# dafyomi

lvr: 36
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  The Halachah follows Nachmani (Abaye, regarding Giluy 
          Da'as about a Get).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE ENACTMENT OF NAMES ON THE GET</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> At first, one would write on a Get the name he 
          was called in the place the Get was written, even if this 
          was different from his name elsewhere.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  For Tikun ha'Olam, R. Gamliel the elder enacted that they 
          should write 'Ploni and every name that he has; Plonis 
          and every name that she has.' (Tosfos - they write all 
          their names in the Get.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara - Rav Yehudah):</font></b> Chachamim of Chutz La'aretz asked 
          Chachamim of Eretz Yisrael 'if a man came here from Eretz 
          Yisrael, and in one place he is called Yochanan, and in 
          the other, Yosef, which name should be written on the 
          Get?'
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  This prompted R. Gamliel to enact writing 'Ploni and 
          every name that he has; Plonis and every name that she 
          has', for Tikun ha'Olam.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rav Ashi):</font></b> This applies only when he is known by both 
          names.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Support #1 (R. Aba):</font></b> R. Mari and R. Elazar hold like you.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Support #2 (Beraisa):</font></b> If a man had two wives, one in 
          Yehudah, one in Galil, and he is called different names 
          in Yehudah and Galil:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he divorces the wife in Yehudah with the name he 
               uses in Yehudah, and the wife in Galil with his 
               Galil name, they are not divorced;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He must divorce the Yehudah wife with his 
                    Yehudah name and his Galil name; he must 
                    divorce the Galil wife with his Galil name and 
                    his Yehudah name.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he went to a different place and divorced with 
               either name, she is divorced.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We said that he must also write his other 
               name!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> That is only in a place where he is known to 
               have both names.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  There was a woman who was called Miryam. A minority of 
          people called her Sarah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Chachamim of Neharde'a:</font></b> Her Get must say 'Miryam and 
          every name that she has', not 'Sarah and every name that 
          she has,'
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WE DO NOT LET WIDOWS SWEAR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> A widow collects her Kesuvah from orphans' 
          property only by swearing (that she did not already 
          receive her Kesuvah).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Judges refrained from administering the oath. R. Gamliel 
          enacted that she should vow like the orphans desire 
          (something very hard to fulfill, e.g. to forbid to 
          herself all solid food if she already received her 
          Kesuvah) and then collect.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Witnesses sign a Get. This is an enactment for Tikun 
          ha'Olam.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  Pruzbul is an enactment for Tikun ha'Olam.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Anyone must swear before collecting 
          from the property of orphans! Why does the Mishnah 
          specify a widow?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> It needs to teach about a widow;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that Chachamim would allow a 
               widow to collect without swearing, to encourage 
               marriage. The Mishnah teaches that this is not so.
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW CAN WIDOWS COLLECT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Judges refrained from administering the oath.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What was the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Suggestion:</font></b> It was due to the case Rav Kahana recorded.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> Once. a man deposited a gold coin with 
               a widow during a famine year. She put it in the 
               flour. It was baked into a loaf (unknown to her), 
               and she gave the loaf to a poor man. When the 
               depositor asked for his coin, she swore that she did 
               not benefit from it, and that one of her children 
               should die if she is lying. Soon after, one of her 
               children died.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chachamim:</font></b> If someone who swears truthfully is 
                    punished like this, all the more so one who 
                    swears falsely!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why was she punished?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> She benefited from the coin. (It saved her 
               flour that otherwise would have been used in the 
               loaf she gave to the poor man.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If so, she did not swear truthfully!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, she was like one who swore 
               truthfully. (She did not intend to lie.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> If this was the reason, they should have 
          stopped divorced women from swearing as well!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Zeira):</font></b> They stopped only widows from swearing. 
               Divorcees still swear.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> A widow toils to care for the orphans. She might 
          rationalize swearing that that she did not receive any 
          money from the Kesuvah, even if she did, since she feels 
          that she is entitled to compensation for her toil.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Version #1 - Chachamim of Sura (Rav Yehudah):</font></b> Rav and 
          Shmuel both say that only in Beis Din she does not swear, 
          but she may swear outside of Beis Din.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Rav would not allow a widow to collect her 
          Kesuvah! (According to Rav Yehudah, he should tell her to 
          swear outside of Beis Din.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is left difficult.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Version #2 - Chachamim of Neharde'a (Rav Yehudah citing 
          Shmuel):</font></b> Only in Beis Din she does not swear, but she may 
          swear outside of Beis Din.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Rav Yehudah citing Rav):</font></b> She does not swear even outside 
          of Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is consistent with Rav's practice not to allow 
               a widow to collect her Kesuvah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> Why didn't Rav allow her to collect through a 
          vow?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> In Rav's day, people took vows lightly.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  A widow came in front of Rav Huna to collect her Kesuvah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Huna:</font></b> I hold like Rav, who does not collect a 
               Kesuvah for a widow.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The woman:</font></b> The reason is, you suspect I may have 
               already received part of my Kesuvah. I swear by 
               Hashem's name that I have not benefited from my 
               Kesuvah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> Rav admits that if she swears on her 
               own, she receives her Kesuvah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  A widow came in front of Rabah bar Rav Huna to collect 
          her Kesuvah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabah bar Rav Huna:</font></b> I hold like Rav and my father, 
               who did not collect a Kesuvah for a widow.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The woman:</font></b> Give me food. (I am entitled to food, 
               since I am not receiving the Kesuvah.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rabah bar Rav Huna:</font></b> I hold like Shmuel, who says 
               that once a woman requests her Kesuvah, she does not 
               receive food.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> The woman:</font></b> Your chair should be turned over (this 
               was a curse). You ruled against me like two 
               Chachamim whose rulings do not go together!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They reversed the chair of Rabah bar Rav Huna 
                    and returned it (hoping that this would fulfil 
                    the curse). Nevertheless, he got sick.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rav Yehudah (to R. Yirmeyah Bira'ah):</font></b> Make the widow vow 
          in Beis Din and swear outside of Beis Din. Publicize that 
          widows collect Kesuvos!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (R. Zeira):</font></b> Widows don't swear, but divorcees do.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> Is it really true that a divorcee collects only 
          through an oath, but not through a vow?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rabanan in Eretz Yisrael sent a message about a 
               certain woman who received a Get, and vowed not to 
               eat anything that grows if she had already received 
               towards her Kesuvah anything more than a coat, a 
               Sefer Tehilim, a Sefer Iyov, and a worn Sefer 
               Mishlei;
<br>
<br>

sjt:
<font><b>1) THE SEVERITY OF A FALSE 'SHEVU'AH'</b></font><b>
<br>QUESTION:</b> The Mishnah (34b) teaches that the Rabanan do not require an Almanah (widow) who wants to collect her Kesuvah to make a Shevu'ah that she did not yet collect it, but they require her to make a Neder instead. The Gemara explains that the Rabanan did not require her to make a Shevu'ah out of fear that she would swear falsely, rationalizing that she is entitled to take more money from her husband's estate, and thereby subject herself to the wrath of Hash-m for swearing falsely. Since a false Neder is not as severe as a false Shevu'ah, the Rabanan let her make a Neder instead.
</p><p>
The Gemara explains that according to Shmuel, the Rabanan permit an Almanah to make a Shevu'ah when she does so <i>outside</i> of Beis Din. <b>RASHI</b> (DH Chutz la'Beis Din) explains that a Shevu'ah outside of Beis Din is less severe since it is not made with the Name of Hash-m but rather with an expression of 'Arur' (a malediction; the Gemara in Shevuos (39a) states that when one uses the word 'Arur' in support of a promise, it is considered a Shevu'ah), and, furthermore, it is not made while one holds an object of Kedushah (such as a Sefer Torah or Tefilin).
</p><p>
The Gemara earlier demonstrates the severity of a false Shevu'ah through an incident in which a woman swore that she did not benefit from a Dinar that she was watching for someone else. She swore by saying, 'May one of my children die from poison if I derived any benefit from that coin!' She was unaware that she had derived minimal benefit from the coin, and because her Shevu'ah was false her son indeed died.
</p><p>
According to Shmuel, a Shevu'ah made outside of Beis Din is not so severe since it is only an Arur and she does not hold a holy object. Why, then, was the woman who swore about the Dinar punished so severely? Her Shevu'ah was simply an Arur and was not made while she held a holy object! (<b>RASHASH</b>, <b>MAHARAM SHIF</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> and the <b>CHIDUSHI HA'RAN</b> on the Mishnah (34b) explain that the severity of the punishment of a false Shevu'ah is that not only is the person who made the Shevu'ah punished, but the rest of the world is punished as well, as the Gemara states in Shevuos (39a). When a Shevu'ah is made outside of Beis Din, only the person who swore falsely is punished. That is why the woman lost her son even though she swore falsely outside of Beis Din.
</p><p>
According to this explanation, when the Gemara cites the story of the woman with the Dinar, it is not attempting to prove the severity of a false Shevu'ah. Rather, it is showing that even when a person swears falsely by mistake, he is still subject to punishment.
</p><p>
However, as the Ramban points out, the Yerushalmi states explicitly that the severity of a false Shevu'ah is that it causes a person's children to die, as the story of the woman with the Dinar demonstrates (see also Shabbos 32b). Rashi (DH k'Mi she'Nishba) also seems to understand that the Gemara records this story in order to demonstrate the severity of making a false Shevu'ah.
</p><p>
(b) The <b>TOSFOS RID</b> and <b>ME'IRI</b> explain that the woman indeed uttered the Name of Hash-m in her Shevu'ah, and not just the words quoted by the Gemara. Even if one does not say the Name of Hash-m, perhaps a statement of Arur in which one specifies that a child should die is as severe as a Shevu'ah made with the Name of Hash-m. The Arur which Shmuel permits one to make outside of Beis Din is a simple Arur which does not include an expression of a severe punishment. Such an Arur is less severe than a Shevu'ah with the Name of Hash-m (see <b>DIBROS MOSHE</b>). 
</p><p>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabanan:</font></b> We appraised these to be worth five Maneh. 
               You should let her collect the rest of her Kesuvah.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> Indeed, a divorcee needs an oath. This 
          case was a widow. She had received a Get from a Yavam (to 
          forbid Yibum).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COLLECTING THROUGH A VOW</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> R. Gamliel enacted that she vow...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Huna):</font></b> This is only if she did not yet remarry. If 
          she already remarried, she does not vow.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Surely, this is because her husband will annul 
          the vow. Also before she remarries, we should be 
          concerned lest she vow falsely, expecting that she will 
          marry and her husband will annul her vow.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> A husband cannot annul vows she took before he 
          married her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> We should be concerned lest she vow falsely, 
          expecting that she will regret her vow in Beis Din, and 
          Beis Din will permit it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Huna holds that one who asks to permit a vow 
          must give the details of the vow. (Beis Din would not 
          permit her when they hear why she vowed.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> She collects her Kesuvah through a vow 
          even after she remarried.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Surely, (she is not afraid to vow falsely, for) 
          her husband will annul the vow!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> She vows b'Rabim (in front of many people).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (against Rav Huna - Beraisa):</font></b> If she remarried, 
          she collects her Kesuvah if she vowed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This means, if she vows now.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> No, it is if she vowed before she remarried.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If she remarried, she vows and 
          collects her Kesuvah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> Tana'im argue about whether or not a husband can 
          annul a vow made b'Rabim. (This Tana holds that he 
          cannot, therefore she can vow after remarrying to collect 
          her Kesuvah.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PERMISSION OF VOWS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If one seeks to permit a vow (through Beis 
          Din), must he tell Beis Din the details of the vow?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Rav Nachman):</font></b> He need not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2 (Rav Papa):</font></b> He must.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman says that he need not. If he needed to, 
               sometimes he would omit a detail, and the Heter 
               (permission) would be Pasul, since Beis Din permits 
               only what they hear!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Papa says that he must. Perhaps he seeks to 
               permit a vow in order to transgress!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Mishnah):</font></b> A Kohen who marries a woman forbidden to 
          Kohanim is disqualified from Mikdash service until he 
          vows not to benefit from her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Immediately upon vowing, he may serve. 
               After serving, he divorces her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (against Rav Nachman):</font></b> If one may permit a 
               vow without detailing it, perhaps he will permit his 
               vow and keep his wife!
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PERMISSION OF VOWS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #1:</font></b> He must vow b'Rabim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> This is like the opinion that a vow b'Rabim 
          cannot be permitted.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that a vow b'Rabim can be 
               permitted, how can we answer?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2:</font></b> He must vow 'Al Da'as Rabim' i.e. the vow is 
          contingent on the will of others
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ameimar):</font></b> The law is, even according to the opinion 
               that a vow b'Rabim can be permitted, a vow Al Da'as 
               Rabim cannot be permitted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if there is no Mitzvah to permit the 
               vow. For the sake of a Mitzvah, it may be permitted.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> There was a teacher of children who hit his students 
               excessively. Rav Acha vowed Al Da'as Rabim that he 
               will not teach any more. Ravina returned the 
               teacher, since no other teacher taught as precisely 
               as he did.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE ENACTMENT TO SIGN GITIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> It was an enactment for Tikun ha'Olam that 
          witnesses sign a Get.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> This is not an enactment, this is mid'Oraisa - 
          'written in a Sefer and signed'!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1 (Rabah):</font></b> The Mishnah is like R. Elazar, who 
          says that Edei Mesirah Karsei (a Get is empowered by the 
          witnesses that saw it given);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted that witnesses sign it, for 
               sometimes the Edei Mesirah die or go abroad and we 
               cannot prove that the Get was given.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (Rav Yosef):</font></b> The Mishnah can even be like R. 
          Meir. The enactment was that witnesses sign their true 
          names;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> At first, a witness would sign 'I, Ploni, 
               signed for a witness' no matter what his name was. A 
               document could be Mekuyam only if the signatures 
               were found on other documents;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Gamliel says, it was a great enactment that 
               witnesses sign their true names.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> It suffices even to draw a symbol!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav drew a fish for his signature. R. Chanina, Rav 
               Chisda, R. Oshaya, and Rabah bar Rav Huna would draw 
               a palm leaf, a Samech, an Ayin and a mast, 
               respectively.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Chachamim are different, for their signatures are 
          well known.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> When they first started signing this way, they 
          were not well known!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> They started signing this way in answers to 
          questions or letters.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PRUZBUL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Hillel enacted Pruzbul...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Mishnah):</font></b> A loan for which a Pruzbul was written is not 
          cancelled in Shemitah. This is one of Hillel's 
          enactments.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He saw that people were refraining from lending each 
               other (due to fear that Shemitah cancel the loan), 
               transgressing 'beware, lest there be a base thought 
               in your heart', so he enacted Pruzbul.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The essence of Pruzbul is that the lender writes 'I 
               hand over to you, judges Ploni and Ploni of the city 
               Ploni, all debts owed to me by Almoni, and I will 
               collect them whenever I want.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The judges or witnesses sign below.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> If mid'Oraisa the loan is cancelled, could 
          Hillel enact that it is not cancelled?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> The Mishnah is like Rebbi, who says 
          that cancellation of loans in Shemitah is only 
          mid'Rabanan nowadays.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> 'V'Zeh Devar ha'Shemitah Shmot.' 
               The verse discusses two Shemitos (abstentions), of 
               money (not collecting loans), and of land (Rashi - 
               not working the land in Shemitah; Tosfos - returning 
               sold land to the seller in Yovel);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (Tosfos - in an era) when Shemitah of land applies, 
               Shemitah of loans applies. When Shemitah of land 
               does not apply, neither does Shemitah of loans.
<br>
<br>

sjt:
<font><b>1) A NEDER MADE 'AL DA'AS RABIM'</b></font><b>
<br>OPINIONS:</b> The Gemara cites a Machlokes Tana'im with regard to whether a Neder made in public ('Neder she'Hudar b'Rabim') may be repealed. The Gemara says that according to all opinions, a Neder made 'Al Da'as Rabim' may not be repealed.
</p><p>
Why may a Neder made 'Al Da'as Rabim' not be repealed?
</p><p>
(a) The <b>RAN</b> and <b>RABEINU KRESKAS</b> explain that the opinion that does not allow annulment for a Neder made in public maintains that when a Neder is made in the presence of a number of people, it carries more strength (see earlier, 33b, and <b>RAN</b>, beginning of Nedarim 7b). The other opinion maintains that a Neder does not become more severe when made in public because the people who were present had nothing to do with the actual Neder itself, and therefore they cannot serve to strengthen the Neder. However, when a Neder was made with the <i>consent</i> of the public ('Al Da'as Rabim'), the fact that a number of people were involved in the Neder makes the Neder stronger.
</p><p>
The Gemara later (46a) explains that a Neder is called 'Hudar b'Rabim,' made in public, only when made in front of at least three people. The Ran and Rabeinu Kreskas maintain, therefore, that a Neder made 'Al Da'as Rabim' is more severe only when it was made with the consent ('Al Da'as') of at least three people. Since these people were involved in the Neder, the Neder is more severe.
</p><p>
The Gemara here continues and says that Beis Din may repeal a Neder made 'Al Da'as Rabim' when it is necessary to do so in order to fulfill a Mitzvah. According to the Ran, the reason is that the importance of the Mitzvah overrides the severity of repealing the Neder. Although the Gemara's example is the Mitzvah of teaching children, the same applies to any Mitzvah.
</p><p>
(b) The <b>RITVA</b> (Kesav Yad) explains that when a Neder is made 'Al Da'as Rabim,' it may be repealed only with the consent of every person who was involved. Since Beis Din cannot determine that all of the people involved want to annul the Neder, it cannot be annulled. This also seems to be the opinion of <b>TOSFOS</b> (35b, DH Aval), who writes that if all of the people agree to annul the Neder, it may be annulled.
</p><p>
<b>TOSFOS</b> (beginning of 46b) asks that according to this reasoning, even a Neder made with the consent ('Al Da'as') of a single person should not be annullable until that person consents. Why, then, does the Gemara emphasize that a Neder is severe only when made 'Al Da'as <i>Rabim</i>'? Tosfos answers that when a person makes a Neder 'Al Da'as' a single person, he does not really mean to leave it in the hands of that person to decide whether he may repeal the Neder or not. However, when he makes it dependent upon the public, he submits himself to the decision of the public and he truly intends for the Neder to depend upon their will.
</p><p>
According to this reasoning, it seems that even if the Neder was made 'Al Da'as' two people, it could be called 'Al Da'as Rabim' and it cannot be repealed.
</p><p>
The Ritva adds that the Neder is irrevocable only when it is made <i>in the presence</i> of those people on whose will he made the Neder dependent. His reasoning seems to be that if the other people never knew that the Neder was made, there is no doubt that they certainly do not want to deny the person who made the Neder the right to repeal it. This seems to be the opinion of <b>RASHI</b> (DH Al Da'as Rabim) here, for he implies that the public (Rabim) must be present, and in Shevuos (39a, according to the text of Rashi cited by the Rashba here), where he implies that even two people are considered 'Rabim.'
</p><p>
When the annulment of the Neder is necessary for the sake of the fulfillment of a Mitzvah, there is no doubt that the other people do not want to deny the one who made the Neder the right to repeal the Neder, since they want him to be able to fulfill the Mitzvah. Therefore, in such a case even a Neder made 'Al Da'as Rabim' may be repealed.
</p><p>
(c) The <b>RASHBA</b> writes that in order to repeal a Neder made 'Al Da'as Rabim,' it is not only necessary that every one of the members of the public agree to allow the one who made the Neder to repeal it, but each one must also have Charatah, regret, that the Neder was ever made in the first place. Since it is impossible for every member of the Rabim to have the same Charatah and to regret having agreed to the Neder for the same reason, the Chacham may not annul the Neder since he may annul a Neder only based on a single Charatah.
</p><p>
For this reason, the Rashba agrees with Tosfos that even if a Neder is made 'Al Da'as' two people, it is considered a 'Neder Al Da'as Rabim.'
</p><p>
The Rashba writes that the only time the annulment of such a Neder is permitted is for a Mitzvah similar to the Mitzvah of teaching children, which the Gemara mentions. In the case of the Gemara, the Neder not to hire a certain teacher was made 'Al Da'as' all of the parents of the children in the class. Since all of the parents had a personal involvement in that Neder, it is possible for all of them to regret having made the Neder for the same reason (i.e. so that their children will have a teacher who is very precise). Only for such a Mitzvah may a Neder made 'Al Da'as Rabim' be repealed.
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim enacted cancellation of loans in 
                    Shemitah (nowadays) to be a commemoration of 
                    Shemitah. Hillel saw that people were not 
                    lending, so he enacted Pruzbul.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> If mid'Oraisa the loan is not cancelled (in 
          Shemitah nowadays), could Chachamim enact that it is 
          cancelled?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> Chachamim can tell people to refrain 
          from Mitzvos (i.e. the borrower need not pay his debt).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2 (to questions (c) and (e) - Rava):</font></b> Beis Din can 
          make things Hefker.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yitzchak):</font></b> 'Whoever does not come in three days 
               will lose all his property' teaches that Beis Din 
               can declare property Hefker.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> We learn from 'these are the 
               inheritances...Elazar ha'Kohen, Yehoshua and the 
               leaders of the fathers';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Torah writes the leaders and the fathers 
                    together, to teach that just like fathers can 
                    bequeath whatever they want to their children, 
                    also leaders can bequeath whatever they want to 
                    the nation.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Did Hillel enact Pruzbul for his generation, or 
          for all generations?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference does this make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It determines whether or not later Chachamim 
               can abolish it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he only enacted for his generation, any 
                    later Chachamim can abolish it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If he enacted for all generations, later 
                    Chachamim can abolish it only if they are 
                    greater than the Chachamim who enacted it, in 
                    Chachmah and number (of Talmidim, or Chachamim 
                    who accepted the enactment).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1:</font></b> Shmuel said that Pruzbul may only be written 
          in the Beis Din of Sura or Neharde'a.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was enacted for all generations, one should be 
               able to write Pruzbul in any Beis Din!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps the enactment for generations was to 
          write it in a Beis Din like that of Hillel, or of Rav Ami 
          and Rav Asi, which has power to make people's money 
          Hefker;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It may not be written in a simple Beis Din.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #2:</font></b> Shmuel said that Pruzbul is an Ulbana (this 
          will be explained) of the judges. If I had the power, I 
          would abolish it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Din cannot abolish an enactment of a different 
               Beis Din unless the latter are greater in Chachmah 
               and in number! (Clearly, Shmuel was smaller in 
               Chachmah than Hillel!)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection:</font></b> Shmuel meant that if he were greater than 
          Hillel, he would abolish it.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> (If I had the power) I would perpetuate 
          it.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> Pruzbul is already perpetuated!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer:</font></b> He meant, I would establish that it applies 
          (loans are not cancelled) even for one who did not write 
          a Pruzbul.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> Shmuel called it 'Ulbana of judges. Does this 
          mean audacity, or convenience?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer:</font></b> Ula said that a bride that has Bi'as with another 
          man at the Chupah is Aluva (this denotes audacity).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Mari, son of Shmuel's daughter):</font></b> Ula learned 
               this from 'while the King was still at His banquet, 
               my fragrance gave off its scent.' (Yisrael made the 
               golden calf at Har Sinai.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> Yisrael retains its dearness to Hash-m. It 
               says 'gave its scent', not 'spoiled.'
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  (Beraisa):</font></b> 'Those who love Hash-m are like the sun going 
          out in its might' refers to one who is disgraced and does 
          not disgrace. He hears (others recounting) his shame and 
          does not answer. He serves Hash-m from love and is happy 
          to receive afflictions.
<br>

sjt:
<p>
<font><b>2) THE POWER OF 'HEFKER BEIS DIN'</b></font><b>
<br>QUESTION</b>; The Gemara cites two verses to prove that 'Hefker Beis Din' is Hefker. Rebbi Yitzchak cites the verse (Ezra 10:8) which relates that the Beis Din decreed that if the people do not fulfill the Beis Din's enactment, the Beis Din they will confiscate all of their property. Rebbi Elazar cites a verse (Yehoshua 19:51) which discusses the allocation of the land in Eretz Yisrael. The verse compares the community leaders to fathers, teaching that just as fathers may give their property to whichever children they want, so, too, Beis Din may give the property of one person to another person.
</p><p>
The <b>RASHBA</b> points out that the second verse implies that not only may Beis Din take away property from a person, but they may also give it to another person. It becomes the other person's property because of Beis Din's decree, even with no formal act of Kinyan. (See also <b>YAM SHEL SHLOMO</b>, Yevamos ch. 10; <b>MAHARIT</b> 1:7.)
</p><p>
This seems evident from many places in the Gemara, where the Gemara discusses the concept of making a Kinyan based on rabbinical decree. (See, for example, the Gemara earlier on 14a with regard to Ma'amad Sheloshtan, and on 20a, with regard to the Zuz which a woman pays to the scribe in order to write a Get, which the Rabanan gave to the husband.)
</p><p>
The <b>ALIYOS D'RABEINU YONAH</b> (cited by the Shitah Mekubetzes in Bava Basra 100a) seems to reject this basic premise. Rabeinu Yonah discusses a field through which the public became accustomed to walking. The Rabanan enacted that the owner of the field may not take away from the public the right to walk through his field. The Gemara asks in what way did the public make a Kinyan on that property.
</p><p>
Rabeinu Yonah is perplexed by the Gemara's question. If the Rabanan instituted that the public has the right to the property through which they became accustomed to walking, then the rule of 'Hefker Beis Din Hefker' should make it theirs and they should need no Kinyan! Rabeinu Yonah answers that 'Hefker Beis Din Hefker' does not empower the Beis Din with the authority to give the property to a recipient; it only empowers Beis Din to remove the property from the possession of the original owner. Therefore, until the people make a Kinyan on the property, it is not theirs. (Rabeinu Yonah makes a similar point earlier in Bava Basra, 54b-55a. See also <b>NESIVOS HA'MISHPAT</b> 235:13.)
</p><p>
Why does Rabeinu Yonah write that 'Hefker Beis Din Hefker' does not make a Kinyan? The Gemaras cited above clearly show that a Kinyan d'Rabanan made through their power of 'Hefker Beis Din' <i>does</i> grant ownership!
</p><p>
(a) The <b>DEVAR AVRAHAM</b> (1:1:15-16) explains that when the Rabanan institute that a certain act should accomplish a Kinyan, that act certainly is on par with any Kinyan d'Oraisa and is Makneh the object to the recipient. The only time that 'Hefker Beis Din' cannot give an object to a recipient is when the 'Hefker Beis Din' does not involve any act of Kinyan (for example, no act at all is involved, or one of the parties involved is a minor).
</p><p>
His reasoning is as follows. The Gemara in Bava Metzia (74a) teaches that any act which becomes generally accepted as an act that finalizes a sale ('Situmta') accomplishes a Kinyan <i>d'Oraisa</i>. A Kinyan that the Rabanan instituted is no less than the Kinyan of 'Situmta.' (This approach, however, does not seem to answer the question from the Gemara on 20a.)
</p><p>
(b) The Rashba may be referring only to the power of 'Hefker Beis Din' which is used to penalize someone, or to cause someone a monetary loss, to which the person would not willingly agree on his own accord. When 'Hefker Beis Din' is applied to take away money which the person would not be willing to give on his own, the Rabanan instituted only that the person loses the money, but not that it goes into the recipient's possession. However, when the person who is losing the money consents to having the money transferred, 'Hefker Beis Din' enables the recipient to receive the money. (The Rabanan effected only a single change: either they took the money away from a person against his will, or they gave it to another person despite the lack of a formal Kinyan, but they did not do both.)
</p><p>
Therefore, Rabeinu Yonah, who is discussing the way the Rabanan confiscated a person's property and gave it to the public, says that the Rabanan did not effect a Kinyan for the public and place the property into their possession. In contrast, in the case of Ma'amad Sheloshtan or the Zuz that a woman pays to a scribe to write a Get, the person who makes the Kinyan certainly wants to part with his or her money (in the case of the Get, the woman certainly wants the Get to be a valid Get). Therefore, the Rabanan have the power to place the money into the other person's possession without a formal act of Kinyan.
</p><p>
This explains why the Gemara here cites two separate verses. The first verse teaches that the Rabanan have the right to confiscate property through 'Hefker Beis Din,' but that property remains Hefker. The second verse teaches that when a person <i>wants</i> the Rabanan to transfer his property (such as when Eretz Yisrael was divided up, and each person wanted himself and others to receive a proper portion), 'Hefker Beis Din' may be used to make the second person acquire the object even without a formal act of Kinyan.
</p><p>


