THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) THE HUSBAND'S RIGHTS TO RECEIVE "PEIRI PEIROS"
QUESTION: The Mishnah states that according to Rebbi Yehudah, when the
husband foregoes his rights to the Peiros (fruits) of the field of the wife,
he only loses his rights to the Peiros but not to the Peiri Peiros (the
fruits of the fruits). It is clear from the Mishnah that when the husband
makes no statement relinquishing his rights to the Peiros, everyone agrees
that he has the rights to the Peiri Peiros.
2) RELINQUISHING ONE'S RIGHT TO RECEIVE A BENEFIT
How can this be reconciled with the Gemara earlier (79b) that says that the
Rabanan instituted only that the husband receives the Peiros and not the
(a) The RIF (79b) points out that the Gemara later (83b) gives an example of
the Peiri Peiros which the Mishnah is discussing. If the husband sold the
produce of the wife's land in order to buy more land, and that second land
produced Peiros, those Peiros are called Peiri Peiros. The Rif explains that
it is only when the husband did not benefit from the original Peiros -- but
rather he sold it and bought land for his wife from the Peiros -- that he
receives the Peiri Peiros, because they take the place of the original Peiros
from which he received no benefit.
The Gemara earlier (79b) is discussing a case where the wife's animal bore
offspring, and that offspring was stolen, and the thief was found and is
obligated to pay Kefel (double) to the owner of the offspring. Since the
husband receives the offspring (Peiros), the Kefel (Peiri Peiros) goes to the
wife. Presumably, the same applies to the offspring of the offspring; since
the husband took the original offspring, the next generation goes back to the
(b) However, the other Rishonim disagree, saying that it is not logical that
the offspring of the wife's animal belongs to the *husband*, while the
offspring of that offspring belongs to the *wife*! Rather, TOSFOS, citing the
RIVAN, explains that the Gemara there (79b) does not mean to differentiate
between Peiros and Peiri Peiros per se. Rather, it is differentiating between
what is derived directly from the Peiros and what is derived indirectly from
the Peiros. If the husband takes fruit and plants it, all the produce belongs
to him, since the produce was derived directly from the fruit. If someone
steals the fruit and is caught and must pay Kefel, the Kefel goes to the wife
because it derives only indirectly from the fruit.
QUESTION: The Mishnah discusses a case where a man foregoes his rights to the
Peiros of his wife's property. The Gemara cites two more cases wherein a
person relinquishes his rights to something that he or she is legally
entitled to receive. First, Rav Kahana says that a man can make a
precondition that he will not inherit his wife's property if she dies, even
though he is entitled to it. Second, Rava says that a woman can exempt her
husband from supporting her with Mezonos (and exempt herself in return from
giving her earnings to her husband) by saying that she does not wish to
receive spousal support from him.
3) JOINT OWNERSHIP
The Gemara explains that the reason a woman may forego her rights to Mezonos
is because it was the Rabanan who instituted -- for her benefit -- that she
receive the Mezonos in the first place. The Rabanan said that if she prefers
not to receive the benefits of the Takanah that they instituted for her, she
may decline by saying "Iy Efshi b'Takanas Chachamim." It seems that this is
also the reason why the husband is able to forego his rights to inherit his
wife's property, and why he may forego his rights to receive the Peiros of
her property. Since the Takanah granting him those rights was only instituted
for his benefit, he may decline to receive them.
Why do we need the principle of "Iy Efshi b'Takanas Chachamim" in these
cases? Why does the Gemara say that the only way in which one can forego his
or her rights is through the mechanism of saying "since the Takanah was made
for me, I am entitled to relinquish its benefit?" Our Mishnah holds that one
may make a condition that counters what the Torah says -- one may be "Masneh
Al Mah she'Kasuv ba'Torah" (see 56a, and Rashi at the end of the Mishnah
here), and that Tenai will effectively alter the Torah's intended destination
for the property! If a Tenai can affect a Din d'Oraisa, then obviously it is
not working through the mechanism of "Iy Efshi b'Takanas Chachamim," because
a Din d'Oraisa is not a Takanah! "Masneh Al Mah she'Kasuv ba'Torah" works
because when it comes to monetary matters that affect only him, a person has
the right to alter what he would otherwise be entitled to receive. If so,
certainly he should be able to use a Tenai to change what the Rabanan
entitled him to receive! Why, then, do we need the separate logic of "Iy
Efshi b'Takanas Chachamim," which applies only where the Chachamim made a
Takanah for his benefit?
