THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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GITIN 29 & 30 - have been anonymously dedicated by a very special Marbitz
Torah and student of the Daf from Ramat Beit Shemesh, Israel.
1) AN INVOLUNTARY FULFILLMENT OF A CONDITION
QUESTION: The Gemara discusses situations in which a man gives a Get to his
wife and states that it should take effect only if a certain condition is
fulfilled. The husband then fulfills that condition involuntarily, without
intention to fulfill it.
The Gemara first mentions a case where a man gave a Get to his wife, stating
that it should take effect only if he does not return within thirty days. At
the end of thirty days, he tried to return but was stranded on the other
side of the river because the river ferry did not arrive. He yelled from
across the river that he was returning. Shmuel rules that the Get takes
effect because the husband indeed did not return within thirty days and thus
the condition was fulfilled. Even though his lack of return, and the
fulfillment of the condition, happened involuntarily, against his will,
there is a principle that "Ein Ones b'Gitin" (at least in a case where it is
common for a person to be detained in such a manner; see Rashi).
The Gemara relates another incident involving a man and wife who became
engaged in a quarrel. The man gave a Get to his wife, stating that it take
effect only on condition that he does not appease her within thirty days. He
tried to make peace with her, but she was unwilling to be appeased. The
Gemara says that if we rule "Ein Ones b'Gitin," then the Get takes effect
because the condition (of not appeasing his wife) was fulfilled, albeit
involuntarily. Although it was not his fault that he was unable to fulfill
the condition, the Get nevertheless takes effect because "Ein Ones b'Gitin."
When RASHI discusses the second case, Rashi writes that the husband gave the
Get on the condition that if he does not appease his wife within thirty
days, it should take effect *retroactively*, from the time that he gave it
to her. How does Rashi know that the husband stipulated that the Get should
take effect *retroactively* if the condition is fulfilled? Perhaps the
husband meant only that it should take effect after the thirty days have
passed! Furthermore, even if Rashi has some source that proves that the
husband intended that the Get take effect retroactively, then why does Rashi
not explain the same way in the first case of the Gemara? In the case of a
husband who gives a Get to his wife, stating that it should take effect only
if he does not return within thirty days, Rashi should have explained there,
too, that the Get would take effect retroactively if the husband does not
return within thirty days! (MAHARAM SHIF)
ANSWER: The Gemara later (34a) asks an obvious question on the case of the
person who could not cross the river to return to his wife within thirty
days. The Gemara asks why does the Get take effect against his will because
of "Ein Ones b'Gitin?" Why do we not allow the husband to annul the Get by
saying that "the Get is hereby annulled?" Since the husband clearly does not
want the Get to take effect (since he is yelling that he has returned), and
since the Get has not yet taken effect, it should be within the ability of
the husband to still annul the Get so that it cannot take effect!
The Gemara there answers that if the husband would say explicitly that he
annuls the Get, then indeed it would be annulled. In this case, the husband
was trying to make the Get ineffective by claiming that he did not fulfill
the condition (of not returning within thirty days). He was mistaken in that
regard, and he has no claim to invalidate the Get for that reason.
However, the same question might be asked in the Second case that the Gemara
cites. In the case where the husband was not able to appease his wife, why
does the Gemara rule that the Get takes effect? The Beis Din should have
simply told the husband to go and annul the Get as soon as he sees that he
is not able to appease his wife! In that case, we do not see that the
husband is trying to claim that the Get should not be valid only because he
did not fulfill the condition!
Rashi therefore explains that this Get, in the second case, was written to
take effect retroactively. Therefore, the husband does not have the ability
to annul it, since, when it takes effect, it takes effect from the time that
he gave it (long before his attempt to annul it)!
2) COLLECTING A DEBT FROM A POOR PERSON BY KEEPING THE "MA'ASER ANI"
QUESTION: The Beraisa records a Machlokes regarding a person who is
collecting the Ma'aser Ani that he separated from his produce as the payment
for a loan that he made to a poor person in front of Beis Din. The Tana Kama
says that he must separate Ma'aser from his produce "b'Chezkas Aniyei
Yisrael (Jewish poor people)" (and then he may take it for himself). Rav
Achi argues and says that he must separate it "b'Chezkas Aniyei Olam (the
poor people of the world)." The Gemara says that the practical difference
between the two opinions is whether one may separate the Ma'aser for Aniyei
Kusim, or whether he must separate it only for Jewish Aniyim.
3) MA'ASER OF A LEVI IN THE HANDS OF A YISRAEL
RASHI explains that according to the Tana Kama, if there are no poor Jews in
the city but only poor Kusim, one may not separate the Ma'aser Ani for the
Kusim, since they are not considered Jews and they do not deserve Ma'aser
Ani. Rather, he separates for the Jewish poor wherever they might be.
