Masechet Gittin 49a-55b

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28 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 49a-b

We learned on yesterday’s daf that for reasons of tikkun olam – to encourage the proper workings of society – the sages established a rule that nizakin – debts that stem from damage done to someone – will be paid in idit – the best land. In explaining this law our Gemara quotes a baraita where Rabbi Shimon says that this rule was enacted in order to discourage inappropriate behavior on the part of gazlanim and chamsanim – robbers of various sorts. If they know that any damage they cause will have to be paid back in idit, they will think carefully before carrying out a criminal act. Aside from this explanation the sages also relied on a passage in the Torah that hints to such a law. In Sefer Shemot (22:4) the Torah says regarding someone who does damage to another that metav sadehu u’metav karmo yeshalem – that he will pay from his best field and his best vineyard.

Although the rule of idit as presented in the Mishnah referred to a case of nizakin – damages – which may not have been done intentionally, according to Rabbi Shimon the main source for the halacha is a case where intentional damage is done. In truth, these, too, fall into the category of nizakin. Furthermore one could argue that even if the damage was done unintentionally, a person will take better care if he knows that the consequences of his actions will be punished more severely.

Rabbi Shimon gave two examples of nizakin, gazlanim and chamsanim. We usually understand that chamsanim are people who force a person to sell an object against his will, but who pay the full value of the object. Since our discussion of nizakin would not appear to apply to someone who paid for the object that he took, some of the rishonim remove the word chamsanim from the text of the Gemara. Some explanations are offered that would include the case of chamsanim, like that suggestion made by Rabbi Uziel Moshe Rothstein in his Nachalat Moshe that we are dealing with a case where the chamsan promised to pay but has not yet done so.


Gittin 50a-b

Another one of the rules presented by the Mishnah (48b) for reasons of tikun olam – to encourage the proper workings of society – is en nifra’im mi-nechasim meshubadim be-makom she-yesh b’ne horin – that payment will not be taken from “obligated” monies when “free” monies are available.

The idea of “obligated” monies (nechasim meshubadim) as opposed to “free” monies (nehasim b’ne horin) works as follows. When a person borrows money and signs a formal loan agreement, all of his property becomes obligated to secure the loan. Thus, if a person cannot pay back his loan, the lender can collect real estate that the borrower owned at the time of the original loan – even if it has been sold to a third party in the interim. This works because the purchaser had the opportunity when he bought the field to examine liens that existed on the real estate and accepted the risk at that time. Of course, if the field is taken from him in payment of the loan, he will be able to try and collect the value of the field from the seller (although we already know that he is someone who does not have available cash to pay).

The ruling of the Mishnah is that nechasim meshubadim will be collected in payment of the debt only if the borrower has no other means of payment. If he has real estate in his hands – even if it is ziburit (the lowest quality land) – that is what will be used as payment, even though the lender usually should be receiving benonit (middle quality land).

Our Gemara asks whether the protection offered by the sages to the purchaser of land would extend to cases where the borrower gave away that same land as a present. In his Haver ben Hayyim Rav Hizkiya Feivel Ploit explains the question as follows:

Was the rabbinic enactment to protect nechasim meshubadim from collection made in order to encourage business, so that someone purchasing land should feel secure that the field he is buying will not be taken from him, in which case, it only applies to sales and not to land that is given as a present, or was the enactment made to protect people who have received land from others, in which case it would be applied in all cases.

The Rambam understands the conclusion of the Gemara as applying the enactment in all cases.


Gittin 51a-b

One enigmatic rule in Jewish law is the law that distinguishes between two different responses to an accusation that one person owes money to another. The halacha is that if the defendant denies it entirely we believe him without requiring him to bring any further proof; if he denies that he owes all of the money, but admits that he owes part of it, then he must pay the amount that he admits to and then take an oath that he does not owe any more.

Why do we trust the individual who denies it all, while making the person who admits that he owes some of the money take an oath?

