משנה: הָעוֹמֶר שֶׁהוּא סָמוּךְ לְגָפָא וּלְגָדִישׁ וּלְבָקָר וּלְכֵלִים וּשְׁכָחוֹ בֵּית שַׁמַּאי אוֹמְרִים אֵינוֹ שִׁכְחָה. וּבֵית הִלֵּל אוֹמְרִים שִׁכְחָה. MISHNAH: A sheaf that was near a closure32Where an opening in a fence was closed with wood or other materials. This is the concurrent explanation of Rashi (Baba Meẓi‘a25b), Rabbenu Ḥananel (loc. cit.), and Maimonides (Commentary on the Mishnah) and, therefore, Geonic tradition. Ben Jehudah derives the word from the root גוף, גפף “to close an opening.” For example, מגופה is a clay block with which the top of an amphora containing wine or olive oil is sealed. The deviating explanation of R. Simson of Sens, “a stone fence made without mortar,” is preferred by modern Talmudic dictionaries. Schwab translates: “fence of pales,” close to the Modern Hebrew acception: “fence made of a weave of reeds or rods.”, a stack, cattle33Cattle rather than horses were used to draw agricultural implements., or vessels, if it was forgotten, the House of Shammai say, it is not a forgotten sheaf, but the House of Hillel say, it is a forgotten sheaf.
הלכה: וְקַשְׁיָא עַל דְּבֵית שַׁמַּאי בְּגָפָה וּבְגָדִישׁ דָּבָר שֶׁהוּא מְסוּייָם וְאִינּוּן אָֽמְרֵי אֵינָן שִׁכְחָה. וְקַשְׁיָא עַל דְּבֵית הִלֵּל בְּבָקָר וְּבְכֵלִים דָּבָר שֶׁאֵינוֹ מְסוּייָם וְאִינּוּן אָֽמְרִין הוּא שִׁכְחָה. HALAKHAH: It is difficult about the House of Shammai; closure and stack are definite things, and they say it is not a forgotten sheaf. It is difficult about the House of Hillel; cattle and vessels are not definite things, and they say it is a forgotten sheaf34The background of the question is not clear. It is stated in the paragraph after the next that in one interpretation the Mishnah deals only with the case that the sheaf was already taken up to be brought to the threshing floor but then was deposited somewhere and forgotten. It is stated as a general principle of the House of Shammai that the farmer already acquired final possession of the sheaf by taking it up. The House of Hillel is of the opinion that the Biblical ordinance of the forgotten sheaf overrides everything until the grain is removed from the fields. The operating term in this respect is (Deuteronomy.24.19">Deut. 24:19) “and you will forget,” i. e., it must be you who forgets. We have to assume that the House of Shammai in principle also will agree to such an interpretation. Then we would say that it is difficult to forget something deposited near a landmark; hence, if it is forgotten, the House of Shammai are not justified not to declare it a forgotten sheaf. On the other hand, if the sheaf was deposited near movable objects and is not easily found again, the House of Hillel should have accepted the action of prior acquisition. (Interpretation of Tosafot Yom Tov on the Mishnah.)
But the position of this set of questions before the interpretation of the Mishnah seems to indicate that the question is asked in a general way, rather than about a sheaf which was already taken up. Therefore, most commentators, from R. Simson to R. Z. Frankel, prefer to change the text and switch the names of Hillel and Shammai. There is no textual basis for this. The best interpretation of the text as it stands is the one of R. Moshe Margalit, who explains as follows: “It is difficult about the House of Shammai; (if their reason is that) closure and stack are definite things (location not easily forgotten), and they say (even for cattle and vessels,which are easily moved) it is not a forgotten sheaf! It is difficult about the House of Hillel, (if their reason is that) cattle and vessels are not stationary, and they say (even for closure and stack) it is a forgotten sheaf!”.
בִּמְקוֹמוֹ הוּא עוֹמֵד בְּצַד הַגַּת אוֹ בְצַד פִּירְצָה מַתְנִיתָא דְּבֵית שַׁמַּאי דְּבֵית שַׁמַּאי אָֽמְרִין אֵינוֹ שִׁכְחָה. אָמַר רִבִּי יוֹסֵי דִּבְרֵי הַכֹּל הִיא. תַּמָּן דָּבָר מְחוּבָּר בְּצַד דָּבָר מְחוּבָּר בְּרַם הָכָא דָבָר תָּלוּשׁ בְּצַד דָּבָר מְחוּבָּר. “By its place, if it was standing beside the wine press or beside a breach in the fence35This is a quote from Mishnah 7:1: “Every olive tree which has a special name on the field, for example ‘a dripping olive tree’ at harvest time, if it was forgotten, is not subject to the law of the forgotten sheaf. How is this said? By its name, its yield, or its place.… By its place, if it was standing beside the wine press or beside a breach in the fence.”.” This Mishnah follows the House of Shammai, since the House of Shammai say, it is not a forgotten sheaf36If the sheaf was forgotten near a well-defined breach in the fence. This would imply that practice has to follow the House of Shammai, against the general rule to follow the House of Hillel.. Rebbi Yose said, it is everybody’s opinion. There a stationary object37The olive tree. is beside a stationary one, but here a movable object38The sheaf, which according to the House of Hillel is considered forgotten in the legal sense. is beside a stationary one.
אָמַר רִבִּי אִילְעַאי שָׁאַלְתִי אֶת רִבִּי יְהוֹשֻׁעַ בְּאֵילוּ עוֹמָרִין חֲלוּקִין בֵּית שַׁמַאי וּבֵית הִלֵּל אָמַר לִי בַּתּוֹרָה הַזֹּאת עוֹמֶר הַסָּמוּךְ לְגָפָה וּלְגָדִישׁ וּלְבָקָר וּלְכֵלִים וּשְׁכָחוֹ בֵּית שַׁמַּאי אוֹמְרִים שִׁכְחָה. וּבֵית הִלֵּל אוֹמְרִים אֵינוֹ שִׁכְחָה. וּכְשֶׁבָּאתִי אֵצֶל רִבִּי אֱלִיעֶזֶר אָמַר לִי לֹא נֶחְלְקוּ בֵית שַׁמַּאי וּבֵית הִלֵּל עַל הָעוֹמֶר שֶׁהוּא סָמוּךְ לְגָפָה וּלְגָדִישׁ וּלְבָקָר וְּלכֵלִים וּשְׁכָחוֹ שֶׁהוּא שִׁכְחָה. וְעַל מַה נֶחְלְקוּ עַל הָעוֹמֶר שֶׁנְּטָלוֹ וּנְתָנוֹ בְּצַד הַגָּפָה בְּצַד הַגָּדִישׁ בְּצַד הַבָּקָר בְּצַד הַכֵּלִים וּשְׁכָחוֹ שֶׁבֵּית שַׁמַּאי אוֹמְרִים אֵינוֹ שִׁכְחָה מִפְּנֵי שֶׁזָּכָה בוֹ. וּבֵית הִלֵּל אוֹמְרִים שִׁכְחָה. וּכְשֶׁבָּאתִי וְהִרְצֵיתִי אֶת הַדְּבָרִים לִפְנֵי רִבִּי לָֽעְזָר בֶּן עֲזַרְיָה אָמַר לִי הַבְּרִית הֵן הַדְּבָרִים שֶׁנֶּאֱמְרוּ לוֹ לְמֹשֶׁה בְּחוֹרֵב. 40With some minor deviations, this is Tosephta Peah 3:2. Rebbi Ilaï41A Tanna of the third generation, student mostly of R. Eliezer, but also of the other great leaders of the second generation. Through his son, Rebbi Jehudah, the teachings of Rebbi Eliezer became so influential in the Mishnah. said: I asked Rebbi Joshua, about which sheaves do the Houses of Shammai and Hillel disagree? He said to me, this is the teaching: The sheaf which was near a closure, a stack, cattle, or vessels, if it was forgotten, the House of Shammai say it is a forgotten sheaf, but the House of Hillel say it is not a forgotten sheaf42I. e., the Mishnah deals with the status of these sheaves under various circumstances. The text here switches the positions of the Houses of Hillel and Shammai. In the Tosephta, the rest of the sentence starting with “the House of Shammai say,” is missing. Hence, either R. Joshua disagrees with the Mishnah which is formulated in the tradition of R. Eliezer, or there is a scribal error. While in general, the opinion of R. Joshua prevails against that of R. Eliezer, here R. Eliezer’s opinion is endorsed in the strongest terms by R. Eleazar ben Azariah and should determine practice (Maimonides Mattenot Aniïm 5:3).. But when I came to Rebbi Eliezer, he told me that the Houses of Shammai and Hillel did not disagree that a sheaf near a closure, a stack, cattle, or vessels, if it was forgotten, was a forgotten sheaf. What did they disagree about? About a sheaf he took up43And removed the sheaf away from the original field; since the owner cannot acquire his own property on his own field, he must have moved on the public road at least for a few steps. Then the only question is whether the commandment of the forgotten sheaf overrides the acquisition. and put beside a closure, beside a stack, beside cattle, beside vessels, and forgot about it; in that case the House of Shammai say it is not a forgotten sheaf because he already acquired rights to it. But the House of Hillel say it is a forgotten sheaf. And when I came and lectured about these things before Rebbi Eleazar ben Azariah, he said to me, by the Covenant44An oath formula., these are the words that had been spoken to Moses on Horeb.
