Yerushalmi Gittin 5:1 ירושלמי גיטין ה׳:א׳

MISHNAH: For tort victims one estimates with best quality land¹If a person is due damages and is not paid, he can ask the court for foreclosure. If the guilty party owns several pieces of land, the tort victim is indemnified, up to the value of his claim, from the land which carries the highest value per unit of surface area. A creditor whose mortgage does not specify a particular piece of land is indemnified from land which the court’s experts assess to be of average value among all of the debtor’s holdings., for a creditor with average quality, and for a woman’s ketubah with lowest quality. Rabban Simeon ben Gamliel²In all other Mishnah sources mentioned in M. S. Feldblum, Diḳduḳe Soferim - Gittin (New York 1966), the name is R. Meїr. says, also for a woman’s ketubah with average quality.

HALAKHAH: “For tort victims one estimates with best quality land,” etc. “By an inference de minore ad maius, for Temple property³A statement by R. Aqiba in Mekhilta dR. Ismael, Mišpaṭim 14, also quoted by the Babli, 48b..” Rebbi Abba bar Pappaios said before Rebbi Yose, where do we hold⁴What does the statement about Temple property mean?? If to qualify as damages, is that not what we stated “his neighbor’s ox⁵Ex. 21:35; Mishnah Baba Qama 4:3. The rules of damages do not apply to Temple property, not for damages inflicted by Temple animals nor damages done to them. Quoted in the Babli, 49a.” but not the ox of Temple property? If for bodily damages, is that not what Rebbi Ḥiyya stated: A private person can claim damages but not the Temple⁶The formulation is ambiguous; it also could mean that the Temple never pays damages.? But we must deal with one who said, I obligate myself to give 100 minas to the Temple, ⁷The following clause is missing in the quote of the passage by Tosaphot Giṭṭin 49a, s. v. שור, and in the Constantinople edition of the Yerushalmi. If one accepts the text as it stands, one has to explain that the person making the vow thought that he could pay his vow in cash, but before he could do this, he had to pay damages and now he is short of cash. If one does not read the clause, then there is a straightforward statement that debts to the Temple in all cases are privileged like debts for damages (a statement considered and rejected by the Babli, 49a). The interpretation of the Babli, that damages inflicted on Temple property always must be paid in full, is incompatible with the Yerushalmi. when his ox went and did damage. You should not say, [the Temple] is a creditor and should collect from average quality land. Therefore, it was necessary to say that “for tort victims one estimates with best quality land, by an inference de minore ad maius, for Temple property.”

Rebbi Ḥiyya stated: “Full and partial damages are collected from encumbered property.” One understands full damages⁸Ex. 21:36 requires the owner of an animal with a history of causing damages to pay all damages in full. If the animal’s owner cannot pay cash, the Mishnah decrees that the damages be liquidated by the best available land, even if mortgaged.. Are partial damages not collected from the animal’s body⁹Ex. 21:35 requires the damages inflicted by an animal which never before had caused damage to be paid from proceeds of a sale of the animal itself.? Rebbi Yose said, explain it when it was a docile ox which did damage and then his owner went and sold it. Its body already was encumbered to the injured party¹⁰The “encumbered property” mentioned in the baraita is not mortgaged land but the animal causing the damage, which can be repossessed by the owner of the damaged property from a buyer of the agressive animal.. The rabbis of Caesarea said, explain it if he converted it¹¹The owner of the injured animal did not insist on immediate payment but agreed that the debt be liquidated as if it were a loan. into a loan. Then it should be foreclosed only by average quality land! Since the debt originated in a damage claim, he may collect from best quality.

