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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 89



(a) Rav Idi bar Avin tries to prove Takanas Usha from a Beraisa. The Tana speaks about witnesses who testifies that a man divorced his wife and paid her Kesuvah and who are subseqently declared Zomemin on both scores. If other witnesses concurred with them that she is divorced, and they become Zomemin only with regard to the Kesuvah (inasmuch as they testily that she had not yet received it) - they will have to pay her the full amount of the Kesuvah.

(b) But now that they have been declared Zomemin even regarding the fact that the woman is found to be still married, in which case she may never receive her Kesuvah anyway - they only pay the Tovas Hana'ah.

(c) The Tovas Hana'ah comprises - the amount that a purchaser would pay for her Kesuvah, bearing in mind the Safek that, on the one hand, she might become widowed or divorced, but on the other, that she might die first, and her husband will inherit her.

(d) Rav Idi bar Avin tries to prove Takanas Usha from here - because if the Tana did not hold of it, why would the purchaser need to contend with the fact that her husband might inherit her Kesuvah? Why can she not sell it completely?

(a) Abaye ...
1. ... refutes Rav Idi's proof - by differentiating between Nechsei Mi'lug (to which Takanas Usha pertains [which remain in the woman's domain during the marriage, to the point that she loses if they depreciate, and if they appreciate, she gains]), and Nichsei Tzon Barzel (which incorporate 'Kesuvasah', property that she brings into the marriage which is assessed and written in the Kesuvah, and for which her husband accepts full responsibility). Consequently, irrespective of whether or not, the Tana'im hold of Takanas Usha regarding Nechsei Mi'lug, when it comes to Nichsei Tzon Barzel, her sale is invalid.
2. ... then attempts to prove from here that it must be the woman who receives the Tovas Hana'ah from the sale of her Kesuvah - because if it was the man, then why should the Eidim Zomemin pay her at all? Why can they not argue that even if she had sold the Kesuvah, her husband would have claimed it from her?
(b) Rav Shalman refutes Abaye's proof however, on the grounds that even if the money does go to her husband, she will have gained 'Ravach Beisa' - which means that when there is more money in the house, she also benefits from the higher standard of living (and that is the benefit the Eidim Zomemin would have to pay her).

(c) Rava concurs with Abaye however (though not for the same reason). The logical reason he gives for the fact that the Tovas Hana'ah goes to the woman - is because 'Peira Takinu Lei Rabbanan, Peira de'Peira Lo Takinu Rabbanan' (the Rabbanan instituted that the husband is entitled to the Peiros of his wife's property, but not 'Peiros of the Peiros').

(a) Rav Papa and Rav Huna B'rei de'Rav Yehoshua try to prove Takanas Usha from our Mishnah, which states 'ha'Eved ve'ha'Ishah Pegi'asan Ra'ah ... ve'Heim she'Chavlu ba'Acheirim Peturin'. Because, if not for Takanas Usha, they maintain, why should she not be made to sell her Nechsei Mi'lug in order to pay the Nizak?

(b) We counter this by pointing out that even with Takanas Usha, we could ask the same Kashya - because even though she cannot sell her Nichsei Mi'lug completely, she can sell it for the Tovas Hana'ah, as we explained earlier.

(c) We answer both Kashyos with one sweep - by establishing our Mishnah when she has no Nechsei Mi'lug.

(a) We ask why the woman is not forced to sell her Kesuvah and pay the Nizak with the Tovas Hana'ah', and we answer by establishing the Mishnah like Rebbi Meir - who says that a woman is forbidden to live with her husband without a Kesuvah.

(b) Rebbi Meir's reason for this Chumra is - in order prevent her husband from divorcing her too quickly.

(c) This reason renders the answer we just gave unacceptable - because seeing as the husband will anyway have to pay the purchaser, he will not divorce his wife so quickly anyway.

(d) And we refute the suggestion that Tovas Hana'ah is only words, and words are not Meshubad to the Nizak - on the grounds that these are not mere words, but words that are worth money (so why should they not be Meshubad to him?).

(a) We finally answer the Kashya (about selling her Kesuvah and paying the Nizak with the Tovas Hana'ah) by quoting Shmuel, who says that if Reuven sells his Sh'tar Chov to Shimon and then wishes to forego his debt - he may do so, in which case, what is the point of making him sell her Kesuvah, seeing as she is like to forego her Kesuvah, in which case she will have to return the money to the purchaser, and the Nizak will not receive it anyway.

(b) This solves the problem, despite the fact that she could sell the Kesuvah ...

