Bava Kamma 89b (פט:) — the Talmud in English

Why should there be any concern? After all, even

if she were to waive it with regard to her husband, he would not incur any loss

and the injured party would lose nothing,

for even now she is giving him nothing [This is so even now, when she does not sell him her ketuba, she is giving him nothing. Why, then, should we not say: In any event, let her sell her ketuba to the injured party, so that if she does not waive it in favor of her husband, the injured party will profit? Why did you exempt her entirely? It may be answered:]

In the end, in every case involving her husband, he will certainly

waive it

for him,

waive

it for him; and if so, all our effort will have been for nothing,

and we do not trouble the court for no purpose

[for nothing]

and we do not trouble it.

And we challenge this:

Rather,

according to your statement, that the usufruct value of the ketuba is encumbered to the injured party, and the only reasons we refrain from collecting it for the injured party are the purchaser’s potential loss and the effort required of the court.

This

that is taught

and likewise

when she injured her husband, she did not forfeit her ketuba,

meaning that she is exempt from paying him for the damage as long as he has not divorced her, and she need not relinquish her ketuba in exchange for payment of the damages.

And the following difficulty arises:

Why

does she not forfeit her ketuba on account of the injury?

Let her sell her ketuba to her husband for its usufruct value [let her sell her ketuba to her husband for its “usufruct value”],

and whatever her husband gives her for the usufruct value of the ketuba, let her pay to her husband

with this payment for the injury,

as payment for having injured him.

For

even

if she waives

her ketuba

with regard to her husband, there is no

any

loss

to the husband. Why, then, does the beraita teach that she does not forfeit her ketuba?

And we answer:

This

beraita

is certainly the opinion of Rabbi Meir, who says: It is prohibited for a person to keep his wife even for one hour without a ketuba.

The Gemara explains:

And

what

is the reason

for Rabbi Meir?

What

is it?

So that she will not be insignificant in his eyes to divorce her [to divorce her],

and

here,

if she sells him her ketuba in payment of his damages, it will be easy for him to divorce her, because he will suffer no financial loss if he divorces her, since

he divorces her

[her]

and collects the damages from her through the injury [he collects her ketuba from her on account of the injury];

that is, he will not pay her a ketuba.

Therefore it is taught: Although she injured her husband, she did not forfeit her ketuba; that is, she does not sell him her ketuba on account of the damage. Rather, she is exempt from paying him until she is divorced.

And we refute this:

If so,

if the fact that the ketuba serves as payment for his damages is considered to make it easy for him to divorce his wife,

even now,

even if she is presently exempt from paying, it is nevertheless easy for him to divorce her, because

he divorces her and collects the damages from her through the injury,

and he will have no financial expense if he divorces her!? And we answer: With what are we dealing here?

For example, when her ketuba is greater

[when the amount of her ketuba is greater] than the amount of the damages, and it is not easy for him to divorce her, since

because of that small amount

[the small amount of money represented by the damages]

the husband does not lose

anything

substantial

[a large sum of money].

The standard amount of the ketuba that the husband undertakes to pay his wife [the principal ketuba] is two hundred zuz if he married her as a “virgin,” and one hundred zuz [a maneh] if she was a widow or divorcee. He is permitted to write his wife an “addition” beyond this amount, which he is obligated to pay her by law.

And

the Gemara explains:

If her ketuba is greater than the Torah-mandated ketuba

[if he wrote his wife an “addition” beyond the “principal ketuba”], there is no reason to exempt her from paying, because

let us leave her with the Torah-mandated ketuba, and let her sell the remainder to him as payment for the injury

[she can sell the “addition to the ketuba” to her husband, while he will remain obligated to pay her the “principal ketuba”].

Rather, with what are we dealing here?

For example, when her ketuba is not greater

[her ketuba is not a large amount]

than the Torah-mandated ketuba,

and nevertheless it will not be easy for him to divorce her, since

her injury amounts to

only

four zuz,

while the amount of her ketuba, if she is a widow, is one hundred zuz.

Because of four zuz

that he will receive from her as payment for the injury,

he will not

divorce her, because then

he will lose

twenty-five

sela. [which are one hundred zuz].

And we refute this:

But this

that is taught

in the beraita: Just as she may not sell

her ketuba

while she is under his authority

[under her husband],

so she does not forfeit it while she is under his authority.

It initially entered our minds that this is what it means: Just as she cannot sell her ketuba while she remains under his authority, so she does not forfeit any part of her ketuba for any injury or damage that she causes while she remains under his authority.

