Kiddushin 42b (מב:) — the Talmud in English

This –

for Rav Naḥman holds in accordance with the Sages, who do not say, “If so, what is the power of the court?”

–

This applies specifically when they erred

the court, as in the dispute between the Sages and Rabban Shimon ben Gamaliel, which concerns an error by the court in assessing the properties. \-

This –

with regard to what Rav Naḥman said: Once the orphans came of age, they could not protest the division made by the guardians, because of the principle, “If so, what is the power of the court?” –

This applies specifically when the guardians did not err

the guardians appointed by the court.

And we challenge this:

If the guardians did not err

the guardians,

what

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

can protest,”

when what could they possibly protest about?

And we answer:

They can protest with regard to the directions

of the parcels. If the orphan is not comfortable with the land that was given to him in a particular direction—for example, if another parcel is preferable for him because it is adjacent to his other fields—then, according to Shmuel, he can invalidate the division and demand a new division. Rabbi Naḥman disputes this possibility of protest and holds: “If so, what is the power of the court?” since there was no error here.

Rav Naḥman said:

Brothers who divided

their father’s inheritance, and erred in assessing the properties, thereby causing one of them to be disadvantaged,

they are

subject to the laws of exploitation

like purchasers

who either caused exploitation or were disadvantaged by it; and this is their law:

Exploitation of

less than one-sixth: the sale is acquired

the division remains valid, because people waive an overcharge of up to one-sixth.

Exploitation of

more than one-sixth: the sale is nullified;

the division is nullified, and they divide the property again.

Exploitation of

exactly one-sixth: he acquires

the division remains valid,

and he returns

to his brother the

exploitation.

Rava said:

This statement that you said

with regard to the division of an inheritance:

“For less than one-sixth, the sale is acquired,” applies only when he did not appoint an agent

that is, one brother did not carry out the division as the agent of the other; rather, they both divided the inheritance together.

But if he appointed an agent

that is, one brother divided the inheritance as the agent of his brother, then the division is nullified, because he can

say

the principal to his agent: “

I sent you to rectify, not to cause loss”

[I sent you to correct matters, not to wrong me].

And this statement that you said

with regard to the division of an inheritance:

“For more than one-sixth, the sale is nullified,” applies only when he did not say, “Let us divide according to the court’s appraisal”

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

but if he said, “Let us divide according to the court’s appraisal”

that is, they agreed to make the division as though it had been carried out by three people who constitute a court, then

their sale remains valid

in accordance with the law governing a court, for even if the court erred, its actions remain valid, because otherwise, what is the power of the court? And as

we learned:

The appraisal of judges: if they reduced the value by one-sixth, or increased it by

one-sixth, their sale is nullified;

whereas

Rabban Shimon ben Gamaliel says: Their sale remains valid,

and Rava holds that the halakha is in accordance with the opinion of Rabban Shimon ben Gamaliel.

And

Rava further said:

This statement that you said

with regard to the division of an inheritance:

“For exactly one-sixth, he acquires, and he returns the exploitation,” applies only to movable property

because the passage concerning exploitation was stated with regard to movable property, as it says [Leviticus 25:14]: “When you sell anything to your fellow, or buy from your fellow’s hand, you shall not wrong one another.” From the expression “from your fellow’s hand” it can be inferred that the verse is speaking of movable property, which is an item passed from hand to hand.

But with regard to real estate: “

There is no exploitation with regard to land,”

and the division remains valid, and the exploitation is not returned.

And

in any event,

with regard to land, this statement that we said

that it is not subject to exploitation

applies only when they divided it according to valuation

[they divided it according to the appraisal and value of the land], and one took a larger portion of inferior land corresponding to what the other took as a smaller portion of inferior land—

But if they divided it according to measurement

[they divided it according to size], and each one received both inferior and superior land—

no,

but even a discrepancy of less than one-sixth nullifies the division!

And

this is like Rabba’s statement! For Rabba said:

With regard to anything sold by measure or by weight, even a discrepancy of less than the measure of exploitation must also be returned,

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

The Gemara now returns to the matter of agency, which is the central issue of the sugya, and asks:

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

and they ignited it and caused damage, the sender is

exempt under human law, but liable under the law of Heaven.

