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Kesuvos, 83

1) THE HUSBAND'S RIGHTS TO RECEIVE "PEIRI PEIROS"

QUESTION: The Mishnah states that according to Rebbi Yehudah, when the husband foregoes his rights to the Peiros (fruits) of the field of the wife, he only loses his rights to the Peiros but not to the Peiri Peiros (the fruits of the fruits). It is clear from the Mishnah that when the husband makes no statement relinquishing his rights to the Peiros, everyone agrees that he has the rights to the Peiri Peiros.

How can this be reconciled with the Gemara earlier (79b) that says that the Rabanan instituted only that the husband receives the Peiros and not the Peiri Peiros?

ANSWERS:

(a) The RIF (79b) points out that the Gemara later (83b) gives an example of the Peiri Peiros which the Mishnah is discussing. If the husband sold the produce of the wife's land in order to buy more land, and that second land produced Peiros, those Peiros are called Peiri Peiros. The Rif explains that it is only when the husband did not benefit from the original Peiros -- but rather he sold it and bought land for his wife from the Peiros -- that he receives the Peiri Peiros, because they take the place of the original Peiros from which he received no benefit.

The Gemara earlier (79b) is discussing a case where the wife's animal bore offspring, and that offspring was stolen, and the thief was found and is obligated to pay Kefel (double) to the owner of the offspring. Since the husband receives the offspring (Peiros), the Kefel (Peiri Peiros) goes to the wife. Presumably, the same applies to the offspring of the offspring; since the husband took the original offspring, the next generation goes back to the wife.

(b) However, the other Rishonim disagree, saying that it is not logical that the offspring of the wife's animal belongs to the *husband*, while the offspring of that offspring belongs to the *wife*! Rather, TOSFOS, citing the RIVAN, explains that the Gemara there (79b) does not mean to differentiate between Peiros and Peiri Peiros per se. Rather, it is differentiating between what is derived directly from the Peiros and what is derived indirectly from the Peiros. If the husband takes fruit and plants it, all the produce belongs to him, since the produce was derived directly from the fruit. If someone steals the fruit and is caught and must pay Kefel, the Kefel goes to the wife because it derives only indirectly from the fruit.

QUESTION: The Mishnah discusses a case where a man foregoes his rights to the Peiros of his wife's property. The Gemara cites two more cases wherein a person relinquishes his rights to something that he or she is legally entitled to receive. First, Rav Kahana says that a man can make a precondition that he will not inherit his wife's property if she dies, even though he is entitled to it. Second, Rava says that a woman can exempt her husband from supporting her with Mezonos (and exempt herself in return from giving her earnings to her husband) by saying that she does not wish to receive spousal support from him.

The Gemara explains that the reason a woman may forego her rights to Mezonos is because it was the Rabanan who instituted -- for her benefit -- that she receive the Mezonos in the first place. The Rabanan said that if she prefers not to receive the benefits of the Takanah that they instituted for her, she may decline by saying "Iy Efshi b'Takanas Chachamim." It seems that this is also the reason why the husband is able to forego his rights to inherit his wife's property, and why he may forego his rights to receive the Peiros of her property. Since the Takanah granting him those rights was only instituted for his benefit, he may decline to receive them.

Why do we need the principle of "Iy Efshi b'Takanas Chachamim" in these cases? Why does the Gemara say that the only way in which one can forego his or her rights is through the mechanism of saying "since the Takanah was made for me, I am entitled to relinquish its benefit?" Our Mishnah holds that one may make a condition that counters what the Torah says -- one may be "Masneh Al Mah she'Kasuv ba'Torah" (see 56a, and Rashi at the end of the Mishnah here), and that Tenai will effectively alter the Torah's intended destination for the property! If a Tenai can affect a Din d'Oraisa, then obviously it is not working through the mechanism of "Iy Efshi b'Takanas Chachamim," because a Din d'Oraisa is not a Takanah! "Masneh Al Mah she'Kasuv ba'Torah" works because when it comes to monetary matters that affect only him, a person has the right to alter what he would otherwise be entitled to receive. If so, certainly he should be able to use a Tenai to change what the Rabanan entitled him to receive! Why, then, do we need the separate logic of "Iy Efshi b'Takanas Chachamim," which applies only where the Chachamim made a Takanah for his benefit?

