Kiddushin 42b — the Talmud in English

This —

for he holds that Rav Naḥman agrees with the Sages, who do not say, “If so, what is the power of the court worth?”" \-

This applies specifically

when they erred

the court, and in accordance with the dispute between the Sages and Rabban Shimon ben Gamliel, which concerns the court’s error in assessing the properties.

This —

that Rav Naḥman said: Once the orphans came of age, they cannot protest against the division made by the guardians, because “if so, what is the power of the court worth?” — this applies specifically in a case

where they did not err

the guardians appointed by the court.

And we raise an objection:

If they did not err

the guardians,

what

is the meaning of that which Shmuel said: “Once they came of age, they

can protest,”

and in what matter could they protest!?

And we answer:

They can protest regarding the directions,

for if the land that was given to the orphan in a certain direction is not convenient for him, such as when other land that is adjacent to the rest of his fields is preferable for him, then he can, according to Shmuel, invalidate the division and demand a new division; and Rabbi Naḥman disputed this protest and holds: “If so, what is the power of the court worth?” since there is no error here.

Rav Naḥman said:

The brothers who divided

their father’s inheritance and erred in assessing the properties, and one was cheated,

they are

with regard to the law of overreaching

like purchasers

who cheated or were cheated, and this is their law:

Overreaching

by less than a sixth: the sale is acquired,

the division stands, because people waive [an overcharge] up to a sixth.

Overreaching

by more than a sixth: the sale is void,

the division is void, and they return and divide anew.

Overreaching

by a sixth: he acquires,

the division stands,

and he returns

to his brother the

overcharge.

Rava said:

That which I said

with regard to the division of inheritances:

“By less than a sixth, the sale is acquired,” I said this only where he did not appoint an agent,

that is, one brother did not make the division as his brother’s agent, but both of them divided together.

But where he appointed an agent,

that is, where one divided as his brother’s agent, then the division is void, because he can

say

the principal to his agent: “

I sent you to correct and not to distort” [

I sent you to correct and not to wrong me].

And that which I said

with regard to the division of inheritances:

“By more than a sixth, the sale is void,” I said this only where he did not say: “Let us divide according to the court’s assessment,”

that is, where they did not agree between themselves that the division and assessment of the properties would be valid as though it had been carried out by a court,

but where he said: “Let us divide according to the court’s assessment,”

that is, where they agreed between themselves to make the division as though it had been made by three who constitute a court, then

their sale remains valid,

according to the law of a court, for even if they erred, their actions remain valid, since otherwise what is the power of a court worth? And as

we learned:

The assessment of the judges: if they diminished by a sixth, or increased by

a sixth, their sale is void;

whereas

Rabban Shimon ben Gamliel says: Their sale remains valid,

and Rava holds that the halakha is in accordance with the words of Rabban Shimon ben Gamliel.

And

Rava further said:

That which I said

with regard to the division of inheritances:

“By a sixth, he acquires and returns the overcharge,” I said this only with regard to movable property,

because it is with regard to them that the passage of overreaching was stated, as it is said [Leviticus 25:14]: “And when you sell anything to your fellow, or buy from your fellow’s hand, you shall not wrong one another”; and from the expression “from your fellow’s hand” it is learned that Scripture is speaking of movable property, which is an object acquired from hand to hand.

But with regard to land: “

There is no overreaching with regard to land,”

and the division stands and the overcharge is not returned.

And

however,

with regard to land, I said

that there is no overreaching for it

only where they divided according to valuation [

they divided according to the assessment and value of the lands], and this one took a large portion of inferior land corresponding to what his fellow took as a small portion of inferior land —

But where they divided according to measurement [

they divided according to measurement], and each one took both inferior and superior land —

no,

but even by less than a sixth the division is void!

And

as Rabbah! For Rabbah said:

With regard to anything that is according to measure or according to weight, even by less than the measure of overreaching, it is also returned,

because in an error of valuation, a person cannot precisely determine the price, and therefore he waives it; but when he errs in measure or weight, it is a complete error, and he did not act with this in mind.

Here the Gemara returns to the matter of agency, which is the main subject of the sugya, and raises a difficulty:

But did we not learn: “One who sends a fire by the hand of a deaf-mute, an imbecile, or a minor,”

and they kindled it and caused damage, then the sender is

exempt according to human laws, but liable according to the laws of Heaven.

And if he

sent

the fire

by the hand of a competent person,

then the

competent person is liable

and the sender is exempt.

And why

when he sent it by the hand of a competent person is the agent liable and his sender not liable,

And why,

when he sent it by the hand of a competent person, is the agent liable and not his sender,

let us say: “

A person’s agent is like himself,” and the sender should be liable and not the agent!?

It is different there—

And we answer:

It is different there —

with regard to

a fire —

for an agent is not considered an agent for a transgression,

but rather like one who acts on his own, without agency, because

we say:

for behold,

the words of the Master [

the Holy One, blessed be He]

and the words of the student

the sender —

whose words does he heed!?

And we raise a difficulty: If so, that there is no agent for a transgression,

but did we not learn

in the Mishna in tractate Me’ila:

Посланник

домохозяина, который передал ему деньги, посвященные Храму, полагая, что эти деньги принадлежат ему самому,

если он не выполнил поручение

An agent —

of the owner of the house, who gave him consecrated money, while the owner of the house thought that the money was his own —

who did not carry out his agency

of the owner of the house; for example, the owner of the house told him to buy a cloak for him, and the agent went and bought a robe — then the

agent committed sacrilege,

for he is not the agent of the owner of the house for this sacrilege.

But if he

carried out

his

agency,

then

the owner of the house committed sacrilege.

We have learned, then, that

when he carried out the agency of the owner of the house, the owner of the house nevertheless committed sacrilege,

and why!? Let us say: “There is no agent for a transgression”!?

And we answer:

Misuse is different, for it is derived

through a gzera shava

“sin, sin”

from teruma,

just as teruma appoints an agent, so too misuse appoints an agent.

And we object:

And let us derive from it

[from misuse] that throughout the Torah there is an agent even for a transgression!?

And we answer:

Because there are misuse and misappropriation,

[a custodian who appointed an agent to misappropriate the deposit entrusted to him, as it explains further]—for the Torah revealed concerning them that there is an agent for a transgression—

two verses that come as one

[teaching one law],

and two verses that come as one do not

teach

for another place, because if the Torah’s intention had been that we should learn this for every place, the Torah would not have written the same law in both places, since we would have learned it from one to the other, just as we learn it for the entire Torah.

And we explain: The verse concerning

misuse

that there is an agent for a transgression is

the one we said:

“sin, sin” from teruma.

But the verse concerning

misappropriation

in which there is an agent for a transgression,

what is it?

For it was taught:

It is stated in the Torah: “And the master of the house shall approach the Divine [for an oath] if he did not misappropriate the property of his fellow.

For every matter of transgression.”

Thus the Torah made the word “matter” superfluous, for it should have said: “for every transgression”; and Beit Shammai and Beit Hillel disputed the exposition of this word:

Beit Shammai say:

For this reason the verse said “matter”: in order

to make one liable for the thought,

that is, a thought or speech to misappropriate the deposit,

as for an action,

and this is what the verse said, “matter of transgression,” that is: speech [or thought] of transgression.

And Beit Hillel say: He is not liable

for speech and thought alone,

until he misappropriates it,

and because

it is stated: “if he did not misappropriate the property of his fellow,”

it implies that he extended his hand to the deposit, and not that he spoke with his mouth or thought in his heart to do so.

Beit Shammai said to Beit Hillel: But is it not stated:

“For every matter of transgression,”

and it implies including one who speaks of misappropriating?

Beit Hillel said to Beit Shammai: And

on the contrary,

is it not stated:

“if he did not misappropriate the property of his fellow,”

and it implies actual misappropriation?

Beit Shammai said to Beit Hillel: If so—

according to your words, that one who speaks of misappropriating is not liable—

“for every matter of transgression”

why do I need it;

what does “matter” come to include!?

Beit Hillel said to Beit Shammai:

It could have been—

if the verse had not said: “for every matter of transgression”— -

I would have only this one

the custodian himself who misappropriated his deposit, but if he

said to his slave or to his agent

to misappropriate the deposit,

from where

would we know that he is liable?

Therefore,

the verse says:

“for every matter of transgression,”

to include one who says to his agent to misappropriate, and he did so, so that the custodian is liable.

We have thus learned the second verse: “for every matter of transgression,” which teaches that in its matter there is an agent for a transgression, and we do not learn it for the entire Torah, because two verses that come as one do not teach.

And we object:

This works well according to Beit Hillel,

for we have properly said that we cannot learn from misuse to the entire Torah that there is an agent for a transgression, because the verse “for every matter of transgression” concerning misappropriation joins it, and two verses that come as one do not teach.

But according to Beit Shammai, who establishes this verse

of “for every matter of transgression”

as thought, like an action,

to include one who speaks or thinks of misappropriating, who is liable, according to their view we do not have a verse concerning misappropriation teaching that there is an agent for a transgression in it, but only one verse concerning misuse in which there is an agent for a transgression; and if so, according to their view, this is difficult: