Resources for Kesubos 78

1.     The משנה says that a woman who acquires money before she has אירוסין and then has אירוסין can sell her property לכתחילה. However, if she gets it after אירוסין then she cant sell it לכתחילה according to בית הלל since, as the גמרא explains, it might have only come to her in the זכות of her husband who would eventually get the פּירות. However, if she does sell it before marriage then the sale works because it’s only a ספק whether she will eventually come to נישואין and if she doesn’t then it will turn out to have fallen in her זכות. The משמעות of the גמרא is that if we would somehow know that the woman got the money in the זכות of the husband then the sale would be invalid, and it is only because we are מסופּק who’s זכות it was in that the sale works. What is very unclear is why is it that if it fell in his זכות that she cant sell it now. Isn’t she the only one who owns it now? רש"י actually says that if it fell in his זכות then he already owns it now. How do we understand that? What’s even more unusual is the שיטת חכמים who ask incredulously that “once he is זוכה in his wife for אירוסין why would he not be זוכה in her money?” Doesn’t everyone agree that he has no rights to her פּירות till נישואין? The ריב"ש brought in the שיטה מקובצת in ד"ה אבל הריב"ש says that חז"ל instituted a תקנה that if a woman in fact goes goes through with נישואין then her husband acquires the פּירות retroactively from the time of אירוסין. If so, perhaps בית הלל just held that this תקנה is only a דין לכתחילה but does not invalidate a sale בדיעבד since at the time of sale it was only a ספק which would fit with רש"י.

There is another approach to explain בית הלל that comes out from a beautiful חתם סופר. The חתם סופר is dealing with the following issue: The משנה says that a woman who gets property before אירוסין can sell or gift it away as she pleases לכתחילה. However, if she gets it after אירוסין she should not sell it. For some reason the משנה doesn’t say she should not sell or gift it like it did in the רישא. He answers based on the תוספות יו"ט who says that there is actually no issue with the woman selling her property when she is an ארוסה since she may never go through with נישואין and we can apply the principle of אין ספק מוציא מידי וואדי (like תוספות discusses). The איסור is only on the לוקח to buy the property. What איסור is the תוספות יו"ט referring to? The חתם סופר says the איסור is עני המהפּך בחררה. Meaning a person is not allowed to try to but something from someone when they already made a commitment to someone else. However, that הלכה is based on the fact that he could just buy the item elsewhere. That would not apply to a gift. Therefore the משנה does not say she may not gift it. We see (perhaps) from the חתם סופר that that issue seems to be that there is an assumed commitment or agreement of the woman to bring any money that she acquires after אירוסין into the marriage since they may have fallen to them in order to be used as a couple (בזכותו). Therefore, just like עני המהפּך בחררה does not invalidate a sale, so too her sale will not be invalidated. 

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