Notes On מסכת גיטין פרק הניזקין

#1 תוס ד"ה אין נפרעין
S. 1) You may not collect from a buyer if there are available assets, even if it's junk because of תיקון העולם.
Q. 2) ('תוס)- Why do we need the חכמים to get involved, According the מאן דאמר that שעבוד (liens) isn't recognized by the תורה, of course he can't kick out the buyer, (no liens) and even if שעבוד is מדאורייתא, it only gives him the rights of the תורה, and a בעל חוב according to the תורה only get זיבורית, so there is no lien of the better property!
פני יהושע: Q on Q. 3) Who told 'תוס that we are only talking about a בעל חוב, a ניזק gets the best מיטב) מדאורייתא)?
A. 4) The פני יהושע answers, that 'תוס is asking according to נ.) רבא), that a ניזק can collect the best from the buyers, even if there is junk available, so our משנה must be talking about a בעל חוב.
(Note 2) (pr)

(:גמרא (מח
Q. 1) The משנה says the reason why a ניזק can collect from the best of the מזיק's property is a תקנת חכמים for the betterment of the world (תיקון העולם). But we already know this from a פסוק in the
מיטב שדהו וגו'" תורה", way before the חכמים came around?
A. 2) אביי answers that our משנה is according to רבי ישמעאל who says the מיטב of the פסוק is referring to the property of the ניזק, and the חכמים (in order to discourage הזיק) added that it must also be paid with the best of the מזיק.
Q. 3) What did רבי ישמעאל mean when he said the best of the ניזק?
A. 4) The גמרא attempts to explain that even if you only damaged a cheap item, nevertheless we evaluate the damages as if it occurred to the most expensive area of the רבי עקיבא) ניזק argued that you pay for the actual damage, and מיטב just refers to the type of payment that the מזיק must pay from his own properties).
E. 5) The ריטב"א explains that the גמרא was bothered why would the תורה evaluate the fields of the ניזק to determine what type of field the מזיק must pay, since that's not where the payment is coming from rather to where it's going? So the only way we can explain why we are looking into the best of the ניזק, is that the תורה is requiring the מזיק to pay as if he damaged the best of the ניזק.
C.6) 'תוס says there was no good reason why we should think this way (to pay more than he damaged) other that the way רבי עקיבא argued on רבי ישמעאל seemed to imply that רבי ישמעאל was מחייב more than the actual damage, and רבי עקיבא is מקיל that only what you actually damaged.
(Note 4) (pr)

גמרא תוס' ד"ה כגון
S. 1) The גמרא explains that the מחלוקת is in a case where the best of the ניזק equals the worst of the מזיק. According to ר' ישמעאל he can pay with his worst, since the ניזק is receiving what he considers the best. ר' עקיבא argues that he must pay with his best!
Q. 2) Why can't we say the opposite case, where the worst of the ניזק equals the best of the מזיק, and according to ר' ישמעאל he must pay what the ניזק considers the best (so he must buy that type of field) and ר' עקיבא is מיקל that he just gives his best, even if the ניזק considers it junk! (accordingly our משנה would be ר' עקיבא and the תיקון העולם would require him to buy what the ניזק considers מיטב)
A. 3) 'תוס answers that everyone agrees (according to the תורה and the תיקון העולם) that he does not need to purchase what he does not own in order to pay תוס') מיטב proves this from a גמרא in (:בבא קמא (ז)
S. 4) There is still an option to explain our משנה according to ר' עקיבא, if we hold like the מן דאמר that עידית is judged by the world market (שמין בשל עולם) {as opposed to in comparison to his own personal portfolio} In a case that the worst of the מזיק is considered prime in the עולם (world), ר' עקיבא would consider the worst of the מזיק as עידית, yet the תיקון העולם requires him to pay the best.
S. 5) And even according to the מן דאמר that the market value is not the barometer, we can still explain our משנה according to ר' עקיבא, in a case that the מזיק's best is equal to the worst of the ניזק, according to ר' עקיבא this is his best, so even the ניזק can't demand cash, since he is receiving what the תורה requires .Yet the תיקון העולם allows him to demand cash.
(Note 6)(pr)

