Gittin 52a (נב.) — the Talmud in English

Mishna:

Orphans

[minors]

who attached themselves

to

a householder,

so that he would manage their property and attend to their needs, while they would conduct their affairs according to his instructions,

or whose father appointed for them

[on their behalf]

someone

who would be

a guardian

over their property, or whom the court appointed for this purpose.

He may prepare their produce and separate terumot and tithes; moreover,

he is obligated

to

tithe

their

produce,

since he is responsible for the welfare of the orphans.

We learned in a Mishna [Shevuot 42a]: “And these are required to take an oath even without a definite claim [meaning, not on the basis of a definite claim, but when the claimant makes only an uncertain claim against him: Perhaps you withheld something of mine]: partners, tenant farmers, and guardians,” since they work with the property, and we are concerned that perhaps they deemed it permitted for themselves and took from the property; therefore, they are made to take an oath concerning this.

A guardian whom the father of orphans appointed,

when the orphans mature and their property leaves his control,

must take an oath

to them that he has nothing of theirs in his possession.

If the court appointed him, he does not take an oath,

for the sake of the betterment of society, as will be explained in the Gemara.

Abba Shaul says: The matters are reversed:

if the court appointed him, he takes an oath, and if the father of the orphans appointed him, he does not take an oath, for the sake of the betterment of society.

Gemara:

We learned in the Mishna: “A guardian is obligated to tithe the produce” of the orphans.

And we raise a contradiction:

but it was taught in a beraita:

It is written [Numbers 18:28]: “So shall you also offer a teruma of the Lord from all your tithes.”

And we expound:

1.

“You”

but not partners,

as a partner may not contribute teruma on behalf of his fellow’s share without his knowledge.

2.

“You”

but not tenant farmers,

as a tenant farmer may not contribute teruma on behalf of the householder’s share.

3.

“You”

but not guardians.

4. And all the more so

do we expound “You”

but not one who contributes teruma from that which is not his

at all.

If so, it is difficult: How can we have learned that a guardian contributes teruma from the orphans’ produce!?

And we answer:

Rav Ḥisda said: It is not difficult

to reconcile the Mishna with the beraita.

Here

[the Mishna]

speaks of feeding

the orphans immediately, and this is what we learned: “A guardian is obligated to tithe their produce.”

Here

[the beraita]

speaks of setting aside

the grain in a storehouse until they mature, and this is what they said: “‘You’ but not guardians.” For why should they tithe it? When the orphans mature, they themselves will tithe it.

But it was taught in a beraita,

another beraita, in accordance with Rav Ḥisda’s statement:

The beraita before us details the laws governing a guardian:

1.

Guardians contribute teruma and tithe in order to feed, but not in order to set aside. —

In accordance with Rav Ḥisda’s statement.

2.

And they may sell

the guardians

animals, slaves and maidservants, houses, fields, and vineyards for them to feed

the orphans immediately with the proceeds.

But not in order to set aside

the money, lest the money be stolen; and also because it is in honor of their father’s household that these assets remain in their possession.

3.

And they may sell them produce, wines, oils, and fine flours

[the language of fine flour],

in order to feed them, but not in order to set it aside.

4.

And they make for them a lulav

[the four species of the lulav]

and a willow branch

for Hoshana Rabba,

and a sukka and ritual fringes, and

likewise

everything that has

[expenses to be incurred for it] a defined limit and

a fixed measure.

And we learn

to include

[to include] among these even

a shofar,

which they must make for them, since they are obligated in these mitzvot by virtue of education.

5.

And they acquire a Torah scroll for them

to study from, and likewise

tefillin

and mezuzot, and

likewise

everything that has a fixed measure, to include a Megilla

[the Scroll of Esther].

6.

And

nevertheless

they may not impose

[fix]

upon them

the obligation to give

charity,

because it is something without a fixed measure, as there are poor people at every moment, and if we impose charity upon them, their property will be exhausted.

And

likewise

they may not redeem

[with their money]

captives,

even though it is a great mitzva.

And not every matter without a fixed measure

and limit; and we learn

to include

even

comforting mourners

[when they would bring an abundance to the mourner’s home in order to eat and drink with him ]

7.

And guardians are not authorized to litigate

with one who challenges the orphans’ ownership of property, lest the orphans become liable through their claims. Rather, they should defer the litigation, and when the orphans mature they will litigate with him.

And it might have been understood that they are not authorized to litigate either

to the detriment or

to the

benefit of the

case concerning

the orphans’ property.

And we ask: If it is

for their benefit, why may they not

litigate with him? If they litigated and the orphans in fact prevailed, why would the judgment not be valid!?

And we explain:

Rather,

this is what it means: A guardian has no power

“to the detriment”

of the orphans, and even if he entered litigation

“in order to benefit” the orphans’ property,

nevertheless, if they are found liable, the orphans do not suffer a loss.

8.

