QUESTIONS: The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. A husband normally receives the rights to the Peros (fruits) of his wife's property and to inherit it when she dies. The wife is able to prevent her husband from receiving the Peros and from inheriting the property by giving away the property as a gift to someone else before the marriage ("Mavrachas"). As a result, the property no longer belongs to her as far as the husband is concerned.

The Gemara says that when the woman makes such a Kinyan, the recipient does not fully acquire the property in case the husband dies before the wife. Rather, as soon as her husband dies the property returns to her, and the recipient of the "gift" has no rights to the property.

The Gemara explains that this technique applies only when the woman gives away all of her property as a gift to someone else before the marriage. If she gives away only part of her property, the recipient indeed acquires it fully unless she specifies at the time of the Kinyan that she is giving it away "from today, when I want." (The meaning of this conditional Kinyan will be addressed below.)

The Gemara asks at the end of the Sugya that since the recipient of the gift does not really acquire it, the Kinyan is not a valid Kinyan, and thus the husband should receive the Peros of the property and inherit it when she dies! (The Gemara answers that when the woman "gives away" her property, it becomes "like property that is unknown to the husband" to which he has no rights, as Rebbi Shimon in the Mishnah (78a) states.)

There are two ambiguous points in the Gemara. To what extent is the Kinyan with which the woman gives all or part of her property to a third party valid? Is it merely a symbolic act intended to fool the husband, or does it have some real validity? The Gemara apparently questions only the status of the property when the woman becomes divorced (or when her husband dies). What is the status of the property when she is married, or when the woman dies before her husband? Who is the true owner of the property at that point -- the woman or the recipient of her "gift"?

If the act of Kinyan does have some validity, why does the Gemara ask that since the Kinyan is not valid the husband should receive all rights to the property?

(a) The TOSFOS RID indeed proves from the Gemara's question -- that the property should go to the husband since the recipient does not actually acquire it -- that the recipient has no rights at all to the property. He neither may eat the Peros nor inherit it when the woman dies. (The AVNEI MILU'IM (EH 90:7) infers from RASHI (DH v'Iy Lo Kananhi) that Rashi also learns that the recipient has no rights at all to the property, but his inference is debatable.) The woman, therefore, may eat the Peros of the property and sell the property (through a non-Mavrachas, valid sale) while she is alive, and if she does not sell it her heirs (other than the husband) inherit it when she dies before her husband. The Kinyan accomplishes only that the property is kept away from her husband.

(b) However, the ROSH (8:2) writes that it is logical that the recipient does receive the Peros of the property while the woman is alive, and he does inherit it after the woman dies. With regard to these two consequences (receiving the Peros and inheriting the property after the woman's death), the Kinyan is valid.

His logic is that the only reason for why the Kinyan is not valid is the assumption ("Umdena") that a woman does not give away all of her property and leave herself penniless. This "Umdena" reveals that she really does not have intention to give it away (see Rashi, DH Ha b'Chula). On the other hand, there is another assumption ("Umdena") that she does want the recipient to acquire the property if she dies so that her husband will not get it. Her objective is to keep the property away from the husband; if the recipient does not receive it, her husband will inherit it because he is her closest of kin. The RAMBAN writes a similar line of reasoning. The same applies with regard to the Peros of the property. She certainly wants the recipient to have the Peros -- both so that the husband will not receive them and so that the recipient will tend to the field and take care of it.

The AVNEI MILU'IM (EH 90:8) questions the Rosh's explanation. What Kinyan has been made that can take the rights of the property away from the husband after she dies? Obviously, the woman has not given it fully to the recipient of the "gift" because, as the Gemara states, if her husband dies before she dies the property belongs to her and not to the recipient of her gift. Moreover, the Rosh himself writes that if the woman wants to sell the property to someone else she may do so at any point. It is for this reason that the Gemara asks that the husband indeed should receive the property since the recipient does not truly own it. Accordingly, when she dies her husband should automatically inherit the property!

