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Gitin, 30

1) AN INVOLUNTARY FULFILLMENT OF A CONDITION

QUESTION: The Gemara discusses situations in which a man gives a Get to his wife and states that it should take effect only if a certain condition is fulfilled. The husband then fulfills that condition involuntarily, without intention to fulfill it.

The Gemara first mentions a case where a man gave a Get to his wife, stating that it should take effect only if he does not return within thirty days. At the end of thirty days, he tried to return but was stranded on the other side of the river because the river ferry did not arrive. He yelled from across the river that he was returning. Shmuel rules that the Get takes effect because the husband indeed did not return within thirty days and thus the condition was fulfilled. Even though his lack of return, and the fulfillment of the condition, happened involuntarily, against his will, there is a principle that "Ein Ones b'Gitin" (at least in a case where it is common for a person to be detained in such a manner; see Rashi).

The Gemara relates another incident involving a man and wife who became engaged in a quarrel. The man gave a Get to his wife, stating that it take effect only on condition that he does not appease her within thirty days. He tried to make peace with her, but she was unwilling to be appeased. The Gemara says that if we rule "Ein Ones b'Gitin," then the Get takes effect because the condition (of not appeasing his wife) was fulfilled, albeit involuntarily. Although it was not his fault that he was unable to fulfill the condition, the Get nevertheless takes effect because "Ein Ones b'Gitin."

When RASHI discusses the second case, Rashi writes that the husband gave the Get on the condition that if he does not appease his wife within thirty days, it should take effect *retroactively*, from the time that he gave it to her. How does Rashi know that the husband stipulated that the Get should take effect *retroactively* if the condition is fulfilled? Perhaps the husband meant only that it should take effect after the thirty days have passed! Furthermore, even if Rashi has some source that proves that the husband intended that the Get take effect retroactively, then why does Rashi not explain the same way in the first case of the Gemara? In the case of a husband who gives a Get to his wife, stating that it should take effect only if he does not return within thirty days, Rashi should have explained there, too, that the Get would take effect retroactively if the husband does not return within thirty days! (MAHARAM SHIF)

ANSWER: The Gemara later (34a) asks an obvious question on the case of the person who could not cross the river to return to his wife within thirty days. The Gemara asks why does the Get take effect against his will because of "Ein Ones b'Gitin?" Why do we not allow the husband to annul the Get by saying that "the Get is hereby annulled?" Since the husband clearly does not want the Get to take effect (since he is yelling that he has returned), and since the Get has not yet taken effect, it should be within the ability of the husband to still annul the Get so that it cannot take effect!

The Gemara there answers that if the husband would say explicitly that he annuls the Get, then indeed it would be annulled. In this case, the husband was trying to make the Get ineffective by claiming that he did not fulfill the condition (of not returning within thirty days). He was mistaken in that regard, and he has no claim to invalidate the Get for that reason.

However, the same question might be asked in the Second case that the Gemara cites. In the case where the husband was not able to appease his wife, why does the Gemara rule that the Get takes effect? The Beis Din should have simply told the husband to go and annul the Get as soon as he sees that he is not able to appease his wife! In that case, we do not see that the husband is trying to claim that the Get should not be valid only because he did not fulfill the condition!

Rashi therefore explains that this Get, in the second case, was written to take effect retroactively. Therefore, the husband does not have the ability to annul it, since, when it takes effect, it takes effect from the time that he gave it (long before his attempt to annul it)!

30b

QUESTION: The Beraisa records a Machlokes regarding a person who is collecting the Ma'aser Ani that he separated from his produce as the payment for a loan that he made to a poor person in front of Beis Din. The Tana Kama says that he must separate Ma'aser from his produce "b'Chezkas Aniyei Yisrael (Jewish poor people)" (and then he may take it for himself). Rav Achi argues and says that he must separate it "b'Chezkas Aniyei Olam (the poor people of the world)." The Gemara says that the practical difference between the two opinions is whether one may separate the Ma'aser for Aniyei Kusim, or whether he must separate it only for Jewish Aniyim.

RASHI explains that according to the Tana Kama, if there are no poor Jews in the city but only poor Kusim, one may not separate the Ma'aser Ani for the Kusim, since they are not considered Jews and they do not deserve Ma'aser Ani. Rather, he separates for the Jewish poor wherever they might be.

TOSFOS (DH Ika Beinaihu) disagrees with Rashi. He asks what practical difference is the Gemara expressing according to Rashi? According to Rashi, even if there are only Kusim in the city, the Ma'aser Ani will be fit for poor Jews elsewhere in the world, and thus even the Tana Kama agrees that the owner could separate and collect his loan from Ma'aser Ani in a place where there are only poor Kusim and no poor Jews.

