1)

HOW DOES A MARRIED WOMAN PAY FOR DAMAGE OR MESIRAH? [Nezikim: woman :Moser]

(a)

Gemara

1.

87a (Mishnah): If a (married) woman damaged someone, she is exempt now, but pays later, i.e. after she is divorced.

2.

88b (R. Yosi bar Chanina): In Usha, they enacted that if a woman sells her Melug property and dies in her husband's lifetime, he takes the property from the buyer.

3.

(Rav Papa): We may derive the enactment of Usha from our Mishnah. If not for the enactment, she should sell her Melug property to pay the damage!

4.

Rejection: The enactment only prevents her from an absolute sale (i.e. the buyer will eventually get it even if she dies first). In any case, she can sell the Tovas Hana'ah (the rights to get the property if and when she is widowed or divorced)! We must say that the Mishnah discusses one who has no Melug property.

5.

89a - Question: She can sell the Tovas Hana'ah of her Nichsei Melug!

6.

Answer: The Mishnah discusses one who has no Melug property.

7.

Question: She should sell the Tovas Hana'ah of the Ikar Kesuvah (100 or 200 Zuz), that she receives if she is widowed or divorced) to pay the damage!

8.

Answer: She need not sell the Tovas Hana'ah, for Shmuel taught that one who sells a loan document can pardon the loan. She will surely pardon the Kesuvah!

9.

Question: She should sell the Tovas Hana'ah of her Kesuvah to the victim! Even if she will pardon the loan, he does not lose.

10.

Answer: She will surely pardon the Kesuvah. We do not exert Beis Din to arrange a sale that will not help the victim.

11.

117a: Reuven and Shimon each claimed to own a certain (bird or fish) trap. Reuven handed it over to the king's officer.

12.

Abaye: We cannot make him pay. He claims that it was his!

13.

Rava: We don't let him do so! Rather, he is excommunicated until he brings the trap to Beis Din to judge the case (even if he must pay extra to get it back).

(b)

Rishonim

1.

Rif: If a married woman damaged, we do not make her sell Tovas Hana'ah of her Ikar Kesuvah to a buyer of the victim, for surely, she would pardon it.

2.

Rambam (Hilchos Chovel u'Mazik 4:18): If a married woman damaged someone, she is exempt now, but pays later, i.e. after she is divorced.

3.

Rosh (Bava Kama 8:9): If a married woman damaged Levi, we give a document to Levi saying how much she owes him when she will be widowed or divorced. If she had Nichsei Melug or Nichsei Tzon Barzel, we would force her to sell them for Tovas Hana'ah, and pay Levi. She need not her sell her Ikar Kesuvah.

4.

Mordechai (90): If a married woman is Moser (hands over) David's property to Anasim, she does not pay now, but we excommunicate her, for the Torah equates women to men for all punishments. If she has property in which her husband has no rights, we give it to David. Even her Nichsei Melug are given to David, except that her husband eats Peros until she dies. Afterwards David gets them. Even if she died before her husband, her husband does not inherit her. Chachamim allow her husband to take from people who bought her property, for they caused their own loss. David did not do anything wrong.

5.

Tosfos (Bava Basra 139b DH Hasam): Even after Takanas Usha, if others would lose if her husband is like a previous buyer, he is like an heir. Why did the Gemara think that Takanas Usha would apply if she sold to pay a victim? Indeed, the Gemara could have asked also this. The Rashba answered that Chachamim enacted for cases when others do not lose. They made a uniform enactment (it applies in all cases), for it is rare that someone else (who is not at fault) loses.

(c)

Poskim

1.

Shulchan Aruch (CM 424:9): If a (married) woman damaged someone, she is exempt now, but pays later, i.e. after she is divorced.

2.

Rema: If she has Melug or Tzon Barzel property, she sells the Tovas Hana'ah and pays the victim.

i.

SMA (17): In Siman 388 we say that we excommunicate a woman who was Moser. The Mordechai (92) says that we excommunicate and lash women who wound, so they will not do so regularly. Perhaps this is only for Moser, wounding or other disgraceful acts, but not for debts. I wrote above that also if she borrowed money or an animal (and it died and she is liable) before Nisu'in, if she has Melug or Tzon Barzel property or Tosefes Kesuvah (he obligated himself to give more than 100 or 200), we force her to sell it to pay.

3.

Shulchan Aruch (10): If a woman damaged her husband, if she has Tosefes Kesuvah or Melug or Tzon Barzel property, she sells it to him for Tovas Hana'ah and he collects from it if he wants, or divorces he and collects everything.

4.

Rema (388:2): If a woman was Moser, we excommunicate her. If she has property that her husband has no rights to it, she pays. If she has Nichsei Melug, her husband eats the Peros her entire lifetime.

i.

Question (SMA 6): Why is this different than a woman who wounded? The Tur and Rema obligate one who wounded another to sell Tovas Hana'ah of her property, and the Mechaber obligates one who wounded her husband.

ii.

Answer #1 (SMA): Perhaps we are more lenient about Moser, for she did not overtly damage. It is considered a fine. Therefore, if a Moser died before he was brought to trial, his heirs are exempt. For other debts, a woman must sell Tovas Hana'ah of her Melug or Tzon Barzel property and Tosefes Kesuvah.

iii.

Rebuttal (and Answer #2 - Shach 16): Surely, if he wants, also here she must sell Tovas Hana'ah of her Nichsei Melug. The SMA himself says so (424:16). Here, the Chidush is that the victim is immediately Muchzak in the property; her husband eats the Peros in her lifetime, and pays after she dies. One may ask oppositely. Here he pays after she dies, and in Siman 424 she just sells Tovas Hana'ah, and if she dies her husband inherits her! We can say that Moser is more common than wounding (this is why we judge it even nowadays), so Takanas Usha does not apply to it. This is like Tosfos' first answer. Indeed, if she wants to sell her Nichsei Melug to pay the victim, she may. If she cannot, or it does not suffice to pay, the victim is paid before her husband inherits. The Rema says that the same applies to other damages; he refers to common damage. The Yam Shel Shlomo (8:30) rules like the Rashba, and says that for wounding or Moser her husband is like a buyer, but we force her to sell Tovas Hana'ah of her Kesuvah, if she can.

iv.

Gra (21): The Ramban and most Poskim rule like the Rashba.

v.

Answer #3 (Taz): There is no difference. Also in Siman 424, the victim gets a document saying what she owes. He can sell the Tovas Hana'ah now if he wants! There is no difference if he or she sells it.

vi.

Gra (19): Daf 117a teaches that we excommunicate (a Moser until he pays).

5.

Rema: If she dies, he pays the victim. The same applies to other people whom she damaged. Her husband is like an heir, who must pay (from what he inherits).

i.

SMA (7): Normally, we treat her husband like a previous buyer; he takes from people who bought from her during the marriage. They caused themselves a loss by buying from a married woman. Here, the victim did nothing wrong.

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