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Gitin 52

GITIN 52 - sponsored by Hagaon Rav Yosef Pearlman of London, England, a living demonstration of love for and adoration of the Torah.



(a) The joint obligation that a Balabos on whom the Yesomim rely to handle their affairs and an Apotropus (a guardian appointed by the Beis-Din to do so) share vis-a-vis the crops that grow in the Yesomim's field is - that they are both obligated to Ma'aser them.

(b) According to the Tana Kama of our Mishnah, an Apotropus appointed by the Yesomim's father before his death is obligated to swear - that he has retained nothing belonging to the Yesomim.

(c) This would not be the case if he was appointed by the Beis-Din, according to the Tana Kama. Aba Shaul says the opposite. In his opinion - an Apotropus who is appointed by the Beis-Din has to swear, but not one who was appointed by the Yesomim's father.

(a) We learn from the pasuk "Kein Tarimu Gam Atem" "Atem" 've'Lo Shutfim', "Atem" 've'Lo Arisin' - and "Atem" 've'Lo Apotropsin'.

(b) The significance of the D'rashah "Atem" 've'Lo ha'Torem es she'Eino she'Lo' which the Tana adds - is not a fourth D'rashah, but sums up the other three, explaining what they all have in common.

(c) Rav Chisda reconciles this Beraisa with our Mishnah, which permits an Apotropus to Ma'aser on behalf of the Yesomim - by differentiating between an Apotropus who sells in order to sustain the Yesomim now (our Mishnah), and one sells to earn them some money (the Beraisa).

(d) We cite the Beraisa 've'Hatanya ... ' - in support of Rav Chisda's answer.

(a) The Tana permits an Apotropus to Ma'aser the crops of the Yesomim, to sell their animals and slaves, houses and fields ... to sustain them with the proceeds, but not to put the money aside - a. because the money might get stolen; and b. due to the sentimental value of their father's property.

(b) The same distinction - pertains to selling crops, wine, oil and flour.

(c) Despite the fact that he is permitted to purchase on their behalf a Sukah, a Lulav, Tzitzis, a Shofar and Sefarim, he may not give Tzedakah - because the amount is not fixed (and he could end up giving away all their money to the poor - though it is unclear why we could not restrict his payments to a tenth or at least to a fifth).

(d) He is ...

1. ... not permitted to redeem captives on their behalf, or to spend their money to comfort a mourner (despite the fact that both of these are exceptionally important Mitzvos)
2. ... permitted to defend them in Beis-Din should a creditor claim from them. What the Tana means when he forbids it 'la'Chov u'le'Zakos' - he means 'la'Chov al'Menas le'Zakos' (i.e. his services are rejected, should the Beis-Din rule against the Yesomim even though he initially came to defend them).
(a) The Apotropus forbidden to sell a field belonging to the Yesomim that is situated far away in order to purchase one that is nearer, or a poor-quality field, to pruchase a good-quality one, in case the latter becomes flooded (because that particular field has a bad Mazel).

(b) The Tana Kama also forbids him to sell a field in order to buy an Eved, though he permits the reverse. Raban Shimon ben Gamliel forbids both.

(a) He would he able to set their Eved free without causing them a loss - if a third party was willing to give the eved money on the express condition that the Yesomim should not have any rights in it (with which he could subsequently buy himself out.

(b) The Tana Kama does not permit the Apotropus to conclude the transaction directly however - because he does not belong to him (to set free). In order to secure his freedom therefore - he would have to sell him to the third party, and let them set him free.

(c) Rebbi even permits - the Apotropus to receive the money directly from the Eved, because it is no different to any other sale.

(d) The Tana Kama requires the Apotropus to present the Yesomim with an account of all his dealings. Raban Shimon ben Gamliel exempts him from doing so.

