Masechet Gittin 42a-48b

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20 Aug 2008
Torah

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Gittin 42a-b

As we learned on yesterday’s daf both Bet Shammai and Bet Hillel agree that a non-Jewish slave cannot be left in a situation where he is half owned and half free, and that in such a situation the remaining owner will be obligated to make the slave a fully free man. Our Gemara asks what such a person’s status is until the master formally sets him free. For example, if a slave is gored by an ox, the ox’s owner pays a penalty of 30 shekalim to the slave’s owner (see Shemot 21:32).  If a half-free slave is gored, does the master who owns half of him receive payment?

The Gemara tries to bring a proof that the owner deserves nothing in a case where a slave’s owner knocks out his tooth and then blinds his eye (note that either of these actions will allow the slave to go free – see Shemot 21:26-27).  In this case we find that the slave is set free and paid for the loss of his eye. This appears to be a case – similar to ours – where the slave is technically free and is missing only his formal release papers, and the ruling is that the owner must pay for the loss of his eye. Yet if the owner deserves to receive payment for the slave’s injuries until the time of his formal release, then we would have the absurd situation in which the owner would be paying himself!

The rishonim point out that in the case of a slave becoming free because of loss of shen va-ayin (tooth or eye), it is only after formal court proceedings that the change of status takes effect. Until the completion of those proceedings the slave remains in his original situation; thus, why would the second injury be viewed as taking place when he was already a free man? Some suggest that in the case under discussion the second injury must take place after the slave had already been declared free by the court, but is still waiting for his formal discharge papers. The Ramban and Rashba disagree, explaining that once the court decision is made it takes effect retroactively, and the second injury will be seen as having taken place after the slave had already been declared free.


Gittin 43a-b

The Gemara on our daf deals with the question of whether a slave owner can sell the potential possibility that his slave will become injured and will have an income of kenas – penalties – that will be paid to the master. This question is presented as a situation of adam makneh davar she-lo ba la-olam.

One of the basic questions that comes up regarding issues of ownership in Jewish law is adam makneh davar she-lo ba la-olam – whether or not a person can buy or sell an object that is not in existence right now. Rav Nachman bar Yitzhak believes that according to Rabbi Akiva a person has the ability to do so and lists tanna’im and amoraim who follow that approach.

The simplest way to understand this approach is to say that we view an object that is expected to be seen (e.g. fruits that have not yet appeared on the tree, or a purchase that has not yet been completed) as already in existence from a legal standpoint. Thus, the seller can transact business with it, either by stipulating that the sale go into effect immediately or that it take place at some later date. In bringing examples, the Gemara in Yevamot (daf 93) offers both types of cases. Rav’s case has the seller saying “I am selling this field, and when the purchase is complete, it will belong to you from now.” In Rav Huna’s case the seller says “I am selling you the dates on this tree.” It is clear that the sale will not be complete until the fruit actually appears, which is why Rav Huna allows the seller to back out of the deal – until the fruits appear.

Another case that appears in Yevamot is that of Rabbi Yannai, who had a tenant on his land who paid him by delivering fruit every Friday. One Friday the tenant did not arrive at the usual time, and Rabbi Yannai – relying on the fact that the fruit would be delivered – chose to separate tithes from other fruit that he had in his house so that he would be able to eat the fruit from his tenant on Shabbat. When he turned to his teacher Rabbi Hiyya to ask about this, Rabbi Chiya agreed that his behavior was correct. The proof from this story is that neither Rabbi Yannai nor Rabbi Chiya appear to be concerned with the fact that the fruit had not been delivered. Their concern was whether or not tithes could be taken when the fruit was not all together.


Gittin 44a-b

The Mishnah on the last daf taught that a person who sells his non-Jewish slave to a non-Jew – or even to another Jewish person living in the Diaspora – loses ownership of the slave and the slave becomes a free man. The basis for this is that a “non-Jewish” slave is actually obligated in a variety of commandments – generally speaking, the same mitzvot in which women are obligated – and selling him to a non-Jew will keep him from fulfilling these mitzvot.

On our daf the Gemara brings the ruling of Rabbi Yehoshua ben Levi that someone who sells his slave to a non-Jew is penalized up to one hundred times his value. Most of the commentaries explain this to mean that if an owner sells his slave to a non-Jew we force him to redeem the slave. In the event that the buyer is unwilling to sell the slave at the market price, the original owner should pay up to one hundred times his value and set him free. In the responsa of the Geonim we find a different explanation. They do not understand Rabbi Yehoshua ben Levi’s ruling as obligating the original owner to buy back the slave, but rather that a penalty of one hundred times the value of the slave is imposed and paid to a community fund that will be used for pidyon shevuyim – redeeming captives – or other important needs.

The Gemara asks whether the amount – one hundred times – is to be taken literally. Rashi explains that the question is whether the penalty is to be understood as it is written or if it just means “a large amount.” Tosafot understand it differently. According to them the question is whether one hundred times is the upper limit, or perhaps the original owner will have to pay even more, if necessary.


Gittin 45a-b

The Mishnah on our daf teaches that a Jewish person who is being held captive should not be ransomed for more than his worth, mipnei tikun ha-olam – in order to encourage the proper workings of society.

The Gemara offers two possibilities in an attempt to understand why this rule was established. Was it tikun ha-olam inasmuch as the community would find it difficult to pay larger sums than normal, or was it to discourage kidnappers from capturing more people by ensuring that they would not find it lucrative enough?

