Commentary for Ketubot 8:9

האשה. עד שלא תתארס – and she became betrothed.

Introduction Chapter eight discusses a wife’s ability to own money independently of her husband. Possessions that come into her hands while married belong to her, but her husband has usufruct on them. Therefore, since he too has rights, she cannot sell them.

ב"ש אומרים תמכור – while she is betrothed, but not from when she gets married.

If a woman came into the possession of property before she was betrothed, Bet Shammai and Bet Hillel agree that she may sell it or give it away and her act is legally valid.
He replied, “We are embarrassed with regard to her new possessions and you wish to roll over on us her old ones as well?”
He replied, “We are embarrassed with regard to her new possessions and do you wish to roll over on us her old ones as well?” Money that a woman receives before she is betrothed is hers. She may give it away or sell it, even after she has been betrothed. However, as we will learn later, once she is married she no longer can do so.

הואיל וזכה באשה – that she is his betrothed,

If she came into the possession of property after she was betrothed, Bet Shammai says: she may sell it, and Beth Hillel says: she may not sell it. Both agree that if she had sold it or given it away her act is legally valid. Rabbi Judah said: they argued before Rabban Gamaliel, “Since the man acquires the woman does he not also acquire her property?” If she comes into possession of property after betrothal, but before marriage, Beth Shammai maintains that she may still sell or give away the property. However, Beth Hillel says that a priori she does not have the right to do so. The reason is that once she is betrothed she will likely be married, and at the point of marriage her husband will have the rights to the usufruct from her property. Therefore, already at betrothal Beth Hillel says she may not sell her property. However, both Beth Hillel and Beth Shammai agree that if she goes ahead and sells her property anyway, the sale is valid. Rabbi Judah presents an argument against this previous line, an argument that had been presented in front of Rabban Gamaliel a generation earlier. The Sages argued that since the husband has already, at the point of betrothal, acquired the woman as his wife, should he not also, at that point, acquire her property. In other words, even if she had sold it, these Sages believe that the sale should be annulled. Rabban Gamaliel says that he is distressed enough that according to the halakhah, if a woman came into possession of property after marriage and then sold it, the sale is annulled. This halakhah does not seem reasonable to Rabban Gamaliel, but he evidently does not have the ability to change it. However, he argues that what these Sages want to do is expand the same halakhah and apply it to the point of betrothal as well. This statement, which also appears at the end of this mishnah, provides an interesting glimpse of rabbinic authority to modify Judaism versus their acceptance of tradition. The rabbis in the mishnah are receivers of traditions which certainly predate them. While these traditions are in their minds authoritative, this does not mean that they blindly accept them. As much as they do accept these traditions, they also, at least occasionally, limit their applicability and recognize the problematic aspects to the tradition.

should he not take possession of her property, in astonishment.

If she came into the possession of property after she was married, both agree that, even if she had sold it or given it away, the husband may seize it from the buyers. If she comes into possession of property after marriage, everyone agrees that she may not sell or give the property away and that even if she does the sale is invalid. The husband can then go to the purchaser and reclaim that which his wife sold. You can imagine that this halakhah would make it difficult for women to sell things in their society.

על החדשים – [inheritance] that fell/came to her from when she got married, we are confounded: What did the Sages see to state that if she sold them or gave them away, the husband removes [them] from the hand of those who bought the property, but rather, that you burden us with property that fell/came to her while she was still betrothed meaning to say, that if she sold it, her sale is void, because the husband took possession of them.

[If she came into possession] before she married and then she married, Rabban Gamaliel says: if she sold it or gave it away her act is legally valid. Rabbi Hanina ben Akavya said: they argued before Rabban Gamaliel, “Since the man acquires the woman does he not also gain acquires her property?” If she came into possession of property before the marriage and then got married, she may not a priori sell the property, but according to Rabban Gamaliel, if she nevertheless does, the sale is valid. According to Rabbi Hanina ben Akavya, the argument brought in front of Rabban Gamaliel mentioned above, was actually in connection to this case, and not in connection to the case of a woman who sold property after betrothal but before marriage.