<font><b>3) REPEALING THE ENACTMENT OF 'PRUZBUL'</b></font><b>
<br>QUESTION:</b> The Gemara discusses whether Hillel's enactment of Pruzbul was only for his generation, or whether it was an everlasting enactment that applies even to subsequent generations. The Gemara says that the practical difference between these two possibilities is whether a later generation may annul the enactment (in a generation in which people are willing to lend money despite the fact that Shemitah will cancel their loans).
</p><p>
The Gemara cites proof from Shmuel that Pruzbul was instituted only for Hillel's generation. Shmuel said, 'If I would have the power, I would annul the Takanah of Pruzbul!' If Hillel had instituted Pruzbul even for future generations, Shmuel would not be able to annul the enactment because of the rule that one Beis Din may annul a decree which another Beis Din instituted only when it is greater in Chochmah and Minyan (wisdom and numbers) than the original Beis Din.
</p><p>
If Hillel instituted Pruzbul only for his generation, why should it be necessary to annul the enactment of Pruzbul after his generation has passed? It should automatically become annulled since it was made only to take effect during Hillel's lifetime. (<b>RAMBAN</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> explains that once Hillel enacted Pruzbul for his generation, he set a precedent for any powerful Beis Din to institute Pruzbul for its generation where deemed necessary. When the Gemara says that Shmuel wanted to annul the enactment of Pruzbul, it means that he wanted to prevent Pruzbul from being re-enacted at any time, even by a future Beis Din. 
</p><p>
(b) The <b>RAN</b> explains that Hillel's enactment of Pruzbul was not limited to his generation. Rather, he enacted it for any generation which is <i>similar</i> to his generation insofar that people are unwilling to lend money because Shemitah will cancel their loans. Although Hillel's enactment did not apply to generations in which people <i>are</i> willing to lend money, the enactment remains in force until Beis Din determines the prevailing societal attitude towards lending, since we are unable to determine whether the generation has improved and that people are willing to lend money.
</p><p>
This is what Shmuel means when he says that he would annul the decree of Hillel: he would not literally annul it; rather, he would reveal that the decree does not apply to his generation.
</p><p>
(c) The <b>CHASAM SOFER</b> points out that according to <b>TOSFOS</b> (36a, DH Mi Ika), Hillel did not actually institute a new way to prevent Shemitah from canceling a debt. Rather, when a person makes a Pruzbul, mid'Oraisa his debt will not be canceled by Shemitah since he has given his loans to Beis Din. Hillel's enactment was simply to encourage people to write a Pruzbul and thereby prevent Shemitah from canceling their loans.
</p><p>
According to this explanation, Shmuel does not mean that it is necessary to annul Hillel's enactment, but that he wants to prevent people from continuing the practice of giving their loans to Beis Din so that Shemitah <i>will</i> be able to cancel their loans. 
</p><p>
(d) The <b>MOSHAV ZEKENIM</b> (Parshas Vayigash) and <b>SHIBOLEI HA'LEKET</b> (2:49) cite the Gemara in Beitzah (5a) which says that if an enactment was made for a certain purpose, even if the purpose no longer applies the enactment remains in force until Beis Din repeals it.
</p><p>
They point out that when a later Beis Din repeals an enactment which no longer applies, it is not necessary for that Beis Din to be greater than the original Beis Din in Chochmah and Minyan. Hence, the later annulment of the enactment of Pruzbul -- although it was originally made only for Hillel's generation -- needs a Beis Din, but since it no longer applies it does not need a Beis Din which is greater in Chochmah and Minyan than the original Beis Din which instituted the enactment.
</p><p>
The Shibolei ha'Leket points out that this Gemara proves that even an enactment which was enacted originally with a specific time limit cannot be repealed unless Beis Din actually convenes and repeals it. This is in contrast to the opinion of most Rishonim (see <b>TOSFOS</b> to Beitzah 5a and Sanhedrin 69b, and see Insights to Beitzah 5:2).
</p><p>
Perhaps even according to the other Rishonim, Hillel did not specify that the enactment should be revoked when his generation passes. Rather, the Gemara means that Hillel specified that the enactment was made only because people were not lending money. Since he did not give the enactment a set amount of time, many Rishonim agree that a second Beis Din must convene and formally repeal it.
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PRUZBUL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> What does the word Pruzbul mean?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Rav Chisda):</font></b> Prus (an enactment for) Buli and 
          Buti (rich and poor).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Buli are the rich, like Rav Yosef taught.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Yosef):</font></b> 'I will break your strength' 
                    refers to the Buli of Yehudah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Buti are the poor - 'Ha'avet Ta'aViTenu (you will 
               lend to him).'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2:</font></b> A non-Hebrew speaker told Rabah that 'Pruzbul' 
          denotes an enactment.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> Orphans do not need a Pruzbul.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rami bar Chama):</font></b> This is because R. Gamliel and his Beis 
          Din are like the father of orphans (they enacted as if 
          orphans automatically have a Pruzbul).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Pruzbul may be written on a loan only if the 
          borrower has land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he has no land, the lender gives him a tiny piece 
               of his land.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> How small can it be?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (R. Chiya bar Ashi):</font></b> It must be the size of a 
               cabbage stalk.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> Even if the borrower borrowed place to put 
          a stove (in a Chatzer (courtyard), Pruzbul may be written 
          on this.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> (An Amora named) Hillel taught a Beraisa saying 
          that we write Pruzbul on a flowerpot only if it has holes 
          (for then it is considered attached to the ground).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> One may not write Pruzbul on a flowerpot 
               without a hole!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even though he has a place to put it, this is not 
               enough. (Why is an oven different?!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, the flowerpot is on pegs. (He has no 
          rights to the place it rests over.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  Rav Ashi gave to a borrower a stump of a palm tree, and 
          wrote a Pruzbul.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  The Rabanan of Rav Ashi's Beis Medrash recited the text 
          of Pruzbul in front of each other (without writing it).
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  R. Yonason recited it in front of R. Chiya bar Aba.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> This is sufficient.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If the borrower has no land but the Arev 
          (guarantor) has land, Pruzbul may be written;
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  If neither the borrower nor the Arev has land, but 
          someone who owes money to the borrower has land, Pruzbul 
          may be written, due to R. Nasan's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Nasan):</font></b> 'He will give to the one to 
               whom is Asham (the principal)' - if Reuven owes 
               Shimon and Shimon owes Levi, we take money from 
               Reuven to pay Levi.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHICH LOANS ARE CANCELLED IN SHEMITAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Shemitah cancels a loan, whether or not a 
          document was written on the loan.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav and Shmuel):</font></b> 'A document was written on the loan' 
          refers to a document with Acharayus (it gives rights to 
          collect from property sold after the loan was given);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'A document was not written on the loan' is when 
               there is a document without Acharayus, and all the 
               more so (Shemitah cancels) a Milveh Al Peh (a loan 
               without any document).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (R. Yochanan and Reish Lakish):</font></b> 'A document was written 
          on the loan' refers to a document without Acharayus. 'A 
          document was not written on the loan' refers to a Milveh 
          Al Peh;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there is a document with Acharayus, the loan is 
               not cancelled.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Support (Beraisa #1):</font></b> Shemitah cancels a loan document. 
          If it has Acharayus, it is not cancelled.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Beraisa #2):</font></b> If the borrower designated a field that 
          will be used to pay the loan, the loan is not cancelled 
          in Shemitah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even if the borrower wrote 'all my property is like 
               an Arev, and may be used to pay the loan', the loan 
               is not cancelled.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  R. Asi's relative had a document in which Acharayus was 
          written.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Asi:</font></b> The loan is not cancelled is Shemitah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The lender went to R. Yochanan, who said that the 
               loan is cancelled in Shemitah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> The lender:</font></b> You taught that it is not cancelled!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> Should we act upon my reasoning and 
               comparisons?!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> The lender:</font></b> A Beraisa supports you!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> Perhaps that Beraisa is like Beis 
               Shamai, who consider a document ready to be 
               collected as if was collected already.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one lent money and took a security, or 
          handed over his documents to Beis Din, the loan is not 
          cancelled in Shemitah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> We understand that if he handed over his 
          documents to Beis Din, they are holding the debt, so it 
          is not cancelled;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When he lent and took a security, why isn't the loan 
               cancelled?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> It is as if he is holding the payment.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> According to this, also if the lender 
          lodges in the borrower's Chatzer, we should say that the 
          loan is not cancelled!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> A loan with a security is different, for 
          the lender acquires a security, like R. Yitzchak taught:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yitzchak) Question:</font></b> 'To you (the lender) it will 
               be Tzedakah (to return the security)' - if the 
               lender does not own it, why is returning it called 
               Tzedakah?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, this shows that the lender acquires 
               the security.
<br>
<br>

sjt:
<font><b>1) ACCEPTING REPAYMENT OF ONE'S LOANS AFTER SHEMITAH CANCELS THEM</b></font><b>
<br>OPINIONS:</b> The year of Shevi'is cancels all outstanding debts. The Mishnah in Shevi'is teaches that if a borrower desires to repay the debt even though he is not obligated to, the lender must say, 'Meshamet Ani.' If the borrower insists that he wants to return the money nonetheless and says, 'Even so [I want to return it]', the lender may accept it. The Gemara here adds that the lender may 'hang him until he says this' ('v'Tali Lei Ad d'Amar Hachi').
</p><p>
What does the Gemara mean?
</p><p>
(a) <b>RASHI</b> explains that if the borrower does not offer immediately to pay back the loan (even though Shemitah canceled it), the lender may 'hang him' and force him to say that he wants to pay back the debt despite the fact that Shemitah canceled it.
</p><p>
The <b>ROSH</b> and Rishonim ask that according to Rashi's explanation, how will Shemitah ever cancel a debt? If the lender has the right to force the borrower to pay him back, Shemitah is entirely ineffective!
</p><p>
The <b>TOSFOS RID</b> (and <b>BACH</b>, CM 67) explain that Rashi distinguishes between the original cancellation of the debt (before the borrower attempts to pay it back despite Shemitah) and the second cancellation of the debt (when the lender says 'Meshamet Ani' after he is offered repayment despite Shemitah). If the borrower never offers to repay the debt, the debt is canceled and the lender has no right to ask for it. Once the borrower offers to repay the debt, however, the lender is required only to say the words, 'Meshamet Ani'; after he says those words, he may take any measure to collect the loan.
</p><p>
It seems that according to Rashi, when the borrower offers to repay the loan despite Shemitah, he is acknowledging that he does not want Shemitah to affect his debt. A person has the right to forfeit the Hashmatah of debts which takes effect during Shemitah. Therefore, as soon as he says that he wants to pay, the debt remains as it was originally. Although the lender is still prohibited from openly claiming the repayment of the loan, he may force the borrower to say that he wants to repay the loan despite Shemitah, since the borrower actually owes him the money. (Perhaps the Mitzvah to say 'Meshamet Ani' and not to claim the debt outright is only a requirement mid'Rabanan instituted because of 'Mar'is ha'Ayin.')
</p><p>
(b) Many Rishonim disagree with Rashi. The <b>RAMBAN</b> in the name of the <b>ARUCH</b>, the <b>RASHBA</b> in the name of <b>RABEINU BARUCH</b>, the <b>ROSH</b> (4:9) and others explains that the term 'v'Tali Lei' does not mean that the lender may hang the borrower, but that he may wait expectantly ('hang his eyes [in expectation]' (Rosh), or 'hang out his hand' (Ramban)), showing the borrower that he is waiting to hear the borrower's offer to pay him back despite Shemitah. He is permitted to convey the message conspicuously to the borrower that he wants his money back. The Rosh cites support for this explanation from the Yerushalmi which says that when the lender says 'Meshamet Ani' he may stretch out his hands in a gesture showing that he is waiting for the money. The <b>RAMBAM</b> (Hilchos Shemitah v'Yovel 9:29) suggests a similar explanation.
</p><p>
(c) The <b>RA'AVAD</b> on the Rif (and cited by the Ramban) explains that the Gemara means that <i>after</i> the borrower says that he nonetheless wants to pay back, and the lender receives the money, he should not immediately put the money in his pocket. Rather, he should leave it hanging in front of him in order to show that he is reluctant to take it back, so that it not appear as though he is not canceling the debt full-heartedly.
</p><p>
According to this explanation, why did Rabah become upset at Aba bar Marsa when Aba bar Marsa did not say that he wants to repay the debt after Rabah said that he let Shemitah annul the debt? Even if Aba would have said that he wants to pay it, Rabah still should have shown reluctance. Aba was justified in not volunteering to repay the debt right away, and Rabah should have had no reason to be upset just because Aba did not offer to pay back the debt.
</p><p>
The Ra'avad answers that since Hillel had already instituted the enactment of Pruzbul, Rabah was acting beyond the letter of the law by letting Shemitah annul his debts. He did so as a Midas Chasidus and not because the Torah required it. Therefore, he was not required to be 'Toleh' the money. Rather, he was allowed to take the money back immediately, and even to become upset at Aba for not offering to give it back to him on his own accord. 
</p><p>


<font><b>2) BUYING A CAPTURED SLAVE FROM HIS CAPTORS</b></font><b>
<br>QUESTION:</b> The Mishnah records a dispute with regard to the law of an Eved Kena'ani who was ransomed from captives. The Tana Kama differentiates between a case in which the redeemer ransomed the Eved with intention that he remain an Eved (in which case he remains an Eved) and a case in which the redeemer ransomed the Eved with intention that the Eved go free (in which case he goes free). Raban Shimon ben Gamliel disagrees and says that in either case, the Eved goes free.
</p><p>
In the Gemara, Abaye and Rava disagree about the nature of the Mishnah's case. Abaye says that the Mishnah refers to a redeemer who ransoms an Eved <i>before</i> the Eved's owner despairs ('Ye'ush') of ever getting his Eved back. Therefore, when one ransoms the Eved with intention that he remain an Eved, the Eved goes back to the original owner. When one ransoms the Eved with intention that he go free, he does not become the redeemer's Eved, because the redeemer ransoms him on condition that he go free. He does not go back to the original owner (even though he was redeemed before Ye'ush) because of an enactment the Rabanan made lest people refrain from redeeming slaves. Raban Shimon ben Gamliel says that in either case the Eved goes back to the original owner (since he was ransomed before Ye'ush), because he maintains that it is a Mitzvah to ransom slaves just as it is a Mitzvah to ransom free people (and thus there is no need for an enactment).
</p><p>
Rava says that the Mishnah refers to a redeemer who ransoms an Eved <i>after</i> the owner's Ye'ush. Therefore, if he ransoms the Eved with intention that he go free, he goes free because the original owner had Ye'ush. He does not work for the redeemer because he redeemed him in order to set him free. If the redeemer ransoms him with intention that he remain an Eved, he becomes the <i>redeemer's</i> Eved. Raban Shimon ben Gamliel says that in either case he remains an Eved, because he rules like Chizkiyah who taught that this enactment was made in order that slaves not cause themselves to become captured in order to become freed from their masters when ransomed.
</p><p>
The Gemara questions Rava's explanation of the Mishnah. In order for the redeemer to acquire the Eved from the captors when he ransoms him, the captors must have acquired possession of the Eved. Otherwise, they have no legal right to sell him to anyone else. The Gemara thus discusses whether a Nochri can acquire another Nochri as an Eved.
</p><p>
Why does the Gemara ask this question only on Rava? The same question applies equally to the explanation of Abaye! Abaye says that the Tana Kama maintains that the Eved returns to the original owner only because he was ransomed before the original owner had Ye'ush. If he would have been ransomed <i>after</i> Ye'ush, the Tana Kama would agree that he becomes the Eved of the redeemer, as Rava says. The only point of dispute between Abaye and Rava is the enactment of Chizkiyah: Abaye asserts that Raban Shimon ben Gamliel maintains that there is no such Takanah, while Rava argues that Raban Shimon ben Gamliel maintains that there <i>is</i> such a Takanah. Why does the Gemara ask its question about the captors' ownership of the Eved only according to Rava?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> gives two answers. In his first answer, he writes that it is true that Abaye agrees with Rava that according to the Tana Kama, after the owner's Ye'ush the Eved would belong to the redeemer. However, since it is Rava who explicitly states that Halachah, the Gemara chooses to focus the question on Rava. The same question applies equally to Abaye as well.
</p><p>
(b) In his second answer, the Ritva writes that Abaye argues with Rava in this regard as well. Abaye maintains that if the redeemer ransoms the Eved after Ye'ush of the original owner, the redeemer does <i>not</i> acquire the Eved for himself because the captors <i>cannot</i> acquire ownership of the Eved. Rather, the Eved is set free once he is redeemed. Abaye argues with the conclusion of the Gemara later (38a) which cites a verse to prove that a Nochri can own another Nochri as an Eved. (Regarding why Abaye argues, see Insights to 38a.)
</p><p>


<font><b>3) WHO ACQUIRES A RANSOMED SLAVE</b></font><b>
<br>QUESTION:</b> Rava asserts that the Tana Kama of the Mishnah maintains that when one ransoms an Eved with intention that he remain an Eved, the Eved becomes the property of the redeemer (see previous Insight). The Gemara asks how the redeemer can acquire ownership of the Eved from the captors if the captors themselves did not own the Eved. The Gemara answers that the captors indeed owned the Eved. Presumably, the captors acquired the Eved after his original owner despaired ('Ye'ush') of ever getting him back and thereby relinquished his ownership of the Eved. The Gemara then proves that it is possible for a Nochri to own another Nochri as an Eved.
</p><p>
Why do the <i>captors</i> acquire ownership of the Eved after the original owner's Ye'ush? The Eved should acquire <i>himself</i> (and become free) after the Ye'ush of the owner at that point! The Gemara later (38a) teaches that an Eved acquires himself and goes free in a case where he escapes from prison after the Ye'ush of his owner. In that case, although no apparent act of Kinyan is made for the Eved to acquire himself, he nevertheless goes free by virtue of the fact that he conducts himself like a free person; that conduct is a form of Kinyan to acquire himself. Why, when the Eved is taken away from his master by captors, does he not acquire himself in the same way, since he is no longer acting as an Eved for his master?
</p><p>
<b>ANSWERS:</b>
<br>(a) Escaping from prison and thereby acquiring himself as a free man, and being taken into captivity away from one's master, differ fundamentally. When an Eved is taken into captivity, although he is no longer working for his master, the fact that he is in captivity is inherently antithetical to acquiring himself as a free man. To make an act of acquisition over an object, or over oneself in the case of an Eved, the person must demonstrate control and independence. An Eved who was captured cannot acquire himself while in captivity because he has no control or independence. In such a case it is impossible for the Eved to make a Kinyan on himself. (See <b>PNEI YEHOSHUA</b> for a similar approach.)
</p><p>
(b) The <b>IMREI MOSHE</b> (23:8, based on Tosfos to Bava Kama 69a, DH Kol) attempts to prove from here that the principle that an owner's Ye'ush enables someone else to acquire the object of the Ye'ush entitles only the <i>thief</i> himself to obtain ownership of the object that he stole. The owner's Ye'ush does <i>not</i> allow anyone else to acquire the object. Hence, only the captors (the thieves) can acquire the Eved, but not the Eved himself.
</p><p>
(c) The <b>RASHBA</b> maintains that the captors do not need the Ye'ush of the original owner in order to acquire the Eved. Since they <i>captured</i> the Eved and did not merely <i>steal</i> him (as the Gemara later (38a) differentiates), the act of capturing is powerful enough to acquire the Eved immediately, even before the original owner's Ye'ush. The Eved, therefore, cannot acquire himself before the captors acquire him, because in order to acquire himself he needs the Ye'ush of the original owner, but by the time the owner had Ye'ush the Eved was already acquired by the captors.
</p><p>


