Torah Community Connections

Week 85 - Wednesday - 11 July 2001

GITTIN: CHAPTER 5: MISHNAH 3

Compensation for produce consumed and for the improvement of the land, and for maintenance of a wife and daughters, is not taken from mortgaged property, for reasons of the public welfare. And one who finds a lost object does not take an oath, for reasons of the public welfare.

Kehati

Compensation for produce consumed - If a thief steals a field and re-sells it to someone who plants it and produces a crop, and the owner, from whom it was stolen, retrieves his stolen field and its produce and only has to pay the purchaser's operating expenses. The purchaser collects the sum of his purchase price even from the seller's (the thief's) mortgaged properties. Payment for his lost produce, however, may only be collected from the thief's unmortgaged properties. And similarly, for the improvement of the land - if the purchaser improved the land with plantings or fertilization, and the original owner (from whom the field was stolen) reclaims the field, the purchaser may only collect from the thief's unmortgaged property for his improvements (Rashi; Bartenura); according to Rambam "for the produce consumed" refers to a case in which a thief stole a field full of produce, consumed the produce and sold the field. The original owner takes back his field from the purchaser and takes compensation for its fruits from the thief, but only from the thief's unmortgaged property, and for maintenance of a wife and daughters - the ketubah guarantees the widow's maintenance from the property of her husband, as well as that of his daughters until they marry (Ket. 4:11-12). They may, however, collect only from unmortgaged and unsold property.

In all these cases, compensation may not be taken - from mortgaged property - for reasons of the public welfare - because the exact quantity of the things listed in the mishnah cannot be reliably estimated, and the purchaser cannot be expected to set aside a sufficient margin for indemnification. They may therefore be collected only from free assets.

And one who finds - and returns - a lost object - and its owner claims that the finder did not return all of it, does not - is not obligated to take an oath - that he returned all, for reasons of the public welfare - for if he is obligated to swear, he will not want to take care of lost objects in the future.

GITTIN: CHAPTER 5: MISHNAH 4

If orphans relied on a householder or if their father appointed a guardian for them - he must tithe their produce. A guardian appointed by the father of the orphans must take an oath; if appointed by the Court, he does not take an oath. Abba Shaul says the opposite is the rule. If one renders unclean, mixes or one who is a menasekh unintentionally, he is exempt; intentionally, he is liable. If priests caused pigul in the Temple intentionally - they are liable.

Kehati

If orphans relied on a householder - accepted his guidance and acted accordingly, and he cared for them and aided them, though not officially appointed as their guardian, he is considered their legal guardian, or if their father - before his death - appointed a guardian - to supervise the property of the orphaned minors, for them - he - the householder or the guardian, must tithe their produce - he must separate terumah and the tithes from the orphans' produce lest they eat forbidden produce.

A guardian appointed by the father of the orphans must take an oath - when the orphans reach maturity and the guardian transfers to them their property and the administration of their affairs, the guardian must take an oath swearing that he did not take anything from their property. This oath is called "an oath of doubtful claim," or "an oath without claim," as was taught, "And these take an oath, though no claim is lodged against them: the partners, sharecroppers, and the guardians, etc." (Shev. 7:8; see the introduction to our commentary on Ket. 9:4). If he was appointed by the Court, he does not take an oath - where there is no claim (as above), because the Court imposed this task on him, and he has no profit from it, and if we imposed on him such an oath, he would refuse to assume the task of guardianship. A guardian appointed by the father of the orphans, however, derives benefit and would not refuse the guardianship because of the oath.

Abba Shaul says, - the law is the opposite is the rule - if appointed by the father of the orphans, he does not take an oath, because he only became a guardian as a kindness to the father, and if he is required to take an oath, he will not accept the guardianship. "But one who is appointed by the court takes an oath," for since the Court relies on him, he becomes known as "a trustworthy person," which is beneficial for him. He will therefore not refuse to assume the guardianship, even if he is required to take an oath. The law is in accordance with Abba Shaul.

If one renders unclean - another person's terumah, etc. - mixes - terumah with another's non-sanctified produce and causes him a loss, since the mixture becomes forbidden to Israelites and can only be sold to priests at a cheaper price, or one who is a menasekh - lit. "pours out", i.e., he mixes his neighbor's wine with wine which was used for idolatry, thus forbidding any use of it unintentionally - thinking that it was permitted to render unclean or that no loss is caused by mixing terumah with other produce, or he did not know that the wine had been used for idolatry, he is exempt - from paying for the loss; intentionally - if he did this with the intention of causing monetary loss to another, he is liable - to pay him for the damage. The Gemara explains that though by law he is not liable even if done intentionally, since in all these cases the damage did not effect any change in the appearance of the other's property, in which case it is not considered damage, but the Sages obligated him to pay for reasons of the public welfare, so that people would not render things unclean, or mix terumah or forbidden wine with impurity.

If the priests caused pigul in the Temple - Priests who slaughtered an animal or collected its blood, or carried its blood, or sprinkled blood with the intention of eating the sacrifice or burning it after the legally allotted time, and thereby rendering it pigul (Zev. 2:3), if they did this intentionally - aware that this would invalidate the sacrifice, they are liable - to pay the value of the sacrifice to the owner, who must now bring another sacrifice; and even if it was a free-will sacrifice, which the owner does not have to substitute, it is still considered a hardship for the owner, since he wanted to bring a present, and the priest must reimburse him.

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