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Be sure to join us at 5:45 this Sunday evening for the Zoom shiur with Rabbi Broyde! Full details below.
The eighth perek is about the rights of both spouses when it comes to property that a wife has inherited from her own family. There are some basic legal guidelines that regulate the discussions:
(1) Property that a wife brings into a marriage or inherits while married remains hers for as long as she is alive.
(2) Her husband holds the right of “usurfruct”, which is to say that he may utilize the property and earn dividends from it (e.g. planting and harvesting a parcel of land that his wife owns) as long as they remain married. This places restrictions on her ability to sell this property, as the husband has claim to all of its “fruits”.
(3) If a wife predeceases her husband, the husband inherits her property outright, entitling him to seize it from anyone she may have sold it to.
As a general observation, it should be said that the halachik system undoubtedly granted husbands these legal rights to his wife’s property as part of the larger fiscal packaging of marriage. The husband’s being required to undertake significant, multi-pronged financial responsibility for his wife is balanced by his being granted these rights to use and possibly inherit her property. (Needless to say a husband can waive these rights if he so chooses.)
The first Mishna, which is the most complex one in the perek, deals with four scenarios. They are listed here along the continuum from the scenario in which the woman is thought to retain the greatest rights to her property to the one in which she is thought to retain the least rights. (See the Mishna itself for the range of opinions on each 😊)
A. If she inherited the property before being betrothed and wants to sell it while betrothed
B. If she inherited the property while betrothed and want to sell it while still betrothed
C. If she inherited the property anytime prior to the “chuppah”, and want to sell it after the “chuppah” (i.e. when they are fully legally married)
D. If she inherited the property after she and her husband were already fully married (after “chuppah”) and she wants to sell it then.
The most interesting figure in this Mishna is Rabban Gamliel who regards the fact of the husband’s right to his wife’s inherited property to be a legal “embarrassment” even in scenario “D” (!). He accepts that embarrassing though it may be, the husband does in fact possess these rights in scenario D, but he pushes back on any such rights in scenarios A – C. In Mishna 2 Rabbi Shimon goes even further, limiting the husband’s rights in scenario D to properties of which he was aware at the time his wife sold them.
Mishnayot 3-5 present details about how a husband’s “usrufruct” rights affect various kinds of property that his wife may inherit (or otherwise acquire) during marriage, and Mishna 6 works on how these rights apply to a potential “yavam” who has not yet completed the process of making his late bother’s wife his own wife.
Mishnayot 7 and 8 introduce the important idea - an idea that is explicitly mentioned in our Ketubot to this day – that all of the husband’s property is mortgaged to the payment of the Ketubah (should they become divorced or should he predecease her.
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