DAF YOMI SUMMARY | Bava Kama 89
דף פ"ט
תקנת אושא
According to what was stated on the previous דף the תקנת אושא was only an enactment according to ריש לקיש not according to רבי יוחנן. He holds that a קנין פירות הוא כקנין הגוף therefore רבי אבא was entitled to block the sale of his wife's נכסי מלוג. In spite of this רב אידי brought a proof that a תקנת אושא in fact was enacted from a ברייתא. The ברייתא states although in general the law of כאשר זמם requires full compensation for their false testimony in a case they claimed falsely that a couple was divorced and her כתובה was paid, they pay only טובת הנאת הכתובה. This amount is what one would pay to buy a כתובה from the wife while she is married. The amount of payment is minimal since she may predecease her husband. The ברייתא expresses this by saying:
ואם מתה יירשנה בעלה
There are different elements of a כתובה the marriage document:
עיקר כתובה – The amount he is required to pay, 200 zuz for a virgin, 100 zuz for non-virgin.
תוספת כתובה – This is the amount he voluntarily adds.
נכסי מלוג – This is property she either brought with her at the time of the marriage or inherited or gifted to her during her marriage not recorded in the כתובה. The husband is not entitled to the principle of these properties only the profits.
נכסי צאן ברזל – This is her property whose value is fixed at the time of the marriage added to כתובה and no matter what their value at the time of death or divorce he must pay her their value as appraised at the time of their marriage.
When it says the "husband will inherit her" it can only refer to the נכסי צאן ברזל because the other כתובה obligations are payments he does not make. If there was no תקנת אושא why would he inherit her! She could sell those properties and therefore the עדים זוממים should pay the full amount of the כתובה. (The assumption being if she could sell the נכסי מלוג she could sell the נכסי צאן ברזל).
However אביי rejects this proof. The lack of a תקנה would allow her to sell the נכסי מלוג because those properties are essentially hers since their loss or profit accrues to her. However the נכסי צאן ברזל are essentially his since any loss or gain is his. Even with the תקנה she cannot sell these during her marriage. Therefore the עדים זוממים pay her only the discounted value.
טובת הנאה
The wife is entitled to the טובת הנאה not her husband otherwise אביי explains the עדים זוממים could claim we are not liable since we did not cause you a loss. רב שלמן says even if the husband received it she will benefit and could claim a loss because there will be money for household needs. However רבא decides that it is hers based on another consideration. As long as she sells only the principle that does not interfere with the husbands rights to consume the profits any additional income that is referred to פירא דפירא does not accrue to him.
Proof for the תקנת אושא from our משנה
העבד והאשה פגיעתן רעה, החובל בהם חייב, והם שחבלו באחרים פטורין
Why is a married woman exempt from paying damages? She could sell her נכסי מלוג! The משנה does not prove she cannot sell her נכסי מלוג because it may be discussing a case where she does not have. In addition, she cannot sell her כתובה to a buyer in case her husband dies first or divorces her or even sell it to her victim both at a discount because she will eventually forgo her כתובה. To demand her to pay in this way would cause either the buyer a loss or an unnecessary waste of the courts time. If she has נכסי מלוג property she can sell it at a discount to pay for her damages.
A wife injures her husband
The previous concerns do not pertain to this case. The husband can collect damages at nobody's expense. One could suggest a woman is not allowed to be married without a כתובה to prevent the husband divorcing her and therefore she cannot use it to pay damages. If there was a surplus כתובה she could pay from the surplus without forfeiting the base amount. Even the base amount will prevent him from divorcing her if the damage less. If it is equal or greater than the כתובה he will divorce her to collect damages and the כתובה will not deter him.
If she is forced to sell to pay damages and predeceases her husband, her sons are still entitled to their כתובת בני דכרין, the larger percentage of the father's estate because their mother's כתובה was larger. The heirs from subsequent marriages cannot say by selling her כתובה she forfeited the rights of her children since she sold due to financial pressure.
