The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, The Lewy Family Foundation, and Marilyn and Edward Kaplan
Rav Yehuda quotes Shmuel as offering the following ruling:
Two people agree to trade a donkey for a cow. If the owner of the donkey takes possession of the cow, but before the owner of the cow takes possession of the donkey it is found to be dead, then the owner of the donkey will have to prove that his animal was alive at the time that he took possession of the cow. If he cannot do so, we view the transaction as having been nullified and the cow returns to its original owner.
Many rishonim point out that this ruling is fraught with difficulties, as there are two pressing reasons to rule that the owner of the donkey should be in an advantageous position in this case:
- He is already in possession of the cow.
- We know that the donkey was alive when the negotiations began, and we have no reason to assume that it died before the transaction took place.
Tosafot raise these issues and offer two approaches. First of all, the owner of the cow has hezkat mara kamma – he was the definitive, original owner – and it is not clear to us that the owner of the donkey successfully performed an act that removed it from his possession. Secondly, we need to evaluate the situation based on the facts that stand before us now. We know for certain that the donkey is dead. In order for us to be convinced that the transfer took place while the donkey was still alive, the owner of the donkey needs to show that the situation that exists now (i.e. the donkey is dead) was different at that time.
In his Sefer ha-yashar, Rabbeinu Tam suggests that the ruling here is based on the fact that the donkey was found dead while still in the confines of its original owner’s farm, which is why we demand information from him. According to this approach, had the animal been moved to a public area, Shmuel’s ruling would not apply.
One other explanation is offered by the Ra’avad and Re’ah, who argue that in this case – given that the donkey is dead – we cannot be certain that the exchange took place at all, so we leave everything as it was before the exchange took place, unless the donkey owner can prove that the change of ownership successfully happened.
Under what circumstances will Jewish courts force a man to divorce his wife and pay her the ketubah?
The Mishnayot on our daf discuss cases where a man develops conditions that are so difficult to live with that his wife can petition the courts to force him to divorce her. Several of the cases mentioned focus on illnesses that make it unbearable to live with him. Three people are mentioned whose new professions may create such a situation – a mekametz (a gatherer), a metzaref nehoshet (someone who purifies copper) and a bursi (a tanner).
In the Tosefta, two approaches are offered in defining mekametz. One suggestion is that the mekametz is a bursi katan – a non-commercial tanner, that is, someone who has a private business tanning skins at home in small quantities. Someone who has such a business does all aspects of the job himself. The other suggestion is that the mekametz is someone who collects dog droppings. Until the last century, softening skins in preparation for tanning was done by adding dog droppings to the water in which the skins were being soaked. The fermenting that takes place and the enzymes that are released play a central role in this process.
Although copper is occasionally found in pure form, most deposits that contain the metal have it mixed with various sulfides. The purification process separates out the copper from the sulfur, and the residue that is created often has a very strong smell attached to it. The metzaref nechoshet who works regularly with these metals will likely find that his clothing – and his body – absorb these odors. The bursi and mekametz have a similar problem.
The Rambam (Ishut 25:11) and Shulchan Arukh (Even ha-Ezer 154:1) agree that in these cases, the husband is only obligated to divorce his wife if she demands an end to the marriage. If she does not, there is no reason for the court to step in. Furthermore, if the husband had informed his wife of the condition prior to their marriage, and she agreed to marry him, the court will not force him to divorce her, even if she later claims that the situation was worse than she had imagined.
Ha-ishah she-naflu, the eight perek of Masechet Ketubot, begins on our daf. Its focus is nikhsei melug – property that belongs to the woman who is getting married. The general rule regarding nikhsei melug is that the property remains in the woman’s possession, but her husband is okhel peirot – literally, he “eats the fruit.” In other words, she owns the property, but as long as they are married the profits accrued by the property belong to the husband. This odd type of “joint ownership” – where the wife owns the property, but her husband receives the profits – leads to a series of questions about the ability of either side to sell their share and other similar questions, which are the focus of our perek.
According to the Mishnah, all agree that a woman can do whatever she wants with property that she inherits before her marriage. If she inherits property after she is already married, however, she cannot sell it. If she does, all agree that the husband can force the purchaser to return it. If she received the property before the marriage and then she gets married, Rabban Gamliel rules that the sale remains in force. When questioned about this ruling, Rabban Gamliel responded “we are embarrassed about the new ones, now you are trying to involve us in the old ones, as well?”
The Talmud Yerushalmi explains that the “new ones” to which Rabban Gamliel refers are the properties that she receives after she gets married (that she cannot sell), while the “old ones” are the properties that she received before she got married (where her sale is valid). One explanation for Rabban Gamliel’s embarrassment regarding the Rabbinic ruling to limit her ability to sell her property is that the basis for the husband to receive peirot is in exchange for his obligation to redeem her should she be taken captive – certainly an unusual situation. The Shittah Mekubetzet suggests that the embarrassment stems from the fact that we allow the husband to negate her sale entirely, even though his claim is only on the produce and not on the property itself.
As we discussed on yesterday’s daf, the focus of this perek is nichsei melug – property that belongs to a woman who is getting married. The general rule regarding nikhsei melug is that the property remains in the woman’s possession, but her husband is okhel peirot – literally, he “eats the fruit.” In other words, she owns the property, but as long as they are married the profits accrued by the property belong to the husband.
On occasion it is difficult to distinguish between the property and the profits. Our Gemara, for example, quotes a baraita that rules that if the woman owns beachfront property, salt and sand are considered peirot, while Rabbi Meir considers a sulfur quarry or an alum-mine to be the property itself. The Hakhamim disagree, arguing that there, too, the mined minerals are considered produce.
Rashi explains that the difference between salt/sand on the one hand and sulfur/alum on the other is that the former replenish themselves on a regular basis, while there is a limited amount of the minerals that can be mined before the reserve is used up. Thus, mining the sulfur or alum affects the property itself.
Sulfur is found in its pure form in different places throughout the world – mainly in areas with volcanic activity. The sulfur quarry described in our Gemara is a small hole dug in the ground from which the sulfur can be removed.
The alum mentioned here appears to be aluminum potassium sulfate – AlK(SO4)2 · 12H2O. This complicated salt is often found as the mineral Kalinite which can be found in solid form in many places around the world in the cracks of volcanic rock.
Alum is used in tanning process when working with hides, and is also used as a dye. Today it is used in the manufacture of paper.
When working with nichsei melug – which remain the property of the wife even as her husband derives benefit from it – there is a need to protect the interests of the wife in making sure that the property will not be destroyed, as well as the interests of the husband so that he will take care of the property, even though it does not belong to him.
Take, for example, the case of a man who is married to an underage girl who can reject the marriage when she reaches maturity (i.e. in a case where her mother or brother arranged the marriage in her father’s absence). Since he recognizes that their marriage can end at any time that his wife chooses, there is a real concern that the husband will be interested in deriving maximum profit from the property and pay no attention to the long-term value of the property. Therefore Rav Yaakov quotes Rav Chisda as teaching that in such a case, we treat the husband like anyone who gets permission to work someone else’s field, and he will be guaranteed the profits, even if the marriage is called off.
To illustrate this rule, the Gemara tells the story of a man who spent 600 zuz to travel to Bei Hoza’ei where his wife had property. It turned out that the property was worth only 400 zuz, and that his expenses were larger than the property value itself. After some discussion of the matter, Rabbi Ammi ruled that he deserves to get his expenses returned to him.
Bei Hoza’ei – which is known today by its Persian name, Khuzestan – was one of the largest provinces of the Persian Empire, ranging from the mountains of Elam to the Persian Gulf. The long distance between this province – which was an important center of agriculture and commerce – and the central Jewish community in Babylon, as well as the poor roads and infrequent caravans, could make the round trip take as long as a full year. Thus we can well understand how expensive such a trip might be.
The standard ketubah that is written at weddings includes a guarantee given by the husband that all of his possessions are to be made available to pay the ketubah in the event that he dies or they get divorced. Clearly, throughout their marriage, the husband can buy and sell his possessions since no single piece of property is set aside to pay the ketubah.
We have already learned that should a man die, leaving a widow and no children, the widow becomes a yevamah, and one of the brothers of the dead man has the opportunity of fulfilling the mitzvah of yibum (levirate marriage). In such a case, the original ketubah remains in force, and the yavam inherits the dead man’s possessions, all of which remain obliged to the ketubah. That is to say, the new husband cannot sell any of his late brother’s possessions, since they are all needed to guarantee payment of the ketubah at some point in the future.
Rashi discusses at some length why there are differences between the original marriage, where the written guarantee suffices, and the levirate marriage, where there is a need for all of the property to remain available at all times to pay ketubah. His central argument is that the yevamah does not have the same level of faith in her second husband – who did not personally guarantee payment of the ketubah – as she did in her first husband, who took personal responsibility. Many rishonim follow Rashi’s lead, to the extent that the Me’iri writes that it was common practice for the yavam to write a new ketubah in which he guarantees payment in the event of death or divorce. The Ritva adds that we also need take into account that the original ketubah was likely a 200 zuz ketubah, as it was written for a woman who had never before been married, while the yavam‘s ketubah would only be for 100 zuz.
As we have seen, the commandment of yibum (levirate marriage) allows the wife of a man who dies without offspring to be married by one of his surviving brothers, negating the Biblical prohibition forbidding a man from marrying his brother’s wife. What is the status of their relationship, once yibum has been performed? Are they still seen as connected because of the original marriage to the deceased brother, or are they simply a married couple?
Our Gemara quotes Rabbi Yossi bar Chanina, who understands the passage in Sefer Devarim (25:5) to mean that once the yavam takes her as his wife, all of the rules and regulations of normal marriage apply to them. Thus, should the couple choose to get divorced, rather than performing the halitzah ceremony, the husband will divorce his wife with a get, a standard divorce document. Furthermore, should they choose to do so, they can remarry after the divorce, without any concern that the original prohibition of marrying one’s sister-in-law still exists.
Tosafot in Yevamot ask why the Gemara only searches for a source that will allow the yevam and yevamah to remarry after a divorce, without expressing any concern about their ongoing sexual relationship while they are married. They suggest that it is only the very first act of sexual relations that is the fulfillment of the mitzvah of yibum; from then on their relationship is one of choice. Should the Sages not search for a Biblical passage that clearly permits the marriage to continue after the basic mitzvah is fulfilled?
The answer is an issue of common sense. There is no need to find a pasuk that clearly permits this, since it would be illogical for the Torah to command someone to engage in sexual relations once and then file for divorce. Another approach is suggested by the Netziv in his Meromei Sadeh, where he argues that whenever we find that performing a mitzvah pushes aside a prohibition, as long as the person remains involved in that mitzvah he can add to it, even beyond the basic obligation.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.