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."

(a) The PNEI YEHOSHUA and the TUMIM (66:41) suggest that the Gemara here follows the opinions of Rav Papa and Rav Huna brei d'Rav Yehoshua in the Havah Amina of the Gemara in Kesuvos. These Amora'im maintain that a woman may sanctify her Ma'aseh Yadayim that she will earn after she becomes divorced. Although the Gemara there concludes that the Halachah is otherwise, the Gemara here quotes Rav Papa and Rav Huna brei d'Rav Yehoshua, who follow their own opinions as expressed in Kesuvos -- that what a woman will receive after her divorce is not considered a "Davar she'Lo Ba l'Olam." (Rav Papa, however, considers only a wife's Ma'aseh Yadayim as "Ba l'Olam," since the woman owns her hands which are presently "in the world." This would not apply to her Kesuvah.)

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.

QUESTION: Rava rules that money given for Tovas Hana'ah of the Kesuvah (see previous Insight) goes to the woman, and the husband does not receive the Peros produced by that money. The Gemara explains that the reason for this is that when the Rabanan instituted that the husband receives the Peros from his wife's property, they did not institute that he receives the Peros of Peros. The wording of the Gemara implies that Tovas Hana'ah is considered Peros and the husband does not receive the Peros of that Tovas Hana'ah because it is Peros of Peros.

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.)

QUESTIONS: The Gemara asks why a woman has no property with which to pay for damages that she causes while she is married. The Gemara asks that she should pay for the damage by selling the Tovas Hana'ah of her Kesuvah and using the money that she receives to pay for the damages. The Gemara explains that the Rabanan did not require her to sell her Kesuvah because they were concerned that she would then pardon (be Mochel) the Kesuvah to her husband and cause the Tovas Hana'ah which the buyer purchased to become worthless. The Gemara then asks that she should be required to give the Tovas Hana'ah of her Kesuvah directly to the person she damaged as payment for the damages. The Gemara answers that this, too, is not an option, again because the woman will certainly pardon the Kesuvah to her husband and cause the Tovas Hana'ah to become worthless.

(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)

(a) Even if the woman does not receive a Kesuvah or Nichsei Milug upon her divorce, anything she produces after her divorce is considered her own money (since she has no husband). It is from that money that she will have to pay the victim. (This in fact is what the Mishnah means when it says that an Eved must pay for damages after he is freed. The money that he pays is money that he earns after he attains his freedom.)

(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.

QUESTION: The Gemara concludes that a married woman is exempt from paying for damages she caused only because she cannot use the Tovas Hana'ah of her Kesuvah as payment. When the Gemara asks why she is not required to use the Tovas Hana'ah of her Nichsei Milug as payment, the Gemara answers that the Mishnah refers to a case of a woman who has no Nichsei Milug. This is the position of the ROSH (8:9) who rules that if the woman has Nichsei Milug or Nichsei Tzon Barzel, she is required to sell them for their Tovas Hana'ah in order to pay for the damages that she caused.

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)

(a) The SHILTEI GIBORIM suggests that according to the Gemara's conclusion, just as the woman may not pay with the Tovas Hana'ah of her Kesuvah (because of the concern that she will be Mochel the Kesuvah to her husband after she sells it, making the Tovas Hana'ah worthless), so, too, she may not pay with the Tovas Hana'ah of the Nichsei Milug or Nichsei Tzon Barzel (because of the concern that she will be Mochel these benefits to her husband, making the Tovas Hana'ah worthless). He cites support for this from the fact that the Gemara seems to compare the Tosefes Kesuvah -- which is part of the Nichsei Tzon Barzel -- to the Kesuvah itself with regard to selling it for the Tovas Hana'ah.

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)