Babylonian Talmud: Tractate Gittin

Folio 49a

that the case here considered is one where the best of the claimant is equal [in quality] to the worst of the defendant, in which case R. Ishmael held that we assess on the land of the claimant,¹  whereas R. Akiba held that we assess on the land of the defendant.²  What is R. Ishmael's reason? — The word 'field' occurs both in the earlier³  and the later⁴  clause; just as in the earlier clause it refers to the field of the claimant, so in the later it refers to the field of the claimant. R. Akiba, on the other hand, held that the words, from the best of his field he shall make restitution mean, from the best of him who makes restitution. What does R. Ishmael say to this? — [He says that] the gezerah shawah⁵  has its lesson and the text has its lesson. The lesson of the gezerah shawah is what we have said.⁶  The lesson of the text is that if the defendant has high grade and low grade land and his low grade land is not equal to the best of the claimant, he pays him from the best.⁷

'R. Akiba says: 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.' What is the meaning of 'all the more so in the case of the Sanctuary'? Are we to say that [this rule applies] where our ox has gored the ox of the Sanctuary? [This cannot be, because] the Divine Law says, [if one man's ox hurt] the ox of one's neighbour,⁸  but not an ox of the Sanctuary.⁹  Shall we say then that what is meant is that if a man says, 'I take upon myself to give a maneh for the repair of the Temple,' the treasurer can come and collect it from the best [of his land]? Surely he is in no better position than a creditor, and a creditor has a right to collect only from the medium property!¹⁰  And should you contend that R. Akiba holds that a creditor can collect from the best like a [claimant for] damages, we may still object, how can you draw an analogy from a [private] creditor, who is at an advantage in that he can claim compensation for damages, to the Sanctuary, which has no right [ever] to claim compensation for damages?¹¹  — I may still say that [these words refer to the case where] our ox gored the ox of the Sanctuary, for R. Akiba held the same view as R. Simeon b. Menasya, as it has been taught: R. Simeon b. Menasya says: If an ox of the Sanctuary gores an ox of a layman, there is no liability, but if the ox of a layman gores an ox of the sanctuary, whether it was tam¹²  or mu'ad,¹²  the owner has to pay compensation in full.¹³  If that is the case, why should you say that R. Akiba and R. Ishmael differ [as to what is to be done] when the best of the claimant is equal to the worst of the defendant? Perhaps in that case both agree that we assess on the land of the claimant,¹⁴  and their dispute here¹⁵  is the same as that between R. Simeon b. Menasya and the Rabbis, R. Akiba adopting the same view as R. Simeon b. Menasya and R. Ishmael adopting the view of the Rabbis?¹⁶  — If that were the case, why should R. Akiba have said 'The whole purpose of the text etc.,'¹⁷  and again, what means 'All the more so in the case of the Sanctuary'?¹⁸  And besides, R. Ashi has told us,

1. I.e., the quality of the field paid by the defendant as damages need not exceed the best quality of the claimant's estate. Hence in this case, he can claim only the worst of the defendant's.
2. Who therefore has to pay out of his best.
3. If a man shall cause a field or vineyard to be eaten. Ex. XXII, 4.
4. Of the best of his own field shall he make restitution. Ibid.
5. Of 'field' 'field'. V. Glos.
6. That we assess on the estate of the claimant.
7. Even though this is much better than the best of the claimant.
8. Ex. XXI, 35.
9. For the damage to which there is no liability.
10. As laid down in our Mishnah.
11. As stated supra.
12. V. Glos.
13. B.K. 37b, q.v. for notes.
14. And where the claimant's best equals the defendant's worst, the latter will perhaps suffice according to all opinions.
15. In the Baraitha quoted supra 48b.
16. I.e., R. Akiba differed from R. Ishmael only in the second part of his statement, regarding the Sanctuary, but not the first.
17. Which indicates that the interpretation of the verse (Ex. XXII, 4) is the point at issue.
18. [As according to the view requiring full payment in all cases, the quality of the payment for damage done to sacred property may be higher than that paid for damage done to ordinary property, and in fact nothing less than the very best of the defendant's estate would suffice.]

It has been taught expressly: From the best of his field and the best of his vineyard he shall make restitution:¹  this means the best of the field of the claimant and the best of the vineyard of the claimant. So R. Ishmael. R. Akiba, however, says it means, the best of the field of the defendant and the best of the vineyard of the defendant.²

Rabina said: We may maintain after all that the Mishnah follows R. Akiba,³  who said that according to the Torah we assess on the land of the defendant, and it also follows here R. Simeon whose custom it was to expound the reasons of Scriptural injunctions,⁴  and its later clause gives the reason for the earlier,⁵  thus: Why is compensation for damage assessed on the best property? To pre vent abuses, as it has been taught: R. Simeon said: Why was it laid down that compensation for damages should be paid out of the best land? As a deterrent to those who plunder or take by violence,⁶  so that a man should say to himself, Why should I plunder or take by violence, seeing that to-morrow the Beth din will come down⁷  on my property and take my best field, basing themselves on what is written in the Torah, 'from the best of his field and the best of his vineyard he shall make restitution'? For that reason they laid down that compensation for damages should be assessed on the best land.

Why did they lay down that a creditor should recover only from medium land? So that a man, on seeing his neighbour possessed of a fine field or a fine house, should not be tempted to say, I will induce him to borrow money of me so that I can get them on account of my debt. For this reason they laid down that a creditor should recover only from medium land. But if that is so, he should be allowed to recover only from the lowest grade? — This would be closing the door in the face of borrowers.

