Gittin 50bגיטין נ׳ ב
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50bנ׳ ב

יתומין שאמרו גדולים וא"צ לומר קטנים בין לשבועה בין לזיבורית:

With regard to the orphans of which the Sages spoke, the phrase is referring to adults, and needless to say it is referring also to minors, whether with regard to the halakha that a debt can be collected from the property of orphans only with an oath, or whether with regard to the halakha that a debt can be collected from the property of orphans only from inferior-quality land.

אין נפרעין מנכסים משועבדים במקום שיש בני חורין: בעי רב אחדבוי בר אמי במתנה היאך

§ The mishna teaches: Payment of a debt or other obligation is not collected from liened property that has been sold to a third party when the debtor still has unsold property, even when this unsold property is inferior-quality land. Rav Aḥadevoi bar Ami raised a dilemma: What is the halakha with regard to liened property that the debtor gave to another person as a gift? Is it the halakha that the debt is not collected from liened property that has been given as a gift to a third party when the debtor still has property?

תקנתא הוא דעבוד רבנן משום פסידא דלקוחות אבל מתנה דליכא פסידא דלקוחות לא או דלמא מתנה נמי אי לאו דאית ליה הנאה מיניה לא יהיב ליה מתנה והלכך כי פסידא דלקוחות דמי

The Gemara presents the two sides to this dilemma: Is the halakha that payment is not collected from liened property that has been sold an ordinance that the Sages instituted due to the loss of the buyers, who would lose the money that they had paid for the property? But in the case of a gift, where there is no issue of loss to the buyers, i.e., the recipients, as the recipients paid nothing for the property, the halakha does not apply. Or perhaps the halakha applies to a gift as well, as, were it not for some benefit that the donor derives from the recipient, he would not have given him the gift. And therefore this loss to the recipient is considered to be like the loss to buyers and payment of the debt is not collected from the recipient of the gift when the debtor still has property in his possession.

א"ל מר קשישא בריה דרב חסדא לרב אשי ת"ש שכיב מרע שאמר תנו מאתים זוז לפלוני וג' מאות לפלוני וד' מאות לפלוני אין אומרים כל הקודם בשטר זכה לפיכך יצא עליו שט"ח גובה מכולן

Mar Kashisha, son of Rav Ḥisda, said to Rav Ashi: Come and hear what was taught in a baraita (Tosefta, Bava Batra 9:6): If a person on his deathbed said: Give two hundred dinars to so-and-so, and three hundred to so-and-so, and four hundred to so-and-so, in this case one does not say that whoever appears first in the deed acquires his money first. Therefore, if a promissory note emerged against the one who gave the gifts, and it becomes clear that the money given was pledged to a creditor, then the creditor collects from all of them.

אבל אם אמר תנו מאתים זוז לפלוני ואחריו לפלוני ואחריו לפלוני אומרים כל הקודם בשטר זכה לפיכך יצא עליו שט"ח גובה מן האחרון אין לו גובה משלפניו אין לו גובה משלפני פניו

But if the person on his deathbed said: Give two hundred dinars to so-and-so, and after him to so-and-so, and after him to so-and-so, then one says: Anyone who appears first in the deed acquires his money first. Therefore, if a promissory note emerged against him, the creditor first collects from the last one of the recipients. If he does not have enough to repay the debt, he collects from the previous person. If he does not have enough to repay the debt, he collects from the person listed before the previous person.

ואע"ג דקמא בינונית ובתרא זיבורית מזיבורית גבי מבינונית לא גבי ש"מ במתנה נמי עבוד רבנן תקנתא

The Gemara infers: And this is the halakha even if the property given to the first recipient is intermediate-quality land and the property given to the last recipient is inferior-quality land. Although a creditor is entitled to collect his debt from intermediate-quality land, the creditor in this case collects from inferior-quality land, as he collects from the last person to receive his gift, and he does not collect from the intermediate-quality land given to the first recipient. Conclude from the baraita that the Sages also instituted this ordinance in the case of a gift, and that payment of a debt is not collected from liened property that has been given as a gift to a third party when the debtor still has property that has not been sold or given away as a gift. The reason is that the second gift is considered to be unsold property in relation to the first gift because, when the first gift was given, the second gift was still in the donor’s possession.

הכא במאי עסקינן בבעל חוב והא תנו קאמר תנו בחובי

The Gemara rejects this proof: With what are we dealing here? We are not dealing here with a person on his deathbed who is distributing monetary gifts, but rather with a debtor who is dividing his money between his various creditors. The Gemara raises an objection: But didn’t the person on his deathbed say: Give the money to so-and-so, a formulation that indicates that he is granting a gift? The Gemara answers that what this means is: Give this money as payment for my debt.

וליחזי שטרא דמאן קדים דליכא שטרא והא כל הקודם בשטר קאמר בשטר פקדתא

The Gemara asks: If so, why should the recovery of the debts depend upon the wording of the debtor’s instructions? But let us see whose promissory note was written first, as it is he who collects first. The Gemara answers: We are dealing with a case where there is no promissory note, e.g., where the creditors lost their deeds. The Gemara raises an objection: But didn’t it say in the baraita: Whoever appears first in the deed? This indicates that there is in fact a deed. The Gemara answers: The reference here is not to the promissory notes but to the testamentary deed drawn up by the person on his deathbed.

