Gittin 48b — the Talmud in English

As it is stated: “When you sell property to your fellow, or acquire it from your fellow, do not wrong one another. According to the number of years after the Jubilee you shall acquire it from your fellow

; according to the number of years of crops he shall sell it to you

—that is, the price must be set according to the number of years that have elapsed since the previous Jubilee and the number of years remaining until the Jubilee, because since the field returns to its owners at the Jubilee, it turns out that he acquires only the number of years remaining until the Jubilee”—? And since the verse states: “According to the number of years of crops he shall sell it to you,” it follows that the land itself is not sold at all; rather, it is the produce of each year until the Jubilee that is sold.

A baraita

supports Reish Lakish:

As it was taught:

a. A firstborn does not take a double portion in his father’s inheritance except with regard to property that was in his father’s possession at the time of his death. But with regard to property that, at the time of his death, was destined to come to his father, the firstborn does not take a double portion of it, as it is stated: “For he shall acknowledge the firstborn, the son of the hated one, to give him a double portion of all that is found with him”; and the Sages interpreted: “That is found with him”—excluding property that is destined to come to him.

b. How so? His grandfather died after the firstborn’s father had died, and his father inherits his own father from the grave. The firstborn does not take a double portion of this inheritance; rather, he takes, like all the other sons, one portion, because this field was not in the possession of the firstborn’s father at the time of his death. Rather, it was destined to come to him when his father died.

c. Nevertheless:

a firstborn takes a double portion in a field

that returns to his father at the Jubilee

—for example, his father sold a field and died, and the field returned at the Jubilee, so that the sons of the seller divide it among themselves. It is therefore proper that the firstborn take a double portion of this field, and we do not say: This field was not “in his father’s possession” at the time of his death, since it had been sold.

The reason is that the purchaser had only an “acquisition of produce” in the field, and “an acquisition of produce is not considered like an acquisition of the substance itself.” Therefore, the essential ownership of the field belonged to his father and not to the purchaser, and thus I can apply to it the phrase “of all that is found with him.”

Abaye said: We have received the tradition

from our ancestors, a practice transmitted by our teachers:

A husband with regard to his wife’s property

—a husband who enters litigation with a claimant concerning a field that his wife brought into the marriage as nichsei melog—

requires authorization

from his wife in order to litigate with the claimant. Otherwise, the claimant can say to the husband: “You are not a party to this litigation,” for you have only an acquisition of produce in the field, and “an acquisition of produce is not considered like an acquisition of the substance itself.”

And we said this

—that the husband requires authorization—

only

in a case such as

where he did not descend

into litigation with the claimant

concerning the produce

—that is, he is not litigating with the claimant concerning the produce at all.

But if he descended

into litigation with the claimant

concerning the produce

, he no longer requires authorization.

For

since, by virtue of his litigating concerning the produce

—as he is certainly a party to the litigation in that regard—therefore

he may litigate concerning the substance itself

as well, even though the substance itself belongs not to him but to his wife.

We have completed the chapter “HaShole’aḥ.”

Mishna:

Here the tanna repeats in the Mishna the laws that were stated for the sake of the world’s betterment. And in the Gemara it will be explained what “the world’s betterment” is in each of them: A.

Those who cause damage

[people whose property was damaged by other people],

their damage is assessed

their damage, and they collect it

from the best-quality land

[superior land] belonging to the property of the one who caused the damage.

B.

And a creditor

[a lender] collects his debt

from

land

of medium quality.

C.

And a woman’s marriage settlement

is collected

from inferior land

[inferior and poor land], and in the Gemara it will be explained whether this refers to a divorced woman collecting her marriage settlement from her husband, or to a widow collecting from the orphans.

Rabbi Meir

disagrees and

says:

It is not only a creditor who collects from medium-quality land, but

a woman’s marriage settlement also from medium-quality land.

D.

One does not collect,

even in the case of those who cause damage, their damage

from encumbered property

[which was sold to purchasers],

where there are

property assets in the possession of the one who caused the damage

that are unencumbered, and even

if the assets in the possession of the one who caused the damage

are inferior land

[while the assets that he sold to purchasers are superior land].

E.

One does not collect from the property of orphans except from inferior land.

And in the Gemara it will be explained whether this was enacted specifically in the case of minors, or even in the case of adults. And it will likewise be explained whether they enacted this specifically for creditors, or also for those who cause damage.

F. One who robs a field and sells it, and the purchasers sow it and it produces fruit, and likewise if they improved the land, the robbed party removes the field from them as it is, together with its fruit and its improvement, and the robbed party does not pay the purchasers who improved the field and raised its fruit except only their expenses. And when the purchasers return to the robber, “the seller,” in order to collect their loss from him, the value of the land itself, as they paid it to the robber-seller when he “sold” it to them, they collect even from encumbered property, that is, from other assets that the robber-seller sold from his property to other purchasers.