.גמרא מט
S. 1) ר' עקיבא makes a קל וחומר from a regular person to הקדש, if a person damages another yid, he must pay עידית, so for sure by הקדש he must pay עידית.
2) The גמרא tries to figure out what ר' עקיבא is referring to, if his שור gored a שור that belonged to הקדש, he doesn't pay anything (let alone עידית) since ''רעהו'' excludes הקדש.
3) The גמרא attempts to say that it's referring to a person who promised to give $100 to הקדש and he doesn't have cash, so perhaps he must give from his best field. The גמרא rebuffs this, since הקדש isn't better that any other creditor that can only collect from בינונית.
4) The גמרא tries to salvage this attempt by suggesting that ר' עקיבא argues on our משנה and holds that all creditors can collect from עידית 5) The גמרא knocks this off too, since even if it's true that all creditors can collect from עידית, we still can't learn out עידית and apply it to הקדש, since הקדש has a weak point regarding collecting, like we find it can't collect from damage that was done to it's רעהו) שור) so maybe it's weak regarding collecting from עידית too.
C. 6) ר' עקיבא holds like ר' שמעון בן מנסיא who understands the דרשה of רעהו differently. The exclusion of הקדש is only regarding the הלכה that the first 3 times that a שור gores, the owner only pays for half of the damage, this only refers to a שור owned by רעהו, but if it belongs to הקדש, you must pay the full amount right away, therefore ר' עקיבא is referring to the original case and הקדש can collect the damages from עידית because of the קל וחומר.
(Note 8)(pr)

.גמרא מט
Q. 1) The גמרא asks if ר' עקיבא holds like ר' שמעון בן מנסיא who told us that ר' עקיבא argues with ר' ישמעאל regarding עידית of the מזיק or ניזק ,maybe the whole fight is regarding ר' עקיבא ,(רעהו) הקדש says you are חייב like ר' שמעון בן מנסיא and ר' ישמעאל holds like the חכמים that you are פטור?
2)The גמרא brings 3 proofs that they argue about מזיק orנזיק
1. ר' עקיבא seemed to disagree with ר' ישמעאל's interpretation of the פסוק of מיטב (not just רעהו).
2. If ר' ישמעאל is a קולה (its enough for the ניזק to be happy) what right do we have to make a קל וחומר to הקדש, because it's חומר and we don't have the קולא?
3. ר' אשי quotes a ברייתא that clearly lists the מחלוקת regarding עידית of the מזיק or ניזק.
(Note 9) (pr)

:תוס' ד"ה "שור" מט
Q. 1) Why can't the קל וחומר (to pay מיטב) refer to damage of הקדש thru שן or רגל, since רעהו only excludes נגיחת קרן and don't tell me that we learn from קרן to שן ורגל, (that they are also פטור when damaging הקדש), since maybe קרן that is only חייב for חצי נזק for the first three times, has the מיעוט (exclusion) of רעהו, but not שן ורגל.
A.A. 2) Regarding the גזירה שוה of ''תחת נתינה ישלם כסף'' that connects all the types of נזיקין regarding מיטב, perhaps it tells us to connect the פטור of רעהו to include שן ורגל as well.
Rebutal. 3) It can't be a general connector, only in regards to מיטב, because if not, all נזיקין should be פטור in ברשות הרבים (public domain)(similar to שן ורגל) and all the כלים and פסולי המקדשין, (similar to בור) and all things that are טמון (buried)(similar to אש).
A. 4) After we exclude קרן from paying to הקדש, now even if שן ורגל is חייב by הקדש, we still can't make a קל וחומר to require מיטב by שן ורגל, since there is a חומרא by a regular person, that if your שור damages his property, you must pay (even by קרן), so that't why we require מיטב too,but by שן ורגל that damages הקדש, since we find a קולא by הקדש regarding קרן רעהו maybe we also don't require מיטב.
A.#2 5) The ירושלמי holds that רעהו excludes שן ורגל too, and the בבלי :בבא קמא ט seems to agree, therefore there is no difference between קרן and שן ורגל, and the קל וחומר cannot be discussing damaging הקדש.
C. 6) 'תוס continues with another מקור that damaging הקדש isn't חייב, from the פסוק of 'ויקרא כ"ב - י"ד) איש כי יכול קדוש וגו) the גמרא in
יט:) מעילה) learns out that only יכול (eating) is חייב, but מזיק is not, (although a different פסוק tells us he must pay back the כהן for the תרומה, that's מדין גזילה). And the גמרא there learns out from תרומה to הקדש, so we see even if the person himself damages הקדש, he is פטור, for sure if it was just his animal ect.
Q. 7) So why do we need רעהו if we learn it from תרומה?
A. 8) If not for רעהו we wouldn't dare say he is totally off the hook, maybe he just doesn't need to add a חומש (fifth), but but now we have רעהו by קרן, we can understand that the פסוק by תרומה is letting him off the hook completely.
(Note 10) (pr)