The Gemara tries to prove that it was an issue of the cost to the community by telling the story of Levi bar Darga who paid an enormous sum to redeem his daughter from captivity, indicating that if someone can pay the ransom we are not concerned about the future implications. In response to this proof Abayye asks “perhaps he did it against the will of the sages?”

The rishonim examine this discussion and how it relates to the Gemara in Ketubot 52a which clearly permits a husband to pay ten times his wife’s value to her captors in order to redeem her. The Rambam and the Rif simply suggest that there is a difference of opinion between the author of that Mishnah and the Mishnah on our daf. Tosafot, however, suggest that there may be some exceptions to the rule presented in our Mishnah. For example, a person can certainly make use of all of his personal resources to free himself from captivity; Tosafot suggest that the rule ishto ke-gufo – that a person’s wife is like himself – allows him to make use of all his resources on behalf of his wife, as well.

Some rishonim suggest that we should distinguish between different kinds of hostage situations and that we have more leeway in cases where the individual’s life is in danger. The Ramban disagrees with such an approach, arguing that every situation in which someone is held captive is inherently dangerous, and the sages would apply their rule nevertheless.


Gittin 46a-b

The Mishnah on our daf discusses a case in which a man divorces his wife claiming that she is an aylonit – a woman who cannot conceive. The rishonim point out that theoretically a man need not divorce a woman with such a condition; since one of the essential points of marriage is having children, once a man discovers that his wife cannot bear children he can claim mekach ta’ut – that the entire marriage was predicated on a mistaken assumption – and have the marriage annulled. Rashi suggests that although a person can make such a claim, in practice people do not do so because en adam oseh be’ilato be’ilat zenut – a person does not want to make the relations that he had with his wife into promiscuous acts. Tosafot simply explain that the woman was not definitely an aylonit bur rather had only some of the indictors that pointed to that condition.

From the detailed discussions in the Gemara – mainly in Masechet Yevamot – it appears that an aylonit suffers from a genetic defect that does not allow her to have children.  This is a different categorization than an akarah – a barren woman – whose physical and sexual development is ordinarily normal, but cannot have children because of some other deficiency or impediment. From those descriptions it appears that an aylonit can be recognized by certain unique physical traits, including a lack of secondary sex characteristics like pubic hairs. Furthermore, it appears from the Gemara that there are different types of aylonit, ranging from women who have an overabundance of male hormones to those who suffer from Turner syndrome, where only one X chromosome is present and fully functioning. Approximately 98% of all fetuses with Turner syndrome spontaneously abort; the incidence of Turner syndrome in live female births is believed to be about 1 in 2500.

Within Jewish law there are many discussions about the status of an aylonit, mainly because of the lack of secondary female sex characteristics and because they develop at a relatively advanced age. Thus we find questions about when an aylonit is considered to have reached the age of adulthood, which halacha ordinarily defines as physical maturity.


Gittin 47a-b

Continuing the theme of mipnei tikun ha-olam – encouraging the proper workings of society – the Mishnah on our daf teaches that a Jewish person who sells his field in Israel to a non-Jew is obligated to purchase fruit from the new owner and bring bikurim – the offering of first fruits – to Jerusalem.

This version of the Mishnah is Rashi‘s, who understands that the tikun olam involved is that the original owner is obligated to purchase fruit from the field – at any price – in order to fulfill the mitzvah of bikurim. This is done to encourage the original owner to rethink the sale and pressure him to buy the field back from the non-Jew.

According to most other rishonim – as well as the standard text in the Mishnayot and the Talmud Yerushalmi – the Mishnah does not require the seller to purchase fruit from the field; rather, in a situation where another Jewish person purchases the field from the non-Jew, he will be obligated to bring bikurim, even though the fruit grew in the possession of someone who was not obligated in this mitzvah. Some rishonim suggest that this rule would also hold true in a case in which the field remained in the non-Jewish hands, but the fruit was purchased by a Jewish person; mipnei tikun ha-olam, he would have to take bikurim from the fruit that he bought.

One question that is raised is why there is specific interest in bikurim and not on the other agricultural tithes like terumot and ma’asrot?

The Ri”d suggests that this is because the mitzvah of bikurim takes place in the public eye with a colorful march to Jerusalem, and someone who doesn’t know that the land was sold will mistakenly think that the mitzvah of bikurim does not apply. With regard to the other tithes, which are all taken and arranged privately, the need for such a tikun ha-olam was not as pressing. The Me’iri suggests that bikurim is just an example and that someone who purchases the field or the fruit would be obligated in all of the agricultural tithes mipnei tikun ha-olam.


Gittin 48a-b

The fifth perek of Masechet Gittin – perek haNizakin – begins on our daf. There are no discussions of divorce law in this perek; it is a continuation of the previous perek which dealt with cases of rabbinic enactments established mipnei tikun ha-olam – to encourage the proper workings of society.

The first Mishnah in the perek describes how different monetary obligations are paid differently:

According to the Gemara‘s conclusion, the actual value of the land in each of the above cases will be the same; nevertheless idit – the best land – is preferred by all, even though the size of the land will be larger if payment is made in ziburit. The preference for idit stems from the fact that its quality will make it easier to tend and its harvest will be larger even though the cost and effort put into the land is smaller. This reality leads to the fact that there will be more potential buyers and it will be easier to sell, even though the ziburit has the same value.

These distinctions are only made with regard to the quality of land. If payment is to be made with moveable objects then we consider them meitav – the best – no matter what they are, so long as they are truly worth the amount of the debt. This is true even though the ideal is to pay with money, particularly in the case of a loan where the basic obligation is to return the money that was borrowed.


In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.