1)

MUST ONE REDEEM HIS WIFE FOR MORE THAN HER KESUVAH? [Pidyon Shevuyim: wife]

(a)

Gemara

1.

(R. Yochanan): If Shelamim was slaughtered in the Heichal, it is Kosher;

i.

It says "u'Shchato Pesach Ohel Mo'ed" - the Tafel (secondary, i.e. the Azarah, which is valid for Shechitah only because it faces the Heichal) should not be greater (more Kosher) than the Ikar (what is primary, i.e. the Heichal)!

2.

Kesuvos 52a (Beraisa #1): If captors demand up to 10 times a woman's value, the first time, her husband must redeem her. After this, it is his choice;

3.

R. Shimon ben Gamliel says, we do not redeem captives for more than their value. This is an enactment for Tikun ha'Olam (for the good of society).

4.

Inference: Up to her value we redeem, even if it exceeds her Kesuvah!

5.

Contradiction (Beraisa #2): If the captors demanded up to 10 times her value, the first time, he must redeem her. After this, it is his choice;

i.

R. Shimon ben Gamliel says, if her redemption does not exceed her Kesuvah, he must redeem her. If it is more, he is exempt.

6.

Answer: R. Shimon ben Gamliel is lenient both ways. (One need not pay more than her value, nor more than her Kesuvah.)

7.

Gitin 45a (Mishnah): We do not redeem captives for more than their value. This is a decree for Tikun ha'Olam.

8.

Question: Is this to avoid depleting the community's money, or lest we incite captors (to strive to capture more people, or to demand more money)?

9.

Answer: Levi bar Darga redeemed his daughter for 13,000 gold coins. (We are not concerned for inciting captors, only for the Tzibur's money.)

10.

Rejection (Abaye): Perhaps Chachamim disapproved!

11.

Erchin 23b (Mishnah): If Reuven owes Erchin, even though we take a security from him, we leave him with food for 30 days, clothes for a year, a bed and sheet, shoes, and Tefilin.

12.

We leave for him, but not for his wife and children.

13.

24a: We learn from "Hu me'Erkecha" - sustain him from the Erech, but not his wife and children.

14.

Horayos 13a (Mishnah): A man precedes a woman regarding sustaining their lives and returning a lost object;

15.

A woman precedes a man for clothing and redemption from captivity. If both are destined for sexual exploitation (regarding him, homosexuality), we redeem the man first.

16.

(Beraisa): If Reuven, his father and his Rebbi are all in captivity, Reuven first redeems himself, then his Rebbi, then his father.

i.

If his mother was captured, he redeems her before all of them.

(b)

Rishonim

1.

Rif (Kesuvos 19a): The Halachah follows R. Shimon (ben Gamliel) in Beraisa #1, and Rebbi in Beraisa #2. (In the Rif's and Rosh's text, the first Tana is Rebbi.)

2.

Rosh (Kesuvos 4:22): The Rif rules like R. Shimon because the Stam Mishnah in Gitin is like him. The Mishnah discusses captives Stam, even one's wife. The Ramah rules like the first Tana, for it is the majority opinion. The Mishnah in Gitin discusses other captives. One's wife is like himself. Just like one may give all his money to redeem himself, also for one's wife. Since this is a Tanai of the Kesuvah, it is as if she has money (to redeem herself). This seems correct. Rashi totally exempts from redeeming her more than once. Some say that he need not redeem her more than once for more than her Kesuvah. Presumably, Rashi is correct. Why should the second redemption be different than the first?! If he must redeem her, just like for the first redemption they made Tafel Chamur Min ha'Ikar, also for the second! The Rif rules like Rebbi. Even though the Halachah follows Rebbi against his colleague, but not against R. Shimon ben Gamliel his father, here the Mishnah is like Rebbi, for it says Stam that he must redeem her, i.e. in any case, even for more than her Kesuvah.

3.

Rambam (Hilchos Ishus 14:19): We do not obligate a husband to redeem his wife for more than her value, rather, for her value, like other captives. If her value was more than her Kesuvah, and he said 'I divorce her. This is her Kesuvah. Let her redeem herself', we do not heed him. Rather, we force him to redeem her, even if she is worth 10 times her Kesuvah, and even if he has only enough money to redeem her. This refers to the first time. If he redeemed her and she was captured again and he wanted to divorce her, he may divorce her and pay her Kesuvah, and she redeems herself.

i.

Beis Yosef (EH 78 DH u'Mah she'Chosav Afilu): The Rambam rules like R. Shimon ben Gamliel because the Stam Mishnah in Gitin is like him.

4.

Rambam (Hilchos Matanos Aniyim 8:12): We do not redeem captives for more than their value. This is for Tikun ha'Olam, lest the enemy exert excessively to capture people.

5.

Rosh (Gitin 4:44) and Tosfos (Kesuvos 52a DH v'Hayu): Why didn't we resolve the reason for the enactment from the Beraisa that obligates redeeming one's wife for 10 times her value? This shows that the concern is for the Tzibur's money, but not lest we incite captors! We cannot resolve it, for one's wife is like himself. There was no enactment not to give all one's money to redeem himself. We tried to resolve it from Levi bar Darga, for one's daughter is not like himself so much.

i.

Ran (Gitin 23a DH v'Ein): Some say that even though the question was not settled here, it is settled in Kesuvos. R. Shimon forbids redeeming for more than her value, even when her husband redeems her and there is no concern for the Tzibur's money. We cannot say that the first Tana agrees to our Mishnah, but he holds that the enactment was lest we deplete the Tzibur's money. If so, all the more so we should not deplete the husband's money, and exempt him from redeeming her for more than her value! The Rishonim held that since the question was not settled, and there is concern for Takalah, we are passive not to redeem. Also, we proved from Levi bar Darga that one may redeem for any amount. We do not abandon this due to Abaye's doubt.

ii.

Bach (YD 252:3): The Ran holds that the Tzibur does not redeem people for more than their value, and one need not do so for his wife, but one may redeem her or anyone for as much as he wants. The Beis Yosef understood that the Ran forbids redeeming anyone for more than his value, like the Rif. This is wrong.

6.

Tosfos (52a DH Ratzah): Rashi says that Chachamim enacted to redeem her only once. This is difficult, for above (47b) the Gemara said that Chachamim enacted what is common due to what is common, and what is uncommon due to what is uncommon. I.e. eating her Peros is common, and redemption is more common than Kesuvah or burial, for the latter apply only once, but redemption can occur several times! Rashi must explain oppositely. Eating her Peros is uncommon (not all women have property), and Kesuvah and burial are common, for women die earlier than men. R. Chananel explains that the second time he need not redeem her for more than her value. Another Beraisa implies that he need not pay more than her Kesuvah. We must say that both leniencies apply. However, the Gemara connoted that we must say so only according to R. Shimon ben Gamliel.

i.

Mordechai (Kesuvos 288): Reuven was captured, and also his wife for another reason. They were torturing her. Her relatives compromised with the captors. Can they take her redemption money from Shimon, who was holding a deposit of Reuven? Do we say that as long as he himself did not compromise with them, and he does not know how much he will need to redeem himself, that his life comes first? (If they redeem her, perhaps not enough will remain for him.) Maharam answered that one comes before his wife regarding Sidur for a borrower (leaving for him his necessities) and Erchin. In Erchin, we learn this from verses. Even though he has precedence regarding food, she has precedence regarding redemption, like it says in Horayos. His mother has precedence over all of them, including himself. His life has precedence over his father or Rebbi. We should say all the more so over his mother, who has less priority regarding fear and honor (for she must honor his father, i.e. her husband). Even so, for redemption from captivity his mother comes first, lest they defile her. This shows that whenever he must redeem a woman, she comes before him. Even if there is no Beis Din here, we take from his property to redeem her. If one went crazy or went overseas, Beis Din feeds his wife from his property. All the more so, we do so to redeem from captivity, for captives suffer all the great afflictions (hunger, natural death, and death by the sword). Even if he protests, we redeem her against his will from his property. He cannot cast her upon the Tzibur if he has property! However, if both are standing for sexual exploitation, we redeem him first. The same applies whenever there is concern for his ruin or disgrace.

(c)

Poskim

1.

Shulchan Aruch (EH 78:2): We do not obligate a husband to redeem his wife for more than her value, rather, for her value, like other captives.

2.

Rema: Some say that his wife is like himself, and he may redeem her for all his money.

i.

Chelkas Mechokek (2): The Mechaber connotes that one may redeem his wife for more than her value if he wants. If so, the Rema should say that some obligate redeeming her for whatever he can afford! The Mechaber is difficult. He rules like R. Shimon (ben Gamliel), and R. Shimon forbids for more than her value, due to Tikun ha'Olam!

ii.

Beis Shmuel (2): Indeed, he may not redeem her for more than her value. The Mechaber wrote that he may redeem her for more than her value to teach that up to her value, he is obligated. The Rema says that some permit redeeming her for more, i.e. therefore he is obligated to do so.

iii.

Gra (4): This opinion obligates redeeming her for more than her value, like the Tur says.

3.

Shulchan Aruch (3): If her value was more than her Kesuvah, and he said 'I divorce her. This is her Kesuvah. Let her redeem herself', we do not heed him. Rather, we force him to redeem her, even if she is worth 10 times her Kesuvah, and even if he has only enough money to redeem her.

i.

Beis Shmuel (3): Only Shiltei ha'Giborim rules like R. Shimon (and exempts from redeeming her for more than her Kesuvah). Her value is what she could be sold for to be a slave.

4.

Shulchan Aruch (ibid.): This refers to the first time. If he redeemed her and she was captured again and he wanted to divorce her, he may divorce her and pay her Kesuvah, and she redeems herself.

i.

Chelkas Mechokek (4): What is the Chidush that he may divorce her and pay her Kesuvah? The Rambam holds that she can demand 'redeem me, or divorce me and pay my Kesuvah.' The Beis Yosef and Rema understood differently.

ii.

Beis Shmuel (4): Also the Drishah and Bach say that the Rambam holds that she can demand this. However, the Rema ruled properly, for Rashi and the Rosh exempt from redeeming her again.

5.

Rema: In any case he need not redeem her a second time.

i.

Beis Yosef (DH u'Mah she'Chosav Rabeinu): It seems that if he does not want to divorce her, he need not pay her Kesuvah to redeem herself.

ii.

Bach (2): Here, the Tur brings two opinions about whether he may redeem her for more than her value. In YD 252, he wrote Stam that Ishto k'Gufo, and he may! It seems that the Tur holds that they argue only about whether he is obligated, but al permit redeeming her for any amount. There is no concern for incting captors, nor for impoverishing the Tzibur, for she is like his body.

6.

Shulchan Aruch (YD 252:4): We do not redeem captives for more than their value. This is for Tikun ha'Olam, lest the enemy exert excessively to capture people. One may redeem himself for as much as he wants.

7.

Rema: Regarding whether one's wife is like himself, see Tur EH 78. (He says that some, including the Rosh, obligate to redeem one's wife even for more than her value, but the Rif and Rambam do not obligate for more than her value.)

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