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QUESTION: The Gemara explains that a woman's Kesuvah has a monetary value to her even before her husband dies or divorces her: she can sell to a buyer her rights to collect the Kesuvah in the event that she is divorced or widowed. This value is referred to as "Tovas Hana'ah," since its value is less than the full value of the Kesuvah. Why is a woman able to sell her rights to collect the Kesuvah? Those rights should be considered a "Davar she'Lo Ba l'Olam," an item which does not yet exist in the world, which cannot be sold. In fact, the Gemara applies this rule to a similar case in Kesuvos (59a), in which a married woman sanctifies her earnings (Ma'aseh Yadayim) to Hekdesh from the moment that she will be divorced. The Gemara teaches that since the husband is entitled to receive his wife's earnings, she cannot sanctify her earnings while she is still married because they are not hers to sanctify. The Gemara rules that because of this, she cannot sanctify even what she will earn after she becomes divorced, since it is a "Davar she'Lo Ba l'Olam." Just as she cannot sanctify something that will become hers only upon divorce, she also cannot sell something that will become hers only upon divorce! What is the difference between her Kesuvah and her Ma'aseh Yadayim? The PNEI YEHOSHUA asks this question and adds that he "thought about it from every angle but could not find a suitable solution."
ANSWERS:
They add that this might be why the RAMBAM (Hilchos Chovel u'Mazik 4:21) does not specify that a woman is exempt from paying for damages only when she has no Kesuvah and no Nichsei Milug. The Rambam rules like the conclusion of the Gemara in Kesuvos, which states that a woman cannot sell her Nichsei Milug or her Kesuvah for "Tovas Hana'ah." (b) The YAM HA'TALMUD disagrees with the Pnei Yehoshua and explains that a Kesuvah is like any other Shtar Chov, deed of debt. A number of Gemaras discuss the sale of a Shtar Chov (see Bava Basra 75a) and do not consider it a "Davar she'Lo Ba l'Olam." The reason is that the debt creates a lien (Shibud) on property that is presently in the possession of the borrower. It is that lien which is present and is a "Davar she'Ba l'Olam" which can be transferred through the transfer of ownership of the Shtar. This cannot be compared to the case of the Gemara in Kesuvos which discusses something that the woman will produce only after she becomes divorced. The Pnei Yehoshua himself considers this possibility but rejects it on the grounds that a Shtar Chov normally entitles the recipient (the one who receives the Shtar Chov) to a benefit that is definite. A Kesuvah, however, provides no guaranteed benefit, since it is given to the woman only in the event that the husband divorces her or dies before she does. Therefore, it should be considered a "Davar she'Lo Ba l'Olam." Other Acharonim, however, do not differentiate between a Kesuvah and a normal Shtar Chov. They maintain that although the requirement to pay the Kesuvah funds is conditional, the Shtar itself is not considered a "Davar she'Lo Ba l'Olam" since it creates a conditional lien on the husband's property.
2) THE "TOVAS HANA'AH" OF A WOMAN'S KESUVAH
However, this seems self-contradictory. If the Tovas Hana'ah is considered Peros, the husband should receive all of the Tovas Hana'ah just as he receives all of the ordinary Peros of his wife's property! (RASHBA) ANSWER: The RASHBA cites the RA'AVAD who explains that when the Gemara says that the Rabanan instituted that the husband receives Peros, it does not refer to the Tovas Hana'ah of the Kesuvah. Rather, it refers to the ordinary Peros which grow from his wife's property. The Gemara refers to Tovas Hana'ah itself as Peros of Peros because Tovas Hana'ah is a benefit that is not part of the ordinary Peros that grow from the field, but rather it is external to the field. The Shitah Mekubetzes cites RABEINU YEHONASAN MI'LUNIL who elucidates this idea. He writes that benefits which can be derived from the field without detracting in any way from the normal benefits that the husband receives constantly from the field (i.e. the fruits that grow from it) are called Peros of Peros since they are a secondary level of benefit. Since Tovas Hana'ah is in this second category, the husband receives neither the Guf nor the Peros of the Tovas Hana'ah. (This is also the intention of TOSFOS DH Peira d'Peira.)
