Gittin 49b — the Talmud in English

And furthermore, here Rav Ashi said ![](pamud.bmp "

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It was taught explicitly,

that Rabbi Ishmael and Rabbi Akiva disagreed whether the valuation is made according to the damaged party or according to the damaging party:

“He shall pay the best of his field and the best of his vineyard”

that the Torah said

the best of the field of the damaged party and the best of the vineyard of the damaged party; these are the words of Rabbi Ishmael.

Rabbi Akiva says:

not so; rather,

the best of the field of the damaging party and the best of the vineyard of the damaging party.

Ravina said:

our Mishna is not according to the words of Rabbi Ishmael but

actually, our Mishna is Rabbi Akiva, who says that by Torah law the valuation is made according to the damaging party.

And

what we learned, “because of the betterment of the world,” is according to the view of

Rabbi Shimon, for he expounds

everywhere

the reason of the verse [

he explains the reasons of the laws of the Torah ].

And here too, indeed it is by Torah law,

and

the tanna

what reason

is it that he

says, “what reason”

did the Torah say

that the damaged parties are assessed from the best land because of the betterment of the world?

And as is explained in the beraita here.

For it was taught: Rabbi Shimon said: For what reason did they say:

the damaged parties are assessed from the best land [

of the damaging party ]!?

Because of the robbers and because of the violent extortionists [

a robber takes what belongs to his fellow and does not pay for the object; an extortionist takes it and pays against his fellow’s will ] and therefore they pay from the best land.

So that a person will say

who wishes to rob his fellow

“Why should I rob, and why should I extort,”

for

tomorrow

when the robbed person sues me, if the stolen object is not in my possession,

the court will descend upon my property and take

from me

a fine field [

the best land ]

of mine

and give it to the robbed person.

“And they rely on what is written in the Torah: ‘He shall pay the best

of his field and the best of his vineyard,’”

and through this he will refrain from robbing.

And

therefore they said:

all

damaged parties

are assessed from the best land.

b. And

for what reason did they say

a creditor

collects

from intermediate land!?

So that not

it should happen that

a person will see

that

his fellow has a fine field and a fine dwelling, and say

in his heart

“I will rush to lend to him so that

if he does not have money to repay,

I will collect it [

the field or the dwelling ]

with my debt.”

Therefore they said: A creditor collects from intermediate land

and not from the best land.

If that is so, since you are concerned lest he say, “I will rush to lend to him,” let us enact that

if you are concerned lest he say, “I will rush to lend him money,” let us enact that

a creditor shall

collect

from inferior land

alone, for if he collects from intermediate land, there is still concern lest he covet his fellow’s field and lend to him in order to collect it!?

We cannot enact this, because

if so, you lock the door

of lenders

before borrowers,

since the lenders will not wish to lend if they know that they will receive only inferior land.

c.

A woman’s marriage contract is collected from inferior land; these are the words of Rabbi Judah.

Rabbi Meir says:

a woman’s marriage contract is collected

from intermediate land.

Rabbi Shimon said: For what reason did they say that a woman’s marriage contract is collected from inferior land

and not from intermediate land, like any other creditor!?

Because more than a man wishes to marry

a woman,

a woman wishes to marry

a man. Therefore, it is sufficient for us to enact that she collect from inferior land, and there is no concern that she will refrain from marrying because she receives only inferior land.

And furthermore Rabbi Shimon said

another matter:

A

woman leaves

her husband

willingly and unwillingly,

for against her will her husband can divorce her.

But a man does not send her out [

his wife ]

except willingly [

if he wishes ].

And the Gemara thought that Rabbi Shimon came to give an additional reason why a woman’s marriage contract is collected from inferior land. Therefore we ask in astonishment:

What is “another matter”?

That is, where is there here a reason to make her collect her marriage contract from inferior land?

On the contrary, since the man sends her out against her will, it would be proper to enact the best land for her so that he would not send her out!?

And we explain: Rabbi Shimon did not come to give a reason for collecting a marriage contract from inferior land; rather, he spoke about another matter.

For

if you should say [

if you ask, why do we not say ]

that just as

like

when he sends her out

with a divorce document, willingly,

the Sages enacted a marriage contract for her from him,

if so,

when she leaves [

when she leaves him by compelling him to divorce her and give her a divorce document ],

should the Sages likewise enact a marriage contract for him from her!?

Rabbi Shimon came to say regarding this:

come [

come ] and

hear

an answer to your question: a woman does not send out her husband, and she cannot compel him to do so.

For indeed,

a woman leaves

when her husband wishes to divorce her, both

willingly and

and

unwillingly, and

if

a man does not send out

his wife even if she wishes it,

except willingly,

and she cannot compel him.

For if he wishes,

it is possible that he will keep her [

that he will keep her with him ]

with

what she needs to receive from him,

a divorce document [

a bill of divorce ]; and if he does not keep her, it turns out that he is divorcing her willingly, and there is no reason to enact a marriage contract for him from her.

We learned in the Mishna: And

a woman’s marriage contract is collected from inferior land.

Mar Zutra, son of Rav Nahman, said: We said [

they said ] in the Mishna a woman’s marriage contract is collected from inferior land

only

in the case of a widow collecting

from orphans.

But

a divorcee collecting her marriage contract

from him himself [

from her husband ] collects

from intermediate land.

And we ask in astonishment: If what we learned, “from inferior land,” means

from orphans,

if so, the difficulty is

why is it specifically

what did the tanna see fit to say

a woman’s marriage contract

specifically; surely

even every matter [

every thing — damages and a creditor ]

also

is collected from inferior land!?

