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Gitin 51

GITIN 51 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.



(a) We ask whether Rebbi Chanina, who ascribes the Din in our Mishnah 'Ein Motzi'in la'Achilas Peiros ... mi'Nechasim Meshu'badim' to the fact that the amount is not fixed, is adding to Ula, who ascribed it to the fact that it is not written, or whether he argues with Ula completely. The ramifications of the She'eilah are - that, according to the second side of the She'eilah, the creditor will be permitted to claim from Meshubadim, even by an oral loan (see Tosfos DH 'O Dilma').

(b) A girl who has brothers, and whose father has died, is entitled to receive Isur Nechasim - either when she attains Bagrus (twelve and a half), or when she gets married.

(a) Rebbi Yochanan says - that in a case where one of two daughters received Isur Nechasim after her father's death, and before the second one had a chance to claim her's, their one brother died, leaving them as heirs - the second daughter foregoes her share of Isur Nechasim, and the two girls share the property equally.

(b) Rebbi Chanina disagrees with Rebbi Yochanan. He argues - that if, as Chazal have said, a girl may claim Parnasah (Isur Nechasim) from Meshubadim, she is certainly entitled to claim it from B'nei Chorin (before dividing the rest of the property).

(c) A daughter may claim Parnasah from Meshubadim but Mezonos only from B'nei-Chorin - because the former are fixed, whereas the latter are not.

(d) It seems that Rebbi Chanina permits claiming even oral debts from Meshubadim (since Parnasah [Isur Nechasim] is not written), which would resolve our She'eilah. We refute this proof (which is at the same time a Kashya on Ula) however - by stressing that Parnasah has a Kol, even though there is no Sh'tar (because everyone knows that when a man dies, all his daughters are due to receive one tenth of his property.

(a) If a divorcee remarries, and both husbands have undertaken to feed her daughters for five years - one of them should feed them directly, and the other one gives them money to the value of the Mezonos that she is due.

(b) In the event that both husbands subsequently die within the five-year period, the Tana of the Beraisa rules - that the wife may claim from Meshubadim (because they made a Kinyan when they got married, to reinforce that), whereas the daughters may claim only from B'nei Chorin (because no Kinyan was made on their behalf).

(c) Rav Huna bar Mano'ach attempt at one and the same time, to resolve our She'eilah in Rebbi Chanina and pose a Kashya on Ula - because the sole difference between the wife and the daughters appears to be that the one is fixed whereas the one is not.

(d) We refute Rav Huna bar Mano'ach's proof, by establishing the case when a Kinyan was made with the Almanah (reinforcing her claim), but not with the daughters.

(a) We initially explain the Tana making such a presumptuous distinction between the wife and the daughters - by pointing out that when they first married, the daughters were not yet born, in which case the Kinyan that he made with his wife would not effect them.

(b) We refute this reasoning - on the grounds that the Tana does not preclude a case where the man remarried his wife, in which case, the daughters may well have been born at the time of the second marriage.

(c) In that case, they should not even need a Kinyan, because Mezonos ha'Bas is a T'nai Beis-Din! Nevertheless, they may only claim from B'nei-Chorin (in spite of the Kinyan) - because we are afraid that, due to the fact that it is a T'nai Beis-Din, her father may have set aside Metaltelin to reinforce those very rights (see Tosfos DH 'Eimar').

(a) Rebbi Nasan in a Beraisa qualifies the Din of 'Ein Motzi'in la'Achilas Peiros mi'Nechasim Meshuba'dim' - to when the second purchaser bought the Meshuba'dim before the Sh'vach grew, but if he bought it after that, then the Shi'bud will have fallen on that field (seeing as the amount is now fixed) and the first purchaser may claim it from him.

(b) We prove from here - that Rebbi Chanina ascribes 'Ein Motzi'in' to when the amount is not fixed, but that, when it is, the creditor may claim from Meshuba'dim, even though it is not documented (a Kashya on Ula).

(c) We reconcile Ula with the Beraisa - by citing a second Beraisa, where the Machlokes between Ula and Rebbi Chanina is cited as a Machlokes Tana'im.

(d) The opinion in the first Beraisa is that of Rebbi Yossi in the second. The Tana Kama there - ascribes the reason that 'Ein Motzi'in la'Achilas Peiros u'le'Mazon ha'Banos' to the fact that it is documented (even in a case where it is fixed - like Ula). He refers to it as 'Tikun ha'Olam', because, he argues, nobody will ever buy a field if he knows that any creditor (even of an oral loan, from which he cannot safeguard himself) may come and claim it from him.

(a) Rebbi Yitzchak says that if the owner claims that the finder found ...
1. ... two purses tied together, whilst the finder counters that he found only one - he must make a Shevu'ah (like every 'Modeh be'Miktzas').
2. ... two oxen tied together, whilst the finder counters that he found only one - he is Patur from a Shevu'ah.
(b) The grounds for this distinction are - the fact that whereas the two purses could not have come untied by themselves, in which case the owner's claim is a Vaday, the two oxen (who move and rub against each other) could well have done so, and his claim is only a Safek.

(c) Rebbi Yitzchak says in a case where the owner claims that the finder found two oxen that were tied and the finder counters that he found two and returned one - that the finder is obligated to make a Shevu'ah, because here, the owner's claim is a Vaday (seeing as the finder admits that he found two oxen).

(a) We ask on Rebbi Yitzchak's first statement from our Mishnah - which says that someone who finds a lost article never needs to make a Shevu'ah, because of Tikun ha'Olam.

(b) Rebbi Yitzchak argues with our Mishnah - because he follows the opinion of Rebbi Eliezer ben Ya'akov in a Beraisa, which we are about to discuss.




(a) When Rebbi Elizer ben Ya'alov says 'Pe'amim she'Adam Nishba al Ta'anas Atzmo' he means - that someone claims from him the Manah that his father lent him, and he admits to part.

(b) The Chachamim say - that this is considered 'Meishiv Aveidah' (as if he had volunteered the information himself, for which he is never Chayav a Shevu'ah).

(c) We take for granted that a genuine Meishiv Aveidah is Patur from a Shevu'ah - because otherwise, nobody would ever return a lost article.

(a) We have learned in a Mishnah in Shevu'os that one does not swear on the claim of a Katan.

(b) When we establish Rebbi Eliezer ben Ya'akov when a Katan claims from him, we are referring to - a Gadol, only since he is claiming in his deceased father's name and not in his own, he is like a Katan (since he is not fully conversant with his father's affairs).

(c) In that case though, he should not have referred to it as 'Ta'anas Atzmo'. What is wrong with explaining that 'Ta'anas Atzmo' means 'Ta'anas Acheirim ve'Hoda'as Atzmo' is - that this would then be no different than any other case of a claimant and a defendant?

(a) So we establish the Machlokes between Rebbi Eliezer ben Ya'akov and the Rabbanan, when a Katan is claiming from him that he owed his father a hundred Zuz and he admitted fifty, and they argue over a statement of Rabah. The basic reason does Rabah gives for 'Modeh be'Miktzas ha'Ta'anah Yishava' - is 'Ein Adam Me'iz Panav Bifnei Ba'al Chovo' (a person does not have the audacity to deny the claim of his creditor, who after all, did him a big favor). Consequently, the fact that he admits to half the claim is no indication that he is telling the truth.

(b) The basis of their Machlokes is therefore - whether we extend Rabah's S'vara to the creditor's son or not. According to ...

1. ... Rebbi Eliezer ben Ya'akov, who says that he is obligated to swear - he would not lie in front of the creditor's son either, in which case he cannot be considered a 'Meishiv Aveidah', and is obligated to make a Shevu'ah.
2. ... the Rabbanan, who say that he is not - we restrict Rabah's S'vara to the creditor himself. Consequently, if he admits to half the claim in his presence, he is considered a 'Meishiv Aveidah' and is Patur from a Shevu'ah.
(c) As a matter of fact, we do not really suspect that he wants to deny the entire claim, and only admits to half because he has to. On the contrary, now that he is standing in front of his creditor, he really wants to admit to the entire claim. Only due to the fact that he does not have the money right now, he denies half the claim, with the intention of admitting and paying up as soon as he has the money. That is why the Torah makes him swear.
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