The logic suggested by the Gemara later -- that this property is like "property unknown to the husband" (from which the husband does not receive certain benefits) -- clearly does not suffice to prevent the husband from inheriting the property, according to the Rosh. The Rosh writes that if the recipient would not acquire the property, the husband would receive it. The Rosh apparently maintains that property unknown to the husband is inherited by the husband. The Mishnah says about such property merely that if the wife sells or gives away the property before she dies, the transaction is valid and the husband no longer inherits it. (This point will be discussed more in answer (c) below.) Thus, the recipient would be permitted to eat the Peros because the woman allows him to take her Peros as they grow, essentially "giving" them away to him one by one. However, with regard to inheriting the property after she dies, why should the recipient be able to take it away from the husband? It automatically becomes the husband's as soon as his wife dies!

Perhaps an answer may be suggested based on what the Avnei Milu'im himself writes later (EH 90:10). The Avnei Milu'im writes that the Halachah is that "Mitzvah l'Kayem Divrei ha'Mes" -- "it is a Mitzvah to fulfill the request of a dying person [after his death]." This Halachah mandates that his property be given to whomever he specified before he died, if he set aside the property for that purpose (see SHULCHAN ARUCH CM 252). Here, too, perhaps the woman's property is given to the recipient because of "Mitzvah l'Kayem Divrei ha'Mes," since the property was already set aside during her lifetime to be given away to him (since he, and not the husband, was already eating the Peros of the property). Alternatively, the woman might intend to give the recipient her property "from today, if anything is left of it after I die" ("v'Acharai li'Ploni," see Bava Basra 137a). When such a Kinyan is made, the recipient does not own the Peros of the property until the benefactor dies, and if the benefactor sells it before she dies the recipient has no claim to it. (M. Kornfeld)

What, then, is the Gemara's question when it says that the husband should have the rights to the property since the recipient does not own it? The recipient does have the Peros of the property! (It is clear from the Rosh and Ramban that the Gemara's question is directed at the case of a woman who gives all of her property away, and not the case of a woman who gives part of her property away.)

The answer is that the Gemara's question is that the recipient does not really own the Peros or property after the woman dies. Rather, he receives the Peros each day due to the woman's Mechilah; it is as if she gives him the Peros as a gift as they grow (AVNEI MILU'IM 90:8). With regard to the fate of the property after her death, the recipient receives the inheritance because of "Mitzvah l'Kayem Divrei ha'Mes."

(c) The TOSFOS RID first sides with the Rosh, that the recipient may eat the Peros during the husband's lifetime and he inherits her property when she dies, but not because of the "Umdena" that she wants the recipient to receive the property as suggested by the Rosh. Rather, he suggests that in those cases there is no "Umdena" that she does not want the recipient to receive it. After her death she does not care if she has no money, and while she is married she also does not care since her husband supports her. Therefore, the gift would be valid during her lifetime with regard to the Peros and with regard to inheriting the property from her (just as the sale is valid when she gives away only part of her property).

The Tosfos Rid rejects this explanation, however, because of the difficulty involved in interpreting the Gemara's question that the husband should receive the property since the recipient does not receive it. According to this explanation, the recipient does have a valid Kinyan on the property during the marriage and after the wife's death!

The RAN, however, points out that it seems that the RAMBAM does explain the Gemara in this manner. In response to the Tosfos Rid's question, the Rambam explains that the Gemara is not asking that the gift is not valid when she gives all of her property away. Rather, it is asking that the gift is not valid when she gives part of her property away and says that she is giving it "from today, when I want." In such a case, the Kinyan would be valid only if she later expresses her will that the Kinyan should be valid, as Rashi explains. The Gemara is asking that if she dies without expressing her will that the Kinyan be valid, the Kinyan should not be valid and the husband should inherit her property! To this the Gemara answers that the property is like "property unknown to the husband" and therefore the husband has no rights to it.

(The Rambam apparently maintains that if the woman gives away all of her property, the recipient has full rights to it during her lifetime. Consequently, even if she decides to give or sell it to someone else, she may not do so because she fully gave it to the recipient (unless her husband dies). The Rosh and other Rishonim do not agree with this approach; they maintain that she may sell the property during her husband's lifetime. They base their ruling on the Gemara's question, that the husband should own it since the recipient has no right to it. According to the Rambam, that question does not refer to a woman who gives away all of her property.)

The Ran questions this approach. Even according to Rebbi Shimon (who distinguishes between property known to the husband and property unknown to him) we do not find that the husband loses his right to inherit "property unknown to the husband." Rebbi Shimon in the Mishnah says only that if the wife sells such property, the sale is valid. As long as she does not sell it, the husband inherits it.

