Bava Kamma 89

An ordinance of Usha.

On yesterday’s daf, we learned that, according to Rabbi Yosei bar Hanina, 

In Usha the sages instituted: A woman who sold her usufruct property in her husband’s lifetime and died, the husband repossesses it from the purchasers.

When a woman enters a marriage, she (or, more often, her father) can designate her property as either remaining her own, with her husband getting the rights to any profit on this property during their marriage (usufruct property), or shifting entirely to her new husband’s domain. (Here are a few examples of usufruct property: If the woman owns a piece of land, any rent that is paid by tenants on the property or fruit that is produced by trees on the property is considered usufruct.) Rabbi Yosei bar Hanina here explains that even though usufruct on a wife’s property belonged to her husband, wives used to be able to sell their usufruct property without consequence. But at Usha, the rabbis adapted the law to retain a husband’s rights to its profits if she were to die first. 

Usha is the name of an ancient city in the Galilee where, as the Talmud tells us (Rosh Hashanah 31a) the Sanhedrin met during a pivotal moment in Jewish history: 

The Sanhedrin was exiled from the Chamber of Hewn Stone, to Hanut, and from Hanut to Jerusalem, and from Jerusalem to Yavne, and from Yavne to Usha, and from Usha it returned to Yavne, and from Yavne to Usha, and from Usha to Shefaram, and from Shefaram to Beit She’arim, and from Beit She’arim to Tzippori, and from Tzippori to Tiberias.

So when the rabbis mention an ordinance that was instituted in Usha, they are describing a law enacted by the entire Sanhedrin, which was applied to the entire Jewish people.

Note that the ordinance under discussion today isn’t actually just about what happens if a woman dies, but instead limits the kinds of financial transactions she can make while alive. A purchaser of usufruct property would have no guarantee that the husband would die first or the couple would get divorced. And if the wife predeceases her husband, a widower might just show up on the purchaser’s doorstep to take back the purchased property. So ultimately, this enactment strongly disincentives anyone from buying a married woman’s usufruct property from her. 

With no official written record of the proceedings of Usha, on today’s daf, the rabbis work to identify the evidence for the existence of this ordinance. Rabbi Idi Bar Avin points to rabbinic inheritance law as potential evidence while Rav Pappa and Rav Huna point to an earlier tradition we read two pages ago:

A slave or woman, an encounter with them is disadvantageous: One who injures them is liable, but if they injured others they are exempt. 

And if it enters your mind that there is no ordinance of Usha, can’t she sell her usufruct property and give it to the victim?

These two rabbis argue that there must be an Ushan ordinance because otherwise the court could obligate a married woman to sell her property in order to pay damages. But because the ordinance exists, no one would want to buy it conditionally, and the court cannot impose a fine on her. So, apparently, a consequence of limiting married women’s financial power with this ordinance is that married women can injure someone without fear of paying a fine.

There’s a lot to say about how the rabbis are here limiting the financial independence of married women, and the kinds of consequences those limitations have for women (and their potential victims!). But today’s discussion also reminds us that laws meant to do one thing can have unintended consequences — to the detriment of society as a whole.

Read all of Bava Kamma 89 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 30th, 2024. If you are interested in receiving the newsletter, sign up here.

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