TOSFOS (DH Ika Beinaihu) disagrees with Rashi. He asks what practical
difference is the Gemara expressing according to Rashi? According to Rashi,
even if there are only Kusim in the city, the Ma'aser Ani will be fit for
poor Jews elsewhere in the world, and thus even the Tana Kama agrees that
the owner could separate and collect his loan from Ma'aser Ani in a place
where there are only poor Kusim and no poor Jews.
On a more basic level we could express Tosfos' question as follows.
According to Rashi, why does the person need to separate Ma'aser Ani for the
sake of ("b'Chezkas") *any* Aniyim altogether? The Beraisa cannot mean that
*every* time a person separates Ma'aser Ani, he must separate it "b'Chezkas
Aniyei Yisrael" according to the Tana Kama, because then the Beraisa would
not have taught this requirement with regard to the specific case of a loan
that is being repaid; it should have taught this requirement with regard to
all cases of separating Ma'aser Ani! Accordingly, even when a person is
collecting a loan from Ma'aser Ani, he should simply separate Ma'aser Ani
and it will automatically become the property of Aniyim, and then he can
collect it as payment for his loan because of the Takanah of Beis Din (see
Rashi DH 30a DH Eino Tzarich).
ANSWER: The Takanah of Beis Din, as Rashi explains, makes it as if all of
the Aniyim in the world are responsible for the loan of each Ani, since it
is in their best interest that people be interested in loaning them money
with the knowledge that they can collect the loan from Ma'aser Ani.
Therefore, the lender has the right to collect his loan from the collective
money of the Aniyim, even though he did not lend money to them collectively.
However, there is another factor involved when one collects Ma'aser Ani for
a loan before actually giving the Ma'aser Ani to an Ani, as Rashi (30a DH
v'Af Al Gav) explains. Besides the monetary issue, there is a Halachic
issue: the Torah requires that a person do an act of "Nesinah" and *give*
Terumah to a Kohen and Ma'aser Ani to an Ani. If he keeps the Ma'aser Ani
for himself as the repayment of his loan, he has not fulfilled the act of
giving it to an Ani (even if he is entitled to keep it for himself).
In the case of a landowner who lent money to an Ani outside of Beis Din,
when the owner is Mezakeh to the Ani the Ma'aser Ani by way of a third party
("Mezakeh Al Yidei Acher"), "Makarei Kehunah," or through "Asah she'Einah
Zocheh k'Zocheh," then he not only gains monetary rights to collect his debt
from Ma'aser Ani, he also fulfills the Mitzvah of Nesinah, since the Ani
acquired the rights to the Ma'aser Ani before the owner claimed it as
payment for his loan. However, in a case where the owner collects for
himself the Ma'aser Ani for a loan that was made in front of Beis Din, the
Gemara does not specify that the owner must be Mezakeh the rights to receive
the Ma'aser Ani to any particular person before he retains it as payment for
the loan. How, then, will he fulfill the Mitzvah of Nesinah?
For this reason, Rashi explains that when the Beraisa states that he must
separate the Ma'aser Ani "b'Chezkas Aniyim" (or separate Terumah "b'Chezkas
Shevet Levi"), it means that he must indeed be Mezakeh the Ma'aser Ani to
Aniyim before he collects it for his loan, even though the loan was made in
front of Beis Din. When Rashi writes that the owner separates the Ma'aser
for the needs of the Aniyim of the city, he means that the owner must be
Mezakeh to them "Al Yidei Acher," or they must be "Makarei Kehunah," or that
he must chose them to be the ones who are "she'Eino Zocheh k'Zocheh."
Support for this can be found in Rashi earlier (30a, DH Oso ha'Shevet),
where he explains that when a person lends money to a Kohen or Levi in front
of Beis Din, and the borrower dies, the lender separates Terumah or Ma'aser
for the closest Kohen or Levi relative of the borrower. He does not simply
collect from the Terumah or Ma'aser without first specifying to whom the
Terumah or Ma'aser belongs.
