Bava Kamma 081

4:
We have seen that people who are not legally competent (deaf-mute, imbecile or minor) are not liable for any injury that they may cause. However, in this case, the principle of reciprocity does not hold good: our mishnah explains that if anyone causes injury to any of these legally incompetent people they have committed a tort and may be sued and be liable to pay compensation.

5:
Our mishnah now enlarges the canvas. Not only the legally incompetent are freed from liability: married women and Canaanite bondmen are also freed from liability. However, the reason is different.

6:
In the previous shiur, in the discussion, I explained why a married woman is excused certain mitzvot: it is because she is not a free agent. Upon her marriage to her husband the wife loses her independent status and her husband assumes ownership of all her property. (She may write into the marriage deed a clause according to which her personal property must be returned to her in the event of her husband's premature death or in the event of divorce, but during the lifetime of the marriage the husband is entitled to usufruct – profits – from her money.)

7:
This is explained by the sages as being part of the reciprocity agreement between the husband and the wife at the time of the marriage. Rambam [Mishneh Torah, Personal Status, 12:1] writes:

This is not the time or place to explain all of these undertakings (but feel free to ask and I will try to explain in future discussion).

8:
The four concessions of the wife in exchange for these undertakings are:

9:
It will be readily understood from the above that the wife has no property of her own. Therefore, if she causes injury to someone she cannot be sued because she does not have the wherewithal to pay compensation.

10:
It will now readily be understood why the Canaanite bondman cannot be sued: he, too, does not have the wherewithal to pay compensation since he owns nothing, his entire sustenance being dependent on his master.

11:
However, the wife and the bondman are different from the three legal incompetents regarding liability in one respect: should they regain their independent status they may be sued retroactively (our mishnah calls this 'later on'). Imagine:

Sara, married to Sam, causes bodily injury to David in 1975. David cannot sue Sara. In 2010 Sara's marriage to Sam comes to an end through divorce. David can now sue Sara for compensation for the injuries he sustained at her hand 35 years previously!

The same applies regarding a manumitted Canaanite bondman: after he has gained his freedom he may be sued retroactively.

In the previous discussion I answered, at length, a question from Noa Raz. Noa now has a follow-up question::

Thank you for the explanation that you sent. Towards the end you wrote something about divorce. Does this mean that a woman who is not married (single, divorced, widowed, lesbian) is required to observe positive time-specific mitzvot?

I respond:

The principle is a general one applicable to all women (since most women were married women). An assumption of the sages was that a woman – in the economy of the era of the sages – would prefer the financial and social security of marriage to any alternative. The great Amora of Eretz-Israel, Resh Lakish, put the female maxim most succinctly:

It is interesting that for aeons women, with sterling exceptions, understood their being 'excused' mitzvot as meaning that these mitzvot were forbidden them. It is a sign of modernity that women are now wearing tallit and tefillin, reading from the Torah and so forth. These were never 'forbidden', just 'excused'.