| פרק ה משנה ג | |
| אין מוציאין |
[In a case where a field has been stolen and then sold, and the buyer, having been forced to return the field and its produce to its original owner, seeks repayment from the seller] we do not collect |
| לאכילת פרות |
for the consumption of produce [that had been returned to the original owner] |
| ולשבח קרקעות |
and improvements made to the land [by the buyer], |
| ולמזון האשה והבנות |
or the support of wife and daughters [of a husband, until they marry, as stipulated in a kesuba] |
| מנכסים משועבדים |
from encumbered property (i.e. property of the seller that had been sold to others) |
| מפני תקון העולם |
for the public good. |
| והמוצא מציאה |
One who finds a lost object [and, upon returning it, the owner claims that the finder is returning only part of the lost object] |
| לא ישבע |
need not swear [that he is returning everything] |
| מפני תקון העולם |
for the public good (as we want to encourage the return of lost property). |
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| פרק ה משנה ד | |
| יתומים |
Orphans |
| שסמכו אצל בעל הבית |
that are dependant on a householder (as an unofficial guardian) |
| או שמינה להן אביהן |
or if their father appointed for them |
| אפוטרופוס |
a legal guardian |
| חיב לעשר פרותיהן |
he (either of these types of guardians) is obligated to separate maaser from their produce. |
| אפוטרופוס |
A legal guardian |
| שמנהו אבי יתומים |
that was appointed by the orphans' father |
| ישבע |
[when the orphans reach the age of majority and assume control over their own affairs] must take an oath [that he did not keep any of their assets for himself] |
| מנהו בית דין |
if Beis Din appointed him |
| לא ישבע |
he need not swear; |
| אבא שאול אומר |
Abba Shaul says |
| חלוף הדברים |
it is the other way around. |
| המטמא |
One who makes [another person's food] tamei |
| והמדמע |
or mixes [another person's] chulin with terumah |
| והמנסך |
or [mixes into the wine of another person wine that he had] offered as a libation to an idol, |
| בשוגג פטור |
if done unintentionally is not liable |
| במזיד חייב |
and if done intentionally is liable. |
| הכהנים שפגלו במקדש |
Kohanim that render an offering piggul (unfit for having been slaughtered or having had its blood offered with the intention to eat its meat after the time to do so would have passed), |
| מזידין חיבין |
if they did so intentionally, are liable. |
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NOTES
משנה ג
אין מוציאין - In the case of the buyer of stolen land, he is entitled to recover from the seller the purchase money from the sake of the property, as well as other damages he suffers, such as the loss of the produce from the property, and the cost of any improvements he made to the property. The purchase money may be collected from the seller's property that is encumbered by its sale to a third party, as all purchasers of property such as this third party assume the risk that they are purchasing it subject to the seller's other debts, and can usually quantify that risk. However, as it would be impossible to quantify the risk with regard to אכילת פרות and שבח קרקעות, and similarly one cannot quantify how much מזון would be due to widows and orphans, as a matter of תקון העולם we limit the collection of these amounts to unencumbered property.
משנה ד
חיב לעשר פרותיהן - Even though one may not ordinarily separate מעשר from produce that is not theirs, because minors may not validly separate מעשר the רבנן were מתקן that a guardian could do so in order to allow them to eat from their produce.
שמנהו אבי יתומים - We assume that such a guardian was compensated by the father, and so the requirement of an oath would not deter people from taking on this duty.
אבא שאול אומר חלוף הדברים - He holds that the prestige of being an appointee of בית דין would provide enough of an incentive to overcome people's reluctance to take on this responsibility, while those appointed by a father are usually doing a favor, and would decline to do so with the added responsibility of an oath.
המטמא . . .מזידין חיבין - Each of these cases is an example of היזק שאינו ניכר, physically imperceptible damage, for which one would ordinarily not be liable. When done intentionally though, we penalize them as a matter of תקון העולם.