This also answers the question of Tosfos, that according to Rashi, the
practical difference between the Tana Kama and Rebbi Achi occurs where a
person separates Ma'aser Ani for Aniyim who are Kusim. According to the Tana
Kama, he has not collected properly from the Ma'aser Ani. Tosfos, however,
maintains that when one loans to an Ani in front of Beis Din, he is not
required to be Mezakeh the Ma'aser to the Ani before collecting his loan
from it; the Rabanan exempted him even from the Mitzvah of Nesinah. (PNEI
We may ask, though, that according to this explanation, why does Rashi not
explain explicitly that the practical difference between the Tana Kama and
Rav Achi is that according to the Tana Kama, if one separates Ma'aser for
Aniyei Kusim, he may *not* collect the loan from the Ma'aser Ani? Why does
Rashi write that the practical difference is that when there are no Kusim in
the city, he must separate Ma'aser Ani for outsiders, instead of for local
The answer might be that even when a person separates Ma'aser Ani for a
Kusi, the Kusi does not become the owner of the Ma'aser Ani, since a Kusi
has no rights to receive (and own) Ma'aser Ani (according to the Tana Kama
who holds "Gerei Arayos Hem"). It cannot become the property of the Kusi
through Makarim, or through "Asu she'Eino Zocheh k'Zocheh," or even through
"Mezakeh Al Yedei Acher" (since the Torah prohibits giving Ma'aser Ani to
Kusi who is an Ani). The Ma'aser Ani still belongs to the Aniyim of Yisrael,
and therefore the owner *may* collect from it, in accordance with the
Takanas Chachamim. The only thing he has done wrong is that he has forfeited
the Mitzvah of Nesinah, since he did not give the Ma'aser Ani to an Ani
before he collected from it. This is why Rashi explains that the practical
difference between the Tana Kama and Rebbi Achi only involves how to
separate the Ma'aser Ani *l'Chatchilah* before collecting from it.
QUESTION: The Beraisa teaches that if a Yisrael tells a Levi that he is
holding Ma'aser on behalf of the Levi and he wishes to purchase it from the
Levi, and he pays the Levi for it, the Yisrael may use the Ma'aser for his
own personal use; he does not have to be concerned that the Levi made it
into Terumas Ma'aser (after the sale) and that it is Kadosh and may only be
eaten by Kohanim.
However, if the Yisrael tells the Levi how much Ma'aser he is holding for
him, and then he purchases it, he may not eat the Ma'aser. He must take into
account the possibility that the Levi made it Terumas Ma'aser. RASHI
explains that the concern is that the Levi made it into Terumas Ma'aser
after the sale.
How can the Levi make the produce into Terumas Ma'aser after he sells it?
After he sells it, he no longer has any rights over it! Rashi explains that
the sale was not binding, since the Yisrael cannot acquire it from the Levi
before the Levi himself acquires it through Meshichah or some other formal
act of Kinyan. However, this seems self-contradictory. If the Levi did not
yet formally acquire the Ma'aser, then just as he cannot sell it to the
Yisrael, he also cannot make it into Terumas Ma'aser!
ANSWER: The RAMBAN explains, in the name of the Yerushalmi, that when the
Yisrael tells the Levi that he is holding Ma'aser on behalf of the Levi, it
is as if he gave the Levi permission to use that Ma'aser for separating
Terumas Ma'aser. The RASHBA adds that since when one promises to give his
friend a small gift (Matanah Mu'etes) he may not retract it (Bava Metzia
49a), from the moment that a Yisrael says that he is going to give the Tovas
Hana'ah to the Levi (i.e. he is going to use his right of Tovas Hana'ah to
give the Ma'aser to this specific Levi), from that moment on it is as if he
gave permission to the Levi to separate Terumas Ma'aser, since we can assume
that the Levi will eventually receive this Ma'aser (as Rashi there writes in
DH Mishum Hachi).
The Acharonim ask, though, that aside from the issue of ownership of Ma'aser
(i.e. the Ma'aser must be given to Levi'im because it is the property of
Shevet Levi), there is also a Mitzvah d'Oraisa for a Yisrael to *give*
(Nesinah) the Ma'aser to a specific Levi (as we have seen in the previous
Insight). When the Yisrael simply promises to give the Levi this Ma'aser,
but he has not yet given it, how has he fulfilled the Mitzvah of Nesinah? If
the Levi separates Terumas Ma'aser, he is simply taking advantage of the
owner's permission to separate Terumah Ma'aser from what still belongs to
the owner! The Levi himself has not yet received the Ma'aser!
1. The BI'UR on the MAHARAM SHIF suggests that, indeed, the Yisrael will not
fulfill the Mitzvah of Nesinah in this situation.
2. The HE'OROS B'MASECHES GITIN suggests that as long as the Levi has rights
to use the Ma'aser, it suffices to be considered a Nesinah. The Levi does
not have to actually own the Ma'aser. (Following this logic, when a person
retains Ma'aser as payment for a loan made to a Levi, he should also have
fulfilled the Mitzvah of Nesinah, since the Levi benefits from it by paying
off his debt with that Ma'aser. However, this is not consistent with what we
explained in the previous Insight regarding a person who lends money to an
Ani in front of Beis Din.)
3. Perhaps the question is not a question in the first place. The Yisrael,
who now has Terumas Ma'aser in his possession, can *still* give the Ma'aser
to the Levi even after the Levi has made it into Terumas Ma'aser (and allow
the Levi to give it then to the Kohen of his choice) and thereby fulfill the
Mitzvah of Nesinah. (M. Kornfeld -- he might even fulfill the Mitzvah of
Nesinah by giving it *directly* to a Kohen at the Levi's request, through
the mechanics of "Arev," see Kidushin 7a.)