(a) Beis-Din do not appoint as an Apotropus ...
1. ... a woman - because she does not (at least she did not used to) usually deal in the business world.
2. ... an Eved - because he is not trustworthy.
3. ... a Katan - because he does not have Da'as. (All three are acceptable however - if the father appointed them before his death.)
(b) Rebbi Meir stopped a cetain Apotropus - from selling fields on behalf of the Yesomim and purchasing Avadim with the proceeds.

(c) He twice ignored a dream in which the angels pointed out to him that they were deliberately orchestrating the actions of the Apotropus (see Maharshal) - because he did not regard dreams as significant.

(d) Rebbi Meir ...

1. ... prevented two men from quarrelling every Erev Shabbos - by visiting them three times in a row and making peace between them.
2. ... heard the Soton say as he (the Satan) left town - that he (Rebbi Meir) had thrown him out of his house.
(a) Rebbi Yehoshua ben Levi did not object when a certain Apotropus sold fields belonging to the Yesomim in order to purchase oxen, because he held like Rebbi Yossi. Rebbi Yossi referred to ...
1. ... his wife - as his house.
2. ... his ox - as his field.
(b) Rav Nachman justified to the family of Yesomim a certain old woman's having sold the Yesomim's cow on their behalf, even though nobody had appointed her an Apotropus - by citing our Mishnah, which legalizes transactions performed on behalf of Yesomim by someone whom the Yesomim actually rely upon.

(c) When the family added that ...

1. ... the price of the ox had risen (in which case the sale had caused the Yesomim a loss and should therefore be declared void) - he replied that the price of the ox had risen in the possession of the purchaser, and that the Yesomim had no further claim to it.
2. ... the Yesomim had not yet received payment for the ox - he declared the sale void, on the basis of Rav Chanila'i bar Idi Amar Shmuel, who maintains that Chazal gave the property of Yesomim the Din of Hekdesh (in this regard), which can only be purchased with money (since the Torah writes in Bechukosai "ve'Nasan ha'Kesef ve'Kam Lo").
(a) The wine of Rabana Ukva the Yasom which purchasers acquired with Meshichah for four Zuzim per barrel - went up to six Zuzim per barrel. Rav Nachman declared the sale void, because the purchasers had not yet paid (like Rav Chanila'i bar Idi Amar Shmuel).

(b) If in the same case, the price of wine went down - the purchasers would not be able to retract, because the Rabbanan gave the Yesomim the Din of Hekdesh for their benefit, but not to cause them to lose. Consequently, Meshichah acquires on their behalf when ever it is beneficial to them.

(c) If the Yesomim made a Kinyan Meshichah to acquire fruit, the price of fruit went ...

1. ... up, and the seller wished to retract - they cannot do so, as we hust explained.
2. ... down, and the Yesomim wished to retract - Rav Shisha B'rei de'Rav Idi forbids them to do so (in spite of Rav Chanila'i bar Idi Amar Shmuel), because in the long-term, it would be detrimental to alllow him to do so, since people will stop selling them fruit unless they pay for their purchsase immediately.



(a) If the Yesomim paid money for fruit and the price of fruit ...
1. ... went down - they are permitted to retract, like by Hedyot, which does not acquire with money (and it is to their benefit).
2. ... went up - the seller is not permitted to retract, because, if he could, this would encourage guardians of the property of Yesomim to be careless and allow the crops of Yesomim to burn, since without Meshichah, they do not acquire it anyway.
(b) If the purchaser paid money to the Yesomim for fruit, the fruit went ...
1. ... up in price, and the Yesomim wish to retract - they may (because it is to their benefit).
2. ... down in price, and the purchaser wishes to retract - he may (in spite of Rav Chanila'i bar Idi Amar Shmuel), because in the long-term, it will turn out to be to the Yesomim's disadvantage, since people will stop paying them money for their purchases, and sometimes the Yesomim need the money.
(c) Rav Ashi and Rav Kahana signed on the Sh'tar of the mother of Ze'iri the Yasom who was selling for Karga immediately. 'Karga' is a head-tax that is paid to the king. Otherwise, one does not sell fields belonging to Yesomim without first announcing them for at least thirty days (i.e. 'Achrazta').

(d) The other two cases that would justify selling the land of Yesomim without Achrazta are - in order to purchase Mezonos with the proceeds, or to pay for the needs of the burial of one of the members of the family (see Tosfos DH 've'li'Kevurah').

(a) When the family of the Yesomim accused the Apotropus, Amram the painter, of ...
1. ... wearing the Yesomim's clothes, Rav Nachman replied - that this was permitted, because it enabled him to command authority when working on their behalf.
2. ... eating good food, even though he was poor (conveying the impression that he was eating their food) - Rav Nachman pointed to the off-chance that he had found a lost article of great value.
3. ... causing damage to their property - Rav Nachman asked them to bring witnesses, and he would depose him.
(b) Rav Nachman quoted this statement as the opinion of Rav Huna Amar Rav. In fact - de'Bei Rebbi Shilo maintains that he cannot be disposed, but the Halachah is like Rav Huna Amar Shmuel.
(a) The Tana Kama obligates an Apotropus whom the Yesomim's father appointed, to make a Shevu'ah. He ...
1. ... does that - because we presume the Apotropus to be paying the father a debt of gratitude for a favor that he once performed with him. And in that case, we do not need to worry that he will decline the appointment on account of the Shevu'ah (which everyone naturally shunned).
2. ... exempts an Apotropus whom Beis-Din appointed, from making a Shevu'ah - because since he is merely doing them a favor, if he is made to swear, he will decline the appointment.
(b) Aba Shaul holds the reverse. He ...
1. ... obligates an Apotropus whom Beis-Din appointed, to make a Shevu'ah - because the benefit that he reaps from the good name that he garners will ensure that he does not retract just because of the Shevu'ah.
2. ... exempt an Apotropus whom the Yesomim's father appointed, from making a Shevu'ah - because he is probably just demonstrating his friendship (and not repaying a large debt of gratitude), and is not so bound to him a favor that he will retract the moment he hears that he will have to swear.
(c) Rav Chanan bar Ami Amar Shmuel rules like Aba Shaul. The Tana of the Beraisa however, rules like Rebbi Eliezer ben Ya'akov - who rules that both Apotropsin must make a Shevu'ah.

(d) Rav Tachlifa bar Ma'arva quoted a Beraisa in front of Rebbi Avahu which follows the opinion of the Tana Kama of our Mishnah. When the Tana of the Beraisa writes 'Apotropus she'Mineihu Avi Yesomim Yishava Mipnei she'Hu *Nosei Sachar*' - he means Mipnei she'Hu *ke'Nosei Sachar*' (as we explained earlier, but not really a Nosei Sachar).

(a) The Halachah that Metamei, Medamei and Menasech all share is - that they are Patur from paying if they damaged be'Shogeg, and Chayav, be'Meizid.


1. ... Metamei is - someone who renders his friend's Terumah, Tamei (in which case it can only be used as fuel, but may no longer be eaten).
2. ... ha'Medamei is - someone who mixes his friend's Chulin with Terumah (forcing him to sell it to Kohanim cheaply).
(a) Rav interprets 'Menasech' literally. According to Shmuel it means - that he mixed his Kosher wine with Yayin Nesech.

(b) Shmuel maintains that, if 'Menasech' was literal, he would be Patur from paying - due to the principle 'Kam Lei be'de'Rabah Minei' (since he is Chayav Misah for the same action, he is Patur from paying, because a person who is due to receive two punishments, only receives the more stringent one).

(c) We counter this by citing Rebbi Yirmiyah - who says that the two obligations are not simultaneous, because he acquires the wine as soon as he picks it up, but is not Chayav Misah until he actually pours it (and Rav holds like Rebbi Yirmiyah).

(d) Rav declines to learn like Shmuel, because, if Menasech meant mixing, then it would merely be a duplication of Medamei, which Shmuel will answer - by stressing that although they are similar, we cannot learn one type of K'nas (Menasech) from another (Medamei), and both need to be mentioned.

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