This point seems to be the topic of dispute among the Rishonim. The words of the Tosfos Rid imply that according to Rebbi Shimon the husband does not receive the Peros or inherit the property that was unknown to him. The words of the Ran imply that the husband has the right to inherit the property but does not receive the Peros. The Ramban (78a) implies that the husband both receives the Peros and inherits the property; the only right he does not have is the right to object if she sells the property. (See AVNEI MILU'IM EH 90:10.)

The Ran cites an answer to his question from "some who say" that the woman who gives away her property in such a manner indeed does not prevent her husband from inheriting her, unless she sells her property. The Ran himself also rules like this in the case of a woman who gives away part of her property. However, the Rambam says that the husband does not inherit her when she gives away part of her property (because it becomes "property unknown to the husband," as the Gemara says). The Ran explains that the Rambam must rule that way because of a Takanah d'Rabanan: since the husband's right to inherit the woman is only mid'Rabanan according to the Rambam (Hilchos Ishus 12), and here the woman shows that she does not want her husband to inherit her, the Rabanan did not give him the inheritance.

QUESTION: The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. A husband normally receives the rights to the Peros (fruits) of his wife's property and to inherit it when she dies. The wife is able to prevent her husband from receiving the Peros and from inheriting the property by giving away the property as a gift to someone else before the marriage ("Mavrachas"). As a result, the property no longer belongs to her as far as the husband is concerned.

The Gemara says that when the woman makes such a Kinyan, the recipient does not fully acquire the property in case the husband dies before the wife. Rather, as soon as her husband dies the property returns to her, and the recipient of the "gift" has no rights to the property. (See previous Insight.)

The Gemara explains that this technique applies only when the woman gives away all of her property as a gift to someone else before the marriage. If she gives away only part of her property, the recipient indeed acquires it fully unless she specifies at the time of the Kinyan that she is giving it away "from today, when I want." If her husband later attempts to take the property, she simply may say that she wants to give it to the recipient. If the recipient attempts to take the property, she simply may say that she does not want to give it as a gift.

How can she change her mind? Once she says that she wants to give the gift to the recipient (when her husband has come to claim it), how can she change her mind and take it away from the recipient? The property is already in the possession of the recipient!

(a) The RE'AH explains that both the husband and the recipient are afraid to claim the property because each one knows that the woman is able to give it to the other. Therefore, neither one will actually make a claim to it.

(b) The CHAZON ISH (76:13) writes that she may say to each one that she has not yet made up her mind. As a result, neither one is able to take the property.

(c) When the woman stipulates that the property will belong to the recipient "when I want," she means that if she decides in her heart that she wants to give it to him, it will be his. Consequently, even if she says otherwise, her intent in her heart is unknown and she can claim later that "I told my husband that I wanted to give it to you only because I wanted to keep it away from him, but I really wanted to keep it for myself and I had no intention for you to acquire it." The rule of "Devarim sheb'Lev Einam Devarim" does not apply since she specifically stipulated that the gift should depend on what she thinks in her heart. (This may also be the intent of Rashi here.) (M. Kornfeld)

(d) RABEINU CHANANEL (cited by the Rosh), the TOSFOS RID, and others explain the woman's stipulation differently from Rashi. She does not mean that the gift should take effect from today when she later wants it to take effect. Rather, she means that the gift should take effect now, and when she later wants to annul the Kinyan it should be annulled. (The RITVA points out that this explanation is not consistent at all with the wording of the Gemara.)

According to this explanation, while her husband is alive she does not say anything, and therefore the husband does not receive the Peros and the recipient does. If she dies before her husband dies, the recipient continues to receive the Peros and he fully acquires the property. If the husband dies first, she annuls the Kinyan so that the recipient no longer has rights to the property.

The KORBAN NESANEL (8:2:50) explains that the Rishonim seem to follow their respective opinions as expressed elsewhere. The Gemara earlier (73b) cites a dispute among Tana'im about what a person means when he marries a woman and says that the marriage will take effect only "on condition that my father consents." Does he mean that it should take effect only if his father explicitly says that he consents (but if his father remains silent the marriage does not take effect), or does he mean that it takes effect automatically and it only becomes annulled if his father explicitly says that he does not consent (but if his father remains silent it takes effect)?

