תלמוד על גיטין 5:11

HALAKHAH: “One who robbed wood and turned it into utensils,” etc. Here⁴Tosephta 10:2 states that raw wool that was bleached does not have to be returned; only its value as raw wool has to be paid. Babli 93b., you say that bleaching is a change, and there⁵The Mishnah, which says that only turning wool into a garment is a change by which the robber becomes the owner; this implies that cleaning, spinning, and dying the wool prior to weaving is not a change which absolves the robber from returning the wool as is. you say that bleaching is not a change. If you say that bleaching is a change, if he made it into wool flakes⁶Arabic صوفة, Samaritan Aramaic צוף. The wool flakes can be used to stuff pillows; they cannot be spun into thread. The robber changed raw material into a finished product.. If you say that bleaching is not a change, if he left it unchanged. We find bleaching without flakes. Are there flakes without bleaching⁷At least the raw wool has to be washed before being turned into flakes.? Rebbi Yudan said, it is a leniency instituted for the robber that he pay their value at the time of the robbery⁸Since robbers, in contrast to thieves, are known, it should be made easy for them to return the robbed goods and avoid prosecution. This is the position of the House of Hillel as explained in the next paragraph. The Mishnah represents the teaching of the House of Hillel.. If somebody robbed raw hide and cleaned it, can you say that he turned it into flakes⁹Nonetheless, he only owes the value of the hide and cannot be forced to return it as is.? Again it is a leniency instituted for the robber that he pay the value at the time of the robbery.

MISHNAH: Rebbi Joḥanan ben Nuri said, why can a deaf-mute woman be divorced but a deaf-mute man cannot divorce? They told him, a divorcing man is not comparable to a divorced woman since a woman can be divorced with or against her will²⁰By talmudic standards. By an institution of R. Gershon ben Jehudah (Mayence, about the year 1000), European Jews were forbidden to divorce without the wife’s consent (except in cases where the law forces the husband to divorce). but a man divorces only by his own will²¹If the court coerces a recalcitrant husband to give a divorce, they have to coerce him “until he says, I want to do it.”.
Rebbi Joḥanan ben Gudgada²²A Tanna, about one generation older than R. Joḥanan ben Nuri. His testimony is also in Mishnah Idiut 7:9, Giṭṭin 5:5. testified about a deaf-mute girl who was married off by her father²³When she was a minor and was passive in the marriage. She is married by biblical standards. that she could be divorced by a bill of divorce. They said to him²⁴To R. Joḥanan ben Nuri, that in principle, the biblical marriage of an incompetent person can be dissolved by divorce., that is an example.

HALAKHAH: “If she did appear in court before she became an adult,” etc. Rebbi Simeon ben Ioḥai stated: “The man who had lain with her shall give 50 silver pieces to the girl’s father;” this teaches that the father acquires only by handing over³¹In the Babli, 42b, this is an Amoraic interpretation of R. Simeon’s position.. Rebbi Simeon says, the matter depends on the collection, but the rabbis say, the matter depends on the court procedure. Rebbi Simeon treats it as court decrees³²Money receivable because of a judicial decision is not counted as property to be part of the estate since in many cases the collection of such a judgment depends on the claimant swearing that his claim was not otherwise satisfied and the heirs cannot swear for their deceased father. but the rabbis treat it as a loan³³Outstanding documented loans are property and part of the estate since the debtor would have to prove his case if he claims that the loan had been repaid.. In the opinion of Rebbi Simeon, he forecloses from the best land; in the opinion of the rabbis he forecloses from average land³⁴If the debtor is unable to pay cash and the creditor comes to foreclose real estate, Mishnah Giṭṭin 5:1 states that debts for torts are foreclosed from the most valuable real estate, loans from average, and a ketubah from the least valuable (R. Meïr says, from average.) The value is determined by the going rate for a unit of surface area.. In the opinion of Rebbi Simeon, the Sabbatical year does not cancel the debt; in the opinion of the rabbis the Sabbatical year cancels the debt³⁵Only private debts are cancelled by the Sabbatical year, not those created by court order nor those handed over to a court for collection; Mishnah Ševi‘it 10:2. The details of the laws of the Sabbatical relating to this case are explained in Ševi‘it 10:2, Note 69.. In the opinion of Rebbi Simeon the firstborn takes a double portion; in the opinion of the rabbis the firstborn does not take a double portion³⁶The law of inheritance of the firstborn (Deut. 21:17) states that the father has to give him a double portion (or ²/₃, assuming there are only two sons) “of everything that is found with him”, meaning everything in actual possession at the time of death. Money due for an executable court order is money in possession; money due for an outstanding loan is not money in possession since it is subject to the uncertainties of a court proceeding if foreclosure is needed and the position of the firstborn is not privileged in regard to future income..

