Babylonian Talmud: Tractate Kethuboth

Folio 78a

CHAPTER VIII

MISHNAH. IF A WOMAN CAME INTO THE POSSESSION¹  OF PROPERTY BEFORE SHE WAS BETROTHED, BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY²  SELL IT OR GIVE IT AWAY AND HER ACT IS LEGALLY VALID. IF SHE CAME INTO THE POSSESSION OF THE PROPERTY AFTER SHE WAS BETROTHED, BETH SHAMMAI SAID: SHE MAY SELL IT,²  AND BETH HILLEL SAID: SHE MAY NOT SELL IT;²  BUT BOTH AGREE THAT IF SHE HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID. R. JUDAH STATED: THE SAGES ARGUED BEFORE R. GAMALIEL, 'SINCE THE MAN³  GAINS POSSESSION OF THE WOMAN DOES HE NOT ALSO GAIN POSSESSION OF HER PROPERTY?'⁴  HE REPLIED, 'WE ARE EMBARRASSED⁵  WITH REGARD TO [THE PROBLEM OF] HER NEW POSSESSIONS⁶  AND DO YOU WISH TO INVOLVE US [IN THE PROBLEM OF] HER OLD ONES⁷  ALSO?' IF SHE CAME INTO THE POSSESSION OF PROPERTY AFTER SHE WAS MARRIED, BOTH⁸  AGREE THAT, EVEN IF SHE HAD SOLD IT OR GIVEN IT AWAY, THE HUSBAND MAY SEIZE IT FROM THE BUYERS. [IF SHE CAME INTO POSSESSION] BEFORE SHE MARRIED.⁹  AND SUBSEQUENTLY MARRIED, R. GAMALIEL SAID: IF SHE¹⁰  HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID. R. HANINA B. AKABIA STATED: THEY ARGUED BEFORE R. GAMALIEL, SINCE THE MAN¹¹  GAINED POSSESSION OF THE WOMAN SHOULD HE NOT ALSO GAIN POSSESSION OF HER PROPERTY?' HE REPLIED, 'WE ARE EMBARRASSED WITH REGARD TO [THE PROBLEM OF] HER NEW POSSESSIONS AND DO YOU WISH TO INVOLVE US [IN THE PROBLEM OF] HER OLD ONES ALSO?¹²  R. SIMEON DRAWS A DISTINCTION BETWEEN ONE KIND OF PROPERTY AND ANOTHER: PROPERTY THAT IS KNOWN¹³  TO THE HUSBAND [THE WIFE] MAY NOT SELL, AND IF SHE HAS SOLD IT OR GIVEN IT AWAY HER ACT IS VOID; [PROPERTY, HOWEVER,] 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.

GEMARA. What is the essential difference between the first clause¹⁴  in which they¹⁵  do not differ and the succeeding clause¹⁶  in which they differ?¹⁷  — The school of R. Jannai replied: In the first clause it was into her possession that the property had come;¹⁸  in the succeeding clause¹⁶  the property came into his possession.¹⁹  If, however, [it is maintained] that the property 'came into his possession' why is HER ACT LEGALLY VALID when SHE HAD SOLD [THE PROPERTY] OR GIVEN IT AWAY? — This then [is the explanation:] In the first clause the property has beyond all doubt come into her possession.¹⁸  In the succeeding clause, [however, the property] might be said [to have come either] into her, or into his possession;²⁰  [hence,]²¹  she may not properly sell [the property, but] IF SHE HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID.

R. JUDAH STATED: [THE SAGES] ARGUED BEFORE R. GAMALIEL. The question was raised: Does R. Judah²²  refer to the case of direct permissibility²³  or also to one of ex post facto?²⁴

