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Kollel Iyun Hadaf, Jerusalem

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Gitin 49

GITIN 49 & 50 - Sponsored by Rabbi Dr. Eli Turkel and his wife, Jeri Turkel. May Hashem bless them with many years of Simcha, health and fulfillment, and may they see all of their children and grandchildren follow them in the ways of Torah and Yir'as Shamayim!



(a) Bearing in mind that the Torah writes (with regard to payment of damages) "Meitav "Sadeihu*", Rebbi Yishmael learns from the Pasuk "u'Bi'er *bi'S'dei* Acher" a 'Gezeirah-Shavah' ("Sadeh" "Sadeh") that the Mazik pays according to the Meitav of the Nizak's fields.

(b) Rebbi Akiva learns that the Mazik is obligated to pay from his own Meitav - from the Pasuk "Meitav Sadeihu" itself, which implies his own Meitav (and not the Nizak's).

(c) Rebbi Yishmael, it seems, agrees with Rebbi Akiva's basic contention that the Pasuk implies the Idis of the Mazik - and he will apply it in a case where the Mazik's Ziburis is inferior to the Nizak's Idis, and his Idis is superior to it.

(a) Rebbi Akiva adds 'Kal va'Chomer le'Hekdesh'. He cannot be referring to a case where ...
1. ... someone's ox gored an ox belonging to Hekdesh - because of the D'rashah "Shor Re'eihu", 've'Lo Shor shel Hekdesh' (which exempts a Hedyot from paying altogether when he damages Hekdesh).
2. ... someone undertook to pay a Manah to Hekdesh - because it is not logical that Hekdesh should have an advantage over a Hedyot, who can only claim his debts from Beinonis. The S'vara for this will become apparent immediately.
(b) Even if Rebbi Akiva were to hold that a creditor always takes Idis - that would only be because he also claims damages from Idis, but not Hekdesh, who cannot claim damages at all.

(c) We conclude that Rebbi Akiva holds like Rebbi Shimon ben Menasya, who says that ...

1. ... an ox of Hekdesh damaging an ox belonging to a Hedyot - is Patur.
2. ... an ox of a Hedyot damaging an ox belonging to Hekdesh - pays full damage.
(d) Rebbi Shimon ben Menasya Darshens "Re'eihu" (from which the Chachamim exempt payment of damages to Hekdesh) - that one only pays half damages for a Shor Tam that gored the ox of a Hedyot, but if a Shor Tam belonging to a Hedyot gores an ox of Hekdesh, he pays full damage.
(a) Based on this explanation of Rebbi Akiva, we suggest - that Rebbi Akiva and Rebbi Yishmael argue over the D'rashah of "Re'eihu"; Rebbi Akiva will explain it like Rebbi Shimon ben Menasya, and Rebbi Yishmael, like the Rabbanan.

(b) We refute this contention however, on three scores. Firstly, because of the Lashon used by Rebbi Akiva 'Lo Ba ha'Kasuv Ela Ligvos li'Nezikin min ha'Idis' (implying that the Machlokes concerns a Hedyot and not Hekdesh). Secondly, on the grounds that 've'Od, Mai Kal va'Chomer' le'Hekdesh - suggesting that Rebbi Akiva is coming to be strict with Hekdesh (which logically, is stronger than than Hedyot, and not vice-versa), and, according to the current proposition, Rebbi Akiva is being lenient by Hedyot (like Rebbi Yishmael), and 'Kal va'Chomer le'Hekdesh' is meaningless.

(c) The third problem with this contention is based on a Beraisa cited by Rav Ashi - which specifically establishes the Machlokes by whether the Mazik pays the Idis of the Mazik or the Idis of the Nizak.




(a) Ravina establishes our Mishnah like Rebbi Akiva, who maintains that the Mazik pays with his own Idis min ha'Torah. To explain why the Tana then ascribes it to 'Tikun ha'Olam', he establishes the author as Rebbi Shimon - who Darshens the Torah's reasons. Consequently, the Tikun ha'Olam is not a de'Rabbanan at all, but the reason for the d'Oraysa.

(b) According to Rebbi Shimon, the Torah obligates ...

1. ... a Mazik to pay from Idis - to discourage people from stealing (because a thief is also considered a Mazik, though presumably, he means to incorporate all damages (i.e. to discourage them from causing damage to others'property, as we explained earlier).
2. ... a creditor to claim from Beinonis (and not from Idis) - to prevent people from making their money available for loans, purely because they have set their eyes on the high-quality lands of potential borrowers, which they then expect to claim in lieu of their debt.
(c) The Torah not obligate him to claim from Ziburis - in order not to close the door on borrowers, who would be unable to obtain loans, since no-one would lend them money on such terms.

(d) A woman claims her Kesuvah from Ziburis, and not from Beinonis - because, due to the principle that a woman wants to get married more than a man does, the reason that other creditors receive Beinonis and not Ziburis is not applicable to her (because she will get married come what may).

(a) It is Rebbi Yehudah who holds that a woman claims her Kesuvah from Ziburis. According to Rebbi Meir - she claims from Beinonis, like every other creditor.

(b) When the Tana added 'Davar Acher, Ishah Yotz'ah li'Retzonah ve'she'Lo li'Retzonah, ve'ha'Ish Eino Motzi Ela li'Retzono' - he had the problem why Chazal did not institute a Kesuvah for the man, in cases where the woman left her husband.

(c) They resolve the problem - by pointing out that it is never the woman who does the divorcing, but the man. Because as far as he is concerned, he could leave her without a Get.

(a) Mar Zutra Brei de'Rav Nachman qualifies the Din of 'Kesuvas Ishah be'Ziburis' to where she claims from the Yesomim - but should she claim from her husband, she will receive Beinonis.

(b) We reconcile this with the Halachah cited in our Mishnah that whoever claims from Yesomim may only claim Ziburis. Nevertheless, the Tana finds it necessary to mention the Din by Kesuvas Ishah - who, we would have thought, may claim from Beinonis because of 'Chi'na' (to encourage the women to [look favorably at the men and] get married).

(c) We learned earlier the Beraisa where, according to Rebbi Meir, a woman may claim her Kesubah from Beinonis. Rava assumes that Rebbi Meir is referring to the woman claiming from her husband personally - because of the principle that one cannot claim anything but Ziburis from the Yesomim.

(d) He therefore extrapolates that the Rabbanan, who tie her down to Ziburis, must also be speaking about claiming from him. We reconcile Mar Zutra with this Beraisa - in the same as we just reconciled him with our Mishnah, by establishing it by the Yesomim, and Kesuvas Ishah is different because of Chi'na.

(a) Abaye extrapolate from our Mishnah 'ha'Nizakin Shamin Lahen be'Idis, u'Ba'al-Chov be'Beinonis, u'Kesuvas Ishah be'Ziburis' - that the Tana must be referring to someone who is claiming from the debtor himself. Otherwise, they would all be restricted to Ziburis.

(b) Rav Acha bar Ya'akov establishes the Mishnah when a father became a guarantor for his son ... - and then, the son died, leaving his father to pay all three creditors. The Nizak and the creditor, whose claims were already payable during the lifetime of the son, receives their respective due (even after the debtor's demise); whereas the Kesuvas Ishah, which only became payable after the husband's death, receives only Ziburis, seeing as that is what the wife would receive, if she were to claim from the Yesomim.

(a) It is only an ordinary guarantor of a Kesuvah who is not obligated to pay. The reason that the father has to pay at all in this case is - because we are speaking about an Areiv Kablan (whose daughter-in-law handed him the money which she had received from her husband to strengthen his Arvus, and he handed the money back to his son [see Tosfos and Maharam Shif]).

(b) According to one opinion, an Areiv Kablan obligates himself even if the debtor has no property at the time of the loan. Others disagree with him - because if that were so, the Areiv would not obligate himself with a full heart.

(c) The problem in our case is - that if the son would have had property at the time when the payment fell due, then the Areiv would not be obligated to pay (seeing as one cannot claim from the Areiv as long as the debtor is able to pay).

(d) We reconcile Rav Acha bar Ya'akov with this opinion by establishing the case when the son had fields at the time of the loan, but which subsequently became flooded. Alternatively - it makes no difference whether the son had property at the time of the loan or not - because even though a stranger does not obligate himself unless the debtor has property, a father will do so for his son.

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