Babylonian Talmud: Tractate Baba Kamma

Folio 89a

while the woman in question was still with him¹  and in fact looking after him, and the witnesses were subsequently proved zomemim, it would not be right to say that they should pay [the woman]²  the whole amount of her kethubah, [as she did not lose anything] but the satisfaction of the benefit of [being provided with] her kethubah.³  How could [the value of] the satisfaction of the benefit of her kethubah be arrived at?³  An estimate will have to be made of how much a man would be prepared to pay as purchase money for the kethubah of this [particular woman] which can mature only after she is left a widow or divorced, since, were she [previously] to die her husband would inherit her.⁴  Now, if you assume that this enactment of Usha is of no avail, why is it certain that her husband would inherit her? Why should she be unable to sell her kethubah outright?⁵  Abaye said: If all this could be said⁶  regarding melog possessions,⁷  can it also be said⁸  regarding the possessions [placed in the husband's hands⁹  and secured¹⁰  as if they were] 'iron flocks'?¹¹

Abaye further said: Since the subject of the [mere] satisfaction of a benefit has been raised, let us say something on it. The [purchase money of this] satisfaction of the benefit would belong solely to the woman. For if you assume that it should be subject to [the rights of] the husband, why could the witnesses not argue against her: 'What loss did we cause you, for should you even have sold the satisfaction of the benefit, the husband would have taken away [the purchase money] from you'? — R. Shalman, however, said: Because [even then] there would have been ample domestic provision.¹²

Raba stated: 'The law is that the purchase money for the satisfaction of the benefit belongs solely to the woman, and the husband will have no right to enjoy any profit [that may result from it], the reason being that it was only profits that the Rabbis assigned to him,¹³  whereas profits out of profits¹⁴  were not assigned to him by the Rabbis.

When R. Papa and R. Huna the son of R. Joshua came from the College they said: We have learnt to the same effect as the enactment of Usha [in the following Mishnah]: A SLAVE AND A WOMAN ARE AWKWARD TO DEAL WITH, AS HE WHO INJURES THEM IS LIABLE [TO PAY], WHEREAS IF THEY HAVE INJURED OTHERS THEY ARE EXEMPT.¹⁵  Now, if you assume that the enactment of Usha is not effective why should she not sell her melog¹⁶  property and with the purchase money pay the compensation? — But even according to your reasoning, granted that the enactment of Usha is effective, in which case she would be powerless to alienate altogether her melog possessions, yet let her sell the melog estate for what the satisfaction of the benefit would fetch¹⁷  and with his purchase money pay the compensation? It must therefore Surely be said that the ruling applies where she had no melog property; so also [according to the other view] the ruling would apply only where she possessed no melog property. But why should she not sell her kethubah for as much as the satisfaction of the benefit will fetch¹⁷  and thus pay compensation? — The ruling is based on the view of R. Meir, who said that it is prohibited for any man to keep his wife without a kethubah even for one hour.¹⁸  But what is the reason of this? So that it should not be an easy matter in his eyes to divorce her. In this case too he will surely not divorce her, for if he were to divorce her those who purchased the kethubah would certainly come and collect the amount of the kethubah from him. [Why then should she not be compelled by law to sell her kethubah and pay her creditors?] — We must therefore say that the satisfaction of such a benefit is a value of an abstract nature¹⁹  and abstract values are not considered mortgaged [for the payment of liabilities]. But why not? Could these abstract values not be sold for actual denarii? — We must therefore [say that it would not be practical to compel her to sell her kethubah] on account of the statement of Samuel. For Samuel said:²⁰  Where a creditor assigns a liability on a bill to another and subsequently releases the debtor from payment, the debt is considered cancelled. Moreover, the creditor's heir may cancel the liability.²¹  I would, however, ask: Why should she not be compelled to sell it and pay with the proceeds the compensation, though if she should subsequently release her husband from the obligation the release would be legally valid? — It may be replied that since it is quite certain that where there is an obligation on the husband the wife will release him, it would not be right to make a sale which will straight away be nullified. Should you say, why should she not assign her kethubah to the person whom she injured, thus letting him have the satisfaction of the benefit,

1. I.e., that particular person who was her husband, as he had never divorced her.
2. In retaliation, as required in Deut. XIX, 19.
3. Since it was but a conditional liability, i.e., becoming mature either through her being divorced or through her remaining a widow.
4. And there would then be no occasion for the payment of the kethubah (cf. Mak. 3a).
5. If the husband would have no right to recover the possessions thus alienated. Why then should the witnesses not pay the woman the full amount of the kethubah?
6. By R. Jeremiah against Rab Judah, thus ignoring the enactment of Usha.
7. In which the husband had only the right of usufruct while the substance belonged to the wife; v. Glos.
8. [That the woman should be able to sell outright.]
9. As absolutely his own property.
10. By him on his general estate to pay her for them her Kethubah in case she would become a widow or divorced.
11. Zon barzel. I.e., 'flocks' sold on credit and the payment made secure as 'iron', v. B.B. (Sonc. ed.) p. 206, n. 3.
12. As it is also for her benefit that the income of her husband increases.
13. Out of the substance belonging to her. Cf. Keth. 47b and 79b.
14. Such as here in the case of the purchase money.
15. V. supra p. 502, n. 1.
16. V. Glos.
17. I.e., that the purchaser should stand in her place and become entitled to it in case she should become a widow or divorced.
18. Keth. 57a.
19. Lit., 'words', 'an order for payment'.
20. B.M. 20a; B.B. 147b.
21. It would therefore not be practical to compel her to sell her kethubah, for she might subsequently release the husband from the liability of the kethubah.

