1)DO WE HEED THE COMMAND OF A DEPOSITOR SUSPECTED OF THEFT?

(a)Gemara

1.51b (Rava): The Halachah is, if one sells a field to his wife, she does not acquire. He eats the Peros.

2.Question: Saying that he eats the Peros (in the case of a sale) implies that she acquires, but Rava said that she does not acquire!

3.Answer: If he had not seen her money (he only pretended to sell in order to get her to show the money she took from him) she does not acquire. If he had seen her money, she acquires, but he eats the Peros.

4.(Beraisa): We do not accept deposits from a (married) woman or slave or child. If Reuven took a deposit from a woman or slave, he returns it to him or her. If the woman or slave died, he returns it to the Ba'al (husband or owner). If he took a deposit from a child, he sells it and buys a Segulah (Sefer Torah or date tree). If the child dies, he gives the Segulah to the child's heirs.

5.If the woman, slave or child said just before dying 'it belongs to Ploni', Reuven does like he specified. If not, he gives it to the husband, owner or father.

6.When the wife of Rabah bar bar Chanah died, she said 'these rings belong to Marsa and his grandsons.'

7.Version #1 - Rav (to Rabah bar bar Chanah): If you believe her, do like she said. If not, interpret her command.

8.Version #2 - Rav: If you estimate that they are wealthy enough, do like she said. If not, keep them for yourself. (end of Version #2).

(b)Rishonim

1.Rif: We do not accept deposits from a woman, slave or child. If the woman, slave or child said what to do with it just before dying, Reuven does so. Some say that he interprets the command.

i.Nimukei Yosef (DH Perush): 'Interprets the command' means that they were ashamed to say that they stole it. Therefore, the Ba'al (husband, master or father) may keep it unless Ploni brings a proof that it is his or swears.

ii.Question (Beis Yosef CM 86 DH v'Chosav Nimukei): Why is he believed to swear that it is his? I did not see any Poskim say so.

iii.Nimukei Yosef (DH Iy): 'If you estimate that they are wealthy enough' means that Ploni is wealthy enough to give such a deposit. Alternatively, it means 'if your wife has so much money over which you have no Reshus in it.' We assume that she wants to give a gift to Ploni.

2.Rosh (3:55): The text of Bahag and is '(if the depositor said what to do with it...) Reuven does so. If not, he interprets the command.' The Rashbam explains this like the case of Rabah bar bar Chanah's wife. If Reuven does not believe the depositor, or he is not estimated to be so wealthy, he interprets the command and returns to the owner. According to the Rif's text, the two versions argue about one who is estimated. The first version believes him, since he is estimated. Or, they argue about when he is not estimated, and Rav ruled like the latter version. The Ge'onim say that the first version is always primary. The majority say so, but some say differently. It is proper to explain the first way, so that Rav is like the first version.

3.Rif (Bava Metzia 25a): If Reuven believes the command, he follows it. If not, he interprets the command. Some say that if he is estimated, he follows the command. If not, he interprets the command.

4.Rambam (Hilchos Ishus 22:32): We do not accept deposits from a woman, slave or child. If when the depositor was about to die, he said 'the deposit is Ploni's', if he (Reuven) normally believed him, he follows the command. If not, he gives it to his (the depositor's) heirs.

i.Magid Mishneh: The Ri mi'Gash says that this is when she died and her husband inherited her and he gives. In her lifetime, it says that we return to her. Since she gives, he cannot protest. The same applies when a slave or child deposited.

