Komentarz do Gittin 5:10

הניזקין שמין להם בעידית – Even though that it is from Torah, as it is written (Exodus 22:4): “[When a man lets his lifestock loose to graze in another’s land, and so allows a field or a vineyard to be grazed bare,] he must make restitution (from the best) for the impairment of that field or vineyard.” This Tanna [of our Mishnah] thinks that it is the best field of the one who suffered damage that is spoken of in the Biblical verse, but for the sake of the social order, the Sages said that the one who caused the damage should pay from the best of his property, even if they (i.e., his properties) are better than the best of the one who suffered the damage, in order that we should be careful from causing damage.

Introduction This mishnah teaches what type of land must be used in order to repay debts. Its connection to “tikkun olam” is that the sages shaped some of these laws using “tikkun olam” type criteria. That is to say they tried to take into social needs when making these rules.

ובעל חוב בבינונית – that from the Torah he does not collect other than from the lowest quality land of the estate, as it is written (Deuteronomy 24:11): “[You must remain outside,] while the man to whom you made the loan brings the pledge out to you.” But it is not the manner of a person to bring out other than the worst of his possessions, but for the sake of the social order, they [i.e., the Sages] said that the borrower pays with his middle-range [property, in order that we not shut the door to borrowers.

Damages are paid out of [property of] the best quality; The rule that damage payments are made out of the best of one’s land is seemingly stated in Exodus 22:4, “When a man lets his livestock loose to graze in another’s land, and so allows a field or vineyard to be grazed bare, he must repay the best of his field and the best of his vineyard.” However, there is a debate over this issue. Rabbi Akiva interpreted this to mean that the damager must pay back from the best of his (the damager’s) land and Rabbi Ishmael interpreted it to mean that the damager must pay back with land equivalent to the best of the other person’s land. If this mishnah goes according to Rabbi Ishmael than the “tikkun olam” is that although the Torah does not demand that the damager pay back from the best of his own land, the rabbis demanded that he do so in order to deter people from being negligent and causing damage. If the mishnah goes according to Rabbi Akiva, then the Torah itself ruled because of tikkun olam. Although tikkun olam usually implies a rabbinic enactment, this is not always the case.

וכתובת אשה בזבורית – for we do not suspect her to shut the door, for more than a man wants to marry, a woman wants to be married.

A creditor pays out of land of medium quality, According to the Talmud, Torah law dictates that when a debtor collects land in payment of his debt, he collects from the debtor’s worst property. Seemingly this would be good for debtors, certainly a noble goal. The problem with this is that it might end up deterring lenders and thereby make it difficult for people to get the loans they need (especially if they are farmers.) People will be hesitant to lend money if they know that if the debtor defaults they will collect from lousy land. In order to encourage people to lend money (remember it was without interest, so lending was a form of charity), the rabbis enacted that if a debtor defaults the creditor collects from property of medium quality.

ר"מ אומר כו'- The Halakha is not according to Rabbi Meir.

And a ketubah is paid out of land of the poorest quality. Rabbi Meir says that a ketubah is also paid out of medium quality land. There is a debate over what type of land a woman receives upon collecting her ketubah. Collecting a ketubah is like collecting any debt the husband (or his estate) is a debtor to the woman. Therefore Rabbi Meir holds that just as usual debts are collected from middle quality land, so too is the ketubah debt. However, the first opinion in this mishnah holds that normal debts are not totally analogous to ketubot. With regard to a normal debt, the rabbis ruled that it is collected from middle quality land in order to encourage people to loan money. No such encouragement is needed with regard to ketubot, for women will marry whether they will collect their ketubah from middle or poor quality land. Since there is no special reason that the woman should collect her ketubah from middle quality land, she collects from poor quality land, as is the Torah’s rule for all debts.

אין נפרעים מכנסים משועבדים – such as a borrower who sold his middle-range [property] which was mortgaged to the creditor, the creditor cannot seize it from the purchaser if free-standing property remains with the borrower, and even though they are not other than the lowest level property.

Introduction This mishnah continues the topic which was begun in yesterday’s mishnah which type of land is used to pay off debts.

