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Gitin 48

GITIN 48 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.



(a) In a second Machlokes, Rebbi Yochanan obligates the purchaser of a field during the time that the Yovel functioned to bring Bikurim and to read the Parshah, whereas Resh Lakish exempts him from reading the Parshah (following exactly the same reasoning as they did in the previous Machlokes, when the purchase was made at a time when the Yovel did not apply).

(b) They need to repeat the same Machlokes twice - because had they only argued ...

1. ... in the latter case - we would have thought that that is where Resh Lakish exempts him from reading, because knowing that Yovel does not allow a Kinyan ha'Guf on the field, the purchaser did not have in mind to buy more than the fruit, but in the former case, where he thinks that he has bought the field itself for ten years, perhaps he will agree with Rebbi Rebbi Yochanan.
2. ... in the former case - we would have thought that that is where Rebbi Yochanan obligates to read, because he thinks that he has purchased the field for ten years ... .
(c) Resh Lakish establish the Beraisa which ...
1. ... obligates someone who purchases a tree together with the ground in which it is growing to read the Parshah, despite the fact that the ground returns to the owner in the Yovel - at a time when the Yovel does not function.
2. ... exempts someone who purchases two trees in someone's field from reading the Parshah, implying that, had he purchased three he would have been obligated - at a time when the Yovel does not function.
(d) Rav Chisda - restricts the Machlokes between that Rebbi Yochanan and Resh Lakish to Yovel Sheini, when people had already become used to returning purchased fields in the Yovel, but during the first Yovel, when people who purchased fields believed they were buying the actual land, even Resh Lakish will agree that the purchaser would read the Parshah. In that case, the above Resh Lakish will establish the above Beraisos by Yovel Rishon.
(a) If someone declares a field Hekdesh, and the treasurer of Hekdesh then sold it to someone else, assuming that it was ...
1. ... a field of inheritance that was declared Hekdesh by the original owner - the field goes to the Kohanim in the Yovel.
2. ... a bought field that was declared Hekdesh by the purchaser - it reverts to the original owner.
(b) Rebbi Yehudah and Rebbi Shimon say in a Beraisa that a field which a son bought from his father and declared Hekdesh still in their father's lifetime, but failed to redeem - has the Din of a Sadeh Achuzah and goes to the Kohanim in the Yovel.

(c) They extrapolate this from the Pasuk "Im es S'dei Miknaso *Asher Lo mi'S'dei Achuzaso* ... bi'Sh'nas ha'Yovel Yashuv ha'Sadeh" (which is otherwise superfluous) - that it only reverts to the owner (or to his heirs, if the purchasser was not eligible to inherit it, but not if he was).

(a) Rebbi Meir in the same Beraisa derives from the same superfluous Pasuk that if the son declared the field Hekdesh after his father's death - it has the Din of a Sadeh Achuzah and goes to the Kohanim in the Yovel.

(b) In the case of Rebbi Yehudah and Rebbi Shimon (when the son declared the field Hekdesh during the father's life-time), Rebbi Meir hold - that rmains a Sadeh Mikneh and returns to the son in the Yovel.

(c) We initially think that Rebbi Yehudah and Rebbi Shimon argue with Rebbi Meir - because in their opinion, the case where the father died before the son declared the field Hekdesh does not require a Pasuk (to teach us that it has the Din of Sadeh Achuzah).

(d) The basis of their Machlokes will therefore be the following - Rebbi Meir maintains that the case where the father died before the son declared the field Hekdesh requires a Pasuk (to teach us that it has the Din of Sadeh Achuzah), because he holds 'Kinyan Peiros ke'Kinyan ha'Guf', in which case, when the father dies, the son has not inherited anything, and without the Pasuk, it would not be called a Sadeh Achuzah. Whereas, Rebbi Yehudah and Rebbi Shimon hold 'Kinyan Peiros La'av ke'Kinyan ha'Guf', and once the father dies, it is obvious that the field is a Sadeh Achuzah (in which case, no Pasuk is necessary).

4) We refute this explanation however, on the grounds that even Rebbi Yehudah and Rebbi Shimon agree that 'Kinyan Peiros ke'Kinyan ha'Guf Dami'. In that case, they need the Pasuk to teach us Rebbi Meir's case (when the son sold the field after his father's death). They nevertheless extrapolate from "Im mi'S'dei Miknaso Asher Lo S'dei Achuzaso Hu" that the Torah is also coming to preclude a case where the son sold the field in his father's life-time. Otherwise, the Torah should have "Im S'dei Miknaso". From the extra 'Mem' in "mi'S'dei Achuzaso" they extrapolate that it is only a field that is not even eligible to be a Sadeh Achuzah that reverts to the owner in theYovel, but not one that is.


(a) Rav Asi said in Rebbi Yochanan's name that brothers who divided their father's inheritance - are considered purchasers (because he holds 'Ein Bereirah'), and when Yovel arrives, they must return their respective portions to the kitty for redistribution.

