ב׳ באייר ה׳תשע״ה (April 21, 2015)

Ketubot 78a-b: Property and Marriage

Ha-ishah she-naflu, the eighth perek of Ketubot, begins on our. Its focus is nikhsei melug – property that belongs to the woman who is getting married. The general rule regarding nikhsei melug is that the property remains in the woman’s possession, but her husband is okhel peirot – literally, he “eats the fruit.” In other words, she owns the property, but as long as they are married the profits accrued by the property belong to the husband. This odd type of “joint ownership” – where the wife owns the property, but her husband receives the profits – leads to a series of questions about the ability of either side to sell their share and other similar questions, which are the focus of our perek.

According to the Mishna, all agree that a woman can do whatever she wants with property that she inherits before her marriage. If she inherits property after she is already married, however, she cannot sell it. If she does, all agree that the husband can force the purchaser to return it. If she received the property before the marriage and then she gets married, Rabban Gamliel rules that the sale remains in force. When questioned about this ruling, Rabban Gamliel responded “we are embarrassed about the new ones, now you are trying to involve us in the old ones, as well?”

The Talmud Yerushalmi explains that the “new ones” to which Rabban Gamliel refers are the properties that she receives after she gets married (that she cannot sell), while the “old ones” are the properties that she received before she got married (where her sale is valid). One explanation for Rabban Gamliel’s embarrassment regarding the Rabbinic ruling to limit her ability to sell her property is that the basis for the husband to receive peirot is in exchange for his obligation to redeem her should she be taken captive – certainly an unusual situation. The Shitta Mekubbetzet suggests that the embarrassment stems from the fact that we allow the husband to negate her sale entirely, even though his claim is only on the produce and not on the property itself.

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