Payment cannot be recovered from mortgaged property where there free property is available, even if it is only of the lowest quality. Payment can be recovered from orphans only from land of the lowest quality. As we learned yesterday, generally debts are repaid with middle quality land. When a person takes out a loan, all of his currently owned land automatically becomes collateral for the loan. If the creditor should come to collect, and the debtor only has poor quality land, but at the time of the loan he had middle quality land and subsequent to the loan he sold or gave it away, the creditor collects from the poor quality land. This is a case of conflicting values. We want the creditor to be able to collect from better property in order to encourage people to lend. However, the collection of debts from third parties is terribly disruptive to the economic system. Therefore, in order to prevent losses to the third party in other words for tikkun olam the creditor can only collect from the poor quality land in the debtor’s actual possession.

If a creditor is collecting from the orphan of the debtor, he can only collect from the poor quality land. Again this is because of tikkun olam and to make things easier for the orphans.

אין מוציאין לאכילת פירות ולשבח קרקעות – The one who steals a field and sells it to another [person], who sowed it and caused it to grow and made fruits and the person from whom it was stolen comes and collects it with its fruits from the purchaser, does not pay the purchaser other than the expenses [laid out following the purchase] and the purchaser goes back to the seller and collects the cost of the land from his mortgaged possessions, for he [the thief] sold it to him [the purchaser who was unaware that the land had been stolen] with surety and wrote him a document of sale , and it is a loan document, and the fruit come from free-standing property and not from mortgaged property.

Introduction The first section of this mishnah continues the topic of collecting debts from mortgaged properties. The second section deals with returning lost objects.

לשבח קרקעות – and similarly, if the purchase increased the value of the property by planting trees or manuring it or doing similar things.

[Creditors] do not collect from mortgaged property for produce consumed, for the improvement of property, [and payment] for the maintenance of a widow and daughters, because of tikkun olam. There are three types of repayments mentioned in this section. In each of these cases when a creditor collects his debt he can only collect from unmortgaged property, meaning property that is actually in the hands of the debtor. The first category is “produce consumed.” This refers to a situation where someone illegally obtained land, for instance he stole it. He then eats the produce on the land and sells the land to another person. When the original owner comes to claim the land he extracts the land from the person who purchased it from the thief and he can extract the value of the produce from the thief himself. However, he can only exact this payment from the thief from unmortgaged property and not from property which the thief sold or gave away to others. In this same situation, the one who purchased the property from the thief and then had to restore it to its original owner collects from the thief the original purchase price. He also may collect from the thief any money he spent to improve the property, but this amount he may collect only from unmortgaged property. This is what the mishnah means by “improvement of property.” When a man dies one of the ketubah stipulations is that his widow and daughters are to be provided for from his estate until they are married. However, they are only provided for from the dead husband’s unmortgaged property. The “tikkun olam” here is that these amounts are not fixed. Therefore, one who buys from a person who might be in this situation will never know how much debt that person is really in and he won’t be able to be cautious lest he buy property that has a lien on it. To protect these purchasers, these amounts cannot be collected from them.

ולמזון אשה והבנות – for it is a condition of the Jewish marriage contract, “for you will dwell in my house and be supported from my possessions, and the female issue that you will have from me will dwell in my house and be supported from my possessions, etc., and when they come to claim their food, they do not collect it other than from free-standing property and not from mortgaged [properties].”

The finder of a lost article is not required to take an oath, because of tikkun olam. If a person returns a lost object to another person, and the person receiving the lost object suspects that the one returning it has kept part of the object for himself he cannot make the one returning the object take an oath that he has returned it all. If such an oath could be enforced, people might be hesitant to return lost objects, because people did not want to take oaths even if they were true. In order to encourage people to fulfill the mitzvah of returning lost objects, in other words for tikkun olam, such oaths were not enforced.

מפני תקון העולם – for they are many which have no limit and no one knows how much they are and one is not able to be careful with this.

והמוצא מציאה – and returned [the lost object], and the owners say that the entirety was not returned.

לא ישבע מפני תקון העולם – for if you say that he should take an oath, there are no individuals who deals with the return of lost objects.

יתומים שסמכו אצל בעל הבית – to do their work at his direction, for an administrator/guardian had not been appointed for them; but nevertheless, he was like an administrator.

