66b bottom
We bring a braisa to support reb yehuda that the tzon barzel 'sheep' belongs to her.
The rashi explains that the braisa holds that even when the husband sells and he survived her death, he can still claim back from lekuchos. But we saw a gemoro in 36b top that resh lokish holds that if a son sells his father's stuff if he owns the keren, rashi says there, that if the son survives the father then he cannot claim back the stuff, because, mah mochar rishon lesheni - kol zechus shetovoy, so it should be the exact same over here?
Avrumi Hersh, London england
The Gemara in Bava Kama 88b asks your question, not with respect to Nichsei Tzon Barzel discussed here, but with respect to Nichsei Melug. By way of introduction, Nichsei Tzon Barzel is property for which a husband accepts full Achrayus (liability) for any depreciation in value of property that his wife brings to the marriage for his use, should the marriage come to an end. Nichsei Melug is property for which the husband has no Achrayus and only enjoys the Peros (Rashi 66a, DH Hichnisah Lo).
The Gemara that you mentioned in Yevamos 46b is a case of a father who gave his property to his son, where the father retains ownership over the Peros of that property until he dies and the son has a Kinyan ha'Guf in the actual land. We rule like Resh Lakish who says that a Kinyan Peros is not equal to a Kinyan ha'Guf, meaning that the son has full ownership of the field in the father's lifetime despite the fact that his father enjoys the Peros. This mean that if the son sells the field before his father dies, the sale is valid, even if he predeceases his father.
The Gemara in Bava Kama 88b then cites a parallel case of Nichsei Melug for which the husband has a Kinyan Peros while the wife retains a Kinyan ha'Guf. If the wife sells the property, the sale should be valid according to Resh Lakish, yet the Gemara rules that the husband is entitled to appropriate it from the purchaser after his wife dies. The Gemara answers that it is due to a Takanas Chachamim (known as Takanas Usha) that the husband collects. (Tosfos and the Rashba differ on how Takanas Usha works.)
Our Gemara, on the other hand, discusses Nichsei Tzon Barzel where the husband accepts full Achrayus. Achrayus indicates a Kinyan in the object, as we see with a Ganav, a Mashkon, or a Shomer for example (see Tosfos to Bava Kama 56b, DH Peshita).
Tosfos here (66a, DH Avdei Melug) explains that a husband actually has a Kinyan ha'Guf in Nichsei Tzon Barzel. The Gemara mentions a Nafka Minah with respect to Achilas Terumah of an Eved Kena'ani or Behemah of Nichsei Tzon Barzel and Shen v'Ayin of an Eved Kena'ani of Nichsei Tzon Barzel. We see that a husband has a higher degree of ownership in Nichsei Tzon Barzel than in Nichsei Melug and it is not surprising that the Gemara should say the husband may take back Nichsei Tzon Barzel sold by his wife.
Avraham Phillips
I understand what you are saying, that the husband can claim back the nichsey tzon barzel that his wife sells, because as you have explained, tzon barzel is EVEN MORE in the husband's possession than nichsey milug.
However my question was on the opposite case in that same braisa, the gemoro says that even if THE HUSBAND sells, nevertheless he can claim back, what he HIMSELF sold to the lekuchos, after his wife's death. Now this makes no sense, especially if we say that tzon barzel is nearly totally in his possession.
The Gemara in Bava Kama 88b asks your question, not with respect to Nichsei Tzon Barzel discussed here, but with respect to Nichsei Melug. By way of introduction, Nichsei Tzon Barzel is property for which a husband accepts full Achrayus (liability) for any depreciation in value of property that his wife brings to the marriage for his use, should the marriage come to an end. Nichsei Melug is property for which the husband has no Achrayus and only enjoys the Peros (Rashi 66a, DH Hichnisah Lo).
The Gemara that you mentioned in Yevamos 46b is a case of a father who gave his property to his son, where the father retains ownership over the Peros of that property until he dies and the son has a Kinyan ha'Guf in the actual land. We rule like Resh Lakish who says that a Kinyan Peros is not equal to a Kinyan ha'Guf, meaning that the son has full ownership of the field in the father's lifetime despite the fact that his father enjoys the Peros. This mean that if the son sells the field before his father dies, the sale is valid, even if he predeceases his father.
The Gemara in Bava Kama 88b then cites a parallel case of Nichsei Melug for which the husband has a Kinyan Peros while the wife retains a Kinyan ha'Guf. If the wife sells the property, the sale should be valid according to Resh Lakish, yet the Gemara rules that the husband is entitled to appropriate it from the purchaser after his wife dies. The Gemara answers that it is due to a Takanas Chachamim (known as Takanas Usha) that the husband collects. (Tosfos and the Rashba differ on how Takanas Usha works.)
Our Gemara, on the other hand, discusses Nichsei Tzon Barzel where the husband accepts full Achrayus. Achrayus indicates a Kinyan in the object, as we see with a Ganav, a Mashkon, or a Shomer for example (see Tosfos to Bava Kama 56b, DH Peshita).
Tosfos here (66a, DH Avdei Melug) explains that a husband actually has a Kinyan ha'Guf in Nichsei Tzon Barzel. The Gemara mentions a Nafka Minah with respect to Achilas Terumah of an Eved Kena'ani or Behemah of Nichsei Tzon Barzel and Shen v'Ayin of an Eved Kena'ani of Nichsei Tzon Barzel. We see that a husband has a higher degree of ownership in Nichsei Tzon Barzel than in Nichsei Melug and it is not surprising that the Gemara should say the husband may take back Nichsei Tzon Barzel sold by his wife.
Avraham Phillips