022a – שום היתומים – פרק ששי – ערכין, דף כב ע”א

The Sages taught: the sale of orphans' property^[1] is thirty days, and the sale of consecrated property is sixty days, the words of Rabbi Meir. Rabbi Yehuda says: the sale of orphans' property is sixty days, and the sale of consecrated property is ninety days. And the Sages say: both this and that are sixty days.

Rav Chisda said in the name of Avimi: the halacha is that the sale of orphans' property is sixty days.

Rabbi Chiya bar Avin sat and was saying this teaching.

להא שמעתא - [The teaching] of Rav Chisda.

Rav Nachman bar Yitzchak said to Rabbi Chiya bar Avin: did you say sixty, or thirty?

He said to him: sixty, for orphans or for consecrated property?

He said to him: for orphans. In accordance with Rabbi Meir or Rabbi Yehuda?

He said to him: in accordance with Rabbi Meir. But Rabbi Meir says thirty!

He said to him: thus said Rav Chisda in the name of Avimi: the Kolfei Tavei swallowed it on him.

קולפי טאבי - Great blows over this teaching: he taught me that the sale of orphans' property is sixty days according to Rabbi Meir, and I would challenge him, 'But Rabbi Meir says thirty!' And he told me: 'He came to proclaim thirty consecutive days, for orphans or for consecrated property.'

This teaching comes to proclaim on consecutive days: thirty [days] on Monday^[2] and Thursday, sixty. Even though, when the master counts the proclamation days, there are only eighteen of them, since the matter is spread, people hear it.

ואם בא להכריז שני וחמישי - They are the court days. The sale is sixty days, and the days of proclamation are eighteen. Count from Shabbat: eight weeks, which is fifty-six days, and in them sixteen Mondays and Thursdays. He added four more days: Monday, Tuesday, Wednesday and Thursday after Shabbat; this makes sixty days from when the proclamation began, and in them there are eighteen days of proclamation.

Rav Yehuda said in the name of Rav Asi: one may not proceed against orphans' property unless interest is eating away at it.

אין נזקקין לנכסי יתומים - to sell them.

רבית אוכלת בהן - that they owed money at interest to a gentile.

And Rabbi Yochanan says: either for a document that carries interest, or for a wife's ketubah^[3], because of maintenance.

משום מזוני - as long as she has not collected her ketubah, she is maintained from their (the orphans') property, and that is a loss to them.

And Rav Asi: why did he not say 'for a ketubah'? Because the Sages instituted for her [that her] own handiwork [supports her], and the other [case]: sometimes [her handiwork] does not support her.

The Mishnah teaches: the sale of orphans' property is thirty days, and the sale of consecrated property is sixty days, and they proclaim morning and evening^[4].

What are we dealing with? If we say: a creditor who is a gentile^[5], would he comply?

אילימא בבעל חוב עובד כוכבים - who takes interest, and therefore we take action.

מי צאית - to wait the days of our proclamation without interest.

Rather, it is obvious: a Jewish creditor who is taking interest, would we let him be?

But if he is not taking interest, and the teaching says 'we take action'^[6]...

Granted, according to Rabbi Yochanan we explain it as a case of a wife's ketubah; but according to Rav Asi it is difficult.

Rav Asi can answer you: and according to Rabbi Yochanan, is it fine? Shall we leave the maintenance, which certainly causes loss, and adopt the proclamation, since we do not know whether [the estate] profits or does not profit?

This is no difficulty: [it is the case of] a woman who claims her ketubah in court, as Rav Yehuda said in the name of Shmuel^[7].

בתובעת כתובתה בב"ד - since once she has sued, she has no maintenance, and the orphans lose nothing by waiting.

As Rav Yehuda said in the name of Shmuel: 'A woman who claims her ketubah in court has no maintenance.'^[8]

If so, we should not take action for her at all.

לא נזדקיק לה - to collect her ketubah, since from now on her maintenance is not on the orphans.

Rather, since we take action for her at the start, we take action for her in the end [to collect her ketubah].

כיון דאזדקקינן לה מעיקרא - at the beginning of her claim for her ketubah, namely to make her lose her maintenance.

מזדקקינן לה לבסוף - to collect her ketubah for her.

Still, according to Rav Asi it is difficult: [it must be] a gentile creditor who accepted to be judged by Jewish law^[9].

If so, interest too should not be taken, since he accepted [Jewish law] for this and did not accept it for that.

Come and hear: 'One may not collect from orphans' property except from the zibburit'^[10].

In what case are we dealing? If we say: a gentile creditor, would he comply?

Rather, it is obvious: a Jewish creditor who takes interest, would we let him be?

But if he does not take interest, and it teaches 'we take action'...

Granted, according to Rabbi Yochanan it is a case of a ketubah; but according to Rav Asi it is difficult.

Rav Asi can answer you: and according to Rabbi Yochanan, is it fine? If it is a ketubah, why [specifically] orphans? Even from his own property, from the zibburit too.

This is no difficulty: Rabbi Meir holds that the ketubah is a middling [amount]^[11], and [the property taken from orphans is] zibburit.

הא לא קשיא ר"מ היא - who says the ketubah is a middling amount, from his own property, for example if he divorced her; and this teaches that [it is collected] from the orphans' zibburit.

Still, according to Rav Asi it is difficult: [it must be] a gentile creditor who accepted to be judged by Jewish law.

If so, interest too should not be taken, since he accepted for this and did not accept for that.

Come and hear: 'On condition that [the estate] give the wife her ketubah and the creditor his debt'^[12].

Granted, as for a creditor, according to either Master, as taught; but [what about] the ketubah?

כדשנין - that is, with a gentile creditor.

Granted, according to Rabbi Yochanan it is fine; but according to Rav Asi it is difficult.

Here, what are we dealing with? [A case] where the debtor admitted^[13] the debt.

כשחייב מודה - at the time of death his father admitted [the debt].

Now that you have come to this, all of them too are [cases] where the debtor admitted: Marimar collected a divorcee's ketubah from orphans' property.

כולהו נמי כשחייב מודה - and a Jewish creditor.

Ravina said to Amemar: but did not Rav Yehuda say in the name of Rav Asi: 'One may not proceed against orphans' property unless interest is eating away at it'? Rabbi Yochanan says: either for a document bearing interest, or for a ketubah because of maintenance. And even Rabbi Yochanan only said it of a widow, who loses her maintenance;

but as for a divorcee, he did not say it to him.

גרושה - has no maintenance.

[Amemar replied:] We are following Rabbi Yochanan: we teach it because of grace (chinah).

ההיא דרבי יוחנן - who says that a ketubah is collected from orphans' property.

משום חינא מתנינן לה - so that men will find favor in women's eyes and marry them; therefore even a divorcee too.

Rav Nachman said: from the start I would not take action against orphans' property; but since I heard this teaching of Rav Huna of Chavrin in the name of Rav, 'orphans who ate what was not theirs: let them go after what their father left them', from now on I take action.

בתר שיבקייהו - they should die like their father, who left them this property.

What is the reason?

Rav Pappa said: paying a creditor is a mitzvah^[14], and orphans are not able to perform a mitzvah.

לאו בני מיעבד מצוה נינהו - because they are minors; rather, one must wait until they grow up.

Rav Huna son of Rav Yehoshua said: suppose [the creditor] had already seized a pledge; what is the difference between them?

צררי אתפסיה - their father gave the creditor money, or silver and gold, as a pledge at the time of death, and did not manage to take the document from his hand.

The difference is a case where the debtor admitted the debt.

Or, [alternatively]: if [the court] put him under a ban^[15] and he died under the ban.

דשמתיה - the court put a ban on their father because he did not repay this man his debt, and he died under the ban; now there is no concern about seizure, since he would pay only in court, so that the ban be lifted.

They sent from there: where he was put under a ban and died under the ban.

שלחו מתם בדשמתיה ומית בשמתיה - all those previous teachings in which they said 'we take action' are explained.

And the halacha is like Rav Huna son of Rav Yehoshua.

והלכתא כרב הונא - where they did not put him under a ban, one is concerned about seizure.

Tosafot

תנן שום היתומים כו' במאי עסקינן אלימא בבעל חוב עובד כוכבים מי ציית - And if you ask, why did [the Gemara] need to refute [Rav Asi] from the Mishnah, when Rav Asi's own statement could have been challenged? He said: 'one does not proceed against orphans' property unless interest is eating away at it.' What are we dealing with in this 'one does not proceed'? If we say a gentile creditor, would he wait until they grow up? And if a Jewish creditor, shall we let him take interest? The answer: Rav Asi's statement cannot be challenged, since it can be explained as a case where he did not sue them; and indeed it is a gentile creditor, and therefore 'one does not proceed unless interest is eating away at them', but in a case where he did not sue, we do proceed, because the interest would grow upon them. But the Mishnah is properly challenged, since surely the court appraises [the property] only when [the creditor] has sued; therefore it asks: if a gentile creditor, would he comply until the proclamation is completed, so as not to increase the interest; and if he would not comply, then perhaps they will lose by the extended time more than they gain, since we do not know whether we profit or not; then proclamation is not needed, as the Gemara says shortly regarding Rabbi Yochanan's teaching.

אמר רב נחמן מריש לא הוה מזקיקינן ליתמי כו' מכאן ואילך מזקיקינן כו' - And the halacha is like Rav Nachman regarding [the rule] that we take action against orphans' property; and so it is in [tractate] Ketubot (84b), in the case of the one who died leaving a wife, a creditor and heirs, and he had a loan or a deposit with others: it is given to the weakest of them; and Rabbi Yochanan said there: 'for the ketubah of the wife, because of grace'. So we see that we take action.

Notes

1. 1. Shum: a sale of property arranged by the court after a public proclamation, so that buyers come forward. The length of the proclamation (thirty, sixty or ninety days) is the subject of the dispute here.
2. 2. Monday and Thursday were the market and court days, when people came into town; so the proclamation was made on those days.
3. 3. A ketubah is the sum a husband pledged to his wife in the marriage contract, payable on divorce or his death. Until she collects it she is maintained from the husband's property, here the orphans' estate.
4. 4. The Mishnah is quoted as the basis of the question: the sale of orphans' property takes thirty days, consecrated property sixty, with proclamation morning and evening.
5. 5. A gentile creditor takes interest (Rashi), so the Gemara asks whether he would agree to wait out the days of proclamation without interest accruing.
6. 6. 'We take action' (nizdakkin): the court proceeds against the orphans' estate to collect the debt from it.
7. 7. A woman who sues for her ketubah in court is no longer maintained from the estate, so the orphans lose nothing by waiting.
8. 8. The principle cited here, from Rav Yehuda in the name of Shmuel: from the time she sues in court she has no maintenance right.
9. 9. A gentile who accepted to be judged under Jewish law is bound by the court's ruling on the debt, but not necessarily in every respect. The Gemara tests Rav Asi's position with this.
10. 10. Zibburit: an inferior kind of property, from which orphans' debts are collected.
11. 11. A middling ketubah: according to Rabbi Meir the ketubah is a middling sum, paid from the husband's own property (Rashi).
12. 12. A beraisa: a sale made on the condition that the wife receive her ketubah and the creditor his debt.
13. 13. The debtor acknowledged the debt at the time of his death, so the claim is established and not in dispute.
14. 14. Repaying a creditor is a mitzvah, but minors cannot perform mitzvot; so the estate is not used for repayment until they grow up.
15. 15. Shamtuhu: the court imposed a ban (nidui) on him to compel him to pay his debt; a man under a ban could be released only by the court.