5.Rosh (ibid.): If Reuven took a deposit from a woman, and she said 'give it to Ploni', she is believed due to a Migo. She could have taken it back and given it to him. We distinguish between whether or not she is believed in a case like Rabah bar bar Chanah's wife, who was about to die. She had no Migo, for she could not give it to him. Even if her husband says 'it is mine', Reuven does not return it to her husband. If the Halachah wefre that he returns it, the Beraisa would have taught that we inform her husband. Normally, what a woman has came from her husband's house. If he said that it is his, we would return it to him. Rather, even if he says that it is his, we give it to her. If he seized it from her, Beis Din does not return it to her. She is not believed to say that it is Ploni's. We learned that if one borrowed from his wife and divorced her, she has no claim against him. If she were believed to say that it is Ploni's, she would be believed to say that it is hers, Migo she could say that it is another's deposit. She need not say who deposited it. It would remain with her forever. The Ri says so. R. Shimshon asked, if so, why does she acquire (what he sold to her) with exposed money? She does not acquire with hidden money, for he can say that he intended to get her to reveal it. Even if it was exposed, he can say that he intended to get it from her! He answered that if her husband seized exposed money, Beis Din returns it to her. If he seized hidden money, Beis Din returns it to him. We say that he does not owe her what he borrowed from her, i.e. if the money was hidden. If she does business in the house, she is not believed to say that the money is hers or of Ploni (52b). The same applies if she does not do business in the house, but her husband deposits everything with her.

(c)Poskim

1.Shulchan Aruch (EH 86:1): We do not accept deposits from a married woman. If Reuven took a deposit from her, he returns it to her.

2.Rema: If she said 'it is Ploni's', she is believed.

i.Beis Shmuel (3): The Rambam holds that there is a Chazakah that whatever she has is Nichsei Melug. She is not believed to say that it was given to her on condition that her husband has no rights in it. The Tur brings other Poskim who say that she is believed. Here, the Rambam could admit that she is believed, Migo she could take it and give it to Ploni. However, why do we return to her when she does business in the house? We must say that she has no Migo, for we inform the husband! If so, we have no source why the Rambam should admit.

ii.Chazon Ish (Kesuvos 72:18 DH Sham Sa'if): Even though If we inform the husband because we are concerned that she is hiding it from him, we should inform him before returning it to her! What does it help to inform him afterwards? She can hide it immediately, or claim that she gave it to her husband! Rather, whenever we return it to her we need not inform the husband, for we do not assume that she hides from him. However, perhaps it is not a Migo to say that it is Ploni's, like I wrote in Sa'if 16.

iii.Chazon Ish (16): Even though Stam we believe her to give it to Ploni, if her husband demands from Reuven, her husband gets it. Likewise, her husband can claim it from Ploni. There is no Migo, for had she taken it herself and given it to Ploni, her husband would get it back if he could prove that Ploni got from her. We return it to her because we do not suspect that she hides it from her husband (unless she says to give it to Ploni), but she is not believed to say that it is hers. She does not realize that we suspect her. If she openly said that it is hers, perhaps she is believed, Migo she could have hidden it.

3.Shulchan Aruch (ibid): If when she was about to die, she said 'the deposit is Ploni's', if he believes her, he does like she said. If not, he gives it to her heirs.

i.Beis Yosef (DH u'Posak): The Rambam and Tur rule like the first version. R. Yerucham rules like the second version.

ii.Gra (3): We rule like the first version because the Beraisa supports it.

iii.Beis Yosef (DH u'Piresh): There is nothing different about when they are about to die, just it is the normal case. If they were healthy, they would themselves return it to Ploni, and not reveal that it was not theirs. If he does not believe them, presumably they were ashamed to say that they stole it from their Ba'al.

iv.R. Yerucham (Meisharim 23:6, 58:3, cited in Beis Yosef DH Kosav Rabeinu): David claimed that Shimon owes him. Shimon said 'I will keep the money, for you owe to my wife.' If she is alive and says 'give to my husband', Shimon keeps the money. If she died, we do like she commanded, and give to her husband. If so, in any case he keeps the money.

4.Shulchan Aruch (ibid): Some say that if she does business in the house, she is not believed to say that the money is Ploni's.

See also:

DEPOSITS THAT MAY HAVE BEEN STOLEN (Bava Basra 51)

WHO EATS THE PEROS OF A GIFT TO A MARRIED WOMAN? (Bava Basra 136)

OTHER D.A.F. RESOURCES ON THIS DAF