Nachman is teaching according to Rashi's explanation.)

Further proof to this principle -- that even if the object has a long life, when it comes close to depletion it must be sold and exchanged for land -- can be found in the Beraisa cited by the Gemara which says that a pit of Gafris (sulfer) is considered Peros and is not consumable, because when the sulfur is depleted, the actual pit still remains. We see that even though there is a large supply of sulfur in the pit, the only reason the husband may consume it until the end is because the pit will remain. Otherwise, he would have to sell it (and exchange it for land) before consuming all the sulfur, although it will take many years to deplete it (and therefore it is similar in this way to an animal or slave, which will live a long life and is not expected to die in the near future according to Chananyah).

The RAMBAN, RITVA, and others disagree with Rashi with regard to milking a goat. They explain that Rav Nachman is discussing a goat that the woman does not actually own, but rather she only has rights to milk it, like the RIF explains. The Gemara is teaching that the milk is considered Peros and therefore the husband may use it even though, when it is depleted, *nothing* will be left for the wife since she does not own the goat itself. The reason why the husband is permitted to continue milking it until it no longer produces milk is because Rav Nachman holds like Chananyah who says that we are not afraid that the goat will die, and thus we assume that the husband will be able to milk the goat for a very long time and it will not become depleted.

The ROSH (8:7) rejects this explanation. He asks how can we let the husband continue milking the animal indefinitely? Its ability to produce milk will eventually stop and then the woman's supply will be depleted!

It seems that the Rif and other Rishonim explain that we are only obligated to protect the property of the woman according to its state at the time that the husband receives it. If, when the husband receives the property, it looks like it will last for a very long time (like an animal which we are not afraid will die), then the woman's property is considered to be protected. If, at a later time, the animal becomes old or the milk supply wanes, then we have not abused the property of the woman since we did what was necessary to protect it at the time that the husband received it (that is, we made sure that it had the potential for many years of service). This explains why we are not concerned that the husband will use up all the milk.

In fact, the Ramban and Ritva clearly state this with regard to the pit of sulfur. They explain that according to Chananyah, even if the woman owns the sulfur and not the pit the husband may still use the sulfur, since there is a large supply at the time of marriage and we are not afraid that it will become used up. It is only when the servants or animals were old *at the time they were brought into the husband's possession* that we require him to sell them and buy land in exchange. This is why the Ritva wonders why Rashi says that the hide will remain when the husband milks the goat for many years; the Ritva holds that it is not necessary for anything to remain, since at the time it entered his possession, there was a large supply. (M. Kornfeld)