MISHNAH: The bull of an Israel which gored a bull of Temple property or the bull of Temple property which gored a bull of an Israel are not liable since it was said “his neighbor’s bull”³⁵Ex. 21:35., not a bull of Temple property.
The bull of an Israel which gored a bull of a non-Jew is not liable; the bull of a non-Jew which gored a bull of an Israel pays full damages, whether tame or notorious.

Rebbi Yudan did not go to the house of assembly. He met Rebbi Mana and asked him, what was new for you in the house of study today? He told him, such and such a subject. He replied, is that not a Mishnah, “heave and it became impure”? He replied, explain it if it became impure by itself⁴⁴For example, if a dead reptile was found in the utensil containing the heave. Then it implies nothing about the status of the object if the robber caused the change. and you cannot infer anything.

Did we not state: “If a bull of a deaf-mute, insane, or underaged person gored, one appoints a guardian for them and receives testimony about them in the presence of the guardian”⁵¹The Mishnah seems self-contradictory. Either incompetent persons are not liable or they have to be represented by guardians whose duty it will be to indemnify the victims of the animals of the incompetent. The question is also asked in the Babli, 39a. It is answered there but here left unanswered. One may not assume that the treatment of the Babli is valid for the Yerushalmi. It is more likely that the question is not answered because the Mishnah has a straightforward interpretation: The incompetent are not liable, but it is the duty of the court to intervene and appoint guardians responsible for future control of the dangerous animals (Midrash Haggadol Ex. 21:36).? So far if testimony was taken in the presence of the owner and he delivered to the guardian. If testimony was taken in the presence of the guardian and he delivered to the owner⁵²This text seems to be devoid of sense. One may adopt the emendation of Pene Moshe and switch the objects: “So far if testimony was taken in the presence of the guardian and he delivered to the owner. If testimony was taken in the presence of the owner and he delivered to the guardian?” This text refers to the disagreement between R. Meïr and R. Yose. For the latter, a notorious beast always remains notorious. For R. Meïr the designation of “notorious” lapses if the animal is handed over to the grown-up owner by the guardian. What would be his opinion if an owner of a notorious beast developed a mental illness and his estate were handed to a guardian by the court? Does he also hold that the designation of “notorious” lapses in this case?? Let us hear from the following: ⁵³Babli 40a, Tosephta 5:4.“If somebody borrowed it with the understanding that it was tame but it turned out to be notorious, the owner pays half of the damages and the borrower pays half of the damages⁵⁴The owner has to pay full damages for the notorious animal. Since he failed to inform the borrower, he has regress on him only for half the damages since the borrower is responsible to watch the animal to make sure it causes no damage as “tame”. (For the different versions of the Tosephta, cf. S. Lieberman in Tosefta kiFshutah.).” Rebbi Eleazar said, this is Rebbi Yose’s, since Rebbi Yose said, it remains in its prior state. But if this is Rebbi Yose’s, he⁵⁵Since for R. Yose the status of the animal does not change with a change of control, the borrower should be liable for the entire damage. should pay in full. If he borrowed it with the understanding that it was tame⁵⁶Same explanation given in the Babli, 40a.. But if he borrowed it with the understanding that it was tame, he should not have to pay anything. If he knew that it was apt to gore⁵⁷But the borrower was not informed that the animal had been declared notorious by action of the court.. It was stated⁵⁸Tosephta 5:4; cf. Babli 44b/45a, 98b.: “If it killed while at the borrower’s, who handed it back to the owners, before judgment was rendered he is not liable⁵⁹Since he handed back a bull, he does not have to replace it even though after judgment the bull will not be worth anything., after judgment was rendered⁶⁰That the bull has to be killed and its carcass forbidden for usufruct (Ex. 21:28). he is liable. Rebbi Jacob said, even after judgment was rendered but before it was stoned, he is not liable⁶¹Since he returned the bull; its changed legal status is not apparent..”