lvr: 36
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE WHO WANTS TO REPAY A LOAN THAT WAS CANCELLED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Reuven returns a debt to Shimon in Shemitah 
          (i.e. after Shemitah, in a period when Shemitah applies), 
          Shimon must say 'I refrain (from collecting)';
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If Reuven says 'even so, I want to repay', Shimon may 
          take the money.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  We learn this from 'this is the matter (word) of 
          Shemitah' (one must say that he refrains from 
          collecting).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Rabah):</font></b> Shimon may hang (coerce) Reuven until Reuven 
          says that he wants to repay anyway.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Abaye - Beraisa):</font></b> When Reuven pays, he may not 
          say 'I am paying the loan.' Rather, he says that it is a 
          gift.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Rabah):</font></b> Yes! Shimon hangs Reuven until he says 
          this.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Aba bar Minyomi owed money to Rabah; he brought it to him 
          in Shemitah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabah:</font></b> I refrain.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  Aba took his money and left. Abaye noticed that Rabah was 
          sad; Rabah explained what happened.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye told Aba that he should have said that he 
               wants to pay anyway, and that he should now return 
               the money and say this. Aba did so.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabah:</font></b> He did not know enough to do so the first 
               time.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>IS ONE BELIEVED TO SAY THAT HE WROTE A PRUZBUL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> One is believed to say that he wrote a 
          Pruzbul, but it was lost.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Once Pruzbul was enacted, a lender can always 
          collect his loan legally. One will not abandon a 
          permitted way to achieve something and do it in a 
          forbidden manner.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  When lenders came before Rav, he would ask 'perhaps you 
          had a Pruzbul, and lost it?'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is a case when we open the mouth of a mute 
               (suggest a claim for one who does not know what he 
               should say).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Mishnah):</font></b> Also, if a creditor presents a loan 
          document without a Pruzbul, he does not collect.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Tana'im argue about this law:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a creditor presents a loan document, 
               he must have a Pruzbul to collect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he does not need a Pruzbul.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>A CAPTURED SLAVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Shimon's slave was captured, and Reuven 
          redeemed him:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he redeemed him l'Shem Eved (in order that he 
               should be a slave), he works like a slave;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he redeemed him l'Shem Ben Chorin (in order that 
               he should be free), he does not work.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Shimon ben Gamliel says, in either case, he works.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven redeemed him before Shimon despaired (of 
               getting back his slave) l'Shem Ben Chorin, surely he 
               works (for Shimon)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1:</font></b> We must say that he redeemed him after Shimon 
          despaired.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Objection:</font></b> If so, when he was redeemed l'Shem Eved, why 
          does he work?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (Abaye):</font></b> Really, he redeemed him before Shimon 
          despaired. If he was redeemed l'Shem Ben Chorin, he works 
          for Shimon. If he was redeemed l'Shem Ben Chorin, he does 
          not work for Reuven or Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He does not work for Reuven, since Reuven redeemed 
               him l'Shem Ben Chorin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He does not work for Shimon. This is an enactment, 
               lest people refrain from redeeming slaves.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon ben Gamliel says, in either case he works. 
               R. Shimon holds that it is a Mitzvah to redeem 
               slaves, just like it is a Mitzvah to redeem free 
               people (who were captured, so there is no need for 
               an enactment).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> Really, he redeemed him after Shimon 
          despaired. If he was redeemed l'Shem Eved, he works for 
          Reuven. If he was redeemed l'Shem Ben Chorin, he does not 
          work for Reuven or Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He does not work for Reuven, since Reuven redeemed 
               him l'Shem Ben Chorin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He does not work for Shimon, because Shimon already 
               despaired.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon says, in either case he works, like 
               Chizkiyah taught:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Chizkiyah):</font></b> He works in either case. This is 
                    an enactment, lest slaves present themselves to 
                    captors to escape their masters.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> R. Shimon ben Gamliel told Chachamim 
          'just like it is a Mitzvah to redeem free people, it is a 
          Mitzvah to redeem slaves.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, according to Abaye, this is why R. Shimon 
               says that there is no enactment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rava, R. Shimon's reason is like 
               Chizkiyah!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (for Rava):</font></b> R. Shimon did not know Chachamim's 
          opinion;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He said 'if you discuss before despair, just like...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If you discuss after despair, we make an enactment, 
               like Chizkiyah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> According to Rava, he was redeemed after 
          despair, and he works for Reuven. Reuven bought him from 
          the captors. Did the captors really own him?!
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO CAN OWN WHOM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer:</font></b> Yes, they owned him for his earnings!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> A Nochri can acquire a Nochri for 
               his earnings. It says 'also from the children of the 
               settlers who live with you, you may buy slaves' - 
               you (Yisrael) can buy Nochrim, but they cannot buy 
               you, nor can a Nochri buy another Nochri.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps a Nochri cannot acquire another 
               Nochri.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Indeed, Reish Lakish said that they 
                    cannot acquire one another!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> He meant that they cannot totally 
                    acquire one another. We suggest that perhaps 
                    they cannot acquire one another even for 
                    earnings.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> A Nochri can acquire a Yisrael for his 
               earnings (a Yisrael can sell himself to be a slave 
               'l'Eker Mishpachas Ger'), all the more so, one 
               Nochri can acquire another for his earnings!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps they acquire one another only 
               through money, but not through conquest.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection (Rav Papa):</font></b> (Yisrael were forbidden to 
               fight Amon and Mo'av.) Sichon's conquest of (parts 
               of) Amon and Mo'av allowed Yisrael to take those 
               lands.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> This shows that a Nochri can acquire a 
               Nochri (through conquest). What is the source that a 
               Nochri can acquire a Yisrael?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> 'They took a captive from us.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SLAVES WHO WERE CAPTURED AND REDEEMED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Shemen bar Aba, citing R. Yochanan):</font></b> A slave who 
          escaped from prison goes free. In fact, we force the 
          master to write a document of freedom.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (Mishnah - R. Shimon ben Gamliel):</font></b> In either 
          case, the redeemed slave works like a slave.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> Wherever R. Shimon ben Gamliel 
               appears in a Mishnah, the Halachah follows him, with 
               only three exceptions: the Mishnayos about an Arev, 
               the divorce in Tzidon, and one who found a proof 
               after he lost a monetary judgment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yochanan contradicts himself!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> Abaye established the Mishnah to be before 
          despair. He can answer that R. Yochanan discusses 
          escaping from prison after the master despaired.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  Rava established the Mishnah to be after despair. How can 
          he resolve the contradiction?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Rava explained that R. Shimon's reason is 
          Chizkiyah's enactment (lest slaves present themselves to 
          captors to escape their masters. It does not apply to one 
          who escapes from prison);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who escapes risks his life. He would not 
               willingly get captured!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Shmuel's Shifchah (female slave) was captured. Others 
          redeemed her l'Shem Shifchah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The redeemers told Shmuel 'we hold like R. Shimon 
               ben Gamliel. Even if you hold like Chachamim, she 
               remains a slave because we intended for this!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They assumed that Shmuel had not yet despaired. 
               Really, he had already despaired.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Shmuel not use her like a slave. Further, he even ruled 
          that she needs no Get of freedom!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Shmuel taught, that if one declares his 
               slave to be ownerless, the slave goes free and needs 
               no Get of freedom. He learns from 'any slave of a 
               man.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Does the verse exclude the slave of a 
                    woman?!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> Rather, it teaches that only a slave 
                    who has a master is a slave. If no master has 
                    authority over him, he is not a slave.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FREEING SLAVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  R. Aba bar Zutra's Shifchah was captured. A Nochri from 
          Tarmud redeemed her, to take her for a wife. Yisre'elim 
          sent to R. Aba that the proper thing to do is to send to 
          her a Get of freedom.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What was the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they can buy her back from the Nochri, why must 
               he send a Get?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they cannot her back, how will a Get help?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> The Nochri was willing to sell her. The 
          community would redeem her only if R. Aba sent a Get.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2:</font></b> The Nochri was unwilling to sell her, but if 
          R. Aba sent a Get (the Nochri would know that she used to 
          be a slave, and) she would be disgraced in the Nochri's 
          eyes, and he would agree to sell her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> We learned that Nochrim desire animals of 
          Yisrael (for Bi'ah) more than their own wives! (All the 
          more so, they desire our slaves!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> That is in secret. If it becomes known, they are 
          disgraced.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Men were sinning with a Shifchah in Pumbadisa.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Abaye:</font></b> If not for Rav Yehudah's law, that one who frees a 
          slave transgresses a Mitzvas Aseh (positive Mitzvah), I 
          would force the master to free her.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Ravina:</font></b> Rav Yehudah admits that one may free a slave to 
          prevent transgressions.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> Does Abaye really argue about this?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chinena bar Rav Ketina):</font></b> A case occurred in 
               which Chachamim forced a master to free his half-
               Shifchah.
<br>
<br>

sjt:
<font><b>1) THE PROOF THAT A NOCHRI MAY MAKE A KINYAN THROUGH AN ACT OF CHAZAKAH</b></font><b>
<br>QUESTION:</b> The Gemara asserts that Nochri captors acquire ownership of the Eved Kena'ani whom they capture. The Gemara proves that a Nochri can acquire another Nochri as his Eved through a Chazakah (performing an act that shows his ownership). The Gemara derives this through three stages.
</p><p>
In its first stage, the Gemara proves from a Kal va'Chomer that a Nochri can acquire the rights to the labor ('Ma'aseh Yadav') of his fellow Nochri (although he cannot acquire the actual body of the person): if a Nochri can own the 'Ma'aseh Yadav' of a Jew (as the Torah states in Vayikra 25:47), certainly he can own the 'Ma'aseh Yadav' of a Nochri.
</p><p>
In its second stage, the Gemara proves from a verse that a Nochri can make a Kinyan through an act of Chazakah and does not need to give a monetary payment in order to make a Kinyan: the verses (Bamidbar 21:23, 21:26, Shoftim 11:13) show that Sichon's conquest (through Chazakah) of parts of the lands of Amon and Moav enabled Yisrael to take those lands.
</p><p>
In its third stage, the Gemara proves that an act of Chazakah not only enables a Nochri to acquire land or another Nochri, it enables a Nochri to acquire a Yisrael as well: the verse, '... he took captives from [Yisrael]' (Bamidbar 21:1), shows that the Canaanite king of Arad acquired slaves from Yisrael by capturing them (see Rashi on the verse).
</p><p>
Why is it necessary for the Gemara to mention the first two proofs? The Gemara should immediately cite the verse, 'he took captives...,' which clearly proves that a Nochri can acquire an Eved Kena'ani of a Jew through a Chazakah!
</p><p>
<b>ANSWER:</b> If not for the verse which mentions Sichon's conquest of the lands of Amon and Moav, the verse of 'he took captives...' would prove nothing, because no act of acquisition is stated explicitly in that verse. Only after the Gemara shows that the verse of Sichon's conquest proves that a Nochri can make a Kinyan through an act of Chazakah can the Gemara prove that the verse of 'he took captives...' refers to an act of acquisition through Chazakah as well.
</p><p>
Why, then, is the first proof (the Kal va'Chomer) necessary? It should suffice to cite the proof which describes the conquest of Sichon, which shows that a Nochri can make a Kinyan through an act of Chazakah, and the second proof which shows that Chazakah is also effective in acquiring an Eved.
</p><p>
The answer is that without the Derashah of 'me'Hem,' one would have assumed that a Nochri can acquire even the body of another Nochri. The Derashah of 'me'Hem' is needed to show that a Nochri cannot own another Nochri's body. The Gemara then derives from the Kal va'Chomer that he can at least own another Nochri for his 'Ma'aseh Yadav.' (See <b>TOSFOS</b>, DH Dichtiv, and <b>TOSFOS HA'ROSH</b>.)
</p><p>


<font><b>2) SICHON'S KINYAN THROUGH AN ACT OF CHAZAKAH</b></font><b>
<br>QUESTION:</b> The Gemara asserts that Nochri captors acquire ownership of the Eved Kena'ani whom they capture. The Gemara proves that a Nochri can acquire another Nochri as his Eved through a Chazakah (performing an act that shows his ownership). (See previous Insight.) The Gemara proves that a Nochri can make a Kinyan through an act of Chazakah and his Kinyan does not require a monetary payment from the verses (Bamidbar 21:23, 21:26, Shoftim 11:13) which discuss Sichon's conquest (through Chazakah) of parts of the lands of Amon and Moav.
</p><p>
How does the Gemara prove that a Nochri has the ability to acquire an Eved from the verse of Sichon? That verse refers to the <i>lands</i> of Amon and Moav, and not to the <i>people</i> of Amon and Moav!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Amon) explains that the Gemara assumes that just as Sichon conquered the lands of Amon and Moav and acquired them through Chazakah, he also captured as slaves the people of Amon and Moav and acquired them through Chazakah.
</p><p>
(b) The <b>RASHBA</b> explains that the only point the Gemara wants to prove at this stage is that it is possible for a Nochri to make a Kinyan <i>Chazakah</i>. Once the Gemara proves that a Nochri can make a Kinyan through an act of Chazakah, it assumes that he may apply this power of acquisition to anything. This also seems to be the intention of <b>RASHI</b> (DH b'Chazakah).
</p><p>


<font><b>3) THE ACT OF A CHAZAKAH</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the acquisition of an Eved or land through an act of Chazakah. To what type of act does the Gemara refer?
</p><p>
(a) <b>RASHI</b> and the <b>RAN</b> understand that 'Chazakah' here refers to its usual meaning, an act that shows ownership. With regard to the purchase of land, it refers to an act of guarding the land from trespassers as an owner would do. With regard to the purchase of an Eved, it refers to an act of using the Eved for personal service (such as dressing and bathing the new owner) as an owner would do.
</p><p>
(b) <b>TOSFOS</b> and the <b>RASHBA</b> disagree with Rashi and the Ran. They explain that this type of Kinyan would not suffice to effect a transfer of ownership. Instead, they explain that 'Chazakah' here refers to a new type of Kinyan: conquest through war ('Kivush Milchamah'). Conquering someone or something is a powerful enough act in itself to transfer ownership from the conquered to the conqueror, and the conqueror becomes the new owner.
</p><p>
(According to Rashi and the Ran, a Nochri can purchase an Eved and acquire ownership through any type of Chazakah, provided that the owner agrees to transfer his ownership. In contrast, according to Tosfos and the Rashba, the only way a Nochri can acquire an Eved is in the case of the Mishnah -- where the Eved was captured.)
</p><p>
According to Tosfos and the Rashba, does a Nochri acquire ownership of an Eved only through the Chazakah of conquest of war, or can he acquire an Eved through capturing him in other ways, such as kidnapping him?
</p><p>
The <b>CHAZON ISH</b> (147:11) writes that any act which the government permits is considered 'Kivush,' conquest. The ruling powers of most countries of Nochrim permit acquiring things through conquest and military victory. Theft, on the other hand, is an act of taking without permission, and thus an act of capturing an Eved through theft would not be considered a valid Kinyan.
</p><p>


<font><b>4) A SLAVE WHO ESCAPES FROM CAPTIVITY</b></font><b>
<br>QUESTION:</b> Rav Shaman bar Aba says in the name of Rebbi Yochanan that an Eved who escapes from prison acquires himself and goes free. Assuming that his captors (who imprisoned him) are his new owners (as the Gemara earlier establishes), how does the slave acquire his ownership (and his freedom) from them by escaping from captivity?
</p><p>
<b>ANSWERS:</b>
<br>(a) The captors presumably despaired ('Ye'ush') of finding the Eved and getting him back. Consequently, the Eved acquires himself after his owners' Ye'ush.
</p><p>
(b) The <b>RASHBA</b> explains (according to his own reasoning earlier; see previous Insight) that the captors acquired the Eved through the mere act of capture and conquest. Hence, by freeing himself from that conquest or, in other words, by performing a 'counter-conquest,' the Eved is able to acquire himself. Therefore, the 'battle for freedom' that the Eved undertakes (and in which he is victorious) is considered a valid act of Chazakah to acquire himself. 
</p><p>


<font><b>5) GIVING A 'GET SHICHRUR' TO A SLAVE WHO IS ALREADY FREE</b></font><b>
<br>QUESTION:</b> Rav Shaman bar Aba says in the name of Rebbi Yochanan that an Eved who escapes from prison acquires himself and goes free. Moreover, Beis Din forces his master to write for him a Get Shichrur.
</p><p>
If the Eved goes free as a result of his act of escaping from prison, why is it necessary for his master to give him a Get Shichrur?
</p><p>
<b>ANSWER:</b> The state of being an Eved Kena'ani involves two elements. The first element is the monetary ownership of the Eved. An Eved does not have monetary ownership of himself; he is the possession of his master. The second aspect is his status with regard to Isurim and Mitzvos. He is obligated to fulfill certain Mitzvos (like a woman), and yet he is prohibited from marrying a Jewess. With regard to both the status of his monetary ownership and the status of his Isurim he is considered in the domain of his master, since both of these elements are the results of the acquisition that his owner made on him.
</p><p>
Rebbi Yochanan maintains that 'Ye'ush' (when the owner despairs of getting his Eved back) frees the Eved only from the monetary domain of his master. Freedom from the status of an Eved with regard to Isurim is obtained only through a Get Shichrur. This seems to be the intent of <b>RASHI</b> who writes that the Eved, when he escapes, goes free 'from further working for his master' (DH Yatza l'Cherus), and that the master must give a Get Shichrur to the Eved 'in order to permit him to marry a Jewess' (DH v'Kosev Lo Get).
</p><p>
Shmuel (later in the Gemara) argues and maintains that the act of Hefker makes the Eved completely free and he does not need a Get Shichrur.
</p><p>
This concept, that the master of an Eved Kena'ani owns the Eved with regard to two different matters, monetary and Isur, answers another question in the Sugya. The Gemara later relates an incident involving a Shifchah Kena'anis with whom unscrupulous men were performing immoral acts. Abaye declared that if not for the prohibition against freeing an Eved (or Shifchah) Kena'ani, he would force the owner to free her so that she could marry a Jew who would watch over her. 
</p><p>
Abaye's words, however, seem to contradict the Gemara earlier, in which Rebbi Yochanan states that Beis Din forces a master to free his Eved who escaped from prison. If, as Abaye says, freeing an Eved Kena'ani is prohibited, why does Rebbi Yochanan require a master to free his Eved who escaped from prison?
</p><p>
The answer is that the prohibition against freeing an Eved is based on the verse, 'You will work with them forever' (Vayikra 25:46), as the Gemara says (38b). In the case of the Eved who escaped from prison, the Eved was no longer in the domain of the master with regard to his monetary ownership (since the master already despaired, with 'Ye'ush,' of ever getting him back). The only element of ownership that the original owner still retains is the Isurim of the Eved. Since the ownership of the Eved with regard to his Isurim does not entitle the original owner to make the Eved work for him, the requirement that 'you will work with them forever' does not apply. Therefore, the master may free him and does not transgress the prohibition. (See <b>MINCHAS CHINUCH</b> #347, based on <b>TOSFOS</b> DH Kol.)
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman bar Yitzchak):</font></b> The case was, men were 
               freely sinning with her.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> Abaye agrees that we may free a slave if that is 
          the only way to stop transgression;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Chinena's case was different. A half Shifchah is 
               forbidden to slaves and to free men. A full Shifchah 
               may be paired with a male slave, and he will stop 
               others from sinning with her.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> One who frees a slave transgresses an Aseh 
          - 'forever you will make them work for you.'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> A case occurred in which R. Eliezer 
          found only nine men in a Beis ha'Keneses, and he freed 
          his slave to complete the Minyan.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Yehudah admits that one may free his slave 
          for the need of a Mitzvah.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (Beraisa - R. Yishmael):</font></b> 'Forever they will work for you' 
          is optional;
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  R. Akiva says, this is an obligation.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Question (against answer (n)):</font></b> Perhaps R. Eliezer holds 
          like R. Yishmael, that there is no obligation to work 
          with slaves!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer (Beraisa - R. Eliezer):</font></b> It (making slaves work for 
          you) is an obligation.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  (Rabah):</font></b> People lose their property for three 
          transgressions: freeing their slaves, perusing their 
          possessions on Shabbos, and fixing their meal on Shabbos 
          at the time of the lecture in the Beis Medrash.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> There were two families in 
               Yerushalayim that were uprooted. One fixed meals on 
               Erev Shabbos, the other, on Shabbos day (at the time 
               of the lecture).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO MAKES HIS SLAVE HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Version #1 (Rabah citing Rav):</font></b> If one declares his slave 
          to be Hekdesh, the slave goes free.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> The slave's body cannot become Kodesh. The master 
          didn't say he is Mekadesh only his value. The only 
          explanation is, he means that the slave should become 
          part of the holy nation (through freedom).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Version #2 (Rav Yosef citing Rav):</font></b> If one declares his 
          slave to be Hefker, the slave goes free.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rabah says that he goes free even when he was 
               declared Hekdesh, and all the more so, if he was 
               made Hefker.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Yosef says that he goes free when he was made 
               Hefker, but not if he was declared Hekdesh. Perhaps 
               the master made his value Kodesh.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Does the slave need a Get of freedom?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (R. Chiya bar Avin citing Rav):</font></b> In either case he 
          goes free and requires a Get of freedom.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Rabah (against his own teaching) - Beraisa #1):</font></b> 
          If one makes his property Hekdesh, and it includes 
          slaves, the treasurers of Hekdesh may not free them. 
          Rather, they may sell them to buyers that will free them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi says, the slave can give his own value to buy 
               freedom his, for this is like selling the slave to 
               himself.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> One cannot refute Rav from a Beraisa. Rav is a 
          Tana, and he can argue against a Beraisa!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question (Beraisa #2):</font></b> 'Any Cherem (a form of Hekdesh)... 
          from people' includes Kena'ani slaves (they do not go 
          free)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, he explicitly was Makdish their 
          value.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> Why didn't we give this answer to Beraisa #1?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #1:</font></b> Beraisa #1 said that the treasurers cannot set 
          them free. If he was Makdish only their value, the 
          treasurers have nothing to do with the slaves! (Their 
          claim is only on the master to pay the slaves' value.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer #2:</font></b> Beraisa #1 said that the treasurers can sell 
          them to others, who will set them free. The others cannot 
          free them (if he was Makdish their value, for the 
          treasurers had no authority to sell them)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #3 (Seifa of Beraisa #1 - Rebbi):</font></b> The slave can 
          pay his own value to go free, for this is like selling 
          him to himself.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was Makdish their value, the treasurers have 
               no authority to sell him!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question (Beraisa #3):</font></b> One who makes his slave Hekdesh, 
          the slave works and is fed from the earnings, for only 
          his value was made Hekdesh.
<br>

sjt:
<p>
<font><b>6) HALACHAH: SUSPENDING A PROHIBITION IN ORDER TO PERFORM A MITZVAH</b></font><b>
<br>OPINIONS:</b> The Gemara (38a) relates an incident involving a Shifchah Kena'anis with whom unscrupulous men were performing immoral acts. Abaye declared that if not for the prohibition against freeing an Eved (or Shifchah) Kena'ani, he would force the owner to free her so that she could marry a Jew who would watch over her. The Gemara here questions Abaye's ruling. Another incident occurred in which a maidservant who was half-free and half-Shifchah (that is, she was owned in partnership by two owners, and one of them freed his share in her) was involved in immoral acts, and the Rabanan forced her owner to free her in order to prevent further sinful acts from being done with her. The ruling of the Rabanan in that case clearly contradicts the ruling of Abaye.
</p><p>
The Gemara answers that in Abaye's case, there was another possible option, besides freeing her, which would have put an end to the sinful acts being done with her. Since she was a full Shifchah, her owner could marry her off to an Eved. In the case of the half-Shifchah, though, she could not marry an Eved (because of the part of her that was half-free), and therefore the Rabanan had no choice but to force her master to free her.
</p><p>
The Gemara records another incident in which the Rabanan permitted an Eved Kena'ani to be freed. Rebbi Eliezer freed his Eved in order to obtain a tenth Jewish man for a Minyan. The Gemara says that in order to perform a Mitzvah (prayer with a Minyan), freeing an Eved is permitted. 
</p><p>
Does this imply that one is permitted to transgress a prohibition (or at least a prohibition derived from a positive commandment) in order to fulfill a Mitzvah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> proves from here that the prohibition against freeing an Eved Kena'ani is only an Isur <i>d'Rabanan</i>, which the Rabanan permitted under certain circumstances (such as to perform a Mitzvah d'Oraisa, and to prevent severe Isurim from being transgressed). The Ritva asserts that by no means may a Torah prohibition be transgressed in order to perform a Mitzvah. 
</p><p>
(b) The <b>RAMBAN</b> and other Rishonim explain that the prohibition against freeing an Eved Kena'ani is similar to the prohibition of 'Lo Sechanem' -- 'Do not show them (Nochrim) favor' (Devarim 7:2), which the Gemara (Avodah Zarah 20a) interprets as a prohibition against giving a gift to a Nochri. Freeing an Eved is considered giving a gift to him.
</p><p>
Since the prohibition against freeing an Eved is based on the prohibition against giving a gift to a Nochri, there are grounds to permit the owner to free his Eved, depending on his intention. If the master's intention is to do a favor for his Eved, freeing him is considered like giving him a present (and is forbidden). If the master wants to free his Eved for his (the master's) own purposes, such as to help himself or others fulfill a Mitzvah, the beneficiary is considered to be the master and not the Eved. 
</p><p>
(c) <b>TOSFOS</b> and the <b>RASHBA</b> explain that freeing an Eved for the sake of performing a Mitzvah is permitted only when that Mitzvah is a 'Mitzvah Rabah,' a great or special Mitzvah (such as preventing sins of immorality, enabling people to pray with a Minyan, or, as the Gemara mentions in Bava Basra 13a, to enable the fulfillment of the Mitzvah of 'Peru u'Revu').
</p><p>


