Pidyon (Ketubot 47:)

  • Rav Yair Kahn
Translated by Hillel Maizels
 
 
Our Rabbis taught: "[The Rabbis] made a takana that (1) [the husband is obligated to supply] his wife's mezonot in return for [his receiving her] earnings; and (2) that [he must provide for] her burial in return for [his inheriting the dowry items listen in] her ketuba. Therefore a husband consumes perot {=produce yielded by his wife's property}."
 
Perot? Who mentioned it [and how does it fit into the takana]? Rather, the Beraita is missing words, and should read as follows: "[The Rabbis] made a takana that (1) [the husband is obligated to supply] his wife's mezonot in return for [his receiving her] earnings; (2) that [if she is taken captive, the husband provide for her] pidyon {=ransom/redemption} in return for [his receiving] perot; and (3) that [he must provide for] her burial in return for [his inheriting the dowry items listed in] her ketuba. Therefore a husband consumes perot [yielded by his wife's property]."
 
Still, what [is added by the words] "Therefore…"? You might have said: Let the husband not consume [the perot], but rather set it aside [to redeem the wife if she is taken captive]. Otherwise, the husband might refuse to redeem her [having no ready allocated money for her ransom] –– the Beraita therefore comes to teach us that it is preferable [that the husband consume the perot, rather than set it aside] for sometimes the [accumulated value of the perot] will fall short [of the money needed to redeem her, but] he will [still] redeem her out of his own resources. (Ketubot 47b)
 
With regards to mezonot, Reish Lakish and Rav Huna argue (58b) whether a wife is allowed to say 'I relinquish my rights to mezonot and I will not work and give my husband my earnings.' The Halakha is decided like Rav Huna who says she is permitted to do this, and, based on this, the Rishonim investigated whether a woman is also allowed to say 'I relinquish my rights to be redeemed and I will not give [my husband my] perot.'
 
Tosafot in Bava Batra (49b s.v. 'Yekhola') rule that a woman is not allowed to say 'I relinquish my rights to be redeemed and I will not give perot,' and to prove this they write: "And in the Yerushalmi, chapter "Na'ara" [chapter 4], it is written clearly on the Mishna 'If she marries, the husband has the additional right that he can consume her perot during her lifetime…' that if a husband says 'I want neither to consume my wife's perot nor to be obligated to redeem her' – we do not listen to him." (Hence, since the husband cannot revoke this takana, one can assume that this is the case for the wife as well).
 
However, in our texts we have a different version in the Yerushalmi: "The Rabbis made a takana that the husband should look after his wife's property and also consume the perot… it is taught: A husband who says 'I want neither to eat perot nor to supervise my wife's property' – we do not listen to him" (Ketubot, Chapter 4 Halakha 6). According to this version, the Yerushalmi disputes the Bavli, and holds that the husband's right to his wife's perot is intended to ensure that he will supervise his wife's property. It is clear, according to this version, that the takana of perot is for the benefit of the wife and therefore the husband cannot nullify it. Hence it is not possible to bring from here a proof for our discussion (since this would only negate the possibility of the husband to revoke the takana; whereas since the takana is for the benefit of the wife, it is possible that she could revoke it.)
 
Before we discuss this question, we should first clarify: When we say "The Rabbis made a takana that if the wife is taken captive, the husband must provide for her pidyon in return for his receiving perot," what was the primary takana? The pidyon or the perot? In other words, is the takana for the benefit of the wife – in order to obligate the husband to redeem his wife, and - in return for this - they gave to the husband the right to his wife's perot? Or perhaps the primary purpose of the takana was to give the husband the right to his wife's perot, and in exchange for this right, they obligated the husband in his wife's pidyon?
 
From the wording "her pidyon IN EXCHANGE FOR her perot," it is implied that the takana of perot for the husband was the main one, and in exchange for this they obligated the husband to redeem his wife. (The Gemara in Chapter "Af Al Pi" (Chapter 5 – 58b) makes a similar observation.)
 