In answer to this question, Rabbah teaches chazaka en adam me’iz panav lifne ba’al hovo – we work with the assumption that a person will not have the temerity to deny his obligation to the face of the lender. Rabbah explains the thinking of someone who is modeh be-miktzat – who admits to being partially responsible – as follows. Perhaps he really does owe the money, but he does not have enough to pay at this time. Since he cannot face the lender and deny it all, he admits to partial responsibility, assuring himself that when he has the means to pay the full amount he will do so.

In Masechet Bava Kamma (106a) Rashi explains that Rabbah’s teaching of hazakah en adam me’iz panav lifnei ba’al chovo is based on the fact that after the lender has done the borrower such a good turn by loaning him money (we must remember that biblical loans do not accrue interest and offer no advantage whatsoever to the lender), the borrower could not possibly deny his obligation. Tosafot and the Ramban argue that Rashi’s explanation cannot be true, because the law applies not only to loans, but also to cases like when the lender is holding collateral and in the face of accusations from the borrower admits to only part of the claim. Their explanation of this halacha is that since chazaka en adam me’iz panav lifnei ba’al hovo a person is unwilling to totally deny a claim in the face of someone who knows the truth.


Gittin 52a-b

The Mishnah on our daf discusses the responsibilities of an apotropus – a legal guardian appointed by a parent or by the courts to protect the interests of orphans – and specifically whether or not the apotropus will be obligated to take an oath that he did not mishandle their financial affairs. Among the rules that appear in the Gemara are limitations on the types of transactions that the apotropus can engage in, e.g. that they cannot sell real estate to purchase moveable objects.

The Gemara relates a story about a certain apotropus who lived in Rabbi Meir‘s neighborhood who sold the orphans’ real estate in order to purchase slaves. After Rabbi Meir stepped in and disallowed the sale, he had a dream in which he was told “I am here to destroy, and you come to build!?” (a reference to Malachi 1:4), indicating that there was a heavenly plan to drain the value of the estate. Nevertheless, the Gemara records his reaction as divrei halomot lo ma’alin ve-lo moridin, essentially rejecting any significance to dreams.

The idea of significance in dreams is one that is discussed at some length by the sages – see, for example, the ninth perek of Masechet Brachot. There are certainly indications from stories in tanakh that truthful, prophetic dreams informing people of future events do exist, and that they fall into the category of nevuah – of prophecy. The sages argue that although such prophetic dreams occur, there are also dreams that have no basis in fact whatsoever. Some dreams are simply an extension of daytime, waking thoughts, while others are imaginary fulfillment of an individual’s hopes and aspirations (see, for example, Yeshayahu 29:8).

A full discussion of dreams and their significance in Jewish law appears in the introduction to Reuven Margolis’ edition of the book Shu”t min ha-shamayim – “Heavenly responsa.”


Gittin 53a-b

The Mishnah (52b) discusses cases of hezek she-eno nikkar – damage that was done that cannot be seen. The examples of the Mishnah are cases where someone made someone else’s tithes tameh (ritually defiled) or mixes tithes in with regular produce, or libates his wine to an idol. In all of these situations, although there is no apparent change in the object itself, it no longer can be used and therefore has no value. The Mishnah rules that in these cases, if the person did the damage on purpose he will be held responsible, but if it was accidental he will not have to pay.

Our Gemara brings a disagreement between Chizkiya and Rabbi Yochanan with regard to this question. Chizkiya believes that hezek she-eno nikkar shemah hezek – that invisible damage is considered to be damage and the person who does such damage should always be held responsible. It is the sages who freed the person doing the damage by accident from paying, since they wanted to encourage him to admit what he did. Rabbi Yohanan disagrees, arguing that hezek she-eno nikkar lo shemei hezek – that invisible damage really cannot be considered to be damage, yet the sages obligated someone who did the damage on purpose to pay in order to keep people from doing damage to one another.

Reacting to Rabbi Yochanan’s position, the Hatam Sofer asks how the Torah could possibly ignore significant financial damage done by one person to another. While admitting that the cases of damages discussed in the Torah are always situations of physical damage, he suggests that cases like these were left by the Torah to the Sages for them to rule according to societal needs. In the Shittah Mekubetzet the point is made that it is clearly forbidden to do hezek she-eno nikkar for reasons of ve-ahavtah le-rei’ahah kamokhah (Vayikra 19:18) or ve-chai achikah imakh (Vayikra 25:36); the discussion in our Gemara deals solely with monetary restitution and the possibility that cases where there is no physical damage with require no compensation.


Gittin 54a-b

On yesterday’s daf we learned about cases of hezek she-eno nikkar – damage that was done that cannot be seen. The Mishnah on our daf continues with this discussion, and teaches about a case where the kohen who was working in the Temple informs an individual that he had made the sacrifice pigul. In such a case the Mishnah rules that if it was done on purpose, the kohen will be held liable to pay damages.

The case of pigul is hinted to in the Torah (see Vayikra 7:18), where we learn that if a person eats from a korban (sacrifice) three days after it was sacrificed, the korban will be pigul, it will no longer be considered to have been brought on his behalf. From this the sages learn that even if the korban was brought with the intention of eating it – or performing one of the other activities associated with the sacrifice – in the wrong time or place, it will be considered void, even if that act was not carried out. The laws of pigul are discussed at length in Masechet Zevachim.

There is an argument among the rishonim as to whether pigul applies only if the kohen actually stated aloud that the sacrifice was to be eaten at the wrong time, or if even thinking that it would be eaten then is enough to make the sacrifice pigul. Some of the rishonim suggest that a kohen who merely thinks that the korban will be eaten at the wrong time would ruin his own sacrifice, but to make someone else’s korban pigul the kohen would have to actually state his intentions aloud.

As noted, our Mishnah rules that if the kohen has inappropriate thoughts about the sacrifice he will be obligated to pay for it if he did so purposely, implying that if he did it accidentally, he would be free from liability (some manuscripts of the Mishnah state this clearly). The Talmud Yerushalmi asks how pigul, which is based on thought and statement – could take place accidentally. The Yerushalmi suggests a case where the kohen believes that he is allowed to make the sacrifice pigul.


Gittin 55a-b

One of the lengthiest collections of aggadata – of stories – that appears in the Gemara is the anthology of stories in our Gemara that discuss the destruction of the Temple in Jerusalem. This begins on our daf with the famous story of Kamtza and bar Kamtza whose activities led to the eventual churban – the destruction of Jerusalem.

The story begins with a simple mix-up and disagreement. An unnamed individual was friends with someone named Kamtza and enemies with another person whose name was bar Kamtza. The servant who was commanded to invite Kamtza to a party mistakenly delivered the invitation to bar Kamtza, who, upon coming to the party, was rebuffed by the host who insisted that he leave. No amount of cajoling, or, for that matter, offering to pay for his meal – or even the entire party – could convince the host to allow bar Kamtza to “save face” and remain. Bar Kamtza’s reaction was to lay the blame for his embarrassment squarely on the leadership who sat through this interchange without coming to his defense. In an attempt to punish them he went to Rome and accused them of fomenting rebellion against the Roman authorities. According to the Gemara, this accusation led to the eventual siege around Jerusalem.

One popular question that is raised when discussing this story is why Kamtza’s name appears at all. It was, after all, bar Kamtza’s actions that led to the destruction! On a simple level the Gemara is trying to tell us that a simple thing – the similarity of names and confusion that that caused – brought about the destruction of the Temple. The Maharshal explains on a deeper level that this is connected with the well-known idea that the second Temple was destroyed because of sinat chinam – or hatred that has no basis. Sinat chinam leads not only to arguments between individuals (like bar Kamtza and the host of the party) but also to divisions in society and the creation of groups whose sole purpose is to further those divisions. Because of his involvement with such groups, Kamtza was also involved in sinat chinam and, ultimately, the churban.


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.