תַּמָּן תַּנֵּינָן הָאִשָּׁה שֶׁנָּֽפְלוּ לָהּ נְכָסִים עַד שֶׁלֹּא תִּתְאָרֵס מוֹדִים בֵּית שַׁמַּאי וּבֵית הִלֵּל שֶׁהִיא מוֹכֶרֶת וְנוֹתֶנֶת וְקַייָם. נָֽפְלוּ לָהּ מִשֶּׁנִּתְאָֽרְסָה בֵּית שַׁמַּאי אוֹמְרִים תִּימְכּוֹר וּבֵית הִלֵּל אוֹמְרִים לֹא תִמְכּוֹר. רִבִּי פִּינְחָס בְּעָא קוֹמֵי רִבִּי יוֹסֵי וְלָמָּה לֹא תַנֵּינָתָהּ מִקּוּלֵּי בֵית שַׁמַּאי וּמֵחוּמְרֵי בֵית הִלֵּל. אֲמַר לֵיהּ לָא אֲתִינָן מַתְנִיָּתָא אֶלָּא דָּבָר שֶׁהוּא חוֹמֶר מִשְּׁנֵי צְדָדִין וְקַל מִשְּׁנֵי צְדָדִין. בְּרַם הָכָא חוֹמֶר הוּא מִצַּד אֶחָד וְקַל מִצַּד אֶחָד. וְהָתַנֵּינָן בֵּית שַׁמַּאי אוֹמְרִין הֶבְקֵר לָעֲנִייִם הֶבְקֵר הֲרֵי הוּא קַל לָעֲנִייִם וְחוֹמֶר הוּא לְבַעַל הַבַּיִת וְתַנִּיתָהּ. קַל הוּא לָעֲנִייִם וְאֵינוֹ חוֹמֶר לְבַעַל הַבַּיִת שֶׁמִּדַּעְתּוֹ הוּבְקְרוּ. אָמַר לֵיהּ וְהָתַנֵּינָן עוֹמֶר שֶׁהוּא סָמוּךְ לְגָפָה וּלְגָדִישׁ וּלְבָקָר וְּלכֵלִים וּשְׁכָחוֹ הֲרֵי הוּא קַל לְבַעַל הַבַּיִת וְחוֹמֶר הוּא לָעֲנִייִם וְתַנִּיתָהּ. אָמַר לֵיהּ קַל הוּא לְבַעַל הַבַּיִת וְאֵינוֹ חוֹמֶר לָעֲנִייִם שֶׁאַדָּיִין לֹא זָכוּ בָהֶן וֶאֱמוֹר אוּף הָכָא קַל הוּא לָאִשָּׁה וְאֵינוֹ חוֹמֶר לְבַעַל הַבַּיִת שֶׁאַדָּיִין לֹא זָכָה בָהּ. אָמַר לֵיהּ מִכֵּיוָן שֶׁקִּידְּשָׁהּ לִזְכוּתָהּ וְלִזְכוּתוֹ נָֽפְלוּ. There45Ketubot 8:1:2-4" href="/Jerusalem_Talmud_Ketubot.8.1.2-4">Ketubot 8:1; there this paragraph and the next one appear. we have stated: “A woman who inherited property before she was betrothed46A Jewish marriage is performed in two stages. The first, qiddushin, which for lack of a better English equivalent was translated as “betrothed,” requires the groom to hand over to the bride an object of value (today, a gold ring) and to declare before two witnesses that the woman is betrothed to him. From that moment on they are married as far as penal law is concerned. In antiquity, the propective bride (who probably was in her early teens) did not prepare any trousseau. Hence, after qiddushin she was given adequate time to prepare and then was married to live with her husband in a second public ceremony, nissuïn, the execution of the ketubah document, in which the groom mortgages all his possessions and earnings for the upkeep of his wife and the care of his children, followed by the public recitation of seven benedictions (in the presence of 10 adult males). From that moment on, the couple is required to live in intimacy. Today, the two ceremonies are separated only by the reading of the ketubah and, sometimes, by a rabbi’s sermon. The period between qiddushin and nissuïn is one in which the groom is married, but as he is forbidden marital relations with his wife, as yet has no financial responsibility. After nissuïn, since the wife has a claim on his property enforceable in court, he receives administration of her estate., the Houses of Shammai and Hillel both are of the opinion that she may sell or give away and her actions are