Ketubot 83a (פג.) — the Talmud in English

The Gemara, the Talmudic discussion of the Mishna, explains that our Mishna deals with a husband who wrote this to her while she was still betrothed, before the marriage. After the marriage, however, he cannot withdraw his rights to her property without a formal act of acquisition. Tosafot—the collection of commentaries by the Tosafists—raise the following difficulty: Does the Gemara in Bava Batra (42a) not imply that even if he says only, “I have no legal claim or involvement in your property,” this wording is effective to remove his right even to the produce? Tosafot answer that the Gemara there is also speaking of a case in which he said, “I have no legal claim or involvement in your property or its produce”; the Gemara simply did not feel it necessary to state the entire wording at length. See the novellae of Rabbi Akiva Eiger, who resolves Tosafot’s difficulty.

The Ran raises the following difficulty: Since the Gemara establishes our Mishna as dealing with a husband who wrote this to her while she was still betrothed, she could sell the property even without his withdrawal, as explained above (78a). It was only later that the Sages agreed and concluded that the husband could take the property back from the purchasers; as a matter of law, however, she could sell it, as explained there. If so, the Mishna’s difficulty returns: Why did he write to her, “I have no legal claim or involvement”? The Ran answers: One can say that the withdrawal was effective regarding property that would come into her possession after the marriage. According to everyone, a sale of such property would be invalid; but if he withdrew before the marriage, her sale would be valid. Tosafot above (78b), however, disagree with the Ran and hold that he cannot withdraw from property that will come into her possession after the marriage. They resolve the Ran’s difficulty by saying that our Mishna follows the view of the Sages mentioned in that passage, who hold that even if she sells the property while betrothed, her sale is invalid. The Rosh brought proof for Tosafot’s view from the Jerusalem Talmud, which leaves unresolved whether one can withdraw from property that has not yet come into her possession. Ramban rejected his proof and wrote that the Jerusalem Talmud is speaking of a case in which he wrote this to her after the marriage. The Jerusalem Talmud was uncertain whether the principle that “his hand is like her hand,” meaning the husband’s rights in his wife’s property, applies only to property currently in her possession—so that he cannot withdraw from that property because he has already acquired rights in it—but he can withdraw from property that will come into her possession in the future. Or perhaps, since his hand is like her hand, her domain is considered acquired by him as well, and he cannot withdraw even from property that will come into her possession in the future, since he has already acquired rights in her domain and can divest himself of those rights only through an act of acquisition. Before the marriage, however, he can certainly withdraw even from property that has not yet come into her possession.

Rabbi Yehuda’s reason is that although he withdrew from the produce, it is still considered usufruct property. Therefore, it will be sold, land will be purchased with the proceeds, and the husband will consume the produce of that land. According to the first tanna, however, since he said “in your property,” he withdrew completely from it. Rambam likewise writes (chapter 23 of the Laws of Marriage, halakha 3) that the woman is compelled to sell the produce, land is purchased with the proceeds, and the husband consumes the produce of that land. Tosafot similarly explain (Bava Batra 51b, s.v. “As a gift”) regarding a husband who gave a gift to his wife: although he does not consume the produce, the produce is nevertheless considered usufruct property, and it will be sold, land will be purchased with the proceeds, and the husband will consume the produce of that land. The Rosh, however, ruled regarding a husband who gave a gift to his wife that he does not consume the produce at all, even in the manner of usufruct property. Likewise, in the case before us, the produce is not considered usufruct property, and the woman is not compelled to sell it. Rather, if she sets aside some of the produce, it is sold, land is purchased with the proceeds, and the husband consumes the produce of that land. Rabbi Elchanan Wasserman raised the following difficulty in Kovetz Shiurim: If the halakha is that regarding a gift, even if land was purchased with the proceeds, the husband does not consume its produce, then here too, if she voluntarily sets aside some of the produce, why should she sell it and the husband consume the produce of the land? What difference is there if she voluntarily purchased land with it in order to set it aside? He left the matter unresolved. The Gemara leaves unresolved whether it is specifically necessary to write “forever,” or whether even if he did not write “forever,” he does not consume the produce of the produce.

This is Rashi’s interpretation. Tosafot (s.v. “They performed an act of acquisition”), however, explain that this is not referring to a field owned by partners, but to an ordinary person who says this to another person regarding that person’s field. Ritva writes that if he had used the language of an acknowledgment or a gift, it would have been effective even without an act of acquisition. Here, however, the deficiency is that he used inferior wording, which does not imply an acquisition. Tosafot likewise explain that the deficiency results from his having used inferior wording.

Mordekhai raises the following difficulty: Why can he not withdraw even after the marriage? Is a waiver not effective without an act of acquisition? If so, the withdrawal should be effective as a waiver. He answers that since the produce does not yet exist and has not yet come into his possession, he cannot withdraw from it. Rashi, however, appears to have precisely indicated that the deficiency in the wording “I have no legal claim or involvement” is that it is not the language of a gift; had he used proper wording, the withdrawal would have been effective as a waiver even without an act of acquisition.

The Mishna above (80b) discusses a woman awaiting levirate marriage—a woman whose husband died without children and who awaits his brother, so that he may perform levirate marriage with her—who inherited property and then died. The Mishna leaves unresolved who inherits her: her father’s family, since her husband is no longer alive to inherit her, or her husband’s heirs, meaning his brother, the levir, who stands in his place. Beit Shammai and Beit Hillel disagree. According to Beit Shammai, the division is preferable, and the woman’s heirs divide the property with the husband’s heirs. According to Beit Hillel, the original presumption is preferable, and the property remains in the possession of the woman’s heirs—that is, her father’s family. Abaye established that their dispute concerns property that came into her possession while she was married. Since the husband’s hand is like her hand, when the husband died and his brother came to perform levirate marriage with her, and she then died, the father’s heirs and the husband’s heirs come to inherit her simultaneously, and therefore they divide the property. Rava, however, held that if the property came into her possession while she was under the husband’s authority, the husband’s hand is stronger than hers, and her heirs have no claim to the property.

It was asked of them:

The students in the beit-midrash deliberated: If one says to his fellow, “I have no legal claim or involvement in this field,” and

made a kinyan with him

concerning his statement by means of a kinyan sudar ,

what is the halakha?

Did he intend to transfer ownership of the land itself through the kinyan, in which case the land is indeed acquired? Or perhaps his intention in making the kinyan was only to uphold his statement, “I have no legal claim or involvement,” and since this formulation is ineffective, the kinyan was ineffective as well .

Rav Yosef said:

In this case, it is certain that

from the

wording

“I have no legal claim or involvement,” he made a kinyan with him.

And this formulation is ineffective.

However,

Rav Naḥman said:

If they made a kinyan, it is certainly the case that

he made a kinyan concerning the land itself.

And the kinyan is effective.

Abaye said: Rav Yosef’s statement is reasonable

that he said the kinyan is ineffective—