A woman's Kethubah can be collected only from land of the poorest quality. So R. Judah; R. Meir, however, says, from medium land also. R. Simeon said: Why did they lay down that a woman's Kethubah is to be collected from poor land? Because the woman wants to be married more than the man wants to marry. Another explanation is that a woman is put away whether she will or not, but a man puts her away only if he wants to. How is this 'another explanation'?⁸  — [What it means is]: Should you say that just as when the husband divorces the wife the Rabbis provided that she should obtain a Kethubah from him, so when she leaves him they should provide for him a Kethubah from her, then I would point out⁹  that a woman is divorced whether she wants to be or not, but a man divorces only if he wants to, since he can always keep her waiting for a Get.

A WOMAN'S KETHUBAH ONLY FROM LAND OF THE POOREST QUALITY. Mar Zutra the son of R. Nahman said: This is the rule only [where the Kethubah is recovered] from the orphans,¹⁰  but from the husband himself it can be demanded out of medium property. If [the Mishnah refers to] orphans, why does it specify a woman's Kethubah, seeing that the same applies to all payments, as we have learnt, 'PAYMENTS FROM ORPHANS CAN BE RECOVERED ONLY FROM LOWEST GRADE LAND.' Are we not [therefore obliged to say] that the Mishnah is referring to the husband himself?¹¹  — In point of fact it is to the orphans, and there was a reason for specifying the woman's Kethubah. For I might have thought that the Rabbis granted her a concession in order that she might look more favourably on suitors.¹²  We are therefore told [that this is not so].

Raba said: Come and hear: R. MEIR SAYS, A WOMAN'S KETHUBAH CAN ALSO BE COLLECTED FROM MEDIUM QUALITY LAND. From whom? Shall I say from the orphans? Does R. Meir then not accept [the rule] which we have learnt: PAYMENT FROM ORPHANS CAN BE RECOVERED ONLY FROM THE LOWEST GRADE? We must say therefore that he means, from the husband himself; from which we can infer that in the opinion of the Rabbis¹³  [payment can be claimed even from the husband] only in poor land. — No; [R. Meir] indeed [also referred] to orphans, and there is a special reason why [in his opinion] a woman's Kethubah [should be collected even from their medium land], namely, to make her favourably disposed to suitors. Abaye said: Come and hear: COMPENSATION FOR DAMAGE IS PAID OUT 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. [Collected] from whom? Shall we say, from orphans? If so, why only the woman's Kethubah [from the poorest land]? Why not [all the claims of] others as well? — R. Aha b. Jacob said: We are dealing here with a case where a man became surety for compensation for damage due from his son, for his son's debt, and for his daughter-in-law's Kethubah. Each item then follows its own rule.¹⁴  Compensation and debts which are usually paid in the lifetime [of the person responsible] are paid in this case also as though in the lifetime of the person responsible.¹⁵  The woman's Kethubah which is usually paid after the death of the person responsible — and by whom? by the orphans — is paid in this case as after the death of the person responsible.¹⁶  But cannot this rule be derived from the fact that a surety for a Kethubah is not responsible [for its payment]?¹⁷  — We speak of a kabbelan [go-between].¹⁸  This solves the problem for one who holds that a kabbelan is responsible even though the borrower has no property,¹⁹  but what answer is to be given to one who holds that if the borrower has property he is responsible but if the borrower has no effects he is not responsible?²⁰  — If you like I can say that in this case we suppose [the son to have] had property²¹  which was subsequently destroyed,²²  or if you like I can say that in respect of his son a man would in all cases regard himself as responsible.

It has been stated [elsewhere]: With regard to a surety²³  for a Kethubah, all authorities are agreed that he does not become responsible.²⁴

1. Ex. XXII, 4.
2. For all this section v. B.K. (Sonc. ed.) pp. 21-24.
3. And not R. Ishmael, as we have been presuming hitherto.
4. E.g., that of 'he shall not multiply wives to himself,' B.M. 115a.
5. Although the rule laid down in the earlier derives from the Torah and not merely from the Rabbis.
6. [H], i.e. who appropriate forcibly but offer payment, in contradistinction from [H], who plunder without compensating the owner; v. B.K. 62a.]
7. Lit., 'jump', 'come forward'.
8. This being a fresh point, not a reason why the Kethubah is to be paid out of the worst land.
9. Lit., 'come and hear'.
10. After the death of the husband.
11. In case of divorce.
12. Lit., 'for the sake of favour.' This would more naturally mean, that she should find favour in the eyes of the men, and so indeed it is taken by R. Hananel. V. Tosaf. s.v.
13. With whom he joins issue on this point.
14. Viz., compensation for damage from the best property and debts from the second best, as they would have been by the son himself had he been alive.
15. Viz., by the father if the son dies without having paid.
16. Viz., from the lowest grade property, as it would be by orphans. In ordinary cases, however, a husband, according to R. Aba b. Jacob, pays the Kethubah from medium property.
17. V. infra.
18. V. Glos. The meaning is that he entered into an agreement with his daughter-in-law that she could claim either from him or from his son at will.
19. At the time when the debt is contracted.
20. Since no one would guarantee a loan where it is known that the debtor has no means wherewith to repay. A guarantee in such a case cannot therefore be taken seriously. V. B.B. 174b. And the presumption is here that the husband had no effects when the contract was made. (V. Tosaf.).
21. When the liability was contracted.
22. Lit., 'blighted'.
23. 'Areb., v. Glos.
24. Because she has not actually parted with anything.