נכסים ידועים לבעל ונכסים שאינן ידועים – there are those who interpret “known property” from land, and that which is “not known [property]” as movable property and there are those who state that both (i.e., landed property and movable possessions) are known and these are the ones that are not known: all [the while] that she sits/dwells here and property fell/came to her abroad. And the Halakhic decision is that whether [we are speaking of] property that fell/came to her until she had become betrothed, or whether they fell/came to her from after she was betrothed, if she sold them after she got married, the husband removes [them] from the hand of the purchaser – the usufruct during her lifetime and the body of the land after her death. And the Halakha is according to Rabbi Shimon who divides between property that is known to the husband to possessions which are not known.

Introduction In this mishnah Rabbi Shimon disagrees with the opinion in the previous mishnah that states that under certain circumstances a woman cannot sell property, and that if she does, the sale is void. As we shall see, Rabbi Shimon qualifies that statement.

Rabbi Shimon distinguishes between one kind of property and another: Property that is known to the husband [the wife] may not sell, and if she has sold it or given it away her act is void; [Property] which is unknown to the husband she may not sell, but if she has sold it or given it away her act is legally valid. According to Rabbi Shimon, if the husband knew about the property that the woman had received, she may not sell the property and if she does, the sale is invalid. The reason for this is that if this was property she had received before the marriage, and her husband knew about it, he might claim that he married her because of that money. As much as this does not sound like a good reason to get married, it certainly was a common motivation in those days (and in ours as well) and is a valid complaint of the husband’s. However, if the husband did not know about the property and then she sold it, while she should not have done so, the sale is still valid. In this case, since he didn’t even know about the money, he can’t claim that he married her because of it.

שמין אותן – for he (i.e., Rabbi Meir) holds that what grew in his domain, they are usufruct, and what didn’t grow in his domain, they are the principal; therefore, what that the monetary [value] of the land is expensive now for this produce, it is principal, and he needs to give her the money and purchase with them land and he eats its usufruct.

Introduction Our mishnah discusses what is to be done with money that a wife somehow receives, for instance through an inheritance, while she is married. The general rule is that the money is used to buy land and then the woman receives title to the land and the husband is entitled to the usufruct, that is the money that is earned through use of the land.

וחכמים אומרים – even those that did not grow in his domain, the status of usufruct has been given to them for since that the land belongs to her, and Halakha is according to the Sages.

[If a married woman] came into the possession of money, land should be bought with the money and the husband is entitled to the usufruct. Section one sets out the general rule about money a wife receives while married. Money cannot be divided up as easily into principle and interest as can land, even though today we are accustomed to such a division. Were the husband to use the money there would be no interest. Were he to merely hold onto the money, there would be no usufruct. Therefore, land is bought so that there is both usufruct and principle. Today, we might say that he could put the money into the bank and use the interest, in the same way that an endowment fund works.

[If she came into the possession of] produce that was detached from the ground, land should be bought and the husband is entitled to the usufruct. Produce detached from the ground is basically equivalent to money, and therefore it is sold in order to buy land.

[If it was] produce attached to the ground Rabbi Meir says, the land is to be valued as to how much it is worth with the produce and how much without the produce, and with the difference land should be bought and the husband is entitled to the usufruct. The Sages say: produce attached to the ground belongs to the husband and produced detached from it belongs to the wife; [with the proceeds from the latter] land should be bought and the husband is entitled to the usufruct. The mishnah now discusses a more complex case, where she inherited land with produce attached to the land. According to Rabbi Meir, the value of this produce is part of the principle, and therefore that principle must be used to buy land, from which he receives only the usufruct. The way that the value of the produce is evaluated is by estimating the value of the land without the produce and the value of the land with the produce. The difference between these two amounts is used to buy land, and then he receives the usufruct. For instance if the land was worth 1000 zuz without produce and then 1200 with produce, the land is sold in order to buy a piece of land worth 1200. From this land the husband receives the usufruct. The Sages rule that the produce attached to the land belongs to the husband. This is considered usufruct, even though this produce was not grown while his wife owned the land. Since it is “usufruct” its value goes straight into his pocket. Only the already-harvested produce belongs to her and is used to buy land, from which he receives usufruct.

ביציאתה – if he comes to divorce her.

Introduction Rabbi Shimon teaches a general rule to help govern what belongs to the husband and what belongs to the wife.

פירות המחוברים לקרקע בכניסתה שלו – meaning to say, at the time of their falling/coming [into inheritance] they are his (i.e., the husband’s) according to the words of the Sages, but there is a difference between the Sages and Rabbi Shimon regarding produce that was attached [to the ground] at the time of her going forth [from the marriage; i.e., divorce}, but the Sages do not speak of them and they don’t hold [this way] regarding that that Rabbi Shimon stated, that when she went forth [from the marriage because of divorce], whatever grew in his domain is his, but the Halakha is according to Rabbi Shimon.