1. Lit., 'to whom there fell'.
2. After her betrothal and before her marriage. V. infra.
3. Through betrothal.
4. The application of this argument is explained in the Gemara.
5. Lit., 'ashamed'.
6. In failing to discover a reason why a husband (as stated infra) is entitled to seize the property which his wife had sold or given away even though she obtained it after marriage.
7. Property into the possession of which she came while she was only betrothed.
8. Beth Shammai and Beth Hillel.
9. [I.e., either before or after she was betrothed (Rashi), v. Tosaf.].
10. After her marriage.
11. By marriage.
12. Cf. supra p. 490, on. 5-7.
13. This is explained in the Gemara.
14. Of our MISHNAH.
15. Beth Shammai and Beth Hillel,
16. Property obtained AFTER SHE WAS BETROTHED.
17. In both cases surely, she sells or gives away after betrothal when her property presumably belongs to the man who betrothed her. Cf. infra note 10.
18. Before betrothal she is the legal possessor of whatever is given to her.
19. Because, as it is assumed at present, after betrothal the man is the legal owner of all that the woman may have.
20. The kinyan of betrothal being regarded as that of a doubtful marriage, since it is uncertain whether marriage will follow.
21. According to Beth Hillel.
22. In the argument he reported in the name of the Sages to invalidate her sale.
23. I.e., the ruling of Beth Shammai that if she obtained property after she was betrothed she is fully entitled to sell it or to give it away.
24. Where it is the unanimous opinion of Beth Shammai and Beth Hillel THAT IF SHE HAD SOLD IT OR GIVEN IT AWAY HER ACT IS LEGALLY VALID.

Come and hear what was taught in the following. R. Judah stated: They argued before R. Gamaliel, 'Since the one woman¹  is his wife and the other²  is his wife, just as a sale by the former³  is invalid so also should a sale by the latter⁴  be invalid'. He replied, 'We are in an embarrassed condition with regard to [the problem of] her new possessions and you wish to involve us [in the problem of] her old ones also?'⁵  Thus⁶  it may be inferred that he referred to a case of ex post facto also. This is conclusive.⁷

It was taught: R. Hanina b. Akabia said, It was not such a reply⁸  that R. Gamaliel gave to the Sages,⁹  but it was this that he replied, '[There is] no [comparison]; if you say [the ruling]¹⁰  is to apply to a married woman whose husband is entitled to her finds, to her handiwork and to the annulment of her vows, will you say it also applies to a betrothed woman whose husband is not entitled either to her finds or to her handiwork or to the annulment of her vows?'¹¹  'Master', they said to him, '[this is quite feasible if] she effected a sale before she married;¹²  what, [however, will be your ruling where] she was married and effected the sale¹³  subsequently?' — 'This woman also', he replied, 'may sell or give away, and her act is valid'. 'Since, however', they argued, 'he¹⁴  gained possession of the woman¹⁵  should he not also gain possession of her property?'¹⁶  — 'We are quite embarrassed', he replied, 'about [the problem of] her new possessions and you wish to involve us [in the problem of] her old ones¹⁷  also!' But, surely, we learned, [IF SHE CAME INTO POSSESSION] BEFORE SHE MARRIED, AND SUBSEQUENTLY MARRIED, R. GAMALIEL SAID: IF SHE HAD SOLD IT OR GAVE IT AWAY¹⁸  HER ACT IS LEGALLY VALID!¹⁹  — R. Zebid replied, Read: She may sell or give away, and her act is valid.²⁰  R. Papa replied: There is no difficulty,²¹  for one²²  is the view of R. Judah on R. Gamaliel's opinion²³  whilst the other²⁴  is the view of R. Hanina b. Akabia on R. Gamaliel's opinion.²⁵

Is R. Hanina b. Akabia then in agreement with Beth Shammai?²⁶  — It is this that he meant: Beth Shammai and Beth Hillel did not differ at all on this point.²⁷

Both Rab and Samuel stated: Whether a woman came into the possession of property before she was betrothed or whether she came into possession after she was betrothed her husband may, [if she sold it] after she married, take it away from the buyers. In agreement with whose view [is this ruling], which is neither in agreement with that of R. Judah nor with that of R. Hanina b. Akabia? — They adopted the ruling of our Masters; for it was taught: Our Masters took a recount [of votes, and decided that] whether a woman came into the possession [of property] before she was betrothed or whether she came into its possession after she was betrothed, her husband may, [if she sold it] after she married, take it away from the buyers.²⁸

AFTER SHE WAS MARRIED, BOTH AGREE. May it be suggested that here we are learning Of the enactment of Usha,²⁹  for R. Jose the son of R. Hanina stated: It was enacted at Usha that if a woman sold during the lifetime of her husband melog³⁰  property,³¹  and died, the husband³²  may seize it from the buyers!³³  — Our Mishnah [deals with the seizure] during the woman's lifetime for the purposes of usufruct [only];³⁴  the enactment of Usha [refers to the seizure] of the capital after her death.³⁵