1. ... to a third person, and leave him with the possibility that she will not let her husband off the hook and the Nizak with a fair chance of receiving his due - because she is bound to give her husband priority and forego her Kesuvah (in which case it is pointless to enforce the sale in the first place)?
2. ... to the Nizak himself, who has nothing to lose, seeing as she is not giving him anything anyway - because, since at the end of the day, she is bound to let her husband off the hook, why trouble the Beis-Din to initiate a sale that will not last.



(a) The Tana rules in a Beraisa that if a woman wounded her husband, we do not force her to sell her Kesuvah. In light of what we just learned, the problem with this Beraisa is - why she should not be made to sell her Kesuvah in order to pay her husband, and if she then foregoes her Kesuvah to her husband, so what?

(b) This Tana, we answer, definitely holds like Rebbi Meir - who forbids a woman to live with her husband without a Kesuvah, and unlike in the previous case, he will certainly not hesitate to divorce her, since there is nobody else who will claim the Kesuvah from him if he does.

(c) What is the point of not forcing her to sell her Kesuvah, we persist, seeing as her husband will divorce her anyway and claim the damages out of her Kesuvah. We answer by establishing the Beraisa - when her Kesuvah is worth more than the Nezek, and it is not therefore worth his while to do so.

(a) We would force the woman to sell her Kesuvah in order to pay the Nezek that she owes her husband - if her Kesuvah was more than the minimum Shiur of a Kesuvah required by the Torah (two hundred Zuz for a Besulah and a hundred Zuz for an Almanah), in which case she would be made to sell the excess in order to pay what she owes her husband.

(b) The Tana does not obligate her to do so - because that is not the case of which he is speaking.

(c) We ask on this from the Beraisa 'Ke'shem she'Lo Timkor ve'Hi Tachtav, Kach Lo Tafsid ve'Hi Tachtav', which we initially interpret to mean - that just as she is not permitted to sell her Kesuvah whilst she is married, so too, does she not lose her Kesuvah (to pay her husband) under any circumstances.

(a) To answer the above Kashya, Rava establishes the Beraisa by Kesuvas B'nin Dichrin - which is the right of her children from her husband to inherit her Kesuvah, even if she dies during her husband's lifetime. If say, she has a larger Kesuvah (or less children) than her Tzarah, then, even assuming that both women died before their husband, then when he dies, each set of children will inherit their mother's Kesuvah, and divide the remaining property between them.

(b) The Beraisa is now saying - that just as, if a woman sells her Kesuvah to a third person, she retains the Kesuvas B'nin Dichrin, so too, is the Din in the event that she sells it to her husband.

(c) We might otherwise have thought that she loses it - because she deliberately sold her Kesuvah. Perhaps, we think, the sons of her Tzarah can argue that, had she still been alive, the sale would have been valid and her children would have lost their rights to the Kesuvas B'nin Dichrin (so now that her husband inherits her, she loses it too).

(d) She does not in fact, lose the Kesuvas B'nin Dichrin in both cases - due to the fact that she sold her Kesuvah because she urgently needed the money (and did not have the least intention to cause her children to lose it).

(a) One Beraisa rules that Avdei Mi'lug go out free if the woman knocks out their tooth or eye, but not if the man does so. A second Beraisa says - that they do not go out for either of them.

(b) On the assumption that both Tana'im hold 'Kinyan Peiros (of the husband) La'av ke'Kinyan ha'Guf', we initially assume the basis of the Machlokes to be - whether the Tana holds of Takanas Usha (the second Beraisa) or not (the first Beraisa).

(c) In the second Beraisa, the Eved does not go free if the man knocked out his tooth or eye - because the fact is, that the woman still owns the Guf of the Eved.

(d) Alternatively, both Tana'im hold of Takanas Usha, and the first Beraisa was written before the Takanah. On the other hand, this Tana might even be speaking after the Takanah, and still the Eved goes free for the woman - because he holds like Rava, who says that 'Hekdesh, Chametz and *Shichrur* override a Shibud (any Shibud - even of a husband).

(a) Hekdesh - which is Kedushas Damim (and not Kedushas ha'Guf) does not override a Shibud, but one pays a token amount to Hekdesh and redeems it in order to give it to the person to whom it is Meshubad.

(b) 'Chametz Motzi Miydei Shibud' means - that, if one designated Chametz as a security against a loan from a Nochri, when the time of Isur on Erev Pesach arrives, one is nevertheless obligated to burn it.

(c) The Mishnah in Pesachim, which permits Chametz that is Meshubad to a Nochri after Pesach - speaks when the Nochri. actually took the Chametz into his possession (whereas Rava speaks when he did not).

(d) The Tana who holds 'Lo le'Ishah ve'Lo le'Ish like Rava' may well hold like Rava - only he holds that Takanas Usha (which strengthened the rights of the husband) incorporated Hekdesh and Shichrur, too.

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