The ROSH rules that the stipulation is fulfilled as long as there is no explicit annulment, and that is why he cites Rabeinu Chananel who says that here, also, the Kinyan loses its effect if the woman later says that she does not want it to take effect (but if she remains silent it takes effect). The RAMBAM, who learns like Rashi that when the woman says "when I want" she means that the Kinyan will take effect only when she explicitly states that she wants it to take effect, is consistent with his own view (Hilchos Ishus 7:1) that "on condition that my father consents" means that the marriage takes effect only when his father explicitly consents to the marriage (but if he remains silent it does not take effect).

OPINIONS: The Gemara discusses the ways in which a woman may prevent her prospective husband from receiving the rights to her property. A husband normally receives the rights to the Peros (fruits) of his wife's property and to inherit it when she dies. The wife is able to prevent her husband from receiving the Peros and from inheriting the property by giving away the property as a gift to someone else before the marriage ("Mavrachas"). As a result, the property no longer belongs to her as far as the husband is concerned, but it does not really belong to the recipient of the gift because she gave it to him only in order to prevent it from going to her husband.

The Gemara asks at the end of the Sugya that since the recipient of the gift does not really acquire it, the Kinyan is not a valid Kinyan, and thus the husband should receive the Peros of the property and inherit it when she dies! The Gemara answers that when the woman "gives away" her property, it becomes "like property that is unknown to the husband" to which he has no rights, as Rebbi Shimon in the Mishnah (78a) states.) Since the husband does not expect to receive the property which the woman gave away, it is considered unknown to him and thus he does not receive it.

Does this ruling apply in the case of a husband who is a Talmid Chacham and who knows that his wife's gift was meaningless and that she still owns the property? In such a case the husband does know that the property is actually his. Will he receive the property or will the recipient still be entitled to take it?

(a) RASHI (DH k'Nechasim) explains that when the man married her, he was under the impression that she gave away her property to someone else as a full-fledged gift. According to Rashi, the husband does not receive the property because it is assumed that he was not aware of her stipulation that her gift was given away only in order to thwart him. If, however, he proves that he was aware of her intent, perhaps he does receive the property.

(Rashi may be consistent with his own opinion as expressed elsewhere. Rashi (end of 78b) explains that the husband loses his rights to the property only if the wife stipulated verbally at the time of the gift that she is giving it away only to thwart her husband (see Insights to 78b). According to the other Rishonim, no verbal stipulation is necessary; if the wife gives away all of her property immediately prior to her marriage it is assumed that she intends to thwart her husband. Accordingly, the husband simply can inquire whether or not the property was given away immediately before his wedding, and he will discover that the Kinyan was not really valid.)

(b) The RASH (cited by the ROSH 8:2) and the RE'AH explain that when the Gemara says that the property she gave away is "like property that is unknown to the husband," it does not mean that the husband does not know about it. Rather, it means that the Rabanan enacted that this property has the same status which Rebbi Shimon gives to "property unknown to the husband." The Rabanan made this enactment in order to help the woman.

TOSFOS and the ROSH reject this approach because the Gemara says that it is "like property that is unknown to the husband, and according to Rebbi Shimon." This implies that only according to Rebbi Shimon is this answer valid. According to the Rash, however, this answer is valid even if the Halachah does not follow the view of Rebbi Shimon; the Gemara is saying that when a woman gives away her property before she gets married in order to keep it away from her husband, the Rabanan enacted that it attains the status which Rebbi Shimon gives to "property that is unknown to the husband."

(c) The TOSFOS RID also rejects Tosfos' explanation. He explains that the extra word "and" in the Gemara's answer does not imply that this answer is true only according to Rebbi Shimon (if that were the case, the Gemara should have omitted the extra word "and"). Rather, the word "and" implies that the answer of the Gemara is based on the logic of Rebbi Shimon, and in the Gemara's case that logic is accepted even by the Rabanan.

The Gemara means that Rebbi Shimon rules that the husband does not have rights to the "property that is unknown" to him because he does not expect to own that property ("Ye'ush"). Similarly, in this case, where the woman gives away her property, the husband does not expect to receive that property and thus he relinquishes all rights to it. Although the Rabanan disagree with Rebbi Shimon in the case in which the husband actually did not know about the property, in this case the husband knows about it but he still does not expect to receive it, and thus even the Rabanan agree, since he knowingly relinquishes his rights to the property.