<font><b>7) AGADAH: THREE SINS FOR WHICH ONE LOSES HIS WEALTH</b></font><b>
<br>QUESTION:</b> The Gemara teaches that as a result of three misdeeds, people lose their wealth: they release their slaves to freedom, they inspect their property on Shabbos, and they conduct their Shabbos meals during the Rav's lecture in the Beis ha'Midrash.
</p><p>
Why are these three sins in particular punished by a loss of one's wealth?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> explains how losing one's wealth is an appropriate, measure-for-measure punishment for each of these three sins.
</p><p>
1. Freeing one's Eved. When a person is blessed with material possessions, he must be careful to act properly with them, in accordance with Hashem's will. If he performs transgressions with them (in this case, by freeing his Eved), he loses the right to the possessions which Hash-m gave him and he causes those possessions to be taken away from him. 
</p><p>
2. Inspecting one's property on Shabbos. The Gemara in Shabbos (150b) implies that one who frees his mind from business matters on Shabbos will be blessed with riches. Here, the Gemara expresses the converse: by thinking about one's business matters on Shabbos, one loses his wealth.
</p><p>
3. Conducting one's Shabbos meal during the Rav's lecture in the Beis ha'Midrash. By not attending the weekly Shabbos lecture, one shows that worldly, physical pleasure is more important to him than Torah study. One who makes Torah study the primary part of his life and makes his physical needs secondary is assured of success with his livelihood. Conversely, one who makes his physical needs primary and his Torah study secondary will lose his wealth.
</p><p>
(b) The <b>IYUN YOSEF</b> finds a common denominator between these three sins. They all demonstrate a person's greed. A master does not free his Eved for no reason; it must be that the cost of upkeep of the Eved was not worth maintaining him, and therefore the master, out of greed, freed him. A greedy person might utilize Shabbos -- when one is free from having to work and being involved in business pursuits -- as an ideal time to inspect his properties so that he does not have to waste his valuable time during the rest of the week to do so. Similarly, a greedy person will conduct his Shabbos meals while everyone else is in the Beis ha'Midrash listening to the Rav's lecture. By conducting his meals at that time, the greedy person will avoid having to share his feast with poor people. Hash-m punishes such acts of greed by taking away a person's wealth.
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO MAKES HIS SLAVE HEKDESH (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer:</font></b> Beraisa #3 is like R. Meir, who holds that one 
          does not say empty words (to Hekdesh. Surely he intended 
          to give something to Hekdesh. It is difficult to say that 
          he meant his value, but we must say so.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Support (Seifa of Beraisa #3):</font></b> The same applies to one 
          who was Makdish himself. He works and eats, for he was 
          Makdish only his own value.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand this if the Beraisa is like R. Meir.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We can understand the Reisha like Chachamim, since a 
               slave can be sold.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Seifa cannot be like Chachamim. A free man 
               cannot be sold (so it is unreasonable to say he 
               meant his own value!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Suggestion:</font></b> Tana'im argue about Rabah's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one was Makdish his slave, Me'ilah 
               does not apply (to one who benefits from the slave);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, one who benefits from 
               the hair transgresses Me'ilah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Shimon holds that the slave becomes 
               Hekdesh, and Chachamim disagree.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection:</font></b> If so, why do they argue about Me'ilah? They 
          should argue explicitly about whether or not he is 
          Hekdesh!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, all agree that he becomes Hekdesh (to be 
               sold).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Suggestion:</font></b> They argue about the following. Chachamim 
          consider a slave to be like land, so Me'ilah does not 
          apply. R. Shimon holds he is not like land, so Me'ilah 
          applies.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> If so, they should argue about the slave. Why 
          do they argue about his hair?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Rather, all agree that slaves are like land. They argue 
          about whether or not hair that is destined to be cut is 
          considered as if it was cut;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel considers it as if it was cut. 
               Chachamim do not.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Suggestion:</font></b> They argue like the following Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> Some things are like land, but 
               are not treated like land. If Reuven claims 'I 
               entrusted you to guard 10 trees laden with fruit; 
               and Shimon admits to five, Shimon must swear (like 
               one who partially admits to a claim of Metaltelim 
               (movable objects));
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, whatever is connected to land is like 
               land (so he does not swear).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> They argue about grapes ready 
               to be harvested. R. Meir considers them as if they 
               were harvested, Chachamim do not.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Rejection:</font></b> The Chachamim who say there is no Me'ilah in 
          the hair could hold like R. Meir;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir considers only ripe grapes as if they were 
               harvested, because they get worse if left attached. 
               Hair improves if it is left to grow longer, so it is 
               not considered to be cut.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MAKING A SLAVE HEFKER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  R. Chiya bar Yosef told R. Yochanan about Rav's teaching 
          and this discussion on it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> Did Rav really say this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> R. Yochanan agrees!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Ula citing R. Yochanan):</font></b> If one was Mafkir his 
                    slave, he goes free and needs a Get of freedom.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #1 - Answer:</font></b> R. Yochanan was surprised that 
               Rav agrees with him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #2 - Answer:</font></b> R. Chiya bar Yosef did not 
               finish giving Rav's opinion. R. Yochanan thought 
               that Rav does not require a Get of freedom. (end of 
               Version #2)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is like Ula taught, that R. Yochanan 
                    requires a Get.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (R. Aba (against Ula) - Beraisa):</font></b> If a convert 
          died (without heirs), and Yisre'elim were taking his 
          property (which became Hefker), if the convert owned 
          adult or minor slaves, they go free;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Aba Sha'ul says, adults acquire themselves and 
               become free. Minors become the slaves of whoever 
               takes them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This shows that a Get of freedom is not required!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Ula:</font></b> One who asks such a question does not know how to 
          learn.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Why did Ula's say this?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Nachman):</font></b> Ula holds that a convert's slave is 
          like his wife. Just like a convert's wife is permitted 
          without a Get when he dies, also his slave.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> If so, we should say the same about a Yisrael's 
          slave!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> Slaves of a Yisrael pass to his heirs - 'you will 
          bequeath them to your children.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> If so, if a Yisrael was Mafkir his slave and 
          died, the slave should not need a Get (since his heirs do 
          not inherit him)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ameimar):</font></b> If one was Mafkir his slave and died, the 
               slave can never become a full Yisrael.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ameimar's teaching is difficult. (Presumably, he 
               does not argue with his Rebbi, R. Yochanan!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (R. Yakov bar Idi):</font></b> R. Yehoshua ben Levi holds that the 
          Halachah follows Aba Sha'ul.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (R. Zeira):</font></b> Did R. Yehoshua ben Levi say this 
          explicitly, or did you infer it from something else he 
          said?
<br>
<br>

sjt:
<font><b>1) A SLAVE WHO GOES FREE THROUGH 'HEFKER'</b></font><b>
<br>QUESTION:</b> The Gemara quotes Ula in the name of Rebbi Yochanan who says that an Eved whose master makes him Hefker goes free. Nevertheless, the master must still give his [former] Eved a Get Shichrur. As explained earlier (see Insights to 38:5), the reason why the Eved needs a Get Shichrur even though he became free when the master made him Hefker is that there are two elements to the state of being an Eved: the monetary ownership of the Eved, and the Isurim that apply to the Eved. When the master is Mafkir the Eved, he sets him free with regard to his monetary ownership but not with regard to his Isurim. To become free even with regard to his Isurim he needs a formal Get Shichrur.
<br> 
<br>Rebbi Aba challenges this ruling from a Beraisa which states that when a Ger dies with no children (and no heirs), all of his property is considered Hefker. The Tana Kama in the Beraisa says that all of the Ger's Avadim -- both adults and children -- go free. Aba Shaul says that only the adult Avadim go free; the children, who do not have the ability to make a Kinyan on themselves, remain Hefker and become the property of whoever makes a Kinyan on them. According to Rebbi Yochanan, how can the Avadim (at least the adult ones) acquire themselves and go free? The Avadim became Hefker (through the death of the Ger) but they did not receive a Get Shichrur! The Beraisa apparently contradicts the view of Rebbi Yochanan and supports the view of Shmuel who says (38a) that an Eved who becomes Hefker goes free and does <i>not</i> need a Get Shichrur.
</p><p>
Why does the Gemara assume that the Beraisa poses no problem to the view of Shmuel? How does Shmuel understand the view of Aba Shaul, who says that only the adult Avadim of the deceased Ger go free, but not the minor Avadim? Aba Shaul seems to rule that Hefker alone is not enough to set an Eved free; rather, an act of Kinyan is required, and thus an Eved who is a minor cannot acquire himself when he becomes Hefker!
</p><p>
<b>ANSWER: TOSFOS</b> (DH v'Chi) explains that according to Shmuel, the reason why an Eved goes free when he becomes Hefker is that there is no longer any dominion of a master over the Eved. In the case of an Eved who is a minor, who does not have the ability to make a Kinyan on himself, it is considered as though he is still under the dominion of his master.
</p><p>
What does Tosfos mean? The master made him Hefker or, in the case of the Beraisa, the master (who was a Ger) died! How can he still be under the dominion of his master?
</p><p>
Apparently, Tosfos means as the <b>RASHBA</b> and <b>RAMAH</b> write. They explain that when Shmuel says that an Eved goes free when there is 'no dominion of a master over him,' he does not mean that the Eved has no actual owner. Rather, he means that there is no one else who <i>is able</i> to take ownership over him since, by virtue of the removal of his former master, he takes ownership of himself. In the case of an Eved who is a minor, the minor cannot take ownership of himself and thus there remains upon him a monetary Shibud to serve a master, but at the present moment there is no master for him to serve. Since at the moment the Ger dies it is <i>possible</i> for someone to acquire the minor Eved, it is considered as though 'the dominion of a master' is still upon him. Hence, the Eved requires a Get Shichrur to go free, and when someone takes possession of the minor Eved his Shibud to serve someone takes effect and he becomes that person's Eved. In contrast, when one is Mafkir an adult Eved, at the moment that there is no one who has dominion over him he acquires himself and thus goes free.
</p><p>
In summary, Shmuel maintains that whenever an Eved acquires himself with regard to monetary ownership, he also acquires himself with regard to Isurim. Since the minor Eved does not acquire himself with regard to monetary ownership (since he cannot make a Kinyan), he remains an Eved completely, so that whoever is the first one to make a Kinyan on him acquires him as his Eved. When an adult Eved becomes Hefker, since he acquires himself with regard to monetary ownership he also acquires himself with regard to Isurim, and he goes free completely.
</p><p>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What did R. Yehoshua ben Levi say, from 
               which it could be inferred?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> R. Yehoshua ben Levi said that Rebbi says 
               that if a master despairs of his slave, the only 
               solution for the slave is through a Get.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Yochanan:</font></b> Rebbi learns from a Gezeirah 
                    Shavah 'Lah-Lah.' Just like a married woman is 
                    permitted (Rashi - only) through a Get, also a 
                    slave
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Version #1 (Rashi) Inference:</font></b> Rebbi equates 
                    similar cases. A married woman, who is not the 
                    Mamon (monetary property) of her husband, needs 
                    a Get, and also a slave who is not the Mamon of 
                    his master (i.e. an adult slave who acquired 
                    himself when the master was Mafkir him. A minor 
                    is always his master's Mamon. Even if the 
                    master was Mafkir him, he cannot acquire 
                    himself. He remains a full slave, and can marry 
                    a Shifchah.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Version #2 (Tosfos) Inference:</font></b> Just like a 
                    Get permits a married woman, who is not her 
                    husband's Mamon, also death of the master 
                    permits only a slave who is not the Mamon of 
                    his master (i.e. an adult). (end of Version #2)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If R. Yakov bar Idi inferred from this 
               teaching, why would R. Zeira disagree?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> One could learn oppositely!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1 (Rashi):</font></b> An adult or minor wife 
                    needs a Get to be permitted. The same applies 
                    to a slave. (Even if one was Mafkir a minor 
                    slave, the slave needs a Get to marry, for he 
                    acquires his monetary freedom.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Version #2 (Tosfos):</font></b> Just like a Get permits a 
                    wife, whether she is an adult or a minor, also 
                    death of the master permits (frees) a slave, 
                    whether an adult or minor.) (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer (R. Yakov bar Idi):</font></b> I heard this explicitly.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (R. Chiya bar Aba):</font></b> R. Yochanan holds that the Halachah 
          does not follow Aba Sha'ul.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question (R. Zeira):</font></b> Did R. Yochanan say this explicitly, 
          or did you infer it from something else he said?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What did R. Yochanan say, from which it 
               could be inferred?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> R. Yehoshua ben Levi said that Rebbi says 
               that if a master despairs of his slave, the only 
               solution for the slave is through a Get. R. Yochanan 
               said that Rebbi learns from a Gezeirah Shavah 'Lah-
               Lah.' Just like a married woman is permitted (Rashi 
               - only) through a Get, also a slave.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1 (Rashi):</font></b> Only a Get permits an adult 
                    or minor wife. Also an adult or minor  slave, 
                    after the master despaired, needs a Get to 
                    marry, for he acquired monetary freedom).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Version #2 (Tosfos):</font></b> Just like a Get permits a 
                    wife, whether she is an adult or a minor, also 
                    death of the master permits (frees) a slave, 
                    whether an adult or minor.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If R. Chiya bar Aba inferred from this 
               teaching, why would R. Zeira disagree?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> One could learn oppositely!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1 (Rashi):</font></b> A married woman is not her 
                    husband's Mamon, and she needs a Get. Also a 
                    slave who is not his master's Mamon needs a Get 
                    (i.e. an adult, who acquires himself when he 
                    was made Hefker. A minor slave remains a full 
                    slave, and can marry a Shifchah even without a 
                    Get.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  (Version #2 (Tosfos):</font></b> Just like a Get permits 
                    a married woman, who is not her husband's 
                    Mamon. also death of the master permits only a 
                    slave who is not his master's Mamon (i.e. an 
                    adult slave who acquires himself). (end of 
                    Version #2)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer (R. Chiya bar Aba):</font></b> I heard this explicitly.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT MAKES FREEDOM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rebbi):</font></b> The only solution for the slave is through a 
          Get.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Contradiction (Beraisa - Rebbi):</font></b> The slave can pay his 
          own redemption and go free, for this is like selling him 
          to himself.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Rebbi said that the only solution is through a 
          Get because a slave goes free only through redemption 
          money or a Get; since the master despaired, redemption 
          does not apply.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  Rebbi teaches unlike the following opinion.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon) Suggestion:</font></b> Perhaps money can 
               free a slave, just like a Get!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'She was not redeemed... ' - the verse 
               concludes '(because) her (Get of) freedom was not 
               given', she is still a slave;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that only a Get frees her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rami bar Chama):</font></b> The Halachah follows R. Shimon.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Rav Yosef bar Chama):</font></b> The Halachah does not follow R. 
          Shimon.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Rav Nachman bar Yitzchak):</font></b> Like whom is the 
          Halachah?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #1 (Rava bar She'ilta):</font></b> I say that it is unlike R. 
          Shimon. Chachamim of Mechuza say in the name of Rav 
          Nachman that it is like R. Shimon. I asked R. Chiya bar 
          Aba from what ruling this was derived;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> The Shifchah of a Shechiv Mera 
               bewailed 'how long will you work me like a slave?' 
               He threw his hat to her and said 'acquire it and 
               yourself with it.' Rav Nachman ruled that she 
               acquired nothing.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> An observer understood that this is because the 
               Halachah follows R. Shimon.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This was wrong. She got nothing because the 
               acquisition of Chalipin works only with the Kli of 
               the buyer (receiver), not of the giver.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #2 (Rav Shmuel bar Achitai):</font></b> The Halachah follows 
          R. Shimon.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Conclusion:</font></b> This is wrong. The Halachah does not follow 
          R. Shimon.
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PROOFS OF FREEDOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (R. Zeira):</font></b> If a slave married a Bas Yisrael in front of 
          his master, he goes free.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (R. Yochanan):</font></b> This is unlike Chachamim!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If a man wrote a document of 
               Kidushin to his Shifchah, she is Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, she is not Mekudeshes.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Rabah bar Rav Shilo taught that if a master put 
          Tefilin on his slave, the slave is free. Similarly, if 
          the master himself married off the slave, he is free.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> It is absurd to say that (Chachamim hold that) 
          a man would not cause his slave to sin (marry him off if 
          he had not freed him), but he himself would sin (marry 
          his Shifchah without freeing her)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Nachman bar Yitzchak):</font></b> The case is, he told 
          her that the document of Kidushin should free her and be 
          Mekadesh her to him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir holds that 'you are Mekudeshes to me' is a 
               valid expression of freedom. Chachamim disagree.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (R. Yehoshua ben Levi):</font></b> A slave who dons Tefilin in front 
          of his master goes free.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If the master borrowed from his 
          slave, or made the slave a guardian, or if the slave 
          donned Tefilin in front of his master, or read three 
          verses in the Beis ha'Keneses in front of his master, he 
          does not go free.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (Rabah bar Rav Shilo):</font></b> He goes free if the master 
          himself put Tefilin on the slave.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SLAVES WITHOUT MASTERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Dimi citing R. Yochanan):</font></b> If a man said before he 
          died that his heirs should not make his Shifchah work, we 
          force them to free her.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Objection (R. Ami and R. Asi):</font></b> (If she is not freed,) her 
          children are slaves. Why must the heirs free her? (It 
          suffices that they not make her work!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Rav Shmuel bar Yehudah citing R. Yochanan):</font></b> If a man 
          said before he died 'my Shifchah made me happy, my heirs 
          should make her happy', we force them to make her happy. 
          (If necessary, they free her.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> It is a Mitzvah to fulfill the request of the 
          deceased.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Version #1 (Ameimar):</font></b> If Reuven declared his slave to be 
          Hefker, there is no solution (for the slave to become a 
          Yisrael).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> Reuven does not (monetarily) own the slave, but 
          regarding Isurim (i.e. the Isur to marry a Bas Yisrael), 
          he is still considered Reuven's slave.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven cannot transfer (to the slave) ownership 
               regarding Isurim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question (Rav Ashi):</font></b> Ula and R. Chiya bar Avin taught 
          that he goes free, and needs a Get of freedom!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (Ameimar):</font></b> He needs one, but he cannot get one.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Version #2 (Ameimar):</font></b> If Reuven was Mafkir his slave, and 
          Reuven died, there is no solution.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> After making him Hefker, Reuven did not 
          (monetarily) own him. Regarding Isurim, he was still 
          considered Reuven's slave.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven does not bequeath ownership regarding Isurim.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question (Rav Ashi):</font></b> Rav Dimi (above, (a)) taught that 
          the heirs can free a slave, even if they did not inherit 
          monetary ownership!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer (Ameimar):</font></b> Rav Dimi is wrong. (He was refuted.)
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question (Rav Ashi):</font></b> Rav Dimi was wrong because the 
          father did not say that they should free her. If he 
          explicitly said that she should go free, we would force 
          the heirs to free her!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer (Ameimar):</font></b> I hold that R. Yochanan never said 
          (even your amended version of) what Rav Dimi said in his 
          name. Rather, R. Yochanan taught like R. Shmuel bar 
          Yehudah reported.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SLAVES INHERITED BY CHILDREN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  A city of (Kena'ani) slaves was sold to a Nochri. Their 
          new masters died; they came before Ravina.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ravina:</font></b> Ask the children of your original owners to 
               write for you Gitin of freedom.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabanan:</font></b> This is like Ameimar's case, and he says 
               that there is no solution for such slaves!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Ravina:</font></b> I hold like Rav Dimi.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rabanan:</font></b> Rav Dimi was refuted!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ravina:</font></b> Rav Dimi was wrong because the father did 
               not say that they should free her. If he explicitly 
               said that she should go free, we would force the 
               heirs to free her!
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  The Halachah follows Ravina.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Two partners had a slave; one freed his half. The other 
          feared lest Chachamim find out and force him to free his 
          half. (There was an enactment to free half-slaves to 
          enable them to marry.) To prevent this, he transferred 
          ownership of his slave to his son, who was a minor (and 
          unable to free him).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rav Papa:</font></b> We do to him like he did. His scheme will 
          backfire! Children love coins. Appoint a guardian, and 
          tell him to get the child to agree to free the slave in 
          exchange for some coins, and write a Get of freedom in 
          the child's name.
<br>
<br>

sjt:
<font><b>1) A SLAVE WHO MARRIES A JEWESS IN FRONT OF HIS MASTER</b></font><b>
<br>QUESTION:</b> Rebbi states (39b) that when an Eved marries a Jewess in front of his master, he goes free. 'Moreover,' says the Gemara according to the Girsa of the <b>RIF</b> (as cited by the Mesores ha'Shas in the margin of the Gemara), 'we force the master to write for his Eved a Shtar Shichrur.'
</p><p>
<b>RASHI</b> explains that the reason why the Eved goes free when he marries a Jewess in front of his master is that since the master did not object, it must be that the master freed his Eved at an earlier time; had he not freed him, he would not let his Eved transgress the prohibition against marrying a free Jewess. Rashi means that there is an 'Umdena,' strong evidence based on circumstance, that the master gave a Shtar Shichrur to his Eved.
</p><p>
However, if the master presumably gave his Eved a Shtar Shichrur prior to the marriage and that is why the master does not object to the marriage, why is he forced to give a Shtar Shichrur to the Eved?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> explains that indeed, the requirement for the master to give his Eved a Shtar Shichrur is not 'm'Ikar ha'Din.' It is not necessary for the sole purpose of freeing the Eved because, as Rashi explains, it is assumed that he already gave the Eved his Shichrur. Rather, the purpose of giving the Eved a Shtar Shichrur now is in order to prevent the master from claiming later that he wants his Eved back. For this purpose, the master must give his Eved a Shtar Shichrur so that the freed Eved will have in his possession clear proof that he is no longer an Eved.
</p><p>
(b) The <b>RAMAH</b> maintains that the master, 'm'Ikar ha'Din,' must give the Eved a Shtar Shichrur. Since there is no clear evidence that the Eved was freed but merely an 'Umdena,' the 'Umdena' works only with regard to the monetary ownership of the Eved. The 'Umdena' shows that he has acquired himself and thus the master cannot make the Eved work for him anymore. The 'Umdena' alone does not work with regard to matters of Isurim, to permit the Eved to marry a Jewess. This is because the 'Umdena' that the master freed his Eved is only a Safek. In order to completely remove the Isurim of Avdus, the Eved needs a Shtar Shichrur, and only then may he marry a Jewess. (Accordingly, the Eved will have to do another act of Kidushin with the Jewess after he receives the Shtar Shichrur.)
</p><p>
A practical difference between these two opinions exists in a case in which the owner of a Shifchah marries her himself (the case which the Gemara later discusses). In that case, too, there is an 'Umdena' that the master freed his Shifchah because, otherwise, he would not transgress the Isur against marrying a Shifchah. In that case, however, there is no fear that the master will claim later that he never freed the Shifchah and that he wants her to work for him. Since he married her, he certainly will not claim that he married a Shifchah and cause people to ridicule him. Hence, according to the Rosh, the master does not need to give the Shifchah a Shtar Shichrur. According to the Ramah, however, the fact still remains that an 'Umdena' does not suffice to free an Eved (or Shifchah in this case) with regard to matters of Isurim, and thus the master must give her a Shtar Shichrur. (In addition, after he gives her the Shtar Shichrur, he must perform Kidushin with her again, since when he did Kidushin with her the first time she was still a Shifchah with regard to the Isur of marrying a normal Jew.)
</p><p>


<font><b>2) A FREED SLAVE WITH NO RECOURSE</b></font><b>
<br>OPINIONS:</b> Ameimar states that an Eved who was made Hefker by his master has no recourse, 'Ein Lo Takanah.' The Gemara challenges Ameimar's ruling from the statement of Ula in the name of Rebbi Yochanan, who says that an Eved who was made Hefker by his master goes free and needs a Get Shichrur. This clearly implies that the Eved <i>does</i> have a 'Takanah.' Ameimar answers that Rebbi Yochanan means that the Eved needs a Get Shichrur 'but is unable' to receive it.
</p><p>
What does the Gemara mean when it says that an Eved who was made Hefker has no recourse, 'Ein Lo Takanah'?
</p><p>
(a) <b>RASHI</b> explains that 'Ein Lo Takanah' means that he has no recourse with regard to Ishus, marriage, at all. He cannot marry a free Jewess because he still has not yet received a Get Shichrur to free him with regard to his Isurim. He also cannot marry a Shifchah Kena'anis because he was made Hefker and thus his master no longer has any monetary Shibud over him (see Rashi, 39b).
</p><p>
(b) <b>TOSFOS</b> (DH Oso) explains that as long as the Eved has not yet received his Get Shichrur he is considered a full-fledged Eved with regard to his Isurim. Hence, he <i>may</i> marry a Shifchah. When the Gemara says 'Ein Lo Takanah,' it means that he has no recourse with regard to marrying a free Jewess.
</p><p>
Tosfos' explanation seems problematic. Even if the Halachah does not follow the view of Ameimar and a master who was Mafkir his Eved <i>is</i> able (and is forced) to give a Get Shichrur to his Eved like the simple understanding of Rebbi Yochanan's words (see also the Gemara earlier, 38a), what reason is there to force the master to give his Eved a Get Shichrur? What difference does it make if the Eved, who has become Hefker, remains prohibited to marry a Jewess? According to Tosfos, he has a 'Takanah' because he may still marry a Shifchah! 
</p><p>
According to Rashi, it is clear why the master is forced to give his Eved a Get Shichrur. Once the Eved becomes Hefker he is unable to marry <i>anyone</i>, Jewess or Shifchah. As such, he is unable to fulfill the Mitzvah of Piryah v'Rivyah, and therefore his master is forced to free him completely. According to Tosfos, however, who maintains that the Eved is still permitted to marry a Shifchah and to fulfill the Mitzvah of Piryah v'Rivyah with her, why should the master be forced to give a Get Shichrur to the Eved he was Mafkir?
</p><p>
The <b>PNEI YEHOSHUA</b> answers that according to Tosfos, the reason the master is forced to free his Hefker Eved is not that the Eved has no other recourse, but due to a different principle -- 'Kofin Alav Al Midas Sedom.' That is, whenever one person stands to lose nothing by giving some benefit to a second person ('Zeh Neheneh (this one benefits) v'Zeh Lo Chaser (and this one loses nothing)'), the first person is forced to give that benefit to the second person. Since the master was already Mafkir his Eved, he loses nothing by giving his Eved a Get Shichrur. On the other hand, his Eved can only gain by receiving a Get, because he will then become a full-fledged Jew, obligated to fulfill all of the Mitzvos like every other Jew. This is why, according to Tosfos, the Gemara says that the master is forced to free his Eved with a Get Shichrur.
</p><p>
(The <b>MINCHAS CHINUCH</b> (#347) points out that the obligation to fulfill all of the Mitzvos and the prohibition against marrying a Shifchah are concomitant. Once the Eved becomes prohibited to a Shifchah, he becomes obligated to observe all of the Mitzvos. Therefore, according to Rashi, just as the Eved becomes prohibited to a Shifchah through becoming Hefker, he also becomes obligated to observe all of the Mitzvos like every Jew. The only reason he needs a Get Shichrur is to permit him to marry a Jewess. Tosfos, however, maintains that he is permitted to a Shifchah when he becomes Hefker, and thus he is not yet obligated to observe all of the Mitzvos until he receives a Get Shichrur.)
</p><p>


<font><b>3) GIVING A GET SHICHRUR AFTER THE DEATH OF THE MASTER</b></font><b>
<br>QUESTION:</b> Ameimar and Rav Dimi disagree about the Halachah in a case in which a master was Mafkir his Eved and then died. Their dispute revolves around whether the master is able to bequeath to his sons his Kinyan on the Eved with regard to the Eved's Isurim without bequeathing to them a Kinyan on the monetary ownership of the Eved (since he was Mafkir the Eved with regard to the monetary ownership). The Gemara rules like Rav Dimi who says that the master is able to bequeath to his sons the Kinyan of the Eved with regard to his Isurim without the Kinyan of monetary ownership. The sons who inherit the Eved must give the Eved a Get Shichrur to free him.
</p><p>
Why do the sons need to give the Eved a Get Shichrur? The Gemara earlier (39a) teaches that just as a Get Shichrur frees an Eved, so, too, does the death of his master. Why, when the master was Mafkir his Eved (retaining ownership with regard to the Eved's Isurim) and then died (effectively freeing the Eved completely), must the sons give the Eved a Get Shichrur?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Ha Amrah) says that the Eved indeed is completely free without the Get Shichrur since the master died. The only reason why the sons need to give him a Get Shichrur is so that the heirs will not be able to claim later that the Eved belongs to them, since not everyone is aware that an Eved goes free at the death of his master. (See also <b>ROSH</b>.)
</p><p>
(b) A similar question may be asked about the case later in the Gemara, in which a master sold his Eved to a Nochri and then died, and then the second owner (the Nochri) died. Ravina required the heirs of the original owner to give a Get Shichrur to the Eved (since he ruled that they inherit from their father the Kinyan Isurim of the Eved, as explained above). Why, though, did they need to give him a Get Shichrur? Once the original owner died, the Kinyan Isur on the Eved was removed, and the only thing that remained was a monetary Kinyan on the Eved in the hands of the Nochri. That monetary Kinyan was removed at the moment the Nochri died, and the Eved should be completely free!
</p><p>
The <b>ROSH</b> answers that as long as the Eved is not in the domain of the original owner, it is not possible for the original owner to free the Eved (either by giving him a Get Shichrur or through his death). Shichrur can be given only by the Eved's master, and the original owner is no longer considered his master since he does not own the Eved with a monetary Kinyan. When the original owner dies, therefore, his death does not serve as Shichrur for the Eved with regard to the Kinyan Isur. That is why, when the Nochri dies, the sons of the original owner need to give the Eved a Get Shichrur.
</p><p>
Similarly, when the master was Mafkir his Eved and then died, his death does not serve to free the Eved with regard to the Eved's Isurim, and therefore the sons who inherit the Kinyan Isur must give him a Get Shichrur.
</p><p>


lvr: 36
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE PROPER WORDING OF A DOCUMENT OF TRANSFER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If a master said 'I made my slave a free man' 
          or 'behold he is free', he is free;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Rebbi says, if he said 'I will free him', he acquires his 
          freedom;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Chachamim say, he does not.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  R. Yochanan:</font></b> In all of these cases, these words were 
          written in a document.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If one said 'I gave my field to Ploni', 'it is 
          given to Ploni' or 'behold, it is his', Ploni acquires 
          it;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  R. Meir says, if he said 'I will give it to Ploni', he 
          acquires it;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Chachamim say, he does not.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  R. Yochanan:</font></b> In all of these cases, these words were 
          written in a document.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>THE POWER OF ADMISSION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If Reuven said 'I freed Ploni, my slave', and 
          Ploni denies this, we are concerned lest Reuven gave a 
          Get of freedom to a third party to acquire on behalf of 
          Ploni. (Therefore, Reuven must free him.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  If Reuven said:</font></b> 'I wrote and gave a Get of freedom to 
          Ploni, my slave', and Ploni denies this, Ploni's 
          admission is like 100 witnesses that he is not free. 
          (Reuven can say that he erred, and reclaim his slave.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If Reuven said 'I gave my field to Ploni', and 
          Ploni denies this, we are concerned lest Reuven asked a 
          third party to acquire on behalf of Ploni. (Ploni gets 
          the field);
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If Reuven said 'I wrote a document to give the field, and 
          I gave the document to Ploni', and Ploni denies this, 
          Ploni's admission is like 100 witnesses that he did not 
          get it. (Reuven can say that he erred, and reclaim his 
          field.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Who eats the Peros (produce, if Reuven does not 
          retract)?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #1 (Rav Chisda):</font></b> Reuven eats them.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2 (Rabah):</font></b> We store the Peros with a third party.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  They do not argue. If Ploni is alive, since he admitted 
          that it is not his, Reuven eats the Peros;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Ploni is dead, Ploni's son could not make a 
               meaningful admission, so the Peros are stored. 
               (Perhaps witnesses will clarify the matter.)
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>BREAKING LIENS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Shimon lent to Reuven money, and Reuven 
          made his slave Tavi an Apotiki (collateral, with a 
          guarantee that the loan may be collected from Tavi's 
          value) and he freed him, letter of the law, Tavi owes 
          nothing to his master;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  There is an enactment for Tikun ha'Olam. We force the 
          master to write a Get of freedom, and Tavi writes a 
          document obligating himself to pay his value to his 
          master;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Shimon ben Gamliel says, only the one who freed him 
          writes.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Who freed him?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (Rav):</font></b> Reuven freed him. Letter of the law, 
          Tavi owes nothing to his second master (Shimon, who 
          should have received him), due to Rava's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> The following uproot a lien:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The borrower made the collateral Hekdesh;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  The collateral was Chametz, and Pesach came 
                    (so one may not benefit from the Chametz);
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  The collateral was a slave, and the borrower 
                    freed him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We are concerned lest Shimon see Tavi and say 'you 
               are my slave' (and people will say that Tavi is 
               still a slave). Therefore, Chachamim enacted that 
               Shimon write a Get of freedom, and Tavi owes his 
               value to Shimon;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon ben Gamliel says, the slave does not 
               obligate himself to pay his value, rather Reuven 
               pays (to Shimon).
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW DO WE EXPLAIN THE MISHNAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about whether or not Reuven must 
          compensate Shimon for damaging property on which Shimon 
          had a lien;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim exempt him, and R. Shimon ben Gamliel 
               obligates him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Support:</font></b> It was taught that Chachamim and R. Shimon ben 
          Gamliel argue about whether or not one who damages 
          collateral for a loan must pay the lender.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (to question 6:c, 40b - Ula):</font></b> Shimon declared 
          Tavi to be free;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Letter of the law, Tavi is not obligated in the 
               Mitzvos (special to free men) at all. However, since 
               he was called free, for Tikun ha'Olam it was enacted 
               that Reuven free him, and Tavi obligates himself to 
               pay his value to Reuven.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, Shimon owes the money.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about damage that it not recognizable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that it is not considered damage (so 
               one is exempt). R. Shimon ben Gamliel holds that it 
               is considered damage (one is liable for it).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Why didn't Ula answer like Rav?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> You cannot say that Shimon is called the master 
          (he never received the slave!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Why didn't Rav answer like Ula?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> You cannot say that Shimon freed him. (Since he 
          was not the master, his words had no effect!)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN ONE CANNOT COLLECT FROM AN APOTIKI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Ami Shapir Na'eh):</font></b> If Levi made his field an Apotiki (a 
          property specially designated for collection of a loan) 
          and it was flooded, the lender does not collect from 
          other property.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Objection (Rav Nachman bar Yitzchak):</font></b> This is wrong!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, Levi specified that the loan can be 
          collected only from this field.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Support (Beraisa):</font></b> If Levi made his field an Apotiki, and 
          it was flooded, the lender collects from other property. 
          If Levi specified that the loan can be collected only 
          from this field, it is not collected from other property.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If Yehudah made his field an Apotiki to a 
          creditor or to pay his wife's Kesuvah, they may collect 
          from other property;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  R. Shimon ben Gamliel says, the creditor may collect from 
          other property, but his wife cannot, for women do not 
          normally go to Beis Din to collect. (Therefore, we assume 
          that the lien of the Kesuvah was levied only on the 
          designated field.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE ENACTMENT FOR A HALF-SLAVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - Beis Hillel):</font></b> A half-slave alternates. One day 
          he serves his master, and the next day, he keeps his 
          earnings;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Beis Shamai:</font></b> That is good for his master, but not for the 
          half-slave!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He cannot marry a Shifchah, for he is half-free. He 
               cannot marry a Bas Yisrael, for he is half-slave;
<br>
<br>

sjt:
<font><b>1) A SLAVE DESIGNATED AS A SECURITY FOR A LOAN AND THEN FREED</b></font><b>
<br>QUESTION:</b> The Mishnah (40b) discusses the case of a person who borrowed money and designated his Eved as security for the debt ('Apotiki') so that when repayment is due, the lender would take the Eved as repayment for his loan. The Eved was then freed. The Tana Kama and Raban Shimon ben Gamliel disagree about the exact procedure in such a situation.
</p><p>
The Gemara cites two explanations for the dispute in the Mishnah. Rav explains that the Mishnah refers to a case in which the original owner (the borrower) frees his Eved. By freeing his Eved, he removes ('Mafki'a') the lien ('Shibud') of the lender (the 'second owner') from the Eved. Although the Eved is actually free, the Chachamim were concerned that the lender will try to claim the Eved as repayment for his debt, and as a result people will think that he is an Eved and besmirch his reputation. Therefore, the Chachamim required the lender to write a Get Shichrur to the Eved so that it is clear to all that he is not an Eved.
</p><p>
The Tana Kama maintains that the borrower -- who is the original owner of the Eved -- is exempt from paying back his debt (since he made the Eved an explicit 'Apotiki' and the Eved is now free and is no longer his). The former Eved, however, must pay the lender for his freedom. Raban Shimon ben Gamliel argues and maintains that the <i>borrower</i> must pay the entire amount of the debt to the lender.
</p><p>
According to Rav, the dispute between the Tana Kama and Raban Shimon ben Gamliel is whether or not a person is liable for damaging the Shibud of another person. If one damaged a Shibud (an item owned by one person but on which another person has a lien), is it considered as though he damaged the actual property of the holder of the lien and must therefore compensate for the damage, or does the requirement to pay compensation for damages apply only when one damages an item under one's actual, physical ownership, and not just collateralized to him (since it is not considered owned by him yet)? The Tana Kama maintains that when the borrower freed his Eved and thereby 'damaged' the Shibud of the lender, that form of damage is not considered damage for which he is liable to pay. Raban Shimon ben Gamliel maintains that it <i>is</i> considered damage, and thus the borrower must pay the lender for damaging his Shibud (i.e. freeing the Eved).
</p><p>
Ula explains that the <i>lender</i> gave the Eved (who was the 'Apotiki' for the loan) a Get Shichrur. The Shichrur should really have no validity since the lender is not yet the owner of the Eved. However, since he gave the Eved a Get Shichrur, word has gone out that the Eved is now a free man, and thus the original owner of the Eved must free him. Since the lender's 'Shichrur' of the Eved requires that the borrower give the Eved a real Get Shichrur, this might be considered an act of damage on the lender's part. The Tana Kama maintains that the lender is exempt from compensating the original owner of the Eved (the borrower). However, the <i>Eved</i> must pay to the original owner -- in return for his freedom -- the difference between the sum of the loan and his worth as an Eved (for example, if the loan was 100, and the Eved was worth 300, the Eved must pay 200 to the owner). Raban Shimon ben Gamliel argues and maintains that the Eved is completely exempt (since he did no damage to anyone), and that the <i>lender</i> must pay the borrower restitution for the loss of his Eved that he caused.
</p><p>
According to Ula, the dispute between the Tana Kama and Raban Shimon ben Gamliel is whether or not unrecognizable damage ('Hezek she'Eino Nikar') is considered damage for which one must pay restitution. According to the Tana Kama, such an act of damage is <i>not</i> considered damage for which one must pay, and therefore the lender who caused the Eved to be freed is exempt. According to Raban Shimon ben Gamliel, the lender is considered a 'Mazik' and must pay restitution to the borrower, even though the damage that he did is not readily noticeable.
</p><p>
Why, though, is causing an Eved to become free considered damage that is not recognizable, 'Hezek she'Eino Nikar'? It must be because no actual damage or change in the object (the Eved) is evident. If this is the reason for why the Shichrur of an Eved is considered 'Hezek she'Eino Nikar,' why is it so obvious to the Gemara's first explanation (that of Rav) that Raban Shimon ben Gamliel -- who says that when the owner of the Eved (the borrower) frees his Eved he must pay the lender -- maintains that one is liable for damaging the Shibud of another person? If freeing one's Eved is 'Hezek she'Eino Nikar,' why is it so obvious that the borrower is obligated to pay the lender for that damage? It should depend on the Machlokes which the Gemara cites in the second explanation, whether one is liable for 'Hezek she'Eino Nikar' or not. However, from the text of the Gemara it seems that the two explanations are unrelated.
</p><p>
<b>ANSWER:</b> It must be that the reason why causing the Shichrur of the Eved is considered 'Hezek <i>she'Eino Nikar</i>' is not, as mentioned above, that the Shichrur itself (the Eved becoming free) is not recognizable. Rather, the Shichrur <i>is</i> recognizable even though no physical damage or change occurred. Since Shichrur involves the removal of the master's ownership from the Eved, it is considered a Hezek that <i>is</i> recognizable. This is because the act -- and consequences -- of Shichrur are evident to all, for whoever sees the owner give his Eved a Get Shichrur sees a loss being caused to the lender. This is what the first explanation of the Gemara assumes, and this is why it is obvious that the Shichrur of the Eved is a Hezek that <i>is</i> recognizable.
</p><p>
In contrast, according to the second explanation of the Gemara, the Shichrur which the lender gave to the borrower's Eved should not take effect at all, because the Eved does not belong to the lender. It is only valid due to a Takanah d'Rabanan (as described above). As such, the act itself which the lender did has no power to free the Eved and is therefore considered 'Hezek she'Eino Nikar.' (It is 'Eino Nikar' either because it is not evident to all that there is a Takanah d'Rabanan which requires the owner to free his Eved as a result of the act of the lender, or because the act itself is not an actual Shichrur but merely an indirect cause for the Shichrur, and thus it is 'Hezek she'Eino Nikar.') (A. Kronengold)
</p><p>


<font><b>2) THE OBLIGATION OF THE SLAVE TO PAY FOR HIS FREEDOM</b></font><b>
<br>QUESTION:</b> The Mishnah (40b) discusses the case of a person who borrowed money and designated his Eved as security for the debt ('Apotiki') so that when repayment is due, the lender would take the Eved as repayment for his loan. The Eved was then freed. The Tana Kama and Raban Shimon ben Gamliel disagree about the exact procedure in such a situation.
</p><p>
The Gemara cites two explanations for the dispute in the Mishnah (see previous Insight). In the second explanation, Ula explains that the <i>lender</i> gave the Eved (who was the 'Apotiki' for the loan) a Get Shichrur. The Shichrur should really have no validity since the lender is not yet the owner of the Eved. However, since he gave the Eved a Get Shichrur, word has gone out that the Eved is now a free man, and thus the original owner of the Eved must free him. Since the lender's 'Shichrur' of the Eved requires that the borrower give the Eved a real Get Shichrur, this might be considered an act of damage on the lender's part. The Tana Kama maintains that the lender is exempt from compensating the original owner of the Eved (the borrower). However, the <i>Eved</i> must pay to the original owner -- in return for his freedom -- the difference between the sum of the loan and his worth as an Eved (for example, if the loan was 100, and the Eved was worth 300, the Eved must pay 200 to the owner). 
</p><p>
Although the original owner (the borrower) no longer needs to pay the lender since the Eved (the 'Apotiki') is no longer in his possession, the Eved must pay for what he gained -- his freedom. He only needs to pay the difference between his value (300) and the loan (100) since the owner anyway would have had to pay the value of the loan (100), and thus the difference (200) is the Eved's gain.
</p><p>
Raban Shimon ben Gamliel argues and maintains that the Eved is completely exempt (since he did no damage to anyone), and that the <i>lender</i> must pay the borrower restitution for the loss of his Eved that he caused.
</p><p>
Why is it so clear to Raban Shimon ben Gamliel that only the lender must pay and not the Eved? It is true that the lender caused the Hezek, but the <i>Eved</i> is the one who receives a benefit for which he should have to pay. The Eved is left with part of the loss which the lender caused (100) and he should have to pay for what he gained (200). It would be more appropriate to make the lender lose the amount of the loan (100) and not have to pay for the loss of the Eved, and to make the Eved pay for the rest (200), as the Tana Kama says. (See <b>TORAS GITIN</b>.)
</p><p>
<b>ANSWER:</b> The <b>AYELES HA'SHACHAR</b> offers the following explanation of the difference between the acquisition of freedom (as in the case of the Mishnah) and the acquisition of money or other possessions. When one acquires or gains money or possessions, the beneficiary is in possession of some sort of monetary asset for which he should be required to pay. In contrast, when an Eved turns into a free person, there is no identifiable tangible asset. It is true that yesterday he was an Eved and today he is free, but he is not considered to possess or own himself like he possesses or owns a tangible object. Rather, he is considered as having left the entire state of being owned. A free person is not property that is owned by someone (even himself), but rather he is a <i>person</i>, and a person cannot be owned.
</p><p>
Therefore, the freed Eved is not viewed as owning anything as a result of the Shichrur, and he cannot be required to pay for a new asset in his possession.
</p><p>
The obligation that the Tana Kama describes is only a Chiyuv d'Rabanan, instituted in order to save the original owner from a significant loss due to the Takanah d'Rabanan that the Eved not be mistaken for a free person (as a result of the lender's act of Shichrur). (A. Kronengold)
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> He will never marry.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Lasheves Yetzarah' (the world was 
               created for the sake of procreation)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rather, for Tikun ha'Olam, we force his master to 
               free him, and the half-slave writes a document 
               obligating himself to pay half his value to his 
               master.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Beis Hillel retracted, and agreed to Beis Shamai.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CAN ONE FREE HALF OF A SLAVE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Gemara - Beraisa - Rebbi):</font></b> If Reuven freed half of his 
          slave, the slave becomes half-free;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Chachamim say, he remains a full slave.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Opinion #1 (Rabah):</font></b> They argue about when Reuven gave a 
          Get of (half) freedom.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi holds that 'she was not redeemed, her Get of 
               freedom was not given to her' equates a Get of 
               freedom to (redemption) money;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like money can fully or partially redeem a 
                    slave, also a Get of freedom.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim learn from a Gezeirah Shavah 'Lah-Lah' 
               from divorce;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like a woman cannot be half-divorced, a 
                    slave cannot be half-freed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> All agree that money can partially free her.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Rebbi and Chachamim argue about whether 
               it is better to learn from a Hekesh (we equate 
               matters written next to each other) or a Gezeirah 
               Shavah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> No. All agree that usually, a Gezeirah 
               Shavah is better;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here is different. A woman cannot be divorced 
                    through money (which can partially free a 
                    slave), so we do not learn from divorce that a 
                    Get of freedom cannot work half-way.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Opinion #2 (Rav Yosef):</font></b> They argue about a slave who was 
          half-redeemed through money;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi holds that 'redeemed, she was not redeemed' 
               teaches that she was partially redeemed;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, the Torah speaks like people do (so 
               we need not expound the doubled verb).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> All agree that a Get of half-freedom does not work 
               at all.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (against Rav Yosef - Beraisa - Rebbi):</font></b> If one 
          half-freed his slave through a Get, it works;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, it does not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Yosef is refuted. (He said that all agree that a 
               Get does not work half-way.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Suggestion:</font></b> (Rav Yosef said that they argue about whether 
          or not money can half-redeem.) The Beraisa also refutes 
          him regarding this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about a Get. This implies that all agree 
               that money works!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection:</font></b> No, they argue about both.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa discusses a Get to show the extremity of 
               Rebbi, that even a Get works half-way.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Rather, they should argue about money, to 
               show the extremity of Chachamim, that even money 
               does not work half-way!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Tana prefers to teach the extremity of 
               the lenient opinion.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Beraisa) Suggestion:</font></b> Perhaps 'she was redeemed' totally!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Rejection:</font></b> 'She was not redeemed.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps 'she was not redeemed' at all!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Rejection:</font></b> 'She was redeemed.'
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Resolution:</font></b> She was partially redeemed, with money or 
          something of value;
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps freedom can be only through money!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection:</font></b> It says 'or her freedom was not given Lah (to 
          her)', and 'he will write Lah (for her) a Sefer of 
          divorce.' A Gezeirah Shavah 'Lah-Lah' teaches that one 
          can free a slave through a document.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> We learned that money can partially redeem, and 
          a Get can totally free a slave. What is the source that a 
          Get can free half-way?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> 'She was redeemed... her freedom' equates freedom 
          through money and a through a document. Either can work 
          fully or partially.
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  After Rav Yosef was refuted (about one matter), he will 
          say that this Beraisa is like Rebbi (but Chachamim hold 
          that even money cannot half-redeem.)
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Question:</font></b> According to Rabah, the Reisha is like all the 
          Tana'im, but the Seifa is only like Rebbi!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Answer #1 (Rabah):</font></b> Yes, that is the structure of the 
          Beraisa.
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> Rebbi taught the entire Beraisa. 
          Chachamim agree to his first law, and argue with his 
          second law.
<br>

sjt:
<p>
<font><b>3) THE STATUS OF A PERSON WHO IS HALF-SLAVE, HALF-FREE </b></font><b>
<br>OPINIONS:</b> The Mishnah discusses the status of a person who is half-slave and half-free ('Chatzyo Eved v'Chatzyo Ben Chorin'). Beis Hillel originally ruled that the slave is to work for his master half of the time and for himself half of the time (he alternates days for whom he works). Although this arrangement suits the dual monetary ownership of the slave, it does not resolve the dilemma posed to the slave's nuptial status: a half-slave, half-free man cannot marry any woman; he cannot marry a Shifchah (maidservant) because of the half-free part of him, and he cannot marry a free Jewess because of the half-slave part of him. For this reason, Beis Shamai disagreed with Beis Hillel and required that the master free his portion of the slave in order to enable the slave to fulfill the Mitzvah of Piryah v'Rivyah. 
</p><p>
The Mishnah relates that Beis Hillel retracted his original opinion and accepted the ruling of Beis Shamai.
</p><p>
When the Mishnah says that the slave is obligated to fulfill the Mitzvah of Piryah v'Rivyah, which part of him is obligated? Is only the part of him that is free obligated, or is even the part of him that is a slave obligated to fulfill Piryah v'Rivyah? (See following Insight for why a slave may have an obligation of Piryah v'Rivyah.) 
</p><p>
(a) In order to answer this question, it is necessary to examine the source for the Mitzvah of Piryah v'Rivyah. Two verses refer to the Mitzvah of Piryah v'Rivyah. The first verse states, 'Peru u'Revu' -- 'Be fruitful and multiply' (Bereishis 1:28). The second verse states, 'He did not create it in vain; He fashioned it to be inhabited (la'Sheves)' (Yeshayah 45:18). This is the verse quoted by the Mishnah. 
</p><p>
The <b>RIVAM</b> (quoted by <b>TOSFOS</b> DH Lo) maintains that the two halves of the person who is a half-slave have two separate obligations. The free part of him is obligated to fulfill the basic Mitzvah of Piryah v'Rivyah, while the slave part of him is obligated only to fulfill 'la'Sheves.' (The free part of him certainly is obligated to fulfill that element as well. The difference is that the slave part of him is <i>only</i> obligated to fulfill the concept of 'la'Sheves' but not the actual Mitzvah of Piryah v'Rivyah.)
</p><p>
The Rivam adduces support from the wording of the Mishnah. If the reason why the master must free the half-slave is to enable him to fulfill the Mitzvah of Piryah v'Rivyah, why does the Mishnah not quote the verse in Bereishis which is the source for the Mitzvah of Piryah v'Rivyah? It must be that the Mishnah prefers to quote a verse which is relevant to both parts of the half-slave, half-free person. Since a slave is not obligated to fulfill the Mitzvah of 'Peru u'Revu,' the Mishnah cites the verse of 'la'Sheves.'
</p><p>
(b) <b>TOSFOS</b> in Chagigah (2b, DH Lo) disagrees with the Rivam. He asserts that a Jewish slave <i>is</i> obligated to fulfill the Mitzvah of Piryah v'Rivyah. Tosfos infers from the wording of the Mishnah, '[Lo Nivra ha'Olam Ela] l'Piryah v'Rivyah,' that the Mitzvah of Piryah v'Rivyah applies even to the part of the person which is a slave.
</p><p>
How, though, does Tosfos refute the proof of the Rivam? Tosfos explains that the Mishnah cites the verse of 'la'Sheves' because that verse teaches the <i>great importance</i> of the Mitzvah when it says that the Mitzvah of Piryah v'Rivyah is one of the primary purposes of Hashem's creation of the world. (See also Insights to Chagigah 2:4.)
</p><p>


<font><b>4) WHY IS A SLAVE COMMANDED TO FULFILLED THE MITZVAH OF 'PIRYAH V'RIVYAH'</b></font><b>
<br>QUESTION:</b> The Gemara teaches that an Eved Kena'ani's obligation to observe the Mitzvos is equivalent to a woman's obligation, as derived from the Gezeirah Shavah of 'Lah Lah.' The Gemara in Yevamos (65a) clearly states that a woman is exempt from the Mitzvah of Piryah v'Rivyah. Why, then, is an Eved obligated in the Mitzvah of Piryah v'Rivyah? Why should this Mitzvah be different from all other Mitzvos, which an Eved is obligated to observe only if a woman is obligated?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> explains that the comparison of an Eved's obligation of Mitzvos to a woman's obligation is not absolute. There is a difference between certain types of Mitzvos. One type of Mitzvah from which a woman is exempt is a Mitzvah which depends on a specific time ('Mitzvas Aseh sheha'Zeman Gerama'). This exemption is a Gezeiras ha'Kasuv, derived from verses in the Torah (see Kidushin 34b). Another type of Mitzvah from which a woman is exempt is a Mitzvah which a woman does not have the capability to fulfill (such as the Mitzvah of Milah and the prohibition against shaving one's beard). A woman obviously has no obligation to fulfill such Mitzvos. 
</p><p>
The Pnei Yehoshua asserts that the Gezeirah Shavah which equates an Eved to a woman applies only to the Mitzvos that a woman <i>could</i> perform but is exempted by the Torah. In contrast, the Gezeirah Shavah does <i>not</i> apply to Mitzvos which a woman does not have the capability to perform, and thus an Eved <i>is</i> obligated to perform those Mitzvos. Since he has the capability to perform those Mitzvos, there is no reason to exempt him.
</p><p>
The reason why a woman is exempt from the Mitzvah of Piryah v'Rivyah is the logic of 'Ish Darcho Lichvosh v'Ein Ishah Darchah Lichvosh' -- 'it is the manner of a man to conquer, and not the manner of a woman to conquer' (Yevamos 65b). That logic applies only to a woman, and not to a male Eved, and thus the Gezeirah Shavah does not apply and an Eved remains obligated to perform the Mitzvah of Piryah v'Rivyah.
</p><p>
(b) The <b>TUREI EVEN</b> (Chagigah 4a) and <b>MISHNEH L'MELECH</b> (Hilchos Melachim 10:7) answer that the commandment of 'Peru u'Revu' (Bereishis 1:28) was said to Adam ha'Rishon and should apply to all people, Jews and Bnei Noach alike. The Gemara in Sanhedrin (59b) states that Bnei Noach indeed were included in the Mitzvah of Piryah v'Rivyah -- until the Torah was given to the Jewish people at Har Sinai. At that time, all of the Mitzvos of the Torah were given exclusively to the Jewish people and were removed from Bnei Noach (unless the Torah specifically includes them). The Acharonim explain that the removal of the obligation of certain Mitzvos from Bnei Noach applies only to Bnei Noach who have no part in the Kedushah of Yisrael. An Eved Kena'ani, however, has a part in the Kedushah of Yisrael through the requirement that he undergo Milah and Tevilah when he becomes an Eved. Hence, the giving of the Torah at Har Sinai did not remove from him any of the Mitzvos that were originally given to Bnei Noach, since the Eved is part of the Jewish people to some degree. That is why the Mitzvah of Piryah v'Rivyah remains binding on the Eved.
</p><p>
According to this explanation, the Eved's obligation of Piryah v'Rivyah is a remnant of the original commandment to all Bnei Noach. It is not a result of the new obligation of Piryah v'Rivyah that was given to the Jewish people.
</p><p>
This explains why the Eved has a greater obligation than a woman with regard to Piryah v'Rivyah. While it is true that the Gezeirah Shavah teaches that an Eved should have the same obligations as a woman, his obligation in Piryah v'Rivyah is not related to the Mitzvah given to the Jewish people. Rather, it is an obligation incumbent upon him as a Ben Noach.
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HALF-FREEDOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> A half-slave...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  According to Rabah, the Mishnah can be like everyone. The 
          slave was half-freed through money.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> According to Rav Yosef, must we say that the 
          Mishnah is only like Rebbi?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Ravina):</font></b> The Mishnah can be like everyone. The 
          slave belonged to partners, and one partner freed his 
          half.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rabah):</font></b> Rebbi and Chachamim argue only about when the 
          master frees half and retains the other half;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the master frees half and sells or gives the 
               other half for a gift, since the slave totally 
               leaves the master, all agree that this works.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> They argue even if this case!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If one wrote a document giving all his 
               property to his two slaves, they acquire the 
               property, and free each other;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> If one wrote a document saying 'all my 
               property is given to my two slaves', they do not 
               even acquire themselves.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Beraisa #1 is like Rebbi, and Beraisa #2 
               is like Chachamim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> No, both are like Chachamim. In Beraisa #1, he 
          gave to each slave a document giving all his property. In 
          Beraisa #2, the document says that each slave receives 
          half.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Seifa of Beraisa #2):</font></b> If he said half-half, 
          they do not acquire.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> In the Reisha, the document says that he 
               gives all his property!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1:</font></b> No, the Seifa explains the Reisha. They do not 
          even acquire themselves if he said half-half.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> This must be correct. If in the Reisha, he 
               gave all his property, and they do not acquire, 
               there would be no need to teach the case of half-
               half!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> No. The Seifa is needed, lest we say that 
               the case is that he said half-half, but had he said 
               'all', they would acquire.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since the Seifa explicitly teaches about half-
                    half, we infer that in the Reisha, he said all, 
                    and still, they do not acquire.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2:</font></b> In Beraisa #1, he gave a document to each 
          slave. In Beraisa #2, he gave one document to both of 
          them.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> If he only wrote one document, why does the 
          Beraisa say that he wrote half-half? Even if it said 
          'all', they would not acquire!
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  Indeed, the Beraisa means this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he only wrote one document, they do not acquire 
               themselves. If he gave each a document, they acquire 
               themselves;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he wrote half-half, even if each got his own 
               document, they do not acquire themselves.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer #3:</font></b> (Each document says 'all'.) In Beraisa #1, he 
          gave the documents simultaneously. In Beraisa #2, he gave 
          them one after the other.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> Granted, if he gave one after the other, 
               the latter does not acquire. However, the first 
               should acquire himself and the other slave!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This answer is rejected. We must answer like Answer 
               #1 or Answer #2.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #4 (Rav Ashi):</font></b> In Beraisa #2, they do not acquire 
          because the document calls them slaves. (This shows that 
          he does not intend to free them.)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Objection (Rafram):</font></b> Perhaps it means 'who used to be my 
          slaves'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven wrote a document giving all his 
               property to his slave, he goes free. If Reuven 
               retained any land for himself, he does not go free;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, he always goes free unless Reuven 
               writes 'all my property is given to my slave except 
               for one part in 10,000,'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had he not retained something for himself, the 
                    slave would go free, even though the document 
                    calls him a slave.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  We must say, it means 'who used to be my 
                    slave.' We can say the same in the Beraisa!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE LAW OF A HALF-SLAVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  If an ox gored a half-slave on a day when he works for 
          his master, the master receives damage payments. If it 
          was on his own day (when the half-slave works for 
          himself), he keeps the payments.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> If so, on his master's day he should be 
          permitted to marry a slave, and on his own day, he should 
          be permitted to marry a Bas Yisrael!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> The division of the slave between the master and 
          himself is only financial. It does not affect Isurim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If Reuven's ox (a Mu'ad, an 
          established gorer) killed a half-slave, Reuven pays half 
          of the fine (for a slave killed by a Mu'ad) to the 
          master, and half the Kofer (ransom for a free man killed 
          by a Mu'ad) to the half-slave's heirs.
<br>
<br>

sjt:
<font><b>1) SELLING A SLAVE FOR THE RIGHT TO RECEIVE THE 'KENAS' </b></font><b>
<br>QUESTION:</b> The Gemara asks what the Halachah is in a case of an owner of an Eved who sells his rights to receive the 'Kenas,' so that if an ox ever gores the Eved, the Kenas due to be paid to the owner will go instead to the buyer of the rights to receive the Kenas. For all other purposes, however, the original owner is still the full owner of the Eved. Is the owner allowed to sell his Eved only with regard to receiving the Kenas?
</p><p>
The Gemara says that this question applies according to both Rebbi Meir and the Rabanan. Although Rebbi Meir generally rules that a person may buy or sell an item that has not yet come into existence (and thus, in this case, the owner should be able to sell the rights to the future Kenas), perhaps this case is different. In a normal case of a 'Davar she'Lo Ba l'Olam,' the item is certainly going to come into the world (such as fruits that will grow on a tree). In this case, however, it is possible that there will never be any Kenas because perhaps the Eved will not be gored by an ox, and even if he is gored by an ox perhaps the owner of the ox will admit to the crime and thus exempt himself from the Kenas ('Modeh b'Kenas Patur'). Accordingly, Rebbi Meir's opinion in such a case remains in doubt.
</p><p>
The question also applies according to the view of the Rabanan who rule that a person <i>cannot</i> buy or sell an item that has not yet come into existence. Perhaps the Kenas of an Eved is different because all of the factors involved in causing the Kenas presently exist (that is, the Eved and the ox). Hence, the Kinyan is considered as though it is being made on an item that is in existence.
</p><p>
The Gemara's explanation for why its question applies to the view of the Rabanan is difficult to understand. <i>Most</i> of the cases which the Gemara classifies as cases of 'Davar she'Lo Ba l'Olam' also fit this description of the Kenas of an Eved. For example, when one buys 'Peros Dekel,' the fruits of a tree which have not yet grown on the tree, both the land and the tree are in the world; when one sells a field which he has not yet purchased ('Sadeh Zu l'k'she'Ekachenah'), the land, buyer, and owner are all in the world, but since the item being bought is not yet in the possession of the one who wants to sell it, the sale is considered to be taking place on a 'Davar she'Lo Ba l'Olam.'
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> explains that the case of the Gemara is a case of 'Dekel <i>l'Perosav</i>.' The Gemara states that if the transaction does not involve the sale of the <i>fruits</i> themselves for when they grow, but rather it involves the <i>tree</i> with regard to its fruit, it is considered a sale of a 'Davar she'Ba l'Olam' since the tree is in the world and the owner is selling a certain 'part' of the tree (its ability to create output). This is what the Gemara means: the sale was made on the actual body of the Eved with regard to his ability to produce a Kenas. (See also <b>TOSFOS</b> DH Eved.)
</p><p>
(The Rashba points out the difficulty in this explanation in light of the wording of the Gemara, but upholds this explanation because of the above questions.)
</p><p>
Based on the explanation of the Rashba, the difference between buying an Eved with regard to his Kenas and buying a tree with regard to its fruit may be understood. In the classic case of buying a tree for its fruit, the fruit grows directly out of the tree. Indeed, one easily can visualize a certain part of the tree from which the fruit will grow, and it is that part which is now being sold. In contrast, in the case of the Kenas of an Eved, the Kenas does not grow out of any part of the Eved. The Eved is just the cause for the obligation to pay the Kenas; there is no part of the Eved from which the Kenas comes out. The <b>KETZOS HA'CHOSHEN</b> (29:4) proves from the Gemara here that when one buys a tree for its fruit, the fruit does not need to be a direct outgrowth of the body of the item that exists now, but it can be any direct consequence that the body causes to come about. Such an 'outgrowth' is considered a dimension of the body that exists now and is therefore considered a 'Davar she'Ba l'Olam.'
</p><p>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why don't we say that if he was gored on the 
               master's day, the master gets the full fine, and if 
               it was on the slave's day, his heirs get the full 
               Kofer!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> The division of days applies only to the 
          earnings. This case is different, for the principal (the 
          slave) was consumed (died)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Above, we said that the one whose day it was 
          receives payments for damage. In what case does damage 
          not (at least partially) consume the principal?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1:</font></b> His hand was gored. It dried up, but later it 
          will fully heal.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> This is like Abaye, who says that a man who 
          inflicts such a wound pays both Nezek (the decrease in 
          the slave-market value of the victim) and Sheves 
          (compensation for inability to work until he recovers).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava holds that he pays only Sheves. The owner of an 
               animal that gored pays only Nezek. How can Rava 
               answer?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #2:</font></b> The case is, a man wounded the half-slave.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #3:</font></b> Amora'im taught that the payment goes to the 
          one whose day it was. Rava disagrees.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A SLAVE WAITING TO BE FREED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If Shimon's slave (Tavi) is Me'ukav Get 
          Shichrur (Shimon must free him), Shimon may not force him 
          to work. If an animal gores Tavi, does Shimon receive the 
          fine (that would be paid for a regular slave)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Thirty Shekalim will be paid to the master' - 
               Shimon is not his master, so he doesn't get it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he is like a master, since he must give 
               a Get?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Beraisa):</font></b> If Reuven's ox killed a half-slave, 
          Reuven pays half of the fine to the master, and half the 
          Kofer to the half-slave's heirs.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This Beraisa is like the latter Mishnah, 
               which forces a master to free his half-slave.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> No, it is like the original Mishnah, which 
          does not force him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (Beraisa):</font></b> If a master knocked out the tooth of 
          his slave and blinded his eye, the slave goes free due to 
          the tooth, and the master must pay him for his eye.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the master of a slave (whom he must free) 
               receives the fine if another man's ox gores the 
               slave, it is illogical that the master would have to 
               pay the slave if he himself hit him!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rejection:</font></b> The Beraisa is like the opinion that the slave 
          goes free (due to the tooth) and does not need a Get of 
          freedom.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael, R. Eliezer and R. Akiva):</font></b> If 
               a master destroys any of the external limbs of his 
               slave, the slave goes free, and needs a Get of 
               freedom;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir and R. Tarfon say, he goes free and does not 
               need a Get;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The arbitrators say, if a tooth or eye was knocked 
               out, since the Torah said that he goes free, a Get 
               is not needed. If any other limb was destroyed, he 
               needs a Get, since he goes free due to a fine 
               mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> This is not a fine mid'Rabanan. Chachamim 
               expounded verses!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is because it is a fine expounded 
               by Chachamim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> If a Kohen's slave is Me'ukav Get Shichrur, may 
          the slave eat Terumah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'The acquisition of his money may eat (Terumah)' - 
               this slave is not the Kohen's property!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since the Kohen must give him a Get, he is like 
               his property!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Mesharshiya taught that if the children of a 
          Kohen's wife and her slave got mixed up, the children may 
          eat Terumah, and they receive one share of Terumah at the 
          granaries;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When they grow up, they free each other.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> That is no proof. There, they eat, because if 
          we would find out which is the slave, he is truly the 
          property of his master;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In our question, the master has no right to make the 
               slave work!
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SELLING A SLAVE JUST FOR THE FINE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If one sold his slave only regarding the right 
          to collect the fine if the slave will be gored, is this a 
          valid sale?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We can ask according to R. Meir, and according to 
               Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir said only that one can acquire something not 
               yet in the world in a case such as Peros of a date 
               tree, which normally come. Here, nothing suggests 
               that the slave will be gored!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even if he is gored, perhaps the owner will 
                    admit to the fine and be exempt from paying!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim said only that one cannot acquire 
               something not yet in the world regarding Peros of a 
               date tree, for they are not here yet. Regarding the 
               fine, the slave and oxen are already in the world.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (R. Aba - Beraisa) Question:</font></b> What do we learn from 
          'one born (to a slave) in his (a Kohen's) house may eat 
          Terumah'? Even a slave bought for money may eat, all the 
          more so, one born to a slave!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that just like a 
               slave bought for money must be worth a Perutah, also 
               a slave's child eats Terumah only if he is worth a 
               Perutah. The verse teaches that he eats even if he 
               is not worth anything.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This teaches only about the child of a 
               slave. Perhaps a slave bought for money eats Terumah 
               only if he is worth a Perutah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> 'One bought for money and one born to his 
               slave' - just like a slave's child eats Terumah even 
               if he is not worth anything, also a purchased slave.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Culmination of answer):</font></b> If a slave may be sold for 
               rights to collect the fine (if he will be gored), 
               every slave is worth a Perutah (he may be sold for 
               this)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> Really, slaves can be sold for the fine. The 
          case of a worthless slave is a Treifah slave, for whom 
          there is no fine.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Even a Treifah is worth money. He can serve the 
          master!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, he is also a disgusting leper (and 
          unfit for service).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAN A HALF-SLAVE BE MEKADESH A WOMAN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If a half-slave was Mekadesh a Bas Yisrael, 
          does it take effect?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We can learn from a Yisrael who told a 
               Bas Yisrael 'you are Mekudeshes to half of me'; it 
               takes effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> There, she could be married to all of 
               him. (We cannot learn to a half-slave, for a Bas 
               Yisrael cannot marry all of him!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> We can learn from a Yisrael who told a 
               Bas Yisrael 'half of you is Mekudeshes to me'; it 
               does not take effect.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> There, he did not try to acquire all of 
               her. (We cannot learn to a half-slave who tried to 
               be Mekadesh an entire woman.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> If Reuven's ox killed a half-slave, 
          Reuven pays half of the fine to the master, and half the 
          Kofer to the half-slave's heirs.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Kidushin of a half-slave were invalid, (his 
               children would not have lineage from him, and) he 
               would not have any heirs!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection #1 (Rav Ada bar Ahavah):</font></b> The case is, the ox 
          did not kill the half-slave, it only made him a Treifah. 
          The Beraisa says that the heirs get half the Kofer, i.e. 
          the half-slave himself.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection #1 (to this rejection - Rava):</font></b> The Beraisa 
               says 'heirs', you cannot say it means him himself!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection #2 (Rava):</font></b> Reish Lakish taught that Kofer 
               is paid only after the victim dies.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection #2 (of Answer (b) - Rava):</font></b> The Beraisa means 
          that Kofer should be paid to the heirs, but there are no 
          heirs.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>KIDUSHIN OF A HALF-SHIFCHAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> Just like a Yisrael who half-is 
          Mekadesh a Bas Yisrael, this does not take effect, also 
          Kidushin of a half-Shifchah does not take effect.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Rabah bar Rav Huna taught this same law.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection (Rav Chisda):</font></b> You cannot learn from half-
          Kidushin, in which he did not try to acquire all of her; 
          to (full) Kidushin of a half-Shifchah!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rabah bar Rav Huna:</font></b> 'This stumbling under your hand' - 
          one understands words of Torah only after stumbling in 
          them! (I erred; now, I understand.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, even though half-Kidushin of a Bas Yisrael 
               does not take effect, Kidushin of a half-Shifchah 
               takes effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is because in the former case, he did not try 
               to acquire all of her. In the latter case, he did.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rav Sheshes):</font></b> Just like half-Kidushin of a Bas Yisrael 
          does not take effect, also Kidushin of a half-Shifchah 
          does not take effect.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Suggestion:</font></b> We should learn differently from a Beraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The Shifchah Charufah the Torah discusses 
               is a half-Shifchah Mekudeshes to an Eved Ivri 
               (Yisrael slave).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This shows that she can be Mekudeshes!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection (Rav Sheshes):</font></b> R. Yishmael says that the 
          Shifchah Charufah is a (full) Shifchah Mekudeshes to a 
          Yisrael slave.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Clearly a Shifchah cannot be Mekudeshes. You must 
               say that he says 'Mekudeshes', but he means 
               'designated';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We can say the same according to the opinion that 
               she is a half-Shifchah 'Mekudeshes' to an Eved Ivri!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> If a half-Shifchah was Mekudeshes to 
          Reuven, then she was freed, and became Mekudeshes to his 
          brother Shimon, and Reuven and Shimon died, she does 
          Yibum (or Chalitzah) with their brother. She is not 
          considered the widow of two brothers (who does not do 
          Yibum).
<br>
<br>

sjt:
<font><b>1) A HALF-SLAVE WHO MARRIES A FREE PERSON</b></font><b>
<br>QUESTION:</b> The Gemara discusses two similar cases of partial Kidushin: a case of a man who is half-Eved and half-free who is Mekadesh a Bas Chorin (a free woman), and a case of a Ben Chorin (a free man) who is Mekadesh a woman who is a half-Shifchah and half-free. The question is the same in both cases: does the Kidushin take effect on the free part of the person even though the other part of that person is an Eved or Shifchah?
</p><p>
The Gemara asks whether these cases are comparable to a case of a man who says to a woman that he is Mekadesh half of her (in which case the Kidushin does not take effect), or whether these cases differ from that case because, in that case, the man left over a part which he was not Mekadesh, but in these cases the man was Mekadesh every part that was possible for him to be Mekadesh.
</p><p>
The <b>RAMBAM</b> rules that the Kidushin in the case of a half-Eved, half-free man who is Mekadesh a Bas Chorin is a Safek Kidushin. However, in the case of a Ben Chorin who is Mekadesh a half-Shifchah, half-free woman, the Rambam rules that the Kidushin is completely valid. Why does the Rambam rule differently in each case, if the Gemara here addresses them as based on the same premise? (<b>RAN</b> in Kidushin, 3b of the pages of the Rif)
</p><p>
<b>ANSWER:</b> The <b>AVNEI MILU'IM</b> (44:3) proposes that there is a basic difference between the role of the man, the 'Mekadesh,' and the role of the woman, the 'Mitkadeshes,' in the Kidushin process. The role of the man is an <i>active</i> role, while the role of the woman is entirely <i>passive</i>. The specific act of Kidushin is performed by only one party -- the man who is the Mekadesh. The woman is just a recipient of the act of Kidushin, and she is not actively involved in it.
</p><p>
This difference explains why the Rambam rules the way he does in the two apparently similar cases, the case of a half-Eved, half-free man who performs an act of Kidushin, and a half-Shifchah, half-free woman who is merely the recipient of an act of Kidushin. The Rambam assumes that a Kidushin can take effect on half of a person (the half that is free, and not the half that is a Shifchah). However, an act of Kidushin cannot be performed by half of a person. Any act that a person done is per force done by the entire person and not just half of him. Since the Kidushin is done by one who is partly an Eved, it is invalid. (A. Kronengold)
</p><p>


<font><b>2) AGADAH: GROWTH IN TORAH THROUGH MISTAKES</b></font><b>
<br></b>Rabah bar Rav Huna expounded the verse, 'veha'Machshelah ha'Zos Tachas Yadecha' -- '... and let this ruin be under your hand' (Yeshayah 3:6), to be teaching that only through the humiliation that comes about through making mistakes in Torah does a person merit to reach great heights in Torah learning.
</p><p>
The <b>AHAVAS EISAN</b> in Berachos (28a) points out that although the Gemara here maintains that the only way to achieve the truth in Torah learning is by first erring, there are some notable exceptions to this rule.
</p><p>
The Gemara in Sanhedrin (99a) discusses the verse, 'Nefesh Amel Amlah Lo' (Mishlei 16:26), and says that when a person toils in Torah to his fullest potential, the Torah, as it were, requests of Hash-m to give over to that person the secrets of the Torah.
</p><p>
Also, the Gemara in Shabbos (63a) relates that 'when two Talmidei Chachamim sharpen each other in Halachah, Hash-m makes them successful' in their Torah learning.
</p><p>
The Ahavas Eisan explains that this was the intention of Rebbi Nechunya ben Hakanah in the prayer he authored for one who enters the Beis ha'Midrash to learn: 'May it be Your will... that I not stumble in a matter of Halachah and have my friends laugh at me....' Rebbi Nechunya beseeched Hash-m to help him use all of his ability in learning Torah so that he would merit the special gift of being given Torah directly, without having to endure the pain of humiliation that comes from making an error before reaching the truth in Halachah. (A. Kronengold)
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If you will say that Reuven's Kidushin took effect, 
               Shimon's Kidushin did not!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If you will say that Shimon's Kidushin took effect, 
               Reuven's Kidushin did not!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Rav Yosef bar Chama citing Rav Nachman):</font></b> If a half-
          Shifchah was Mekudeshes to Reuven, she was freed, and 
          became Mekudeshes to David, Reuven's Kidushin is 
          uprooted;
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (R. Zeira citing Rav Nachman):</font></b> Reuven's Kidushin becomes 
          full Kidushin.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Support (R. Zeira, for himself):</font></b> 'They (a Shifchah 
          Charufah and the man who had Bi'ah with her) will not 
          die, for she was not freed' - this implies that had she 
          been freed, they would be killed (for she is fully 
          Mekudeshes)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection (Abaye):</font></b> Tana d'Vei R. Yishmael says that a 
          Shifchah Charufah is a (full) Shifchah Mekudeshes to an 
          Eved Ivri. He cannot say that had she been freed, they 
          would be killed!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, he must explain that had she been freed and 
               then became Mekudeshes, she and the man who had 
               Bi'ah with her would be killed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We can say the same according to the opinion that a 
               Shifchah Charufah is a half-Shifchah!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Rav Huna bar Ketina):</font></b> A case occurred in which Chachamim 
          forced the owner of a half-Shifchah to free her.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Suggestion:</font></b> This is like R. Yochanan ben Brokah, who says 
          that 'be fruitful and multiply' is a Mitzvah for both men 
          and women. (They freed her to enable her to marry. Even 
          if she may be Charufah to an Eved Ivri, this is only when 
          Yovel applies, and normally only a sinner becomes an Eved 
          Ivri
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Rejection (Rav Nachman bar Yitzchak):</font></b> No, they forced him 
          to free her because men were sinning with her.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO SELLS HIS SLAVE TO A NOCHRI OR TO CHUTZ LA'ARETZ</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one sells his slave to a Nochri or to Chutz 
          La'aretz, the slave becomes free.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara - Beraisa):</font></b> If one sells his slave to a Nochri, 
          the slave becomes free, and needs a Get of freedom from 
          his master who sold him;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Shimon ben Gamliel says, this applies only if his Ono 
          was not written. If it was written, it serves as his Get 
          of freedom.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> What is an Ono?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Sheshes):</font></b> It is a document saying 'when you 
          flee from your new master, I have nothing to do with 
          you.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Beraisa #1):</font></b> A Yisrael borrowed from a Nochri (Tony), 
          and used his slave as collateral, once Tony makes Nimuso 
          on him, the slave goes free.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> What is Nimuso?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #1 (Rav Huna bar Yehudah):</font></b> It is a neck brace 
          identifying that he is Tony's slave.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Objection (Rav Sheshes - Beraisa #2):</font></b> The produce of a 
          Nochri's field is exempt from Ma'aser in all these cases:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven is a regular or hereditary sharecropper 
               working it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reuven is renting it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The field is collateral for a loan that Reuven gave 
               the Nochri, even though he made Nimuso on it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A neck brace does not apply to a field!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (Rav Sheshes):</font></b> Nimuso means a date (after which 
          the collateral will be collected as payment of the loan).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> In Beraisa #1, setting a date makes it 
          considered a sale. In Beraisa #2, it does not!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #1:</font></b> It is considered a sale only after the date 
          arrives.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Objection:</font></b> If (in Beraisa #1) the date has arrived, 
          obviously, it is like a sale!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #2:</font></b> In both Beraisos, the date did not arrive. 
          (Rashi - regarding a slave, when the date arrives he will 
          be fully sold (so it is considered a sale once the date 
          is set). Regarding a field, only the Peros will be sold 
          when the date arrives, so the field is not considered 
          sold to the Yisrael. Tosfos - the slave himself is 
          already by the Nochri, and cannot keep the Mitzvos, so it 
          is as if he was already sold. Regarding a field, the 
          Yisrael gets only the Peros; the field itself always 
          belongs to the Nochri.)
<br>