But if he

sent

the fire

by the hand of a competent person, then

then the

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,

let us say: “

A person’s agent is like himself,”

and the sender should be liable, while the agent should not be liable!?

And we answer:

It is different there—

with regard to the fire—

for a

agent

is not considered an agent

for a transgression,

but rather like someone acting on his own, without agency, because

we say:

Behold,

the words of the Master

[the Almighty]

and the words of the student

the sender—

whose words should one obey!?

And we challenge this: If so, that there is no agent for a transgression,

but did we not learn

in the Mishna in tractate Me’ila:

But if the agent

carried out

his

agency,

then

the homeowner committed sacrilege.

We have therefore learned that

when he carried out the homeowner’s agency, the homeowner nevertheless committed sacrilege,

and

why!?

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

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

And we answer:

The case of me'ila is different, as it is derived

by a gzera shava

“sin, sin”

from teruma,

Just as teruma appoints an agent, so me'ila appoints an agent.

And we challenge:

Let us derive from it

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

And we answer:

Because me'ila and misappropriation

[a custodian who appointed an agent to commit misappropriation with a deposit entrusted to him, as the Gemara proceeds to explain]—the Torah revealed with regard to them that there is an agent for a transgression—

are two verses that come as one

[teaching a single law],

and two verses that come as one do not

teach

for another context. For had the Torah intended us to derive this law for every context, it would not have written the same law in both places, since we would have derived it from one to the other, just as we derive laws for the entire Torah.

And we explain: The verse concerning

me'ila

that establishes an agent for a transgression is

the one we stated:

“sin, sin” from teruma.

But the verse concerning

misappropriation

that establishes an agent for a transgression—

what is it?

As it was taught:

The Torah states: “The master of the house shall draw near to the judges [to take an oath], if he did not extend his hand to his fellow’s property,

concerning every matter of transgression.”

Thus the Torah included the seemingly superfluous word “matter,” for it could have stated: “Concerning every transgression.” Beit Shammai and Beit Hillel disagree over the exposition of this word:

Beit Shammai say:

The verse stated “matter” for this purpose: to

make one liable for the thought

that is, for the thought or speech of committing misappropriation with a deposit,

as for an act.

This is what the verse “a matter of transgression” means: speech [or thought] of transgression.

And the House of Hillel say: He is not liable

And Beit Hillel say: He is not liable

for speech and thought alone,

until he extends his hand to it,

because it is stated: “if he did not extend his hand to his fellow’s property

”—which indicates that he actually 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: Is it not stated

“concerning every matter of transgression”,

which indicates that one who speaks of committing misappropriation is included?

Beit Hillel said to Beit Shammai: And

on the contrary,

is it not stated:

“if he did not extend his hand to his fellow’s property”,

which indicates actual misappropriation?

Beit Shammai said to Beit Hillel: If so—

according to your view, that one who speaks of committing misappropriation is not liable—

“concerning every matter of transgression”

why do I need it?

What does the word “matter” come to include?

Beit Hillel said to Beit Shammai:

One might have thought

that if the verse had not stated: “concerning every matter of transgression” -

I would know only that he

—the custodian himself—extended his hand to his deposit; but if he

said to his slave or to his agent

to commit misappropriation with the deposit,

from where

would we know that he is liable?

Therefore

the verse states:

“concerning every matter of transgression”,

to include one who tells his agent to commit misappropriation and the agent does so, so that the custodian is liable.

Thus we have learned the second verse: “concerning every matter of transgression,” which teaches that in the context of misappropriation there is an agent for a transgression. We do not derive this for the entire Torah, because two verses that come as one do not teach.

And we challenge:

This works well according to Beit Hillel,

for we have properly said that one cannot derive from me'ila that throughout the Torah there is an agent for a transgression, because the verse “concerning every matter of transgression” in the context of misappropriation joins it, and two verses that come as one do not teach.

But according to Beit Shammai, who interprets this verse

as meaning “concerning every matter of transgression”

as thought equivalent to action,

to include one who speaks or thinks of committing misappropriation as liable, and according to their view we have no verse in the context of misappropriation teaching that there is an agent for a transgression—there is only the one verse concerning me'ila that establishes an agent for a transgression. If so, according to their view, the difficulty is: