[bm38b: We begin on the seventh line of the page, citing our mishna.]
Rabban Shimon ben Gamliel says: [When the deposited produce spoils] he the custodian) should sell it in court, because it is as if he is returning a lost item to the owners.
R. Abba b. Yaakov said in the name of R. Yohanan: The halakha is according to Rabban Shimon ben Gamliel. And Rava said in the name of Rav Nachman: The halakha is according to the Rabbis.
[The gemara now asks why it was necessary to state R. Yohanan's position in this case, given that he already had made a general statement.] But didn't R. Yohanan already say this once? For Rabbah b. Bar Hana said in the name of R. Yohanan: In every case that (a ruling of) Rabban Shimon ben Gamliel is taught in our mishna, the halakha is according to him, except in the case of a guarantor, Sidon, and last proof.
["Our mishna" refers to the collection of mishnayot edited by R. Yehuda haNasi [the Prince}. This collection is the collection that we use today, but there were other collections. In the case of a guarantor (Baba Batra 173b), Rabban Shimon ben Gamliel ruled that a creditor cannot collect from a guarantor if the debtor has assets. In the case of Sidon (Gittin 74a), a man gave his wife a get on the condition that she give him a particular item; the item was lost, and Rabban Shimon ben Gamliel ruled that the get would be valid if she gave him the value of the lost item. The "last proof" issue is based on the halkakah (Sanhedrin 31a ff.) in which it is stated that a party to a dispute can bring new evidence for up to 30 days after the court's judgment; Rabban Shimon ben Gamliel does not accept that 30-day limit. In any event, since we already have R. Yohanan's general support for Rabban Shimon ben Gamliel, why was it necessary to repeat it in the case of our mishna?]
[The gemara answers;] It is an amoraic dispute over R. Yohanan. [Rabbah b. bar Hana said that R. Yohanan had made the general ruling in favor of Rabban Shimon ben Gamliel. R. Abba disagreed, and said that there was no general ruling, which is why he made R. Yohanan's position explicit in the case of our mishna.]
From Rabban Shimon ben Gamliel's position [that the custodian should sell the deposited produce], we can infer that we place a relative in charge of the property of a captive. [Rashi: We choose the relative who would inherit the property should the captive die. The relative cares for the property as a sharecropper and reaps the profits.]
From the Rabbis' ruling [that the custodian cannot sell the spoiled produce], we can infer that we do not place a relative in charge of a captive's property.
[The gemara asks:] And from where [do you make these inferences]? Perhaps Rabban Shimon ben Gamliel's ruling here [in our mishna] applies only because the principal itself [the produce] will be destroyed. But there [in the case of the captive], we would not put a relative in charge [since the fields themselves are not threatened]. Furthermore, the Rabbis here would not have said that the produce should be sold, except for the reason of Rav Kahana [that a person prefers his own produce], or of Rav Nachman bar Yitzchak [that the owner may have made the deposited produce t'rumah or ma'aser]. But here [in the case of the captive], neither rationale applies, and we _should_ put a relative in charge.
[The gemara rejects the challenge:] Does this mean that there are two rationales [one for the spolied produce and one for the captive's property]? But Rav Yehuda said in the name of Shmuel that the halakha is according to Rabban Shimon ben Gamliel [reselling spoiled produce]. And Shmuel said that we put a relative in charge of a captive's property. Aren't each of these rulings for the same reason?
No! There are two different rationales. And it stands to reason, for Rava said in the name of Rav Nachman that the halakha is like the Rabbis [in our mishna's case of the spoiled produce], and Rav Nachman said that we do put a relative in charge of a captive's property. [The gemara's point is that the rationales are different, and it is possible to rule that we do not sell the produce, but that we do protect the captive's property.]
From here we can indeed conclude that the two rationales are different.
It was stated: A captive -- Rav said we do not place a relative in charge of his property; Shmuel said that we _do_ place a relative in charge of his property.
Everyone agrees that we place (a relative in charge) when they hear that he (the captive) died. [Tosafot: If there are two valid witnesses to the captive's death, the relative inherits the land. The gemara is discussing a case in which there is an unsubstantiated rumor of the captive's death.]
