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GITIN 73-75 - Anonymously dedicated by an ardent supporter who wants the
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1) GIVING TO A PERSON AGAINST HIS WILL
QUESTION: The Gemara cites a Mishnah (Erchin 31b) that tells us of Hillel's
enactment with regard to redeeming a house in a walled city, which the
original owner has the right to do during the first year after the sale.
Hillel enacted that when the buyer hides himself, the original owner of the
house may deposit the money in a certain office, and it is considered as
though he gave the money back to the buyer. Rava proves from Hillel's
enactment that when a person gives something against the will of the
recipient, it is not considered a valid "Nesinah" (act of giving). He proves
this from the fact that Hillel found it necessary to make a special
enactment that the original owner may put the money for the house in an
office that was designated for that purpose, rather than give the money
directly to the buyer against the buyer's will.
Rav Papa refutes Rava's proof by pointing out that Hillel's enactment was
only necessary for when the buyer is not present (he is hiding from the
original owner), as the Mishnah states. When the buyer is present, the
original owner can give him the money against his will.
What, then, was Rava's reasoning? Rav Papa's reasoning seems obvious!
Hillel's enactment was to provide an office which was to be considered the
property of the buyer, so that the seller could deliver money to the buyer
by putting it in that office, even though the buyer is not present. When the
buyer is present (or when any of his property is accessible), then it would
not be necessary to put the money in an office, but rather it could be given
directly to the buyer against his will (or placed upon his property).
Hillel's enactment did not relate to the fact that giving against the
recipient's will is not considered "Nesinah," but that when the person is
not present, it is impossible to give him anything!
ANSWERS: The Rishonim discuss this question and offer various approaches.
(a) TOSFOS in Erchin (32a, DH mid'Iztrich) and the TOSFOS HA'ROSH here
explain that if giving something against the recipient's will is considered
a valid "Nesinah," then since the original owner may give the money to the
buyer against his will, he may not only give the money directly to the
buyer, but he may even give it to another person to be Zocheh it on behalf
of the buyer against the buyer's will. Hence, if "Nesinah" against the
recipient's will is a valid "Nesinah," Hillel would not have had to
designate an office into which to put the money. Since Hillel did designate
such an office, it must be that the buyer cannot be paid against his will,
even when he is present.
(b) The RASHBA asks a strong question on the approach of the Tosfos and
Tosfos ha'Rosh. We find that a Get may be given to a woman against her will
when she is present, but when she is not present, a Get cannot be given to a
third party to be Zocheh on behalf of the woman, because a Get is a Chov
(liability) to the woman (Gitin 11b).
The Rashba therefore concludes that Rava indeed cannot prove from Hillel's
enactment that giving against the recipient's will is considered an act of
"Nesinah." Rather, his proof is based on logical considerations, that it
seems logical to Rava that even when the recipient is present, giving
something to him against his will is not considered a "Nesinah," just like
when he is not present.
How, though, will Tosfos answer the Rashba's question? Why can the money be
given to the recipient through Zechiyah (via a third party) against his
will, while a Get cannot be given to a woman through Zechiyah against her
1. The DEVAR YAKOV suggests an answer based on the RAN (Gitin 37a). The Ran
asks how a lender can be Mezakeh land to a borrower in order for his Pruzbul
to be effective. Giving the land to the borrower should be considered a Chov
to the borrower, since it causes the debt to remain in force! The Ran
answers that perhaps when receiving something that is essentially a Zechus
(benefit) to the recipient, even if it results indirectly in a loss, it is
still considered a Zechus and the principle of "Zachin l'Adam she'Lo
The same logic may apply in our case. Since receiving money is essentially
beneficial for the buyer of the house, it is considered a Zechus, even
though it results in the loss of the house that he bought.
In contrast, receiving a Get is not essentially a Zechus for the woman.
2. Perhaps the Rashba and Tosfos are following their respective opinions
regarding what is considered a "Nesinah" of a Get, or of money for a house
against the recipient's well.
From Tosfos (end of DH Michlal), it seems that when a person gives a Get
stipulating that the wife must give him 200 Zuz, he means not only that the
wife should *hand over* to him the money, but that he should *acquire* the
money that she gives to him. The same might be true about a house in a
walled city. It is not sufficient for the original owner to hand over the
money to the buyer, but rather the buyer must *acquire* the money. Regarding
a Get, though, the opposite is true; it is necessary to hand over a Get to
the wife, even if she does not acquire it (for example, where the wife is a
Ketanah or a Shotah who cannot make acquisitions), and if she acquires the
Get without the husband giving it to her, it is not a valid Get. Therefore,
if a man tries to be Mezakeh a Get to his wife against her will, since the
Mezakeh, the third party, is not a Shali'ach, it is not considered as though
the Get was placed by the husband into her hands, and the Get is not valid.
In contrast, in the case of a house in a walled city, if the Mezakeh
acquires the money for the buyer, then the sale is revoked.
This explains why the Gemara does not learn from the verse, "v'Nasan
b'Yadah" (Devarim 24:1) which teaches that a man may divorce his wife
against his will, that giving something against the recipient's will is
considered a valid "Nesinah" (and falls into the category of "v'Nasan"). The
verse cannot prove that a person can *acquire* something against his will.
The Rashba, however, explains that even if giving against the recipient's
will is considered a "Nesinah," it *cannot* enable the recipient to acquire
the item. Rather, in the case of a house in a walled city, it is sufficient
to place money in the property of the buyer, whether or not he acquires it.
In the case of a Get, it is sufficient for the woman to place money in the
husband's hand against his will, if giving against a person's will is
considered a "Nesinah." Consequently, paying the buyer of the house may
indeed be compared to giving the Get to a woman. The Rashba in fact asks why
the Gemara does not learn from "v'Nasan b'Yadah" that a "Nesinah" against
one's will is considered a "Nesinah" (see also RASHASH; the Rashba answers
this question by differentiating between *giving* something and *giving
Since the Rashba compares Get Ishah to a house in a walled city, he may
indeed prove from Get that one cannot be Mezakeh money through a third party
to the buyer of a house in a walled city.