{"id":11991,"date":"2008-08-20T18:58:00","date_gmt":"2008-08-20T18:58:00","guid":{"rendered":"http:\/\/production.ou.org\/life\/other\/masechet_gittin_4248\/"},"modified":"2015-10-29T10:55:28","modified_gmt":"2015-10-29T15:55:28","slug":"masechet_gittin_4248","status":"publish","type":"post","link":"https:\/\/www.ou.org\/life\/torah\/masechet_gittin_4248\/","title":{"rendered":"Masechet Gittin 42a-48b"},"content":{"rendered":"

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz<\/em><\/p>\n

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.<\/em><\/p>\n

Gittin 42a-b<\/u><\/strong><\/p>\n

As we learned on yesterday’s daf<\/em><\/a> both Bet Shammai<\/a><\/em> and Bet Hillel<\/a><\/em> 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<\/a> 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<\/em> to the slave’s owner (see Shemot<\/a> 21:32<\/a>).\u00a0 If a half-free slave is gored, does the master who owns half of him receive payment?<\/p>\n

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<\/a>).\u00a0 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!<\/p>\n

The rishonim<\/a><\/em> point out that in the case of a slave becoming free because of loss of shen va-ayin<\/em> (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<\/a> and Rashba<\/a> 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.<\/p>\n

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Gittin 43a-b<\/u><\/strong><\/p>\n

The Gemara<\/a> on our daf<\/em> 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<\/em> – penalties – that will be paid to the master. This question is presented as a situation of adam makneh davar she-lo ba la-olam<\/em>.<\/p>\n

One of the basic questions that comes up regarding issues of ownership in Jewish law is adam makneh davar she-lo ba la-olam<\/em> \u2013 whether or not a person can buy or sell an object that is not in existence right now. Rav Nachman bar Yitzhak<\/a> believes that according to Rabbi Akiva<\/a> a person has the ability to do so and lists tanna’im<\/a><\/em> and amoraim<\/a><\/em> who follow that approach.<\/p>\n

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<\/a> (daf 93<\/a><\/em>) offers both types of cases. Rav<\/a>\u2019s 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<\/a>\u2019s 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 \u2013 until the fruits appear.<\/p>\n

Another case that appears in Yevamot is that of Rabbi Yannai<\/a>, 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 \u2013 relying on the fact that the fruit would be delivered \u2013 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<\/a><\/em>. When he turned to his teacher Rabbi Hiyya<\/a> 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.<\/p>\n

\n

Gittin 44a-b<\/u><\/strong><\/p>\n

The Mishnah<\/a> on the last daf<\/em><\/a> taught that a person who sells his non-Jewish slave to a non-Jew \u2013 or even to another Jewish person living in the Diaspora<\/a> \u2013 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 \u2013 generally speaking, the same mitzvot<\/a><\/em> in which women are obligated \u2013 and selling him to a non-Jew will keep him from fulfilling these mitzvot<\/em>.<\/p>\n

On our daf<\/em> the Gemara<\/a> brings the ruling of Rabbi Yehoshua ben Levi<\/a> 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<\/a> of the Geonim<\/a><\/em> 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<\/a><\/em> – redeeming captives – or other important needs.<\/p>\n

The Gemara asks whether the amount – one hundred times – is to be taken literally. Rashi<\/a> 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<\/a> 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.<\/p>\n

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Gittin 45a-b<\/u><\/strong><\/p>\n

The Mishnah<\/a> on our daf<\/em> teaches that a Jewish person who is being held captive should not be ransomed<\/a> for more than his worth, mipnei tikun ha-olam<\/em> \u2013 in order to encourage the proper workings of society.<\/p>\n

The Gemara<\/a> offers two possibilities in an attempt to understand why this rule was established. Was it tikun ha-olam<\/em> 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?<\/p>\n

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<\/a> asks “perhaps he did it against the will of the sages?”<\/p>\n

The rishonim<\/a><\/em> examine this discussion and how it relates to the Gemara in Ketubot<\/a> 52a<\/a> which clearly permits a husband to pay ten times his wife’s value to her captors in order to redeem her. The Rambam<\/a> and the Rif<\/a> simply suggest that there is a difference of opinion between the author of that Mishnah and the Mishnah on our daf<\/em>. Tosafot<\/a>, 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<\/em> – that a person’s wife is like himself – allows him to make use of all his resources on behalf of his wife, as well.<\/p>\n

Some rishonim<\/em> 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<\/a> 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.<\/p>\n

\n

Gittin 46a-b<\/u><\/strong><\/p>\n

The Mishnah<\/a> on our daf<\/em> discusses a case in which a man divorces his wife claiming that she is an aylonit<\/em> – a woman who cannot conceive. The rishonim<\/a><\/em> 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<\/em> – that the entire marriage was predicated on a mistaken assumption – and have the marriage annulled. Rashi<\/a> 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<\/em> – a person does not want to make the relations that he had with his wife into promiscuous acts. Tosafot<\/a> simply explain that the woman was not definitely an aylonit<\/em> bur rather had only some of the indictors that pointed to that condition.<\/p>\n

From the detailed discussions in the Gemara<\/a> \u2013 mainly in Masechet<\/a> Yevamot<\/a> <\/em>\u2013 it appears that an aylonit<\/em> suffers from a genetic defect that does not allow her to have children.\u00a0 This is a different categorization than an akarah<\/em> \u2013 a barren woman \u2013 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<\/em> 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<\/em>, ranging from women who have an overabundance of male hormones to those who suffer from Turner syndrome<\/a>, 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.<\/p>\n

Within Jewish law there are many discussions about the status of an aylonit<\/em>, 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<\/em> is considered to have reached the age of adulthood, which halacha<\/a> <\/em>ordinarily defines as physical maturity.<\/p>\n

\n

Gittin 47a-b<\/u><\/strong><\/p>\n

Continuing the theme of mipnei tikun ha-olam<\/em> \u2013 encouraging the proper workings of society \u2013 the Mishnah<\/a> on our daf<\/em> 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<\/a><\/em> \u2013 the offering of first fruits \u2013 to Jerusalem.<\/p>\n

This version of the Mishnah is Rashi<\/a>‘s, who understands that the tikun olam<\/em> involved is that the original owner is obligated to purchase fruit from the field \u2013 at any price \u2013 in order to fulfill the mitzvah<\/a><\/em> of bikurim<\/em>. This is done to encourage the original owner to rethink the sale and pressure him to buy the field back from the non-Jew.<\/p>\n

According to most other rishonim<\/a><\/em> \u2013 as well as the standard text in the Mishnayot<\/em> and the Talmud Yerushalmi<\/a><\/em> \u2013 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<\/em>, even though the fruit grew in the possession of someone who was not obligated in this mitzvah<\/em>. Some rishonim<\/em> 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<\/em>, he would have to take bikurim<\/em> from the fruit that he bought.<\/p>\n

One question that is raised is why there is specific interest in bikurim<\/em> and not on the other agricultural tithes like terumot<\/a><\/em> and ma’asrot<\/a><\/em>?<\/p>\n

The Ri”d<\/a> suggests that this is because the mitzvah<\/em> of bikurim<\/em> 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<\/em> of bikurim<\/em> does not apply. With regard to the other tithes, which are all taken and arranged privately, the need for such a tikun ha-olam<\/em> was not as pressing. The Me’iri<\/a> suggests that bikurim<\/em> 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<\/em>.<\/p>\n

\n

Gittin 48a-b<\/u><\/strong><\/p>\n

The fifth perek<\/em> of Masechet <\/u><\/em>Gittin<\/a> \u2013 perek haNizakin<\/em> \u2013 begins on our daf<\/em>. There are no discussions of divorce law in this perek<\/em>; it is a continuation of the previous perek<\/em> which dealt with cases of rabbinic enactments established mipnei tikun ha-olam<\/em> \u2013 to encourage the proper workings of society.<\/p>\n

The first Mishnah<\/a> in the perek<\/em> describes how different monetary obligations are paid differently:<\/p>\n