Gittin 52b — the Talmud in English

Rav Shisha, son of Rav Idi, said to them: This is a disadvantage for them, ![](pamud.bmp "

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for they may come

[lest the sellers come] to say

to them

[the orphans],

“Your wheat has been burned,”

which was

in the upper room.

That is to say: If the orphans purchase with their money, the wheat in the seller’s upper room belongs to them. If a fire breaks out, the seller will not trouble himself to extinguish it, since he can say to the orphans: “Your wheat has burned, and you have suffered the loss.”

Therefore, it is for the orphans’ benefit that the seller should be able to retract if the produce becomes more expensive. Consequently, the wheat remains in the seller’s domain, and if a fire breaks out, it is the seller, not the orphans, who suffers the loss.

7.

Others give

[other people]

money to the orphans for produce

[in order to purchase the orphans’ produce].

If

it becomes more expensive

[the produce becomes more expensive] before the customers physically take it, it is for the orphans’ benefit that the money should not effect the acquisition.

Therefore,

the power of an ordinary person

who does not acquire through payment of money

should not be greater than that of consecrated property

[the orphans]; the money likewise did not acquire the produce from the orphans, and they may retract.

8. Others gave money to the orphans in order to purchase produce from them, and

the produce became cheaper

before the customers physically took it.

The members of the academy thought

[the members of the academy]:

This is the same as the ruling of Rav Ḥanilai bar Idi,

in which the acquisition takes effect through the money, and the customers may not retract.

Rav Shisha, son of Rav Idi, said to them: This is a disadvantage for them, because there are times when

the orphans

need money, and there is no one who will give them

money

until they give

[to the customer]

the produce.

That is to say: If, whenever customers give money to the orphans, we always rule in the orphans’ favor, the orphans will ultimately suffer a loss. No one will want to give them money without receiving the produce immediately, while there are times when the orphans need money and are unable to provide the produce immediately.

Therefore, it is for the orphans’ benefit that in this case their status should be like that of an ordinary person, and the customers do not acquire the produce completely until the time of physical possession.

It follows that the law governing orphans is equal to the law governing all other people in every respect, except in the case where others physically took produce from them and it became cheaper.

The property of orphans may not be sold, even for their needs, except after a public announcement for thirty days: “So-and-so’s land is being offered for sale in court,” so that the land will be sold for a higher price.

Rav Ashi said: Rav Kahana and I signed

[we served as witnesses to]

a document belonging to the mother of the orphan Zeira,

who was his guardian,

that she was selling

the orphans’ land

for the head tax

of the orphans [to pay the poll tax imposed by the king on the orphans]

without a public announcement,

because the king’s tax collector was hurrying on his way, and perhaps he would become angry if they delayed him, causing the orphans to suffer a loss. Although property is not sold without a public announcement for the other needs of orphans, here it is different, in accordance with the statement of Neharde’a.

For Neharde’a said:

a.

For the head tax

of the orphans.

b.

And for the maintenance

of the wife and daughters who are supported from his property after his death, or for the needs of the orphans.

c.

And for burial

of a deceased person or of the orphans.

In all these cases,

we sell

immediately,

without a public announcement,

because the matter is urgent and it is impossible to wait.

Amram the dyer

[he was a dyer]

was the guardian of orphans.

Relatives came

to complain about him

before Rav Naḥman.

They said to him: He dresses and covers himself

[he dresses and covers himself with clothing]

from

the property

of orphans,

and thereby robs them.

He said to them:

He is permitted to do so, because it is for the orphans’ benefit that he should appear to be an important person,

so that his words will be heeded

[so that, as a result, his instructions will be obeyed] and people will do his bidding when he deals with the orphans’ needs.

They said to him:

He eats and drinks from their property.

“And he is not considered wealthy,”

that is, he is not sufficiently wealthy, and therefore it is reasonable to assume that he is eating and drinking from the orphans’ property.

He said to them: This is no proof that he eats from the orphans’ property, because

perhaps

[it may be assumed and said]:

he found a lost object

[he found it], and he is eating the proceeds from it.

They said to him:

But he is causing a loss

to the orphans’ property, because he is not managing it properly.

He said to them: Bring me witnesses

[bring me witnesses]

that he is causing a loss, and I will remove him

[and remove him], so that he will no longer be their guardian.

For Rav Huna our colleague

[who was Rav Naḥman’s colleague]

said in the name of Rav: A guardian who causes a loss is removed.

It was stated: If a guardian causes a loss, Rav Huna said in the name of Rav: We remove him.

The scholars of the academy of Rabbi Sheila said: We do not remove him.

And the g halachic ruling is:

a guardian who causes a loss,

we remove him.

We learned in the Mishna:

A guardian appointed by the orphans’ father must take an oath.

And we explain:

What is the reason

that he must take an oath, and why do we not fear that, because he knows he will ultimately have to take an oath, he will initially refrain from becoming a guardian?

Because

if he did not derive benefit from him,

the father,

he would not have become

[he would not have become]

a guardian, and because of the oath he will not refrain

[he will not refrain], since he benefited from him.

However,

if the court appointed him, he does not take an oath.

Because

it is merely a favor

[a gratuitous benefit]

that he does for the court, and

therefore,

if you impose an oath upon him,

we are concerned that perhaps

he will refrain

from accepting the guardianship initially.

Abba Shaul says: Reverse the matters.

And we explain:

What is the reason?

If the court appointed him, he must take an oath,

because

through the benefit that he receives from the reputation that he is a trustworthy person

[through the benefit of acquiring the reputation that he is a trustworthy person],

since the court relies upon him, he will not refrain because of the oath.

However,

if the orphans’ father appointed him, he does not take an oath,

according to Abba Shaul.

For one can say:

It was merely a favor that they did for one another,

that is, their relationship was one of affection and friendship, and the guardianship was a gratuitous favor, since there was not such significant financial benefit between them.

And

therefore,

if you impose an oath upon him,

there is concern that perhaps

he will refrain

from becoming a guardian. Therefore, he was exempted from taking an oath.

This exemption from an oath is a “repair of the world,” so that suitable people will agree to become guardians for orphans.

Rav Ḥanan bar Ami said in the name of Shmuel: The halachic ruling is in accordance with Abba Shaul,

and therefore, a guardian appointed by a court must take an oath, while one appointed by the orphans’ father does not take an oath.

It was taught in a beraita: Rabbi Eliezer ben Ya’akov says: In both cases

[whether the guardian was appointed by the orphans’ father or by the court]

he must take an oath.

And the beraita rules:

The halachic ruling follows his statement

of Rabbi Eliezer ben Ya’akov.

Rav Taḥlifa of the West taught

a beraita

before Rabbi Abbahu:

A guardian appointed by the orphans’ father

must take an oath, because he is a paid guardian,

indicating that he must take an oath because he received payment for his guardianship.

He said to him

[Rabbi Abbahu challenged Rav Taḥlifa]:

Did you bring a measure

[a measuring vessel]

and measure him with it

[measure him]?!

That is to say: Are all guardians presumed to receive payment for their appointments?!

Rather, say

[say this instead]: He must take an oath, and there is no concern that he will refrain from becoming a guardian,

because he is

like a paid guardian,

since he acts this way because of the benefit he received from the orphans’ father.

Mishna:

Our Mishna, too, deals with laws that were instituted “for the repair of the world.”

a.

One who renders

his fellow’s ritually pure produce impure, such as teruma, thereby damaging it, since it is forbidden to eat impure teruma.

b.

And

likewise

one who mixes

teruma with his fellow’s non-sacred produce, thereby causing him a loss, since the mixture becomes forbidden to non-kohanim and must be sold cheaply to kohanim.

c.

And

likewise

one who pours wine as an idolatrous libation

belonging to his fellow, as the Gemara explains.

In these three cases: If he caused the damage

unintentionally, he is exempt

from payment, but if he caused the damage

intentionally, he is liable,

and this law is for the repair of the world, as will be explained in the Gemara.

Gemara:

It was stated: “One who pours wine as a libation,”

as we learned in the Mishna:

Rav said

[he explained]:

It means one who actually pours a libation,

for example, one who swirls his hand in the wine for the sake of idolatry.

And Shmuel said

[he explained]: The Mishna is not speaking of one who pours the wine as a libation to idolatry, but of one who

mixes

idolatrous wine with his fellow’s kosher wine, thereby rendering his fellow’s wine forbidden to derive benefit from.

And we explain:

The one who says “he mixes,”

[Shmuel],

what is the reason that he did not say “he pours a libation”

in the literal sense, as Rav said?

A person is not held liable for a single act both by the death penalty and by monetary payment.

For example, if he worshipped idolatry by using his fellow’s property and thereby rendered it forbidden to derive benefit from, since he is liable to lose his life, he cannot also be held liable monetarily, and he is exempt from monetary payment.

For

he could say to you,

it is impossible to interpret the Mishna as referring to

actual pouring

for he is one who performs idolatrous worship, and intentionally he is liable to stoning, and he is exempt from paying because of

kam lei be-rabba minei [he stands liable for the greater punishment of death rather than the punishment of monetary payment].

[he is subject to the more severe punishment of death rather than monetary punishment].

But the other [Rav]

could say to you: he is not exempt on account of kam lei be-rabba minei,

as

was explained by

Rabbi Yirmeya.

For Rabbi Yirmeya said:

the monetary liability and the liability for the transgression do not arise at one time.

For

from the time of lifting

when he lifted the vessel together with the wine,

it is then that he acquired

the wine with regard to the obligation of payment, since he lifted it with the intention of stealing it.

Whereas

he becomes liable for his life,

because he performed idolatrous worship,

was not until the time of

the

pouring,

and therefore his liability for the pouring does not exempt him from monetary payment.

And according to the one who says, “actual pouring,”

[Rav]:

what is the reason that he did not say, “mixing”

[as Shmuel does]?

For

he could say to you: “mixing”

the wine of libation with permitted wine.