QUESTION: The Mishnah and Gemara teach that both a husband and his wife have the right to ensure that the property which she brings into the marriage, the Nichsei Milug, do not become entirely depleted. Any item which stands the risk of becoming entirely consumed or depleted when used should be sold and the proceeds invested in the purchase of land (non-consumable property). The husband is entitled to the produce of the land while the land itself remains the property (Nichsei Milug) of the woman. If an item itself will not become consumed through use, the husband is entitled to the produce of the item and he does not have to sell the item and invest its value in land.

Chananyah and the Rabanan disagree about the ownership of the offspring of an animal or a Shifchah (maidservant) which the woman brought into the marriage as Nichsei Milug. Chananyah says that the husband is entitled to the offspring. He explains that the mother animal and mother Shifchah are not considered consumable property since we do not expect them to die, and therefore the husband may use them as much as he wants. Since we do not expect them to die, we do not have to keep the offspring in the woman's possession in order to take its mother's place when its mother dies. Rather, the husband may take the offspring and use it for whatever purposes he chooses.

The Rabanan disagree in the case of the offspring of the Shifchah. They assert that the offspring of the Shifchah must be reserved for the wife because we do fear that the Shifchah will die, in which case the offspring will have to take the mother's place in order to keep the property of the wife from becoming depleted. Therefore, the husband may not do anything he wants with the offspring of the Shifchah (such as sell it). (To sell the original Shifchah and buy land with the proceeds is the best way to protect its value and prevent the wife's possessions from becoming depleted. However, the Rabanan did not go so far as to require that they sell the Shifchah, since there is no actual depletion right now and the concern that it will die is not such a strong concern. See RAMBAN and others.)

However, in the case of the offspring of the woman's animal, the Rabanan maintain that the offspring does not have to be kept for the wife in order to replace its mother even though there is a concern that the mother animal might die, because even if it does die its hide will remain. Since something will remain of the animal even if it dies, the wife's property will not become completely depleted.

The Amora'im rule like Chananyah that the offspring in both cases belongs to the husband.

The Gemara cites Rav Nachman who rules that if the wife brings into the marriage a milk-producing goat, a fleece-growing lamb, or an egg-laying chicken, "the husband may consume them until they are all used up." RASHI (DH Ochel v'Holech) explains that this means that the husband may continue to milk and use these animals until they no longer provide any milk or other products. Rashi explains that the reason why there is no concern that the wife's property will be depleted is that even after the animals die their hides (or feathers) remain.

Why does Rashi need to say that the hides will remain, and that is why the wife's property will not be depleted? Rav Nachman rules like Chananyah, who says that there is no concern that an animal might die and the wife's property will suffer a loss of principal. Hence, the reason why the animal will not be depleted is because there is no concern that it will die, and not because the hide will remain! The reason that the hide will remain is the reason of the Rabanan (who are concerned that the animal will die), but the Halachah follows the view of Chananyah. (RAMBAN, RITVA)

(a) The RASHASH explains Rashi's intent as follows. Once the Gemara proposes the logic of the Rabanan (that an animal that dies is not a complete loss because the hide remains), it understands that Chananyah, too, maintains that an animal that dies is not a complete loss because its hide remains, and not because there is no concern that it will die. Although Chananyah says that there is no concern that the woman will suffer a complete loss from the death of a Shifchah even though she obviously leaves no hide, in the case of a Shifchah Chananyah indeed reasons that there is no concern that she will die. A person is different from an animal because "Adam Is Lei Mazal" -- a person has Mazal (Shabbos 53b, Bava Kama 2b). Animals, on the other hand, have no Mazal, and thus there is a concern that they will die. Hence, even according to Chananyah the only reason why there is no concern that the animal's death will constitute a complete loss is that its hide remains.

This approach is problematic. What forces Rashi to change the simple understanding of Chananyah's opinion? Since Chananyah must say in the case of the Shifchah that there is no concern that she will die, why does he not say the same in the case of an animal? Moreover, TOSFOS (DH Shani Hasam) points out that the logic that the hide remains is not sufficient reason, because according to that logic the husband should be able to slaughter the animal itself, and not just the offspring. Why, then, does Rashi explain that Chananyah follows this logic if there is no necessity to explain his view this way?

