22b----------------------------------------22b

1)

GIVING A GIFT TO THE WIFE OF A MUDAR HANA'AH [Mudar Hana'ah: gift: wife]

(a)

Gemara

1.

(Mishnah - R. Meir): A Kena'ani slave can acquires his freedom through money given by others.

2.

Chachamim say, he acquires his freedom through money he gives himself, as long as it is of others.

3.

(Rabah): All agree that anything that if a slave or wife acquires something, it belongs to the Ba'al (master or husband). The Mishnah discusses when one told the slave 'acquire this money on condition that your master has no rights to it';

i.

R. Meir holds that once he says 'acquire', the slave acquires and it belongs to the master. The continuation of his words, 'on condition that your master has no rights to it', has no effect. Chachamim say, his stipulation takes effect.

4.

Objection (R. Elazar): If that were the stipulation, all would agree that the slave acquires and it belongs to the master! Rather, he said 'acquire it on condition that you will be freed through it.' R. Meir holds like Rabah said. Chachamim say, the giver limited the acquisition. The slave acquires the money only for freedom.

5.

Nedarim 88a (Mishnah): If Reuven vowed not to benefit his son-in-law, he can give money to his daughter 'on condition that your husband has no Reshus over it. It is only for you to buy food with it and to eat the food.'

6.

(Rav): This is only if he says 'it is given only for you to buy food with it and to eat the food.' If he says 'do like you want with it', her husband acquires the money.

7.

(Shmuel): In either case, her husband does not acquire the money.

(b)

Rishonim

1.

The Rif (Nedarim 26b) brings the Mishnah and the opinions of Rav and Shmuel.

2.

Rambam (Hilchos Nedarim 7:17): If Reuven vowed not to benefit his son-in-law, he can give money to his daughter to spend on her desires. He must stipulate 'your husband has no Reshus over it', and 'it is only for what you will eat or wear...' or 'do what you want with it.' Her husband does not acquire. However, if he said only 'your husband has no Reshus over it', her husband acquires the right to eat the Peros, and the vow is transgressed.

i.

Ra'avad: The Rambam rules like Shmuel. Rav requires saying 'only what you eat.' If he said 'do what you want with it', her husband acquires, and it is forbidden. We follow Shmuel against Rav in monetary matters, but this was asked regarding Nedarim. Also, our Sugya asks according to Rav, and answers! Their argument is only that Rav holds like R. Meir and establishes the Stam Mishnah to be like him. Shmuel holds like Chachamim and establishes the Mishnah to be like them. The Gemara in Nazir did not say the entire text that he must say (according to Rav).

ii.

Ran (Nedarim 88b DH ul'Inyan): Rav Amram Gaon and the Ramban rule like Shmuel, because this hinges on a monetary law, i.e. whether or not her Yad is like his. Also, we follow Chachamim against R. Meir. Also, the Gemara in Nazir and Sanhedrin says only 'on condition that your husband has no Reshus', like Shmuel. The Ra'avad and R. Tam rule like Rav. The Rambam rules like Shmuel, but he holds that even Shmuel requires saying 'do what you want with it.' Rav and Shmuel argue about whether or not he must say precisely 'it is given only for what you will eat.'

iii.

Question (Ra'avad) Whether he says only 'he has no Reshus over it, or adds 'do what you want with it', in either case it is an unrestricted gift!

iv.

Answer (Ran): When he says 'do what you want with it', she acquires only at the time she uses it for her desires. (Her husband cannot acquire, for then it would no longer be for her desires!)

3.

Rosh (Kidushin 1:29): The Gemara mentioned slaves with women, for according to the opinion that a slave can acquire, all the more so a wife can. According to Rabah, R. Meir holds that a slave can never acquire for himself. Saying 'on condition that your Ba'al has no Reshus' is like giving a gift and saying 'it is yours, on condition that it is not yours.' A self-contradictory Tanai is Batel. The Stam Gemara in Sanhedrin, Pesachim and Nazir is like Rabah. Even though the Halachah follows R. Meir, these Gemaros said only 'on condition that your Ba'al has no Reshus' to teach that the Halachah follows Rabah. It is clear that R. Meir also requires 'it is only for you to...'

(c)

Poskim

1.

Shulchan Aruch (YD 222:1): If Reuven vowed not to benefit his son-in-law, he can give money to his daughter for her to enjoy and spend on her desires, he says 'this is a gift to you, on condition that your husband has no Reshus over it. It is given only for what you will eat, or wear...' Even if he said 'on condition that your husband has no Reshus over it. Rather, do what you want with it', her husband does not acquire. However, if he said 'on condition that your husband has no Reshus over it', and did not specify what it is for or that it is for her desires, her husband acquires the right to eat the Peros, and the vow forbids this. Some say that even if he said 'on condition that your husband has no Reshus over it. Rather, do what you want with it', her husband acquires, and is forbidden.

i.

Beis Yosef (DH Mi): When he specifies what to do with the money, it is a gift only for that. Therefore, his stipulation, that her husband not receive it, works. When he said 'do like you want with it', it is a gift for anything, so her husband acquires, and his stipulation does not help.

ii.

Beis Yosef (DH veha'Ran): The Ran says that one who feeds his married daughter need not stipulated. Since her husband does not feed her, he has no rights in her food.

iii.

Shach (2): The Prishah (3) was unsure about one who said 'on condition that you use it to eat and drink', but did not stipulate that the Ba'al has no Reshus over it. It is clear from the Mishnah (Nedarim 88a), Perush ha'Rosh (DH Lo Shanu) and Poskim that this does not suffice.

iv.

Beis Shmuel (EH 85:23): In Even ha'Ezer, the Shulchan Aruch rules like the Rambam because most Poskim hold that it suffices to say 'on condition that your husband has no Reshus, only do what you want with it.' Here, regarding Isur (Nedarim), the Shulchan Aruch is stringent for Tosfos' opinion.

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