(b) The problem that Rebbi Yochanan would now have if he did not hold 'Kinyan Peiros ke'Kinyan ha'Guf' is - that, according to the previous statement, it would mean that only a single son, who is in turn, the child of a single son (going back to Yehoshua bin Hun), who would be obligated to bring Bikurim and read the Parshah.

(c) Rava proves from ...

1. ... the Pasuk "be'Mispar Sh'nei Tevu'os Yimkor Lach" - that in the time when the Yovel applied, someone who purchased a field, only purchased a Kinyan Peiros (like Resh Lakish), and not a Kinyan ha'Guf
2. ... the Beraisa 'Bechor Notel Pi Shenayim be'Sadeh ha'Chozeres le'Aviv ba'Yovel' - that a field that the owner sells in the time of the Yovel, does not leave his possession, because 'Kinyan Peiros La'av ke'Kinyan ha'Guf Dami', because otherwise, a Bechor, who only receives double of possessions that are actually in the domain of his father (not of what is owed to him), would not receive double.
(d) The Beraisa must speak when the father had already died and -the field is returned to the brothers. Otherwise, it would be obvious that the Bechor inherits a double portion of what was returned to his father.
(a) When Abaye says 'Ba'al be'Nechsei Ishto Tzarich Harsha'ah', he means - that if someone claims a field of Nechsei mi'Lug from him, he will be accepted as a litigant (whom the claimant cannot veto) if his wife gives him the power of attorney to counter claim on her behalf.

(b) That will not however, be necessary - if the claimant claims Peiros (which belong intrinsically to him). In that case, we will apply a 'Migu', and say that the authority that he has to counter the claimant's claims on the Peiros will extend to the field itself.

***** Hadran Alach 'ha'Shole'ach' *****



***** Perek ha'Nizakin *****


(a) One may claim damages from the damager's Idis (best-quality fields). One pays ...
1. ... a creditor - from Beinonis (average-quality fields).
2. ... a woman's Kesuvah - from Ziburis (inferior-quality fields).
(b) One may only claim from Meshubadim (from the purchaser) as long as there are no B'nei-Chorin still with the debtor. In fact - the Nizak may not claim from Meshubadim even if they are Idis and the B'nei-Chorin that remain are Ziburis.

(c) One may only claim Ziburis - from Yesomim (even damages).

(a) What the following have in common as regards claiming is - that one cannot claim from Meshabadim (even with a Sh'tar): 'Achilas Peiros, Sh'vach Karka'os and Mazon ha'Ishah ve'ha'Banos'.

(b) The case of ...

1. ... 'Achilas Peiros' is - if someone purchases a field from a thief (with a Sh'tar), and after the annual crop has grown, the real owner reclaims his field together with the crops, and one now claims compensation from the thief.
2. ... 'Sh'vach Karka'os' is - if after purchasing this field, he invests in it and improves it. He may claim payment for both the fruit and the improvement only from the thief's B'nei-Chorin, even though he may claim compensation for the field itself from Meshubadim.
(a) The Torah obligates a damager to pay - from Idis, as the Pasuk in Mishpatim writes "Meitav Sadeihu u'Meitav Karmo Yeshalem".

(b) To reconcile this with our Mishnah which gives the source as 'Tikun ha'Olam', we establish the author as Rebbi Yishmael - who says that the Torah is referring to the Idis of the Nizak (the claimant), whereas the Takanas Chachamim is that the Mazik must pay from his own Idis (this will be explained shortly).

(c) The reason for the Tikun ha'Olam is - to make people guard their animals more carefully (because as much as a person does want to have to pay damages, he is even more reluctant to give away his *best* fields).

(d) Rebbi Akiva disagrees with Rebbi Yishmael. According to him - "Meitav Sadeihu ... " is referring to the best of the Mazik's fields, and there is neither need (nor room) for a Takanas Chachamim.

10) The Tana adds that someone who finds something does not need to make a Shevu'ah, because of Tikun ha'Olam. He would need to make a Shevu'ah - if the owner claimed that he had only returned part of what he found (due to the principle 'Modeh be'Miktzas ha'Ta'anah, Yishava').


(a) The problem that we at first have with Rebbi Yishmael, who says that the damager pays from the best of his fields is - if the damager damaged Ziburis, why should he pay for Idis (which is how we initially interpret Rebbi Yishmael's)?

(b) Rav Idi bar Avin explains Rebbi Yishmael to mean that if the man's animal ate a row among rows of varying quality crops, and we do not know which quality it ate, we make him pay the best. Rava refutes this explanation however, on the grounds - that if there is a Safek as to how much one person owes another, we apply the principle 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' (and he pays the least amount).

(c) Rav Acha bar Ya'akov ultimately explains Rebbi Yishmael to mean - that assuming the Mazik's Ziburis to be equivalent to the Nizak's Idis, min ha'Torah it would suffice for the Mazik to pay with his own Ziburis. After the Takanas Chachamim however, he is obligated to pay with his own Idis.

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