Bava Kamma 89 - January 30, 20 Shvat

Today's daf is sponsored by Gabrielle Altman in loving memory of Honorable Myriam Altman. "She was a beloved wife, mother and grandmother, and an unforgettable role model and jurist. A Holocaust survivor, she would have been so proud of her family and Am Yisrael, today and every day." Two sources, one of them our Mishna, are brought to prove that there was a takana instituted in Usha that a woman cannot sell her usufruct (melog) property while she is still married. However, both proofs are rejected. The first source is a case where witnesses lied and said a woman was divorced and received her ketuba money. Once it was proven they were zomemim and that the woman was still married, the witnesses do not pay her the full amount of the ketuba, but the amount she could have sold it for while she was married (tovat hana'a). A woman can sell the rights to her ketuba to someone else for less than its value, as it is not clear that it has monetary value since it will only be worth money if the husband predeceases the wife. If she dies first, her husband inherits everything. If there was no takana of Usha, she can sell part of the ketuba that includes property she brought into the marriage, and therefore it does have value regardless of whether she or the husband die first. However, this is rejected as the property in the ketuba is nichsei tzon barzel, which cannot be sold in any case as the husband has right to the produce and to the principal, and the takana was regarding nichsei melog. Abaye infers from the ruling regarding the witnesses, that if a woman sells her ketuba, the money would go to her and not to her husband. Rav Shalman rejects Abaye's proof but Rava rules like Abaye. The second proof is from our Mishna, that a woman is exempt from paying damages she inflicts on others (until her husband dies or divorces her) as she has no money of her own. If there was no takana of Usha, she could sell her usufruct property and pay damages. To reject this proof, they suggest that the Mishna is referring to a case where the woman has no usufruct property. However, the Gemara begins to raise other questions on the Mishna. Why doesn't the woman sell her ketuba for its market value (tovat hana'a)? Three different answers are brought. What if the woman injured her husband, could she not give him the ketuba as payment? And if so, why does the Tosefta rule that she does not? A few questions are asked on the Tosefta. The Gemara suggests that whether or not the takana of Usha was instituted is a tanaitic debate. The case is one where there is a slave that is usufruct property of the woman - in one braita they rule that the slave goes freed if the woman breaks his arm; in the other, he does not get freed either by the woman or by the husband breaking his arm as neither fully owns him (the woman does not, as per the takana of Usha). However, this is rejected as the reason for the disagreement is not necessarily related to our issue.