R. SIMEON DRAWS A DISTINCTION BETWEEN ONE KIND OF PROPERTY [etc.]. Which kind is regarded as KNOWN, and which as UNKNOWN? — R. Jose the son of R. Hanina replied: KNOWN means landed property;³⁶  UNKNOWN, movable property. But R. Johanan said: Both are regarded as KNOWN, but the following is classed as UNKNOWN. Whenever a woman lives in a certain place and comes into the possession of property in a country beyond the sea. So it was also taught elsewhere: The following is classed as unknown. Wherever a woman lives in a certain place and comes into the possession of property in a country beyond the sea.

A certain woman³⁷  wishing to deprive her [intended] husband of her estate assigned it in writing to her daughter.³⁸  After she married and was divorced³⁹

1. Lit., 'this one', — whom he married.
2. Whom he betrothed.
3. Of any property that came into her possession after marriage.
4. Of property she obtained after betrothal.
5. Cf. supra p. 490, nn. 5-7. Tosef. Keth. VIII.
6. Since this Baraitha speaks explicitly of a sale that had already taken place.
7. Lit., 'hear or infer from it.
8. As the one contained in our Mishnah.
9. Who compared a betrothed to a married woman.
10. 'EVEN IF SHE HAD SOLD IT … THE HUSBAND MAY SEIZE IT FROM THE BUYERS'.
11. Only a husband and a father, acting together, may annul the vows of a betrothed woman as a na'arah (v. Glos.).
12. While she was only betrothed.
13. Of property that came into her possession before her marriage.
14. By the kinyan of marriage.
15. I.e., the right to her finds and handiwork and to the invalidation of her vows.
16. To the usufruct of which a husband is entitled during her lifetime. If her sale is valid her husband would inevitably be deprived of his right to the usufruct.
17. Cf. supra p. 490, nn. 5-7.
18. I.e., a case ex post facto.
19. From which it follows that such a sale or gift is not permitted in the first instance, a ruling which is in contradiction to that reported by R. Hanina in the name of R. Gamaliel.
20. [On this reading the amendment is made in the text of our Mishnah; var. lec., 'Read: if she sold it or gave it away her act is valid', the change being made in the Baraitha, v. Tosaf. s.v. [H].
21. V. supra n. 5.
22. Our Mishnah (cf. supra n. 5).
23. That even during betrothal a woman is not permitted in the first instance to sell or to give away, much less may she do so after marriage.
24. The quoted Baraitha.
25. That even a married woman may sell or give away property that came into her possession before she married. This view which R. Hanina did not state specifically in our Mishnah he elucidated in the Baraitha.
26. And not with Beth Hillel who ruled that even after a betrothal a woman is not permitted in the first instance to sell or give away; much less may she do so after marriage. Would then R. Hanina deviate from the accepted halachah which is in agreement with Beth Hillel?
27. But both agreed that the woman is fully entitled to sell or to give away.
28. Tosef. Keth. VIII.
29. V. supra p. 283. n. 12.
30. V. Glos.
31. The capital of which belongs to the woman, while its usufruct is enjoyed by the husband.
32. Who is heir to his wife and has the status of a 'prior purchaser'.
33. Supra 50a, B.K. 88b, E.M. 35a, 96b. B.B. 50a, 139b. The difficulty then arises: What need was there for the enactment of Usha in view of the ruling in our Mishnah on the enactment of Usha v. Epstein. L. The Jewish Marriage Contract, pp. 110ff.
34. After the woman's death, however, even if she predeceased her husband, the capital would, according to our Mishnah, revert to the buyer.
35. Cf. supra n. 5. [Tosaf. s.v. [H] states that the Gemara could have also explained the need of the enactment of Usha to provide for the case where she inherited the property whilst betrothed, whereas the Mishnah refers only to property which fell to her after marriage].
36. It is to be assumed that the husband in marrying her expected such property to come into her possession.
37. A widow who was about to marry.
38. Intimating at the same time in the presence of witnesses that the transfer was only temporary, and that it was her wish that the estate shall revert to her on the death of her husband or on her being divorced by him.
39. And her daughter refusing to part with the gift.