MISHNAH: A priest precedes a Levite, a Levite an Israel, an Israel a bastard, a bastard a Gibeonite²¹¹The bastard has (in general) genuinely Jewish parents; the Gibeonites became Jewish by deceit., a Gibeonite a proselyte²¹²The Gibeonite’s parents were Jewish, the proselyte’s not., a proselyte a manumitted slave. When? If they are all equal²¹³In religious learning.. But if the bastard was learned and the High Priest ignorant, the learned bastard precedes²¹⁴In honor due to him. the ignorant High Priest.

HALAKHAH: “A man should not rest from being fruitful and multiply,” etc. The House of Shammai say two males, since “Gershom and Eliezer”¹¹³1Chr. 23:15. The argument is in Babli 61b, Tosephta 8:4, Tanḥuma Buber Bereshit 26. Nobody has to be more strict than Moses. are mentioned for Moses. The House of Hillel say a male and a female the way the world was created, as it is said “male and female He created them¹¹⁰Gen. 1:27..” Rebbi Abun said, one has to understand “even a male and a female”. If it were not so, it should have been a Mishnah¹¹⁴In Tractate Idiut. It must be that the House of Hillel accept either two males or male and female. about the leniencies of the House of Shammai and the stringencies of the House of Hillel. Sons of sons are counted as sons¹¹⁵Tosephta 8:4, Babli 62b., sons of daughters are not counted as sons¹¹⁶In the Babli, 62b, this is the opinion of Abbai; it is rejected by the authoritative Rava (Rav Abba bar Rav Yosef bar Ḥama).. The son’s son and the daughter’s daughter count; the son’s daughter and the daughter’s son do not count. A she-ram, a castrate, and those who cannot have children are not counted.

⁸⁹Parallel arguments are in the Babli 69a, Giṭṭin. 51a. If there were two daughters and one son; the first one took a tenth of the estate, but the son died before the second could take her tenth⁹⁰The son died childless; then the two daughters inherit the estate.. Rebbi Ḥanina was of the opinion that the second takes a tenth of the estate and the rest they divide equally among themselves. Rebbi Joḥanan told him that in this case there was nothing else to provide for her, but here she may sell from the remainder and provide for herself⁹¹In the Babli, R. Joḥanan holds that the second daughter gave up her claim for the extra 10% and takes 50% of the estate. According to R. Ḥanina, 45% go to the first daughter and 55% to the second.! Rebbi Tebi in the name of Rebbi Joshia: The reason of Rebbi Ḥanina: If she can collect from encumbered real estate, from what lies before her not so much more⁹²He holds that providing a dowry for the daughters is a ketubah obligation and as such has the status of a mortgage. Therefore, in talmudic law (abolished by the Geonim in Babylonia after the Arab conquest and apparently never followed in the European provinces of the Roman empire) the claim for a dowry must be satisfied by real estate. If the father sold a piece of real estate and there is none left to satisfy the demand for dowry, the daughter can go to court to repossess the land and let the buyer be indemnified by the estate.? Rebbi Joḥanan sticks to his opinion, since Rebbi Ze‘ira said that Rebbi Joḥanan does not collect⁹³He refuses to grant repossession for claims to dowry.. Who collects? Rebbi Ḥanina [and Rebbi Hila] collect. Rebbi Yasa was appointed custodian of orphans’ property⁹⁴Valuables, not real estate.. There were orphan [girls] who asked to be provided for. He brought the case before Rebbi Eleazar and Rebbi Simeon bar Yaqim. Rebbi Simeon bar Yaqim said, is it not better to provide for them from their father’s estate rather than from charity⁹⁵The underlying hypothesis here is that dowries from estates are given only from real estate. R. Simeon ben Yaqim holds that an estate rich in money but without real estate should provide for the daughters in money and not force them to apply to public charity for their dowry.? Rebbi Eleazar said to him: If such a case came before our teachers, our teachers would not touch it⁹⁶The Patriarch’s court in his days could not decide whether dowries should be paid from real estate or movables; why should a lower court deal with the matter?; would we act? Rebbi Yose said, I shall give to them, and if some orphans get up and complain, I would give it to them⁹⁷In a similar situation, he provided for the daughters from movables. But since he had no precedent, if the male orphans were to appeal the judgment, he would rescind it. Since there was no appeal, a precedent was created that dowries be given from movables. The Babli strongly disagrees, 69b.. Even so, they saw and did not complain. Rebbi Ze‘ira asked before Rebbi Yose: How do you decide in practical cases? He said to him, following Rebbi Ḥanina. And so an actual case was decided following Rebbi Ḥanina⁹⁸To split the inheritance 55% / 45%, cf. Note 89.. Rebbi Abun in the name of Rebbi Hila: One considers the estate as if it were dry⁹⁹The daughters cannot claim part of the yield of the estate for their dowry..

