Talmud - Gittin 49b גיטין מ״ט ב׳

It is taught explicitly in a baraita: The verse: “Of the best of his own field, and of the best of his own vineyard, shall he pay” (Exodus 22:4), teaches that the appraisal is of the best of the fields of the injured party, and of the best of the vineyards of the injured party. This is the statement of Rabbi Yishmael. Rabbi Akiva says: The appraisal is of the best of the fields of the one who caused the damage, and of the best of the vineyards of the one who caused the damage. This clearly indicates that according to Rabbi Akiva compensation is collected from the superior-quality land belonging to the one who caused the damage.

Ravina said: Actually, the mishna is in accordance with the opinion of Rabbi Akiva, who said: By Torah law, we appraise the property of the one who caused the damage. And it is also in accordance with the principle of Rabbi Shimon, who expounds the reason underlying the verse as a basis for drawing halakhic conclusions. And the mishna is saying: What is the reason for the halakha taught in the mishna? The mishna should be understood as follows: What is the reason that the court appraises land of superior quality for payment to injured parties? This is for the betterment of the world. That is to say, the words: For the betterment of the world, do not indicate a rabbinic enactment. Rather, they provide a reason for the Torah law.

This is as it is taught in a baraita (Tosefta, Ketubot 12:2) that Rabbi Shimon said: For what reason did the Sages say that the court appraises land of superior quality for payment to injured parties? It is due to the robbers and due to those who take that which is not theirs by force [ḥamsanin]. How so? So that a person will say: Why should I rob and why should I take by force? Tomorrow the court will come down to my property and take my finest field in order to compensate the victim for what I have robbed or taken by force. And the Sages rely on what is written in the Torah: “Of the best of his own field, and of the best of his own vineyard, shall he pay” (Exodus 22:4). Consequently, they said that the court appraises land of superior quality for payment to injured parties.

The baraita continues: For what reason did the Sages say that a creditor collects his debt from intermediate-quality land? It is so that a person should not see another’s fine field or fine house and say: I will jump in and lend him money so that later I will collect the field or house for my debt, if the borrower does not have enough money to repay the loan. Therefore, the Sages said that a creditor collects his debt only from intermediate-quality land, and he would not receive that fine field that would have prompted him to extend the loan in the first place.

The Gemara asks: If it is so that the objective is that people not be tempted to lend money for the purpose of acquiring the borrower’s property should he default on the loan, then the halakha governing a creditor should be to collect his debt from inferior-quality land. The Gemara answers: If so, then you would be locking the door before potential borrowers, as no one would be willing to lend them money.

The baraita continues: Payment of a woman’s marriage contract is collected from inferior-quality land; this is the statement of Rabbi Yehuda. Rabbi Meir says: It can be collected from intermediate-quality land. Rabbi Shimon said: For what reason did the Sages say that a woman’s marriage contract is collected from inferior-quality land? It is because more than a man wants to marry a woman, a woman wants to become married to a man. Consequently, she will agree to marry even if she knows that she will not be able to collect payment of the marriage contract from superior-quality land.

Alternatively, it is because a woman is sent out from her husband with her consent or without her consent, but a man sends his wife out from his house only with his consent.

The Gemara asks: What is the reason that he mentions an alternative explanation? What problem is there with the first explanation? The Gemara answers: The alternative explanation does not explain why she collects from inferior-quality land, but serves to explain a different matter. Since the Sages instituted a marriage contract in order to strengthen the institution of marriage, it is possible to ask: And if you would say that just as when a man divorces his wife the Sages instituted a marriage contract for her from him, so too, when she leaves him they should similarly institute a marriage contract for him from her; then come and hear: A woman is sent out from her husband with her consent or without her consent, but a man sends his wife out from his house only with his consent. Even if she instigates a quarrel with him to bait him into divorcing her, it is nevertheless possible for the husband to keep her waiting for a bill of divorce. A man gives his wife a bill of divorce only when he wishes to do so, and so in essence the divorce depends solely on him.

§ The mishna teaches that payment of a woman’s marriage contract is collected from inferior-quality land. Mar Zutra, son of Rav Naḥman, said: We said that a woman collects her marriage contract from inferior-quality land only when her husband died and she collects payment from the orphans who inherit his estate. But if she was divorced and she collects payment from the husband himself, then she collects it from intermediate-quality land.

The Gemara asks: If the mishna is referring to collecting from orphans, then why discuss specifically a woman’s marriage contract? Even all matters, such as payment for damage, should also be collected from inferior-quality land when it is collected from orphans, as didn’t we learn in the mishna: If one who owed money died and his children inherited his property, the father’s debt can be collected from the property of the orphans only from inferior-quality land. Rather, is it not that the mishna is referring to a case where the woman collects her marriage contract from the husband himself?

