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Gitin, 65

1) THE ACQUISTION OF A MINOR ON BEHALF OF OTHERS

QUESTION: The Gemara discusses whether a minor has the power to acquire items on behalf of someone else. The Gemara attempts to prove that they *are* able to make a Kinyan for others from a Mishnah which states that one can give money to his children in order for them to use that money to redeem his Ma'aser Sheni on his behalf.

What is the Gemara's proof? In the case of redeeming Ma'aser Sheni, the child acquires the money for *himself* when it is given to him. How, then, can the Gemara prove that a minor can acquire something for someone else?

ANSWERS:

(a) The RAMBAN offers two answers. First, he explains that the proof is not from the fact that the minor acquired the money but from that which he has the ability to redeem someone else's produce. Redeeming another person's produce is equivalent to acquiring something for another person since, by redeeming the produce, one is "buying," or making an acquisition on, the produce from their state of being owned by Hekdesh on behalf of the owners.

(b) Second, the RAMBAN answers that the Machlokes regarding whether a minor can acquire something for someone else is based on the question whether a minor who is given an object acquires it for himself mid'Oraisa or mid'Rabanan. Rav Yehudah holds that he acquires it mid'Oraisa, and, therefore, just like he can acquire it for himself, so, too, he can acquire it for others. Rav Chisda holds that the minor acquires an object only mid'Rabanan, and thus he holds that the Rabanan enacted that a minor can acquire things only for his needs but not on behalf of others. The Gemara proves (according to Rav Yehudah) that a Katan can acquire for others from the fact that he was able to acquire the money for himself mid'Oraisa (which we see from the fact that he is able to redeem the Ma'aser Sheni, without having to pay the additional fee, with that money), and since he acquires it mid'Oraisa, he must be able to acquire an object for others as well. (This answer is also cited by the RITVA and CHIDUSHEI HA'RAN.)

We may suggest that the first answer of the Ramban was not satisfied with the second answer because there are Rishonim who hold that even if a person acquires something through a Kinyan which is only mid'Rabanan, the item belongs to him from a Halachic perspective even with regard to matters that require his ownership mid'Oraisa (this is because the Torah empowered the Rabanan with the ability to determine the ownership of the item). Therefore, there is no proof that the minor acquires things mid'Oraisa from the fact that the money is Halachically his after it is given to him.

The second answer might not have accepted the first answer because the act of redeeming Ma'aser Sheni is not an act of transferring ownership back to the possession of the first owner, but rather it is just an act of removing Kedushah. Hence, once the Kedushah is removed, the fruits may be used by the original owner who *always* owned them. (See CHIDUSHEI HA'GRIZ, "stencil" to Zevachim 6.)

[I]

QUESTION: The Gemara attempts to prove that a minor has the power to acquire items on behalf of someone else from a Mishnah which states that one can give money to his children in order for them to use that money to redeem his Ma'aser Sheni on his behalf. The Gemara refutes the proof and says that the Mishnah is referring to a case of produce grown in a pot, where the requirement to separate Ma'aser Sheni is only mid'Rabanan. Therefore the minor may redeem it. There is no proof that he can do so for something that must be redeemed mid'Oraisa.

Why does the Gemara answer by saying that the Mishnah is discussing a relatively rare case of produce grown in a pot? Why does the Gemara not answer that the Mishnah is discussing a case of Ma'aser Sheni of *vegetables* (and not fruits), from which one is required to separate Ma'aser Sheni only mid'Rabanan? (RITVA)

ANSWER: The RITVA answers that the case of separating Ma'aser Sheni from fruits grown in a pot has an "Ikar Min ha'Torah," a basis in the Torah, since there is other fruit (i.e. fruit that is grown from the ground) that requires Ma'aser Sheni to be separated mid'Oraisa. Therefore, separating Ma'aser Sheni from fruit in a pot should have all of the requirements of Ma'aser Sheni *d'Oraisa*, as mentioned previously in the Gemara.

[II]

QUESTION: The Gemara answered previously that the Mishnah is discussing Ma'aser nowadays (b'Zman ha'Zeh), which is only mid'Rabanan. This implies that when the conditions for the Torah obligation of a Mitzvah are not present (such as the lack of the Beis ha'Mikdash) and in lieu of the Chiyuv mid'Oraisa there is a Chiyuv mid'Rabanan, the Mitzvah d'Rabanan is considered something that does *not* have an "Ikar Min ha'Torah."

The SHA'AR HA'MELECH asks that this seems to contradict the Gemara in Pesachim (116b) that says that the requirement to eat Maror nowadays (when there is no Korban Pesach because the Beis ha'Mikdash has not yet been rebuilt) *is* considered something that has an "Ikar Min ha'Torah," even though it is only a Chiyuv d'Rabanan!

ANSWER: It seems that there is a basic difference between the two Mitzvos d'Rabanan of Ma'aser Sheni nowadays and Maror nowadays. The Mitzvah of Ma'aser Sheni is mid'Rabanan because there is a requirement for the majority of the Jews in the world to be living in Eretz Yisrael in order for the Torah requirement to be in effect. The requirement nowadays, when most Jews do not live in Eretz Yisrael, is thus a Mitzvah d'Rabanan that is not rooted in a d'Oraisa Mitzvah. In contrast, the reason why the obligation to eat Maror is mid'Rabanan today is because we do not eat it with the Korban Pesach. Even nowadays, though, we could potentially sacrifice a Korban Pesach (we do not do so because of lack of clarity on various issues concerning the sacrifice), in which case we would then be obligated *mid'Oraisa* to eat Maror. Therefore, even when we do not eat it with the Korban Pesach, it is still considered something that has an "Ikar Min ha'Torah."

65b

OPINIONS: The Mishnah states that in order for a Get to be valid, the husband must command that the Get be written and given to his wife. If he says only to write the Get (but not to give it), then the Get cannot be given to her. The Mishnah brings exceptions to this rule, such as cases where the husband is distress, where we may assume that his intention was that the Get should be written *and* given, even though he said only to write the Get. One of these exceptions is the case of "Yotzei b'Kolar," one who was being brought out in chains. To whom does "Yotzei b'Kolar" refer?

(a) RASHI explains that "Yotzei b'Kolar" refers to someone who is being brought out to receive the death penalty. Presumably, one who is locked up in chains because of a monetary infraction would *not* be able to give a Get by merely commanded that it be written; rather, he would have to command that it be written and given.

(b) The RAMBAM (Hilchos Gerushin 2:12) writes that this Halachah applies to the person even if he is being punished for violating monetary laws. The MAGID MISHNAH quotes the Yerushalmi as the source for the Rambam. The Yerushalmi says that even if the man is chained up (in a "Kolar") because of monetary issues, the Halachah applies since whenever a person is chained up, his life is in danger.

The HAGAHOS MAIMONIYOS understands that Rashi disagrees with the Rambam. The CHASAM SOFER, however, argues that Rashi agrees with the Rambam. Rashi explains that the Mishnah applies to one who is receiving the death penalty only because he is explaining the Mishnah in accordance with the practice of earlier times, when one who was embarking on a long journey was *not* included in the exceptions of the Mishnah. According to the later enactment that even one embarking on a long journey is included in the list of exceptions in the Mishnah, so, too, one who is awaiting punishment for monetary misconduct is also included in the Mishnah.