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Gitin 50

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) Everyone agrees that the regular Areiv of a Kesuvah is not obligated to pay - and they also agree that an Areiv Kablan of a debt *is*.

(b) The dual basis of this distinction - lies in the fact that whereas in the former case, a. the Areiv is an ordinary Areiv and b. the woman did not obligate herself anything (in the way that a creditor lends money on the word of the Areiv).

(c) Amora'im argue by a S'tam Areiv of a debt or an Areiv Kablan of a Kesuvah whether, or not, he obligates himself - even when the debtor does not own any property (but when he does, they both agree that he obligates himself).

(d) We rule that in all cases, the Areiv is obligated to pay except for the Areiv of a Kesuvah (who is not an Areiv Kablan), who is not obligated (even if the husband has property) - because a. he merely sets out to perform a Mitzvah and b. the woman does not part with any money on account of him.

(a) Ravina asks one last Kashya on Mar Zutra who restricted the Din of 'Kesuvas Ishah be'Ziburis' to when she claimed from the Yesomim. The Beraisa attributes the Takanah confining a woman's claim to Ziburis to the fact - that a woman wants to get married more than a man does; whereas according to Mar Zutra, the Tana should rather have attributed it to the fact that one can only claim Ziburis from Yesomim.

(b) We have no answer to this Kashya, and remain with 'Teiku'.

(a) Mar Zutra Brei de'Rav Nachman quoting his father rules that someone who produces a Sh'tar Chov against Yesomim on the condition that the creditor can claim Idis - may claim only Ziburis.

(b) The father of the Yesomim wrote the Sh'tar.

(c) Abaye attempts to prove this from the Din of a Ba'al-Chov - who claims Beinonis from the debtor; yet from the Yesomim, he may only claim Ziburis. In our case too, he says, the creditor, who would have claimed Idis from the debtor, may claim only Ziburis from the Yesomim.

(a) Ula learns from the Pasuk "be'Chutz Ta'amod, ve'ha'Ish Asher Atah Nosheh Bo Yavi Eilecha ... " - that min'ha'Torah, a Ba'al-Chov may claim only Ziburis (since when it is left to the debtor, as it is in the Pasuk, it is obvious that that is what he will pay the creditor with?

(b) Chazal extended his claim to Beinonis - so as not to close the door on future loans (as we explained earlier).

(c) These facts refute Abaye's proof - because when Chazal instituted that a Ba'al-Chov can only claim from the Yesomim's Ziburis, they were in fact, reverting to the Torah-law; whereas in Mar Zutra's case, where the borrower spefically obligated himself to pay Idis, by nevertheless restricting the creditor to Zuburis, one is changing Torah-law entirely.

(d) Rava refers to Mar Zutra's case as Torah-law - because (with regard to Yehudah guaranteeing to bring back Binyamin) the Torah writes in Mikeitz "Anochi E'ervenu", which teaches us that whatever a person obligates himself to do, he must fulfill.

(a) Rava, who maintains that one only claims from the Ziburis of Yesomim in cases which min ha'Torah, everyone claims from Ziburis, establishes the Beraisa cited by Avram Chuza'ah, that even Nizakin may only claim from the Ziburis of the Yesomim - when the Idis of the Nizak is equivalent to the Ziburis of the Mazik, and the author is Rebbi Yishmael. Because in that case, min ha'Torah, the Mazik may pay his own Ziburis, and the obligation to pay his own Idis is only mi'de'Rabbanan.

(b) We initially explain the Beraisa cited by Rebbi Eliezer Nivsa'ah 'Ein Nifra'in mi'Nechsei Yesomim Ela min ha'Ziburis, va'Afilu Hein Idis' - to mean that he wrote Idis in the Sh'tar, and as we saw earlier, Rava maintains that in such a case, one could claim even from the Idis of the Yesomim (clashing with the ruling of the Tana).

(c) Rava however, establishes the Beraisa by 'Shapa'i Idis' - when the very best quality fields referred to in the Sh'tar (Idei Idis) subsequently became unavailable (because they were taken by land-robbers), in which case the Din of the claimant switches (min ha'Torah) to Ziburis and only mi'de'Rabbanan, to Beinonis (see Tosfos DH 'Mai Idis').

(d) Rava said ...

1. ... Hizik Ziburis - Govah min ha'Idis.
2. ... Hizik Shapa'i Idis - Govah min ha'Beinonis.
(a) Rav Achdevu'i bar Ami asks whether the restriction of claiming from Yesomim to Ziburis applies only to Yesomim Ketanim, or whether it extends to Gedolim as well. If it (reverting to Torah-law by Yesomim) is merely a Takanas Chachamim, it will only apply to Ketanim, basically because Gedolim can look after themselves. The other Tzad of the She'eilah is - that it is automatically the correct thing to do, since 'Ne'ilas De'les' (the reason that the Chachamim authorized creditors to claim from Beinonis), does not apply to Yesomim, because when issuing a loan, a creditor does not take into account the possibility that the debtor might die (and consequently, decline to lend him money because the Yesomim will restrict his claim to Ziburis). Consequently, there would be no reason to distinguish between Yesomim Ketanim and Yesomim Gedolim.