sjt:
<p>
<font><b>3) THE KIDUSHIN OF A HALF-SHIFCHAH WHO WAS THEN FREED</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case of a man (Reuven) who was Mekadesh the free part of a half-Shifchah, half-free woman. The woman was then given her full Shichrur and became entirely free. Another man (Shimon) was then Mekadesh her.
</p><p>
The Gemara assumes that one of two things must happen: either the first Kidushin is completely eliminated or now it becomes even stronger and is considered to be completed.
</p><p>
Why does the Gemara not consider the seemingly more logical possibility that the woman remains as she was before she was freed entirely, and she is half-Mekudeshes?
</p><p>
<b>ANSWER: RASHI</b> explains that since the Shifchah received a full Shichrur, she is considered an entirely new person. Therefore, the old Kidushin can no longer work for her. It is as if the Kidushin was done with a different woman.
</p><p>
<b>TOSFOS</b> (DH Gamru) explains that although the Kidushin took effect when she was half-free, after her Shichrur the situation changes since, at the time of the Kidushin, there was no 'Shiyur' (no part of her was left without Kidushin that could have received Kidushin). Now that her other half is also free, the Kidushin is viewed as having a 'Shiyur' and lacking, since it is now possible for all of her to receive Kidushin. Therefore, one of two things must happen: either the Kidushin becomes entirely invalid or it now spreads to all of her. (A. Kronengold)
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A SLAVE GIVEN FOR COLLATERAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Version #1 (Rashi) Answer #3:</font></b> (In both cases, the date 
          arrived.) Regarding the field, Reuven did not take the 
          fruit. (Therefore, it is exempt from Ma'aser.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Version #2 (Tosfos) Answer #3:</font></b> (In Beraisa #1, the date 
          arrived.) The Beraisa teaches that he goes free, even 
          though the Nochri did not yet take him. (In Beraisa #2, 
          the date did not yet arrive.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If a Nochri collected a slave for payment of a 
          debt, or a slave was given for a bribe to a Nochri who 
          often kills Yisre'elim, he does not go free.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Contradiction (Beraisa):</font></b> If the king's servants took 
          produce of a Yisrael:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they took it for payment of a debt, the Yisrael 
               must take Ma'aser on it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it was taken for no reason, he need not take 
               Ma'aser.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Regarding Ma'aser, since the Yisrael benefits 
          from the produce (this pays his debt) he must tithe it. 
          (However, it is not considered a sale to be subject to 
          the fine of our Mishnah.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Rav taught that if Reuven sold his slave to a 
          Nochri who makes false claims to take property, he goes 
          free!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> There, Reuven is fined, for he should have 
          appeased the Nochri with other property.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Rav):</font></b> If Reuven sold his slave to a Nochri who makes 
          false claims to take property, he goes free.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Why is Reuven fined? He is blameless!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> He should have appeased the Nochri with other 
          property.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question (R. Yirmeyah):</font></b> If a Yisrael sold his slave to a 
          Nochri for 30 days, what is the law?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> Rav taught that if, Reuven sold his slave to a 
          Nochri who makes false claims to take property, he goes 
          free. (We are thinking that he gave his slave only 
          temporarily.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Rejection:</font></b> No. The case is, he gave the slave 
          permanently.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> What is the law if the slave was sold on one of 
          the following conditions?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The buyer cannot make him work.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The buyer must allow him to keep Mitzvos.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The buyer cannot make him work on Shabbos and Yom 
               Tov.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The buyer was a Nochri who accepted to keep his 
               seven Mitzvos.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The buyer was a Yisrael Mumar (idolater).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> The buyer was a Kusi.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer (for case 4):</font></b> Selling to a Nochri who keeps his 
          seven Mitzvos is like selling to a regular Nochri.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say that a Yisrael Mumar and a Kusi are like 
               Nochrim. Some say that they are like Yisre'elim.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A SLAVE WHO GAVE HIMSELF OVER TO CAPTORS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If a slave gave himself over to captors, and 
          his owner cannot recover him, neither through courts of 
          Yisrael or the Nochrim, may the owner accept payment from 
          the captors?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (R. Zerika - Beraisa):</font></b> If one sells his house 
          (in Eretz Yisrael) to a Nochri, he may not benefit from 
          the money;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a Nochri forcibly took the house, and the Yisrael 
               cannot recover it, neither through courts of Yisrael 
               or the Nochrim, the owner may accept payment for it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He may do this through the civil courts, for it is 
               saving his loss.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps we do not decree about a house, for 
          everyone needs a house and one would not come to sell 
          willingly. Regarding a slave, we decree, lest he come to 
          sell willingly!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (R. Ami):</font></b> The master may accept payment for his 
          slave. He may do so through the civil courts, for it is 
          saving his loss.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Version #1 (R. Yehoshua ben Levi):</font></b> If Reuven sold his 
          slave to a Nochri, we fine Reuven, and force him to 
          redeem his slave, even for 100 times the sale price.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Do we understand 100 literally? (Rashi - or, it 
          is an exaggeration? Tosfos - or, there is no limit?)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> Reish Lakish taught that if Reuven sold a work 
          animal to a Nochri, we fine Reuven, and force him to 
          redeem his animal, even for 10 times the sale price. 
          (Rashi - this shows that 100 was an exaggeration; Tosfos 
          - just like we fine even more than 10, we fine even more 
          than 100!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps the sale of a slave is worse, for this 
          prevents the slave from keeping Mitzvos.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Version #2 (R. Yehoshua ben Levi):</font></b> If Reuven sold his 
          slave to a Nochri, we fine Reuven, and force him to 
          redeem his slave, even for 10 times the sale price.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> Do we understand 10 literally?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> Reish Lakish taught that if Reuven sold a work 
          animal to a Nochri, we fine Reuven, and force him to 
          redeem his animal, even for 100 times the sale price.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection #1:</font></b> Perhaps he must pay more to redeem his 
          animal, for he will get to keep his animal. (But when he 
          redeems his slave, the slave is free.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Objection (to rejection):</font></b> If that is the reason, he 
          should need to pay extra (above 10) only the price (11 in 
          all)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection #2:</font></b> The sale of a slave to a Nochri is 
          uncommon, so a large fine was not levied for it.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question (R. Yirmeyah):</font></b> If Reuven sold his slave to a 
          Nochri, and Reuven died, do we force Reuven's son to 
          redeem him?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> If Reuven blemished a Bechor (firstborn 
               male Tahor animal) and he died, we fine his son 
               (that he may never eat the animal, and likewise we 
               fine his son here).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> There, Reuven transgressed Torah law. We 
               cannot learn to our case, which is only mid'Rabanan.
<br>
<br>

sjt:
<font><b>1) REGISTERING A SALE IN A SECULAR COURT OF LAW</b></font><b>
<br>QUESTIONS:</b> A Beraisa states that when a Jew sells a house to a Nochri, the Jew may not derive benefit from the money of the sale. <b>RASHI</b> (DH ha'Mocher) explains that the Beraisa refers specifically to the sale of property in Eretz Yisrael, where a Jew is prohibited from selling his property to a Nochri. The Gemara in Avodah Zarah (20a) derives this prohibition from the verse, 'Lo Sechanem' (Devarim 7:2), which the Gemara interprets as a prohibition against allowing Nochrim to have a foothold in Eretz Yisrael.
</p><p>
If, however, a Nochri forcibly takes a house from a Jew, and the Jew is unable to recover it in Beis Din or through the laws of the Nochrim, he is permitted to receive (and benefit from) payment from the Nochri for his house. Moreover, he is permitted to write a deed of possession for the Nochri and present it to the courts of law of the Nochrim. Rashi (DH u'Ma'aleihu) explains that although Halachah normally forbids a Jew from litigation in a secular court (in order not to show respect to the Nochri judicial system), in this case he is permitted to plead his case in a secular court because he is merely recovering his money from the Nochri.
</p><p>
<b>TOSFOS</b> (DH v'Kosev) asks that it appears from Rashi's words that litigation in a Nochri court is prohibited because it shows respect to the Nochri judicial system, which in turn shows respect to their deities (see <b>MAHARAM</b>). However, the Mishnah earlier (10b) states that any document which has been examined and validated by a Nochri court is valid. If processing deeds in a Nochri court is prohibited just as litigation in a Nochri court is prohibited, why does the Mishnah not say that such a document is valid only b'Di'eved? The Mishnah implies that documents validated by a Nochri court are valid even l'Chatchilah and there is <i>no</i> concern that validating the documents in a Nochri court shows respect to their court and to their deities.
</p><p>
The <b>CHASAM SOFER</b> (Teshuvos CM 3) asks two more questions on Rashi's explanation. The Torah states, 'And these are the laws which you (Moshe) shall place before them' (Shemos 21:1). This verse teaches that a Jew may not present his case before a Nochri court when he is able to bring the case to Beis Din (Gitin 85a). This prohibition applies only to actual litigation; it does not apply to the mere registration of a sale.
</p><p>
Moreover, Rashi here appears to contradict what he writes in Avodah Zarah (13a). The Gemara there rules that during a market fair one may visit a Nochri court and compose deeds of sale for property he purchased during the fair, because without such deeds he will have no proof of purchase and he may lose the property. Rashi there (DH u'Ma'aleh) writes that although the Nochrim feel honored from the Jew's recognition of their courts, and as a result the Nochri may go and give thanks to his deity, the Jew still is permitted to use the services of the Nochri court to save himself from a loss. Apparently, Rashi there understands that only on the Nochri's festival is there a potential problem with visiting the Nochri court to sign a deed of sale, since on that day the Nochri might give thanks to his deity. On ordinary days there is no such concern, and thus there is no prohibition against signing a deed in a Nochri court, even when the Jew will suffer no loss if he does not go to their courts. Why, then, does Rashi here write that a Jew is permitted to have a deed signed in a Nochri court only when doing so will prevent a loss?
</p><p>
<b>ANSWER:</b> The <b>CHASAM SOFER</b> answers that Rashi does not consider the possibility that registering a sale in a Nochri court should be prohibited the same way that litigation in a Nochri court is prohibited. Rather, Rashi here refers specifically to selling a house in Eretz Yisrael to a Nochri. Although the house was already taken by the Nochri by force, it is still inappropriate to empower the Nochri court to verify the deed of sale, as if the court has some type of authority in Eretz Yisrael. The 'importance' which one may not attribute to their courts is not 'importance' of their judicial system, but rather their apparent sovereignty over Eretz Yisrael which one shows by having his property transactions validated in their courts. If not for the fact that the Jew otherwise would lose the value of his house, attributing such importance to the Nochri courts would be forbidden.
</p><p>
This approach explains why Rashi in Avodah Zarah does not mention the reason that validating a contract in a Nochri court is similar to litigating in a Nochri court, but he explains instead that the prohibition applies only to the day of the Nochri's fair. Since the Gemara there does not refer to the sale of property in Eretz Yisrael, the reasoning of Rashi here does not apply there. (D.Bloom)
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> If Reuven intentionally left work to do 
               during Chol ha'Mo'ed and he died, we do not fine his 
               son (he may benefit from it. Also here, we do not 
               fine the son.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> There, Reuven died without transgressing. 
               We cannot learn to here, where the father 
               transgressed.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Summation of question:</font></b> Here, is the fine against one 
               who sells his slave (but not against his son)? Or is 
               it against the seller's money (and his money must be 
               used to redeem the slave)?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer (R. Asi - Mishnah):</font></b> If a field was weeded in 
          Shemitah, it may be seeded the next year. If it was 
          fertilized in Shemitah, it may not be seeded the next 
          year;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> If Reuven fertilized it and 
               died, Reuven's son may seed it the next year.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This shows that we fined only the transgressor, but 
               not his son.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  (Abaye):</font></b> If Reuven was Metamei Shimon's food, and Reuven 
          died, Reuven's son need not compensate Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because undetectable damage is not 
               considered damage. Chachamim fined one who does so. 
               This fine was levied only against the damager, but 
               not against his son.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE WHO SOLD HIS SLAVE TO CHUTZ LA'ARETZ</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Or to Chutz La'aretz...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If one sells his slave to Chutz La'aretz, he 
          goes free, and needs a Get of freedom from the buyer;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Shimon ben Gamliel says, whether he goes free depends 
          on the wording of the sale:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'I sold my slave to Ploni the Antuchi', 
               he does not go free;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'I sold my slave to Ploni the Antuchi who 
               lives in Antuchiya', he goes free.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Contradiction (Beraisa):</font></b> If he said 'I sold him to Ploni 
          the Antuchi', he goes free;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'I sold him to Ploni the Antuchi who 
               lives in Lud', he does not go free.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> If Ploni has a house in Eretz Yisrael, the slave 
          goes free only if he said 'who lives in Antuchiya.' If 
          Ploni has only a place in Eretz Yisrael where he lodges, 
          the slave goes free even if he did not say this.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (R. Yirmeyah):</font></b> If a man from Bavel married a 
          woman of Eretz Yisrael, who brought slaves into the 
          marriage, and he intends to return to Bavel, do the 
          slaves go free? (The slaves are Tzon Barzel; he may use 
          them, and when she receives her Kesuvah he returns them. 
          Compensation is given if their value went up or down.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We can ask this according to the opinion that the 
               law favors her (she can demand to receive back the 
               same Tzon Barzel property that she brought into the 
               marriage), and according to the opinion that the law 
               favors him (he can keep the property and return its 
               initial value).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to the opinion that the law favors her, do 
               we say that it is like her property (the slaves were 
               not sold)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Or, since they work for her husband, they are 
                    like his?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> According to the opinion that the law favors him, do 
               we say that it is like his property (they were 
               sold)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Or, since he only owns their earnings, they are 
                    like hers?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (R. Avahu):</font></b> If a slave followed his master to Surya and 
          was sold there, he goes free.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> R. Chiya taught that the slave (by agreeing to 
          leave Eretz Yisrael) lost his privilege (the fine does 
          not apply)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> R. Avahu discusses when the master intended to 
          return to Eretz Yisrael. R. Chiya discusses when he 
          intended to stay in Chutz La'aretz.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Support (Beraisa):</font></b> A slave follows his master to Surya...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> A slave need not go!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> One cannot force (his slave ) to 
                    leave Eretz Yisrael...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, if a slave followed his master 
               to Surya and was sold there, if the master intended 
               to return to Eretz Yisrael, he must free him. If he 
               intended to stay in Chutz La'aretz, he need not free 
               him.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rav Anan:</font></b> I heard the above teaching from Shmuel, and 
          also the following.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If Reuven sold his field during the Yovel 
               year, it is sold, and reverts to Reuven;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> It is not sold at all.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question (Rav Anan):</font></b> In only one case, Shmuel says that 
          the buyer gets back his money - I do not know in which.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer (Rav Yosef - Beraisa):</font></b> If one sold his slave to 
          Chutz La'aretz, he goes free and needs a Get of freedom 
          from the buyer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the buyer owns him, Shmuel cannot say that the 
               money goes back!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Conclusion:</font></b> We must say that regarding Yovel, Shmuel 
               says that it is not a sale and the buyer gets back 
               his money.
<br>

sjt:
<p>
<font><b>2) THE OWNERSHIP OF PROPERTY BROUGHT BY THE WOMAN INTO THE MARRIAGE</b></font><b>
<br>QUESTION:</b> The Mishnah (43b) states that when one who owns a slave in Eretz Yisrael sells him to one who lives in Chutz la'Aretz, the buyer must set the slave free. <b>RASHI</b> (DH Yetzei l'Cheirus) explains that the Rabanan imposed a fine on the buyer for causing the slave to leave Eretz Yisrael.
</p><p>
In the Gemara later (44b), Rebbi Yirmeyah asks the following question: When a man from Chutz la'Aretz marries a woman in Eretz Yisrael who brings her slaves and maidservants into the marriage, is the woman considered to have sold her slaves to Chutz la'Aretz since her husband intends to return to Chutz la'Aretz with her? <b>RASHI</b> (DH Mahu) explains that the Gemara in Kesuvos (95b) states that when a man marries a woman, he becomes the owner of her property as though he bought it. Perhaps, therefore, she is considered to have sold her slaves to Chutz la'Aretz and must let them go free.
</p><p>
The Gemara analyzes Rebbi Yirmeyah's question in light of a dispute recorded in Yevamos (66a-b). The Gemara there discusses a case in which a woman brought into the marriage 'Nichsei Tzon Barzel,' the value of which was assessed before the marriage. ('Nichsei Tzon Barzel' refers to possessions the wife owned before marriage, the values of which were assesses and recorded in the Kesuvah, to be returned to her in full upon divorce or upon the husband's death. These possessions are called 'Nichsei Tzon Barzel' -- literally, 'iron flock properties,' because their value does not change between the time of marriage and the time of divorce or the husband's death.) The marriage ended in divorce. The woman demanded that her former husband return to her the exact items that she brought into the marriage, while the husband claimed that he was entitled to keep those items and merely pay their monetary value according to the original assessment. Rav Yehudah rules that <i>her</i> claim is justified and she is entitled to receive her possessions in return. Rebbi Ami rules that <i>his</i> claim is justified and he is entitled to keep the items and pay her for their value.
</p><p>
The Gemara here explains that Rebbi Yirmeyah's question applies to both opinions. Rav Yehudah, who rules that she may demand the return of her items, maintains that those items always remain in her possession. Accordingly, when a man attempts to sell his wife's slaves to Chutz la'Aretz, perhaps the sale is not valid without her consent and thus the slaves do not go free. On the other hand, perhaps since the husband has control over the slaves during the marriage (see <b>RASHI</b> DH l'Peira} they are considered his and the sale is valid, and thus he is penalized and must let the slaves go free.
<br> 
<br>According to Rebbi Ami, who rules that the husband is not required to return the actual items to his former wife but only pay her for them, during the marriage the slaves apparently belong to the husband and thus perhaps his sale should be valid and he should be penalized. On the other hand, perhaps the husband's right to use the slaves does not give him actual ownership over them. <b>RASHI</b> (DH d'Lo) explains that proof that the husband does not really acquire the slaves is the fact that if he dies or divorces her, the slaves return to her. Consequently, since they are still his wife's possessions they cannot be sold to Chutz la'Aretz without her consent.
</p><p>
The <b>MAHARSHA</b> asks that Rashi's proof seems to contradict the Gemara's logic. The dispute in the Gemara in Yevamos (66b) involves whether or not the husband may insist on keeping his wife's possessions in the event of divorce. The Gemara here addresses the opinion of Rebbi Ami that he may keep those possessions (and give her monetary compensation instead). Why, then, does Rashi write that even when he divorces her the slaves automatically return to her? Rebbi Ami rules that the slaves do <i>not</i> return to her (unless her husband chooses to give them back instead of compensating her for them)! (Rashi himself (DH Tiba'i) explains that this is the point of the dispute.)
</p><p>
<b>ANSWER:</b> The <b>RAMBAN</b> explains that Rashi here means that although the husband may keep his former wife's possessions and give her monetary compensation in their place (according to Rebbi Ami), in most cases the wife indeed collects her possessions. The Ramban writes that this is the reason why these possessions are called 'Nichsei Tzon Barzel' -- their value is permanently fixed, and thus the husband must return the same items to her, or replace them or their value even if they were destroyed by unavoidable circumstances (Ones). Similarly, he is obligated to compensate her if their value decreases (see Bava Metzia 70b).
</p><p>
The Ramban enumerates other reasons why the possessions presumably return to her. He concludes that since the Gemara here discusses a penalty imposed by the Rabanan upon one who sells slaves to Chutz la'Aretz, the Gemara certainly does not consider the slaves as totally in the ownership of the husband when they are almost always destined to return to the wife (in the event of divorce or the husband's death). This is why Rashi explains, even according to the opinion of Rebbi Ami, that the property returns to the wife (and thus there are grounds <i>not</i> to apply the penalty in this case). (D. Bloom)
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE BUYER IS FINED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Rav Anan was unable to settle his doubt because he had 
          not heard the Beraisa.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  One cannot settle it from what Shmuel himself said that 
          it is not sold. Perhaps he meant that it is not sold, and 
          the money is like a gift, like one who was Mekadesh his 
          sister:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If one was Mekadesh his sister, she must 
               return the money;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> He gave it for a gift. She keeps it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> Why is the buyer fined? (Shmuel says, 
          he does not get his money back, and the slave goes free.) 
          The seller should be fined!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Rav Yosef):</font></b> If not for the hole (a place to put 
          the stolen goods), the mouse could not steal!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> (Abaye): If not for the mouse, the hole would 
          not do anything!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Rav Yosef):</font></b> It is more reasonable to fine the 
          buyer, since the Isur (the slave) is by him.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A SLAVE WHO FLED TO ERETZ YISRAEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  A slave fled from Chutz La'aretz to Eretz Yisrael. His 
          master pursued and caught him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  R. Ami (to the master):</font></b> You must free him. We will make 
          him write a document saying that he owes you his value. 
          If you do not agree, I will free him based on R. Achi 
          b'Rebbi Yoshiyah's teaching!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Suggestion:</font></b> 'They (the seven Kena'ani 
               nations) will not dwell in your land' - perhaps this 
               is even one who accepted not to serve idolatry!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Do not return a slave to his master, who 
               flees to you from his master.' Rather, 'he will 
               dwell among you.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (R. Yoshiyah):</font></b> Why does it say 'his 
               master'? It should say 'his gods'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (R. Yoshiyah):</font></b> Rather, the verse discusses one who 
               sells his slave to Chutz La'aretz.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (R. Achi b'Rebbi Yoshiyah):</font></b> Why does it say 
               'who flees to you' - it should say, 'who flees from 
               you'!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (R. Achi b'Rebbi Yoshiyah):</font></b> Rather, the 
               verse discusses a slave who flees from Chutz 
               La'aretz to Eretz Yisrael.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Beraisa - Rebbi):</font></b> 'Do not return a slave to his master' 
          discusses one who bought a slave in order to free him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> What is the case?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Nachman bar Yitzchak):</font></b> He gave a document to 
          the slave saying 'when I buy you, you are retroactively 
          free from now.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Rav Chisda's slave fled to Bei Kusoy (also in Bavel). He 
          asked them to send the slave back. They replied 'do not 
          return a slave to his master (who flees to you from his 
          master).'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> The verse discusses a slave who flees 
               from Chutz La'aretz to Eretz Yisrael, like R. Achi 
               b'Rebbi Yoshiyah taught.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't he explain the verse like 
               Rebbi?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> They were more likely to accept R. Achi's 
               explanation, since it was closer to their 
               understanding.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Abaye lost a donkey in Bei Kusoy. He asked them to return 
          it; they asked him for a sign that it is his.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> Its stomach is white.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The finders:</font></b> If we didn't know you (that you would 
               never lie), we would not return it. All donkeys have 
               white stomachs!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>REDEEMING CAPTIVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> We do not redeem captives for more than their 
          value. This is a decree for Tikun ha'Olam.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  We do not help captives escape, for Tikun ha'Olam (lest 
          captors be harsher with captives);
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Shimon ben Gamliel says, this is to help captives.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> How does this fix things? Is it to 
          avoid depletion of the community's money, or so that 
          captors will not be encouraged to capture even more?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Levi bar Darga redeemed his daughter for 13,000 
          gold coins. (This shows that the concern is not lest 
          captors capture more, rather, for the money of the 
          community.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection (Abaye):</font></b> Perhaps Chachamim disapproved of his 
          action!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> We do not help captives escape, for Tikun 
          ha'Olam. R. Shimon ben Gamliel says, this is to help 
          captives.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What difference does it make which is the 
          reason?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> This affects the law when now there is only one 
          captive. (Chachamim forbid helping him to escape, and R. 
          Shimon ben Gamliel permits.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  Rav Nachman's daughters used to stir (boiling) pots with 
          their hands. This puzzled Rav Ilish. It says 'I did not 
          find one man in 1000 (so righteous to merit such 
          miracles), and not a single woman', but Rav Nachman's 
          daughters are so righteous!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Ilish and Rav Nachman's daughters were taken 
               captive. Rav Ilish found a man who understood the 
               language of birds. A raven was chirping at Rav 
               Ilish. The man said that it was telling Ilish to 
               flee.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Ilish:</font></b> One cannot rely on ravens. They lie.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A dove chirped at Rav Ilish. The man said that it 
               was telling Ilish to flee.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Ilish:</font></b> The congregation of Yisrael is compared 
               to a dove. Surely, a miracle will be done for me! I 
               will check Rav Nachman's daughters. If they are 
               still so righteous, I will take them with me.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He went to the privy, for there women relate 
                    their matters. He overheard them planning to 
                    ask the captors to take them further away, so 
                    they could live with them, and their real 
                    husbands will not come to redeem them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rav Ilish fled with the man who knew bird language. 
               Rav Ilish escaped; the man was caught and killed. He 
               concluded that Rav Nachman's daughters stirred pots 
               with their hands through witchcraft.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>REDEEMING KISVEI HA'KODESH FROM NOCHRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> We do not buy Sefarim, Tefilin or Mezuzos from 
          Nochrim for more than their value, for Tikun ha'Olam.
<br>
<br>

