Blog Yomi – Kesubos #78/Daf 79

We ended yesterday with a teaser about the permissibility of a wife sheltering property from her husband. We begin today at the bottom of דף ע״ח עמוּד ב:

Property Ownership Types: Freehold or Leasehold?

הָהִיא אִיתְּתָא דְּבָעֲיָא דְּתַבְרְחִינְהוּ לְנִכְסַהּ מִגַּבְרַהּ, כְּתַבְתִּינְהוּ לִבְרַתַּהּ. אִינְּסִיבָה וְאִיגָּרַשָׁה

There was a woman who was about to re-marry after she was widowed, who sought to distance the rights to her property from her soon-to-be husband, thereby exempting said property from the laws of נִכְסֵי מְלוֹג (kind of like a conditional pre-nup). She therefore wrote a document (שְׁטַר מַתָּנָה) prior to re-marrying stipulating that her property be given as a gift to her daughter to shelter the property. The daughter subsequently married and then got divorced or widowed. She wanted her daughter to return the property, but her daughter claimed that it was given to her as a gift.

Rashi emphasizes that the woman made it clear to witnesses that the real estate was not an unconditional gift, but a ploy so that she could retain its rights through sheltering it: אלמנה היתה ובאת להנשא והיתה מקדמת ונותנתן לבתה כדי להבריח זכות בעלה מהם שלא יזכה בהם והודיעה לעדים שאין מתנה זו מתנה אלא להבריח ולא שתזכה בהם הבת אם תתאלמן היא או תתגרש

אֲתַאי לְקַמֵּיהּ דְּרַב נַחְמָן, קַרְעֵיהּ רַב נַחְמָן לִשְׁטָרָא. אֲזַל רַב עָנָן לְקַמֵּיהּ דְּמָר עוּקְבָא, אֲמַר לֵיהּ: חֲזִי מָר נַחְמָן חַקְלָאָה הֵיכִי מְקָרַע שְׁטָרֵי דְאִינָשֵׁי. אֲמַר לֵיהּ: אֵימָא לִי אִיזִי, גּוּפָא דְעוֹבָדָא הֵיכִי הֲוָה

Businessman tearing hands crumpled sheet of A4 paper. Isolated on grey background Businessman tearing hands crumpled sheet of A4 paper. Isolated on grey background. hands tearing paper stock pictures, royalty-free photos & images

The mother came before Rav Nacḥman for judgment. Rav Nacḥman tore the document, accepting her claim that she did not intend to transfer ownership of her property. Rav Anan went before Mar Ukva, and said to him: Let the Master observe how Nacḥman (who is not an expert in דִין) tears people’s documents. Rav Anan was upset that Rav Nacḥman destroyed a legitimate שְׁטַר. Mar Ukva said to him: Tell me, please, what was the actual incident?

אֲמַר לֵיהּ: הָכִי וְהָכִי הֲוָה. אֲמַר לֵיהּ: שְׁטַר מַבְרַחַת קָא אָמְרַתְּ? הָכִי אָמַר רַב חֲנִילַאי בַּר אִידִי אָמַר שְׁמוּאֵל: מוֹרֶה הוֹרָאָה אֲנִי: אִם יָבֹא שְׁטַר מַבְרַחַת לְיָדִי — אֶקְרָעֶנּוּ

Rav Anan apprised Mar Ukva of the details of the case, and Mar Ukva replied: Are you saying it was a document of evasion? This is what Rav Ḥanilai bar Idi said in the name of Shmuel said: I am an authority who issues rulings and have issued the following directive: If a document of evasion comes to my hand, I will tear it, as it is clear that it was not intended for the actual transfer of property but merely to distance it from someone else.

אֲמַר לֵיהּ רָבָא לְרַב נַחְמָן: טַעְמָא מַאי? דְּלָא שָׁבֵיק אִינִישׁ נַפְשֵׁיהּ וְיָהֵיב לְאַחֲרִינֵי. הָנֵי מִילֵּי לְאַחֲרִינֵי, אֲבָל לִבְרַתַּהּ יָהֲיבָא! אֲפִילּוּ הָכִי: בִּמְקוֹם בְּרַתַּהּ, נַפְשָׁהּ עֲדִיפָא לַהּ

Rava said to Rav Nacḥman: What is the reason for your actions? Is it that you assume a person does not abandon her own interests and let others keep a conditional gift? Perhaps that applies only when it is given to others who are strangers, but to her daughter a mother would yield her rights. Rav Nacḥman replied: Even so, where her interests clash with those of her daughter, her own interests are preferable to her, and therefore she did not intend to waive her rights.

מֵיתִיבִי: הָרוֹצָה שֶׁתַּבְרִיחַ נְכָסֶיהָ מִבַּעְלָהּ, כֵּיצַד הִיא עוֹשָׂה? כּוֹתֶבֶת שְׁטַר פַּסִּים לַאֲחֵרִים, דִּבְרֵי רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל

The Gemara raises an objection: With regard to one who seeks to distance her property from her husband, how does she proceed? She writes in a document of agreement that her property should be given to others, who agree not to acquire the property. This document prevents her husband from gaining access to her property. This is the statement of Rabban Shimon ben Gamliel.

Rashi makes an interesting comment here regarding the term “שְׁטַר פַּסִּים” – that it was a document of appeasement: שטר פיוסים שמפייסתו לקבל מתנה זו להפקיע זכות בעלה קודם נישואין ולא שיזכה מקבל זה בהם

Rabbi Friedman, in The Transformative Daf, notes that the Radak translates פַּסִּים in the same way as the famous כְּתוֹנֶת פַּסִים that Yosef wore – the multicolored garment.

In what sense was the שְׁטַר multicolored? That it could be viewed differently from different perspectives. But, as Rabbi Friedman notes, “In the end the Sages laugh her off and tell her that her ruse won’t work. Upon embarking on marriage, we must be prepared to be completely open and honest with our spouse.” Indeed, as the Gemara adds: וַחֲכָמִים אוֹמְרִים: רָצָה — מְצַחֵק בָּהּ. עַד שֶׁתִּכְתּוֹב לוֹ מֵהַיּוֹם וְלִכְשֶׁאֶרְצֶה

The Gemara goes on to amend this by saying that when someone gives away all her property, it’s clear that the intent was not to do so unconditionally. However, if she gives away only part of her property, if she didn’t specify in the contract what the conditions were, the recipient of the gift has a valid claim that there were no strings attached.

Get it in writing!

The next Mishnah is a primer of sorts on real estate investment, again in the context of נִכְסֵי מְלוֹג:

נָפְלוּ לָהּ כְּסָפִים — יִלָּקַח בָּהֶן קַרְקַע, וְהוּא אוֹכֵל פֵּירוֹת. פֵּירוֹת הַתְּלוּשִׁין מִן הַקַּרְקַע — יִלָּקַח בָּהֶן קַרְקַע, וְהוּא אוֹכֵל פֵּירוֹת

If money was bequeathed to a woman as an inheritance while she was married, the husband can acquire land with the $ and consume the produce of the land (i.e. its profit) while the principal remains hers. As ArtScroll notes: “Land is considered the safest investment, for it cannot be lost, and generally does not depreciate. He may not invest the money in some other, potentially more lucrative venture, for though this might be beneficial for him in increasing his ‘produce’, it would place his wife’s principal at risk.”

The Mishnah continues:

פֵּירוֹת] הַמְחוּבָּרִים בַּקַּרְקַע? אָמַר רַבִּי מֵאִיר: שָׁמִין אוֹתָהּ כַּמָּה הִיא יָפָה בְּפֵירוֹת וְכַמָּה הִיא יָפָה בְּלֹא פֵּירוֹת, וּמוֹתַר — יִלָּקַח בָּהֶן קַרְקַע, וְהוּא אוֹכֵל פֵּירוֹת. וַחֲכָמִים אוֹמְרִים: הַמְחוּבָּרִים לַקַּרְקַע — שֶׁלּוֹ, וְהַתְּלוּשִׁין מִן הַקַּרְקַע — שֶׁלָּהּ, וְיִלָּקַח בָּהֶן קַרְקַע, וְהוּא אוֹכֵל פֵּירוֹת

Let’s incorporate Rashi’s line of reasoning here: דקסבר מה שגדל ברשותו הוו פירות ומה שלא גדל ברשותו הוי קרן לפיכך מה שדמי הקרקע יקרים עכשיו בשביל תבואה זו צריך ליתן לה דמים ויקנו מהן קרקע ויאכל הוא פירותיה

If the wife brought land into the marriage that was already bearing fruit, that fruit is part of the principal which is exclusively hers. רַבִּי מֵאִיר says that one evaluates how much the land is worth with the produce, and how much it is worth without the produce, and the difference between these sums is the surplus value that belongs to the woman. Land is then acquired with the surplus and he consumes the produce. And the חֲכָמִים say: That which is attached to the ground is his, as he is entitled to the produce from her property and he may therefore eat from it. And that which is detached from the ground is hers, like all other money she brings to the marriage, and land is acquired with it and he consumes the produce.

The Mishnah concludes:

רַבִּי שִׁמְעוֹן אוֹמֵר: מְקוֹם שֶׁיִּפָּה כֹּחוֹ בִּכְנִיסָתָהּ — הוֹרַע כֹּחוֹ בִּיצִיאָתָהּ. מְקוֹם שֶׁהוֹרַע כֹּחוֹ בִּכְנִיסָתָהּ — יִפָּה כֹּחוֹ בִּיצִיאָתָהּ. כֵּיצַד? פֵּירוֹת הַמְחוּבָּרִים לַקַּרְקַע, בִּכְנִיסָתָהּ — שֶׁלּוֹ, וּבִיצִיאָתָהּ — שֶׁלָּהּ. וְהַתְּלוּשִׁין מִן הַקַּרְקַע, בִּכְנִיסָתָהּ — שֶׁלָּהּ, וּבִיצִיאָתָהּ — שֶׁלּוֹ

Rabbi Shimon says: In a case where his right is superior upon her entrance to the marriage, his right is inferior upon her exit if he divorces her. Conversely, in a case where his right is inferior upon her entrance, his right is superior upon her exit. How so? With regard to produce that is attached to the ground, if she married while owning such produce, upon her entrance it is his, in accordance with the opinion of the חֲכָמִים, and upon her exit, when he divorces her, it is hers, as it is considered part of her property. But in the case of produce that is detached from the ground, upon her entrance it is hers, and if such produce is detached before their divorce, upon her exit it is his, as he was already entitled to all the produce of her property.

The Gemara on this Mishnah takes the position that when there is a choice of buying land as an investment, or buying a house as an investment property, you should always go with land. Apparently in those days, land didn’t depreciate in value as much as actual houses did which were comparatively flimsy.

פְּשִׁיטָא: אַרְעָא וּבָתֵּי — אַרְעָא. בָּתֵּי וְדִיקְלֵי — בָּתֵּי. דִּיקְלֵי וְאִילָנֵי — דִּיקְלֵי. אִילָנֵי וְגוּפְנֵי — אִילָנֵי

The Gemara observes that in the cases in the Mishnah where land is bought with the money, it is obvious that if one spouse proposes acquiring land and the other proposes buying houses, they must buy land, because it is a more secure purchase. If the decision is between houses and palm trees, they should acquire houses. If the decision is between palm trees or other types of trees, they should buy palm trees. If the decision is between regular trees or grapevines, they should purchase trees. The principle is that they acquire that which lasts longer and will not deteriorate over time. (One could say that the principle is to protect the principal.)