On a more basic level we could express Tosfos' question as follows. According to Rashi, why does the person need to separate Ma'aser Ani for the sake of ("b'Chezkas") *any* Aniyim altogether? The Beraisa cannot mean that *every* time a person separates Ma'aser Ani, he must separate it "b'Chezkas Aniyei Yisrael" according to the Tana Kama, because then the Beraisa would not have taught this requirement with regard to the specific case of a loan that is being repaid; it should have taught this requirement with regard to all cases of separating Ma'aser Ani! Accordingly, even when a person is collecting a loan from Ma'aser Ani, he should simply separate Ma'aser Ani and it will automatically become the property of Aniyim, and then he can collect it as payment for his loan because of the Takanah of Beis Din (see Rashi DH 30a DH Eino Tzarich).

ANSWER: The Takanah of Beis Din, as Rashi explains, makes it as if all of the Aniyim in the world are responsible for the loan of each Ani, since it is in their best interest that people be interested in loaning them money with the knowledge that they can collect the loan from Ma'aser Ani. Therefore, the lender has the right to collect his loan from the collective money of the Aniyim, even though he did not lend money to them collectively.

However, there is another factor involved when one collects Ma'aser Ani for a loan before actually giving the Ma'aser Ani to an Ani, as Rashi (30a DH v'Af Al Gav) explains. Besides the monetary issue, there is a Halachic issue: the Torah requires that a person do an act of "Nesinah" and *give* Terumah to a Kohen and Ma'aser Ani to an Ani. If he keeps the Ma'aser Ani for himself as the repayment of his loan, he has not fulfilled the act of giving it to an Ani (even if he is entitled to keep it for himself).

In the case of a landowner who lent money to an Ani outside of Beis Din, when the owner is Mezakeh to the Ani the Ma'aser Ani by way of a third party ("Mezakeh Al Yidei Acher"), "Makarei Kehunah," or through "Asah she'Einah Zocheh k'Zocheh," then he not only gains monetary rights to collect his debt from Ma'aser Ani, he also fulfills the Mitzvah of Nesinah, since the Ani acquired the rights to the Ma'aser Ani before the owner claimed it as payment for his loan. However, in a case where the owner collects for himself the Ma'aser Ani for a loan that was made in front of Beis Din, the Gemara does not specify that the owner must be Mezakeh the rights to receive the Ma'aser Ani to any particular person before he retains it as payment for the loan. How, then, will he fulfill the Mitzvah of Nesinah?

For this reason, Rashi explains that when the Beraisa states that he must separate the Ma'aser Ani "b'Chezkas Aniyim" (or separate Terumah "b'Chezkas Shevet Levi"), it means that he must indeed be Mezakeh the Ma'aser Ani to Aniyim before he collects it for his loan, even though the loan was made in front of Beis Din. When Rashi writes that the owner separates the Ma'aser for the needs of the Aniyim of the city, he means that the owner must be Mezakeh to them "Al Yidei Acher," or they must be "Makarei Kehunah," or that he must chose them to be the ones who are "she'Eino Zocheh k'Zocheh." Support for this can be found in Rashi earlier (30a, DH Oso ha'Shevet), where he explains that when a person lends money to a Kohen or Levi in front of Beis Din, and the borrower dies, the lender separates Terumah or Ma'aser for the closest Kohen or Levi relative of the borrower. He does not simply collect from the Terumah or Ma'aser without first specifying to whom the Terumah or Ma'aser belongs.

This also answers the question of Tosfos, that according to Rashi, the practical difference between the Tana Kama and Rebbi Achi occurs where a person separates Ma'aser Ani for Aniyim who are Kusim. According to the Tana Kama, he has not collected properly from the Ma'aser Ani. Tosfos, however, maintains that when one loans to an Ani in front of Beis Din, he is not required to be Mezakeh the Ma'aser to the Ani before collecting his loan from it; the Rabanan exempted him even from the Mitzvah of Nesinah. (PNEI YEHOSHUA)

We may ask, though, that according to this explanation, why does Rashi not explain explicitly that the practical difference between the Tana Kama and Rav Achi is that according to the Tana Kama, if one separates Ma'aser for Aniyei Kusim, he may *not* collect the loan from the Ma'aser Ani? Why does Rashi write that the practical difference is that when there are no Kusim in the city, he must separate Ma'aser Ani for outsiders, instead of for local Aniyim?

