Nedunya via a Shalish

Ketubot (6:7) | Yisrael Bankier | 7 years ago

The Mishnah (6:7) records the debate regarding a father, who prior to his death, entrusted money with a third party to purchase land for a nedunya (dowry) for his daughter. In this case, the daughter asked the agent to hand the money directly to her husband. R' Meir maintains that the agent must still purchase land as he was instructed. The Bartenura explains that R' Meir maintains that it a mitzvah to fulfil the wishes of the deceased. R' Yossi however argues that if the land was already purchased and the daughter wanted to sell the property, she would be able to do so "from now". Consequently her request should be granted. The Bartenura restricts the scope of the debate. If the case involved a ketana, since the rationale that she could sell the land does not stand, then everyone would agree that the agent must purchase the land. Also, if the case involved a gedolah (adult daughter) that was already married, then everyone would agree that the money would be given directly to the husband. The debate is only in the case that involved a gedolah during eirusin (the period of betrothal). We shall try to understand this debate.

The Ran explains that were it not for R' Meir's position that it is a mitzvah to fulfil the wishes of the deceased, then he would agree that she could receive the money directly. This is because in this case the father has, from the outset, effectively given the daughter the funds. It is only because he instructed that they should be used to purchase a field, that the R' Meir is sensitive to the father's wishes. The Ran asserts that this case must be understood this way. If the case was that the funds only belonged to her once the land was purchased, then even without the motivation to honour his wishes, the land would need to be purchased prior to her taking control.

The Ran continues that R' Yossi either disagrees that the deceased wishes must be honoured;¹ or simply since she could sell it as soon as the land is purchased, the intermediate step is unnecessary.

The fact that the funds are considered the daughter's from the outset is important, as it answers another question.² The Ran anticipates the following question. The Gemara (Bava Batra 155a) rules that one is not allowed to sell inheritted property until they reach the age of twenty. One might ask that in this case, even if the daughter is a gedolah, if she is under the age of twenty, R' Yossi should agree with R' Meir that the agent must do as instructed. The Ran explains that despite the funds originating from the father, the purchased land is not considered the father's. In a similar direction the Ran also cites the Raavad, that even though the funds originated from the father, since they were gifted to her from the beginning, it is not considered as part of the inheritance and not covered by the law in Bava Batra.

The Tosfot Yom Tov comments the Ran's understanding that the funds belonged to the daughter from the outset helps to explain the Mishnah's language when R' Yossi argues that "… if she wishes to sell it, it is [considered] sold from now".

The Chidushei Mahariach uses the above explanation to explain why R' Meir only argues in the case of eirusin and not after marriage. He explains that the reason the Chachamim forbade selling inherited lands until the heir reaches twenty was out of the concern that the assets gained without effort would be squandered. In the case of the dowry, where both the husband and wife each have financial interests and obligate the husband financially, there is less of concern that the property while be traded flippantly. However, in the case where they are only betrothed, and the obligations of the husband have not yet commenced, according to R' Meir the original concern exists. Consequently, he argues that agent performs his duties. R' Yossi however disagrees, arguing that the concern also does not exist during eirusin.

¹ The Tosfot (69b, s.v. ha) ask that if this is the reason that R' Yossi argues, then the logic that the field should already be considered as if was purchased and sold is unnecessary. The Tosfot answer, that perhaps R' Yossi does maintain that the deceased wishes do not need to be honoured. Nevertheless, R' Yossi provides a different argument against R' Meir while assuming his position.

² See Beit Yaakov who cites the Tosfot (Bava Batra 149a) as a difficulty with this explanation.

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