Accordingly, we ask: How could the tanna state categorically that she does not forfeit her ketuba if she injured her husband,

when at times it can be found that she does forfeit part of it

[sometimes it will be found that she forfeits] part of her ketuba,

and what is the case? For example, when her ketuba is greater than the Torah-mandated ketuba,

for then we leave her with the amount of the Torah-mandated ketuba, and she sells the remainder to her husband in payment for the injury. Why, then, did the tanna state categorically that she does not forfeit it!?

a. One of the conditions of the ketuba is that the male children inherit their mother’s ketuba if she dies during her husband’s lifetime, and afterward divide the rest of the inheritance equally with their brothers, the sons of another wife. This inheritance is called “the ketuba of male children.”

b. Even if the woman sold her ketuba for its usufruct value and afterward died and her husband inherited her, her sons inherit from their father “the ketuba of male children.” We do not say: Since, had their mother been alive, she would not have received her ketuba, because the purchaser acquired it, her sons should likewise not receive her ketuba now. Rather, her sons inherit her ketuba even in this case.

The reason they do not lose out after their mother acted improperly with regard to her ketuba and forfeited it is that her sons can say: Our mother needed money and was compelled to sell her ketuba; she did not intend to forfeit it.

Rava said

[he answered]:

Rava:

The

latter clause

does not deal with a woman who sells her ketuba to her husband. Rather,

we have come

[we have come to discuss]

“the ketuba of male children.”

And this is what it teaches

[this is how the beraita is to be understood]:

Just as a woman who sells her ketuba to others

and dies

does not forfeit

to her sons

“the ketuba of male children,”

and

what is the reason?

For we say:

It was money that compelled her

[the need for money compelled her] to sell the ketuba, and we do not regard her as having acted improperly with regard to her husband’s ketuba.

So too, when she sells her ketuba to her husband,

she does not forfeit

to her sons

“the ketuba of male children.” What is the reason?

Because we say:

It was money that compelled her.

The Gemara now returns to “the enactment of Usha” mentioned above.

Let us say [

let us say]:

“the enactment of Usha”

is a dispute between

tannai

m

?

If a master injures his Canaanite slave and knocks out his tooth or blinds his eye, the slave goes free.

For one beraita teaches:

a beraita:

The slaves of “

the property of

usufruct”

belonging to a woman, even though the husband consumes the produce,

go free

they

through a tooth or an eye at the woman’s hand

but not at the man’s hand,

meaning, the woman is the “owner” of the slaves, and if she injures them and knocks out their tooth or blinds their eye, they go free; but the man is not considered their “owner.” Therefore, they do not go free if he injures them.

And another beraita teaches

a beraita: The slaves constituting usufruct property do not go free through a tooth or an eye,

neither at the man’s hand nor at the woman’s hand,

not through the husband who injures them, and not through his wife.

They thought [

the members of the academy thought to say]:

Everyone agrees that the husband’s “ownership of the produce”

which he possesses

is not considered like “ownership of the body,”

and thus the husband’s right to the “produce” of his wife’s usufruct property does not make him the owner of the property.

Is it not that this is the point over which

the two beraitot

differ:

The one who says that they go free through a tooth or an eye

at the woman’s hand, does not accept the enactment of Usha,

and the woman is therefore the “owner” of the slaves, since her husband has only “ownership of the produce,” which is not considered “ownership of the body”?

And the one who says

that the slaves do not go free through a tooth or an eye

neither at the man’s hand nor at the woman’s hand,

his reason is that

he accepts “the enactment of Usha,”

and therefore they do not go free even at the woman’s hand, since the Sages granted force to the husband’s lien, making it like “ownership of the body.”

It follows, then, that the tannaim disputed whether “the enactment of Usha” was instituted or not.

And we reject this:

No,

the tannaim did not dispute the matter, and

everyone accepts “the enactment of Usha.”

There is no dispute here between the two beraitot,

rather,

they are speaking about two different periods:

Here [

the one who says “at the woman’s hand and not at the man’s hand”] is speaking

before “the enactment

of Usha.” At that time, indeed, the woman was the “owner” of the slaves constituting usufruct property, and they would go free through her agency if she injured them by knocking out a tooth or blinding an eye.

Here [

the one who says “neither at the man’s hand nor at the woman’s hand”] is speaking

after the enactment,

when the Sages strengthened the husband’s lien, making his ownership of the produce like ownership of the body. The woman is therefore not considered the “owner” of the slaves, and consequently the slaves do not go free through her agency by a tooth or an eye.

And if you wish, say instead: Both this and that [

the two beraitot] are speaking

after the enactment, and they accept “the enactment of Usha.”

Rather,

if you ask,

with regard to the one who says: “at the woman’s hand and not at the man’s hand,” what is the reason?!

After the enactment of Usha, the woman’s “ownership of the body” is not sufficient for her to be considered the owner?!

It may be said: This tanna holds, with regard to going free through a tooth or an eye at the woman’s hand,

in accordance with what

was stated by

Rava

elsewhere.