1) A MARRIED WOMAN WHO REDEEMS "MA'ASER SHENI"
QUESTION: The Gemara discusses whether one may give a gift to a woman on condition that her husband has no rights to it or on condition that she uses it for a specific purpose. The words of the Mishnah (22b) imply that Rebbi Meir does not allow such a Kinyan, while the Rabanan do.
The Gemara questions this inference from a Beraisa in which Rebbi Meir seems to allow such a Kinyan, while the Rabanan do not allow it. The Beraisa states that according to the Rabanan, a woman must pay a Chomesh (fifth) when she redeems Ma'aser Sheni (because her redemption of the Ma'aser Sheni is considered like the owner's redemption of his own Ma'aser Sheni). Rebbi Meir maintains that she may redeem Ma'aser Sheni without paying a Chomesh. The Gemara explains that the Beraisa cannot be discussing a situation in which the woman uses her own money (of Nichsei Milug, as Rashi explains) to redeem her husband's Ma'aser Sheni, because in such a case it is obvious that she does not have to add a Chomesh. The verse says "Ish" (Vayikra 27:31) and not "Ishah," which teaches that if the wife redeems her husband's Ma'aser she does not have to pay a Chomesh. Rather, it must be that the woman redeems her husband's Ma'aser with money that was given to her on condition that it be used only for the purpose of redeeming her husband's Ma'aser. The Rabanan consider the money given to her to be the husband's, and therefore she must add a Chomesh when she redeems the Ma'aser. Rebbi Meir considers the money to be the woman's, and therefore she does not need to add a Chomesh (since she is not the owner of the fruit). Accordingly, the Rabanan and Rebbi Meir contradict their respective opinions in the Mishnah.
Rava answers that the Beraisa refers to fruit of Ma'aser Sheni which the woman inherited (which is Nichsei Milug). The woman redeems it with her husband's money. The Rabanan rule that Ma'aser Sheni is "Mamon Hedyot," and therefore the husband has the rights to it (just as he has the rights to the "Peros" of all of her Nichsei Milug). Rebbi Meir rules that Ma'aser Sheni is "Mamon Gavo'ah," and therefore the husband has no rights to it; when the woman uses her husband's money to redeem the Ma'aser Sheni, she does not need to add a Chomesh because she is not the owner of the fruit.
The Gemara seems to contradict itself with regard to who is considered the owner of a woman's Nichsei Milug. Initially, the Gemara says that if the woman uses her money of Nichsei Milug to redeem her husband's Ma'aser Sheni, she does not add a Chomesh (as derived from "'Ish' and not 'Ishah'"). This implies that Nichsei Milug are considered her property (since she owns the Keren, the principal, of Nichsei Milug). However, the Gemara concludes that when she uses her husband's money to redeem Ma'aser Sheni of her Nichsei Milug, according to the Rabanan (who consider the Ma'aser Sheni to be "Mamon Hedyot") she is considered to be using her husband's money to redeem his Ma'aser Sheni.
It is also clear from the Gemara's initial assumption that Nichsei Milug are considered her husband's property. The Gemara initially understands that the woman redeems her husband's Ma'aser Sheni with money that was given to her on condition that it be used to redeem the Ma'aser. According to the Rabanan, the Gemara assumes that the husband is considered the owner of the money, and therefore the woman must add a Chomesh when she redeems the Ma'aser Sheni. However, even if the money belongs to the husband, it should have the status of Nichsei Milug, like money she inherits while she is married (see RASHI, DH d'Aisi). If the Gemara considers that money to be the husband's property, it must maintain that Nichsei Milug are considered the husband's property, since he owns the rights to the Peros. Why, then, does the Gemara assert that when she uses money of Nichsei Milug to redeem his Ma'aser Sheni, she does not add a Chomesh?
Indeed, in the case in which the woman uses her money to redeem the husband's Ma'aser Sheni, the Gemara itself does not actually call the money with which she redeems her husband's Ma'aser "money of Nichsei Milug," but rather "her money." It is possible that the Gemara refers to a case in which the money is entirely hers -- such as a case in which her husband withdrew his rights from her property during Erusin (see Kesuvos 83a), as the TOSFOS RID and SHITAH LO NODA L'MI explain, or a case in which her husband gave her the money as a gift, as the RASHBA and MAHARSHA explain. TOSFOS (end of DH Ela) suggests a similar explanation.
RASHI (DH Ela b'Zuzei Didah), however, writes that the Gemara indeed refers to money of Nichsei Milug. (Perhaps Rashi's source is the Gemara which explains that she is exempt from paying a Chomesh because of the Derashah of "'Ish' and not 'Ishah'," and not because of the Derashah of "'mi'Ma'asro' ('his Ma'aser') and not Ma'aser of others" (see Vayikra 27:31), which implies that the woman's money is not entirely comparable to a stranger's money.) Why, then, should she not add a Chomesh? The money should be considered like her husband's money, as is evident from the rest of the Gemara. (TOSFOS DH Ela)
(a) The RASHBA explains that money of Nichsei Milug are considered the woman's property (since she owns the Keren of Nichsei Milug). Therefore, if she uses money of Nichsei Milug to redeem her husband's Ma'aser Sheni, she does not add a Chomesh. However, when the Ma'aser Sheni is Nichsei Milug (as in the Gemara's conclusion), the case is judged differently. Since the only use for Ma'aser Sheni is its consumption in Yerushalayim, it has no use that can be considered Peros (that is, it cannot be used for the purchase of land which will produce Peros). The Rashba suggests that if the wife owns Nichsei Milug which have no Peros, they belong entirely to the husband. Accordingly, he is considered the full owner of the Ma'aser Sheni, and if she uses his money to redeem it she must add a Chomesh. This answers the first question.
The Rashba suggests a similar logic to answer the second question, with regard to money which was given to the woman on condition that it be used only to redeem Ma'aser. Since the money must be used to redeem Ma'aser and it cannot be used to purchase land, it has no Peros. Therefore, it is the exclusive property of the husband. (See SEFER HA'MIKNAH.)
(b) Perhaps Rashi understands that Nichsei Milug are considered the property of both the woman and the man for the following reason. The Keren (principal) belongs to the woman and the Peros (produce) to the man. The value of the Peros is calculated by how much a third party would pay to receive the husband's rights to the Peros, which generally is a percentage of the total market value of the property. Accordingly, if a person would pay twenty percent of the value of the Nichsei Milug in order to buy the husband's rights to the Peros, that shows that twenty percent of the Nichsei Milug is considered the sole property of the husband and eighty percent (the value of the Keren) is considered the sole property of the wife. (The SEFER HA'MIKNAH also suggests that property of Nichsei Milug is considered jointly owned.)
When the Gemara says that when she uses her money of Nichsei Milug to redeem her husband's Ma'aser Sheni she does not add a Chomesh, it refers to a case in which she uses only the value of the Keren to redeem the Ma'aser Sheni. (For example, she transfers the Kedushah of the fruit onto only eighty percent of the money, or she sells her portion of the Nichsei Milug and uses the profits of the sale to redeem the fruit.)
When the Gemara concludes that when she redeems Ma'aser Sheni of Nichsei Milug with her husband's money she must add a Chomesh, it means that she must add a Chomesh for the husband's portion of the Ma'aser Sheni which she redeemed with his money (that is, the Peros-value of the Ma'aser Sheni). The wording of the Beraisa is very precise according to this explanation, because the Tana Kama does not state that the woman must "pay a Chomesh" but that "she cannot redeem Ma'aser Sheni without a Chomesh" (because although she does pay a Chomesh, she only pays a Chomesh for part of the Ma'aser Sheni).
Although Ma'aser Sheni has no Peros, as the Rashba points out, after it is redeemed it may be used for the purchase of land, as the TOSFOS RID writes. Therefore, even Ma'aser Sheni has a Peros-value.
How does Rashi understand the Gemara that says that if a woman is given money on condition that she use it only for the redemption of Ma'aser, the Rabanan require that she add a Chomesh because the money becomes her husband's money despite the stipulation? Why is the money not viewed as Nichsei Milug? Why is it not considered the woman's exclusive property since such money has no Peros-value?
The TOSFOS RID and SEFER HA'MIKNAH explain that according to Rashi, money given to the woman as a gift is not considered Nichsei Milug like money she inherits. Rather, such money is considered the exclusive possession of her husband, like money she finds or earns. This is evident from the words of Rashi earlier (23b, DH Kinyan) and in Sanhedrin (71a, DH Al Menas). Accordingly, if money given to her for the purpose of redeeming Ma'aser is viewed like any other gift, it is considered entirely the husband's property and not Nichsei Milug. Therefore, she must add a Chomesh when she uses it to redeem her husband's Ma'aser Sheni.
2) A USELESS TOOTH
QUESTION: The Gemara teaches that an Eved Kena'ani goes free if his master blinds him. Even if the Eved was already blind, he goes free if his master knocks out his eye, because the loss of a limb warrants the Eved's release to freedom. The Gemara later states that if the master knocks out his Eved's loose tooth which serves no purpose, the Eved does not go free since the tooth was useless before it was knocked out.
What is the difference between the loss of a useless eye and the loss of a useless tooth? In both cases, the master has caused the loss of a limb and the Eved should be set free as a result.
The Gemara clearly views the tooth as a limb just as it views the eye, since it derives from the words, "Shen v'Ayin" -- "a tooth and an eye" (Shemos 21:26), that the loss of any of the Roshei Evarim warrants the release of the Eved. Hence, even the removal of a useless tooth should warrant his release. (RASHBA, MAHARSHA, and others. See Insights to 25:1.)
(a) The RASHASH answers that a tooth differs from an eye in that it is not considered as much a part of the body as the eye, since it tends to fall out with age and since a person is not born with it.
If a tooth is not considered as much a part of the body as the eye, why does the Gemara (at the beginning of the page) not give this logic as the reason for why the Torah writes both "tooth" and "eye" in the verse? Had the Torah written only "eye" one would have thought that the Eved does not go free when his tooth is knocked out since the tooth is not as much a part of the body as the eye.
It is clear that the Gemara there could have suggested other reasons for why the Torah needs to mention the loss of a tooth. A tooth is not as visible as the eye, for it is seen only when the mouth is open; had the Torah written only "eye" one would have thought that the Eved does not go free unless a very exposed part of his body (like the eye) is damaged, but not when a tooth is knocked out. Indeed, a missing tooth is not considered a blemish (Mum) with regard to the blemishes which disqualify a Korban or a Kohen, as REBBI AKIVA EIGER and the SEFER HA'MIKNAH ask.
The SHITAH LO NODA L'MI also asks this question. He answers that the Gemara indeed could have used this logic to explain why the Torah needs to write "tooth," but it chose instead to express a different logic.
(b) The SHITAH LO NODA L'MI and RABEINU YEHONASAN MI'LUNIL explain that when a tooth is so loose that it is useless, it eventually will fall out. Therefore, the master causes no damage when he knocks it out. In contrast, a blind eye would have remained in its place had the master not knocked it out, and thus the master is considered to have caused damage when he knocks it out.