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Kesuvos, 97

1) ONE WHO SOLD HIS PROPERTY UNNECESSARILY

QUESTIONS: The Gemara discusses the Halachah of a person who sells his property in order to use the proceeds to purchase a specific item, and after selling his property he discovers that he no longer needs the money for his intended purchase (for example, the buyer of the item decided not to sell it). Is he permitted to retract the sale of his property, since it turned out to be a mistaken sale? (That is, is it as if there was an unspoken condition at the time of the sale that if the money from the sale is not needed, then the sale will be annulled?) Or is the sale final and irrevocable, because he did not expressly articulate such a stipulation at the time of his sale?

The Gemara attempts to prove that the seller may retract the sale from a ruling of Rav Nachman. It happened that there was a sudden, extreme increase in the price of wheat in Neharda'a due to a drastic decrease in the supply of wheat. All of the residents of the city sold their houses in order to be able to buy food. Suddenly, boats arrived carrying wheat and the price normalized. Rav Nachman ruled that the sales of the houses may be retracted, and everyone may return the money he received for his house and get his house back.

The Gemara refutes this proof, saying that perhaps in a case where one does not need the money from the sale, the sale may not be retracted, and the case of Rav Nachman was different. In the case of Rav Nachman, the sales were revoked because there really was wheat on the way to the city at the time that the sales were made, and therefore the sales were mistaken and based on a lack of knowledge of the *present* situation. If the wheat, on the other hand, had been shipped *after* the houses were sold, then the case would have been similar to the case of the Gemara's question and we would have been able to bring proof from Rav Nachman's ruling that the sale is revocable.

The Gemara (according to Rashi's explanation) then brings a dialogue between Rami bar Shmuel and Rav Nachman to support the refutation of the proof from Rav Nachman's ruling. Rami bar Shmuel said to Rav Nachman, "If you let them retract the sales, then in the future, the next time there is a famine, no one will buy the houses, out of fear that the seller will retract the sale!" Rav Nachman replied that such famines are so uncommon that we do not have to be concerned for what potential buyers will think. Rami bar Shmuel responded that in Neharda'a, such famines *are* relatively common, and thus there is a fear that potential buyers will refrain from purchasing houses if we let the sales be retracted.

RASHI explains that had the situation in Neharda'a been that the ships with wheat "came from a nearby place" and thus embarked *after* the sales were made, or that even if the wheat embarked *before* the sales were made but the wheat "came only to these certain people alone (and not to others)," then the case would indeed be similar to the case of the Gemara's question. However, if that had been the case, it would indeed have been a very unusual situation even in Neharda'a, and Rav Nachman would have been correct. Since Rami bar Shmuel criticized Rav Nachman, saying that the situation that arose from the famine of Neharda'a was relatively common in Neharda'a, it must be that the wheat was already on its way and was held up by coves and inlets in the river, which is relatively common and could easily occur again.

There are a number of points in Rashi's explanation that are difficult to understand.

(a) Rashi differentiates between a case of a "Mekach Ta'us" (a sale made in error) -- where the people sold their houses not knowing that wheat was already on the way (which is not the same as the case of the Gemara's question), and the case of the Gemara's question where either the wheat was shipped *after* the sale, or it was shipped before the sale but only a few people in the city received it.

If the wheat was shipped before the sale, though, what difference does it make if it was enough to supply the whole city, or just enough to supply a few people (who, as a result, now want to revoke their sales)? In either case, the food was on its way already and it was their lack of knowledge that caused them to sell! What does Rashi mean? (RASHASH)

(b) Rashi writes that if the case in Neharda'a was one in which the food was shipped *after* the people sold their houses, then we would have no concern that potential buyers might refrain from buying houses in the future during times of famine, since the only time we revoke a sale is under this highly unusual circumstance.

