Gittin - Daf 52
- An אפוטרופוס tithing and performing other transactions on behalf of orphans
The next Mishnah states: יתומין שסמכו אצל בעל הבית – Orphans who relied on a householder to care for their needs, או שמינה להן אביהן אפוטרופוס – or if their father appointed an apotropos for them, חייב לעשר פירותיהם – he must tithe their produce. Although a Baraisa teaches that an apotropos cannot take terumah for orphans, the Gemara explains that our Mishnah discusses tithing להאכיל – to feed them, whereas the Baraisa discusses tithing להניח – to store until they become adults, at which time they could tithe the produce themselves. A Baraisa elaborates on the powers of the apotropos. He can sell various property of theirs to feed them, but not to store away the proceeds. He can also use their property to prepare for them mitzvos which have a cost limit (such as lulav, sukkah, and tzitzis etc.), but not mitzvos without a cost limit, such as charity and redeeming captives. The Baraisa continues to discuss his ability to litigate on their behalf, and which properties of theirs he may sell to purchase something else.
- Orphans enjoy the benefits of hekdesh regarding sales
The Gemara discusses the moment of acquisition in purchases involving orphans. משוך פירי מיתמי –Produce which was drawn from orphans’ possession to acquire before payment, אייקור – if it later increased in value, the orphans can retract, based on the statement of Rav Chanilai bar Idi in the name of Shmuel: נכסי יתומין הרי הן כהקדש – Property of orphans is like hekdesh, ולא מקני אלא בכספא – and is only acquired with money (and not משיכה – drawing close). If it decreased in value,לא יהא כח הדיוט חמור מהקדש – the rights of an ordinary person should not be greater than those of hekdesh. Just as with an ordinary seller, the buyer acquires the item through משיכה and sustains the subsequent loss of value, with hekdesh as well, the buyer cannot retract after משיכה (in this case) and sustains the loss of value. If orphans purchase produce with משיכה, and it increases in value, they can similarly use the advantage of an ordinary buyer not to allow the seller to retract after משיכה. If it decreased in value, although in the parallel case of hekdesh, hekdesh could retract from the sale (since payment was not made), Rav Shisha son of Rav Idi ruled that the orphans cannot retract, because no one will sell them produce without payment if the orphans hold both advantages for price changes. The Gemara also discusses price fluctuations after orphans buy or sell produce with money.
- Machlokes about the case of מנסך (קים ליה בדרבה מיניה)
The next Mishnah states: המטמא – One who is metamei someone else’s produce, thereby damaging it (such as terumah, which can no longer be eaten), והמדמע – or one who mixes terumah into someone’s chullin produce (thereby prohibiting it to a non-Kohen), והמנסך – or one who prohibits someone’s wine as nesech (poured for idolatrous libations), בשוגג פטור – if he did so unintentionally, he is exempt from paying; במזיד חייב – if he did so deliberately, he is liable. The Gemara will explain the difference. Rav explains the final case to mean מנסך ממש – he literally pours an idolatrous libation. Shmuel says: מערב – it means one who mixes nesech wine into kosher wine, thereby prohibiting it. He disagrees with Rav, because מנסך קם ליה בדרבה מיניה – one who makes idolatrous libations is liable to a more severe punishment (namely, stoning) than paying money, and the more severe punishment exempts him from paying compensation, the lesser penalty. Rav holds: משעת הגבהה הוא דקנה – From the moment of lifting the wine he acquires it as stolen goods, obligating him to pay for it, מתחייב בנפשו לא הוי עד שעת ניסוך – but does not become liable for his life until the time of the libation. Because the monetary obligation preceded the libation, it is not exempted by the greater penalty.