ואב"א אפילו מתנה נמי ולא קשיא מאי גובה מן האחרון אין נפסד אלא אחרון

And if you wish, say: The baraita is referring also to a case of a gift, and even if the mishna’s ordinance does not apply to liened property that had been given away as a gift, the halakha that the creditor collects from the last recipient is not difficult, as what is the meaning of the words: He collects from the last recipient? This means that it is only the last recipient who really loses, as the creditor can collect from intermediate-quality land wherever it is, even if it is in the possession of the first recipient. But after the creditor collects what is due him, the recipients of the gifts distribute the remaining property, in accordance with the order set down in the donor’s testament. Therefore, it will always be the last recipient who loses and no one else.

ואב"א דשוו כולהו להדדי:

And if you wish, say: The baraita is referring to a case where all of the properties are of equal quality. There is no reason to collect specifically from the first recipient because he has intermediate-quality land as opposed to the last recipient who does not. In such a case, the debt is collected first from the last recipient. Therefore, there is no proof from here that the mishna’s ordinance applies even to liened property that had been given away as a gift.

אין מוציאין לאכילת פירות: מאי טעמא אמר עולא אמר ריש לקיש לפי שאין כתובין

§ The mishna teaches: The court does not appropriate liened property that has been sold to a third party for the consumption of produce. If one appropriated a field and sold it, and the buyer worked the land, improved it, and grew produce on it, and then the owner came and took back his field together with the produce, the buyer cannot collect the value of the produce from property that the robber sold to another person. The Gemara asks: What is the reason for this? Ulla says that Reish Lakish says: This is because the produce is not written in the deed of sale. The obligation of a seller to reimburse the buyer if the field he sells him is repossessed by a prior owner or creditor is dependent upon the obligation recorded in the deed of sale. His obligation of reimbursement with regard to the produce is therefore treated like a loan by oral agreement, which is not a matter of public knowledge, and those who subsequently purchased land from the robber are not obligated to pay for debt incurred in a loan by oral agreement, as they had no way to know about it at the time of their purchase.

אמר ליה רבי אבא לעולא והא מזון האשה והבנות דכמאן דכתיבי דמו וקתני אין מוציאין

Rabbi Abba said to Ulla: But isn’t the sustenance of a man’s wife and daughters considered as if it were written, as even if it is not explicitly recorded in the marriage contract it is one of the fixed stipulations of a marriage contract that are imposed by the court? It is known that a man is obligated to provide for the sustenance of his wife and daughters, and yet the mishna teaches: Payment for the sustenance of a man’s wife and daughters cannot be collected from the husband’s liened property.

א"ל התם מעיקרא הכי אתקון כתובין הן אצל בני חורין ואין כתובין הן אצל משועבדין

Ulla said to him: There, with regard to sustenance of a man’s wife and daughters, the Sages instituted it like this from the outset: It is considered as if it were written with regard to unsold property that is still in the man’s possession, so that sustenance can be collected from such property, but it is not considered as if it were written with regard to liened property that has been sold to another party.

וכן אמר רבי אסי אמר ר' יוחנן לפי שאין כתובין אמר ליה רבי זירא לרב אסי והא מזון האשה והבנות דכמאן דכתיבי דמו וקתני אין מוציאין א"ל מעיקרא הכי אתקון כתובין הן אצל בני חורין ואין כתובין הן אצל משועבדין

And similarly, Rabbi Asi says that Rabbi Yoḥanan says with regard to the mishna: Why can’t the payment for the consumption of produce be collected from property that the robber sold to another person? It is because the produce is not written in the purchaser’s deed of sale. Rabbi Zeira said to Rav Asi: But isn’t the sustenance of a man’s wife and daughters considered as if it were written in the marriage contract, and yet the mishna teaches: Payment for the sustenance of a man’s wife and daughters cannot be collected from the husband’s liened property? Rav Asi said to him: The Sages instituted it like this from the outset: Sustenance is considered as if it were written with regard to unsold property that is still in the man’s possession, so that sustenance can be collected from such property, but it is not considered as if it were written with regard to liened property that has been sold to another party. This concludes the discussion of one reason for the halakha in the mishna.

ר' חנינא אמר לפי שאין קצובין

Rabbi Ḥanina says that it is for a different reason that payment for the consumption of produce cannot be recovered from property that the robber sold to another person: It is because the produce is not of a fixed amount, i.e., it could not be known at the outset how much produce would grow on the field or what its value would be. The Sages instituted that any obligation that is not of a fixed amount cannot be collected from property sold to another person, because the purchaser of the liened property cannot assess the risk he is assuming of having another person come to collect compensation from that property for a loss he has suffered.

איבעיא להו לרבי חנינא קצובין וכתובין בעי

A dilemma was raised before the Sages: According to the opinion of Rabbi Ḥanina, in order to collect from liened property, is it necessary that the obligation be both of a fixed amount and also written? If so, this would indicate that Rabbi Ḥanina adds another requirement in addition to that of Rabbi Yoḥanan.