And guardians are not authorized to sell

one field and purchase another, nor may they sell a field situated

far away

from their location, where it entails exertion and loss,

and redeem

[purchase, even if it had belonged to them and they had sold it ] a field situated

nearby

and convenient to manage.

Likewise, they may not sell

a

field

of inferior quality and redeem it with one of superior quality.

And we explain:

What is the reason

that they may not purchase a superior field? It is

because perhaps they will be blighted,

meaning, perhaps specifically that purchased field will be blighted and ruined, and they will thereby have caused the orphans’ property to be lost.

9.

And guardians are not authorized to sell fields

that the orphans do not need

and purchase

in exchange for them

slaves,

even though the orphans need them, lest they die or become ill.

But they may sell slaves and purchase fields with the proceeds,

because fields are more enduring than slaves.

Rabban Shimon ben Gamliel says: They may not even sell slaves and purchase fields.

And we explain:

What is the reason,

according to Rabban Shimon ben Gamliel, who prohibits purchasing fields where there is no concern of death or illness? It is

because perhaps they will not be secure

[perhaps they will not be free of challenges to their ownership].

10.

And guardians are not authorized to emancipate slaves,

even though the slave redeems himself for his value and the orphans suffer no loss; nevertheless, the guardian does not have the ownership necessary to emancipate him

But,

if the orphans require money for sustenance or to purchase fields,

they may sell them to others,

as a complete sale,

and the others may emancipate them,

if they wish.

Rabbi says: I say that he too may give

the guardians

his own value

[the money equal to his value]

and go out

to freedom, for just as they are authorized to sell him to others, so too they are authorized to accept the money from the slave

because

the guardian

is considered to have sold him to himself

[to the slave himself].

11.

And he must render an account with them at the end

[at the end of the guardianship], when the orphans mature; he must calculate with them how much he brought in and how much he expended, and he must take an oath that nothing remains in his possession.

Rabban Shimon ben Gamliel says:

He is trusted, and

does not need

to render an account with them.

12.

The

court does not

appoint

[as guardians]

women as guardians,

as it is not their practice to go out and come in and toil,

and

it does not appoint

slaves as guardians,

as they are not trustworthy,

and

it does not appoint

minors,

as they lack the requisite understanding.

But if the father of the orphans appointed them

to be guardians,

the authority is in his hands.

There was a certain steward who lived in the neighborhood [

his neighbor]

of Rabbi Meir, who was selling land and buying slaves [

selling orphans’ land and buying slaves].

And Rabbi Meir did not allow him [

and did not permit him]

Rabbi Meir to do so, as we learned: A steward may not sell fields and buy slaves.

to do this, as we learned: trustees are not permitted to sell fields and buy slaves.

They showed him in a dream [

they showed Rabbi Meir in a dream]:

“I am destroying, and you are building!?”

The money had come to their father through a prohibition, and in Heaven they wanted it to be lost.

Even so, he paid no attention [

Rabbi Meir did not take notice of the dream because]

he said: Dreams have neither effect nor consequence;

perhaps the matter was not true.

There were these two men whom Satan had provoked [

those two people whom Satan had incited] to cause them to sin,

for every twilight [

between sunset and nightfall] on Friday evening,

they would quarrel with each other [

they would fight with one another].

Rabbi Meir happened to come [

happened to arrive]

there [

to that place].

He kept them from quarreling [

he prevented them from fighting]

for three Friday twilights, until he brought about

through this

peace [

they were reconciled with one another].

He heard [

Rabbi Meir heard Satan],

saying: “Woe!” [

an expression of distress]

“for Rabbi Meir has driven that man from his house” [

for Rabbi Meir had driven that man from his house]; Satan was referring to himself, since the place of strife and quarrel is Satan’s house.

There was a certain steward who lived in the neighborhood [

his neighbor]

of Rabbi Yehoshua ben Levi, who was selling [

selling]

land

that was not needed by the orphans

and buying oxen [

buying oxen for working the land].

And he did not say anything to him—

Rabbi Yehoshua ben Levi

not even a word [

anything].

Because

Rabbi Yehoshua ben Levi considered

Rabbi Yehoshua ben Levi

to be in accordance with Rabbi Yosei,

who held that the ox is the principal component of the field, and therefore the steward may sell a field and buy oxen.

As it was taught in a beraita: Rabbi Yosei said: In all my days [

ever]

I never called my wife “my wife.”

And

I never called

my ox “my ox.”

Rather, I called my wife

I would call her

“my home,”

because she is the principal part of the home, since all the needs of the home are carried out through her; and it is stated [Proverbs 14:1]: “The wise among women builds her house.”

And my ox

I would call

“my field,”

because it is the principal part of the field, and it is written [Proverbs 14:4]: “But abundant produce comes through the strength of the ox.”

There were these orphans [

those orphans]

who had placed themselves under the care of a certain old woman [

who had taken them under her care].

They had a cow [

a cow],

and she took it and sold it on their behalf [

she sold it to others].

They came [

they came]

relatives before Rav Naḥman to complain about that old woman.

They came before Rav Naḥman to complain about that old woman.