Introduction The first two sections of this mishnah deal with certain responsibilities that guardians have in taking care of orphans. The final section deals with damages that are done to food or sacrifices that cannot be seen.

אפוטרופוס – In the Roman language they would call a father PATER and children [would be called] POTOS. An explanation of APOTROPOS is the father of minor children.

If orphans relied on a householder or if their father appointed a guardian for them, he must tithe their produce. A guardian has the responsibility to tithe the produce of orphans who are relying on him to manage their lives. This clause is here to introduce the next sections of the mishnah.

שמינהו אבי יתומים ישבע – for if not [i.e. if he did not take an oath], that he had benefit from him, he would not have had an administrator, and because of the oath taken, he might shrink from serving as a guardian.

A guardian who was appointed by the father of the orphans is required to take an oath. [A guardian who was] appointed by the court does not need to take an oath. Abba Shaul says that the rule is the reverse. When the orphans grow up, according to the law they can make the guardian swear that he did not misappropriate any of their money (see Shevuoth 7:8). According to the first opinion in this section, the orphans have such power only when they were appointed by the father. If the court appointed the guardian, he is not liable for such an oath. This is because the court forced him to be a guardian, and he didn’t necessarily receive any satisfaction. If the halakhah were to force him to take an oath, people would refuse to become guardians. However, if the father appointed him, the guardian has the satisfaction of helping out the father who was assumedly his friend. Since he has that satisfaction, he will accept becoming a guardian even though he might eventually have to take an oath. We can see here that the “tikkun olam” is to exempt guardians from taking oaths if the oath would deter them from accepting such appointments in the first place. Abba Shaul reasons that the exact opposite is true. If the father appoints him he need not swear since he was only doing a favor for the father. According to Abba Shaul, if guardians appointed by the father were forced to swear they would not want to become guardians. However, when the court appoints someone to be a guardian he gets the added benefit of the community knowing that the court believes that he is a trustworthy man. Since he receives this added benefit, he will not refuse becoming a guardian even if it might cause him to take an oath.

מנוהו בית דין לא ישבע – as a gratuitous favor, as he does this for the Jewish court to accept their words and to trouble himself without pay, and if they bring a dispute [by requiring that] he take an oath [that he was faithful to his task], he can shrink from it [i.e., becoming a guardian].

One who renders impure [someone else’s pure food] or mixes terumah [with someone else’s non-terumah produce] or makes a libation [with someone else’s wine], if he does so inadvertently, he is exempt, but if intentionally he is liable. Priests who intentionally made someone else’s sacrifice piggul in the Temple are liable. There are three types of invisible damage mentioned in this first clause. If one causes someone else’s terumah to become impure, it has to be thrown away. If someone mixes in terumah with another person’s normal produce it must be sold to priests at the price of terumah which is lower than the price of normal produce. Finally, if someone makes an idolatrous libation with someone else’s wine, the wine must be thrown away. Similarly, if one mixes already libated wine with non-libated wine it must all be thrown away. In all of these cases the damage is done but the object has not physically changed at all. The bottom line halakhah holds that damage that cannot be seen is not considered damage. Therefore, if any of these things were done intentionally, the damager need not make restitution. However, had he done so intentionally he must pay because of “tikkun olam” to prevent people from intentionally damaging other’s property. “Piggul” is a sacrifice offered by a priest who has intends to eat it at a time when that sacrifice may no longer be eaten. “Piggul” cannot be put onto the altar and it does not bring about the intended result of a sacrifice (for instance atonement). This is again a case of invisible damage, and as above, if a priest intentionally causes such damage he is liable.

אבא שאול אומר חילוף הדברים – if he court appointed him, he should take an oath, since the benefit [he receives] has a voice that he is an honorable person [by not stealing from the funds in his care] for the Jewish court relies upon him and because of the oath taken, he will not shrink [from his duties in becoming a guardian]; [on the other hand], if the father of the orphans appointed him, he should not take an oath, as it is a gratuitous favor that he does for him to go to the trouble [of caring for] his children, and if they were to raise a dispute against him [by requiring that] he take an oath, he would shrink from his duties [of serving as a guardian]. And the Halakha is according to Abba Shaul.

