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Thought for the Day: Produce, Not Produce of Produce, Between Husband and Wife

So Shaindy and Shloimy get married; mazal tov!  Shaindy came into this, her first marriage, with a 10 camel dowry and also her favorite cow, Bessy.  Shaindy's k'suba, therefore, says that she gets $10,400.00 if Shloimy dies or divorces Shaindy; that's 200 zuz plus the appraised value of dowry she brought into the marriage.  Shloimy gets Bessy's milk and babies, Bessy herself remains owned by Shaindy.  Vanilla nichsei m'log and nichsei tzon barzal.

Shloimy gets Bessy's milk and babies because he get the produce (peiros) of Shaindy's property.  What about produce from those peiros (pira d'pera)?  Usually that means something like Shloimy sells the milk and buys property, or raises the calf and gets milk from it.  That kind of pira d'pirh certainly belong to Shloimy.  In fact, it is hard to understand what owning the peiros would mean if it didn't include those rights.  Chazal, though, say that Shloimy only gets peiros and not peirei d'peiros (Bava Kama, 89a).  What follows is my bungled attempt at relaying the explanation of Tosofos (d.h. pira d'pira lo takinu lei rabanan), as elucidated by the Maharsha.

The pira d'pira that Shloimy does not get is profit generated because of, and not by, Shaindy's property.  For example, Shaindy can sell the right to collect her k'suba; aka tovas ha'na'ah.  The buyer is obviously taking a risk; maybe Shloimy won't divorce Shaindy and maybe Shaindy will die before Shloimy.  In that case there is no pay out.  Moreover, even if Shloimy divorces Shaindy or dies before she does, there is no telling when that will be.  As a result, Shaindy is not going to realize that full $10,400.  On the other hand, she will get to use the money (whatever she is able to get for it) right away.  Moreover, that money belongs to Shaindy with no encumbrances.

Another case would be if Bessy has a calf; let's call her Robera.  Suppose Bob gets stolen and then recovered from an unrepentant thief.  Besides returning Robera, the thief also pays a fine equal to the value of Bob; aka keifel.  That keifel goes to Shaindy, not Shloimy.  Again, because it is profit that is not generated by Robera, but generated because something happened to Bob.  Tosofos notes that this case is slightly different than the case of tovas ha'na'as k'subasah.  Namely, when Bob gets stolen, Shloimy is also affected -- he can't work/milk/breed Robera.  Therefore, concludes Tosafos, while the keifel does belong to Shaindy, Shloimy gets its peiros.  For example, Shloimy can by land with the keifel (which will belong to Shaindy) and then work the land or rent it out.

And you thought complex pre-nuptual agreements was a modern invention!


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