ANSWERS:

(a) TOSFOS (end of DH k'd'Rav Kahana) asks this question on the Mishnah; why does the Mishnah not say that one may avoid receiving something by making a Tenai. Tosfos answers that one *could* use a Tenai to avoid acquiring something, but the words of the Mishnah, "Din u'Devarim Ein Li...," do not connote a Tenai, but rather a removal of his rights, and a removal of rights can only be done when those rights are granted to him by a Takanah d'Rabanan, but not when it is the Torah giving him those rights. (When Rebbi Shimon ben Gamliel, in the end of the Mishnah, argues and says that one may not be "Masneh Al Mah she'Kasuv ba'Torah," he means that even if one did specify a Tenai, he still cannot lose the rights to the Yerushah of his wife, and certainly he cannot remove himself from those rights if he says only "Din u'Devarim Ein Li....")

However, this does not explain why Rav Kahana -- who says that a person can make a Tenai not to inherit his wife -- must rely on the mechanism of "Iy Efshi b'Takanas Chachamim." RASHI (DH mi'Makom Acher) and the RACH (cited by the Tosfos Rid) write clearly that Rav Kahana indeed holds that a Tenai would *not* work to remove one's rights to his wife's Yerushah if that Yerushah had been d'Oraisa. The only reason he holds that one may remove one's rights to his wife's Yerushah is because that Yerushah is d'Rabanan, and "Iy Efshi b'Takanas Chachamim" works for a Takanah d'Rabanan. Why, though, does Rav Kahana hold that a Tenai does not work (as REBBI AKIVA EIGER asks on Rashi).

The answer seems to be that both Rav Kahana and Rava are explaining how one can relinquish privileges *after* the Kinyan of Nesu'in has already been made. Since the Nesu'in has already been made, one cannot make a Tenai. A Tenai can only be made prior to the time that the Kinyan takes effect, in order to alter the way the Kinyan takes effect. Once it has already taken effect and the man and woman already have certain privileges as a result of the Nesu'in, the only way to remove those privileges is by saying "Iy Efshi b'Takanas Chachamim."

The Gemara asks that a person should be able to remove himself from the right to receive the Peiros of his wife's property even *after* the Nesu'in takes effect, since "Iy Efshi" (or "Siluk" -- "removal") works even after the Kinyan takes effect. The Gemara answers that in the case of Peiros, "Iy Efshi" will not work, because "his acquisition is like hers" ("Yado k'Yadah"). This means that the husband has not only the rights to receive the Peiros as they grow, but he is even considered a partner in the ownership of the land itself, for he co-owns the land with his wife, at least as far as benefiting from its Peiros are concerned. He owns the land with regard to what it produces. Since he is an owner, he cannot remove himself from the ownership of the property through "Siluk" (rather, he must give it away as a gift in order to relinquish his ownership of it).

In summary, both Tenai and "Iy Efshi" ("Siluk") can be used to relinquish one's rights if they are specified before the Kinyan (which gives the person those rights to the item) takes effect. After the Kinyan takes effect, if the item has not yet entered the world and the person only has the rights to receive it but not full ownership of the item, he may remove himself from the rights to the item before they come ("Siluk"). If the Kinyan has taken effect, and in addition he already has full ownership of the item that the Kinyan entitles him to (i.e. it already exists), then he can only remove himself from its ownership by giving it away as a gift.

According to Tosfos, the cases of relinquishing rights to the Peiros of the wife's property (in the Mishnah), of inheriting the wife's property (Rav Kahana), and of relinquishing rights to Mezonos (Rava) are all cases of "Siluk," or *resigning* from one's rights to receive what he is entitled to, after the Kinyan has taken effect but before the item comes into the world.

(b) The RASHBA understands that the case in which a man foregoes his rights to his wife's Yerushah (the case of Rav Kahana), involves a *Tenai*, not just a "Siluk." The Rashba writes that he can only remove himself from receiving the Yerushah *before* the Nesu'in, and when he does so he can remove himself even from a Yerushah *d'Oraisa*, since his removal is working with the mechanism of a Tenai and not with the mechanism of "Iy Efshi b'Takanas Chachamim."

According to the Rashba, why does Rava mention that it is the mechanism of "Iy Efshi b'Takanas Chachamim" which allows the woman to relinquish her rights to receive Mezonos? She should be able to do it with a Tenai, just like the man may relinquish his rights to his wife's Yerushah with a Tenai! The answer is, like we mentioned above in Tosfos, that Rava is discussing how a woman may forego her rights *after* the Nesu'in, at which point it is too late to do so with a Tenai.

The Rashba might agree with Tosfos that in the Mishnah the husband is foregoing his rights to the Peiros through Siluk and not through a Tenai, since the he did not use the proper wording for a Tenai.

