Torah Community Connections

Week 85 - Tuesday - 10 July 2001

GITTIN: CHAPTER 5: MISHNAH 1

For those who are damaged, they assess from the best quality, for a creditor from medium quality and for a woman's ketubah from the poorest quality. Rabbi Meir says a woman's ketubah also from medium quality.

Kehati

This chapter continues to teach laws which were enacted for the public welfare. Our mishnah discusses the following three types of personal payments: (1) for damage caused by a person, or his property (his ox, his pit, etc.); (2) payments of debts; (3) payment of the ketubah made by a husband to his wife when he divorces her. All these payments can be collected from land. The current mishnah teaches from which type of land - best, medium or poor quality - a person is obligated to make payment.

For those who are damaged - and seek compensation from the person who caused the damages, and he has no money or movable property with which to pay the damages, and must pay from his land, they assess - compensation for the damages - from the best quality - of the defendant's land This is stated expressly in the Torah (Ex. 22:4), "If a man cause a field or vineyard to be eaten, and shall let his beast loose, and it feeds in another man's field; of the best of his field, and of the best of his vineyard, shall he make restitution."

However, Rabbi Yishmael and Rabbi Akiva differ as follows: Rabbi Yishmael holds that "the best of his field" refers to the field of the one who sustained the damage, i.e., according to the Torah, the defendant does not pay from his own choice land, but rather from his equivalent of the choice land of the plaintiff, e.g., if the defendant's poorest land is equal in quality to the choice land of the plaintiff, he need pay only from his poorest land. Rabbi Akiva holds "the best of his field" refers to the field of the defendant. This controversy is reflected in two differing opinions in the Gemara. According to one, the mishnah represents the view of Rabbi Yishmael that according to Torah law, the assessment is to be made from the property of the plaintiff. However, for reasons of the public welfare, so that people should beware of causing damage, the Sages enacted that the choice lands of the defendant should be assessed. According to the other opinion, our mishnah represents Rabbi Akiva's view that according to Torah law, the defendant's land is assessed and our mishnah, which follows Rabbi Shimon, who expounds the reasons for the Torah laws, merely stated that the Torah wrote this law to safeguard society.

The Gemara also quotes the following baraita: "Rabbi Shimon said, why are those who are claimants compensated from the best quality? Because of the robbers and bandits - so that a person should say to himself, "Why should I rob, or take by violence, seeing that tomorrow the Court will take my best field, basing itself on what is written in the Torah, from the best of his field and the best of his vineyard shall he make restitution." for a creditor from medium quality - the property of the borrower is assessed for payment of the lender, they assess from the medium quality of the debtor's land, even though according to Torah law, the creditor collects only from the poorest quality, as it is written, "and the man to whom you do lend, shall bring forth the pledge to you" (Deut. 24:11) and a person normally gives the least valuable of his possessions, but because of the public welfare - so that people should not refuse to give loans - the Sages ruled that a creditor should be assessed from medium quality.

According to another opinion (cited in the Gemara), the creditor should collect from the best quality, for since he loaned money which is the best of all property, he should be repaid with best quality. However, since a person might see his friend's choice fields and houses and say, "I will take the initiative and lend him money so that I may collect my debt from them," the Sages ruled that a creditor should only be compensated from medium quality,

and - for the collection of - a woman's ketubah, - they assess - from the poorest quality - of the husband's land, for even a creditor is, by decree of the Sages, compensated from medium quality only in order that people should not refrain from lending money, reason which does not apply to a ketubah. Nor do we have to fear that she might desist from marrying, since a woman is more anxious to be married than a man (Gemara). Rabbi Meir says a woman's ketubah also from medium quality - the same as the creditor's compensation. The halakhah does not follow Rabbi Meir.

GITTIN: CHAPTER 5: MISHNAH 2

Compensation is not paid from mortgaged property where there is unmortgaged property, and even if it is of the poorest quality, compensation from the property of orphans is paid only from the poorest quality.

Kehati

If the defendant sold his properties after he became liable to the payment of damages or if a debtor sold his property after they were mortgaged for his debt, the plaintiff and the lender may collect damages and debt from the mortgaged property in the possession of the purchasers. A woman also may collect her ketubah from mortgaged property. Having learned in the previous mishnah that the claimants are compensated from the best quality, and a creditor from medium quality, this mishnah teaches that it applies only to unmortgaged property, i.e., property in the possession of the defendant or the borrower, but not to mortgaged property, if the defendant or the borrower still have free property, nor to the property of orphans, as will be explained in the mishnah.

Compensation is not paid - the injured party or the lender may not collect damages or debts, from mortgaged property - which is now in the possession of the purchasers, as explained above, where there is unmortgaged property - in the possession of the defendant or the borrower, and even if it - the free property, is - only - that of the poorest quality - the injured party and the lender can still only collect from the defendant's unmortgaged property and cannot claim that the best or medium quality land which the defendant sold were already mortgaged to them. This was enacted "for the public welfare," so that purchasers would not lose money (Gemara). If the defendant or the borrower dies, and leaves his property to his children, compensation from the property of - the - orphans is paid only from the poorest quality - the injured party or the lender may only collect from the poorest quality of the property of the heirs. The reason of this ruling is "the public welfare," i.e., to be lenient towards orphans (Hameiri).

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives