Spousal Bosis

Question:

While we were learning hilchos Shabbos last week, my wife had the following question (regarding the point that someone else cannot make one's possessions into a bosis since the other person has no right to effect a change). Can a husband cause something that his wife had been planning to use that Shabbos to be a bosis? I ask – would the answer be any different the other way around?

Answer:

To answer this straightforward, practical question, the poskim had to draw on literally every chelek of the Shulchan Aruch. It has to do with the relationship between husband and wife (Even Haezer), concepts of user rights (Choshen Mishpat), hilchos kilayim (regarding a situation in which a field worker maintains kilayim for the benefit of the owner; Yoreh Deah) and obviously hilchos Shabbos (Orach Chaim). 

As you mentioned, all it says in the Shulchan Aruch is that a person cannot create an issur pertaining to someone else's possessions and therefore one Jew cannot turn another's possessions into a bosis (Rema O.C. 309:4). The Rema adds, however, that if the person who placed the muktza there had permission to do so, then the object underneath would become a bosis and it would be assur. Often a wife has such permission; in that case, the act would be considered meda'ato and the object would be a bosis. Furthermore, the Mishna Berura (309:27) adds that if the muktza was placed on the bosis for the owner's benefit, even if the owner did not explicitly give permission, it is tantamount to the owner's having given permission and the bosis is assur. The example he gives is a person who places a dish under a candle to catch wax and sparks in order to prevent a fire; the dish will become a bosis even without the owner's permission, since the owner surely would be grateful and would have willingly given permission to put the dish there. Very often, a wife's actions when she straightens up the house fall into this category. In that case, she would assur her husband's item as a bosis.

The question is relevant in a situation in which the wife had no permission to place the muktza object on the bosis or when the owner receives no benefit from its being placed on the bosis.

Are the items in the home considered the joint property of the couple, in which case she can turn something into a bosis when she puts muktza on it? Alternatively, does the principle of ishto kegufo apply, enabling her to assur objects in the house just as her husband can? In other words, do we view her hands as his hands?

The Minchas Shabbos (89:22) raises this question and refers the reader to Kuntras Ahavas Shalom, written by the Maharsham on Sefer Minchas Shabbos. In essay no. 3, this question is expounded upon at length. The conclusion there is that if the husband solely owns the property, then we consider it his alone and do not regard her hand as his hand. We do not say ishto kegufo; she is considered like any other Jew and cannot assur his bosis (unless he gave permission or it was placed on the bosis for his benefit, as discussed earlier). If, however, the bosis is nichsei melug (something that belonged to the wife when she was single or a gift given to her after she married), then although the husband has the right to use it, it is jointly owned and she has the power to make it assur as a bosis. Food or clothing designated for her use is considered hers and will become a bosis when she places muktza on it.

Similarly, since the husband generally has permission to use the items his wife brings into the marriage for the duration of the marriage, he is considered a part-owner as long as the marriage lasts and can assur a bosis if he places muktza on an item that belongs to her. There are exceptional circumstances in which the husband has no user rights to his wife's property (such as when a gift was given solely to the woman to the exclusion of her husband); then the husband would not be able to assur his wife's belongings as a bosis ledovor ha'assur- just as she cannot assur his belongings.

To summarize, under normal conditions the wife cannot assur her husband's possessions but he can assur her possessions since he has the legal right to use them. An item belonging to the husband that the wife was planning to use will surely become a bosis when the husband places muktza on it. It is his item that he is making assur.

Grown children (young children under bar/bas mitzva can never assur a bosis) cannot assur their parent's possessions.

Sounds like you have a wonderful chavrusa! Keep it up!

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