המטמא – [he defiles] the pure objects of his fellow.

המדמע – he mixes the heave-offering/sacred donation for the Kohanim with unconsecrated foods and causes it to lose value, as it is necessary to sell it to the Kohanim cheaply.

המנסך – mixing wine poured for libations with kosher wine and it is forbidden to derive benefit [from it].

במזיד חייב – but by law, he would be exempt, for damage that is not discernible in the object itself is not itself called damage (see Talmud Gittin 53a), but for the sake of the social order [we do not do this], so that every person would not go and defile his fellow’s pure objects, and say that I am exempt.

הכהנים שפיגלו – [because of an improper intention in the mind of the officiating Kohen making] the sacrifices [rejectable] in that they slaughtered [the animals] and sprinkled their blood with the thought of eating from them at an inappropriate time, and it as not acceptable to the owners [of the sacrifices].

מזידים – that they knew that they would be invalid by doing this.

חייבים – to pay their value to the owners, for they would have to bring other [sacrifices]; alternatively, it is a donation and is not obligated for indemnity payment. Nevertheless, it is difficult in his eyes that he would not make the sacrificial offering, for he was requested to bring a gift.

על החרשת שהשיאה אביה – and even though she is a completely married woman, for her father had received her betrothal when she was a child/minor, even so she goes free with a Jewish bill of divorce and receives her Jewish bill of divorce while she is deaf-mute; and even though she lacks “knowledge,” since a woman is divorced against her will, therefore, we don’t require “knowledge.”

Introduction This same exact mishnah appears in Eduyoth 7:9. It is brought here because it contains two “takkanot” (in sections three and four).

וכל קטנה בת ישראל שנשאת לכהן – and she is an orphan, and her marriage is not valid other than according to the Rabbis.

Rabbi Nehunia ben Gudgada testified concerning a deaf-mute whose father had given her in marriage, that she could be sent away with a bill of divorcement; As we have learned in other places, the Rabbis considered a deaf-mute to lack intelligence, because in their time the deaf-mute had little way of communicating with the outside world. Usually a person who lacks intelligence, such a deaf-mute, minor or insane person, cannot enter into legally binding contracts, because they don’t understand their ramifications. However, as Rabbi Nehunia testifies, a deaf-mute can be divorced. (She was married off by her father). The reason is that divorce is not dependent upon the woman’s acquiescence; she can be divorced against her will. Since her will is irrelevant, even one who lacks awareness can be divorced. Although this might sound harsh, as if the Rabbis are going out of their way to allow a deaf-mute to be divorced, it may have also worked in her benefit. If men couldn’t divorce deaf-mutes, perhaps they might refrain from marrying them. By allowing a “way out” the Rabbis might actually be encouraging their marriage.

שאוכלת בתרומה – according to the Rabbis, for we do not make the decree that [eating] Terumah/heave-offering according to the Rabbis is like [eating] Terumah of the Torah-law.

And concerning a minor, daughter of an Israelite who married a priest, that she could eat terumah, and if she died her husband inherited from her; This section deals with an orphaned minor girl of a non-priestly, Israelite family, who marries a priest. Generally this type of marriage is considered to be valid only rabbinically (derabanan) and not valid through Torah law (deoraita). Deoraita a minor can only be married off by her father. Only when she reaches majority she can marry herself off without her father’s aid. Despite the fact that this is really only a “derabanan” marriage, Rabbi Nehunya testifies that it is sufficient for her to be allowed to eat terumah and for her husband to inherit her, should she die. Even though these are usually rights only given to a valid “deoraita” marriage, Rabbi Nehunya testifies that the husband does receive these rights.

מריש – beam

And concerning a stolen beam that had been built into a palace, that it might be restored by the payment of its value, because of the enactment to encourage repentance. Usually one who steals an item must return the actual stolen item, as long as the item still exists. If one stole a beam and then used it in the foundation of a castle, legally he is bound to take down the castle and return the beam. Obviously this will discourage people from admitting that they stole. This admission is an essential part of making atonement for their crime. To allow people to more easily make atonement, the robber is allowed to pay back the value of the beam.