(b) We cannot resolve Rav Achdevu'i bar Ami's She'eilah from the Beraisa cited by Abaye Keshisha 'Yesomim she'Amru Gedolim, ve'Ein Tzarich Lomar Ketanim' - because the Tana might be referring to the Din 'ha'Ba Lipara mi'Nechsei Yesomim, Lo Yipara Ela bi'Shevu'ah' (and not to that of 'Ein Nifra'in mi'Nechsei Yesomim Ela mi'Ziburis').

(c) We conclude however - that there is no difference between Yesomim Gedolim and Yesomim Ketanim in either issue.



7) Rav Achdevu'i bar Ami asked whether the restriction of claiming from Meshuba'dim when there are B'nei Chorin available extends to a gift. It might not apply there, because the beneficiary of the gift does not lose anything (and the purpose of the Takanah is to safeguard the purchaser, who paid for the fields) - but on the other hand, it might, because to receive such a precious gift, the beneficiary must have done the donor a favor of some sort.


(a) The Tana of the Beraisa says that if a Shechiv-Mera left instructions to give two hundred Zuz to Reuven, three hundred, to Shimon and four hundred, to Levi and the donor's creditor produced a Sh'tar that the donor owed him a Manah - they would have to pay in direct proportion to what they received (two ninths, three ninths and four ninths respectively).

(b) They would be obligated to pay according to the order they received their gift (i.e. the last one first, the second last, second ... .) - if the donor specifically stated 'first to Reuven, then to Shimon and then to Levi'.

(c) Based on the fact that the Shechiv-Mera said 'T'nu', we extrapolate from here that - even if the first beneficiary received Beinonis and the second one, Ziburis, the creditor may only claim the Ziburis from the last one, from which we see that 'Ein Nifra'in mi'Nechasim Meshu'badim ... ' applies even to Matanah.

(d) We first refute this proof - by establishing the Beraisa (not by Matanah, but) by a Ba'al-Chov, and 'T'nu' means 'T'nu be'Chovi'.

(a) In the previous case, the date on their respective Sh'taros does not determine the order in which they pay - because the Tana is speaking when the loan is an oral one.

(b) 'Kol ha'Kodem bi'Sh'tar' means (not a Sh'tar Chov, but) - the Sh'tar Tzava'ah (written by the Shechiv-Mera). See Tosfos DH 've'Ha'.

(c) We refute the initial proof in two additional ways, even if the Tana is referring to Matanah. When we say ...

1. ... 'Mai Govah min ha'Acharon, Ein Nifsad Ela Acharon', we mean - that it may well be that 'Ein Nifra'in ... ' does not apply to Matanah, and 'Govah min ha'Acharon' means (not that the creditor claims from the last one, but that whoever he claims from has the right to reimburse his losses from the last one, because) he is the one who has to lose (since the donor specifically bequeathed him his donation after the others had received theirs).
2. ... 'de'Shavu Kulhu Lehadadi', we mean - that the Tana is speaking in the Seifa when all the Matanos are of equal quality.
(a) Ula Amar Resh Lakish explains that the purchaser cannot claim the Peiros from the thief's Meshuba'dim because they were not written - and it is only when there is a Sh'tar that the creditor has the authority to claim from Meshu'badim (since it is the Sh'tar which produces the Kol which enables would-be purchasers to safeguard themselves.

(b) In fact, the thief had stated that he would reimburse the Sh'vach and the Peiros, and when Ula said that they were not written - he means that since the Peiros were not yet in the world there was no Kol on them (and it was as if they had not been written).

(c) Rebbi Zeira asked Rebbi Asi from 'Mazon ha'Ishah ve'ha'Banos', which are considered as if they are written, even though they are not, yet they are not authorized to claim from Meshuba'dim. When he said 'they are considered as if they are written' he meant -that they are a T'nai Beis-Din, and every T'nai Beis-Din produces a Kol no less than a Sh'tar.

(d) Rebbi Asi answered Rebbi Zeira - that the T'nai Beis-Din was for the wife and daughter to claim from B'nei-Chorin (and not from Meshuba'dim), because otherwise, nobody would want to purchase a field from a friend whose wife and daughters might be claiming sustenance at any time.

11) Rebbi Chanina answers to explain why one cannot claim Achilas Peiros from Meshu'badim - because the amount of Peiros is not fixed, and there would be no way for the purchasers to know how much B'nei-Chorin to leave over for that purpose (see Tosfos Rid at foot of page).

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