Babylonian Talmud: Tractate Gittin

Folio 48a

in the period when the law of the Jubilee is in force,¹  R. Johanan says that he brings the firstfruits and makes the recital, while Resh Lakish says that he brings them without making the recital. R. Johanan who says that he brings them and makes the recital takes the view that the possession of the increment is equivalent to the possession of the [parent] body, while Resh Lakish, who says that he brings without making the recital, takes the view that the possession of the increment is not equivalent to the possession of the [parent] body. It was necessary [to state the difference between R. Johanan and Resh Lakish] in both cases. For if it had been stated only in the latter case,²  I might have said that Resh Lakish rules as he does there because when the purchaser buys³  [the field] he actually has in mind only the produce,⁴  but in the other case, where he has in mind the land itself, I might think that he agrees with R. Johanan. if again I had only the other case I might think that there [only] R. Johanan rules in this way, but in this case he agrees with Resh Lakish. Hence [both] had to be [stated].

Come and hear:⁵  If a man buys a tree and the soil under it, he brings the firstfruits from it and makes the recital!⁶  — We are speaking here of the period when the Jubilee is not observed. Come and hear:⁵  'If a man buys two trees in another man's field, he brings the firstfruits but does not make the recital,'⁷  which implies that if he buys three⁸  he does make the recital? — There too we speak of the period when the Jubilee is not observed. Now, however, that R. Hisda has stated that the controversy [between R. Johanan and Resh Lakish] refers only to the period of the second Jubilee,⁹  but In the period of the first Jubilee¹⁰  both agree that he [the purchaser] had to bring and recite, since they still could not rely on the fields being returned, there is no difficulty: the one [R. Johanan] speaks of the first Jubilee and the other of the second Jubilee. Shall we say that we find in the following passage¹¹  the same difference between Tannaim: 'How do we know that if a man buys a field from his father and then sanctifies it and his father subsequently dies,¹²  it is reckoned as "a field of possession"?¹³  Because Scripture says, And if he sanctifies … a field which he hath bought which is not of the field of his possession [he shall give thine estimation].¹⁴  [This signifies] a field which is not capable of becoming a "field of possession,"15 [and we therefore] except [from this rule] such a one as this which is capable of becoming a "field of his possession".¹⁶  This is the opinion of R. Judah and R. Simeon. R. Meir says: From where do we know that if a man buys a field from his father and his father dies and he then subsequently sanctifies the field, it is reckoned as a field of his possession? Because it says, If he sanctifies a field which he hath bought which is not of the field of his possession. [This signifies] a field which is not a "field of possession", and we therefore except from this rule such a one as this which is [now] a field of his possession.'¹⁷  Now R. Judah and R. Simeon, [while agreeing that in the case] where his father died and then he sanctified the field¹⁸  [it is reckoned a 'field of possession'], do not require a text to indicate this.¹⁹  Is not then the point at issue between them this: R. Meir held that the possession of the increment is equivalent to the possession of the [parent] body, and in this case therefore on the death of his father he does not inherit anything, and therefore if his father died and he sanctified it subsequently a text is necessary to indicate [that it is 'a field of his possession'],²⁰  whereas R. Judah and R. Simeon held that the possession of the increment is not equivalent to the possession of the [parent] body, and in this case on the death of his father he does inherit the field, and therefore if he sanctifies it after the death of his father no text is necessary [to indicate that it is 'a field of his possession'], and where a text is required is to indicate [that it is 'a field of his possession' even] when he sanctified it before the death of his father?²¹  — R. Nahman b. Isaac said: All the same I may still maintain that in general R. Judah and R. Simeon held that the possession of the increment is equivalent to the possession of the parent body, but in this case R. Judah and R. Simeon found a text which they interpreted [to the contrary effect]: The Divine Law [they said,] might have written, 'If he sanctifies a field which he has bought, which is not his possession.' What is the force of the words, 'Which is not of the field of his possession'? [It signifies], one which is not capable of becoming the field of his possession, [and we] except from the rule one that is capable of becoming the field of his possesslon.²²

R. Joseph said: Had R. Johanan not maintained that the possession of the increment is not equivalent to the possession of the [parent] body, he would not have had a leg to stand on²³  in the Beth Hamidrash. For R. Assi said in the name of R. Jonathan that if brothers divide an inheritance they stand to one another in the relation of purchasers and have to restore their shares to one another at the Jubilee.²⁴  Now [this being so], should you assume [that the possession of the increment is] not equivalent to the possession of the [parent] body, then you would not find anyone qualified to bring firstfruits save an only son who had inherited from an only son up to the days of Joshua son of Nun.²⁵

Raba said: Both Scripture and a Baraitha support Resh Lakish. Scripture,

1. In which case there is no question that the purchaser does not become owner of the soil, as he has to return the land at the Jubilee.
2. Where the land is purchased in the epoch of the Jubilee.
3. Lit., 'he descends into'.
4. I.e., he never for a moment imagines himself to be the owner of the land.
5. An argument against Resh Lakish.
6. Bek. I, 11. Although the land is returnable at the Jubilee.
7. Ibid. I, 6.
8. In which case he automatically acquires the land under and between the trees, v. B.B. 81a.
9. I.e., the period of the Second Temple, when the Jews observed the law of the Jubilee strictly.
10. [I.e., of the first Temple, where it was not strictly observed (Rashi). Maim., Yad Bikkurim IV, 6. takes the first and second Jubilee in a literal sense — the first and second Jubilee cycles observed by the Jews].
11. B.B. 72b.
12. Before the Jubilee, when the field would automatically revert to him.
13. And not one of 'purchase', and therefore liable to be redeemed at a lower rate. V. Lev. XXVII, 16-23.
14. Lev. XXVII, 22, 23.
15. E.g., one which he bought from any other man and which would have to be restored to him or to his heirs at the Jubilee.
16. By inheritance.
17. But not one which is only capable of becoming such subsequently.
18. The case put by R. Meir.
19. While R. Meir does.
20. And not a field of purchase, in spite of the fact that he originally purchased it from his father.
21. In spite of the fact that he purchased it from his father.
22. For fuller notes on the whole of this passage, v. B.B. (Sonc. ed.) pp. 285ff.
23. Lit., 'he would not have found his hands and feet.'
24. B.K. 69b and supra 25a.
25. So that the property had never been divided, for as soon as it was divided it was in effect sold, and had no owner capable of bringing firstfruits.

where it says, According to the number of years of the crops he shall sell unto thee.¹  A Baraitha, as it has been taught: A firstborn son receives a double portion of a field which [was due to] be restored to his father at the Jubilee.²

Abaye said: We have it on tradition that a husband [before going to law] about property belonging to his wife requires authorization from her.³  This, however, is the case only if the suit does not concern the produce. But if the suit concerns the produce, while he is putting forward claims to the produce he can put forward claims to the land itself as well.

CHAPTER V

MISHNAH. COMPENSATION FOR DAMAGE⁴  IS PAID OUT⁵  OF [PROPERTY OF] THE BEST QUALITY, A CREDITOR OUT OF LAND OF MEDIUM QUALITY, AND A WOMAN'S KETHUBAH OUT OF LAND OF THE POOREST QUALITY. R. MEIR, HOWEVER, SAYS THAT A WOMAN'S KETHUBAH IS ALSO PAID OUT OF MEDIUM [QUALITY LAND]. PAYMENT CANNOT BE RECOVERED FROM MORTGAGED PROPERTY WHERE THERE ARE FREE ASSETS AVAILABLE, EVEN IF THEY ARE ONLY LOWEST GRADE LAND. PAYMENT FROM ORPHANS CAN BE RECOVERED ONLY FROM LOWEST GRADE LAND. INDEMNIFICATION FOR PRODUCE CONSUMED⁶  AND FOR THE BETTERMENT OF PROPERTY [DURING WRONGFUL TENURE] [AND PAYMENT] FOR THE MAINTENANCE [BY A MAN'S HEIRS] OF HIS WIDOW AND DAUGHTERS⁷  IS NOT ENFORCED FROM MORTGAGED PROPERTY, TO PREVENT ABUSES.⁸  THE FINDER OF A LOST ARTICLE CANNOT BE REQUIRED TO TAKE AN OATH, TO PREVENT ABUSES.⁸

GEMARA. [COMPENSATION … PROPERTY OF THE BEST QUALITY.] Is this only an ordinance to prevent abuses?⁹  It derives from the Scripture, as it is written, The best of his field and the best of his vineyard he shall pay!¹⁰  — Abaye replied: This statement holds good only if we take the view of R. Ishmael who said that according to the Torah the assessment is made on the property of the claimant of damage;¹¹  we are then told here that to prevent abuses¹²  we make the assessment on the property of the defendant. What statement of R. Ishmael is referred to? — As it has been taught: 'The best of his field and the best of his vineyard he shall pay': [that is to say,] the best of the field of the claimant and the best of the vineyard of the claimant.¹³  So R. Ishmael. R. Akiba said: The whole purpose of the text is to allow compensation for damage to be recovered from the best property [of the defendant]: and all the more so in the case of the Sanctuary.¹⁴

Now according to R. Ishmael,¹⁵  if [a man's beast] ate the vegetables from a rich bed, he [naturally] repays the value of a rich bed, but if it ate from a poor bed is he to repay the value of a rich one? — R. Idi b. Abin said: We are dealing here with a case where it ate one bed out of a number and we do not know whether it was a rich one or a poor one; in this case he repays the value of the best. Said Raba. Seeing that if where we know that it ate a poor one he repays only the value of a poor one, here, where we do not know, is he to pay the value of a rich one? Does not the onus probandi fall on the claimant? — R. Aha b. Jacob therefore suggested

1. Lev. XXV, 15. This indicates that, at the time of the Jubilee, the crops were sold, not the land.
2. A firstborn takes a double portion only of property which was actually in possession of the father at the time of death, not of that which is to accrue subsequently. If, therefore, he takes a double portion of this field, it shows that his father, in spite of having sold it, was still reckoned as owner.
3. Because although he owns the produce (v. Glos. s.v. Mulug), this is not equivalent to owning the land itself.
4. Cf. Ex. XXII, 4.
5. Lit., 'they value'.
6. [If A wrongfully acquires a field from B and sells it to C who was unaware that it was stolen and C spends money on improving it and a crop is produced, B may come and seize the field, crop and improvements, after paying C his costs in connection with the improvements. B is then entitled to recover from A the price he paid him for the field even from A's mortgaged property, but the value of the crop and increased value of the field due to the improvements only from A's unmortgaged property.]
7. V. Keth. 52b.
8. Lit., 'for the good order of the world'. [This refers to all the rulings given in this Mishnah and supplies the connecting link between this chapter and the preceding one, as well as the reason for its inclusion in this tractate (v. Tosaf).]
9. I.e., is its sanction only Rabbinic?
10. Ex. XXII, 4.
11. I.e., he can claim only property of the same quality as the best of his own, even if this is not equal to the best of the defendant's.
12. The abuse to be prevented is explained lower down.
13. The meaning of this is discussed presently.
14. B.K. 6b. This is explained lower down.
15. Who apparently says that according to Scripture damage is to be estimated in all cases as if done to the best of the claimant's land.