Rabbi Shimon says: In respect to that in which the husband is at an advantage when he marries his wife he is at a disadvantage when he divorces her and in respect to that in which he is at a disadvantage when he marries her he is at an advantage when he divorces her. Produce which is attached to the ground is the husband’s when he marries his wife and hers when he divorces her, Produce that is detached from the ground is hers when she marries but the husband’s when she is divorced. In this mishnah Rabbi Shimon teaches a simple way of remembering which produce belongs to the husband and which produce belongs to the wife during marriage and after its dissolution. When the marriage begins, and as part of her dowry she brings a field that has on it produce attached to the ground, that produce is considered to be like produce grown after the marriage, and it belongs to him. This is the opinion of the Sages in the previous mishnah. When the marriage is dissolved through death or divorce the produce attached to the ground remains the property of the woman, as does the ground itself. In an opposite direction, produce which is detached from the ground is hers when she is married. If she brings this as part of her dowry, then it is used to buy land, as we learned above. However, at the time of divorce, detached produce already belongs to the husband and he need not return it to his wife.

רבן שמעון בן גמליאל אומר לא תמכור – she can prevent/detain it and the Halakha is according to him.

Introduction The first section of this mishnah deals with a woman who inherits slaves to old to work or trees that are too old to produce fruit. The second part of the mishnah deals with the expenditures that the husband puts out in taking care of his wife’s property.

רבי יהודה אומר לא תמכור – and the Halakha is according to him.

If she inherited old slaves or female slaves, they are to be sold, and land purchased with the proceeds, and the husband can enjoy the usufruct. Rabban Shimon ben Gamaliel says: she need not sell them, because they are the glory of her father’s house. If a woman inherited old slaves who can no longer perform real work, the husband might want to sell them so that he will receive greater usufruct. According to the first opinion in the mishnah, he has a right to sell these slaves and to use the proceeds to buy land. In such a manner her property will also be preserved for the slaves would have soon died in any case. However, one doubts whether the sale would be very profitable in any case. Rabban Shimon ben Gamaliel rules that the woman can demand that the slaves be kept, since they are a sign of her family’s ancestral wealth. Although they cannot now perform a significant amount of work, their connection to the family and to the family’s honor gives the woman the right to retain them.

קימעא – a small amount and even just a little bit.

If she inherited old olive-trees or vines they must be sold, and land purchased with the proceeds, and the husband can enjoy the usufruct. Rabbi Judah says: she need not sell them, because they are the glory of her paternal house. This section teaches the same rule with regard to old vines and olive trees. Again the husband would want to sell them to increase his usufruct.

ישבע במה הוציא ויטול – and this oath is similar to the Torah and these words [regard] that there was improvement/gain corresponding to the [financial] outlay or more, but if the outlay was greater than the improvement/gain, he should take the oath of the Torah that he made an outlay corresponding to the improvement/gain, and he should take corresponding to the improvement/gain and the rest he loses. And all of this [occurs] when the husband divorced her. But if she rebelled, whether the husband consumed or whether he did not consume, he should take an oath how much he spent and take corresponding to the improvement/gain and in property of mort-main, all the improvement/gain belongs to the husband, for we say, that if he increased [his outlay], he increased for himself.

He who spent money in connection with his wife’s property, whether he spent much and consumed little, [or spent] little and consumed much, what he has spent he has spent, and what he has consumed he has consumed. If he spent but did not consume he may take an oath as to how much he has spent and receive compensation. If a husband has expenditures in managing his wife’s property, he cannot recoup those expenditures from the wife’s property (meaning the principle). However, this is only if he also consumes the usufruct. If he does not, he may receive compensation by taking an oath as to how much he spent. The Talmud teaches that he cannot recoup more than the gain in the value of the property. In other words, if he dug a irrigation system that cost 100 zuz, and thereby raised the value of the field by 75 zuz, he only receives 75 zuz. If he raised the value by 125 zuz, he receives 100, the amount of his expenditures.

שנפלו לה נכסים – from her father’s house/estate while she is still a woman awaiting levirate marriage with her dead husband’s brother.