Why is that? The Gemara says that we certainly revoke the sale when the wheat is already on the way, which is a common occurrence, and it is only questioning whether we *also* revoke the sale when the wheat embarked *after* the sale, for that might also be considered a "Mekach Ta'us." If we do revoke the sale under such circumstances, as well as when the wheat was already on the way, then it is even *more* common for a situation to arise that will cause the sale to be revoked! How, then, can Rashi say that if we revoke the sale because the person ended up not needing the money (i.e. the boats were not yet on the way), than the sale is only revoked in an uncommon situation? On the contrary, it makes the revocation of sales even more common if the sale is revoked whether the boats left before *or* after the sale! (TOSFOS DH Iy Hachi)

ANSWERS:

(a) When only enough food for some of the people was on the way, then no particular person in Neharda'a could be certain that he would be the one to receive the food. Therefore, even had he known that food was on the way at the time of the sale, he still would have sold his house, not being certain that he would receive the wheat that was on the way. The sale did not take place due to a lack of knowledge about the present situation.

(b) Rashi is assuming that it is more common for a famine to end due to food that was already en route than for a famine to end due to food that was shipped from a nearby place *after* people sold their houses. If the sale is not revoked when the food was shipped after the sale, then the only situation in which the sale will be revoked is when the food was already en route at the time of the sale. The Gemara says that this is a fairly common situation, and therefore we should be concerned that it might happen again in the future and thus we should not revoke the sale so that buyers will not refrain from buying houses.

If, on the other hand, the Halachah is that the deal is revoked even when the shipment of the wheat embarked *after* the sale took place, then it must be that such a sale is considered a "Mekach Ta'us," because people do take such things into consideration when they make a sale, despite its being relatively uncommon. If so, when people sell their houses when boats are already on the way, which is a more common situation, then they must *certainly* realize at the time that boats might be on the way, and even so they want to make the sale. As such, the sale will not be a "Mekach Ta'us" at all, since it is something that people consider when they are selling their property and yet they take the risk of selling anyhow. Therefore, they will not be able to revoke the sale because of the boats being held up. That is why the Gemara says that the situation for revoking the sale when the boats embarked after the sale is uncommon, because the sale will *only* be revoked in that situation and not when the boats had already embarked before the sale was made. (M. Kornfeld)

97b

QUESTIONS: The Tana Kama of the Mishnah says that a widow may sell the property of her husband's heirs (the Yesomim) outside of Beis Din, to raise proceeds to buy Mezonos for herself or even to collect her Kesuvah. Rebbi Shimon does not permit her to sell their property outside of Beis Din in order to collect her Kesuvah.

The Amora'im give two reasons why, according to the Tana Kama, the widow is permitted to sell the property of the Yesomim outside of Beis Din in order to collect her Kesuvah. Ula says that the Chachamim enacted, for the woman's benefit, that it be easier for her to collect her Kesuvah even after her husband dies so that women will not refrain from marrying because of the potential difficulties that they might encounter when trying to collect the Kesuvah ("Mishum Chen"). Rebbi Yochanan says that it is because a man does not want his wife to be disgraced by having to go to Beis Din to collect her Kesuvah, and thus the husband married her with the condition in mind that she may sell his property after his death to collect her Kesuvah without having to go to Beis Din.

The Gemara says that the following Mishnah -- which says that a Gerushah (a divorced woman) cannot sell the property of Yesomim outside of Beis Din in order to collect her Kesuvah -- is expressing the view of Rebbi Shimon, who says that a widow cannot sell the property to collect her Kesuvah outside of Beis Din. The Gemara asks how can that Mishnah be expressing the view of Rebbi Shimon? Rebbi Shimon already says in our Mishnah that a Gerushah cannot sell property to collect her Kesuvah outside of Beis Din, because he says "Kol she'Ein Lah Mezonos" cannot collect outside of Beis Din, and this must be referring to a Gerushah!

The Gemara answers that the Mishnah, when it says "Kol she'Ein Lah Mezonos" is not referring to a Gerushah, but to a *Safek Gerushah* (where the husband threw a Get to his wife and there is a doubt whether it was closer to her or closer to him). Rebbi Zeira says that in such a case the husband is obligated to give her Mezonos while she is married (before he gives her a full divorce).

RASHI (DH Megureshes) says that according to the Gemara's answer, our Mishnah is teaching that when a woman's husband dies during Erusin, the woman does not receive Mezonos from the Yesomim if she was a Safek Gerushah.

