The Mishnah (8:4) lists people who are “bad” to have involved in a physical injury. The reason is that one is liable for any damage causes to these people, but these people are exempt if they inflict damage. The first group includes the minor, deaf-mute or imbecile. Since they are not bnei da’at (of intellectual capacity) they are not held responsible for their actions. The second group is the eved and a wife. The Bartenura explains since they do not have their own property, they are unable to pay compensation. The Mishnah however explains that if the eved is freed or the wife is divorced, then they are obligated to pay the compensation.
One question raised is that a wife*does technically have here own property – the property that she brought into the marriage. Recall that they fall under two categories. Nichsei melog – usufruct property that remains the property of the wife, but the husband is allowed to get benefit from it and is not responsible for fluctuations in its value. Nichsei tzon u’barzel* – property that is included as part of the dowry and the husband able to use it as he pleases. If he however dies first or divorces her, the full original value of the property must be returned. This being the case, what prevents the wife from paying compensation?
The Bartenura explains that this property cannot simply be sold during the marriage since the husband has a lien on the property. The Tifferet Yisrael however explains that if she has nichsei melog, then she can sell it “b’tovat hana’ah”. In other words, even though during the marriage the husband can use property, if she is divorced or the husband dies then the property returns to her. Note that if she dies first, then the husband inherits this property. Her “rights” in this arrangement has a value and can be sold to a third party. This is referred to as tovat hana’ah. The Rosh agrees with this position, but extends it even further to nichsei tzon u’barzel; she would be required to sell her rights in them if necessary.
TheTifferet Yisrael however explains that if she had no other property but only her ketubah, then she would not be required to sell her rights to her ketubah. The reason is that a ketubah is effectively a debt. Now while debts can be sold, the original lender is able to forgo the debt. Since the wife in all likelihood would be happy to forgo the ketubah once her rights are sold, it is not a viable option.1
The Tosfot Yom Tov however argues that even if the wife had nichsei melog she would be unable to pay the damages. He equates considers nichsei melog and nichsei tzon u’barzel like a loan and the same rationale that applied to ketubah above applies to them.
The Tosfot R’ Akiva Eiger finds the Tosfot Yom Tov’s position difficult. He explains that there are two understandings why a lender can subsequently forgo the loan after he sells it. Either that in truth, on a biblical level one cannot sell a loan; the capacity to do so was a rabbinic institution. Alternatively, it is that while the sale is effective it cannot include the lien on the person (as apposed to property). R’ Akiva Eiger explains that neither of these reasons apply to nichsei melog. In truth, a wife is able to sell nichsei melog even during the marriage. The subsequent decree of takanat usha however made him considered like the first purchaser (in the event that she died) preventing her from selling it. Her rights (as described above) however can certainly be sold. The concept of forgoing that applied in loans does not apply here. Consequently the case in the Mishnah must be referring to where the wife concerned had not nichsei melog.2
1 The novelty therefore of the Roshcited above is that even though nichsei tzon u’barzel might appear like a loan, he treats them like nichsei melog in this case.
2 R’ Akiva Eiger asserts that no proof can be brought from the Rambam’sand Rif’sabsence of stating this detail when bring the ruling of our Mishnah.
R’ Akiva Eiger notes that Rashi appears to maintain that even in the case where she has nichsei melog the wife would be exempt. He cites the Yam Shel Shlomo that points out that the position appears to contradict the Gemara. The Yam Shel Shlomo suggests that Rashi understand that in practice she would not be able to sell the rights as they would have little value and be difficult to sell.
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