Babylonian Talmud: Tractate Gittin

Folio 52a

MISHNAH. IF ORPHANS BOARD WITH A HOUSEHOLDER OR IF THEIR FATHER APPOINTED A GUARDIAN FOR THEM, IT IS HIS DUTY TO TITHE THEIR PRODUCE. A GUARDIAN WHO WAS APPOINTED BY THE FATHER OF THE ORPHANS IS REQUIRED TO TAKE AN OATH [WHEN THEY COME OF AGE],¹  BUT IF HE WAS APPOINTED BY THE BETH DIN HE NEED NOT TAKE AN OATH. ABBA SAUL, SAYS THAT THE RULE IS THE REVERSE.²

GEMARA. A contradiction was pointed out [between this Mishnah and the following]: [Thus] ye [also shall offer]:³  [that means to say,] you and not partners,⁴  you and not metayers,⁵  you and not guardians, you and not one who tithes from property not his own! — R. Hisda replied: There is no contradiction; in the one case the produce referred to is meant for consumption, in the other for storing.⁶  So it has been taught: 'Guardians set aside terumah and tithe [from the produce of their wards] which is meant for consumption⁷  and not for storing. They can also sell on their behalf cattle, slaves, male and female, houses, fields and vineyards in order to purchase food with the money but not to put it aside. They can also sell for them produce, wine, oil and flour, to purchase [other] food with the money but not to set it aside. They can make for them a lulab⁸  and willow,⁹  a sukkah¹⁰  and fringes and anything else involving a defined outlay (this includes a shofar),¹¹  and they can buy for them a scroll of the Law, phylacteries and mezuzoth¹²  and anything involving a defined outlay (which includes a megillah).¹³  They cannot, however, undertake on their behalf to give charity or to redeem captives or to do anything involving an unspecified outlay (which includes comforting mourners). Guardians are not allowed to enter into lawsuits concerning the property of orphans, or to entail obligations on it or to secure benefit for it.' Why can they not secure benefit? — It means, to entail obligations for the purpose of procuring benefits for the property of orphans.¹⁴  'The guardians are not at liberty to sell a distant [field] of their wards in order to redeem one that is near by¹⁵  or to sell in a bad [year] with the idea of redeeming in a good one,¹⁵  since there is a risk that the crops may be struck with blight.¹⁶  The guardians are not at liberty to sell fields and buy slaves with the proceeds, but they can sell slaves and buy fields with the proceeds. Rabban Simeon b. Gamaliel says that they may not even sell slaves and buy fields, since there is a risk that they will not be left in peaceable possession.¹⁷  The guardians are not empowered to emancipate slaves; they may, however, sell them to others who can emancipate them. Rabbi says: I maintain that the slave may pay his own purchase money and become free, since then the owner as it were sells him to himself.¹⁸  The guardian must give an account of his guardianship at its close. Rabban Simeon b. Gamaliel, however, says that this is not necessary. Women, slaves and minors should not be made guardians: if, however, the father of the orphans chooses to appoint one, he is at liberty to do so.'

There was a certain guardian in the neighbourhood of R. Meir who was selling land and buying slaves [with the proceeds], but R. Meir forbade him. A voice said to him¹⁹  in a dream, 'l want to destroy, and will you build'? Even so, however, he paid no heed, saying, Dreams are of no effect either one way or the other.²⁰

There were two men who, being egged on by Satan, quarrelled with one another every Friday afternoon. R. Meir once came to that place and stopped them from quarrelling there Friday afternoons. When he had finally made peace between them, he heard Satan say: Alas for this man²¹  whom R. Meir has driven from his house!

A certain guardian in the neighbourhood of R. Joshua b. Levi was selling land and buying cattle with the proceeds. [The Rabbi] said nothing to him, being of the same mind as R. Jose, as it has been taught: R. Jose said: All my life I have never called my wife my wife nor my ox my ox but my wife my house and my ox my field.²²

Certain orphans who boarded with an old woman had a cow which she took and sold. Their relatives appealed to R. Nahman saying, What business had she to sell it? He said to them: We learnt: IF ORPHANS BOARD WITH A HOUSEHOLDER.²³  [But, they said, the cow] is now worth more²⁴  [than she sold it for]. [He replied,] It has become more valuable in the possession of the purchaser. But, they said, they have not yet received the money. If so, he replied, we can apply the rule of R. Hanilai b. Idi following Samuel. For R. Hanilai b. Idi said in the name of Samuel that the property of orphans is on the same footing as that of the Sanctuary, and is not transferred save on the payment of money.²⁵

The wine of Rabbana 'Ukba the orphan was 'pulled'²⁶  [by purchasers who bought it at] four zuz [the cask]. The price [of wine] subsequently rose, so that it was worth six zuz. The case was brought before R. Nahman who said: Here the rule of R. Hanilai b. Idi applies; for R. Hanilai b. Idi said in the name of Samuel that the property of orphans is on the same footing as that of the Sanctuary, and is not transferred save through money payment.²⁵

If purchasers have 'pulled'²⁶  the produce of orphans [without paying], and [the price subsequently] rises, the rule of R. Hanilai b. Idi applies.²⁷  If [the price] falls, then surely a layman should not be more privileged than the Sanctuary.²⁸  If vendors have sold produce to orphans by 'pulling',²⁹  and [the price subsequently] rose, then we say that the layman should not be more privileged than the Sanctuary.³⁰  If [the price] falls, the students were inclined to think that here the rule of R. Hanilai b. Idi would apply,³¹  but R. Shisha the son of R. Idi said to them: This would be detrimental to them, since they may one day require produce and no-one will sell to them unless they pay money down. If the orphans give money for produce [without taking delivery] and [the price] subsequently falls, then we say that a layman should not be more privileged than the Sanctuary.³²  If it rises, the students were inclined to think that the rule of R. Hanilai b. Idi would apply,³³  but R. Shisha b. Idi said to them: This might be detrimental to them,

1. That he is not retaining any of their property.
2. All these rules are also 'to prevent abuses'.
3. Num. XVIII, 28, speaking of the tithe given by the levite to the priest.
4. I.e., not one partner for another.
5. Since they are not the owners of the produce.
6. And therefore the tithing can wait.
7. Because otherwise it could not be eaten.
8. V. Glos.
9. Used with the palm branch on Tabernacles. This word is omitted in some readings.
10. V. Glos.
11. V. Glos.
12. V. Glos.
13. V. Glos.
14. Because perhaps their plans will go wrong and they will cause loss to the orphans.
15. V. 'Ar. 30a.
16. And so what appears to be a good bargain may result in loss.
17. As their title to the fields may be disputed.
18. V. supra 38b.
19. Lit., 'they showed him'.
20. Lit., 'words of dreams neither cause to ascend or descend.
21. Meaning himself.
22. Hence buying cattle was equivalent to buying land.
23. Which shows that such a householder is on the same footing as a guardian, who has the right to sell cattle.
24. And this should warrant the cancellation of the sale.
25. Hence the transaction could still be cancelled.
26. As a sign of transference of ownership. V. Glos. s.v. Meshikah.
27. And the orphans can retract.
28. I.e., the purchasers could not withdraw even if the vendor was a layman (v. B.M. 44a), still less then in this case.
29. Lit., 'They made pull to orphans' i.e., the orphans 'pulled' the produce they purchased.
30. I.e., the vendors could not withdraw even if the purchaser was a layman, still less here.
31. And the orphans could pay the lower price and keep the wine.
32. And even a layman could withdraw in such a case.
33. And the vendors should not be able to retract.

since the sellers would be able to say to them, Your wheat has been burnt in the storehouse.¹  If [purchasers] have given money to orphans for produce and [the price] rises [before delivery has been made], then we say that the layman should not be more privileged than the Sanctuary.²  If [the price] falls, then the students thought that here the rule of R. Hanilai b. Idi would apply,³  but R. Shisha the son of R. Idi said to them, This might be detrimental to them, for they might sometimes want money, and no-one would give them before they delivered the produce.

R. Ashi said: I and R. Kahana signed as witnesses to the deed of sale of the mother of the orphan Ze'ira, who sold some land in order to pay the poll tax without giving public notice.⁴  For the Nehardeans have ruled that to raise money for the poll tax, for food and for burial, land may be sold without public notice.⁵

Amram the dyer was the guardian of [some] orphans. The relatives came to R. Nahman and complained that he was [buying] clothes⁶  for himself from the property of the orphans. He said: [He dresses so] in order to command more respect.⁷  [But, they said,] he eats and drinks out of their [money], as he is not a man of means. I would suggest, [he replied], that he had a valuable find. [But, they said,] he is spoiling [their property].⁸  He said: Bring evidence that he is spoiling it and I will remove him. For R. Huna our colleague said in the name of Rab: If a guardian spoils the orphans' property we remove him. For it has been stated: 'If a guardian spoils the property, R. Huna says in the name of Rab that we remove him, while the School of R. Shilah say that we do not remove him.' The law, however, is that we remove him.

A GUARDIAN WHO WAS APPOINTED BY THE FATHER OF THE ORPHANS IS REQUIRED TO TAKE AN OATH. What is the reason? — If he were not to derive some benefit from this, he would not become a guardian, and he will not be deterred by the requirement of an oath, IF, HOWEVER, THE BETH DIN APPOINTED HIM HE IS NOT REQUIRED TO TAKE AN OATH. [The reason is that] he assumes the office only to oblige the Beth din, and if an oath is to be imposed on him he would refuse. ABBA SAUL SAYS THAT THE RULE IS THE REVERSE. What is the reason? — If the Beth din appoint him he is to take an oath, because for the sake of the benefit he derives from the reputation of being a trustworthy man on whom the Beth din relies he is not deterred by [the prospect of] an oath. [If, however,] the father of the orphans appoints him, he does not take an oath, as it was simply a friendly action between the two, and if you impose an oath on him he would refuse. R. Hanan b. Ammi said in the name of Samuel: The law follows Abba Saul.

It has been taught: R. Eliezer b. Jacob says that both should take an oath, and so is the halachah.⁹  R. Tahalifa the Palestinian¹⁰  stated in the presence of R. Abbahu: A guardian who was appointed by the father of the orphans is required to take an oath, because he receives a fee. The Rabbi said to him: You have brought a kab and measured it out for him?¹⁰  Rather say, 'because he is like one who receives a fee'.¹¹

MISHNAH. ONE WHO RENDERS UNCLEAN [ANOTHER'S FOODSTUFFS]¹²  OR MIXES [TERUMAH WITH THEM]¹³  OR MAKES A LIBATION [WITH HIS WINE],¹⁴  IF HE DOES SO INADVERTENTLY, IS FREE FROM LIABILITY, BUT IF DELIBERATELY IS LIABLE [TO COMPENSATE HIM].¹⁵

GEMARA. It has been stated: [With regard to the expression] 'MAKES A LIBATION', Rab says that it means literally making a libation¹⁶  [to a heathen deity], while Samuel says that it means only mixing [Jewish with heathen wine].¹⁷  Why did the one who says it means mixing not accept the view that it means making a libation? — He will tell you the latter offence involves a heavier penalty.¹⁸  What does the other say [to this]? — Even as R. Jeremiah. For R. Jeremiah said that he [a robber] acquires possession from the moment he lifts the wine from the ground, whereas he does not become liable to capital punishment until he actually pours out the wine.¹⁹  Why does the one who says that it means making a libation not accept the view that it means mixing? — He will tell you, mixing wine

1. I.e., suppose the produce was accidentally burnt, the orphans could not say that they were not yet the owners of it and demand their money back, v. B.M. (Sonc. ed.) p. 282, n. 7.
2. And delivery could not be demanded even from a layman in such a case; the sale can accordingly be cancelled.
3. And the purchasers should not be able to retract.
4. It was usual to give thirty days' notice of the sale of property.
5. V. B.M. (Sonc. ed.) p. 620, n. 4.
6. Lit., 'he clothes and covers'.
7. Lit., 'that his words should be heard'.
8. E.g., by cutting down trees.
9. [Read with Trani [H] not [H] of cur. edd.]
10. Lit., 'the son of the West'.
11. I.e., what proof have you that he received a fee?
12. Whether terumah or ordinary food.
13. Thus rendering them forbidden to a layman.
14. The meaning of this is discussed infra.
15. Unclean terumah could not be eaten and could be used by the priests only for feeding cattle or for fuel. Non-sacred food also if unclean was rejected by the stricter sort (Perushim). Food mixed with terumah became prohibited to a layman and therefore had to be sold to a priest at a loss. Wine poured out in libation was forbidden. Hence in all these cases loss was involved.
16. I.e., stirring it with his hand as preparatory to pouring it out.
17. Which was sufficient to make it prohibited.
18. Viz., the death penalty; and the rule is that a lighter penalty is not inflicted when a heavier one is involved for the same offence.
19. I.e., the defendant has become liable for the payment of the wine in the capacity of a robber even before he commenced to commit the capital offence of idolatrous libations, and since the civil liability is neither for the same act nor for the same moment which occasions the liability for capital punishment, each liability stands.