The Gemara rejects this argument: Actually, the mishna is referring to a case where the woman collects her marriage contract from the orphans who inherit their father’s estate. And it was necessary for the mishna to teach the halakha specifically with regard to a woman’s marriage contract. As it could enter your mind to say that the Sages were more lenient with her for the sake of desirability, so that she would be a more desirable partner should she want to remarry, and consequently they allowed her to collect payment of her marriage contract from intermediate-quality land even from orphans, the mishna teaches us that even payment for a woman’s marriage contract is not collected from the intermediate-quality land of orphans, but only from their inferior-quality land.

Rava said: Come and hear a proof from a baraita: Rabbi Meir says: Payment for a woman’s marriage contract is collected from intermediate-quality land. The Gemara attempts to clarify the case: From whom does she collect payment of her marriage contract in this case? If we say that she is collecting from the orphans, it is possible to ask: Does Rabbi Meir not agree with that which we learned in the mishna: The father’s debt can be collected from the property of the orphans only from inferior-quality land? Rather, is it not that the woman collects payment of her marriage contract from her husband himself? And since Rabbi Meir maintains that she collects from intermediate-quality land, one can learn by inference that the Rabbis hold that she collects from inferior-quality land, contrary to the opinion of Mar Zutra.

The Gemara rejects this argument: No, actually it is possible to explain that the baraita is referring to a case where the woman collects her marriage contract from the orphans who inherit their father’s estate. And payment of a woman’s marriage contract is different from other debts collected from orphans, which can be collected only from inferior-quality land. The Sages were more lenient with her for the sake of desirability; consequently, Rabbi Meir ruled that she may collect her marriage contract from intermediate-quality land even if she is collecting it from orphans.

Abaye said: Come and hear a proof from what is taught in the mishna: The court appraises land of superior quality for payment to injured parties. And a creditor collects his debt from the debtor’s intermediate-quality land. And payment of a woman’s marriage contract is collected from her husband’s inferior-quality land. The Gemara attempts to clarify the case: From whom is the collection being made? If we say that in all of these cases collection is being made from the orphans, why mention specifically a woman’s marriage contract? Even all of these, i.e., even injured parties and creditors, should also collect only from inferior-quality land when collecting from orphans. Rather, is it not that the mishna is referring to a case where the woman collects her marriage contract from the husband himself, and it rules that she collects from inferior-quality land, contrary to the opinion of Mar Zutra?

Rav Aḥa bar Ya’akov said: No proof can be brought from the mishna against the opinion of Mar Zutra, as the mishna can be understood as follows: With what are we dealing here? We are dealing with a case where one became a guarantor for compensation for his son’s damages, and similarly for repayment to his son’s creditor, and similarly for payment of his daughter-in-law’s marriage contract, and his son died. Since the guarantor stands in place of his son, collection is made from him as if it were being made from his son.

And payment is made in this case in accordance with its halakha and payment is made in this case in accordance with its halakha. Since an injured party and a creditor ordinarily collect from those who owe them money while they are alive, when the guarantor pays the debt, he too pays the debt as though the one who caused the damage or borrowed the money were still alive. Therefore, in these cases collection is made from superior-quality or intermediate-quality land. But in this case, where the father serves as a guarantor for his son, payment of a woman’s marriage contract is only after her husband’s death, and after his death from whom does she collect? From the orphans. Consequently, when the guarantor pays the debt, he too pays the debt as though it were being paid by the orphans after the husband’s death. Accordingly, payment for her marriage contract is made from inferior-quality land.

The Gemara asks: But let him derive this halakha from another halakha that states that the guarantor of a marriage contract does not become responsible for the payment of the marriage contract from his own property. The signature that he adds to the marriage contract serves merely as additional support but does not turn him into a true guarantor. Therefore, even if a collection is made, it is only from inferior-quality land. The Gemara answers: We are dealing here with an unconditional guarantor, i.e., one who accepted unconditional responsibility for the obligation, allowing his daughter-in-law to collect payment of her marriage contract either from his son or from him, as she so desires.

The Gemara asks: This works out well according to the one who says that an unconditional guarantor becomes responsible for repayment of the loan even if the borrower does not have property of his own. Therefore, it works out well to explain the case in this manner. But according to the one who says that if the borrower has property of his own at the time of the loan, then the unconditional guarantor becomes responsible, but if the borrower does not have property of his own at the time of the loan, then the unconditional guarantor does not become responsible, what is there to say in a case where the son did not have any property at the time of the marriage? In such a case, the father never became responsible for his son’s obligations.

The Gemara answers: If you wish, say that it is a case where the son had property of his own at the outset, but afterward it was blighted. Since the son had his own property, the father accepted responsibility for the obligation, and now that the property has no value, the daughter-in-law can collect payment for her marriage contract from the father.

And if you wish say: With respect to anything relating to his son, it is common for a father to pledge himself absolutely, even when the son has no property of his own.

§ Apropos a guarantor for a marriage contract, the Gemara notes: It was stated that everyone agrees that a guarantor who signs a marriage contract does not thereby become responsible for the payment of the marriage contract from his own property.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Gittin 49b examines whether damage compensation is assessed from the offender's or victim's best land, debating Rabbi Yishmael and Rabbi Akiva's rulings.