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Thought for the Day: Takanas Usha -- Shalom Bayis Is That Important

R' Moshe Tendler noticed one day that his father-in-law, R' Moshe, was pacing back and forth for nearly two hours in deep concentration.  When asked, R' Moshe replied that he was working on a difficult marah trying to decide if the woman could go to the mikvah that night, or would have to wait till the next night.  R' Tendler expressed surprise that R' Moshe would spend two hours of his precious time when being machmir would only delay the t'vila by one day.  R' Moshe was taken aback, "It's so light in your eyes to keep a husband and wife apart for one night!?"

The gemara (Bava Kama 88b) describes a case where a woman gifted her nichsei m'log to her son from a previous marriage.  Of course, her current husband still had usufruct on the property, but her intent was for the property to go to that son once the husband was done with it.  (So cool to be able to use that word properly in a sentence!  I feel so smart!)  As it happened, she died before her husband.  Now, had she become divorced or widowed (the usual case, it seems), then the property would have gone straight to her son, as planned.  The son went to beis din and, after some back and forth, the property was awarded to the (most recent) husband.

The gemara is nervous about this, because if the husband own only the right to the profits of his wife's property, not the property itself; and that only because of the k'suba.  The marriage has now been dissolved (by the Good Lord Himself), so the k'suba is now null and void; the property to should revert to its owner and not be inherited by the husband.  More back and forth about whether you can really sell property separately from its profits -- kinyan ha'peiros k'kinyan ha'guf dami, o kinyan ha'peiros lav k'kinyan ha'guf dami (is selling the production of a factory tantamount to selling the factory itself or not).

The conclusion is kinyan ha'peiros lav k'kinyan ha'guf dami; the profits can be sold while retaining ownership of the factory.  Instead, this is a result of Takanas Usha (a decree promulgated by the sages of Usha) that makes the case of nichsei m'log special  by strengthening the hold of the husband on the nichsei m'log as if he was a partner.  A special decree to keep the husband from having from feeling slighted by a very distant possibility.  First of all, most women do not sell their k'suba futures.  Second, most men die before their wives  (women live longer, men tend to marry younger women).  Third, the nichsei m'log is usually a very small part of the couples assets.  Yet even that slight possibility for friction was enough for Chazal to step in to ward off a potential shaloms bayis issue.


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