(a) TOSFOS (end of DH k'd'Rav Kahana) asks this question on the Mishnah; why
does the Mishnah not say that one may avoid receiving something by making a
Tenai. Tosfos answers that one *could* use a Tenai to avoid acquiring
something, but the words of the Mishnah, "Din u'Devarim Ein Li...," do not
connote a Tenai, but rather a removal of his rights, and a removal of rights
can only be done when those rights are granted to him by a Takanah d'Rabanan,
but not when it is the Torah giving him those rights. (When Rebbi Shimon ben
Gamliel, in the end of the Mishnah, argues and says that one may not be
"Masneh Al Mah she'Kasuv ba'Torah," he means that even if one did specify a
Tenai, he still cannot lose the rights to the Yerushah of his wife, and
certainly he cannot remove himself from those rights if he says only "Din
u'Devarim Ein Li....")
However, this does not explain why Rav Kahana -- who says that a person can
make a Tenai not to inherit his wife -- must rely on the mechanism of "Iy
Efshi b'Takanas Chachamim." RASHI (DH mi'Makom Acher) and the RACH (cited by
the Tosfos Rid) write clearly that Rav Kahana indeed holds that a Tenai would
*not* work to remove one's rights to his wife's Yerushah if that Yerushah had
been d'Oraisa. The only reason he holds that one may remove one's rights to
his wife's Yerushah is because that Yerushah is d'Rabanan, and "Iy Efshi
b'Takanas Chachamim" works for a Takanah d'Rabanan. Why, though, does Rav
Kahana hold that a Tenai does not work (as REBBI AKIVA EIGER asks on Rashi).
The answer seems to be that both Rav Kahana and Rava are explaining how one
can relinquish privileges *after* the Kinyan of Nesu'in has already been
made. Since the Nesu'in has already been made, one cannot make a Tenai. A
Tenai can only be made prior to the time that the Kinyan takes effect, in
order to alter the way the Kinyan takes effect. Once it has already taken
effect and the man and woman already have certain privileges as a result of
the Nesu'in, the only way to remove those privileges is by saying "Iy Efshi
The Gemara asks that a person should be able to remove himself from the right
to receive the Peiros of his wife's property even *after* the Nesu'in takes
effect, since "Iy Efshi" (or "Siluk" -- "removal") works even after the
Kinyan takes effect. The Gemara answers that in the case of Peiros, "Iy
Efshi" will not work, because "his acquisition is like hers" ("Yado
k'Yadah"). This means that the husband has not only the rights to receive the
Peiros as they grow, but he is even considered a partner in the ownership of
the land itself, for he co-owns the land with his wife, at least as far as
benefiting from its Peiros are concerned. He owns the land with regard to
what it produces. Since he is an owner, he cannot remove himself from the
ownership of the property through "Siluk" (rather, he must give it away as a
gift in order to relinquish his ownership of it).
In summary, both Tenai and "Iy Efshi" ("Siluk") can be used to relinquish
one's rights if they are specified before the Kinyan (which gives the person
those rights to the item) takes effect. After the Kinyan takes effect, if the
item has not yet entered the world and the person only has the rights to
receive it but not full ownership of the item, he may remove himself from the
rights to the item before they come ("Siluk"). If the Kinyan has taken
effect, and in addition he already has full ownership of the item that the
Kinyan entitles him to (i.e. it already exists), then he can only remove
himself from its ownership by giving it away as a gift.
According to Tosfos, the cases of relinquishing rights to the Peiros of the
wife's property (in the Mishnah), of inheriting the wife's property (Rav
Kahana), and of relinquishing rights to Mezonos (Rava) are all cases of
"Siluk," or *resigning* from one's rights to receive what he is entitled to,
after the Kinyan has taken effect but before the item comes into the world.
(b) The RASHBA understands that the case in which a man foregoes his rights
to his wife's Yerushah (the case of Rav Kahana), involves a *Tenai*, not just
a "Siluk." The Rashba writes that he can only remove himself from receiving
the Yerushah *before* the Nesu'in, and when he does so he can remove himself
even from a Yerushah *d'Oraisa*, since his removal is working with the
mechanism of a Tenai and not with the mechanism of "Iy Efshi b'Takanas
According to the Rashba, why does Rava mention that it is the mechanism of
"Iy Efshi b'Takanas Chachamim" which allows the woman to relinquish her
rights to receive Mezonos? She should be able to do it with a Tenai, just
like the man may relinquish his rights to his wife's Yerushah with a Tenai!
The answer is, like we mentioned above in Tosfos, that Rava is discussing how
a woman may forego her rights *after* the Nesu'in, at which point it is too
late to do so with a Tenai.
The Rashba might agree with Tosfos that in the Mishnah the husband is
foregoing his rights to the Peiros through Siluk and not through a Tenai,
since the he did not use the proper wording for a Tenai.
In summary, according to the Rashba, the husband relinquishes his rights to
the Peiros, and the woman relinquishes her rights to Mezonos, through
"Siluk," by saying "Iy Efshi b'Takanas Chachamim," as Tosfos explained. The
case of Rav Kahana, though, where the husband declines the rights to his
wife's Yerushah, is discussing the implementation of a *Tena*i, which is
effective even in avoiding a Yerushah d'Oraisa.
(c) RASHI (DH mi'Makom Acher), however, equates the case of Rav Kahana, in
which the husband wants to avoid receiving his wife's Yerushah, with the case
of Rava, where the wife wants to avoid receiving Mezonos. Rashi must be
learning that both cases are working through the same mechanism. However, it
does not seem that Rashi agrees with Tosfos that they are working through
"Siluk," because Rashi (56a, DH d'Rabanan, and 56b, DH Mai Kosev) writes that
even in our Mishnah the husband is losing the rights to the Peiros through a
*Tenai* and not just through saying "Iy Efshi" (or "Siluk").
It seems that Rashi holds that there is no way to remove ones rights to an
object through Siluk without using a Tenai; there is no separate mechanism of
"Siluk." The only way to relinquish the rights to something that one is
entitled to receive is by specifying a Tenai before receiving those rights.
Why, then, does Rava mention the logic of "Iy Efshi b'Takanas Chachamim?" A
Tenai should work even to relinquish rights that the Torah entitles a person
to receive! It seems that the Gemara is giving a reason why one's Tenai works
to annul a Takanah d'Rabanan, even according to the opinion (i.e. Raban
Shimon ben Gamliel in the Mishnah) that holds that a Tenai *cannot* annul the
rights to receive something that one is entitled to receive mid'Oraisa. The
reason is that since the Rabanan instituted this Takanah only for the
person's own benefit, they never made the Takanah in a situation where he is
not interested in receiving it.
Why does Rav Kahana have to say that one can make a Tenai not to receive his
wife's Yerushah *only* because of "Iy Efshi" (i.e. the Yerushah is
mid'Rabanan), according to Rashi? Does Rav Kahana hold that when one makes a
Tenai that is "Masneh Al Mah she'Kasuv ba'Torah," the Tenai is null and void?
The Halachah, though, is that the Tenai works! (This is the question of Rebbi
Akiva Eiger, as cited in answer (a) above.)
The answer may be that if a man inherits his wife mid'Oraisa, her Yerushah is
not a privilege that he receives directly because of the *Kinyan* of Nesu'in.
Rather, when a man and woman get married, they became related to each other
("She'er," see Bamidbar 27:11). As a result of being related he receives her
Yerushah as a relative. Therefore, no Tenai that he makes in the *Kinyan* of
Nesu'in can limit his rights to the Yerushah, because the rights to the
Yerushah come not from the Kinyan of Nesu'in, but from the change in their
relationship as a result of the Nesu'in. Tena'im cannot be made in such
things as a change in relationship since that change is not something that
the husband brings about directly. (This is essentially the reason why
Tena'im cannot be made in the type of Kinyan which a person cannot accomplish
through a Shali'ach, Kesuvos 74a.)
In summary, Rashi maintains that all three cases work through the mechanism
of Tenai, and not Siluk. (M. Kornfeld)
According to Rashi, though, how does "Iy Efshi b'Takanas Chachamim" work in
the case where the woman foregoes her rights to receive Mezonos? She is
attempting to relinquishing those rights *after* the Nesu'in, when they have
already taken effect, and her Tenai must be made *before* the Kinyan that
creates the husband's obligation takes effect!
The answer is that Rashi seems to hold that the Takanas Chachamim was that
the woman receives Mezonos from her husband in return for giving her earnings
to him. Therefore, each day of earnings that she produces and gives to her
husband obligates him *anew* to give her Mezonos in return. Accordingly,
before she works and produces earnings for a certain day, she can make a
Tenai and say that she wants to keep her earnings for herself and not receive
Mezonos in exchange. Since her Tenai is made before the husband's obligation
to give her Mezonos takes effect, her Tenai is valid.
The Gemara considers the possibility that such a Tenai can also be made to
remove the husband's rights to the Peiros, even when he makes the Tenai after
the Nesu'in. Since the Peiros are given to him in return for the obligation
to redeem her, we might think that he receives each day's Peiros in return
for the obligation to redeem her if she is captured on that day. Therefore,
before the Peiros of that day grow, he can say that he wants to be obligated
to redeem her even without receiving Peiros in return. It will be like a
Tenai made before the rights to receive the Peiros were granted to him.
The Gemara rejects this, saying that the obligation to redeem her and the
rights to the Peiros that come in return for that obligation all take effect
at the time of the Nesu'in, when he becomes a partner with her in the
ownership of the field. Hence, he cannot relinquish the rights afterwards.
Tosfos and the other Rishonim -- who learn that "Iy Efshi" is a removal of
oneself from an entitlement ("Siluk") and not a Tenai -- might have learned
that the obligation of Mezonos, too, comes at the time of the Nesu'in, and
afterwards she cannot remove herself from those rights through a Tenai, but
only through "Siluk." (See Tosfos 47b, DH Zimnin, who discusses exactly when
the Chiyuv of Mezonos takes effect.)
OPINIONS: The Gemara asks whether the wording of "Din u'Devarim Ein Li..."
which a person says in order to remove himself from receiving property is
effective when it is accompanied by a Kinyan (that is, a Kinyan Chalifin). Do
we assume that the person is strengthening his statement by making the Kinyan
on the words that he stated when he said that he has no claim to the property
(and since the statement is meaningless when he already owns the property,
the Kinyan is also meaningless), or do we assume that the Kinyan was made not
on his statement, but in order to effect a direct transfer of ownership
through a Kinyan?
What case of "Din u'Devarim" is the Gemara discussing?
(a) RASHI explains that when the Gemara asks on what the person made the
Kinyan, the Gemara is referring to the case discussed in the Beraisa -- a
field owned by two partners, and one said to the other "Din u'Devarim Ein Li
b'Sadeh Zu" ("I want nothing to do with this field").
(b) TOSFOS rejects Rashi's explanation. Tosfos asserts that when one partner
says to the other, "Din u'Devarim Ein Li...," he is not expressing any intent
to *give* the field to his partner, but rather the intent to make it Hefker,
ownerless. Since his intention is to make it ownerless, how could the Kinyan
that he made be construed as being an act of transferring ownership of the
field to his partner? The words that he said carry no implication of a
transfer of ownership!
Instead, Tosfos explains that the Gemara is referring to a case where a
husband says to his wife *after* the Nesu'in that he does not want to inherit
her property -- "Din u'Devarim Ein Li..." (unlike the Mishnah, which is
discussing when he said it before Nesu'in). In such a case, since the woman
owns the actual body of the field ("Guf"), when the husband says "I am
removing my rights to receive the field," he implies that since he is
removing his rights to the field's Peiros, her ownership of the field will
extend to the Peiros as well. Thus, if a Kinyan is made, the Kinyan can work
to transfer to her the rights to the Peiros.
It is clear why Rashi does not explain like Tosfos. The Gemara says that the
Kinyan that the person makes might be taking effect on the
"body of the field." This implies that the person saying "Din u'Devarim Ein
Li..." already has ownership in the body of the field and not just the
Peiros. Accordingly, the Gemara must be referring to a case of a normal
partnership where two people own a field, and not to a case of a husband and
a wife, where the wife owns the body of the field and the husband has only
the rights to the Peiros.
How, though, does Rashi answer the question of Tosfos? In the case of two
partners who own a field together and one says "Din u'Devarim Ein Li...,"
where is there an implied transfer of ownership? There seems to be nothing
more than a statement of making his share in the field Hefker!
It seems that there is an underlying dispute between Rashi and Tosfos in the
basic understanding of a partnership ("Shutfus"). Tosfos says that in a
partnership, each person owns only half of the property. If one person makes
his half Hefker, ownerless, then anyone can come and make a Kinyan on and
acquire that half. There is no reason for it to belong to the other partner
more than to anyone else.
Rashi, though, seems to hold that when a field is owned by a partnership,
each of the partners really have rights to the *full* ownership of the
*entire* field. The only thing preventing each one's ownership from taking
hold over the entire field is the ownership of the other partner, as the RAN
explains in Nedarim (45b). Therefore, if one partner makes his share in the
field Hefker, the ownership of the other partner will automatically extend to
the other half of the field as well, and no one else will be able to take it.
Therefore, when one partner says "Din u'Devarim Ein Li...," he indeed implies
that he wants the other partner to acquire the entire field.
This dispute might be the root of another Machlokes between Rashi and Tosfos.
In Gitin (47b), Rashi (DH Tevel) writes that when a field is jointly owned by
partners, each and every grain that is produced is owned equally by each
partner. Tosfos, on the other hand, writes that somewhere in the field each
partner has his own portion, which is fifty percent of the grain; any given
grain, though, could belong entirely to one of the partners.
Rashi holds that each person has the rights to a full ownership of the entire
field, and therefore they have equal rights to everything that grows anywhere
in the field. Tosfos, though, who says that each partner owns only half of
the land somewhere in the field, maintains that since we do not know where
each person's portion is located, we do not know which grain belongs to which