for even if she should subsequently release her husband from the obligation, the purchaser¹  would lose nothing as now too she pays him nothing on account of the compensation, [my answer is that] as it is in any case quite certain that where there is an obligation on the husband the wife will release him, it would not be proper to trouble the Court of Law so much for nothing. But seeing that it was taught: 'So also if she injures her husband she does not forfeit her kethubah'.²  why should she in this case not assign her kethubah to the husband and thus let him have the satisfaction of the benefit as compensation for the injury, for even if she releases her husband from the obligation no loss will result therefrom? — This teaching is surely based on the view of R. Meir who said³  that it is prohibited for any man to keep his wife without a kethubah even for one hour, the reason being that it should not be an easy matter in the eyes of the husband to divorce a wife. So also here if the kethubah be assigned to him he might easily divorce her and have her kethubah for himself as compensation for the injury. But if so [even now that the kethubah remains with her] would he just the same not find it easy to divorce her, as he would retain the amount of her kethubah as compensation for the injury? [This however would not be so where] e.g., the amount of her kethubah was much more than that of the compensation as on account of the small amount of the compensation he would surely not risk losing more.⁴  But again if the amount of her kethubah exceeded that of an ordinary kethubah as fixed by the Law,⁵  why should we not reduce the amount to that of the ordinary kethubah fixed by the Law,⁶  and she should assign the difference to the husband as compensation for the injury? [This could not be done where,] e.g. the amount of her kethubah did not exceed that of the ordinary kethubah fixed by the Law and the compensation for the injury was assessed to be four zuz, as it is pretty certain that for four zuz he will not risk losing twenty-five [sela'].⁷  But what of that which was taught: 'Just as she cannot [be compelled to] assign her kethubah⁸  so long as she is with her husband, so also she cannot [be compelled to] remit [anything of] her kethubah so long as she is with her husband'?⁹  Are there not times when she would be forced to remit, as, for example where the amount of her kethubah exceeded the amount of an ordinary kethubah fixed by the Law? — Said Raba: This concluding paragraph refers to the clause inserted in the kethubah regarding the male children,¹⁰  and what was meant was this: Just as in the case of a wife assigning her kethubah to others she does thereby not impair the clause in the kethubah regarding the male children, the reason being that she might have been compelled to do it on account of a pressing need for money, so should also be the case where a wife assigns her kethubah to her own husband, that she would thereby not impair the clause in the Kethubah dealing with male children on the ground that she might have been compelled to do this for lack of funds.

May we say that the enactment of Usha was a point at issue between the following Tannaim? For one [Baraitha] teaches that melog slaves are to go out free for the sake of a tooth or an eye¹¹  if assaulted by the wife,¹²  but not if assaulted by the husband,¹³  whereas another [Baraitha] teaches that [they are not to go out free] when assaulted either by the husband or by the wife. Now it was thought that all authorities agree that a right to usufruct does not constitute in law a right to the very substance. Are we not to suppose then that the point at issue between them was that the one who held that they are to go out free if assaulted by the wife did not accept the enactment of Usha, while the one who held that they are not to go out free when assaulted either by the husband or by the wife accepted the enactment of Usha?¹⁴  — No; it is quite certain that the enactment of Usha was unanimously accepted, but the former Baraitha was formulated before the passing of the enactment while the other one was formulated after. Or if you like I may say that both the one Baraitha and the other dealt with conditions prevailing after the enactment, and also that both accepted the enactment of Usha, but the authority who held that the slaves are to go out free if assaulted by the wife and not by the husband did so on account of a reason underlying a statement of Raba, for Raba said:

1. I.e., the injured person.
2. Tosaf. B.K. IX, 8.
3. V. supra, p. 515, n. 6.
4. [I.e., the difference between the large amount of the kethubah and the amount due to him as compensation.]
5. The Bible, i.e., two hundred zuz where she was a virgin at the time of the marriage. Cf. Ex. XXII, 16; Keth. I, 2.
6. [To provide against the prohibition in the view of R. Meir.]
7. = 100 zuz, which is the minimum amount of a kethubah even in the case of a non-virgin; v. Keth. I, 2.
8. [For any damage done to others (Tosaf.).]
9. [For any damage done by her to her husband (Tosaf.) V. Tosaf. B.K. IX.]
10. Which runs as follows: 'The male children which you will have with me shall inherit the amount of your kethubah over and above their appropriate portions due to them together with their brothers (if any of another mother).' V.B.B. (Sonc. ed.) p. 546, n. 16.
11. Cf. Ex. XXI, 26-27.
12. Who possesses the ownership of their substance.
13. Who has in them but the right of usufruct.
14. According to which the wife would not be able to impair the right of the husband, [nor would the husband on the other hand be able to impair the right of the wife to the slaves whose substance is actually hers.]