:גמרא כתובות אשה - מר זוטרא מט
S. 1) מר זוטרא is מחדש that our משנה that says a woman only collects from ‏זיבורית refers to a case where the husband isn't around, so she collects from יתומים. But from her husband she gets בינונית.
Q. 2) The rule is whoever collects from יתומים only collects from זיבורית, so what's special about a כתובה, what's the חידוש?
A. 3) You might think that כתובה is an exception to the rule, because of קא משמע לן ,חן no exception.
E. 4) רש''י explains that חינא refers to men finding favor in the woman's eyes to encourage marriage. 'ירושלמי - רבינו חננאל) תוס) learns that she doesn't need encouragement, rather it's in order for her to be more attractive to her next husband.
Q. 5) רבא asks on מר זוטרא, that ר' מאיר argues with ר' יהודה and says that a woman collects from בינונית. What case is ר' מאיר referring to, if it's from יתומים, how can ר' מאיר argue with the rule that we don't collect from יתומים above זיבורית, obviously ר' מאיר is talking about collecting from the husband, and according to מר זוטרא, everybody agrees to that, so why does ר' מאיר seem to argue, it must be not like מר זוטרא, that even from the husband, ר' יהודה holds זיבורית?
A. 6) Here there is an exception to the rule, and we give her בינונית because of רש"י) חן - to encourage original marriage, 'תוס - future marriage).
Q. 7) אביי asks on מר זוטרא, the משנה lists 3 דינים:
1. ניזיק - עידית
2. בעל חוב - בינונית
3. כתובה - זיבורית
according to מר זוטרא that 3 is referring to collecting from יתומים, it follows that all 3 דינים should be consistent and refer to collecting from יתומים, if so the rule is everybody only gets זיבורית, so why does the משנה say different levels?
A. 8) ר' אחא בר יעקב answers that our משנה refers to a case where the father took responsibility (ערבות) to pay for any loan that defaults on, and to pay the כתובה to his son's ex-wife, therefore, whatever the son is responsible, he agrees to pay exactly how his son would have paid, so by damage he must pay עידית, and by a loan he pays בינונית, but regarding a כתובה, since his son doesn't always pay it, rather his children pay it after he dies, the grandfather only accepts on himself what the grandchildren would have paid, and since they are יתומים, he only pays זיבורית.
(Note 15)

(:גמרא - מפרשים (מט
I. 1) There is a מחלוקת in (:בבא בתרא (קעד weather an ערב is willing to guarantee a payment, when there is property that he can rely on to recoup his loss, or even if there are none.
Q. 2) Our גמרא assumes that our משנה refers to a case that there is no property at all. Therefore it's "shver" according to the מאן דאמר that the ערבת isn't valid where there are no assets, so what did we gain by saying that there's an ערב?
E. 3) רש"י explains the assumption of the גמרא, from the fact that we approach the ערב to pay, shows us that the husband wasn't able to pay, otherwise we would have no right too bypass him. 'תוס asks that regarding a קבלן we do have the right to go straite to the ערב, so maybe the husband does have property?
The מאירי explains that only if a קבלן accepted on himself to be more than a regular ערב, then we understand from him that he is willing to pay first even before the לוה was asked, but by כתובה the regular ערבת doesn't work, so he isn't accepting on himself more than the standard procedures of collecting, therefore you can't go to him first, unless the לוה doesn't have any property to pay from.
E.^#2 4) 'תוס offers a different reason for the assumption, since if the husband had assets, the יורשים should still have them, and they only pay from זיבורית, so even if you can go strait to the ערב קבלן, but he only has to pay what the יורשים would give, but our mishnasays by nizukin, the ערב pays עידית (and בעל חוב בינונית), it must be there were no properties at all.
The rashba asks that by קבלן it's irrelevant what they could have gotten from the יורשים he accepted full responsibility as if he was the only person involved, so why does 'תוס say that it depends on what he would have gotten from the property of the יורשים.
E.^#3 5) The ramban (brought down in the rashba) offers an alternative reason, since if the יורשים insist on paying on their own, they have the right to pay before the ערב קבלן, so why does the mishna write that nizukin must pay עידית, maybe the יורשים want to pay and they only pay זיבורית? It must be, they don't have any property to pay with.
E.^#4 6) The ritva answers the question of 'תוס on רש"י, that although the case of ksuba is by ערב קבלן (there's no regular ערב), but by nizukin and by בעל חוב can be talking about a regular ערב, and from there the גמרא realized that there is no property other than the ערב's. A.^#1 7) It's talking about the chusun had property but it got swept away.
A.^#2 8) Or you can say that a father who accepts arvus for his son, is sincere even if the son has nothing.
S. 9) We learnt that an areiv (plain) on a ksuba, everybody agrees is worthless. And an areiv kablan on a loan everybody agrees that it obligates him. But there is a machlokes regarding a plain areiv on a lioan and an areiv kablan on ksuba, in a case where the chusun and the loveh ad no properties is the arvus valid or not. The halacha is like the one who said it is valid. But a plain areiv on a ksuba isn't valid either way, since there is a mitzva and she isn't losing anything.
E. 10) 'תוס (d"h mitzva) explains that only when the two reasons (mitzva and lo chusar) apply, is the arvus invalid, but if there's no mitzva (after the chasuna) even if there's no loss, the arvus is valid, similarly if there is a loss (she gave him her yerusha) even if there is a mitzva, the arvus is valid.
The ritva argues that the main reason is that she didn't lose anything, so even if there's no mitzva, the arvus is still invalid. (After the chasuna or an arvus on a matana (present).
רש"י (d"h divrei hakol m"t:) omitted the reason of mitzva, it would seem that he held like the Ritva. Unless רש"י learnt like the rashbam (his grandson) in bava basra (d"h mitzva ka"d:) that seems to explain that mitzva is the main reason, and lo chusra is just explaining how he can be insincere about guaranteeing her ksuba, and the reason is since it's for her good and it's not causing her any damage.
(Note 16)

(.גמרא מר זוטרא משמיה דרב נחמן (נ
S. 1) A loan document that is written in it, that the מלוה can collect from the best ("shevach") if the loveh dies and it must be collected from the yesomim, מר זוטרא holds (from his father r' nachman) that the מלוה cannot collect עדית only זיבורית.
S. 2) Abaya says that we know from our mishna, that even though a בעל חוב normaly collects from בינונית, but from זיבורית he only gets זיבורית, so too even if they made up with a tnay to collect עדית, from yesomim only זיבורית.
Q. 3) רבא asks that you can't compare, in our mishna a בעל חוב really should get זיבורית like oola proved from the pasuk of bachutz taamod (he must stand outside and take whatever the loveh offers him, and that is generally זיבורית). But the chachamim in order to enourage lending, upgraded his rights to בינונית, yet regarding yesomim, the chachamim left them alone and didn't upgrade the מלוה's rights. That doesn't mean that when they made up a"p din and he has the rights to עידית that we will downgrade due to yesomim?
C. 4) Therefore רבא argues on מר זוטרא and abaya, and holds that if they made up עידית, he can collect that from yesomim too.
E. 5) 'תוס d"h kivon explains that רבא must hold shibuda deoraysa (that the tora recognizes a lien on the property) because if it is only a derabanan, just because the father promised to pay with עידית doesn't obligate the yorshim, and although they should pay his debts, they can pay זיבורית, so obviously he holds that the עידית property is owed to the מלוה ad it would be considered taking away his rights.
C. 6) מר זוטרא and abaya who argue on, either they hold shibuda is not mideoraysa, or they hold that the chachamim made a rule that yesomim only pay זיבורית with no exceptions.
E. 7) 'תוס d"h pachos - oola proved that mh"s a בעל חוב has the right זיבורית from the fact that the loveh can give him a keyly (utencil) 'תוס is bothered that all keylim are under the catagory of metav (bk"z:), so we don't see that the pasuk also refers to karka land(the marsha explains that for keylim we don't need a pasuk that he can give whatever he wants, since it's all good, it must be also talking about land).
(Note 18)

Credits
מגיד שיעור----------------------הרב לויתן
Creator and writer-----Dovid Shmuel Blau
Editor and writer--------------Yitzchok Bass
Editor #2------------------Cheskey Friedman
Editor #3 ---------------Meir Shalom Radich
Proofreader -------Tzvi Yaakov Sommerfeld
And class mates:
Binyomin Lane,
Sruly Yelen,
Shaya Applegrad,
Nosson Jampolsky,
Peretz Nosson Kagan.