BAVA BASRA 136 (13 Sivan) - Dedicated by Elliot and Lori Linzer to commemorate the Yahrzeit of Chaim Yoseph ben Ephraim Henoch ha'Levi z'l.

136b----------------------------------------136b

1)WHO EATS THE PEROS OF A GIFT TO A MARRIED WOMAN?

(a)Gemara

1.51b (Rava): The Halachah is, if one gave a gift to his wife, she acquires and she eats the Peros.

2.136b: R. Yochanan holds that Kinyan (the right to the) Peros is like Kinyan ha'Guf (owning the property itself). Reish Lakish holds that Kinyan Peros is not like Kinyan ha'Guf.

3.Yevamos 36b (Rava): The Halachah follows Reish Lakish.

4.Nedarim 88a (Mishnah): If Reuven vowed not to benefit his son-in-law, he can give money to his daughter 'on condition that your husband has no Reshus over it. It is only for you to buy food with it and to eat the food.'

5.(Rav): This is only if he says 'it is given only for you to buy food with it and to eat the food.' If he says 'do like you want with it', her husband acquires the money.

6.(Shmuel): In either case, her husband does not acquire the money.

7.Gitin 77b: A dying man wrote a Get to his wife shortly before Shabbos. He was not able to give it before Shabbos. He did not expect to survive until after Shabbos. Rava suggested that he should give to her (on Shabbos), for a gift, the place where the Get is resting. She should close the door there (on Shabbos) to acquire it through Chazakah.

8.Rav Ilish: She will not acquire the area! What a wife acquires belongs to her husband!

9.Bava Kama 88b (Mishnah): If Reuven wrote a document giving his property to his son after Reuven's death, the son may not sell the property, because it is under the father's Reshus. If he son sold it, the buyer does not get it until the father dies.

(b)Rishonim

1.Rif (Bava Basra 27b): All agree that if one gave a gift to his wife, he does not eat the Peros.

i.Ran (Kidushin 8b DH Rav): Rashi (Sanhedrin 71a DH Al) says that a husband (totally) acquires a gift given to his wife, like he acquires her Metzi'os. This is wrong.

2.Rambam (Hilchos Nedarim 7:17): If Reuven vowed not to benefit his son-in-law, he may not give money to his daughter 'on condition that your husband has no Reshus over it' unless he specifies what it is for or that it is for her desires. It is forbidden without specifying, for her husband acquires the right to eat the Peros.

3.Rambam (Hilchos Ishus 22:27): If one gave a gift to his wife, whether land or Metaltelim, she acquires and he does not eat the Peros.

i.Rashba (cited in Magid Mishneh): If she dies, he inherits the gift. This is like one who gave a gift to his son. The son eats the Peros, and if he dies his father inherits him. Even if she sold or gave the gift to another, her husband takes it after she dies, unless he authorized her to do so. A Gaon holds that this permits her to sell or give it and the recipient keeps it during her lifetime, but her husband takes it back after her death unless he explicitly stipulated not to. I lean to disagree.

ii.Gra (EH 85:18): After Nisu'in a husband cannot stipulate not to inherit from her even her property (and all the more so, what he gives to her)!

4.Rambam (ibid.): Similarly, if someone else gave a gift to her on condition that her husband will not eat the Peros, rather, the Peros will be for what she wants, he does not eat the Peros.

5.Rosh (Bava Basra 3:54): Here we say that one does not eat the Peros of a gift that he gave to his wife. Why did Rav Ilish (Gitin 77b) say that she would not acquire the place, and Rava was initially embarrassed? Some say that there, he did not give a true gift. It was only a loan until divorce. I disagree. R. Tam answers that a husband's rights of acquisition do not depend on eating the Peros. Rava holds like Reish Lakish, who says that Kinyan Peros is not like Kinyan ha'Guf. Therefore, even if the husband has Kinyan Peros, this does not uproot her Kinyan ha'Guf. Rather, she cannot acquire through it because she cannot sell or give the property. Even though he gave to her generously, and gave her Kinyan Peros for her entire life, he did not intend to lose the land. It returns to him after she dies. Also, even though she eats the Peros, the Peros become Nichsei Melug and he eats the Peros of the Peros.

