IS A MARRIED WOMAN LIABLE LIKE A MAN? [Eshes Ish :monetary liability]
(Rav Yehudah (and Tana d'Vei R. Yishmael)): "Ish Oh Ishah Asher Ya'asu mi'Kol Chatos ha'Adam" equates men and women regarding all punishments.
Kesuvos 86b (Mishnah): If one appointed his wife to sell his produce or oversee his affairs, he can make her swear (that she did not steal) whenever he wants;
R. Eliezer says, he can make her swear even about the thread she spins or the dough she bakes.
Question: Does R. Eliezer hold that can make her swear only through Gilgul (when she must swear about something else)? Or, can he make her swear about these by themselves?
Answer (Beraisa): If a man did not appoint his wife to sell his produce or oversee his affairs, he cannot make her swear;
R. Eliezer says, even so he can make her swear whenever he wants, since every woman is sometimes like an overseer over her thread and dough.
Chachamim: A person cannot live with a snake in a basket.
This shows that R. Eliezer holds that he can make her swear about these alone.
Bava Metzi'a 34b: (If a deposit was stolen and the Shomer opted to pay and not swear, the owner acquired the deposit to the Shomer before it was stolen, so if the thief is caught, the Shomer receives the Kefel.)
Question: Does this apply in the following cases?
Shimon borrowed from a married woman, and paid her husband;
A married woman borrowed, and her husband paid.
96a - Question: If a woman borrowed an animal and her husband hired the owner, what is the law? (Is this She'elah b'Ba'alim, i.e. an employer guarding the deposit of his worker, who is always exempt?)
Is Kinyan Peros (a husband's owns the earnings of his wife's property) like Kinyan ha'Guf (owning the property itself)?
Bava Kama 48a: A case occurred in which a woman came to Reuven's house to bake. Reuven's goat ate her dough, got sick and died. Rava obligated her to pay.
Since she entered with permission, she accepted to guard Reuven's animals from damage.
62a (Rava): If Reuven gave to Leah a gold coin, and told her to be careful with it, for it is silver, and she damaged it, she pays its full value, for she had no right to damage it;
If she was negligent and it was damaged, she pays for silver. She can say 'I accepted to guard only a silver coin.'
Rambam (Hilchos Sechirus 2:6): Men and women are the same regarding laws of Shomrim, whether the deposit belongs to a man or woman.
Rambam (Hilchos Ishus 21:9): If a woman broke Kelim while doing her chores in the house, she is exempt. This is not according to letter of the law. It is an enactment, for if not, there will never be Shalom in the house. She would be careful and refrain from most chores in the house, and they will quarrel.
Rebuttal (Ra'avad): She is exempt is because it is Shemirah b'Ba'alim, for he is always hired (obligated) to work for her.
Magid Mishneh: The Rashba holds like the Rambam. The Yerushalmi says that she is exempt, for if not, there will be no Shalom Bayis. This is like the Rambam. The Ra'avad is wrong. A woman is always 'hired' to work for her husband, but he works for her only when engaging in her needs!
Nimukei Yosef (Bava Metzi'a 55a DH She'elah): A woman is always working for her husband. Even though she is not engaging in chores for him at all times, since she is never exempt from serving him, this is Shemirah b'Ba'alim. A husband is considered to be working for his wife only when engaging in work for her. If she borrowed from him at another time and it was lost due to Ones, she is liable. This is clear from the Yerushalmi, which exempts her only due to an enactment. The Acharonim agreed with the Rambam against the Ra'avad due to this Yerushalmi.
Mishneh l'Melech: The Ra'avad should distinguish. Shemirah b'Ba'alim exempts for negligence, but not if she overtly broke Kelim! Indeed, I say that the Ra'avad distinguishes. He obligates her only if she intended to damage. If workers transporting a barrel broke it, they are liable, because one who trips is negligent (Bava Metzi'a 83a). This is why the Ra'avad needed to say that she is exempt due to Shemirah b'Ba'alim.
Rosh (Kesuvos 9:16): We conclude that R. Eliezer says that one can make his wife swear l'Chatchilah. This implies that Chachamim agree that he can make her swear through Gilgul about her weaving and dough, but not about them alone. The Yerushalmi explains that if not, there will never be Shalom in the house.