בירה – a large house

And concerning a sin-offering that had been stolen, and this was not known to many, that it caused atonement because of the welfare of the altar. If it were forbidden to use animals that might have been stolen as sacrifices, the priests would never sacrifice an animal, lest it be stolen. Therefore, the mishnah rules that stolen animals can be used as sin-offerings, and that they do procure atonement for the one bringing them, as long as the theft is not publicly known. This mishnah is not permission to steal an animal and bring it as a sacrifice. Rather it is permission to use an animal without being concerned that it is stolen property. The mishnah teaches that if it was stolen property and the person who brought it did not know that it was stolen, that it is effective in bringing atonement.

מפני תקנת השבים – for it you require him [i.e., the thief] to take down (literally, “exterminate”) his home (or an entire group of buildings) and return the [stolen] beam itself (see Talmud Gittin 47a), he would be prevented from repenting.

שלא נודעה לרבים – that t was stolen

שהיא מכפרת – and there is no need to bring another.

מפני תקון מזבח – so that the Kohanim will not be sad that they unconsecrated meat that was slaughtered in the Temple courtyard, and it would lead to the altar being void, that they were prevented from performing the Temple ritual.

לא היה סקריקון – a murdering heathen, that is do say, that they did not adjudicate the law concerning the purchase of confiscated property (see Talmud Gittin 55b) to say that whomever purchases Jewish land from a murdering heathen, will be liable to adjudicate with the owners.

Introduction This mishnah deals with “sicaricon”, which refers to the illegal, governmental expropriation of land from its rightful owners. Specifically we are talking about land taken from Jews by Romans during the Second Temple and mishnaic periods. The word “sicaricon” can refer to either the Roman who expropriated the property (in this case I shall capitalize the word); the rule governing land taken in such a faction; a person who came into land by buying it from a sicaricon.

משעת הרוגי מלחמה – At the time when the decree was difficult for the Jews [that they would be] killed during warfare, for a person who buys from him at that time, his purchase is valid, and there was no need to adjudicate with an Israelite who owns the land, since as a result of unavoidable compulsion where an Israelite would complete a sale to the heathen murderers, and we hold (Talmud Bava Batra 47b): “If a person consents to sell something through fear of physical violence (literally, “if they hang him and he sells”), the sale is valid.

There was no sicaricon in Judea for those killed in war. During the Great Revolt from 67-70 C.E. which culminated in the destruction of the Temple, the rule of sicaricon was not applied. Practically what this meant was that land expropriated by the Romans was considered to legally belong to the Romans. Therefore, a Jew who subsequently bought the land did not need to return anything to the original owner. This was to encourage people to buy back the land in order that it should not remain Roman in perpetuity.

אבל מהרוגי המלחמה ואילך – when there was no decree to be killed, they adjudicated the law concerning the purchase of confiscated propery, to say that when he purchases it from him, they should do a judgment with the owners as it is explained in the Mishnah.

After the war’s slaughter ended there is sicaricon there. How so? If a man buys a field from the Sicaricon and then buys it again from the original owner, his purchase is void, but if he buys it first from the original owner and then from the sicaricon it is valid. After the war the rule of sicaricon was enforced. What this meant was that a Jew who bought the land from the Roman and then went and asked to buy the land from the Sicaricon had not legally acquired the land. This is because we can assume that the original owner only agreed to sell the land out of fear were he not to sell the land the Romans who had already sold it might lose their sale. However, if the purchaser acquired it first from the original owner and then from the Sicaricon the sale is valid.

מקחו בטל – for as we say that he did it out of fear.

If a man buys [a piece of a married woman’s property] from the husband and then buys it from the wife, the purchase is void, but if he buys it first from the wife and then from the husband it is valid. This section does not have to do with the rules of sicaricon and is brought here because of its similarity to the previous section. When a man marries a woman the woman retains ownership over her property but her husband has the right to use the property. Neither of them may sell the property without the other’s permission. If someone buys the property first from the husband and then from the woman (who agrees), the sale is not valid. The problem is that the woman may have sold under duress, being pressured by her husband. However, if he buys from the woman first, we can assume that the woman sold of her own free will. If the husband also agrees to the sale, the sale is valid.