They said to him

the relatives said to Rav Naḥman:

“What authority did she have to sell it?”

That is, who appointed her as steward, and how could she sell it!?

He said to them

Rav Naḥman said:

“We learned: ‘Orphans who placed themselves under the care of a homeowner.’”

That is, we learned that a person becomes a steward because the orphans place themselves under his care, even though the court did not appoint him and the orphans’ father did not appoint him. They said to him:

“But the price rose” [

the market price had risen], whereas the old woman had received for the orphans the lower market price.

A treasurer who purchased on behalf of the Temple treasury, or who sold to an ordinary person, effects the acquisition not through pulling but only through payment of money.

An ordinary person who purchases from an ordinary person effects the acquisition through pulling and not through payment of money.

Rav Naḥman replied to them: Once the buyers had pulled the item, the price rose, and

the price rose while it was in the buyer’s domain.

They said to him:

“But”

still,

they had not received

the orphans had not received

the money.

He said to them: “If so,”

the cow’s price rose while it was in the orphans’ domain, and

this is the same as what Rav Ḥanilai bar Idi said [

in the name of]

Shmuel.

For Rav Ḥanilai bar Idi said in the name of Shmuel: The property of orphans

the Sages instituted that

is considered like Temple property, and is not acquired

through pulling

but only through payment of money.

The wine [

his wine]

of Ravina Ukva [

a person’s name],

the orphan [

the orphan],

was pulled

by buyers from the steward

at

the price of

four and four

dinars per barrel.

And

before the money was given,

the price rose

of the wine

, and stood [

stood]

at six and six [

six and six] dinars per barrel.

They came before Rav Naḥman, to ask whether their pulling had effected the acquisition, so that they had to pay only four per barrel, or whether they had not yet acquired it and the orphan could retract.

They came before Rav Naḥman to ask whether their pulling had effected the acquisition, so that they had to pay only four per barrel, or whether they had not yet acquired it and the orphan could retract.

He said to them: “This is the same as what Rav Ḥanilai bar Idi said in the name of Shmuel, for Rav Ḥanilai bar Idi said in the name of Shmuel: The property of orphans is considered like Temple property”

by rabbinic institution,

and is not acquired

through pulling

but only through payment of money,

and therefore, as long as the buyers had not given the money, they had not acquired it.

The Gemara now explains in which case the statement of Rav Ḥanilai—that the property of orphans is considered like Temple property—applies.

For sometimes it is to the orphans’ benefit that they should acquire through pulling, like an ordinary person, and not through payment of money. In that case, the orphans have the status of an ordinary person, since the Sages instituted acquisition through money for their benefit and not to their detriment.

a.

Pull [

the buyers pulled]

the produce belonging to orphans,

and before payment was made,

the price of the produce rose

the produce.

This is the case of Rav Ḥanilai bar Idi,

and the orphans may retract.

b. They pulled produce from the orphans, and afterward

its price fell [

its price decreased]. The buyers may not retract, and they must pay according to the price at the time of pulling.

For

the power of an ordinary person cannot be more stringent

and superior

than

the power of

Temple property.

In a case where the produce became cheaper after the pulling, the ordinary person benefits from the fact that “pulling effects acquisition” for him; therefore, the same law applies to orphans, and they acquire through pulling.

c.

Buyers caused produce to be pulled for the orphans [

buyers gave the orphans produce to pull], if

the price of the produce rose

the produce.

It is to the orphans’ benefit to acquire through pulling, like an ordinary person, and therefore we say:

the power of an ordinary person cannot be more stringent than that of Temple property,

and they pay only according to the price at the time of pulling.

d. Orphans pulled produce, and before payment was made,

the price of the produce fell

the produce.

They thought [

the members of the academy thought to say regarding this law]: It is to the orphans’ benefit that the pulling should not benefit them, and

this is the case of Rav Ḥanilai bar Idi,

so the orphans would be able to retract.

Rav Shisha, son of Rav Idi, said to them: “This” [

behold] is not to their benefit; rather,

it is a detriment to them [

for them].

For sometimes they will need produce [

because sometimes the orphans will need produce] while they will not have cash available to them.

And there will be no one who will give it to them [

there will be no one willing to give it to them]

until they give money [

until they pay money].

Therefore, they acquire through pulling, and they pay according to the price at the time of pulling, because in such a case the Sages did not institute that pulling should not effect acquisition for orphans.

e.

They gave [

they gave]

the orphans’ money

to the seller

for produce,

and before the produce was pulled,

its price fell

the produce.

It is to the orphans’ benefit that they be able to retract , so that they acquire only through pulling, like an ordinary person; therefore, we say:

the power of an ordinary person cannot be more stringent than that of Temple property.

f. Orphans gave money to the seller, and before the produce was pulled,

the price of the produce rose

the produce.

They thought [

the members of the academy thought]:

This is the case of Rav Ḥanilai bar Idi,

so they acquire through giving the money, the seller may not retract, and they need not add to the original price.