Rashi's words are difficult to understand.

(a) How can Rashi say that our Mishnah is saying that a woman who is a Safek Gerushah from *Erusin* does not receive Mezonos after her husband's death, implying that as long as her husband is alive she *does* receive Mezonos from him? A husband during Erusin is not obligated to feed his Arusah! Only after Nesu'in does a husband become obligated to feed his wife! If he gives her a Safek Get during Erusin, why should he suddenly become obligated to feed her? Only a husband during *Nesu'in* who gives his wife a Safek Get should have to continue feeding his wife since he did not give her a full divorce and he was already obligated to feed her! (MAHARSHA)

(b) Why does Rashi explain the Gemara in such a forced way by saying that the Mishnah is referring to a Safek Gerushah from Erusin? Rashi should have said that it is referring to a Safek Gerushah from Nesu'in!

(c) Rashi says that the Mishnah is teaching that the husband during Erusin must give Mezonos to his Arusah who is a Safek Gerushah only while he is alive. After his death, the Yesomim do not have to feed her. Why should the Mishnah have to teach us that? The only reason a husband must give Mezonos to a Safek Gerushah is because she cannot remarry because of him, but now that he is dead she can get remarried! Hence, it is obvious that the Yesomim should not be obligated to give her Mezonos! (TOSFOS DH la'Asuyei)

ANSWERS:

(a) The TOSFOS HA'ROSH (see also PNEI YEHOSHUA) discusses our first point. He explains that Rashi apparently holds that even a husband during Erusin must feed his Arusah if he makes her into a Safek Gerushah, even though he is not obligated to feed her when she is fully his Arusah and not a Safek Gerushah.

The reason the Chachamim enacted that he must feed her when she becomes a Safek Gerushah is because he is the one preventing her from getting married to anyone else. Normally, a husband during Erusin cannot indefinitely prevent his wife from marrying someone else. After a certain period of time, he must either marry her himself, or she can demand that he free her from her commitment by divorcing her. However, the Safek Gerushah from Erusin has no assurance that her husband will ever marry her; her husband can say that since she is a Safek Gerushah, he does not want to perform Nesu'in because perhaps she is actually divorced from him (and since Nesu'in involves a monetary obligation, "ha'Motzi me'Chaveiro Alav ha'Ra'ayah"). On the other hand, she cannot marry anyone else because she is prohibited as a Safek Eshes Ish. Therefore, the husband must give her Mezonos right away during Erusin, since he is preventing her from getting married with no other options for her to follow.

The Tosfos ha'Rosh adds that a Safek Gerushah during Erusin is comparable to a situation where a husband refuses to marry his Arusah after twelve months, in which case he is then obligated to give her Mezonos (or divorce her).

(b) The TOSFOS HA'ROSH (see also PNEI YEHOSHUA) answers the second question as well. Rashi is forced to explain that the Mishnah is discussing a Safek Gerushah during Erusin, because if the Mishnah is saying that a Safek Gerushah cannot collect her Kesuvah nor her Mezonos from the Yesomim, then why would the following Mishnah have to tell us that a *definite* Gerushah cannot collect her Kesuvah from the Yesomim (according to Rebbi Shimon)? It is already implied by the previous Mishnah!

This is why Rashi explains that the first Mishnah is discussing a Safek Gerushah during *Erusin*, who does not have a claim to "Chen," as the Gemara explained. The next Mishnah tells us that a *definite* Gerushah from *Nesu'in* also may not sell property for her Kesuvah outside of Beis Din, even though she does have a claim to "Chen."

(c) Rashi holds that there is a reason to suggest that a Safek Gerushah should be able to collect her Mezonos from the Yesomim even after her husband's death. The reasoning for this is that when a man gives his wife a Safek Get, the Chachamim want to give the husband an incentive to give her a valid Get as soon as possible. We might have thought that to this purpose the Chachamim enacted that if he does not give her a Get before he dies, she may continue to collect Mezonos from his estate even after his death, until the Yesomim give her the Kesuvah, just like an widow. Hence, the Mishnah is teaching that the Chachamim did not impose such a penalty on the husband and did not have such considerations. (M. Kornfeld)