a second, the one assigned to her as special surety for her kethubah,1 and a third which she had brought him [as marriage] dowry, and for the money value of which he made himself responsible [to her].2 Now what property does this exclude from the rule [that the purchase is void]? Shall we say it is to exclude the remainder of the husband's property?3 [Hardly]; for in regard to this [she would] certainly [say that she did it to oblige her husband], since otherwise he might, fall out with her and say to her, 'You have your eye on a divorce or on my death.'4 The property excluded5 must therefore be that of which the husband has the usufruct. But [how can this be], seeing that Amemar has said: If husband and wife sell the property of which he has the usufruct,6 their action is null and void?7 — Amemar was speaking of the case where the husband sold it and then died, in which case she can recover it,8 or where she sold it and died, in which case he can come and recover it,9 (according to the regulation of the Sages recorded by R. Jose b. Haninah, who said: It was enacted In Usha10 that if a woman sold the property of which the husband had the usufruct and then died, the husband could recover it from the purchaser).11 Where, however, they both sold it [together] to a third party or if the wife sold it to the husband, the sale is valid.12 Alternatively, I may say that Amemar based his ruling13 on the view expressed by R. Eliezer.14 For it has been taught: 'If a man sells his slave but stipulates [with the purchaser] that he shall continue to serve him for thirty days, R. Meir says that the rule of "one or two days"15 applies to the first [the original owner] because the slave is still "under" him, and it does not apply to the second because the slave is not "under" him.'16 He [R. Meir], holds that possession of the increment is on a par with possession of the principal.17 'R. Judah says that the rule of 'one or two days' applies to the second [the purchaser], because the slave is "his money", but not to the first, because he is not "his money".' His opinion is that the possession of the increment17 is not on a par with possession of the principal. 'R. Jose says
Original footnotes renumbered.
- After the wedding. On this also she places special reliance, as it has been assigned to her with full formalities in the presence of witnesses.
- Inserting a stipulation to that effect in the kethubah. This is the so-called 'property of the iron sheep' (Zon barzel), which the wife makes over to the husband from her dowry, on condition that the husband is responsible to her for its full money value, whether he makes a profit or a loss on the transaction. [The term tzon barzel has a parallel in Roman law, pecus ferreum, and is not limited to a specific property arrangement between husband and wife but applies to every form of conveyance of property on a basis of tenancy and possession, v. Epstein, M., The Jewish Marriage Contract, p. 91, n. 12.]
- Which is pledged to her as security for her kethubah.
- If the husband sells any part of his property which is not so particularly mortgaged to her, and she refuses to confirm the sale, he may accuse her of desiring this part to remain in his possession because she is looking forward to his death or a divorce from him and is loth to part with a security for her kethubah. Thus she has a motive for consenting, so as not to estrange her husband. Hence this is obviously not the kind of property excluded from the rule stated.
- I.e., the purchase of which is valid if it is bought first from the husband and then from the wife.
- The so-called 'property of plucking' (mulug), which belonged to the wife but of which the husband had the usufruct without responsibility for loss or deterioration. [The term mulug is derived from Aram. [H] to pluck, Aruch, or from Lat. mulgere, 'to milk'. V. Epstein, M., op. cit, p. 92. n. 16.]
- The question then remains, in spite of Rabah R. son of Huna's gloss. what property is excluded from the rule?
- Because he had no right to sell it.
- We must therefore understand Amemar to mean, 'If the husband or the wife sells it'.
- V. p. 139, n. 1. [On the enactments of Usha, Takkanath Usha, v. Epstein, op. cit., 110ff.]
- The husband being in the position of a 'prior purchaser'. V. B.K. 88.
- Hence (to revert to the original question), if the wife sells to her husband the so-called 'property of plucking', the sale is valid, and she cannot plead, 'I did it to oblige my husband'.
- That if the wife or the husband sold the 'property of plucking' the sale becomes void on the death of the wife or husband respectively. So R. Gersh. Rashb. refers it to the ruling that if both husband and wife sell, their action is void, but, as will be seen, R. Eliezer's dictum by no means bears this out. V. infra p. 208, n. 2.
- And not on the regulation of the Sages.
- Ex. XXI, 20, 21: If a man smite his servant with a rod and he die under his hand, he shall surely be punished. Nevertheless, if he continue a day or two he shall not be punished, for he is his money.
- If the original owner smites him during this time and he survives a day or two, he is not guilty of murder, but if the purchaser smites him, even if he survives a day or two, he is guilty of murder. B.K. 50a.
- The 'increment' here is the labour of the slave and the 'principal' is the slave himself. R. Meir holds that for the purposes of this law the one who disposes of the labour of the slave is in the position of owner.
Baba Bathra 50b
that the rule of one or two days applies to both of them, to the original owner because the slave is still "under" him, and to the purchaser because he is "his money".' R. Jose is uncertain whether possession of the increment is on a par with possession of the principal or not, and where there is a doubt whether capital punishment should be inflicted the more lenient view is always taken.1 'R. Eliezer says that the rule of a day or two days applies to neither; it does not apply to the purchaser because the slave is not 'under' him, nor to the original owner, because he is not 'his Money'.'2 What, said Raba, is R. Eliezer's reason? Scripture says, He shall not be punished, for he is his money, which implies that he must be entirely his own.3
NOR HAS A HUSBAND HAZAKAH IN THE PROPERTY OF HIS WIFE. But has not Rab said: It is necessary for a married woman to protest?4 Now, against whom [does he mean]? Shall I say against [occupation by] an outsider? Did not Rab lay down that one cannot obtain hazakah in the property of a married woman? It must therefore mean against [occupation by] the husband?5 — Said Raba: It does indeed mean against [occupation by] the husband, but [Rab refers to the case where] for instance he dug in the field pits, ditches or caves.6 But has not R. Nahman said in the name of Rabbah b. Abbuha: There is no hazakah where damage is inflicted? — This should be read The [ordinary] rule of hazakah does not apply7 where damage is inflicted.8 (Alternatively I may meet this objection by pointing out that R. Meri gave smoke as an instance of the damage referred to and R. Zebid a privy].9 R. Joseph said: Rab in truth [meant his dictum10 to apply] to [occupation by] outsiders,11 and the case [he had in mind] was where a man had had the use of the property for a time in the lifetime of the husband and for three years after his death. [In that case,] seeing that he could put forward the plea, I bought it from you [the wife], if he merely pleads, You sold it to him and he sold it to me, his word is accepted.12
The text above states that Rab said that 'one cannot obtain hazakah in the property of a married woman.'
Original footnotes renumbered.
- E.g., where the question is whether the man who smote the slave shall be condemned to death.
- This can be taken by Amemar as a proof that the wife cannot sell without the husband. It could hardly, however, be taken by him as a proof that where both agree to sell, their action is still void. V. supra p. 207, n. 6.
- Raba stresses the word 'his'.
- If she desires to prevent someone who has occupied her field from obtaining hazakah in it.
- This shows that Rab holds that a husband can claim has hazakah in the property of his wife.
- Thereby spoiling the field, which he was not entitled to do unless he was its legal owner. Hence if his wife does not protest against such action, it gives him hazakah.
- Lit., 'There is no rule of hazakah'.
- The ordinary rule is that to confer hazakah three years' possession is required, but if the occupier is allowed to damage the field without protest from the owner, this gives him hazakah at once.
- V. supra 23a. Other damage, however, such as digging pits, confers hazakah even in the case of a wife's property.
- That it is necessary for a married woman to protest.
- And therefore there is no contradiction between him and the Mishnah.
- Hence if she does not want him to obtain hazakah, she must protest in time.