Tosfos (86b DH Rebbi, citing the Yerushalmi): Rabanan hold that if he is liable, there will never be Shalom in the house. If she broke Kelim, is she like a Shomer Chinam or Shomer Sachar? Presumably she is not even a Shomer Chinam, for is not, there will never be Shalom.
Terumas ha'Deshen (Kesavim 213): Shimon lent a gem to Reuven's wife when Reuven was away, and it was stolen. Nowadays we do not obligate a woman even for theft and deposits. Rather, we write a verdict against her. If she is widowed or divorced, she will pay the debt. While she is married, she does not pay, even if she has Nichsei Melug (Mordechai Bava Kama 89): We do not exempt her just because also her property was stolen. This is no better than a great Ones; a borrower is liable for Ones. Shimon claims that Reuven must pay, just like he would need to pay to cure her (he must pay her debts). Reuven countered this properly, that Shimon should not have lent something that must be guarded to a woman, for Da'atan Kalos. (Their minds are easily diverted.) If Reuven was here, he would have guarded it properly. Reuven is no more liable to Shimon than to one who financed his wife when Reuven was overseas. We say (Kesuvos 107b) that one who did so threw his money away, even though Reuven is obligated to feed her. All the more so Reuven is exempt here, for the Chiyuv is less clear.
Shulchan Aruch (CM 302:1): Men and women are the same regarding laws of Shomrim, whether the deposit belongs to a man or woman.
SMA (1): Even though the verse says 'if a man will give to his colleague', we hold that the Torah equates men and women regarding all punishments.
Gra: The episodes in Bava Metzi'a and Bava Kama prove this.
Shach (1): If a woman broke her husband's Kelim through negligence, she is exempt, due to Shalom Bayis. However, if she broke them b'Mezid or gave them to someone else, she is liable.
Shulchan Aruch (EH 80:17): If a woman broke Kelim while doing her chores in the house, she is exempt.
Chelkas Mechokek (29 and Beis Shmuel 23): This connotes that if she broke not at the time of chores, she is liable. However, the Yerushalmi that the Magid Mishneh brought, and Tosfos, connote that she is exempt.
Beis Meir: The Rambam connotes that she is exempt only for chores, for he says that she will refrain from them (if there is no enactment). He explains the Yerushalmi this way. However, the Ra'avad exempts due to She'elah b'Ba'alim. Surely this is in every case. According to the Ra'avad, why was an enactment needed? The Magid Mishneh rejected the Ra'avad. If so, she is liable for negligence. The enactment for Shalom Bayis does not include negligence. The Mishneh l'Melech is correct. An overt act is not exempt due to Shemirah b'Ba'alim. The Shach (CM 176:16) says so, and the Kesef Mishneh (Hilchos Sechirus 1:4) explains that this is why the Rambam obligates a Shomer Sachar b'Ba'alim who gave the deposit to a Shomer Chinam. Even though the Nimukei Yosef and Magid Mishneh support the Ra'avad, we cannot force her to pay for negligence, for she can say 'I am sure that the Halachah follows the Ra'avad.' The Nimukei Yosef's reason does not apply according to R. Eliyahu (in Tosfos Kesuvos 63a DH b'Omer), who says that a husband is liable to hire himself out (if needed) in order to feed his wife. However, R. Tam (ibid.) says that he need not do more than the normal farming chores to bring to her what his land produces.
Shai l'Mora (in Kovetz Meforshim in Shulchan Aruch Rosh Pinah): If a resident servant or maid broke Kelim, what is the law? Perhaps the Yerushalmi's enactment for Shalom applies here. Or, perhaps it was only for a wife. Chavos Ya'ir discussed this.
Chavos Ya'ir (169): Ploni used to lodge in Reuven's house almost every month. Once, he got drunk in a bar, returned to Reuven's house and left a candle burning. A fire resulted, and it damaged. Surely he is liable, for man is always Mu'ad. A case occurred in which a rich man took his maidservant to Din. He had warned her several times not to make too big a fire (to heat the house). She ignored this, and the fire spread and damaged. She was obligated to pay. Indeed, he said that he will not force her to pay, just he wants to scare her so she will be more careful next time.
Hagahah: We learn from here that a resident worker who damaged is obligated to pay.