022b – שום היתומים – פרק ששי – ערכין, דף כב ע”ב

The valuation of orphans' property is proclaimed for thirty days, and the valuation of consecrated property for sixty days; they proclaim it morning and evening^[1].

What are we dealing with?

If we say [it is] a creditor who is a gentile: will he wait for the days of proclamation?

אילימא בבעל חוב עובד כוכבים - That a gentile creditor does not want to keep the property until they grow up; will he wait the days of proclamation?

Rather, obviously [it is] a Jewish creditor.

Granted, according to Rav Huna son of Rav Yehoshua, who establishes it where the debtor admits^[2], it is fine.

But according to Rav Pappa it is difficult.

Rav Pappa said to him: If you wish, say [it is] a ketubah, out of chinah^[3].

And if you wish, say [it is] a creditor who is a gentile, who accepted upon himself to be judged by Jewish law^[4]; if he accepted to protect [the property] for them until they grow up, then he accepted this one but did not accept that one.

Come and hear: 'On condition^[5] to give the wife her ketubah and to the creditor his debt.'

ת"ש - That it was taught above, in the matter of proclamation: 'On condition to give the wife her ketubah and to the creditor his debt.'

What are we dealing with?

If we say [it is] a creditor {}: will he submit?

מי צאית - For the days of proclamation.

Rather, obviously [it is] a Jewish creditor.

Granted, according to Rav Huna son of Rav Yehoshua, who establishes it where he admits, it is fine.

But according to Rav Pappa: granted, the ketubah is [explained] because of chinah.

But [a case of] a creditor is difficult.

Rather, it is always [about] a creditor {}, [a case] where he accepted upon himself to be judged by Jewish law; if he accepted to protect [the property] for them until they grow up, he accepted this one but not that one.

Rava said: [it is] because of a receipt^[6].

רבא אמר - That this is [the case of] 'one does not pursue orphans' property.'

משום שובר - For perhaps there was a receipt of their father for this document, showing that he paid it, and the orphans do not know where it is.

Rav Huna son of Rav Yehoshua said to Rava: Do we fear a receipt?

But we learned in a Mishnah: 'One who collects in the absence [of the debtor] may collect only with an oath^[7].'

הנפרעת שלא בפניו - Such as where the husband sent her a get^[8] from overseas.

And R' Acha, the governor of the capital, said: A case came before R' Yitzchak Nappacha in Antioch^[9].

And he said: 'They taught only^[10] [regarding] a wife's ketubah, because of chinah, but not [regarding] a creditor.'

לא שנו - That the court descends on the property of an absent person only [in the case of] a wife's ketubah, because of chinah; but a creditor waits until he returns.

And Rabbah said, Rav Nachman said: Even a creditor too.

And if you fear a receipt there, let us fear it here too.

He said to him: There [it is different]: as we said, 'the reason^[11] is that not every person should take his fellow's money and go sit in a distant country.'

Rava said: The halachah: one does not pursue^[12] the property of orphans.

But if [the father] said 'Give,' one does pursue.

ואם אמר אביהן תנו - That if their father said 'give,' they pursue.

[If he said:] 'This field and this mina,' they pursue and do not appoint a guardian^[13].

שדה זו ומנה זו - That if the father said, 'Give this field to so-and-so in payment of his debt, or this mina,' they pursue and pay him, and there is no need to appoint a guardian for the orphans for this.

[If he said:] an unspecified field and an unspecified mina: they pursue, and they appoint a guardian.

שדה סתם ומנה סתם נזקקין ומעמידין אפוטרופוס - For the orphans, to select a good portion for them and to collect this from the zibburit (a term whose meaning is unclear).

The Nehardeans say: In all of them they pursue and appoint a guardian, except for a field found [in their hands] that is not theirs, for we do not establish possession^[14] by false witnesses.

בכולהו - Even [in the case of] this field and this mina, they pursue and appoint a guardian, except for a field found that is not theirs; for no guardian is needed there, but they remove it at once from their hands, because the witnesses who testify to the robbery [are believed]; we do not establish [possession] by false witnesses.

אבל נמצאת - That in the orphans' hands is one field that was not their father's but was robbed^[15]; they pursue to remove the robbery from their hands, and no guardian is needed.