לקח מן האיש – land that is designated for his wife’s Ketubah.

This was [the ruling] of the first mishnah. The court that came after them said if a man buys property from the Sicaricon he had to give the original owner a quarter [of the value]. When is this so? When the original owners cannot buy it themselves, but if they can they have preemption over everyone else. The problem with this system may have been that people would have been afraid to buy land from the Sicaricon. This might have left large pieces of Jewish land in Roman control. Therefore, a later court made a new rule. If a person buys from a Sicaricon, he must give one quarter of the sale price to the original owners. This way people would buy the land and the original owners would get at least some of their money back. However, if the original owners have the money to buy back their land, they still have the first shot at doing so.

מקחו בטל – for she said that I did it only to gratify my husband (but did not mean to sell – see Talmud Ketubot 95a).

Rabbi assembled a court and they decided by vote that if the property had been in the hands of the Sicaricon twelve months, whoever purchased it first acquired the title, but he had to give a quarter [of the price] to the original owner. Rabbi Judah Hanasi and his court enacted a further change in this law. If the land remained with the Sicaricon 12 months, and it didn’t look like anyone was going to buy it, the first person to purchase it has legally acquired it. In other words, a purchaser need not worry that the original owners would preempt him. However, the purchaser must still pay compensation to the original owners.

נותן לבעלים רביע – that they estimated, for the heathen murderers which it had come into his hand without paying for it, he bought [the confiscated field] for one-fourth less than its real value.

רומז ונרמז – what her [i.e., the deaf-mute] gesticulates or that others gesticulate to him and is satisfied by it, everything exists. Gesticulation is with one’s hands or with one’s head. Mimic intimation [is accomplished] by the curving of the lips, as it says (Job 5:16): “[So there is hope for the wretched;] the mouth of wrongdoing is stopped.” But mimic intimation is not recognized as is gesticulation.

Introduction This mishnah has to do with transactions done by two categories of people considered to legally lack “da’at”, intelligence minors and deaf-mutes. As we see from this mishnah, the rabbis seem well aware that well deaf-mutes had great difficulties communicating, they nevertheless could make their wishes known.

במטלטלין – if he sold movables, and the Halakha is not according to Ben Beteira.

A deaf-mute can gesture and be gestured at [and thereby conduct transactions]. Ben Betera says that he may make lip-motions, if the transaction is of movable property. If a deaf-mute wishes to sell or purchase an object he may do so by gesturing or by being gestured at. People who can speak must verbalize their commands. Since this is impossible for a deaf-mute, gestures are sufficient. Ben Betera is more lenient and even allows even lip-motions, as long as the transaction is only with movable property, i.e. not land. To buy or sell land he would need to make a full gesture.

הפעוטות – minors at the age of seven or eight, if he is sharp/bright and knows the nature of business relationships, or if he the age of nine or ten and is not so sharp.

The purchase or sale done by young children in movable property is valid. Young children can sell or purchase movable property. The Talmud explains that this is a form of “tikkun olam”. If children could not sell or buy things they would not be able to earn their keep, and until modern times children had to work to help support their families (in good situations) or support themselves (in much worse situations).

מקחן מקח וממכרן ממכר במטלטלין – and their gifts are gifts, whether it is a gift of a healthy individual or the gift of someone on his death-bed, whether it is a large gift or a small gift.

כהן קורא ראשון – When they are equal in wisdom, but if the Israelite is greater in wisdom, he precedes the Kohen and the Levite (see Mishnah Horayot, Chapter 3, Mishnah 8) for a Sage who is illegitimate comes before a High Priest who is an ignoramus. The law is the law of the Gemara, but today it is the practice that the Kohen, even if he is an ignoramus, comes before a great Sage who is an Israelite.

Introduction This mishnah teaches rules that were made in order to keep peace between people. These “ways of peace” are a subcategory of “tikkun olam”. Whereas many of the other enactments made because of “tikkun olam” had a strong economic element, these rules are more concerned with interpersonal relations.

מפני דרכי שלום – that from the Torah, a Kohen can give permission to whomever he wishes that would read from the Torah before him, but for the sake of the social order, they said that he [i.e., the Kohen] should read first and not give permission to another to read [before him], so that it doesn’t come to wrangling. But if there is no Kohen there, the cord has been severed and a Levite should not read second, other than according to his importance. And there are those who say that the Levite should not [in this case where there is no Kohen] read (i.e., called up to) the Torah at all and this is the custom.

These were the rules they laid down because of the ways of peace:
A priest is called up first to read the Torah and after him a Levite and then an Israelite, because of the ways of peace. The custom of the Kohen receiving the first aliyah to the Torah and the Levite the second and only then the rest of the congregation was enacted because of the ways of peace. [Quite frankly, it seems that this hasn’t worked all that well and synagogue-goers will just find something else to argue about but that’s another story.]

מערבין בבית ישן – members of a courtyard who are accustomed to place their Eruv (contribute their share towards a dish which is deposited in one of the dwellings, by which act all the dwellings are considered as common to all – whereby the carrying of objects on Shabbat from one to another and across the court are permitted) in one [particular] house, should not change their place to place it in another house.

An “eruv” is placed in the room where it has always been placed, because of the ways of peace. An “eruv” is made by enclosing an area (done today with twine or something similar) and by putting a symbolically communal meal in one house in the area. This is a legal fiction to turn a large community into a “home” so that people can carry on Shabbat within this area. The mishnah teaches that this meal is put in the same house every week. If it were to move around from week to week people might argue where it should be put. Alternatively, people might not trust that the eruv was set properly because they didn’t know where it is. Therefore, it is left in the same house week after week.

מפני דרכי שלום – that people who are accustomed to see the Eruv in the same house, [and] now that they don’t see it, will say that they are carrying [on the Sabbath] without an Eruv, and there is suspicion.

The cistern which is nearest to the channel is filled first, because of the ways of peace. To irrigate cisterns channels were made from the river. The mishnah teaches that the first cistern on the channel is allowed to fill up first and the other cistern owners cannot tell the owner of the closest cistern that he should periodically close his up so that they can fill up first. Rather the cisterns are always filled up in the same order to avoid fights.

בור שהוא קרוב – to one who finds a canal that comes from the river.

[Taking of] beasts, birds and fishes from traps [set by others] is robbery, because of the ways of peace. Rabbi Yose says that it is actual robbery. The mishnah now begins with a list of three things the taking of which is not considered to be true robbery. Rather, taking these things is prohibited only because of the “ways of peace”. In each of these cases, Rabbi Yose holds that it is prohibited not because of the “ways of peace” but because taking them is truly robbery as defined by the Torah. The first case is taking animals from traps. Since these animals have not yet come into the physical possession of the trap-setters, taking from them is not technically robbery. However, it is still prohibited because of the “ways of peace.” Rabbi Yose holds that although they have not yet come into the physical possession of the trap-setters, the trap-setters have acquired them and therefore taking them is full “robbery.”

מתמלא ראשון – and afterwards the lower ones are filled.

[Taking away] anything found by a deaf-mute, an idiot or a minor is robbery, because of the ways of peace. Rabbi Yose says that it is actual robbery. According to the first opinion, a deaf-mute, imbecile or child do not legally acquire things that they find. Therefore, technically speaking when one takes something that they found away from them, he is not robbing them. However, for many obvious reasons, this is prohibited because of “the ways of peace.” Again, Rabbi Yose considers this to be full robbery.

מצודות חיה – that lack a receptacle where he acquires his utensils (?)

If a poor man strikes [down olives] on top of an olive tree, [taking the fruit] that is beneath him is robbery. Rabbi Yose says that it is actual robbery. There are three things that a poor person can take 1) the corners of the field; 2) things which the harvester forgot to take; 3) grain that fell out of the harvesters’ hands. In our mishnah a poor person is on top of an olive tree, beating the tree so that the olives fall below so that he can collect them. Technically, the olives which fall below are not his until he gathers them into his possession. Therefore, if someone else takes them before he gathers them he has not technically stolen them. However, because of “the ways of peace” it is forbidden. Again, Rabbi Yose holds that this is “full robbery.”

