12th CYCLE DEDICATION
GITIN 52 (1 Elul) - Dedicated l'Iluy Nishmas Esther Chaya Rayzel (Friedman) bas Gershon Eliezer (Yahrzeit: 30 Av, Yom Kevurah: 1 Elul) by her daughter and son-in-law, Jeri and Eli Turkel of Raanana, Israel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.

1)

WHAT DO GUARDIANS DO FOR ORPHANS?

(a)

(Mishnah): If orphans asked Reuven to handle their affairs, or their father had appointed him to be a guardian, Reuven must tithe their Peros.

(b)

A guardian appointed by their father must swear (that he did not benefit from the estate). One appointed by Beis Din need not swear;

1.

Aba Sha'ul says, one appointed by their father need not swear, but one appointed by Beis Din must swear.

(c)

(Gemara - Contradiction - Beraisa): "You (can tithe)", but partners, sharecroppers, guardians, and one who does not own the Peros cannot.

(d)

Answer (Rav Chisda): A guardian can tithe Peros that the orphans need to eat now. He cannot tithe Peros they do not need now.

(e)

Support (Beraisa): A guardian can tithe Peros the orphans need to eat now. He cannot tithe Peros they do not need now;

(f)

He can sell the following on behalf of the orphans, but only for their current needs - animals, slaves, houses, fields, vineyards, Peros, wine, oil, and flour.

(g)

He buys for them the four species (Lulav...), a Sukah, Tzitzis, and every Mitzvah that has a limit;

1.

This comes to include a Shofar.

(h)

He buys for them a Sefer Torah, Tefilin, Mezuzos and everything that has a limit.

1.

This comes to include a Megilah.

(i)

We do not pledge their money for Tzedakah, nor to redeem captives, nor for anything without a limit.

1.

This includes (that we don't use their money for) consoling mourners.

(j)

Guardians may not claim for them in Beis Din for their detriment or benefit.

1.

Objection: Why can't they claim for their benefit?

2.

Correction: Rather, if they claimed intending to benefit the orphans, if the verdict hurts the orphans, it is invalid.

(k)

Guardians cannot sell lands that are far away to redeem nearby property, nor sell bad property to redeem good property.

1.

Question: What is the reason?

2.

Answer: Perhaps the property they redeem will be flooded (and it will turn out that this was detrimental for the orphans).

(l)

They may not sell fields to buy slaves, but they may sell slaves to buy fields;

(m)

R. Shimon ben Gamliel says, they may not sell slaves to buy fields, lest the purchase be contested.

(n)

They may not set slaves free, but they may sell the slaves to others who will set them free;

(o)

Rebbi says, the slave may pay his own value to redeem himself. This is like selling the slave to himself.

(p)

The guardian must make a calculation with the orphans when they grow up (and swear that he has not kept any of their money);

(q)

R. Shimon ben Gamliel says, he need not.

(r)

Beis Din does not appoint women, slaves or minors to be guardians. The father can appoint one of them to be a guardian.

2)

PROTESTING AGAINST GUARDIANS

(a)

A guardian in R. Meir's area was selling land to buy slaves. R. Meir did not allow this.

1.

R. Meir saw in a dream that Hash-m wanted to deplete the estate. He did not change his position, for we do not act based on dreams.

(b)

The Satan instigated quarrels between two certain people every Erev Shabbos. R. Meir visited them three consecutive weeks on Erev Shabbos, and they made peace with each other.

1.

R. Meir heard the Satan lament that he was deposed from that house.

(c)

A guardian in R. Yehoshua ben Levi's area was selling land to buy cattle. R. Yehoshua did not protest, for he holds like R. Yosi;

1.

(Beraisa - R. Yosi): The basis of a house is the wife; the basis of a field is the ox.

(d)

Some orphans relied on a certain woman to conduct their affairs. She sold their cow, and their relatives came before Rav Nachman.

1.

Rav Nachman: The Mishnah teaches that if orphans rely on one to handle their affairs, he is like a guardian.

2.

The relatives: The cow went up in value!

3.

Rav Nachman: That is the buyer's gain.

4.

The relatives: The orphans did not yet receive the money!

5.

Rav Nachman: If so, Rav Chanilai bar Idi's law applies.

i.

(Rav Chanilai): Orphans are like Hekdesh: acquisitions are done with them through money. (Therefore, the cow was not sold yet.)

(e)

Ravna Ukva was an orphan. Buyers were Moshech his wine (they picked it up, or brought it to their premises) when the price was four. The price rose to six.

1.

Rav Nachman: Rav Chanilai's law applies. Since they did not give the money, the acquisition is not valid.

(f)

If a buyer was Moshech Peros of orphans, and the price went up, Rav Chanilai's law applies (the sale is invalid);

1.

If the price went down, a commoner should not have greater power than Hekdesh (i.e. the orphans, who are like Hekdesh. Just like one who buys from a commoner cannot retract after Meshichah, one who buys from orphans cannot retract after Meshichah.)