אִבָּא, זַרְדְּתָא, וּפִירָא דְכַוְורֵי, אָמְרִי לַהּ פֵּירָא וְאָמְרִי לַהּ קַרְנָא. כְּלָלָא דְּמִילְּתָא: גִּזְעוֹ מַחְלִיף — פֵּירָא, אֵין גִּזְעוֹ מַחְלִיף — קַרְנָא

If the wife inherited a forest [abba] of hawthorn [zeradeta] trees, whose produce is inferior, or a fishpond, their status is a matter of dispute: Some say they are considered like produce, and some say they are like the principal, as they do not replenish themselves but eventually wear out (i.e., since the apples of the zeradeta tree are inedible, their value is the tree itself which is sold for wood – once the wood is good, it’s over Johnny; same holds true for the fish in the pond – once the fish are eaten, there is no more). The principle of the matter is as follows: Any tree or plant whose trunk renews itself and grows again after it is cut is considered produce, whereas any tree or plant whose trunk does not renew itself is considered part of the principal.

The next case discusses the money paid back for a stolen cow, which includes a penalty of paying double the value of the cow, and whether that $ goes to the wife as principal, or as fruit (profit) which goes to the husband.

Stolen cattle recovered, Estcourt. Photo: SAPS

אָמַר רַב הוּנָא בַּר חִיָּיא אָמַר שְׁמוּאֵל: הֲלָכָה כַּחֲנַנְיָה. אָמַר רָבָא אָמַר רַב נַחְמָן: אַף עַל גַּב דְּאָמַר שְׁמוּאֵל הֲלָכָה כַּחֲנַנְיָה, מוֹדֶה חֲנַנְיָה שֶׁאִם נִתְגָּרְשָׁה — נוֹתֶנֶת דָּמִים וְנוֹטַלְתָּן, מִפְּנֵי שֶׁבַח בֵּית אָבִיהָ

A similar question arises with the child of a slave. The slave represents principal (קֶרֶן) owned by the wife, and the child of a slave represents profit (פֵּירוֹת) which accrues to the husband.

The next Mishnah elaborates on the concept of “family heirlooms”:

נָפְלוּ לָהּ עֲבָדִים וּשְׁפָחוֹת זְקֵנִים — יִמָּכְרוּ, וְיִלָּקַח מֵהֶן קַרְקַע, וְהוּא אוֹכֵל פֵּירוֹת. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: לֹא תִּמְכּוֹר, מִפְּנֵי שֶׁהֵן שֶׁבַח בֵּית אָבִיהָ. נָפְלוּ לָהּ זֵיתִים וּגְפָנִים זְקֵנִים — יִמָּכְרוּ, וְיִלָּקַח בָּהֶן קַרְקַע, וְהוּא אוֹכֵל פֵּירוֹת. רַבִּי יְהוּדָה אוֹמֵר: לֹא תִּמְכּוֹר, מִפְּנֵי שֶׁהֵן שֶׁבַח בֵּית אָבִיהָ

If elderly slaves or maidservants were bequeathed to her, they are sold and land is acquired with them, and the husband consumes the produce of the land. Rabban Shimon ben Gamliel says: She need not sell these slaves and maidservants, because they are assets of her paternal family, and it would be shameful to the family if they were sold to others. Likewise, if old olive trees or grapevines were bequeathed to her, they are sold and land is acquired with them, and he consumes the produce. רַבִּי יְהוּדָה says: She need not sell them, because they are assets of her paternal family.

Family Heirlooms

Well, we’ve covered a considerable amount of ground regarding real estate in particular (pun intended) and property ownership regarding נִכְסֵי מְלוֹג in general. Let’s Zoom ahead to the next Mishnah, where the question arises as to what part (if any) of the husband’s investment in the maintenance of the property is reimbursable to him:

הַמּוֹצִיא הוֹצָאוֹת עַל נִכְסֵי אִשְׁתּוֹ, הוֹצִיא הַרְבֵּה וְאָכַל קִימְעָא, קִימְעָא וְאָכַל הַרְבֵּה — מַה שֶּׁהוֹצִיא הוֹצִיא, וּמַה שֶּׁאָכַל אָכַל. הוֹצִיא וְלֹא אָכַל — יִשָּׁבַע כַּמָּה הוֹצִיא, וְיִטּוֹל

With regard to one who pays expenditures for his wife’s property in an effort to improve it, if he paid a large amount in expenditures and ate only a small amount of produce before he divorced her, or if he paid a small amount in expenditures and ate a large quantity of produce, that which he spent he has spent, and that which he ate he has eaten. (The Gemara will discuss what is meant by eating “a small amount”, and the manner in which it was eaten). Therefore, none of it need be returned. However, if he paid expenditures for the property and did not eat any part of it, he takes an oath with regard to how much he paid and then takes his expenditures.

See the source image

Further along, the Gemara poses the question as to what happens if the owner of the field is a קְטַנָה pledged be her mother or older brothers to a man in marriage, and he spends money on improving the land so that it yields better fruit. Specifically, what happens if the קְטַנָה invokes her right to first refusal (מִיאוּן) and walks away from the marriage?

אָמַר רַב יַעֲקֹב אָמַר רַב חִסְדָּא: הַמּוֹצִיא הוֹצָאוֹת עַל נִכְסֵי אִשְׁתּוֹ קְטַנָּה — כְּמוֹצִיא עַל נִכְסֵי אַחֵר דָּמֵי. מַאי טַעְמָא — עֲבַדוּ בַּהּ רַבָּנַן תַּקַּנְתָּא, כִּי הֵיכִי דְּלָא נִיפְסְדִינְהוּ

In this event, the חַכָמִים ruled that the husband is indeed compensated for his expenses. The reason they made an exception was that he was the adult responsible for its maintenance and growth, and he’ll take better care of the property if he has a vested interest.

Next we arrive at a case where a woman gains from an inheritance, but the amount coming to her is less than a windfall. The husband may find himself in a predicament where the cost of travel expenses to claim the inheritance may exceed the value of what his wife inherited:

הָהִיא אִיתְּתָא דִּנְפַלוּ לַהּ אַרְבַּע מְאָה זוּזֵי בֵּי חוֹזָאֵי, אֲזַל גַּבְרָא אַפֵּיק שֵׁית מְאָה אַיְיתַי אַרְבַּע מְאָה. בַּהֲדֵי דְּקָאָתֵי, אִיצְטְרִיךְ לֵיהּ חַד זוּזָא וּשְׁקַל מִנַּיְיהוּ. אֲתָא לְקַמֵּיהּ דְּרַבִּי אַמֵּי? אֲמַר לֵיהּ: מַה שֶּׁהוֹצִיא — הוֹצִיא, וּמַה שֶּׁאָכַל — אָכַל

There was a certain woman who had four hundred dinars bequeathed to her in Bei Ḥozai, a remote location in Babylonia. The man, her husband, went and took with him six hundred of his own dinars for travel expenses and brought back with him four hundred. (Not a very good investment.) While he was coming back he required one dinar, which he took from the money he had collected. He came before רַבִּי אַמֵּי for a ruling, who declared: “That which he spent he has spent, and that which he ate he has eaten. He has benefited from one dinar of her money and spent six hundred of his own, and neither amount can be claimed.”

At this juncture I’ll interject another nice observation by Rabbi Friedman from The Transformative Daf, entry #80 on Cost-Benefit Analysis.

Cost Benefit Analysis

“In this story, it was nice of the husband to go off traveling to fetch the insurance money for his wife, but he spent more in the process than he actually collected. What was the point of that? Clearly not much of a businessman, he failed to perform a cost-benefit analysis prior to setting out on his journey.

Every decision we make in life entails a cost-benefit analysis. Or at least, it should. Unfortunately, most of the time we tend to jump into what sounds like a good idea without considering whether the cost might outweigh the benefit. “

Rabbi Friedman goes on to say that particularly during this time of the year, we are required to do a cost-benefit analysis regarding spiritual investments. That is mindful of a phrase that I think I coined a number of years back (my apologies to the appropriate source if I inadvertently pilfered it from someone) that it is important to diversify and continually re-balance one’s spiritual portfolio.

About Leonard J. Press, O.D., FAAO, FCOVD

Developmental Optometry is my passion as well as occupation. Blogging allows me to share thoughts in a unique visual style.
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2 Responses to Blog Yomi – Kesubos #78/Daf 79

  1. doctuhdon says:

    Marvelously lucid analysis of complex topics with outstanding graphics!

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