1)IS A HUSBAND LIKE A BUYER, OR LIKE AN HEIR?

(a)Gemara

1.Question (Avuha bar Geneiva): If a woman borrowed money, consumed it and married, is the husband considered like a buyer (in her property), or like an heir?

i.If he is like a buyer, a Milveh Al Peh (a loan without a document) cannot be collected from him. If he is like an heir, it is collected.

2.Answer #1 (Rava - Mishnah): If the big daughters married, the small daughters also marry.

i.The case is, a big daughter married David (and brought money of the estate). R. Chiya taught that small daughters marry from David's property!

3.Rejection: Perhaps dowries are different. Since they are publicized, they are like loans with a document. (We cannot learn to a Milveh Al Peh.)

4.Answer #2 (Rav Papa): Ravin taught that if a man died, and left a widow and daughter, the widow is fed from the estate. If the daughter married, (her husband uses the property, on condition that) the widow is still fed from it.

i.We understand this if the husband is like an heir (she is normally fed from the estate after it fell to the heirs). But if the husband is like a buyer, why is she fed? (She is not fed from sold property!)

ii.Support (for Ravin - Abaye - Mishnah): The following do not return in Yovel: the extra portion of the Bechor, and one who inherits his wife.

5.Objection (Rava): R. Yosi bar Chanina taught that in Usha, they enacted that if a wife sold her Melug property, and she died, her husband takes the property from the buyer.

i.(Granted, if a husband is like a buyer at the time of marriage, he takes from the second buyer. However, if he is like an heir, why can he take from the buyer? He inherits only after she dies, and she already sold it!)

6.Answer (Rav Ashi): Sometimes Chachamim made the husband like an heir, and sometimes they made him like a buyer, whichever is better for him. Regarding Yovel, they made him like an heir, so he will keep the property. Regarding Takanas Usha, he is like a buyer, so he will not lose his wife's property (after he improved it). Regarding feeding the widow, he is like an heir, so she will not lose (what she was promised in the Kesuvah).

7.Question: Why are we concerned for her loss, but not for the loss of buyers (regarding Takanas Usha)?

8.Answer: There, the buyers caused their own loss. They should not have bought from a married woman.

(b)Rishonim

1.Rif and Rosh (8:56): The question was not settled. Therefore, one cannot collect a Milveh Al Peh from the husband. He caused his own loss by borrowing without a document.

i.Beis Yosef (EH 91 DH Hayah): The Rashbam says in the name of R. Tam that Chachamim make her husband like an heir, lest the lender lose.

ii.Nimukei Yosef (DH Parnasah): It is known that there is a liien for Parnasah, i.e. clothing, against the estate, so it is like a loan with a document. It is collected from buyers, for they should have known to be careful. However, we can say that small daughters do not collect food for the needs of Nisu'in from the husbands of older daughters, even though the older daughters brought everything to their husbands. This is if the property is not intact, but was consumed. If the property is intact, all agree that theft is returned wherever it is. The same applies if she borrowed and then married. Her husband is a buyer, so the lender cannot collect from him. If the lender comes before she marries and protests that she pay him or designate property for payment, lest he lose, or if a borrower is squandering his property or wants to leave the city before the loan is due, we stop him. In the latter two cases, the Rif said in a Teshuvah that we force him to leave enough money to pay the debt, lest everyone borrow and squander the money or go overseas, and people will be deterred from lending.

iii.Hagahos Ashri: R. Chananel, the Rashbam and R. Baruch rule that the husband is like an heir, so the lender will not lose and people be dissuaded from lending. This is reasonable. The Halachah follows them.

2.Rambam (Hilchos Malveh 26:12): If a woman borrowed with a document, or became an Arev (guarantor) with a document, and married, she must pay after she married. If it was a Milveh Al Peh, she does not pay until she is widowed or divorced. A husband is like a buyer. If the money of the loan was intact, it is returned to the lender.

i.Magid Mishneh (9,12): Rav Shrirah Gaon and Rav Hai Gaon say that if the money is intact, it is returned, even if she borrowed after marrying. This is difficult, for a loan is given to be spent. Even if the money is intact, it is as if it was spent! Perhaps this is because the Gemara asked about one who borrowed money, consumed it and married, but if the money is intact, it is returned.

(c)Poskim

1.Shulchan Aruch (CM 90:9): If a woman sold her Nichsei Melug (property she brought into the marriage, and when she is widowed or divorced, she gets it back without compensation for change in value), (her husband takes it back;) if the money paid is intact, the buyer gets it back.

i.Beis Meir (DH Kayamim): The sale is Batel, so the money or what it was exchanged for is in the buyer's Reshus. This is unlike a married woman who borrowed. The Magid Mishneh said that it should not matter whether the money is intact, for a loan was given to be spent. However, in Halachah 12 the Magid Mishneh agreed that we distinguish, for the Gemara asked only about one who borrowed money, consumed it and married.

2.Shulchan Aruch (EH 91:4): If a woman owed a Milveh Al Peh and she married, it is not collected from her husband, for a Milveh Al Peh is not collected from buyers.

i.Beis Yosef (DH u'Mah she'Chosav): The Tur cites Teshuvas ha'Rosh (35:7) in which he says that if Reuven sent Sivlonos (pre-nuptial gifts) to Leah, and she married David, Reuven collects from David, for Sivlonos is like a loan with a document. We infer that one cannot collect a Milveh Al Peh.

ii.Beis Shmuel (9): Chachamim made the husband like a buyer if no one else will lose, or if the one who loses caused his own loss. Some Poskim say that here he is like an heir, lest the lender lose. The Shulchan Aruch rules that the lender cannot force the husband to pay, but if he seized, we do not take from him. We discuss paying from property she brought to him. All agree that he need not pay with his own property. This is like Tosfos, the Mordechai and Maharik, but unlike R. Baruch. The Rashbam and Rambam hold that our Sugya is even in her lifetime.

3.Rema: If the money of the loan was intact, he must pay. If the lender comes before she marries and wants to protest against her marriage before she pays him, lest he lose, we heed him, even if the loan is not due yet.

i.Beis Yosef (DH Hayah): The Nimukei Yosef (DH Lovsah) says that the question was even when the money is intact. It is considered Nichsei Melug, for a loan is given to be spent. R. Yerucham says that if it is intact, surely the lender collects it.

ii.Chelkas Mechokek (6): He need not pay from something that came due to the money she borrowed (EH 90:9). However, the Nimukei Yosef (Sof DH Sholach) says that if there is something that came from the money she took, and all the more so if the money itself is intact, the lender collects from the buyer. The same applies here.

iii.Rebuttal (Beis Shmuel 10): The Nimukei Yosef (DH Lavsah) says that even if the money is intact, her husband need not pay! In DH Sholach, he discusses one who sold her Nichsei Melug.

iv.Answer (Beis Meir 90:9 DH Kayamim): The Chelkas Mechokek merely brings from the Nimukei Yosef that when intact money must be returned, the same applies to what the money was exchanged for.

4.Rema: If she owed a loan with a document, it is collected from property that she brought to her husband.

i.Beis Yosef (DH v'Chosav): The Rosh (39:1) says that a loan document can be collected even before she dies, from property she brought to her husband.

ii.Beis Shmuel (12): It is collected from Nichsei Melug and Nichsei Tzon Barzel (property she brought into the marriage, and when she is widowed or divorced, she gets it back, and there is compensation if its value changed).

Other Halachos relevant to this Daf:

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

OTHER D.A.F. RESOURCES ON THIS DAF