(b) Perhaps Rashi is bothered by the implication of the next Mishnah. The Mishnah states that if a woman inherits elderly servants, they must be sold and land bought with the proceeds in order to prevent the woman from suffering a loss of principal (in the event that the servants die). As the Rishonim point out, although there is no concern that a young servant or animal will die, if the servant is already old even Chananyah agrees that there is a concern that he will die, and therefore he must be sold and the money used to buy land.

According to the Mishnah later, why does the Gemara say that the husband may use up all the milk until the animal no longer provides milk? This implies that the husband may use the animal even when it becomes old. At that point, however, it should be like old servants (as mentioned in that Mishnah) which must be sold in order to protect the woman's principal. Why, then, may the husband continue to milk the animal?

It must be that Chananyah agrees with the Rabanan that if the hide will remain, there is no concern for depletion of her property upon the death of the animal. Chananyah says that there is no concern for death only in the case of a young animal. In the case of an old animal, however, there is no depletion of her property only because the hide remains. Since an old Shifchah has no hide, that part of the woman's property will become depleted upon death and therefore the Shifchah must be sold, as the following Mishnah says.

According to this explanation, when Rav Nachman says that the husband may use up the milk, it is clear that he is teaching that even Chananyah agrees that since the hide remains and the woman's property is not depleted, an old goat does not have to be sold. (This answers the Ritva's question, what new point does Rav Nachman teach according to Rashi's explanation.)

Further proof to this principle -- that even if the object has a long life, when it nears depletion it must be sold and exchanged for land -- is found in the Beraisa cited by the Gemara which says that a pit of Gafris (sulfur) is considered Peros and is not consumable, because when the sulfur is depleted the actual pit still remains. Even though there is a large supply of sulfur in the pit, the only reason why the husband may consume it until the end is because the pit will remain. If nothing would remain he would have to sell it (and exchange it for land) before he consumed all the sulfur, even though it will take many years to deplete the sulfur (and therefore it is similar in this respect to an animal or slave, which will live a long life and is not expected to die in the near future according to Chananyah).

The RAMBAN, RITVA, and others disagree with Rashi with regard to milking a goat. They explain that Rav Nachman is discussing a goat which the woman does not actually own, but rather one which she has rights to milk, as the RIF explains. The Gemara teaches that the milk is considered Peros and therefore the husband may use it even though nothing will be left for the wife when it is depleted, since she does not own the goat itself. The reason why the husband is permitted to continue milking it until it no longer produces milk is because Rav Nachman follows the view of Chananyah who says that there is no concern that the goat will die, and thus it is assumed that the husband will be able to milk the goat for a very long time and it will not become depleted.

The ROSH (8:7) rejects this explanation. He asks that it is unreasonable that the husband should be allowed to continue milking the animal indefinitely. It eventually will lose its ability to produce milk and then the woman's supply of milk will be lost!

Apparently, the Rif and other Rishonim understand that Beis Din's obligation to protect the property of the woman applies only according to the state of the property at the time the husband receives it. If, when the husband receives the property, it looks like it will last for a very long time (such as an animal which is not at risk of dying soon), the woman's property is considered to be protected. If, at a later time, the animal becomes old or the animal's supply of milk wanes, the property of the woman is not considered to have been abused or misused since Beis Din did what was necessary to protect it at the time the husband received it (that is, Beis Din made sure that it had the potential for many years of service). This explains why Beis Din is not concerned that the husband will use up all the milk.

In fact, the Ramban and Ritva write this explicitly with regard to the pit of sulfur. They explain that according to Chananyah, even if the woman owns the sulfur and not the pit, the husband may still use the sulfur since there is a large supply at the time of the marriage and there is no concern that it will be used up. It is only when the servants or animals are old at the time they were brought into the husband's possession that Beis Din requires him to sell them and buy land in exchange. This is why the Ritva wonders why Rashi says that the hide will remain when the husband milks the goat for many years; the Ritva maintains that it is not necessary for anything to remain since, at the time it entered his possession, there was a large supply. (M. Kornfeld)