valid. If she inherited after she was betrothed, the House of Shammai say, she may sell, but the House of Hillel say, she may not sell47Since the husband will have a monetary interest in the property after nissuïn..” Rebbi Phineas asked before Rebbi Yose, why did we not state it with the leniencies of the House of Shammai and the stringencies of the House of Hillel48In the fourth chapter of Iddiut, the few cases in which the House of Shammai are more lenient than that of Hillel are enumerated. The first two Mishnaiot of the present chapter are included in that list, the one from Ketubot is not.? He said to him, the Mishnaiot come only for circumstances that are either stringent on both sides or lenient on both sides. But here it is a stringency on one side49On the wife, who is restricted in her actions. The law is lenient for the husband, who gets veto power over the actions of his wife before he mortgages all his property to her. and a leniency on the other side. But did we not state: “The House of Shammai say, property abandoned to the poor is abandoned?” Is this not lenient for the poor and stringent for the householder, and it was stated! It is lenient for the poor50In that non-poor persons may not acquire it. and not stringent for the householder, since it was abandoned by his intent. He said to him, did we not state: “The sheaf that was near a closure, a stack, cattle, or vessels, if it was forgotten,” is this not lenient for the householder and stringent for the poor, and it was stated! He said to him, it is lenient for the householder but not stringent for the poor, because they did not acquire it yet. You may also say here51In the case of Ketubot., it is lenient for the woman and not stringent for the husband since he did not yet acquire property rights to it. He52Rebbi Yose. said to him, since he became betrothed to her, the inheritance fell to both of them.
אָמַר רִבִּי יוּדָה אָֽמְרוּ לִפְנֵי רַבָּן גַּמְלִיאֵל הוֹאִיל וְהָאֲרוּסָה אִשְׁתּוֹ וְהַנְּשׂוּאָה אִשְׁתּוֹ מַה זוּ מִכְרָהּ בָּטֵל אַף זוּ מִכְרָהּ בָּטֵל. אָמַר לָהֶן בַּחֲדָשִׁים אָנוּ בוֹשִׁין אֶלָּא שֶׁאַתֶּם מְגַלְגְּלִין עִמָּנוּ הַיְּשָׁנִים. אֵילּוּ הֵן הַחֲדָשִׁים מִשֶּׁנִּישְׂאֵת. וְאֵלוּ הֵן הַיְּשָׁנִים עַד שֶׁלֹּא נִישְׂאֵת וְנִישְׂאֵת. Rebbi Jehudah said53This paragraph belongs only to Ketubot; it was copied with the preceding paragraph., they argued before Rabban Gamliel: Because betrothed she is his wife and married she is his wife; just as the sale by the latter is void, the sale by the former also should be void. He said to them, we are ashamed of the new ones54To require the husband’s consent to any financial or business transaction by his wife., now you want to roll old ones over us55Extending the husband’s rights to qiddushin.! The new ones, after nissuïn, the old ones before nissuïn, when she was married in the second ceremony.