“His field¹²Ex. 22:4: “If a person destroys a field or a vineyard through animals by sending his livestock to graze on another’s field, the best of his field or the best of his vineyard he shall give in payment.” This is the basis of the Mishnah requiring that damages be paid with best quality real estate.”, except if it was mortgaged¹³“His field” excludes third-party interests.. “His vineyard”, except Temple property. Where do we hold¹⁴What relation can Temple property have with damages due from a private person?? If somebody caused damage and then dedicated to the Temple, that is what we have stated¹⁵Mishnah ‘Arakhin 6:2: “If somebody dedicated his property to the Temple while he owed a ketubah to his wife or a debt to a creditor, neither the woman nor the creditor can collect from the Temple; but the redeemer redeems on condition to pay the ketubah to the woman or the debt to the creditor. If he dedicated 90 minas but his debt was 100 minas, [the redeemer] adds another denar and redeems these properties on condition to pay the debt to the creditor.” In order to combine two conflicting principles, viz., that vows cannot be used to escape obligations towards third parties, and that Temple obligations override all others, it is decreed that the Temple has to put the dedicated properties up for sale but collects only for the amount by which the value of the properties exceeds the obligation, with the third party buyer accepting the obligation to pay off the liens on the property. (It has to be a third party buyer since the person making the dedication would have to add another 25% to the redemption amount, Lev. 27:19.) Claims for damages have to be handled in the same way.: “If he dedicated 90 minas but his debt was 100 minas.” If somebody dedicated to the Temple and then caused damage, that is what we have stated: “ ‘His neighbor’s ox⁵Ex. 21:35; Mishnah Baba Qama 4:3. The rules of damages do not apply to Temple property, not for damages inflicted by Temple animals nor damages done to them. Quoted in the Babli, 49a.’ but not the ox of Temple property.” Rebbi Yudan said, explain it if an ox of Temple property grazed on a private field. Rebbi Mana told him, we require Temple real estate and you say “on a private field”? But we must hold about one who said: I am obligating myself for 100 minas to the Temple; then went and caused damage. You should not say that between damages and a loan given before witnesses¹⁶Not in documented form; the witnesses do not sign anything. Such a loan is not a mortgage and is not privileged. damages are privileged, and here damages are privileged against the Temple; therefore it was necessary to say “his vineyard”, except Temple property¹⁷The statement about Temple property is not to exclude Temple property from damage claims but to privilege Temple property relative to all civil claims..

“His field,” except movables. “His vineyard,” except potential property which is not similar in status to that in possession. “ ‘His field,’ except movables.” About those who did not claim movables from the start. Is this different from what we stated: There is not only real estate; from where if he wanted to pay money? The verse says: “Money he shall return to its owner¹⁸Ex. 21:33, speaking of somebody digging a hole in the public domain which then causes injury to another person’s animal. This damage has to be paid in money (or, in the Babli’s interpretation, in money’s worth). In the Babli, Baba Qama 7a, 14b, money is legal tender to liquidate all debts. The Yerushalmi gives the injured party the right to claim real estate in those cases in which the verse prescribed payment in real estate..” What did you mean to say that real estate is primary? Or¹⁹אי is Babylonian spelling for Galilean אוֹ “or”, אִין “if”, אֵי “not”. The first alternative applies here. should we say that money is primary? Then it should be irrevocably given to [the claimant] from the start! Do we not see rabbis who irrevocably give him real estate! “ ‘His vineyard,’ except potential property which is not similar in status to that in possession.” Rebbi Eleazar in the name of Rebbi Nisa: If his father dug a cistern²⁰In the public domain, cf. Note 18. which caused injury during his father’s lifetime. Property fell to him after his father’s death²¹The injury claim was not paid during the father’s lifetime. By accepting the inheritance, the son became liable to pay the injury claim. If later he received inheritance from another source, e. g., grandparents, the later inheritance is not liable for claims stemming from a prior inheritance even if the son was the only known heir and therefore the grandparent’s property was potentially his.. I might say that this property should be encumbered for that damage; therefore, it was necessary to say “his vineyard” to except potential property which is not similar in status to that in possession.