6.Rosh (Kidushin 1:29): A woman can totally acquire a gift from her husband. He does not eat the Peros. She cannot acquire a gift from someone else. I.e. she acquires the Guf, but her husband eats the Peros, like he does from Nichsei Melug. They buy land with the gift, and he eats the Peros. Even though he totally acquires her Metzi'os (Hefker objects that she finds), we do not find that Chachamim enacted that he totally acquires gifts given to her. The Yerushalmi says that they enacted that he receives her Metzi'os, lest she steal from him and say that she found a Metzi'ah. It asked, perhaps she will steal and claim that she received a gift! It answered that a gift has publicity.

i.Beis Shmuel (EH 85:12): The first Tana in the Yerushalmi says that her husband gets her Metzi'os to avoid enmity. We must say that we are not concerned for enmity regarding gifts, for the giver did not want to give to her husband. The husband's creditor cannot collect from Peros of the gift, for this would reduce the standard of living in the house.

(c)Poskim

1.Shulchan Aruch (EH 85:7): If a woman received a gift after Nisu'in, it becomes Nichsei Melug, like property she brought into the marriage. If her husband gave a gift to her, whether land or Metaltelim, she acquires and he does not eat the Peros. However, she cannot sell or give what he gave to her. It remains with her, and if she dies he inherits her. The Peros she gets from it are like Nichsei Melug. They sell them and use the money to buy land, and he eats the Peros.

i.Beis Yosef (DH uv'Chidushei, citing the Rashba, Ge'onim and Nimukei Yosef): If one gave a gift to his wife, she acquires and she eats the Peros. If she sold it and died, he takes it from the buyers, like Nichsei Melug. The Ramah holds that her husband does not get it back, since he has no Peros.

ii.Beis Meir: I say that the Rambam holds like the Ramah. He says that the husband does not eat the Peros of a gift he gave to his wife, or if someone gave it to her a gift on condition that her husband not get the Peros. Just like in the latter case they are totally hers, also in the former case. R. Tam holds that her sale is Batel. This is unlike property he did not know about; even though he inherits it, if she sold it, the sale stands. This is because his gift depends on his will, and he did not want to uproot his inheritance. Alternatively, Takanas Usha was not made for property he does not know about. I say that also the Rashba holds like the Ramah, therefore the sale is Batel only after she dies.

iii.Prishah (18): It seems that she may sell the land from today to take effect if (and when) her husband will die in her lifetime, like for Nichsei Melug. The Tur just teaches that we do not say that since he gave to her a gift, she can immediately sell it totally, Guf and Peros. He still eats the Peros, and inherits it if she dies first.

2.Rebuttal (Taz 4*): The Rashbam (50a DH ha'Ba'al) explains that her sale helps for when her husband will die in her lifetime. Then, the buyer gets it. R. Tam (brought in the Rosh) says that a husband's rights of acquisition do not depend on eating the Peros. Even though he generously gave her Peros for her entire life, he did not intend to lose the land. Also, even though she eats the Peros, the Peros become Nichsei Melug and he eats the Peros of the Peros. This connotes that she cannot sell at all. We do not find an argument about whether or not she can sell the way the Prishah says. According to R. Tam's first reason, he wanted her to benefit from the Peros her entire lifetime, and then it will return to him or to his heirs. Therefore, even a sale to take effect after he dies is invalid. R. Tam's second reason was that the Peros become Nichsei Melug and he eats the Peros of the Peros. Due to Takanas Usha, all agree that a husband's Kinyan Peros is like Kinyan ha'Guf. She can sell fo after he dies, just like a son can sell the property (that his father wrote to him) for after his father will die (Bava Kama 88b). The Rashbam taught regarding Nichsei Melug that her sale helps for when her husband will die in her lifetime. R. Tam's first reason teaches that this does not apply to a gift that he gave to her.

See also:

STIPULATIONS TO DIVERT PROPERTY (Kesuvos 79)

HOW CAN A MARRIED WOMAN ACQUIRE PROPERTY? (Nazir 24)

CAN A WIFE RECEIVE A GIFT FOR HERSELF? (Kidushin 24)

A HUSBAND GETS BACK WHAT HIS WIFE SOLD (Bava Basra 50)

OTHER D.A.F. RESOURCES ON THIS DAF