Introduction This mishnah appeared word for word in Yevamoth 4:3. I have replicated my commentary here for convenience sake. Despite the fact that this is its second appearance, it is likely that it was first taught in this context, where it matches the literary pattern of the rest of the mishnah. Only later was it brought to Yevamoth.

מה יעשו בכתובתה – [whether it is] a Maneh, or two-hundred and the supplement and the dowry that she brought in to him, go in with her [when she gets married], and when she goes out from her husband (i.e., gets divorced), go out with her and he has accepted upon himself surety (which may be resorted to in case of non-payment).

If a woman awaiting yibbum came into possession of money: Beth Shammai and Beth Hillel agree that she may sell it or give it away, and that her act is legally valid. Beth Shammai and Beth Hillel agree that a shomereth yavam can sell new property that has come into her hands since the death of her first husband. She does not need the permission of the yavam, because he has not married her.

ובנכסים הנכנסין והיוצאין – usufruct that when she enters [into marriage], they enter with her and when she leaves from her husband, they leave with her.

If she dies, what shall be done with her ketubah and with property that comes in and goes out with her? Beth Shammai says: the heirs of her husband are to share it with the heirs of her father; Beth Hillel says: the property is to remain with those in whose possession it is, the ketubah is to remain in the possession of the heirs of the husband and the property which comes in and goes out with her remains in the possession of the heirs of her father. If she dies, there is a dispute between the two houses concerning her inheritance. Usually a husband inherits his wife, but in this case she only had a yavam who had not yet performed yibbum. He is not fully her husband. Beth Shammai holds that the heirs of her husband, meaning the yavam who inherits from his dead brother, splits the money with the heirs of her father. The heirs of the father inherit since an unmarried woman is inherited by her father. Beth Hillel does not split the money evenly. Rather, each part of the inheritance remains where it is presumed to be. Since the ketubah, meaning the money paid from the husband to the wife upon death or divorce, is still with the husband’s estate, the husband’s inheritors collect this money. The dowry is in the wife’s possession, since the husband cannot sell it. Therefore the wife’s father’s inheritors inherit this property.

בית שמאי אומרים יחלוקו יורשי הבעל עם יורשי האב – for she was doubtfully married to the levir and he takes possession of one half of her inheritance from doubt.

נכסים בחזקתן – the mort-main property are in their legal status/presumption and it is not explained in the possession of whom - if it is in the possession of the heirs of the husband, for since surety/property that may be resorted to in the event of non-payment is upon him or if [it is in the possession of] the heirs of the wife, which were hers, and in the fourth chapter of [Tractate] Yevamot (Mishnah 3), you will find this Mishnah.

ילקח בהן קרקע – because her Ketubah is based upon the property of her first husband; therefore, the property of the dead is surety for her Ketubah but the levir eats from the usufruct and if he performs levirate marriage with her, and [and holds] that movable possessions are mortgaged to the Ketubah.

Introduction Our mishnah continues to teach laws regarding the potential yavam’s rights with his shomeret yavam’s (the woman whose husband has died) property. The yavam cannot make free use of this property because the woman has a lien on it from her ketubah.

שמין אותם – all that grew in the domain of the dead [brother] is surety to the Ketubah.

If his brother left money, land shall be bought with it and he enjoys the usufruct.
Rabbi Meir says, the land is to be valued as to how much it is worth with the produce and how much without the produce, and with the difference land should be bought and the husband is entitled to the usufruct. The shomeret yavam has a lien on all of her dead husband’s property, meaning it is collateral for her ketubah. Therefore, the yavam does not have a right to sell, give away or otherwise use up this property. If this property was land, the yavam has a right to the usufruct but not to the principle. If the property was money, the money is used to buy land and then the yavam can use the usufruct.

וחכמים אומרים פירות המחוברים לקרקע שלו – In the Gemara (Tractate Ketubot 82a) it raises the question: but aren’t all his landed property a surety and a pledge for her Ketubah? And it answers (in the words of Resh Lakish): Read, “belongs to her” (the Sages’ dispute is limited to detached produce and money which, they maintain, as movables and not pledged to the Ketubah).

[If the his brother left] produce that was detached from the ground, land shall be bought [out of the proceeds] and he enjoys the usufruct.
The Sages say: produce attached to the ground belongs to the husband but that which is detached from the ground belongs to the first person who takes it: Produce that is detached from the ground is treated like money; it too is sold and the proceeds are used to buy land, from which the yavam benefits from the usufruct.

כל הקודם זכה – for they hold that movables are not mortgaged to the Ketubah other than if she took hold of them and we require from the lifetime of the husband is the taking hold/possession and the same law applies regarding money, for is the difference of money from detached produce, and the Halakha is according to the Sages.

[If it was] produce attached to the ground: ( If he [seized it] first he acquires ownership; and if she [seized it] first land shall be bought with it and he enjoys the usufruct. If the produce was attached to the ground, Rabbi Meir says this produce is also part of the original husband’s property which had on it a lien from her ketubah. Therefore, it is evaluated and in essence sold to buy more land. This is the same method that Rabbi Meir stated above in mishnah three. According to the Sages the produce which is attached to the ground belongs to the husband. The Talmud emends this to read “to her”, meaning that since this produce grew while owned by her original husband, it to is liable for her ketubah. There is no debate between the Sages and Rabbi Meir on this issue. The Sages dispute, however, with regard to the produce which is detached from the ground. In their opinion, this produce does not have on it a lien from her ketubah, for ketuboth are not collectable from movable property (a category that includes most things that are not land). Therefore, if the yavam takes this produce it is totally his. If the woman takes the property, it now belongs to her and it is sold, the husband receiving the usufruct and the woman the principle. According to most commentators, the Sages hold that the same is true for money; there is no lien on it from her ketubah and therefore it is “up for grabs”.

הרי היא כאשתו – for when he divorces her with a Jewish bill of divorce and restores her [as his wife], and we don’t speak about (Deuteronomy 25:5): “and perform the levir’s duty,” the All-Merciful said, and still the first levirate marriages are upon her and a Jewish bill of divorce is not sufficient for her, and that is so, that she was divorced, we would say that it a Mitzvah that the All-Merciful cast upon her that when she performs it and established upon her the prohibition of the wife of a brother , and he cannot bring her back, this comes to teach us that the All-Merciful stated (Deuteronomy 25:5): “he shall take her as his wife and perform the levir’s duty.” Since he took her, she is like his wife.

If he married her she is his wife in every respect save that her ketubah remains a debt on her first husband’s estate. Once he marries her, she is his full wife in all matters, except that she collects her ketubah from her first husband’s property. The Talmud relates that if the first husband did not have any property, the yavam must give her a ketubah.

כל נכסיו – that he inherited from his brothers is surety for her Ketubah.

Introduction This mishnah is a continuation of yesterday’s mishnah, in which we learned that the widow has a lien on the dead brother’s property. The yavam cannot even pay off her ketubah and then use this property.

גירשה אין לה אלא כתובה – but all the while that he did not divorce [her], all of his proerpty is mortgaged to her.

He cannot say to her, “Behold your ketubah lies on the table’, rather all of his property has on it a lien from her kethubah. The yavam cannot say to his yevamah that he has designated for her a specific piece of property for her ketubah and that he therefore can do what he pleases with the remainder of his brother’s property. Rather he cannot sell any of his brother’s property.

הרי היא ככל הנשים – for a person who divorces his wife and restored her [as his wife In remarriage] on the condition of her first Ketubah he has remarried her and it is necessary to teach us that regarding the widow of a brother who died without issue that she should not say that she is his wife, for he wrote for her a Ketubah from his money, but his widow of a brother who died without issue, who is not his, he wrote for her other than the property of her first husband, which were pledged and surety when he divorced her and restored her [as his wife]. I might sya this is her Ketubah from her. This comes to teach us that this is not the case.

So too, a man may not say to his wife, behold your ketubah lies on the table, but all of his property has on it a lien from her ketubah. If he divorced her she is entitled only to her ketubah. If he remarried her she is like all other wives, and is entitled only to her ketubah. Similarly a man may not set aside a certain piece of property and designate it for his wife’s ketubah. When Shimon ben Shetach established the rabbinic ketubah, part or perhaps all of his legal innovation, was that all of a man’s property is subject to his wife’s ketubah. This is not to say that a man cannot sell his own property. However, if he does, and then when the wife comes to collect her ketubah her husband or his estate cannot pay it off, she can reclaim the previously sold property from its purchasers.

If the yavam divorces his yevamah, he can now pay off her ketubah and then sell the rest of the brother’s property. If he remarries her, she no longer has the status of a yevamah, but rather she is like all other wives, who cannot prevent their husband’s from selling their property.