More Discussions for this daf
1. Proof from Shmuel 2. Tovas Hana'ah/Takanas Usha
DAF DISCUSSIONS - BAVA KAMA 89

At the end of Amud Aleph the Gemara tries to learn from Shmuel that we can't force a woman to sell her Kesubah since if she is Mochel, the LoKayach will lose out. I don't quite understand how the Gemara is learning this Halacha from Shmuel, because Shmuel appears to be saying just the opposite...that we are not concerned about if the LoKayach loses out.

So if Shmuel is learning that the Malveh can be Mochel even though the LoKayach loses out, wouldn't we naturally also learn out that a woman can sell her Kesuba even though the LoKayach will lose out? (I understand that the Gemara goes on to suggest this, but I want to know why in the Hava Minah of the Gemara did we choose Shmuel's statement to learn out the Halacha by a woman which appears to be just the opposite of Shmuel's Halacha?)

Jeremy Caplan, Edison, NJ USA

The Kollel replies:

1. The Gemara is analysing the Mishnah (above 89a) which states that you always come out for the worst if you are up against an Eved or a woman because somebody who injures them has to pay, whilst if they injure someone else, they are exempt from paying.

2. The Gemara asks why is a woman exempt from paying damages she incurred - one cannot say this is because she has no money, because there would seem to be a way that she could acquire money, namely by selling her Kesubah for"Tovas Hana'ah"?(i.e. for the reduced price that somebody might be prepared to pay for it, considering that the wife might never gain anything from it since if the wife dies before her husband the husband will inherit her Kesubah).

3. The Gemara answers eventually that the reason the Mishnah 89a maintains that a woman possesses no money with which she can pay for the damage she did, can be understood according to the Halachah that Shmuel stated that if someone sells a deed of debt, and then the original seller was Mochel the debt, the Mechilah is effective, and it transpires that the Loke'ach loses out. This Din of Shmuel is a given, and the Halachah follows him. However we would not tell a woman to sell her Kesuvah in the first place in order to fund her paying the damages because this would involve the Loke'ach losing should the lady be Mochel the Kesuvah at a later date. [The latter possibility is indeed very likely because she is liable later on to be Mochel the Kesuvah to her husband since she was forced to sell the Kesuvah and will not lose anything by being Mochel the Kesuvah - see Rashi DH v'Chozar]. Chazal would not want actively to create a situation where the Loke'ach would suffer. In contrast Shmuel is not saying that the seller of the deed should l'Chatchilah be Mochel but is rather stating what the Halachah is if he does in fact do so b'Di'eved.

4. In short Shmuel is stating what the Halachah is when someone sells a Shtar, but Chazal did not want to encourage this practice because it would cause a lot of quarrels, since the Loke'ach stands to lose from it.

KOL TUV

David Bloom