GITIN 65 - dedicated by Dr. Moshe and Rivkie Snow in memory of Rivkie's father, the Manostrishtcher Rebbi, Hagaon Rav Yitzchak Yoel ben Harav Gedaliah Aharon Rabinowitz Ztz"l, Rav of Kehilas Nachalas Yehoshua in Canarsie, NY. A personification of the Torah scholar of old, the Ukranian-born Rebbi lived most of his life in the United States where his warm ways changed many lives. His Yahrzeit is 24 Cheshvan.
12th CYCLE DEDICATION
GITIN 65 (14 Elul) - This Daf has been dedicated in honor of the Yahrzeit of Yisrael (son of Chazkel and Miryam) Rosenbaum, who passed away on 14 Elul, by his son and daughter and their families.
1) THE ACQUISTION OF A MINOR ON BEHALF OF OTHERS
QUESTION: The Gemara discusses whether a minor has the power to acquire items on behalf of someone else. The Gemara attempts to prove from the Mishnah in Ma'aser Sheni (4:4) that a minor is able to make a Kinyan for others. The Mishnah there states that one may give money to his children in order for them to redeem his Ma'aser Sheni on his behalf.
What is the Gemara's proof? In the case of the redemption of Ma'aser Sheni, the child acquires the money for himself when it is given to him. How can the Gemara prove from there that a minor can acquire something for someone else?
(a) The RAMBAN offers two answers. In his first answer, he explains that the proof is not from the fact that the minor acquired the money but from the fact that he has the ability to redeem someone else's produce. Redeeming another person's produce is equivalent to acquiring something for another person since, by redeeming the produce, one "buys" or makes an acquisition on the produce, on behalf of the owner, from its state of being owned by Hekdesh.
(b) In his second answer, the RAMBAN writes that the dispute about whether a minor can acquire something for someone else is based on the question of whether a minor who is given an object acquires it for himself mid'Oraisa or mid'Rabanan. Rav Yehudah maintains that he acquires it mid'Oraisa and, therefore, just as he can acquire it for himself he can acquire it for others. Rav Chisda maintains that the minor acquires an object only mid'Rabanan, and thus he maintains that the Rabanan enacted that a minor may acquire things only for his own needs but not on behalf of others. The Gemara proves (according to Rav Yehudah) that a minor can acquire for others from the fact that he is able to acquire the money for himself mid'Oraisa (that is, he is able to redeem the Ma'aser Sheni with the money given to him without having to pay the additional Chomesh fee), and since he acquires it mid'Oraisa he must be able to acquire an object for others as well. (This answer is also cited by the RITVA and CHIDUSHEI HA'RAN.)
Perhaps the first answer of the Ramban was not satisfied with the second answer because, as some Rishonim maintain, even if a person acquires something through a Kinyan which is only mid'Rabanan, the item belongs to him from a Halachic perspective even with regard to matters that require his ownership mid'Oraisa. (This is because the Torah empowered the Rabanan with the ability to determine the ownership of the item.) Therefore, there is no proof that the minor acquires things mid'Oraisa from the fact that the money is legally his after it is given to him.
Perhaps the second answer did not accept the first answer because the act of redeeming Ma'aser Sheni is not an act of transferring ownership back to the possession of the first owner, but rather it is merely an act of removing Kedushah. Hence, once the Kedushah is removed the fruits may be used by the original owner who always owned them. (See CHIDUSHEI HA'GRIZ to Zevachim 6.)
2) A MITZVAH D'RABANAN ROOTED IN THE TORAH
QUESTION: The Gemara attempts to prove that a minor has the power to acquire items on behalf of someone else from the Mishnah in Ma'aser Sheni (4:4) which states that one may give money to his children in order for them to redeem his Ma'aser Sheni on his behalf. The Gemara refutes the proof and says that the Mishnah is discussing Ma'aser nowadays (bi'Zman ha'Zeh), which is only mid'Rabanan. The Gemara implies that when the conditions for the Torah obligation of a Mitzvah are not present (such as the absence of the Beis ha'Mikdash) and in lieu of the Chiyuv d'Oraisa there is a Chiyuv d'Rabanan, the Mitzvah d'Rabanan is considered an obligation which does not have an "Ikar Min ha'Torah."
The SHA'AR HA'MELECH asks that the Gemara here seems to contradict the Gemara in Pesachim (116b) which says that the requirement to eat Maror nowadays (in the absence of the Korban Pesach) is considered an obligation that has an "Ikar Min ha'Torah" even though it is only a Chiyuv d'Rabanan.
ANSWER: There is a basic difference between the two Mitzvos d'Rabanan of Ma'aser Sheni nowadays and Maror nowadays. The Mitzvah of Ma'aser Sheni is mid'Rabanan because in order to be mid'Oraisa, the majority of Jews in the world must live in Eretz Yisrael. The requirement nowadays, when most Jews do not live in Eretz Yisrael, is thus a Mitzvah d'Rabanan that is not rooted in a Mitzvah d'Oraisa. In contrast, the reason why the obligation to eat Maror is mid'Rabanan today is because it is not eaten with the Korban Pesach. Even nowadays, however, one potentially could sacrifice a Korban Pesach and be obligated mid'Oraisa to eat Maror. (In practice, one may not sacrifice a Korban Pesach today because of various issues.) Therefore, even when one does not eat the Maror with the Korban Pesach, it is considered something that has an "Ikar Min ha'Torah."
3) MA'ASER SHENI OF VEGETABLES
QUESTION: The Gemara attempts to prove that a minor has the power to acquire items on behalf of someone else from the Mishnah in Ma'aser Sheni (4:4) which states that one may give money to his children in order for them to redeem his Ma'aser Sheni on his behalf. The Gemara refutes the proof and says that the Mishnah refers to a case of produce grown in a pot, for which the requirement to separate Ma'aser Sheni is only mid'Rabanan, and thus the minor may redeem it. There is no proof that a minor can redeem Ma'aser Sheni mid'Oraisa.
Why does the Gemara answer that the Mishnah refers to the relatively rare case of produce grown in a pot? Why does the Gemara not answer simply that the Mishnah refers to a case of Ma'aser Sheni of vegetables (and not fruits), for which the obligation to separate Ma'aser Sheni is only mid'Rabanan? (RITVA)
ANSWER: The RITVA answers that the case of separating Ma'aser Sheni from fruits grown in a pot has an "Ikar Min ha'Torah," a basis in the Torah, since there is other fruit (i.e. fruit grown in the ground) that requires Ma'aser Sheni to be separated mid'Oraisa. Therefore, separating Ma'aser Sheni from fruit in a pot should have all of the requirements of Ma'aser Sheni d'Oraisa, as the Gemara earlier mentions.
4) BEING BROUGHT OUT IN CHAINS
OPINIONS: The Mishnah states that in order for a Get to be valid, the husband must command that the Get be written and given to his wife. If he says only to write the Get (but not to give it), the Get cannot be given to her. The Mishnah records exceptions to this rule, such as cases in which the husband is in distress, where presumably his intention is that the Get should be written and given even though he says only to write the Get. One of these exceptions is the case of "Yotzei b'Kolar," one who is led out in chains. To whom does "Yotzei b'Kolar" refer?
(a) RASHI explains that "Yotzei b'Kolar" refers to a man who is being brought out to receive the death penalty. Presumably, one who is locked up in chains because of a monetary infraction would not be able to give a Get by merely commanding that it be written; rather, he must command that it be written and given.
(b) The RAMBAM (Hilchos Gerushin 2:12) writes that this Halachah applies even when the man is being punished merely for violating monetary law. The MAGID MISHNEH quotes the Yerushalmi as the source for the Rambam's ruling. The Yerushalmi states that even if the man is chained up (in a "Kolar") because of a monetary matter, this Halachah applies because whenever a man is chained up his life is in danger.
The HAGAHOS MAIMONIYOS understands that Rashi disagrees with the Rambam. The CHASAM SOFER, however, argues that Rashi agrees with the Rambam. Rashi explains that the Mishnah refers to one who is receiving the death penalty only because he explains the Mishnah in accordance with the practice of earlier times, when one who was embarking on a long journey was not included in the exceptions of the Mishnah. According to the later enactment that even one who embarks on a long journey is included in the list of exceptions in the Mishnah, one who is awaiting punishment for monetary misconduct is also included in the Mishnah's law.