Rav Ashi said: Then if we pursue, we do not pursue, for Rava said: the halachah^[16] is: one does not pursue.

And if we do pursue, we appoint a guardian, as the Nehardeans^[17] say: in all of them they pursue and appoint a guardian, except for a field found that is not theirs, for we do not establish possession by false witnesses.

Tosafot

רבא אמר משום שובר - And there is a difference between Rav Huna son of Rav Yehoshua, who speaks of [the danger of] tzararei^[18], and Rava, who speaks of [the danger of] a receipt: where a man handed his documents to one person in the presence of witnesses and said that he has no other documents except those he handed over, then regarding a receipt there is no concern, since he handed over all his documents to this one; and if he had a receipt, he would have handed it over too. But regarding tzararei there is still concern.

אמר ליה רב הונא בריה דרב יהושע לרבא ומי חיישינן לשובר והא תנן הנפרעת שלא בפניו כו' - If we fear a receipt here too, let us fear it. And if you ask: Rav Huna son of Rav Yehoshua could ask him too, 'let us fear tzararei'? The answer: it was obvious to Rav Huna son of Rav Yehoshua that because of tzararei one may not refuse to collect from a debtor who is absent, lest every person take his fellow's money and sit in a distant country; but the concern about a receipt did not occur to him, which is why he asked [Rava], 'let us fear a receipt,' and Rava answered him: there, as we said, [the reason is] that not every person should [take another's money and go off].

ואם אמר תנו נזקקין - Apparently 'tenu' means 'give the debt,' and this accords with Rav Huna son of Rav Yehoshua, who holds that where [the father] admits, they pursue. It is difficult, though: why did [the Gemara] leave the expression 'admits'? Perhaps he used 'tenu' because it applies both to a debt and to a gift: if the father instructed the orphans to give a gift, they give; and if he instructed it as one who distributes his estate, giving a gift of all or part with an act of acquisition, they give. It also seems that the discussion concerns a gift, since it says: 'this field and this mina they pursue for him.'

ואם אמר תנו נזקקין - It is obvious that if he said 'give,' they pursue, since it was given as a gift; [Rabbeinu] Yitzchak says it was still necessary to say so. The reason the phrase 'tenu' is used is that the passage ends with 'this field and this mina,' which fits 'tenu.' Moreover there is a case of admission where he did not say 'tenu' or 'you are witnesses': for example, the dying man in the chapter Get Pashut (Bava Basra) who said 'give a mina to so-and-so': if he said 'they give,' they give; if he did not say 'they give,' they do not give, since a person does not joke at the time of death, as shown at the end of that chapter. Even where they claimed from him and he admitted, without 'you are witnesses,' and did not say 'they give' [the ruling is parallel].

ואין מעמידין אפוטרופוס - Since he said 'this field and this mina,' there is no need to appoint a guardian to know whether [the debt] was paid, since he has a receipt. Otherwise they would appoint a guardian to know whether it was paid and whether he has a receipt, and a guardian would search for the receipt among the dead man's effects, or for some evidence, lest a tzararei seize [the property]. And if you ask: since he said 'give,' even if he owes nothing they should give it, since it is a bequest at death and should be a plain gift; the answer: he thought he was obligated because of his debt and not as a gift, so it is given only to one to whom he is obligated. This is also implied in Get Pashut (Bava Basra), concerning the case I cited above, where he said 'give': he upheld the document, showing that since he knew [he owed], saying 'give' is as if the document were confirmed; but if he did not owe, he would not give it as a gift.

אמרי נהרדעי בכולהו נזקקין ומעמידין אפוטרופוס - Explanation: 'in all of them' refers to 'this field and this mina.'

אמר רב אשי הלכך אזדקוקי כו' דאמר רבא הלכתא אין נזקקין - Explanation in general: where there is concern for tzararei, as in the statement of Rav Assi, one does not pursue orphans' property. 'If we pursue' means: where we pursue, as in 'this field and this mina,' as Rava said, they pursue and do not appoint a guardian. In this we do not hold like Rava; rather we appoint a guardian, as the Nehardeans say: in all of them they pursue and appoint a guardian, except for a field found that is not theirs, since we do not validate false witnesses of possession, and no guardian is needed. And if you ask: in the chapter Hagozel Batra (Bava Kama), Bar Chamuah of R. Yirmiyah pushed Gali in front of R. Yirmiyah and came before R. Abba; he said 'it is mine,' and [R. Abba] said: 'Yes, but I have witnesses that [your father] held it in his lifetime' — and do we accept testimony not in the presence of the litigant? And why does our passage say that where a found field is not theirs we do pursue and accept testimony, even though the orphans are minors? The answer: there, from the start, it was the father's, so if there are witnesses of possession we do not accept this testimony, and we do not validate false witnesses of possession, since perhaps there was some condition with his father that he held it even though it was his. But in our passage, where a found field is not theirs and the witnesses testify that it was robbed, we do not validate false witnesses of possession, lest it was not robbed; and one cannot say that it was returned and taken back, since once it came into his hand by robbery we do not say he took it back. It is clear that the father robbed and it is not his father's, and we rightly accept the testimony that the father robbed without the litigant present, since it is clear to us that the field is not the father's. Similarly in the case of Hagozel Batra, where R. Yehoshua said that a child who attacked his father's slaves and entered his neighbor's field and said 'it is mine' is not told to wait until he grows up but is removed from his hand; the Gemara concludes there that we remove him because the father's possession was not established, which implies that there are matters in which testimony is accepted not in the litigant's presence. Hence it seems that where a debt arises from the father's oral loan and he admitted it before the court, we do pursue, and witnesses who heard the admission testify before the court and collect the debt from the orphans' property on their testimony; and it was not said that testimony is accepted only in the litigant's presence, since the matter is clear without any stammering that the father admitted, like the found field that is not his. However, where a debt arises from the orphans' side and one knows clearly that the tzararei did not seize the whole debt, we do not pursue, as is stated in the chapter The Ox That Gored Four or Five (Bava Kama): an ox that caused damage is exempt because one does not pursue; Rabbeinu (Ri) explains that the tzararei does not apply, but in any case one does not pursue since testimony is not accepted without the litigant present.

Notes

1. 1. Proclamation (hakhrazah) – announcing the property publicly before its sale, morning and evening, so that creditors can come forward. Orphans' property is proclaimed for thirty days, consecrated property for sixty.
2. 2. Where the debtor admits – where the debtor, here the father, acknowledged the debt; the estate then pays as the father himself would have paid.
3. 3. Because of chinah – out of grace and mercy toward the wife, so that she is not left without her ketubah. The exact sense of the word is uncertain; rendered as in the text.
4. 4. Accepted to be judged by Jewish law – the gentile agreed to litigate before a Jewish court, and his agreement binds him to its rulings.
5. 5. On condition to give – on the condition that they give. The Baraita speaks of property passed to heirs on the condition that they pay the wife's ketubah and the creditor's debt.
6. 6. Shover – a receipt, a document in which the creditor acknowledges payment. Here the concern is that the father already paid, and the receipt is not in the orphans' hands.
7. 7. Only with an oath – one who collects in the debtor's absence swears that he has not already been paid. This protects the absent debtor.
8. 8. Get – a bill of divorce. Here the husband sent it from overseas, so he is not present when the ketubah is paid.
9. 9. Antioch – a major city in northern Syria, an important political and administrative center in the Talmudic period.
10. 10. They taught only – meaning: the rule of one who collects in absence applies only to a ketubah, because of chinah; a creditor must wait until the debtor returns.
11. 11. The reason – that no one should take his fellow's money and sit in a distant country. Therefore property of an absent person is not paid out without caution.
12. 12. Nizdakin – the court proceeds to collect a debt from orphans' property. The halachah: the court does not pursue orphans' property unless the father instructed payment.
13. 13. Guardian – a person appointed by the court to manage and protect orphans' property.
14. 14. Witnesses of possession – witnesses who testify that the father held the property. We do not establish by false witnesses – such testimony is not accepted when it is false.
15. 15. Robbed – property taken from its owner by force and without right.
16. 16. Halachah – the ruling stated above in Rava's name: one does not pursue orphans' property.
17. 17. As the Nehardeans say – that is, as the Nehardeans ruled above: in all cases they pursue and appoint a guardian, except a field found that is not theirs.
18. 18. Tzararei – people who fabricate a debt or make an unfounded claim in order to extract property from the heirs.