The answer might be that even when a person separates Ma'aser Ani for a Kusi, the Kusi does not become the owner of the Ma'aser Ani, since a Kusi has no rights to receive (and own) Ma'aser Ani (according to the Tana Kama who holds "Gerei Arayos Hem"). It cannot become the property of the Kusi through Makarim, or through "Asu she'Eino Zocheh k'Zocheh," or even through "Mezakeh Al Yedei Acher" (since the Torah prohibits giving Ma'aser Ani to Kusi who is an Ani). The Ma'aser Ani still belongs to the Aniyim of Yisrael, and therefore the owner *may* collect from it, in accordance with the Takanas Chachamim. The only thing he has done wrong is that he has forfeited the Mitzvah of Nesinah, since he did not give the Ma'aser Ani to an Ani before he collected from it. This is why Rashi explains that the practical difference between the Tana Kama and Rebbi Achi only involves how to separate the Ma'aser Ani *l'Chatchilah* before collecting from it.

QUESTION: The Beraisa teaches that if a Yisrael tells a Levi that he is holding Ma'aser on behalf of the Levi and he wishes to purchase it from the Levi, and he pays the Levi for it, the Yisrael may use the Ma'aser for his own personal use; he does not have to be concerned that the Levi made it into Terumas Ma'aser (after the sale) and that it is Kadosh and may only be eaten by Kohanim.

However, if the Yisrael tells the Levi how much Ma'aser he is holding for him, and then he purchases it, he may not eat the Ma'aser. He must take into account the possibility that the Levi made it Terumas Ma'aser. RASHI explains that the concern is that the Levi made it into Terumas Ma'aser after the sale.

How can the Levi make the produce into Terumas Ma'aser after he sells it? After he sells it, he no longer has any rights over it! Rashi explains that the sale was not binding, since the Yisrael cannot acquire it from the Levi before the Levi himself acquires it through Meshichah or some other formal act of Kinyan. However, this seems self-contradictory. If the Levi did not yet formally acquire the Ma'aser, then just as he cannot sell it to the Yisrael, he also cannot make it into Terumas Ma'aser!

ANSWER: The RAMBAN explains, in the name of the Yerushalmi, that when the Yisrael tells the Levi that he is holding Ma'aser on behalf of the Levi, it is as if he gave the Levi permission to use that Ma'aser for separating Terumas Ma'aser. The RASHBA adds that since when one promises to give his friend a small gift (Matanah Mu'etes) he may not retract it (Bava Metzia 49a), from the moment that a Yisrael says that he is going to give the Tovas Hana'ah to the Levi (i.e. he is going to use his right of Tovas Hana'ah to give the Ma'aser to this specific Levi), from that moment on it is as if he gave permission to the Levi to separate Terumas Ma'aser, since we can assume that the Levi will eventually receive this Ma'aser (as Rashi there writes in DH Mishum Hachi).

The Acharonim ask, though, that aside from the issue of ownership of Ma'aser (i.e. the Ma'aser must be given to Levi'im because it is the property of Shevet Levi), there is also a Mitzvah d'Oraisa for a Yisrael to *give* (Nesinah) the Ma'aser to a specific Levi (as we have seen in the previous Insight). When the Yisrael simply promises to give the Levi this Ma'aser, but he has not yet given it, how has he fulfilled the Mitzvah of Nesinah? If the Levi separates Terumas Ma'aser, he is simply taking advantage of the owner's permission to separate Terumah Ma'aser from what still belongs to the owner! The Levi himself has not yet received the Ma'aser!

1. The BI'UR on the MAHARAM SHIF suggests that, indeed, the Yisrael will not fulfill the Mitzvah of Nesinah in this situation.

2. The HE'OROS B'MASECHES GITIN suggests that as long as the Levi has rights to use the Ma'aser, it suffices to be considered a Nesinah. The Levi does not have to actually own the Ma'aser. (Following this logic, when a person retains Ma'aser as payment for a loan made to a Levi, he should also have fulfilled the Mitzvah of Nesinah, since the Levi benefits from it by paying off his debt with that Ma'aser. However, this is not consistent with what we explained in the previous Insight regarding a person who lends money to an Ani in front of Beis Din.)

3. Perhaps the question is not a question in the first place. The Yisrael, who now has Terumas Ma'aser in his possession, can *still* give the Ma'aser to the Levi even after the Levi has made it into Terumas Ma'aser (and allow the Levi to give it then to the Kohen of his choice) and thereby fulfill the Mitzvah of Nesinah. (M. Kornfeld -- he might even fulfill the Mitzvah of Nesinah by giving it *directly* to a Kohen at the Levi's request, through the mechanics of "Arev," see Kidushin 7a.)