3) A MARRIED WOMAN'S REQUIREMENT TO PAY FOR DAMAGES THAT SHE CAUSES
(a) If there is a concern that the woman might pardon the Kesuvah to her husband, Beis Din should not obligate the woman at all for causing damage, even if to make her pay only after she is divorced! How will she pay after she is divorced if she will pardon the Kesuvah to her husband, leaving her with no money? (b) Why does the woman even need to sell her Kesuvah for its Tovas Hana'ah in order for the victim to receive payment for the damages done to him? Since the woman inevitably will have to pay her Kesuvah to the victim upon her divorce, the victim himself should be able to sell that Kesuvah for Tovas Hana'ah at present, just as the woman can sell it. He can approach another person and offer to sell this woman's Kesuvah, which she will have to pay to him as compensation for damages in the event that she becomes divorced or widowed. (RAV Y. LANDY)
ANSWERS:
(b) The simple answer to the second question is that the victim does not want to bother with finding a buyer for the Tovas Hana'ah of the Kesuvah. He wants cash. Therefore, it is logical to require the woman to sell the Kesuvah for Tovas Hana'ah and to give the money to the victim as compensation for the damages, rather than placing on the victim the burden of finding a buyer for the Tovas Hana'ah.. However, this answer does not suffice to explain the later part of the Gemara which suggests that the woman should give the Tovas Hana'ah of the Kesuvah directly to the victim as compensation for damages. If the woman pays in such a manner, the victim receives concrete compensation at all -- until after the husband dies and the victim receives the money of the Kesuvah. What, then, is gained by having the woman give the Tovas Hana'ah to the victim before she receives the actual Kesuvah? (This question is posed by the MAHARI KATZ in the Shitah Mekubetzes.) The DARCHEI DAVID answers that it indeed is beneficial for the victim to receive the Tovas Hana'ah immediately from the woman. If he would receive compensation only after the husband dies, the amount that he would receive from the woman would be exactly equal to the value of the damage that she caused him. For example, if she caused 100 Zuz worth of damage, he will receive 100 Zuz worth of the Kesuvah. However, if the woman pays the victim by giving him the Tovas Hana'ah of the Kesuvah immediately, he will receive a much greater portion of the Kesuvah since the Tovas Hana'ah of 100 Zuz is always worth less than 100 Zuz. Therefore, 100 Zuz worth of Tovas Hana'ah could be worth 150 or 200 Zuz of the Kesuvah after the husband dies.
4) PAYING FOR DAMAGES WITH "NICHSEI MILUG"
Why does RASHI on the Mishnah (87a, DH Chayavin l'Shalem) write that a woman cannot pay with Nichsei Milug because her Nichsei Milug are Meshubad to the husband for Peros and for Yerushah (if she dies first)? As the HAGAHOS ASHIRI points out, this implies that the woman does have property of Nichsei Milug but she cannot use the produce of the Nichsei Milug, or the Nichsei Milug itself, as payment since it is Meshubad to her husband. Rashi seems to contradict the Gemara that says that the case of the Mishnah is one in which the woman has no Nichsei Milug! (PNEI YEHOSHUA, REBBI AKIVA EIGER)
ANSWERS:
However, the PNEI YEHOSHUA, REBBI AKIVA EIGER, and others strongly oppose this view. They point out that when the Rishonim explain why a person may be Mochel a loan after selling it, none of their explanations apply to a woman who is Mochel the Nichsei Milug or Nichsei Tzon Barzel after she sells them for their Tovas Hana'ah. (See Insights to Kesuvos 85:1.) One reason why a creditor may be Mochel the loan after he has sold it is that a loan is not subject to be sold mid'Oraisa. This applies, however, only to a loan which is merely a Shibud; it does not apply to the Nichsei Milug, which is actually her property and certainly may be sold mid'Oraisa.
Another reason why a creditor may be Mochel a loan after he sells it is that he cannot sell the Shibud ha'Guf at all, even mid'Rabanan; he can sell only the Shibud Mamon, after which point he can be Mochel the Shibud ha'Guf, thereby removing the Shibud Mamon as well. This reason also does not apply to Nichsei Milug, since the woman sells the actual property and not just a Shibud. (The property is hers; the husband's Shibud to it is removed upon his death.)
(b) Perhaps Rashi does not mean that the woman is not obligated to sell her Nichsei Milug for Tovas Hana'ah. Rashi is not addressing the Tovas Hana'ah (for that issue is addressed later in the Gemara). Rather, Rashi is simply explaining why the woman cannot pay with the actual Peros of the Nichsei Milug, or with the Guf of the Nichsei Milug, before her husband's death. Rashi answers that these benefits are Meshubad to the husband. The reason why the woman cannot pay with the Tovas Hana'ah is as the Gemara says: she has no Tovas Hana'ah (and not that she has no Nichsei Milug), such as in a case where she has already sold the Tovas Hana'ah. (M. Kornfeld)
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