Talmud - Gittin 52b גיטין נ״ב ב׳

as the sellers will come to say to them: Your wheat was burned in the upper story of my house, and you have lost everything. If a fire breaks out, the sellers will not attempt to save the produce because they already received payment for it and it now belongs to the orphans.

If buyers gave the orphans money for the purchase of produce, but did not yet physically transfer it into their possession, and afterward the produce increased in value, then one applies the principle that the power of an ordinary person should not be greater than that of the Temple treasury, and therefore the orphans can renege on the sale, as a valid act of acquisition had not yet been performed. If the produce decreased in value, and the orphans wish to uphold the sale, the students understood from here that this is subject to what Rav Ḥanilai bar Idi said, that transactions involving orphans are finalized with the transfer of money, and therefore the orphans should acquire the produce at the lower price.

Rav Sheisha, son of Rav Idi, said to them: This would be bad for the orphans were they treated this way, as there may be times that the orphans need money and no one will give it to them before they actually give them the produce. Consequently, it is preferable for them to be treated like other sellers, who finalize their sales only once the merchandise is pulled by the buyers.

§ Rav Ashi said: Rav Kahana and I signed a deed of sale for the mother of Ze’eira the orphan, who, as the child’s steward, sold land without first making a public announcement in order to pay the head tax [karga]. It was permitted for her to act in this manner due to what the Sages of Neharde’a said: When an orphan’s property is sold, a public announcement of the sale is first made in order to ensure that the seller will receive the highest price. But when the property is sold to raise money for the payment of the head tax, or to provide for sustenance for orphans, or to pay for burial of the deceased, the money is needed immediately, so the property may be sold even without a public announcement.

The Gemara relates: Amram the dyer was a steward for orphans, and the orphans’ relatives once came before Rav Naḥman and said to him: He dresses and covers himself with clothing purchased from the property of the orphans. Rav Naḥman said to them: Perhaps he does this in order that his words be heard, meaning that he dresses himself in finery at the orphans’ expense in order to better manage their property, as he will be ignored if he appears to be a poor person.

They said to him: He eats and drinks lavishly from the orphan’s property and is not known to be rich enough to be able to afford such large expenditures from his own money. Rav Naḥman said to them: Say that perhaps he found a lost item, with the help of which he can allow himself to maintain a high standard of living. They said to him: But he is damaging the orphans’ property and thereby causing them financial loss. Rav Naḥman said to them: Bring me witnesses that he is damaging their property and I will remove him from his stewardship, as our colleague Rav Huna said in the name of Rav that in the case of a steward who damages the property of the orphans, the court removes him. As it was stated: With regard to a steward who damages orphans’ property, Rav Huna says that Rav says: The court removes him. In the school of Rabbi Sheila they say: The court does not remove him. The Gemara concludes: And the halakha is that the court removes him.

§ The mishna teaches: With regard to a steward who was appointed by the orphans’ father, when he returns all of the property to the orphans upon their reaching adulthood, he takes an oath that he took nothing of theirs for himself. The Gemara explains: What is the reason for this? If the steward had not received some benefit from the father during his life, he would not have agreed to become a steward for his children. And he will not come to avoid becoming a steward merely because of an oath that the court will impose upon him some time in the future

The mishna then teaches: By contrast, if the court appointed him to serve as a steward for them, then he is not required to take such an oath. The Gemara explains: The reason for this is that it is merely a favor that the steward does for the court, as he derives no benefit from accepting the position. And if you also cast an obligation upon him to take an oath, he will come to avoid becoming a steward, and the orphans will suffer a loss, as people will not be willing to administer their affairs.

The mishna then teaches: Abba Shaul says: The matters are reversed; it is not a steward appointed by the orphans’ father but a steward appointed by the court who takes an oath. The Gemara clarifies Abba Shaul’s opinion: What is the reason that if the court appointed the steward, he takes an oath? Since he derives a certain benefit from his appointment, that publicity is generated about him that he is a trustworthy man, as is demonstrated by the fact that the court relies upon him and appoints him to a position of responsibility, he will not come to avoid becoming a steward merely because of an oath that the court will impose upon him.

By contrast, if the orphans’ father appointed him as a steward, he is not required to take an oath. Why so? It is merely a favor that these people do for each other. And if you cast an additional obligation upon the steward to take an oath, he will come to avoid accepting the position, and the orphans will suffer a loss, as people will not be willing to administer their affairs. Rav Ḥanan bar Ami says that Shmuel says: The halakha is in accordance with the opinion of Abba Shaul.

It is taught in a baraita that Rabbi Eliezer ben Ya’akov says: Both this one, a steward appointed by the father, and that one, a court-appointed steward, take an oath, and the halakha is in accordance with his statement.

Rav Taḥalifa, from the West, Eretz Yisrael, taught a baraita before Rabbi Abbahu: In the case of a steward who was appointed to that position by the father of the orphans, he takes an oath when the orphans reach adulthood and he returns the property to them, because he receives payment, i.e., he derives a certain benefit from managing the orphans’ property. Rabbi Abbahu said to him: Did you bring a kav and measure how much the steward earns from his efforts? Rather, say that he takes an oath because it is as if he received payment. Presumably he agreed to serve as the orphans’ steward because of a benefit that he derived from their father during his lifetime, and consequently it is as if he received payment for accepting the stewardship.

MISHNA: With regard to one who renders another’s food ritually impure, or one who mixes teruma with another’s non-sacred produce, or one who pours another’s wine as a libation before an idol, in each of these cases causing the other a monetary loss, if he acted unintentionally, he is exempt from paying for the damage. If he acted intentionally, he is liable to pay.

GEMARA: It was stated that the amora’im disagreed with regard to the meaning of the word pours mentioned in the mishna. Rav says: It means that he actually takes the wine and pours it as a libation before an idol. And Shmuel says: It means that he mixes together kosher wine with wine that had been used in rites of idolatry, so that now it is prohibited to drink or derive any other benefit from the mixture.

The Gemara asks: With regard to Shmuel, the one who says that it means mixing, what is the reason that he did not say that it means actually pouring? The Gemara answers: He could have said to you: One who has committed two or more transgressions with a single act is exempt from punishment for the less severe transgression. Consequently, one who committed an act warranting both court-imposed capital punishment and the payment of monetary compensation is put to death but is exempt from the monetary payment. Therefore, one who pours another’s wine as a libation before an idol receives the greater punishment, i.e., the death penalty for transgressing the prohibition against idol worship, but he is exempt from the less severe penalty of monetary payment for the financial loss he caused the other person.

And the other Sage, Rav, holds in accordance with the statement of Rabbi Yirmeya, as Rabbi Yirmeya says: One who pours another person’s wine as a libation acquires it as his own from the time that he lifts it in order to take it for himself, as does any thief, and at that moment he becomes liable for the payment of monetary compensation. But he does not become liable to receive the death penalty for violating the prohibition against idol worship until he actually pours the wine before the idol. Consequently, the monetary penalty takes effect first, and he also becomes liable to receive the death penalty afterward in a separate act.

The Gemara asks: And according to Rav, the one who says that it means actually pouring, what is the reason that he did not say that it means mixing? The Gemara answers: He could have said to you: Mixing libation wine with kosher wine

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

Gittin 52b explores how orphans' property sales finalize through payment versus delivery, and when tax or burial needs bypass public sale announcements.