But

one does not remove

from encumbered property, neither

for consumption of fruit

[for the fruit that the robbed party removed from the possession of the purchasers, and thereby the purchasers lost the consumption of the field’s fruit, ],

nor

for

the improvement of land

[for the improvement of the land] that the robbed party removed from them, but they collect the value of these losses from the robber only from unencumbered property in his possession, and not from his other property that he sold to other people.

And

likewise one does not remove

for the sustenance of the wife and daughters,

which the husband is obligated to provide for his wife, and likewise the father is obligated to provide for his daughters until they marry, and they collect their sustenance from unencumbered property, and not

from encumbered property.

And all these laws that were mentioned here are

for the sake of the world’s betterment,

as will be explained in the Gemara.

G.

And one who finds a lost object

and returns it, while the owners claim that he did not return all of it, but only part of it,

does not swear

the oath of one who admits part of the claim

for the sake of the world’s betterment.

Gemara:

We learned in the Mishna: “Those who cause damage, their damage is assessed from the best-quality land, etc., for the sake of the world’s betterment.”

The Gemara wonders: Is this law indeed an enactment of the Sages

for the sake of the world’s betterment!?

Is it not a

Torah law? For it is written

[Exodus 22:4]: “When a man causes a field or vineyard to be grazed, and he sends out his animal, and it grazes in another’s field,

from the best of his field and the best of his vineyard shall he pay”!

he shall pay from the best of his field and the best of his vineyard”!?

He said

[he answered]:

Abaye:

Indeed, the law that damages are collected from the best-quality land is from the Torah. And what we learned, that it is “for the sake of the world’s betterment,”

is necessary

to say this

only according to Rabbi Yishmael, who says: from the Torah

only

from

“the injured party is assessed”.

It teaches us

our Mishna, that the Sages enacted

for the sake of the world’s betterment,

that people should be careful not to cause damage with their bodies or with their property, to make the manner of assessing the collection of damages more stringent, and

the assessment is made

even

from

the best-quality land

of the one who caused the damage.

That is to say, if the inferior land of the one who caused the damage was superior and equal in value to the best-quality land of the injured party, then although according to Torah law the one who caused the damage would pay the damage only from his inferior land, since it is equal to the best-quality land of the injured party, nevertheless, for the sake of the world’s betterment, the Sages enacted that the one who caused the damage pay from the best-quality land of his assets.

And we explain:

What is [the source for] Rabbi Yishmael

[where do we find the words of Rabbi Yishmael] who says that from the Torah the injured party is assessed?

For it was taught:

What is stated in the Torah:

“From the best of his field and the best of his vineyard shall he pay”,

this means that the assessment for collecting the damage is according to the

best

[superior land]

of the injured party’s field, and the best of the injured party’s vineyard; these are the words of Rabbi Yishmael.

Rabbi Akiva says: The verse came only to collect from the best-quality land for those who cause damage.

And below it will be explained that according to Rabbi Akiva, the injured party collects from the best-quality land of the one who caused the damage by Torah law.

And a kal va-chomer for

one who causes damage to the

sanctified property,

which collects from the best-quality land.

The Gemara now assumed that according to Rabbi Yishmael, “the best of the injured party’s field” means: payment of the damage according to the value of the finest furrow in the injured party’s fields, and therefore we refute:

And according to Rabbi Yishmael,

who says “the best of the injured party’s field”:

This is satisfactory if it

ate

a furrow

that was fine

among the injured party’s fields; indeed,

it pays for a fine one,

as it damaged.

But

it ate a poor one—

and is it so that

it pays for a fine one!?

Why should it pay more than it damaged?

He said

he answered:

Rabbi Idi bar Avin: Here, with what are we dealing:

For example, it ate

the animal the fruit of a

furrow

that was standing

between the furrows,

and the poor and fine furrows were intermingled with one another,

and we do not know whether

a

poor furrow it ate,

in which case it need pay only the value of a poor one,

or

a

fine furrow it ate,

in which case it must pay the value of a fine one—and concerning this the Torah said: “From the best of his field and the best of his vineyard shall he pay,” teaching us

that he pays him from the best

[the value of a fine one].

He said

he challenged:

Rava: How can it be possible to explain that this is the Torah’s intention?!

And behold,

if we knew

with certainty

that

it ate a poor one,

it is obvious to us that

it pays for a poor one.

If so,

now that we do not know

[when we do not know] which one it ate, is it so that

it pays for a fine one!?

For it is a Torah law that

the one who removes

money from his fellow,

upon him

rests the obligation of

proof,

and if so, why should we obligate the one who caused the damage because of uncertainty?!

Rather,

because of this difficulty,

he said

he explained

Rav Aha

bar Yaakov

the words of Rabbi Yishmael in a different manner: