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Bava Metzia, 39

1) THE MECHANISM OF THE HEFKER OF SHEMITAH

OPINIONS: The Gemara defines the word "Netushim" (as used by the Tosefta cited on 38b) as referring to landowners who abandoned their land against their will. The word is derived from the verse, "v'ha'Shevi'is Tishmetenah u'Ntashtah" (Shemos 23:11), in which "u'Ntashtah" refers to the fruits of one's land automatically becoming Hefker in the Shemitah year, regardless of the will of the owner.

The Mefarshim discuss the nature of the way that the fruit of one's land becomes Hefker at the arrival of the Shemitah year.

(a) The MAHARIT (1:43, in the name of his father, the MABIT) proves from this Sugya, and from other places, that the fruit of one's field indeed becomes Hefker against his will. The MINCHAS CHINUCH (Mitzvah 84) writes that if the owner does not "make" his fruit Hefker, it becomes Hefker anyway, and his refusal to let others into his field does not constitute a lack of fulfillment of a Mitzvas Aseh to make his field Hefker, but rather it constitutes a transgression of Gezeilah from the public (since the fruits automatically become Hefker and the public has the right to take them).

(b) The BEIS YOSEF (cited by the Maharit there, 1:44), however, maintains that the fruit of the field does not become Hefker unless the owner makes it Hefker. Since he is obligated by the Torah to make it Hefker, it is considered "an appropriation of the King" ("Afka'asa d'Malka"). (I. Alsheich)

39b

QUESTION: Rav Huna (39a) rules that Beis Din may not appoint a minor to manage the estate of his relative who has been taken captive (or in some other manner has involuntarily abandoned his land), because of the concern that the minor will not take proper care of the land. Rav Huna also rules that Beis Din may not appoint a relative to manage the estate of a minor, lest the relative claim that the estate fell to him, and not to the minor, as an inheritance (and the minor will not be able to make any counter-claim).

The Gemara demonstrates the application of these rules with an actual incident that occurred. An elderly woman had three daughters, one of which had a son who was a minor. One daughter, the mother of the child, died. The elderly woman and one of her daughters were taken captive, leaving one daughter and one grandson. Abaye questioned what should be done with the land of the elderly woman and the daughter who were taken captive. Normally, it would be given to the remaining relatives to take care of it. In this case, though, it could not be given to the child, because of Rav Huna's ruling that Beis Din may not appoint a minor to manage the estate of his relative who has been taken captive. On the other hand, the land may not be given into the care of the remaining sister, because perhaps the elderly woman died, leaving her land to her three daughters, and this child inherited his mother's portion of the land, and Rav Huna rules that Beis Din may not appoint a relative to manage the estate of a minor.

Why does the Gemara say that we are concerned for the possibility that the elderly woman died? The Gemara in Gitin (28a) teaches that we do not concern ourselves with the possibility that a person died, because there is a Chazakah that the person is alive (that is, since he was alive until now, we assume that he is still alive). This Chazakah applies even to an old person, as the Mishnah in Gitin there teaches -- if a Shali'ach is sent by an elderly man to give a Get to his wife, he may give the Get and we do not assume that the man has died. Why, then, does the Gemara here say that we are concerned for the possibility that the elderly woman died?

ANSWERS:

(a) TOSFOS and TOSFOS RABEINU PERETZ answer that the elderly woman in the incident in our Gemara had already reached the age of "Gevuros" (over the age of 80; see Moed Katan 28a, and Avos 5:27), for which the Gemara in Gitin says that the Chazakah that a person is alive no longer applies.

However, Tosfos and Tosfos Rabeinu Peretz question this answer from our Gemara in which Abaye rules that the remaining sister receives half of her elderly mother's land (and the other half is given to an Apotropos and not to the child), because if the elderly woman and her daughter died, then the remaining sister and the grandson split the estate. The remaining sister, though, should receive not a half, but two thirds -- she should receive the amount (a third) that she might have inherited from her mother if her mother died, and she should be placed in charge of her sister's portion (a third) since we assume that her sister is still alive, since, if her mother reached "Gevuros," certainly her sister did not reach that age yet! Even if we assume that the sister did reach the age of "Gevuros," then that means that her mother reached that age long ago, and the Gemara in Gitin says that once a person has reached the age of "Gevuros" and has continued to live for a long time, then we do *not* concern ourselves with the possibility that the person might have died! Thus, if the sister reached "Gevuros" and we suspect that she might have died, then we cannot suspect that her mother died, since we do not suspect that someone who has lived for a long time past the age of "Gevuros" has died!

Because of this question, Tosfos rejects his initial answer. Tosfos Rabeinu Peretz, however, defends it (as does the RITVA) and says that the only time that we say that one who has passed the age of "Gevuros" is not assumed to have died is when the person has reached the age of 100. Here, though, it could have been that the elderly mother had reached "Gevuros" but had not reached 100 (for example, she was 97), and her daughter reached "Gevuros" as well (for example, she was 80). Therefore, we may take into account the possibility that they both died. (The RAMBAN in Gitin says about this answer that "Lav Milsa Hi." Tosfos here, too, does not give this answer, probably because he sees no reason to differentiate between one who has lived passed "Gevuros" by just a few years, and one who has lived passed "Gevuros" for twenty years. See also RASHI in Gitin there (and the TOSFOS RID), who writes that "one who is 81 or more, *until ninety*, is close to death," implying that once a person has passed the age of ninety, we assume he is living and we do not suspect that he has died.)

(b) TOSFOS gives another answer and explains that only with regard to the giving of a Get do we assume that the man who sent the Get is still alive, even if he is old, and we do not take into account the possibility that he might have died before the Shali'ach reached the woman. In the case of a Get, there is a concern that the woman will be left an Agunah, because no one knows whether her husband died or not, and therefore the Chachamim were lenient and allowed the woman to become divorced on the assumption that he is still alive at the time of the giving of the Get. Similarly, we do not take into account the concern that someone died with regard to eating the meat of a Korban and eating Terumah (that is, a Kohen may not eat Kodshim if an immediate relative of his has died). In the case of our Gemara, though, we must be *Machmir* when determining the most appropriate and responsible course of action to be taken with the estate, and thus in order to protect the interest of the heirs who are minors, we must take into account the possibility that the captives have died and not appoint the relative as manager over the minor's inherited estate. (See TERUMAS HA'DESHEN #349 ("Amnam Ki Daikinan") for further explanation of this answer of Tosfos.)

Tosfos gives an alternative reason why, in this case, we are Machmir and we take into consideration the possibility that the person died. Tosfos says that since the elderly woman and her daughter were *taken captive*, there is strong reason to assume that they have died, since captors tend to afflict their captives and cause them to die.

(c) The RAMBAN in Gitin (and as cited by the RITVA here), the CHIDUSHEI HA'RAN in Gitin, and RABEINU KRESKAS answer that since the property of the minor is presently being held by Beis Din, Beis Din is obligated to do whatever they must do -- and to take into consideration any possibility -- in order to ensure that their decision is proper and just. Therefore, Beis Din must be concerned that the captives died. In contrast, in the case in Gitin, there is no need to take into account all of the possibilities, since it is not a ruling of Beis Din being made there, and therefore the one giving the Get may rely on the Chazakah that the person is still alive. The Ramban in Gitin explains further that in this case, Beis Din has a clear course of action to take with regard to the land, even if they take into account the possibility that the captives died. In Gitin, though, if the Shali'ach is concerned that the man died, then he will have no appropriate course of action to take, and the woman will be left as an Agunah. (I. Alsheich)