יש בהן משום גזל מפני דרכי שלום – and is not removed by the judges

Poor Gentiles are not prevented from gathering gleanings, forgotten sheaves, and the corners of the field, because of the ways of peace. The agricultural products left in the field are meant to be for poor Jews. However, in the interest of peace Jews are supposed to allow non-Jews to take them as well. I should note that this obviously is an important issue for modern Jews, both in the Diaspora and in Israel.

רבי יוסי אומר: גזל גמור – According to the Rabbis and is removed by judges. However, Rabbi Yosi admits that it is not theft according to the Torah, to transgress with a negative commandment. But the Halakha is not according to Rabbi Yosi.

המנקף – cut off/sever, like Isaiah 10:34: “The thickets of the forest shall be hacked away with iron…”

החשודה על השביעית – to guard/preserve the seventh year fruit and hide them from removal [of the fruit] (in the third and sixth years of the Sabbath period) and beyond.

Introduction The final mishnah of chapter five completes the examples of enactments made because “of the ways of peace.” This mishnah demonstrates that in the Second Temple period Jews of different levels religiosity lived in the same communities and shared their things with one another. While people who were more observant of certain ritual requirements had to be careful in certain areas, they did not cease living together.

לא תבור ולא תטחון עמה – to assist her, since it is forbidden to help with his hands those who sin while they are sinning.

A woman may lend to another woman who is suspected of not observing the sabbatical year a fan or a sieve or a handmill or a stove, but she should not sift or grind with her. It is forbidden to keep sabbatical year produce in one’s house after it no longer exists in the field. The woman suspected of not observing the sabbatical year may have such produce in her house. Nevertheless, another woman may still lend various vessels, even though those vessels will used to commit transgressions. However, the woman should not physically help her neighbor commit a transgression.

לאשת עם הארץ – who is suspect regarding tithing

The wife of a “haver” may lend to the wife of an “am ha-aretz” a fan or a sieve and may winnow and grind and sift with her, but once she has poured water over the flour she should not touch anything with her, because we do not assist those who commit a transgression. A “haver”, literally friend, or perhaps better translated as “member”, is one who is careful about purity laws and about tithing. An “am ha-aretz” an ignoramus is not careful about such laws. The wife of the “haver” may work with grain with the “am ha-aretz” even though the latter is impure. However, once the flour has become wet, it is now susceptible to impurity. At this point since we are discussing flour that belongs to an am haaretz, terumah and tithes have assumedly not been taken out of the flour. Therefore the am-ha-aretz will be rendering the terumah impure and this is forbidden. Since this is forbidden, the wife of the haver may not help her.

ובוררת וטוחנת – since most ignoramuses do tithe

All these rules were only said because of the ways of peace. The permissions granted in the first two sections were because of “the ways of peace.” Communities of people with varying degrees of religiosity need to learn to be able to live together.

אבל משתטיל המים – in the dough

Gentiles may be wished luck in the Sabbatical year but not Israelites and greeting may be given to them, because of the ways of peace. It is forbidden to work fields during the Sabbatical year. If Gentiles own a field in the land of Israel one may wish them luck in their endeavors, even though the field should not be worked. However, one shouldn’t wish luck to Jews who are engaging in a prohibited activity. One may also greet a Gentile in order to increase peace between Jews and Gentiles. It seems that there is an underlying fear in this section. If Jews do not wish Gentiles luck, or greet them properly, they may cause danger to the Jewish community. Alternatively, one could see a more positive message here. It is important for Jews and Gentiles to get along and therefore, to increase peace, Jews should wish them well.

לא תגע עמה – since when she rolls it, it becomes liable for setting aside Hallah (i.e., the piece of dough taken off, thrown into the oven and burned), and she becomes defiled through impure utensils , which had become susceptible to receive impurity; and she who helps her to roll [the dough] is forbidden to cause the Hallah to become impure.

וכולן לא אמרו כו' – they did not permit them to lend utensils and assist them outside of the time of the sin itself, other than because of the ways of peace.

ומחזיקין ידי גוים – to tell them that they should strengthen their hands

ושואלים בשלומם – all the days, even on the days of their holidays, and even though he places the name of heaven on the heathen [but nevertheless] peace is one of the names of the Holy One, blessed be He.