Resources for Kesubos 95

1.     The גמרא says that if a field designated for a woman’s כתובה was sold and the woman says she is מסלק herself from the שעבוד  she has in that field, her סילוק is not effective unless she makes a קנין. The אבני מילואים in סימן ק ס"ק ז asks why do you need a קנין? Why can’t she simply be מוחל which doesn’t require a קנין? The חזון אי"ש in אבן העזר סימן ע"ז ס"ק י"א actually says אין הכי נמי it would work if she said she was מוחל but our גמרא requires a קנין because she just said a לשון of סילוק and not מחילה. The נתיבות  in סימן ר"ט בביאורים ס"ק ו says the same דין. However, the אבני מילואים disagrees and answers that she actually can’t be מוחל the שיעבוד without a קנין. The only time מחילה works without a קנין is if you are מוחל the actual loan itself. In that case the שעבוד is בטל ממילא since the שעבוד נכסים is just like an ערב for the loan. However, in our case she wants the כתובה, she is just being מוחל the שעבוד on the land and for that you need a קנין. 2.     The משנה says that even though the first wife said דין ודברים אין לי עמך to the buyer, once the second lady collects from the buyer and the first lady collects from the second wife, the buyer can then collect from the first wife since she said she has no claims on him in regards to this land. The חמדת שלמה asks a very basic question: when the second lady took the land from the buyer, he should be out of the picture. When the first wife collects from the second wife, that doesn’t give the לוקח the right to take it from the first wife. All the first wife said is that she can’t take his land. At this point, it wasn’t his land, it was the second wife’s land. So why does he have a right to collect from her? He answers that מסתמא we are talking about a case where the buyer bought the field with אחריות. If so, the buyer really has two claims on the land. One is as a buyer which prevents the first wife from taking the land from him originally, and a second claim once the field was collected by the second wife as אחריות for the field collected from him. If so, he can recollect from the first wife since he still had a שעבוד on the land. As an aside, it is important to note that the ריטב"א says that none of this actually takes place. The משנה just means since in theory everyone can make these claims to each other we act as if the claims are made and judge the case based on that.

3.     The גמרא says that if a person buys land from someone who owes money to someone else and there is enough בני חרי to pay back the loan with what is left in the borrower’s possession, the buyer cannot have his field collected from him to pay the loan since he can say הנחתי לך מקום לגבות ממנו. There is a מחלוקת ﭏחרונים what we mean by בני חרי. Does that mean that even if the borrower just has cash left after the sale that the land purchased is no longer משעובד or is it only if there was land left over? The מהרש"א in בבא קמא דף ק"ח ע"ב ד"ה לוה and says the הלכה only applies if there was land left over. The תומים in סימן קי"א ס"ק ג quotes the מהרש"א and disagrees. He says that the דין of הנחתי לך מקום even applies even if any kind of מטלטלין was left over.