In summary, according to the Rashba, the husband relinquishes his rights to the Peiros, and the woman relinquishes her rights to Mezonos, through "Siluk," by saying "Iy Efshi b'Takanas Chachamim," as Tosfos explained. The case of Rav Kahana, though, where the husband declines the rights to his wife's Yerushah, is discussing the implementation of a *Tena*i, which is effective even in avoiding a Yerushah d'Oraisa.

(c) RASHI (DH mi'Makom Acher), however, equates the case of Rav Kahana, in which the husband wants to avoid receiving his wife's Yerushah, with the case of Rava, where the wife wants to avoid receiving Mezonos. Rashi must be learning that both cases are working through the same mechanism. However, it does not seem that Rashi agrees with Tosfos that they are working through "Siluk," because Rashi (56a, DH d'Rabanan, and 56b, DH Mai Kosev) writes that even in our Mishnah the husband is losing the rights to the Peiros through a *Tenai* and not just through saying "Iy Efshi" (or "Siluk").

It seems that Rashi holds that there is no way to remove ones rights to an object through Siluk without using a Tenai; there is no separate mechanism of "Siluk." The only way to relinquish the rights to something that one is entitled to receive is by specifying a Tenai before receiving those rights.

Why, then, does Rava mention the logic of "Iy Efshi b'Takanas Chachamim?" A Tenai should work even to relinquish rights that the Torah entitles a person to receive! It seems that the Gemara is giving a reason why one's Tenai works to annul a Takanah d'Rabanan, even according to the opinion (i.e. Raban Shimon ben Gamliel in the Mishnah) that holds that a Tenai *cannot* annul the rights to receive something that one is entitled to receive mid'Oraisa. The reason is that since the Rabanan instituted this Takanah only for the person's own benefit, they never made the Takanah in a situation where he is not interested in receiving it.

Why does Rav Kahana have to say that one can make a Tenai not to receive his wife's Yerushah *only* because of "Iy Efshi" (i.e. the Yerushah is mid'Rabanan), according to Rashi? Does Rav Kahana hold that when one makes a Tenai that is "Masneh Al Mah she'Kasuv ba'Torah," the Tenai is null and void? The Halachah, though, is that the Tenai works! (This is the question of Rebbi Akiva Eiger, as cited in answer (a) above.)

The answer may be that if a man inherits his wife mid'Oraisa, her Yerushah is not a privilege that he receives directly because of the *Kinyan* of Nesu'in. Rather, when a man and woman get married, they became related to each other ("She'er," see Bamidbar 27:11). As a result of being related he receives her Yerushah as a relative. Therefore, no Tenai that he makes in the *Kinyan* of Nesu'in can limit his rights to the Yerushah, because the rights to the Yerushah come not from the Kinyan of Nesu'in, but from the change in their relationship as a result of the Nesu'in. Tena'im cannot be made in such things as a change in relationship since that change is not something that the husband brings about directly. (This is essentially the reason why Tena'im cannot be made in the type of Kinyan which a person cannot accomplish through a Shali'ach, Kesuvos 74a.)

In summary, Rashi maintains that all three cases work through the mechanism of Tenai, and not Siluk. (M. Kornfeld)

According to Rashi, though, how does "Iy Efshi b'Takanas Chachamim" work in the case where the woman foregoes her rights to receive Mezonos? She is attempting to relinquishing those rights *after* the Nesu'in, when they have already taken effect, and her Tenai must be made *before* the Kinyan that creates the husband's obligation takes effect!

The answer is that Rashi seems to hold that the Takanas Chachamim was that the woman receives Mezonos from her husband in return for giving her earnings to him. Therefore, each day of earnings that she produces and gives to her husband obligates him *anew* to give her Mezonos in return. Accordingly, before she works and produces earnings for a certain day, she can make a Tenai and say that she wants to keep her earnings for herself and not receive Mezonos in exchange. Since her Tenai is made before the husband's obligation to give her Mezonos takes effect, her Tenai is valid.

The Gemara considers the possibility that such a Tenai can also be made to remove the husband's rights to the Peiros, even when he makes the Tenai after the Nesu'in. Since the Peiros are given to him in return for the obligation to redeem her, we might think that he receives each day's Peiros in return for the obligation to redeem her if she is captured on that day. Therefore, before the Peiros of that day grow, he can say that he wants to be obligated to redeem her even without receiving Peiros in return. It will be like a Tenai made before the rights to receive the Peiros were granted to him.