“The best of his field and the best of his vineyard he shall pay,¹²Ex. 22:4: “If a person destroys a field or a vineyard through animals by sending his livestock to graze on another’s field, the best of his field or the best of his vineyard he shall give in payment.” This is the basis of the Mishnah requiring that damages be paid with best quality real estate.” i. e., the party responsible for the damage, the words of Rebbi Ismael²²In the Babli, 48a, the attribution of names is switched; the same is implied by Mekhilta dR. Ismael, ed. Horovitz-Rabin p. 296; the interpretation of R. Ismael is quoted anonymously in Mekhilta dR. Simeon bar Ioḥai, ed. Epstein-Melamed p. 196, together with the interpretation given later to the opinion of R. Aqiba.. Rebbi Aqiba says, “the best of his field and the best of his vineyard”, of the person suffering the damage. It is difficult for Rebbi Aqiba, he suffered damage, and you say so²³Why should the person responsible only pay corresponding to the best remaining parts of a ruined field?? But the court see what the field was worth before it was damaged and estimates accordingly. As it was stated, it is possible if the grazing was on best quality land, one estimates from best quality, from lowest quality one estimates from lowest quality. How is this? The best of the lowest quality is quite good. If you say so you provide a windfall for the person suffering the damage²⁴According to R. Aqiba, the holdings of the person suffering the damage are graded into best, average, and lowest quality. In each category, the value of the damage is established and paid by the person responsible with his best real estate in the given category, up to the value established in court.. One looks at the field as if it was full of first quality [produce] and estimates for him from the best quality land; least quality one estimates from least quality land. It turns out that he pays with best quality for best quality and from least quality for least quality. From where has Rebbi Aqiba that “for tort victims one estimates with best quality land”²⁵Since he reads the verse as referring to the method of estimating the damage, not payment, the Mishnah has no biblical foundation.? It is not from the Torah, it is a decree. ²⁶This is a baraita, quoted in the Babli, 49b, in the name of R. Simeon (in some sources, R. Simeon ben Eleazar.) A similar, anonymous, text is in Tosephta Ketubot 12:2.“Why did they say, ‘for tort victims one estimates with best quality land’? Because of the robbers²⁷Since a robber of land is also inflicting damage on the person robbed.. That a man should say, why should I have robbed [land] in my hand, or land subject to a suit for damages on my hand? Tomorrow, the court will see my good field, take it from me, and support it by the verse, ‘the best of his field and the best of his vineyard he shall pay.’ ” So far his real estate. His pledge²⁸If the person responsible cannot pay directly, any pledge taken should be of his most valuable possessions. was inferred from his real estate. Since his real estate [is taken] from the best quality, also his pledge [is taken] from the best.

²⁹A continuation of the Tosephta (Note 26). In the Babli, R. Jehudah agrees that loans should be foreclosed only by least quality land but R. Meїr states that to support credit one has to allow loans to be foreclosed from average quality.” ‘For creditors, average quality,’ because of tricksters. That a man should not see a desirable field in his neighbor’s hand, lend him money, and contrives to take it from him. Then one should estimate only from the least quality! Rebbi Jehudah said, that is correct; but not to lock the door before people needing to borrow. For tomorrow he may need to borrow and does not find [a lender.]”

Rebbi Simai preached: “And the man,³⁰Deut. 24:11, about a creditor taking a pledge, quoted in full later in the paragraph.” that is the agent of the court³¹Sifry Deut. 276 seems to read וְהָאִישׁ as “ ‘and any man’, to include the agent of the court” since the verse obviously refers to the creditor.. For if the creditor enters, he removes the best. If the borrower enters, he removes the worst. How is this? The agent of the court enters and removes from average quality. Rebbi Ismael says, it is a word from the Torah that the creditor³²The context would require to read “debtor”; this is an Amoraic statement in the Babli, 50a. should enter, for it is written: “The man whose creditor you are should bring the pledge out for you.” That is, his pledge. His real estate was inferred from his pledge. Since his pledge [is taken] from average quality, also his real estate [is taken] from average quality.

³³Ševi‘it 10:2, explained there in Notes 75–77, variant readings noted ש. The Mishnah notes that court judgments are not subject to the rules of the Sabbatical. This is obvious: A loan that is disputed is not remitted. A loan that was disputed but is now a [confirmed]³⁴By judgment of the court. loan, is remitted. Rebbi Jeremiah asked: Is this also true for judgments? A loan that was disputed can be collected. A disputed loan turned into a [confirmed] loan is collected from property of average quality.

If there is only best quality, one collects from the best quality, [only] average quality one collects from average quality, [only] worst quality one collects from worst quality. Best and average, torts are assessed from best quality, creditors and a woman’s ketubah from average. Average and worst, torts and creditors are assessed from average, a woman’s ketubah from worst. If his best quality was like everybody’s best quality, it is best quality. If his average quality was like everybody’s average quality, it is average quality. If his worst quality was like everybody’s worst quality, it is worst quality³⁵The statement up to here is a baraita, quoted as such in the Babli, Baba Qama 7b. One can foreclose only existing property; the only question which arises is how to classify claims if there are properties of two different qualities but claims for all three. The Babli formulates this as: Do the notions of best, average, and worst refer to the available land or are these general notions used by realtors to classify properties?. If his best quality was like everybody’s average? Rebbi Ze‘ira and Rebbi Ila asked: Let us hear from the following: Average and worst, torts and creditors are assessed from average, a woman’s ketubah from worst. But just as you need in the case that you have best and average quality, torts push creditors to the average, so in this case, of average and worst quality, should not torts push creditors to the worst quality³⁶If his best quality is classified by realtors as average, nevertheless it is his best, reserved for satisfaction of tort judgmens, and creditors should be satisfied with second best quality, even if that is worst in universal classification. This seems to prove that the classifications mentioned in Mishnah and baraita are universal, not referring to the debtor.? Rebbi Yose bar Abun in the name of Rav Ḥisda: Explain it that he had best quality which he sold, and the creditors were already pushed to average quality³⁷His explanation is also given by Rav Ḥisda in the Babli, Baba Qama 8a. As Rashi explains, the loan was taken when there was best quality land; then automatically the average quality land was pledged to the creditor. When later the best quality land was sold, the pledge was not removed. When then a claim for torts was entered, it only could be additional to the existing lien. (The Babli lists three other possible explanations, all agreeing that in a normal case in which only two qualities of real estate are available, the better one is declared best, reserved for the satisfaction of tort claims.).

“For a woman’s ketubah with lowest quality.” ⁴⁰This paragraph is a rearrangement of a paragraph in Ketubot 12:5 (Notes 54–59) and one in Peah 3:9 (Notes 182–189). Rebbi Jeremiah said, they taught only for a ketubah of a mina or 200 [zuz], but a ketubah of a thousand denar she collects from average quality⁴¹The obligatory minimum she collects only from the lowest quality land; any excess she can take from average quality. The Yerushalmi does not give a reason why a woman can collect only from lowest quality real estate; the Babli (49b–50a) after a lengthy discussion decides that this is a necessary institution to induce men to get married.. Rebbi Yose said, even a ketubah of a thousand denar she collects only from lowest quality. It turns out that this disagreement parallels the following disagreement: “While she lives in her father’s house, she always can collect her ketubah; if she lives in her husband’s house, she can collect her ketubah for 25 years.”⁴²Mishnah Ketubot 12:5. Rebbi Simon in the name of Rebbi Joshua ben Levi: One stated this only for the ketubah of a mina or 200 [zuz]. But a ketubah of 1’000 denar she collects forever. Rebbi Abbahu quoted in the name of Rebbi Joḥanan: Even a ketubah of 1’000 denar she can collect only up to 25 years. It turns out that Rebbi Yose follows Rebbi Joḥanan and Rebbi Jeremiah Rebbi Joshua ben Levi. As we have stated there⁴³Mishnah Peah 3:9.: “If somebody signs over his property to his sons and signs over some real estate to his wife, she loses her claim to ketubah.” Rav said, if he sells through her⁴⁴In Peah, “if he lets them acquire through her agency.” One has to assume that this is meant here also.. Samuel says, if he distributes in her presence. Rebbi Yose ben Ḥanina said, they stated here a relaxation of the laws of ketubah. Rebbi Abba said, the reason of Rebbi Yose ben Ḥanina is that it applies not only to a ketubah of a mina or two hundred, but even regarding a ketubah of one thousand denar they proclaimed a relaxation of the laws of ketubah.