     However, from our sugya it is implied that the primary takana was to benefit of the wife, and thus they considered making the husband accumulate the perot so that he will have some resources with which to redeem her; they decided against this and gave the husband the right to eat the perot only because doing this would increase his inclination to provide her pidyon. This understanding makes more sense, since the need for the takana of pidyon is clear, whereas it is apparently not so clear why the Rabbis would want to give the husband the right to his wife's perot. This is how most of the Rishonim understood the sugya.
 
In contrast, see the Rashbam (on Bava Batra 49b) who rules "…and this is also the case for perot of his wife's property which she brings into the marriage {"nikhsei m'log"} – about which the Rabbis made a takana that the husband should receive the perot of this property in return for her pidyon – that one can certainly extrapolate to the case where the husband says 'I refuse to accept upon myself the takana to redeem my wife, and I don't care about receiving my wife's perot' – that this stipulation works – but only while she is still engaged, since before the marriage he has not yet received the ownership of the perot by means of vis-a-vis her property. Apparently, according to the Rashbam's words, the main purpose for the takana of perot was to benefit the husband (since there are times that he can revoke it if he wants); this requires further investigation.
 
As we said, according to most Rishonim, the primary purpose of the takana of perot is to benefit the wife, and therefore there is room to discuss whether the wife can say 'I do not wish to be redeemed, and I will not give my husband my perot.' The Ramban brings an opinion that this is, indeed, possible, but he himself disputes this: "One could infer, according to what we have said, that if the wife wishes to say 'I do not wish to be redeemed, and I will not give perot' that the wife is allowed to do so, and such is the opinion of a few of the Rabbis however it seems logical to me that the stipulation of her pidyon is actually for the benefit of both of them – and even though the primary takana is for her, there is also a takana for him in this matter." Most Rishonim agree that a woman cannot say 'I do not wish to be redeemed, and I will not give my husband my perot' and if so, we have to understand in what way the law of perot is different from the law of mezonot (which she can revoke).
 
Tosafot offers a few explanations to differentiate between mezonot and perot: "One could claim that even though according to Rav Huna, a woman is allowed to say to her husband 'I relinquish my rights to mezonot… etc." -
 
(1) there, it is only because by doing so she does not completely revoke the takana – since if she says today 'I relinquish my rights to mezonot and I will not work and give my husband my earnings,' tomorrow, if she does work, she will receive mezonot. However, if she says 'I do not wish to be redeemed, and I will not give my husband my perot,' by doing so she has completely revoked the takana of perot, since the all the accumulated perot of all her days are in exchange for her pidyon.
 
(2) And even if you say that she is in fact allowed to say 'I NEVER want mezonot and I will NEVER work' – still, one could say that she is not allowed to say 'I do not want to be redeemed' so that she will not be defiled amongst her non-Jewish captors.
 
(3) Alternatively, perot are intrinsically different, because "his hand is equal to her hand" and the husband has ownership over the very land itself which yield the perot – as opposed to her earnings, which are not yet in existence; and it is not plausible to say that he has ownership over her hands [with which she works and makes her earnings].
 
The first explanation of Tosafot is that even though the wife can say 'I relinquish my rights to mezonot and I will not work and give my husband my earnings' she does not thereby completely uproot the takana of mezonot, since she always has the option to take back her statement. Therefore, this is not considered a fundamental change in the stipulations of the marriage, but rather a brief, temporary remission. However, the obligation of the husband for his wife's pidyon is in exchange for the perot of the entire duration of the marriage. If so, even a temporary remission causes a complete uprooting of the takana of pidyon; and it is not in the power of the wife to change the stipulations of the marriage after the wedding. Note, however, that a question arises from a close analysis of Tosafot's wording – who write "She has completely revoked the takana of PEROT" – whereas apparently they should have written the "takana of PIDYON" (it being the primary takana, as we said above)? Perhaps, though, they were referring to the takana as a whole: i.e. "pidyon in return for PEROT" (as the Gemara phrases it, even though the pidyon is apparently the primary takana.)
 
The Ran, also bothered by the above question (of why perot should be different from mezonot), writes: "…For if you say that we should listen to her, what have the Rabbis achieved with their takana of perot? All women, when they have perot, will say this, and when they do not have perot, we will obligate the husband to redeem her, and this defeats the purpose of the law."
 