The Gemara rejects this, saying that the obligation to redeem her and the rights to the Peiros that come in return for that obligation all take effect at the time of the Nesu'in, when he becomes a partner with her in the ownership of the field. Hence, he cannot relinquish the rights afterwards.

Tosfos and the other Rishonim -- who learn that "Iy Efshi" is a removal of oneself from an entitlement ("Siluk") and not a Tenai -- might have learned that the obligation of Mezonos, too, comes at the time of the Nesu'in, and afterwards she cannot remove herself from those rights through a Tenai, but only through "Siluk." (See Tosfos 47b, DH Zimnin, who discusses exactly when the Chiyuv of Mezonos takes effect.)

OPINIONS: The Gemara asks whether the wording of "Din u'Devarim Ein Li..." which a person says in order to remove himself from receiving property is effective when it is accompanied by a Kinyan (that is, a Kinyan Chalifin). Do we assume that the person is strengthening his statement by making the Kinyan on the words that he stated when he said that he has no claim to the property (and since the statement is meaningless when he already owns the property, the Kinyan is also meaningless), or do we assume that the Kinyan was made not on his statement, but in order to effect a direct transfer of ownership through a Kinyan?

What case of "Din u'Devarim" is the Gemara discussing?

(a) RASHI explains that when the Gemara asks on what the person made the Kinyan, the Gemara is referring to the case discussed in the Beraisa -- a field owned by two partners, and one said to the other "Din u'Devarim Ein Li b'Sadeh Zu" ("I want nothing to do with this field").

(b) TOSFOS rejects Rashi's explanation. Tosfos asserts that when one partner says to the other, "Din u'Devarim Ein Li...," he is not expressing any intent to *give* the field to his partner, but rather the intent to make it Hefker, ownerless. Since his intention is to make it ownerless, how could the Kinyan that he made be construed as being an act of transferring ownership of the field to his partner? The words that he said carry no implication of a transfer of ownership!

Instead, Tosfos explains that the Gemara is referring to a case where a husband says to his wife *after* the Nesu'in that he does not want to inherit her property -- "Din u'Devarim Ein Li..." (unlike the Mishnah, which is discussing when he said it before Nesu'in). In such a case, since the woman owns the actual body of the field ("Guf"), when the husband says "I am removing my rights to receive the field," he implies that since he is removing his rights to the field's Peiros, her ownership of the field will extend to the Peiros as well. Thus, if a Kinyan is made, the Kinyan can work to transfer to her the rights to the Peiros.

It is clear why Rashi does not explain like Tosfos. The Gemara says that the Kinyan that the person makes might be taking effect on the "body of the field." This implies that the person saying "Din u'Devarim Ein Li..." already has ownership in the body of the field and not just the Peiros. Accordingly, the Gemara must be referring to a case of a normal partnership where two people own a field, and not to a case of a husband and a wife, where the wife owns the body of the field and the husband has only the rights to the Peiros.

How, though, does Rashi answer the question of Tosfos? In the case of two partners who own a field together and one says "Din u'Devarim Ein Li...," where is there an implied transfer of ownership? There seems to be nothing more than a statement of making his share in the field Hefker!

It seems that there is an underlying dispute between Rashi and Tosfos in the basic understanding of a partnership ("Shutfus"). Tosfos says that in a partnership, each person owns only half of the property. If one person makes his half Hefker, ownerless, then anyone can come and make a Kinyan on and acquire that half. There is no reason for it to belong to the other partner more than to anyone else.

Rashi, though, seems to hold that when a field is owned by a partnership, each of the partners really have rights to the *full* ownership of the *entire* field. The only thing preventing each one's ownership from taking hold over the entire field is the ownership of the other partner, as the RAN explains in Nedarim (45b). Therefore, if one partner makes his share in the field Hefker, the ownership of the other partner will automatically extend to the other half of the field as well, and no one else will be able to take it. Therefore, when one partner says "Din u'Devarim Ein Li...," he indeed implies that he wants the other partner to acquire the entire field.

This dispute might be the root of another Machlokes between Rashi and Tosfos. In Gitin (47b), Rashi (DH Tevel) writes that when a field is jointly owned by partners, each and every grain that is produced is owned equally by each partner. Tosfos, on the other hand, writes that somewhere in the field each partner has his own portion, which is fifty percent of the grain; any given grain, though, could belong entirely to one of the partners.

Rashi holds that each person has the rights to a full ownership of the entire field, and therefore they have equal rights to everything that grows anywhere in the field. Tosfos, though, who says that each partner owns only half of the land somewhere in the field, maintains that since we do not know where each person's portion is located, we do not know which grain belongs to which partner.

83b