Bava Batra 99

ואחת שיחד לה בכתובתה ואחת שהכניסה לו שום משלה

a second, the one assigned to her as special surety for her <i>kethubah</i>,<span class="x" onmousemove="('comment',' After the wedding. On this also she places special reliance, as it has been assigned to her with full formalities in the presence of witnesses. ');">¹</span>

למעוטי מאי אילימא למעוטי שאר נכסים כל שכן דהויא ליה איבה דאמר לה עיניך נתת בגירושין ובמיתה

and a third which she had brought him [as marriage] dowry, and for the money value of which he made himself responsible [to her].<span class="x" onmousemove="('comment',' Inserting a stipulation to that effect in the kethubah. This is the so-called 'property of the iron sheep' (Zon barzel), which the wife makes over to the husband from her dowry, on condition that the husband is responsible to her for its full money value, whether he makes a profit or a loss on the transaction. [The term tzon barzel has a parallel in Roman law, pecus ferreum, and is not limited to a specific property arrangement between husband and wife but applies to every form of conveyance of property on a basis of tenancy and possession, v. Epstein, M., The Jewish Marriage Contract, p. 91, n. 12.] ');">²</span>

אלא למעוטי נכסי מלוג האמר אמימר איש ואשה שמכרו בנכסי מלוג לא עשו ולא כלום

Now what property does this exclude from the rule [that the purchase is void]? Shall we say it is to exclude the remainder of the husband's property?<span class="x" onmousemove="('comment',' Which is pledged to her as security for her kethubah. ');">³</span>

כי איתמר דאמימר היכא דזבין איהו ומית אתיא איהי ומפקא א"נ זבנה איהי ומתה אתא איהו ומפיק בתקנתא דרבנן וכדר' יוסי בר חנינא דאמר רבי יוסי בר חנינא באושא התקינו האשה שמכרה בנכסי מלוג ומתה הבעל מוציא מיד הלקוחות

[Hardly]; for in regard to this [she would] certainly [say that she did it to oblige her husband], since otherwise he might, fall out with her and say to her, 'You have your eye on a divorce or on my death.'<span class="x" onmousemove="('comment',' If the husband sells any part of his property which is not so particularly mortgaged to her, and she refuses to confirm the sale, he may accuse her of desiring this part to remain in his possession because she is looking forward to his death or a divorce from him and is loth to part with a security for her kethubah. Thus she has a motive for consenting, so as not to estrange her husband. Hence this is obviously not the kind of property excluded from the rule stated. ');">⁴</span>

אבל היכא דזבינו תרוייהו לעלמא א"נ זבנה איהי לדידיה זבינה זביני

The property excluded<span class="x" onmousemove="('comment',' I.e., the purchase of which is valid if it is bought first from the husband and then from the wife. ');">⁵</span>

ואיבעית אימא אמימר דאמר כר' אלעזר

must therefore be that of which the husband has the usufruct. But [how can this be], seeing that Amemar has said: If husband and wife sell the property of which he has the usufruct,<span class="x" onmousemove="('comment',' The so-called 'property of plucking' (mulug), which belonged to the wife but of which the husband had the usufruct without responsibility for loss or deterioration. [The term mulug is derived from Aram. [H] to pluck, Aruch, or from Lat. mulgere, 'to milk'. V. Epstein, M., op. cit, p. 92. n. 16.] ');">⁶</span>

דתניא המוכר את עבדו ופסק עמו שישמשנו שלשים יום

their action is null and void?<span class="x" onmousemove="('comment',' The question then remains, in spite of Rabah R. son of Huna's gloss. what property is excluded from the rule? ');">⁷</span>

ר' מאיר אומר הראשון ישנו בדין יום או יומים מפני שהוא תחתיו והשני אינו בדין יום או יומים מפני שאינו תחתיו

— Amemar was speaking of the case where the husband sold it and then died, in which case she can recover it,<span class="x" onmousemove="('comment',' Because he had no right to sell it. ');">⁸</span>

קסבר קנין פירות כקנין הגוף דמי

or where she sold it and died, in which case he can come and recover it,<span class="x" onmousemove="('comment',' We must therefore understand Amemar to mean, 'If the husband or the wife sells it'. ');">⁹</span>

ר' יהודה אומר השני ישנו בדין יום או יומים מפני שהוא כספו הראשון אינו בדין יום או יומים שאינו כספו קסבר קנין פירות לאו כקנין הגוף דמי

(according to the regulation of the Sages recorded by R. Jose b. Haninah, who said: It was enacted In Usha<span class="x" onmousemove="('comment',' V. p. 139, n. 1. [On the enactments of Usha, Takkanath Usha, v. Epstein, op. cit., 110ff.] ');">¹⁰</span>

ר' יוסי אומר

that if a woman sold the property of which the husband had the usufruct and then died, the husband could recover it from the purchaser).<span class="x" onmousemove="('comment',' The husband being in the position of a 'prior purchaser'. V. B.K. 88. ');">¹¹</span> Where, however, they both sold it [together] to a third party or if the wife sold it to the husband, the sale is valid.<span class="x" onmousemove="('comment',' Hence (to revert to the original question), if the wife sells to her husband the so-called 'property of plucking', the sale is valid, and she cannot plead, 'I did it to oblige my husband'. ');">¹²</span> Alternatively, I may say that Amemar based his ruling<span class="x" onmousemove="('comment',' That if the wife or the husband sold the 'property of plucking' the sale becomes void on the death of the wife or husband respectively. So R. Gersh. Rashb. refers it to the ruling that if both husband and wife sell, their action is void, but, as will be seen, R. Eliezer's dictum by no means bears this out. V. infra p. 208, n. 2. ');">¹³</span> on the view expressed by R. Eliezer.<span class="x" onmousemove="('comment',' And not on the regulation of the Sages. ');">¹⁴</span> For it has been taught: 'If a man sells his slave but stipulates [with the purchaser] that he shall continue to serve him for thirty days, R. Meir says that the rule of "one or two days"15 applies to the first [the original owner] because the slave is still "under" him, and it does not apply to the second because the slave is not "under" him.'<span class="x" onmousemove="('comment',' If the original owner smites him during this time and he survives a day or two, he is not guilty of murder, but if the purchaser smites him, even if he survives a day or two, he is guilty of murder. B.K. 50a. ');">¹⁶</span> He [R. Meir], holds that possession of the increment is on a par with possession of the principal.<span class="x" onmousemove="('comment',' The 'increment' here is the labour of the slave and the 'principal' is the slave himself. R. Meir holds that for the purposes of this law the one who disposes of the labour of the slave is in the position of owner. ');">¹⁷</span> 'R. Judah says that the rule of 'one or two days' applies to the second [the purchaser], because the slave is "his money", but not to the first, because he is not "his money".' His opinion is that the possession of the increment<span class="x" onmousemove="('comment',' The 'increment' here is the labour of the slave and the 'principal' is the slave himself. R. Meir holds that for the purposes of this law the one who disposes of the labour of the slave is in the position of owner. ');">¹⁷</span> is not on a par with possession of the principal. 'R. Jose says