From the words of the Ran we see that he disputes the above answer of Tosafot, and understands that on a basic level, the husband's obligation for pidyon is not in exchange for the wife's perot of the entire duration of the marriage. In his opinion, when the husband has received perot, he is obligated in pidyon, and when he has not received perot, he is exempt. Therefore, it is impractical to give the wife the ability to activate the takana and deactivate it at will. For if we did, when she has perot she will deactivate the takana (so that she can keep them), and when she has no perot she will activate it (to be redeemed); and if she is captured when she has no perot, the husband will be obligated to pay the full price of the pidyon without receiving any reasonable compensation.
 
According to the second explanation of Tosafot: in principle, the woman is allowed to say 'I do not wish to be redeemed, and I will not give my husband my perot.' However, the Rabbis revoked her right to do this, in order to prevent the danger of assimilation. In other words, even though the takana of pidyon is for the wife's benefit, the Rabbis withheld from her the option to renounce the takana in order that she should not remain captive amongst non-Jews.
 
In their third explanation, Tosafot raise a legal distinction between the right of a husband in his wife's earnings, and his right to her perot. According to them, the husband has ownership of the wife's property (which yield the perot) by which he has ownership of her perot. This is in contrast to the husbands right to her earnings which is not because of any ownership of his wife's hands (with which she makes her earnings); it is rather a separate and direct right to whatever she earns. From this we can infer that even though the takana of perot was made for the benefit of the wife, it is not in her power to revoke the ownership that the husband has over her property. As opposed to the ability of the wife to say 'I relinquish my rights to mezonot and I will not work and give my husband my earnings,' which is dependent on the fact that the husband has only a right to the her earnings when they come into existence, but has no ownership whatsoever over his wife's hands (and therefore cannot force her to work).  (See further in Ketubot (58b), where according to Reish Lakish – who argues with Rav Huna – the husband can "makdish his wife's hands to the One Who made them" {=designate them as property of the Temple}. This implies that he understands that the husband in fact does have ownership over his wife's earnings since by means of his ownership over her hands. According to this answer in Tosafot, we can well understand why, according to Reish Lakish, the husband can force his wife to work, whereas she cannot say 'I relinquish my rights to mezonot and I will not work and give my husband my earnings.' For even if Reish Lakish would agree that the takana of mezonot in return for earnings is for the benefit of the wife, she still does not have the power to revoke the ownership which the husband has over his wife's hands.)
 
Apparently, there is a practical ramification between the different explanations of Tosafot. In the last explanation, they explained that the reason that the wife can say 'I relinquish my rights to mezonot and I will not work and give my husband my earnings' is because of the lack of the husbands ownership of her hands. According to this, a woman would apparently be able to stipulate a condition to change this before the 'acquisition' – i.e. before the marriage. Similarly, we find that the husband can revoke his ownership over his wife's property – but only before the marriage, as we learn: (Ketuvot 83a):
 
"If the husband writes [in the ketuba]: 'I shall have no claim or argument with respect to your property,' he may [nevertheless] consume perot during her lifetime, and if she dies [before him], he inherits her… Rav Yehuda says: He always [retains the right to even] the perot of the perot, unless he writes in her [ketuba]: 'I shall have no claim or argument with respect to your property or to its produce or to the produce of to produce 'to infinity.'"
 
The Gemara there (83a) explains:
 
"[The husband's waiver is effective in the case] where he writes it to her while she is still engaged, in accordance with Rav Kahana [who] said '[With respect to] an inheritance coming to a person coming from another source [ie. through marriage], a person may stipulate about it [in advance] that he will not inherit it. And according to Rava, [who] said: If one says "I do not wish for a Rabbinic takana [made for my benefit to take effect]" such as this [takana under discussion], we listen to him.
 
What [is Rava referring to when he says] "such as this"? [He means:] such as [the case addressed by] Rav Huna in the name of Rav [who] said: A woman is [legally] able to say to her husband, "I relinquish my rights to mezonot, and I will not work [and give you my earnings].'
 
If so, then even if she is married [the husband should be able to relinquish his rights to her property]!
 
Abayei [answered]: In the case of a married woman, [the husband's] hand is equal to her hand. (ie. They are like equal partners in her property. He therefore needs to have a proper transaction to give it away; he cannot simply relinquish his share.)
 
Rava [answered]:  His hand is stronger than her hand."
 
In contrast, if the objective of nullifying the law of pidyon is in order that she not be defiled amongst her non-Jewish captors, there would be no difference between an engaged woman and a married woman.
 
In this matter, the Shulchan Arukh rules: "And he is not able to say to her 'here is your divorce, and [the money of] your ketuba, and you can redeem yourself.' And even if he says 'I will not redeem you and I will not take [your] perot' – we do not listen to him, rather he is obligated to redeem her. The Chelkat Mechokeik infers from the words "and EVEN IF he says 'I will not redeem you…' " that the Shulchan Arukh meant: "Even if he says so at the beginning of the marriage."
 
However, it does not seem right to explain thus the words of the Shulchan Arukh, for if so, he would be disputing the opinion of the Rambam who rules (in Hilkhot Ishut, Chapter 12):
 
If the husband stipulates that he will not be obligated in one of the things in which he is [normally] obligated, or if the wife stipulates that her husband will not receive one of the things which he [normally] receives, the stipulation is valid – except for the three things against which no stipulation is effective, and anyone who stipulates against them, his stipulation is nullified. They are: (1) Onah {the husband's obligation for marital relations}, (2) the principal amount of the ketuba, and (3) his inheritance [of her property]… with regard to all other things, his stipulation is valid. For example, if he stipulates that she will receive no food, or no clothing, on condition that he will not consume the perot of her property, or anything like this – his stipulation is valid."
 
We see that the Rambam explicitly establishes that it is, indeed, possible to stipulate at the time of the marriage, and how is possible for the Chelkat Mechokeik to explain the Shulchan Arukh as we just did without pointing out that the Rambam disputes this?
 
On the contrary, it seems clear that this is not the intent of the Shulchan Arukh, and he was only coming to refute the opinion of the Rashbam, who held that the husband is allowed to say 'I want neither to redeem nor to consume perot.' (see the Tur).
 
Until now we have related to the takana of perot and pidyon as one takana. But we should take a look at the Rambam, who rules:
 
"And the four things that the husband obtains from the takana of the Rabbis are as follows: (1) that her earnings should be his, (2) that the articles she finds should be his (3) that he should consume all the perot yielded by her property while she is alive, and (4) if she dies while he is alive, he inherits her, and he precedes everyone in her inheritance. The Rabbis made an ADDITIONAL takana that her earnings should be [her husband's] in exchange for her mezonot, and her pidyon in exchange for the [husband's] consumption of the perot of her property., and that that he has to attend to her burial needs in exchange for his inheriting the items listed in the ketuba. Therefore, if the wife says: 'I relinquish my rights to mezonot and I will not work and give my husband my earnings' – we listen to her and do not force her [to work]…" (Hilkhot Ishut, Chapter 12, Halakhot 3-4).
 
From the Rambam's words it is implied that this takana was made in two stages: First, they defined the obligations of the husband and the wife, and made the takana that the husband receives perot, and also, in parallel, they obligated him to redeem her. It was only after this were the two takanot integrated into one, and they made a takana that the obligation of pidyon should be in exchange for perot. If so, according to the Rambam, The Rabbi's awarded the husband with perot independently, and not only in exchange for his obligation to redeem his wife. Let us understand the meaning of this takana:
 
We have learnt in Gittin (47b) " 'And to your house' teaches us that a person should bring his wife's bikkurim {=first fruit of the harvest brought to the Temple}, and read [the required text]" In other words, A husband has a certain ownership over his wife's property, namely "ownership of perot" ("kinyan perot"), and therefore he is able to bring [her] bikkurim and read.
 
Tosafot raises the question that since the right of "acquisition of perot" of the husband is only on a Rabbinical level – a result of the takana to grant the husband perot in order that he redeem his wife – how can the Beraita bring a verse which teaches that the husband can bring [his wife's fruits] and read: "You might ask: if, according to Biblical law, the husband has no right to the perot of his wife's property, but rather [his right is] only Rabbinical, [this is difficult: from our Gemara] one is forced to say that it is a 'gzeirat hakatuv' {i.e. It is a Biblical imperative). See further, though, in Tosafot, where they answer: "One could answer that it is the practice of women that they give [rights to] their perot to their husbands, and it is to this case that the verse was referring." From Tosafot we see that Jewish women had the practice to grant this "ownership of perot" to their husbands. Apparently, this practice was not in exchange for any obligation on the husband to redeem his wife. We are thus forced to accept that this right of the husband to the perot of his wife was a commendable arrangement to have between a married couple.
 
     From all the above, we clearly see that there is a reason to grant the husband the right to his wife's perot independently, even without the reciprocal takana of pidyon. Indeed, have we not already seen that it is not proper that there be a separate source of income for the wife, seeing as the husband is the one who is obligated to provide for all her needs, and it is for this reason that the Rabbis made the takana that the husband receives his wife's earnings in return for his obligation to give her mezonot. Similarly one could say here that it is not proper that the wife should have a separate source of income even if this source of income is the very property which she herself brought into the marriage. A separate 'bank account' is likely to cause needless tensions. Therefore, the Rabbis sought a way to preserve the value of the wife's assets, without harming the harmonious co-existence of the couple, and they ordained that the wife should retain ownership over the property itself – and would thus receive full rights to them in the event of divorce or death of her husband – but during the term of the marriage, the husband receives the rights to the perot from the property.
 
According to this, We can understand the practice of the Jewish women to grant their husbands rights to the perot of the property that they bring into the marriage even without a takana of pidyon. This is also the way to understand the opinion of the Rambam that relates to the takana of perot as an independent takana in the first stage. In this way, we also understand the opinion of the Rashbam, according to which the primary takana was that of perot, and in exchange for this the husband is obligated to redeem his wife.
 
And perhaps this is the intention of Tosafot in our sugya, who write that a wife cannot say 'I relinquish my rights to be redeemed and I will not give my husband my perot,' since "by doing so she has completely revoked the takana of perot, since the all the [accumulated] perot of all her days are in exchange for her pidyon." By a close analysis of the words, we noticed that they should have said that she completely revokes the takana of PIDYON, since apparently this is the primary takana. But in light of what we have just explained, it is possible to explain the words of Tosafot according to their plain meaning, and say that uprooting the marriage is applicable only with regards to revoking the takana of perot, which is the takana which characterizes the relationship between the couple. This in contrast to the obligation of pidyon, which, despite its importance, is not meaningful in the sense of defining the marriage and does not reflect or define a regular married life between the couple. Therefore, uprooting it does not entail revoking the marriage. And thus Tosafot were precise in their words, and wrote that "a wife cannot say 'I relinquish my rights to be redeemed and I will not give [my husband my] perot,' since by doing so she has completely revoked the takana of PEROT."
 
Sources and Questions for the next shiur:
 
1.  Ketubot 48a "Rabbi Yehuda ... ha-tzibbur;" 64b "ve-notein la ... ar'ei."
2.  61a "ola imo ... nitna;" Yerushalmi 5:6 "kehada detani ... lo olin," Mar'eh Ha-panim.
3.  Rambam Hilkhot Ishut 18:3,4,14
4.  48a Rashi s.v. orchei, Tosafot s.v. de-orchei; 65a Rashi s.v. orchei; Ramban s.v. ha de-amrinan le-eil.
 
Questions:
 
1.  Does the halakha of ola imo apply when the husband is overseas?
2.  Does this halakha apply when the husband supports his wife through a third party?
3.  Does ola imo apply with respect to a widow?
4.  Why did the Rambam ignore the Yerushalmi regarding this issue?
5.  What is the contradiction found in Rashi's commentary regarding the definition of ola imo?  How can it be resolved?