For we learned

in our Mishna,

one does not collect

whether damages, or a creditor, or a woman’s marriage contract

from the property of orphans, except from inferior land,

so what did the tanna see fit to emphasize specifically regarding a woman’s marriage contract, that she collects from inferior land!?

Rather,

certainly

not

as you said; and what they said, “from inferior land,” applies also to a divorcee who collects

from him [

from her husband ].

And we answer:

actually, according to the words of Mar Zutra, that a woman’s marriage contract is collected from inferior land specifically when collecting

from

orphans. And

in

a woman’s marriage contract it was necessary for him

for the tanna to emphasize that it is only from inferior land.

And because

it might enter your mind

that

because of hina

of marriage, so that men would be favorably regarded by women, therefore

the Sages were lenient with her [

regarding the marriage contract ], and even from orphans she would collect from intermediate land.

It teaches us this!

Rava said: Come and hear

to challenge the words of Mar Zutra:

We learned:

Rabbi Meir says: A woman’s marriage contract is collected from intermediate land,

and

from whom [

from whom ] does she collect from intermediate land?

If you say [

if it is said ]

from orphans,

but does

Rabbi Meir not hold this that we learned: One does not collect from the property of orphans except from inferior land!?

Rather, is it not

with a woman collecting her marriage contract

from him,

said Rabbi Meir?

By inference [

it follows from here ]

that the Sages hold

that a woman’s marriage contract from him is

from inferior land!?

And we answer:

No,

we did not learn this regarding collecting from him; rather,

actually

from orphans, and

even so,

a woman’s marriage contract is different

in that she collects from intermediate land

because of hina.

Abaye said: Come and hear

to challenge the words of Mar Zutra:

We learned in the Mishna:

The damaged parties are assessed from the best land, a creditor from intermediate land, and a woman’s marriage contract from inferior land.

And

from whom

does she collect,

if you say from orphans?

The difficulty is:

why specifically a woman’s marriage contract

from inferior land; surely

even all these [

damages and a creditor ]

also

have their law from inferior land!?

Rather, is it not

necessary for us to explain that she collects her marriage contract

from him,

and even so she collects only from inferior land, contrary to Mar Zutra!?

He said [

he answered ]

Rav Aha bar Yaakov:

The Mishna is not dealing with the damaging party himself, nor with the borrower himself, nor with the husband who divorces, nor with a widow collecting her marriage contract from the orphans.

Rather,

here with what are we dealing? For example, when

after the damage

a person became

a

guarantor

for the damages of his son.

And likewise, when he became a guarantor

for a creditor

of

his son.

And

likewise, when he became a guarantor

for his daughter-in-law’s marriage contract.

And in all these cases, the father undertook to repay his son’s debt if the son would not pay; the son did not pay and died,

and now they all come to collect from the guarantor.

And this one [

this person ], collects

according to its law [

according to its law ],

and this one, according to its law.

Damages and a creditor, while the son was alive

of the son

collected [

their law was to collect ], since his obligation took effect while he was alive.

He [

the guarantor ]

also, when he makes them collect

for them,

as

they would have collected from the son

while he was alive, he makes them collect,

the guarantor, for them.

But

a woman’s marriage contract, since

she is a widow,

she collects after death.

And after death,

behold

from whom does she collect? From orphans,

and therefore

he [

the guarantor ]

also, when he makes the marriage contract collect

for her,

as

like

after death

it is

that he makes it collect

for her.

And we challenge this:

And

if it is speaking about a guarantor,

it follows that, since a guarantor for a marriage contract

entirely

does not become obligated

to repay, as will be explained below!?

And not only will the woman not collect from intermediate land, but she will not collect even from inferior land from the guarantor!?

Although a “guarantor” does not become obligated for a woman’s marriage contract, a “contractual guarantor” does become obligated. Which is a “guarantor for a marriage contract,” and which is a “contractual guarantor”?

“A guarantor for a marriage contract” is one through whose undertaking to pay her marriage contract the woman married.

A “contractual guarantor for a marriage contract” is one to whom the husband handed over movable property for his wife, and she gave it into the hands of the contractual guarantor by way of contractual guarantee, and afterward returned it to her husband. [And see in the note ]

And we answer: here

in

the father became a

kablan

for the ketubah of his daughter-in-law we are discussing, and a kablan undertakes liability even for a woman’s ketubah.

And we raise an objection: still,

this works according to the one who says

below, that

a kablan, even though the debtor has no assets, undertakes liability

to the creditor; it comes

out well.

But according to the one who says,

if the debtor has assets,

the guarantor undertakes liability

because he relies on the fact that the creditor will collect from them, and therefore he makes himself liable, and his intention is to pay if the assets are subsequently lost.

But

if he has none, he does not

resolve in his heart to be

liable,

because he is afraid of suffering a loss, and his undertaking is merely words.

If so, according to this view,

what is there to say!?

For here, the son has no assets, since if he had any, they would collect from him, for “one does not collect first from the guarantor,” and the father does not need to pay And since the son has no assets, it turns out that the father did not at all undertake to be a guarantor—so why should he pay!?

And we answer:

alternatively: when he had

assets, when the father became a guarantor]

and

afterward

the fields were ruined

the fields deteriorated]

And alternatively:

the son did not have assets, and nevertheless,

everything

that is

with regard to his son

for the sake of his son], because of his affection,

he makes himself liable

the father

himself

himself].

Now the Gemara returns to specify the laws of a guarantor and a kablan: when he undertakes liability, and when his intention is not to undertake liability.

It was stated

1.

A guarantor for a ketubah

who is not a “kablan,”

according to everyone: he does not undertake liability,

since he intended only to perform a mitzva, so that the woman would agree to marry, and he did not thereby cause her a loss and therefore it was not his intention to undertake liability for her ketubah.