¹³⁵Mishnah Giṭtin 5:9, Halakhah 5:9 Note 231. If the eruv usually is deposited in one specific house in the courtyard it may be removed to another location if the old inhabitant is no longer there. There, we did state: “One puts an eruv in an old house, for communal peace”. Rebbi Abun said, the Mishnah speaks of a prior dweller.

²⁰⁰This paragraph, transmitted here in rudimentary form, is from Giṭṭin 5:4. The variant readings are indicated by גי. In this text, “here” means the text in Giṭṭin, “there” is a different setting in Yebamot 6:6 (Notes 115,116). The topic of the Mishnah in Giṭṭin is the enforcement of the ketubah contract for the support of a wife and her daughters; the question is whether the ketubah also covers granddaughters. Similarly, here the question is whether the rules of Usha require a man to feed his underage grandchildren (if they have no father or the father is incapacitated.) In Yebamot, the question is whether grandchildren count as much as children in the obligation “to be fruitful and multiply.” The answer there is a qualified yes, while here and in Giṭṭin it is no. What is the situation of grandchildren? Rebbi Mana said, [grandchildren are like children. Rebbi Yose said, grandchildren are not like children.] Rebbi Yose ben Rebbi Ḥanina and Rebbi Mattaniah were sitting together. They wanted to say, the same situation applies to grandchildren here as there. Rebbi Yose ben Rebbi Ḥanina said to him, inheritance by biblical law jumped on grandchildren²⁰¹In biblical obligations, grandchildren can be counted as children. But in rabbinic institutions involving monetary obligations, only what is specified counts..

HALAKHAH: It is written about torts that the collection be from the best quality, as it is said: “his best field, etc.⁹³Ex. 22:4; Babli Giṭṭin 48b.” And it is written about a loan that the collection be from average quality, as it is said: “and the man to whom you are creditor, etc.^87,Deut. 24:11.⁹⁴The inference is explained later by R. Simai.” They inferred real estate from pledges⁹⁵Since Deut. 24:14 refers to a pledge of movables, it is not obvious that the same rule should be applied to the foreclosure of a mortgage.. Similarly, should not pledges be inferred from real estate⁹⁶If payment for torts is made by cash or movables, not in real estate, that only best quality would be acceptable. But any debt can be liquidated by money or money’s worth to avoid foreclosure.? ⁹⁷A parallel to the remainder of the paragraph is in Giṭṭin 5:1, Notes 30–32. Rebbi Simai explained: It is a word of the Torah that the court’s bailiff enter and collect from average quality. For if the creditor enter, he would bring out the best. And if the debtor enter, he would bring out the worst. But the court’s bailiff enters and collects from average quality. Rebbi Ismael stated: It is a word of the Torah that the debtor enter, as it is said: “and the man to whom you are creditor etc.⁹⁸Deut. 24:10–11: “If you are a creditor to your neighbor for anything, do not enter his house to take his pledge. Stand outside, and the man to whom you are creditor shall bring the pledge outside to you.” This clearly indicates that it is up to the debtor to determine what to give as pledge; the requirement that it be of medium quality is purely rabbinical for R. Ismael; in the words of the Babli “not to lock the door before borrowers” (Babli 113b). The obligation to stand outside extends to the bailiff (Sifry Deut. 276).
But R. Simai, and the Masoretes who follow him in their punctuation, read: “Stand outside, and the man, acting on behalf of the one to whom you are creditor, shall bring …” The man is the court’s employee.” Rebbi La said, it was stated there⁹⁹In Babylonia.: “to seize as pledge”, by the court. Outside the court, from where¹⁰⁰The court has to give authorization; it does not have to oversee the execution.? The verse¹⁰¹Ex. 22:25. says, “if to seize as pledge you seize as pledge.” If he took the pledge without authorization, he transgresses all these verses¹⁰²Tosephta 10:8: Ex. 22:25, Deut.24:10–13, for a total of five sins committed by one action.. Rebbi La said, he caused himself to transgress all these verses¹⁰³If he received the pledge through the court’s bailiff and did not return it, he still would transgress Ex.22:25 and Deut. 24:13, but not the other commandments..