(g)

If a guardian was Moshech Peros to buy them for orphans and the price went up, a commoner should not have greater power than Hekdesh (a commoner acquires through Meshichah, and owes the value at that moment. The same applies to orphans.)

(h)

If the price went down, seemingly, Rav Chanilai's law should apply (and the sale is invalid).

(i)

Rejection (Rav Shisha brei d'Rav Idi): No, this would be bad for the orphans;

1.

Sometimes orphans need to buy Peros, but do not have money. If the law is that the sale is invalid if the price goes down, no one will sell to them!

(j)

If orphans gave money to buy Peros, and the price went down, a commoner should not have greater power than Hekdesh (if a commoner gave money but did not yet do Meshichah, he could retract. Also the orphans can retract).

(k)

If the price went up, seemingly, Rav Chanilai's law should apply (the sale is valid).

(l)

Rejection (Rav Shisha brei d'Rav Idi): No, this would be bad for the orphans;

52b----------------------------------------52b

1.

If the law is that the sale is valid, if there is a fire where the Peros are (in the seller's premises), the seller will not exert himself to save it, since it will be the loss of the orphans. (This is the reason why Chachamim decreed that money does not acquire movable objects.)

(m)

If a buyer paid money for Peros of orphans, and the price went up, a commoner should not have greater power than Hekdesh. (One who buys from a commoner does not acquire until Meshichah. The same applies here.)

(n)

If the price went down, seemingly, Rav Chanilai's law should apply (the sale is valid).

(o)

Rejection (Rav Shisha brei d'Rav Idi): No, this would be bad for the orphans.

1.

Sometimes, orphans need money. If the law is that the buyer cannot retract if the price goes down, no one will pay them before receiving the Peros!

(p)

(Rav Ashi): Rav Kahana and I signed a document selling the land of an orphan to pay his head-tax, even though it was not announced that his land was being sold.

1.

This is like Chachamim of Neharde'a taught, that for head-tax, food and burial, we sell property of orphans without announcement.

(q)

Amram Tzava'ah was a guardian. The orphans' relatives came in front of Rav Nachman.

1.

The relatives: The guardian is using their money to dress nicely!

2.

Rav Nachman: This causes people to heed his words (it is good for the orphans).

3.

The relatives: He is eating and drinking nicely. It must be from their money, for he is not established to be wealthy!

4.

Rav Nachman: Perhaps he found money.

5.

The relatives: He is causing a loss to their property.

6.

Rav Nachman: Bring witnesses to testify about this, and I will remove him.

i.

(Rav Huna): We remove a guardian who causes a loss to the property.

ii.

(D'Vei R. Shilo): We do not remove him.

iii.

The Halachah is, we remove him.

3)

WHICH GUARDIANS MUST SWEAR

(a)

(Mishnah): A guardian appointed by the orphans' father must swear.

(b)

Question: What is the reason?

(c)

Answer: Had the guardian not benefited from the father, he would not have agreed to be a guardian. He will not refuse just because he must swear.

(d)

(Mishnah): A guardian appointed by Beis Din need not swear.

1.

He is merely helping Beis Din. If he would need to swear, he would refuse to be a guardian.

(e)

(Mishnah - Aba Sha'ul): The law is the opposite in both cases.

(f)

Question: What is the reason?

(g)

Answer - part 1: A guardian appointed by Beis Din gets a reputation for reliability. He would not refrain due to the need to swear, so we impose an oath on him.

(h)

Answer - part 2: A guardian appointed by the father need not swear. He accepts merely to help his friend. If he would need to swear, he would refuse to be a guardian.

(i)

(Rav Chanan bar Ami): The Halachah follows Aba Sha'ul.

(j)

(Beraisa - R. Eliezer ben Yakov): Both must swear.

(k)

The Halachah follows him.

(l)

(Rav Tachlifa bar Ma'arava - Beraisa): A guardian appointed by the father must swear, for he is paid.

(m)

Objection (R. Avahu): He is not paid! Rather, he is like one who is paid.

4)

UNNOTICEABLE DAMAGE

(a)

(Mishnah): If Reuven was Metamei Shimon's Peros, or mixed them with Terumah, or was Menasech (this will be explained) b'Shogeg, he is exempt. If he was Mezid, he must pay.

(b)

(Gemara - Rav): The case of Menasech is understood simply. He poured wine for a libation to idolatry.

(c)

(Shmuel): No, he mixed Shimon's wine with Yayin Nesech (wine that was offered to idolatry).

(d)

Question: Why didn't Shmuel explain like Rav?

(e)

Answer: Shmuel holds that in such a case, Reuven would be exempt (since at the time he damages, he is Chayav Misah (liable to death) for serving idolatry).

1.

Rav holds like R. Yirmeyah, who says that Reuven acquired (responsibility for) Shimon's wine when he picked it up. He is not Chayav Misah until he pours it to the idolatry.

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