On what do they (Rav and Shmuel) disagree? When they did not hear that he died. Rav said that we do not place (a relative in charge), lest he ruin the land. And Shmuel said that we do place (a relative in charge) because a Master said (on bm 39a, which we will reach in about two weeks) that we evaluate like a sharecropper [i.e., the court awards the relative payment on the basis of the profits, just as it would pay a sharecropper], and he (the relative) will not ruin the land [since his payment depends on his performance].
They asked [referring to a b'raita in Ch.38 of Avot d'R. Natan Citing Ex. 22:23, "And I [G-d] will become angry and kill you by the sword, and your wives will be widows and your children will be orphans"]. From the sense of "And I will become angry and kill you by the sword", I know that "your wives will be widows and your children will be orphans". Why does the Torah explicitly say "and your wives etc."? It teaches us that their wives will want to remarry and we will not let them, and that their children will want to take over their fathers' property and we will not let them. [Rashi: Two curses are included in this verse: that they will be killed by the sword, and that it will not be known that they died, so their wives will not be able to remarry or their sons to inherit.]
[In view of this b'raita, why does Shmuel rule that we _do_ place relatives in charge of the captive's property when we have not heard that he has died??]
Rava said: The b'raita teaches us that they (the children) cannot enter the fathers' fields and sell them, but they may care for the fields as sharecroppers.
There was a case in Nehardea, and Rav Sheshet decided on the basis of this b'raita [that the relative may not be placed in charge of the property]. Rav Amram said: Perhaps the b'raita is saying that the children cannot enter and sell the property [but they can still serve as sharecroppers]? He (Rav Sheshet) said (to Rav Amram): Perhaps you are from Pumpedita, where they force an elephant through the eye of a needle [i.e., where the talmudic methodology was often arcane]. The b'raita likens the children to wives; just as there it is absolutely forbidden [i.e., just as the wives of captives cannot remarry without absolute proof of the husbands' death], here too it is absolutely forbidden [i.e., in the case of children, they cannot enter the property, even as sharecroppers].
And whether we place a relative in charge of a captive's property is a tannaitic dispute. As we learned in a b'raita (Tosephta Ketubot 8:3): If a person [a relative] enters the property of a captive, we do not evict him. Furthermore, even if we heard that he (the captive) is slowly returning, and he (the relative who has taken over the property) has quickly harvested and eaten [or sold the produce], he was diligent and was rewarded. [Rashi: Even though the custodian's rights are terminated as soon as the owner returns, and even though the owner is on his way home, the custodian can "eat" what he can while he can.]
And these are the captive's properties [that fall under the above ruling]: if his father or brother or anyone from whom he inherits went to a distant country, and they heard that he had died.
But if one enters "netushim" (abandoned) property, we evict him. And this is abandoned property: if his father or brother or anyone from whom he inherits went to a distant country, and they did not hear that he had died. Rabban Shimon ben Gamliel said: I heard that abandoned property is like captive's property.
[This is the tannaitic dispute: Rabban Shimon ben Gamliel held that relatives can take over property even in the absence of a rumored death; the Rabbis held that this can occur only if there is a rumor that the captive has died.]
If one entered "retushim" property, we evict him. [The term is derived from the verb "ritesh" (tear (a person, usually an infant) apart; dash to pieces - 2nd Kings 8:12, Hosea 14:1; Nahum 3:10)). It is not usually applied to property, but here, like "netushim" it evidently means _abandoned_]
And what is retushim property: if his father or brother or anyone from whom he inherits were here, and we do not know where he went.
What is the difference between retushim and netushim? Netushim were abandoned by force, as it is written (Ex 23:11, regarding the Sabbatical year) "And the seventh [year] release it and abandon [u'n'tashta] it." This is the command of the King [i.e, G-d, and compliance is involuntary]. Retushim is voluntarily abandoned, as it is written (Hosea 10:14) "the mother with the children were abandoned" [rutasha, signifying voluntary abandonment].
[Here Rashi explains that the verse describes men fleeing from a threat and abandoning their families. In his commentary on Hosea 10:14, however, he gives the accepted interpretation of the mother being torn to bits together with her children, but suggests _abandoned_ as an alternative.]
[We end on the third line of 39a.]
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