sjt:
<font><b>1) REDEEMING A TORAH SCHOLAR FROM CAPTIVES FOR AN EXORBITANT SUM</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that because of 'Tikun ha'Olam' we may not redeem captives for more than their actual monetary value. The Gemara asks what the Mishnah means by 'Tikun ha'Olam.' Does 'Tikum ha'Olam' refer to preventing the impoverishment of the community, 'Duchka d'Tzibura,' which would occur if the community would be required to free captives for whatever sum the captors demand, or does the term refer to deterring criminals from increasing their efforts to kidnap additional people?
</p><p>
<b>RASHI</b> (DH O Dilma) writes that the difference between the two explanations exists in a case in which the captive has a wealthy relative who is willing to shoulder the exorbitant ransom himself. According to the first reason, he should be allowed to pay the ransom because his capitulation to the captors' demand will not impoverish the community. According to the second reason, he should not be allowed to pay the ransom because his capitulation will encourage the captors to kidnap more people. The Gemara here does not conclude which explanation is the correct one for the Mishnah's reason of 'Tikun ha'Olam.'
</p><p>
The Gemara later (58a), however, apparently <i>does</i> rule in accordance with one of the two explanations. The Beraisa there relates that Rebbi Yehoshua ben Chananya once traveled to a large city in Rome. He was told that there was a handsome, young Jew sitting in prison. Rebbi Yehoshua stood at the entrance of the prison and recited the verse, 'Who gave Yakov over for spoils and Yisrael to plunderers?' (Yeshayah 42:24). The boy in prison answered with the end of the verse, 'Is it not Hash-m to Whom we have sinned?' Rebbi Yehoshua declared that he was certain that the boy was destined to become a 'Moreh Hora'ah' for the Jewish people. Rebbi Yehoshua swore that he would not leave until he redeemed the boy from prison, even if his captors would demand a large ransom. He indeed redeemed the boy for a large ransom, and as he predicted the boy became a leader of the Jewish people -- Rebbi Yishmael ben Elisha.
</p><p>
Why was Rebbi Yehoshua permitted to redeem the boy for an exorbitant sum of money, if the Mishnah here states that one may not redeem a captive for more than his market value? It must be that Rebbi Yehoshua maintained that the Mishnah's reasoning is 'Duchka d'Tzibura.'
</p><p>
Is this indeed the conclusion of the Gemara?
</p><p>
(a) <b>TOSFOS</b> (DH d'Lo) and the <b>RITVA</b> challenge the second explanation of the Gemara here from the incident involving Rebbi Yehoshua ben Chananya. Tosfos answers that 'the boy was exceptionally wise.' How does this answer the question, why did Rebbi Yehoshua permit himself to redeem the captive for an exorbitant sum?
</p><p>
The <b>RAMBAN</b> explains that when a Talmid Chacham is taken captive, he must be redeemed for whatever sum of money the captors demand. This is because a Talmid Chacham is irreplaceable, as the Gemara in Horayos (13a) teaches. The Gemara there rules that in a case in which a Talmid Chacham and a Jewish king have been taken captive, the Talmid Chacham is redeemed first because he is irreplaceable, while any Jew can become king. Similarly, the community can replace its wealth, but it cannot so easily replace its Talmidei Chachamim. Accordingly, the reason of 'Duchka d'Tzibura' does not apply when the captive is a Talmid Chacham. When Rebbi Yehoshua realized that the boy was a Talmid Chacham, he was willing to pay more than his market value to free him.
</p><p>
(b) Alternatively, Tosfos answers that the incident involving Rebbi Yehoshua ben Chananya occurred at the time of the destruction of the Beis ha'Mikdash. The <b>RAMBAN</b> explains that at the time of the Churban, the necessity to prevent criminals from increasing their efforts to take captives did not apply; at the time of the Churban, <i>all Jews</i> were in imminent danger of becoming captives.
</p><p>
(c) <b>TOSFOS</b> later (58a, DH Kol) explains that the Mishnah's ruling that one must not overpay to redeem captives applies only when the captives are not in mortal danger. Tosfos proves this from the Gemara (47a) which says that although one normally should not redeem a Jew who sold himself as a slave to Nochrim, if the Jew's life is in danger one may redeem him. Tosfos understands from the Gemara there that different rules apply to captives who are in mortal danger.
</p><p>
The <b>RAMBAN</b> rejects this answer. He argues that the Mishnah here certainly refers to captives in mortal danger, as all captives are constantly faced with a threat of losing their lives. (For further discussion on the subject, see <b>PISCHEI TESHUVAH</b>, YD 252:4). (D. Bloom)
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara - Rav Budya):</font></b> 'We do not buy them for more than 
          their value' implies that we may buy them for their 
          value!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that we may read from a Sefer Torah 
               found by a Nochri!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps we may not read from it. The Mishnah 
          discusses one who buys them to bury them (lest they be 
          desecrated).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> A Sefer Torah written by a Min (a zealous 
          idolater) must be burned. If a (regular) Nochri wrote it, 
          it is buried;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Sefer Torah found with (i.e. belongs to) a Min is 
               buried;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1:</font></b> If it is found with a Nochri, it is 
               buried.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2:</font></b> We may read from it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Beraisa #1):</font></b> If a Sefer Torah was written by a Nochri, 
          we burn it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Beraisa #2):</font></b> We bury it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Beraisa #3):</font></b> We may read from it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  Beraisa #1 is like R. Eliezer, who assumes that all 
          actions of a Nochri are for the sake of idolatry;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  Beraisa #2 is like the following Tana.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Hamnuna - Beraisa):</font></b> A Sefer Torah, Tefilin, or 
               Mezuzah written by an informer, Nochri, slave, 
               woman, minor, Kusi, or Yisrael Mumar is Pasul.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'You will bind... and you will write' - only one who 
               is commanded to wear Tefilin is qualified to write 
               them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  Beraisa #3 is like the following Tana.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> We may buy Sefarim from Nochrim anywhere, 
               as long as they are written properly.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> There was a Nochri in Tzidan who used to write 
               Sefarim. R. Shimon ben Gamliel permitted buying from 
               him.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> Is it possible that R. Shimon requires tanning 
          the hide l'Shem (for the sake of) Sefarim, but the 
          writing does not require intent?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Tefilin (boxes) were covered with 
               gold, or were made from the hide of a Tamei animal, 
               they are Pasul. If they were from the hide of a 
               Tahor animal, they are valid, even if the hide was 
               not tanned l'Shem Tefilin;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, even the hide of a Tahor 
               animal is Pasul unless it was tanned Lishmah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer (Rabah bar Shmuel):</font></b> R. Shimon permitted buying 
          (not from a real Nochri, rather,) from a convert who 
          reverted to being a Nochri.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> All the more so, what he writes is Pasul. He is 
          considered a Min!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> He reverted because he feared for his 
          life.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (Beraisa):</font></b> One may pay one Trape'ik more than their 
          value.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> How much is a Trape'ik?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer (Rav Sheshes):</font></b> It is one Istira (half a Dinar).
<br> <b>    <b><font color='darkgreen'>(r)</font></b></b>  An Arab woman showed a sack of Tefilin to Abaye. He asked 
          if she would sell each pair for a date. She was enraged, 
          and threw them in the river.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> I should not have disgraced them so much in 
               front of her.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>DIVORCEES WHO MAY NOT REMARRY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Reuven divorced his wife due to her ill 
          repute, or because of a vow, he may never remarry her;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Yehudah says, if many knew about the vow, he may not 
          remarry her. If not, he may;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Meir says, if the vow required a Chacham (to permit 
          it), he may not remarry her. If it did not require a 
          Chacham, he may remarry her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi b'Rebbi Yehudah says, we were stringent 
               about a vow that requires a Chacham only due to a 
               vow that does not require a Chacham!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Yosi b'Rebbi Yehudah says, a case occurred in Tzidon 
          in which Reuven vowed to divorce his wife, and divorced 
          her. Chachamim permitted him to remarry her for Tikun 
          ha'Olam.
<br>

sjt:
<p>
<font><b>2) THE DIFFERENCE BETWEEN A MINOR'S OBLIGATION TO OBSERVE 'MITZVOS LO TA'ASEH' AND HIS OBLIGATION TO OBSERVE 'MITZVOS ASEH'</b></font><b>
<br>QUESTION:</b> Rav Hamnuna teaches that a Sefer Torah, Tefilin, and Mezuzos written by a heretic, informer, Nochri, slave, woman, or minor are unfit for use. This is derived from the verses in Devarim (11:18-20) which state that one must bind the Tefilin to his arm and he must write Mezuzos. The proximity of these commandments teach that one who observes the Mitzvah of Tefilin is eligible to write Mezuzos, while one who does not observe the Mitzvah of Tefilin (either because he is a heretic who rejects the Mitzvah or because he is not commanded by the Torah to wear Tefilin) may not write Mezuzos (and, similarly, he may not write a Sefer Torah or Tefilin).
</p><p>
The Gemara implies that a minor may not write a Sefer Torah, Tefilin, and Mezuzos because he is exempt from the Mitzvah of Tefilin.
</p><p>
However, this apparently contradicts the Mishnah in Chulin (2a) which states that if a minor slaughters an animal when others are present to see that he performs the Shechitah properly, the Shechitah is valid. The Mishnah there implies that a minor is commanded to fulfill the Mitzvah of Shechitah. Furthermore, the Mishnah in Chulin (12a) states that when a Nochri slaughters an animal his Shechitah is invalid and the animal has the status of a Neveilah. <b>TOSFOS</b> (Chulin 3b, DH Kasavar) explains that this is derived from the verse, 'v'Zavachta... v'Achalta' -- 'and you shall slaughter... and you shall eat' (Devarim 12:21), which teaches that one may eat meat only when the animal was slaughtered by a 'Bar Zevichah' -- 'one who is commanded to fulfill the Mitzvah of slaughtering.' Since a Nochri is not a 'Bar Zevichah,' one may not eat the meat from an animal he slaughtered. Since the Gemara does not cite this verse as a problem with regard to an animal slaughtered by a minor, it apparently maintains that a minor is considered a 'Bar Zevichah,' commanded to fulfill the Mitzvah of Shechitah. How is it possible that a minor is commanded by the Torah to fulfill the Mitzvah of Shechitah but not the Mitzvah of Tefilin?
</p><p>
<b>ANSWER:</b> The <b>KEHILOS YAKOV</b> in Yevamos (31:7, DH v'Yisyashev) answers that there is a difference between positive commandments (Mitzvos Aseh) and negative commandments (Mitzvos Lo Ta'aseh). A minor is considered obligated to observe Mitzvos Lo Ta'aseh even though he is not liable for failure to observe them. This is evident from the Halachah that an adult is not permitted to feed a minor non-kosher food to minors (Yevamos 114a). Indeed, the <b>SHACH</b> (YD 1:27) states that this Halachah proves that a minor is commanded in Shechitah. Accordingly, a minor is considered a 'Bar Zevichah' since he may eat only slaughtered meat. However, a minor has no obligation to observe Mitzvos Aseh (and, according to many opinions, an adult may even give him an object that will cause him to transgress a Mitzvas Aseh; see <b>MAGEN AVRAHAM</b> OC 269:1). Since a minor is not obligated to observe Mitzvos Aseh, he has no obligation to wear Tefilin. Therefore, he may not write a Sefer Torah, Tefilin, or Mezuzos.
</p><p>
The Kehilos Yakov cites further proof from the Gemara in Berachos (20b) that a minor is not obligated to observe Mitzvos Aseh. The Gemara there teaches that a minor may not recite Birkas ha'Mazon to exempt his father from his obligation, because the minor is obligated only mid'Rabanan to say Birkas ha'Mazon while the father is obligated mid'Oraisa. (See <b>RASHI</b> to Berachos 48a, DH Ad, who writes that the minor himself is not even obligated mid'Rabanan; rather, the father is obligated mid'Rabanan to teach his child to perform the Mitzvos.)
</p><p>
Accordingly, not only is a minor not subject to punishment for failure to observe a Mitzvas Aseh, he is not commanded at all to observe a Mitzvas Aseh.
</p><p>
The Kehilos Yakov cites the <b>TERUMAS HA'DESHEN</b> (Pesakim u'Kesavim #62) who apparently disagrees with the words of the Shach (who states that minors are obligated in the Mitzvah of Shechitah). The Terumas ha'Deshen maintains that not only does a minor receive no punishment for transgressing a Lo Ta'aseh, he is also not commanded at all by the Torah to observe those commandments. However, the Kehilos Yakov asserts that even the Terumas ha'Deshen may agree that a minor is a 'Bar Zevichah.' The Gemara in Yevamos (114a) clearly states that the Torah prohibits an adult from feeding non-kosher food to a minor. Even if the minor himself is not commanded to observe the Mitzvah of Shechitah, he still has an interest in an animal's Shechitah because the Torah forbids adults from feeding him meat from an animal that was not slaughtered. This gives him the status of a 'Bar Zevichah.'
</p><p>
(It should be noted that the Kehilos Yakov in Sukah (2:2) seemingly contradicts the approach he writes in Yevamos. In Sukah, he writes that a minor who recites Birkas ha'Mazon certainly fulfills the Mitzvah d'Oraisa of Birkas ha'Mazon. He explains that a minor is commanded to observe all of the Mitzvos, like every other Jew. He merely is <i>exempt</i> from performing the Mitzvos because he lacks the intellectual capacity to do so. This is also the view of <b>RAV MOSHE FEINSTEIN</b> (Igros Moshe YD 1:6), who asserts that when a minor fulfills a Mitzvah he even receives reward like one who is 'Metzuveh v'Oseh' -- one who is commanded [to do the Mitzvah] and does it; the minor indeed is commanded, but he merely has an excuse (lack of intellectual maturity) which exempts him from fulfilling the Mitzvah. This approach is in opposition to the view of the <b>TAZ</b> in <b>DIVREI DAVID</b> to Devarim (31:12), who clearly states that a minor certainly is not 'Metzuveh v'Oseh,' as he is not punished for failure to fulfill a commandment. (See also <b>YOSHEV OHALIM</b> to Devarim ibid.) (D. Bloom, Y. Montrose)
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DIVORCE DUE TO ILL REPUTE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Gemara - Rav Yosef bar Minyomi) Version #1:</font></b> He may not 
          remarry her only if he told her 'I divorce you because of 
          your ill repute' or '...because of the vow'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that the reason is lest she get ruined. 
               (After she remarries, he will say 'I would not have 
               divorced you had I known that the ill repute was 
               unfounded' or '... that the vow could have been 
               permitted. Your Get is Pasul.')
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He can ruin her only if when he divorced her, he 
               told her the reason.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Version #2:</font></b> He must tell his wife that he divorces her 
          due to her ill repute or the vow.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that the Isur to remarry is to discourage 
               Benos Yisrael from looseness about Arayos (sexual 
               immorality) and vows.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Support (for Version #1 - Beraisa - R. Meir):</font></b> One who 
          divorces his wife due to her ill repute may never remarry 
          her, lest she marry another man, and it will become clear 
          that she was innocent. He will say 'had I known this, I 
          would not have divorced her, even to receive 100 Maneh (a 
          fortune)!'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, we tell him that he can never remarry 
               her. (If he still divorces her, it is clear that he 
               has no desire to keep her.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Support (for Version #2 - Beraisa - R. Elazar b'Rebbi 
          Yosi):</font></b> One who divorces his wife because of ill repute or 
          a vow must tell her so at the time of divorce.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Isur to remarry is to discourage Benos Yisrael 
               from looseness about Arayos and vows. Therefore, he 
               must tell her.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHICH VOWS CAN BE PERMITTED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> R. Yehudah says, if many knew about the vow, 
          he may not remarry her. If not, he may.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (R. Yehoshua ben Levi):</font></b> R. Yehudah learns from 'Bnei 
          Yisrael did not kill (the Giv'onim) because the heads of 
          the tribes had sworn to them.' (Because they swore in 
          public, they could not permit the oath.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that the oath did not take effect at 
               all, since they were deceived. The Giv'onim said 
               that they came from a distant land, and this was 
               false;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They did not kill them due to the Kedushah of 
               Hashem's name (lest people say that they 
               transgressed their oath).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> What is considered many people (knowing about 
          the vow)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Rav Nachman):</font></b> It is three.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (R. Yitzchak):</font></b> It is 10.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman learns from 'many days' (in the Parshah 
               of a woman who sees Zivah, i.e. post-menstrual 
               bleeding). 'Days' teaches two. 'Many' teaches a 
               third day;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yitzchak learns from 'Edah (congregation)' 
               mentioned regarding the oath of the heads of the 
               tribes. An Edah is at least 10 (we learn from the 
               Edah of wicked Meraglim. There were 10 of them.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Mishnah):</font></b> R. Meir says, if the vow required a Chacham...
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Beraisa - R. Elazar):</font></b> We were stringent about a vow that 
          requires a Chacham only due to a vow that does not 
          require a Chacham.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> R. Meir holds that a man does not mind if his 
          wife is disgraced (by needing to appear) in Beis Din. 
          (Had he known that her vow could be permitted in Beis 
          Din, he would not have divorced her);
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  R. Elazar holds that a man does not want his wife to be 
          disgraced in Beis Din. (He would have divorced her even 
          if he knew that her vow could be permitted in Beis Din.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN HE MAY REMARRY HER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> R. Yosi b'Rebbi Yehudah says, a case occurred 
          in Tzidon...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What law of the Mishnah does this illustrate?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> The Mishnah is abbreviated; it means as follows: 
          the Isur to remarry applies only when he divorced her 
          because of her vow. If he vowed, he may remarry her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi b'Rebbi Yehudah says, a case occurred in 
               Tzidon in which Reuven said 'if I do not divorce my 
               wife, (something) will be forbidden like a Korban', 
               and divorced her. Chachamim permitted him to remarry 
               her, for Tikun ha'Olam.
<br>
<br>

sjt:
<font><b>1) A MAN WHO DIVORCES HIS WIFE BASED ON UNFOUNDED RUMORS</b></font><b>
<br>OPINIONS:</b> The Mishnah (45b) states that when a man divorces his wife because of her 'bad name' (i.e. because of rumors that she was unfaithful, or because of rumors that she makes oaths, and he is not interested in living with a woman who makes oaths), he is not permitted to remarry her. <b>RASHI</b> (DH Lo Yachzir) explains that even if the rumors are later found to be untrue, or that her oaths were annulled by a Chacham, he still may not take her back.
</p><p>
The Gemara quotes Rav Yosef bar Minyomi who says that the man is prohibited from remarrying his wife only if he had told her at the time of the divorce that he was divorcing her because of her 'bad name' or because of the oaths. The Gemara explains that Rav Yosef understands that the ruling of the Mishnah is based on the reasoning of 'Kilkula' ('corruption'). What exactly is the reasoning of 'Kilkula'?
</p><p>
(a) <b>RASHI</b> (DH Taima) explains that if Beis Din does not make it clear to the man that his divorce is final, he might spread rumors that the divorce was not legitimate in the first place: he will reveal that he found out that the rumors (on which the divorced was based) were false, and he then will claim that had he known that the rumors were false or that her oaths were able to be annulled, he never would have divorced her. He would support his claim by reminding Beis Din that he had clearly stated at the time of the divorce that the rumors about her disloyalty, or about her oaths, were the basis for the divorce, and now that those rumors have been proven to be unfounded the divorce should be annulled. (Rav Yosef clearly understands that had the man not stated the reason at the time of divorce, he would have no claim at all.)
</p><p>
The husband's claim that his divorce was based on a mistaken assumption means that the Get he gave was meaningless because it was given only on condition that his wife was unfaithful. Consequently, if she married another man after she received the Get from her first husband, she would be guilty of transgressing the Isur of 'Eshes Ish,' a married woman who lives in sin with another man, and her children from the second man would have the status of Mamzerim. Therefore, Beis Din warns the husband that if he divorces his wife for this reason he will never be able to take her back. He will not be believed to say that he divorced her only because of the rumors; had he genuinely wanted to remain married to her, he would have investigated whether the rumors were true before he divorced her. The fact that he divorced her without investigating the rumors shows that he wanted the divorce to be unconditionally final.
</p><p>
The Rishonim ask two questions on Rashi's explanation:
</p><p>
1. <b>TOSFOS</b> (DH Iy) argues that even if the husband would claim that he divorced his wife only because of the unfounded rumors, Rav Yosef would not rule that the Get is nullified and the children from the second marriage are Mamzerim. This is because the husband did not say at the time of the divorce that he was divorcing her 'on condition' ('Al Menas') that the rumors were true. Although a mere 'Giluy Da'as' (indication of one's intent without a verbal declaration thereof) often suffices to make a person's intention a key component of a transaction (see Kesuvos 79a) even without an explicit statement of 'Al Menas,' nevertheless in this case it is clear that a 'Giluy Da'as' does not suffice. The Gemara later (46b) discusses a similar case and explains that according to Rebbi Meir a 'Tenai Kaful' -- 'an explicit double condition' -- is required. Although the Gemara here is <i>not</i> expressing the view of Rebbi Meir, it is clear that even those who disagree with Rebbi Meir and do not require a 'Tenai Kaful' maintain that at least a 'single' condition must be stated and a 'Giluy Da'as' does not suffice. In the case of the divorce, <i>no</i> condition was stated, and a mere 'Giluy Da'as' does not suffice. (See the <b>MAHARSHA's</b> explanation of the words of Tosfos.) 
</p><p>
The <b>RITVA</b> (45b) answers that Rebbi Meir requires a 'Tenai Kaful' (46b) only because he does not agree with the principle of 'Michlal Hen Atah Shome'a Lav' -- 'from the [explicitly-stated] positive you hear the negative.' This means that when we know the reason why someone does a certain act, we may infer that he would not do that act without that reason. Since Rebbi Meir does not consider a person's intent unless he makes a formal statement to express that intent, it follows that Rebbi Meir also maintains that a person <i>always</i> must make a 'Tenai Kaful,' even in a case in which the person's intent is clear. (However, the Ritva points out that Rebbi Meir would <i>not</i> require other laws of conditions to be fulfilled when there is absolute certainty about the person's intent.) This is why the Gemara later says that according to Rebbi Meir one needs a 'Tenai Kaful.' However, according to those who argue with Rebbi Meir, even a single condition is not needed in this case because those opinions agree with the principle of 'Michlal Hen Atah Shome'a Lav.' This explains why Rashi writes that once we know the husband's reason for divorce, we also understand that if the reason would not apply he would never have divorced his wife.
</p><p>
2. The <b>RASHBA</b> questions Rashi's reasoning for why the husband is told that he may not remarry the woman. Rashi explains that had he truly loved her and did not want the divorce to be final, he would have investigated the truthfulness of the rumors before he divorced her. Although the Rashba concedes that this explanation is also stated by the Yerushalmi, he questions its logic. For how long is the husband expected to research the rumors that his wife was unfaithful? It is possible that he divorced her now because he did not want to live with a woman rumored to be unfaithful, and he was unable to find evidence that the rumors were false. He divorced her after he investigated the matter to the best of his ability.
</p><p>
(b) <b>TOSFOS</b> writes that the Gemara's concern about 'Kilkula' is that the husband will spread rumors that the Get he gave was invalid in order to persuade the second husband to give her a Get.
</p><p>
Tosfos addresses the obvious question on this explanation. What does the first husband stand to gain from such a tactic? The Torah clearly states that when a man divorces his wife who then marries another man who divorces her, her first husband is not allowed to remarry her. What, then, does the first husband stand to gain from spreading such rumors? Tosfos explains that the first husband will think that the second marriage was not binding but rather was mere promiscuity (as his divorce was not a real divorce), and he therefore will have no hesitation about remarrying his first wife. (D. Bloom)
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What did he forbid?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Huna):</font></b> He said 'all produce is forbidden 
               to me if I do not divorce you.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Chachamim permitted him to remarry her...
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> This is obvious! (There is no concern!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that we should decree due 
          to R. Nasan:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Nasan):</font></b> One who vows is like one who 
               builds a Bamah (private Mizbe'ach, when this is 
               forbidden). Fulfilling the vow (i.e. not permitting 
               it) is like offering on his Bamah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah teaches that we do not decree. (Rather, 
               he may remarry her.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> ...For Tikun ha'Olam.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> How does this fix things?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1 (Rav Sheshes):</font></b> This phrase applies to the 
          Reisha (when he may not remarry her).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (Ravina):</font></b> It refers to the Seifa. It means, in 
          this case there was no need to decree for Tikun ha'Olam.
<br>
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DIVORCING AN AILONIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Yehudah):</font></b> If Reuven divorced his wife 
          because she is an Ailonis (a female who does not develop 
          like a normal female; she cannot conceive), he may never 
          remarry her;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Chachamim say, he may remarry her.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Yehudah says, if she married someone else and had 
          children, and demands that Reuven pay her a Kesuvah, we 
          tell her 'it is better for you to keep quiet!'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> R. Yehudah is concerned for her ruin, 
          and Chachamim are not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Contradiction (Mishnah):</font></b> If Reuven divorced his wife due 
          to her ill repute, or because of a vow, he may never 
          remarry her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, if many knew about the vow, he may 
               not remarry her. If not, he may.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This shows that Chachamim are concerned, and R. 
               Yehudah is not!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #1 (Shmuel):</font></b> The opinions in our Mishnah should be 
          switched.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Seifa - R. Yehudah):</font></b> If she married David 
               and had children from him and demands that Reuven 
               pay her a Kesuvah, we tell her 'it is better for you 
               to keep quiet!' (If you complain, Reuven might say 
               that your divorce was due to a mistake (really, you 
               are not an Ailonis) and is invalid. You were 
               forbidden to David, and your children are Mamzerim!)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that R. Yehudah is concerned for her 
                    ruin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> That also is switched to be the words of 
               Chachamim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2 (Abaye):</font></b> The opinions need not be switched.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Mishnah about a vow, R. Yehudah holds like R. 
               Meir and like R. Elazar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He holds like R. Elazar regarding a vow that needs a 
               Chacham (a man does not want his wife to be 
               disgraced in Beis Din), and like R. Meir regarding a 
               vow that does not need a Chacham (her husband could 
               have annulled it. Since he did not, this was not the 
               reason he divorced her.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection (Rava):</font></b> This answers the contradiction in R. 
          Yehudah. It does not answer for Chachamim!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Completion of Answer #2 (Rava):</font></b> Chachamim in our Mishnah 
          hold like R. Meir, who says that a Tanai is invalid 
          unless it is doubled (if this, then...; if not, then...).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, he did not double the Tanai (and say 
               'if you are not an Ailonis, I do not divorce you'), 
               so there is no possibility of ruin.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>ONE WHO SOLD HIMSELF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Reuven sold himself and his children to 
          Nochrim, we do not redeem Reuven, but we redeem his 
          children after he dies.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara - Rav Asi):</font></b> The case is, he sold himself three 
          times.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  People of Bei Michsi used to borrow money from Nochrim. 
          When they could not pay back, the lenders took the 
          borrowers for slaves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Huna:</font></b> The Mishnah says that we do not redeem one 
               who sells himself!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Aba:</font></b> You taught us that is only when he sold 
               himself three times!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Huna:</font></b> These people are used to this. (It is as 
               if they did it three times.)
<br>

sjt:
<p>
<font><b>2) THE DIFFERENCE BETWEEN ONE WHO DIVORCES HIS WIFE BASED ON RUMORS AND ONE WHO DIVORCES HIS WIFE BECAUSE SHE IS FOUND TO BE AN 'AYLONIS'</b></font><b>
<br>QUESTIONS:</b> In the Mishnah, Rebbi Yehudah states that when a man divorces his wife because she is found to be an Aylonis (a woman incapable of bearing children; see Yevamos 80b), he is never allowed to remarry her. <b>RASHI</b> (DH Mishum) writes that when he married her he did not know that she was an Aylonis. 
</p><p>
Why may he not remarry her? Rashi (DH Rebbi Yehudah) gives a lengthy explanation for this prohibition. His premise is that there is a concern that after the man divorces his wife, she will marry another man and bear children with him. The first husband might then claim that had he known that she was capable of bearing children, he never would have divorced her. His claim would render the Get invalid retroactively, and the children from the second marriage would be Mamzerim. In order to insure that the husband will never make such a claim, Beis Din informs him before the divorce that one who divorces his wife because she is an Aylonis is never allowed to take her back.
</p><p>
The Mishnah earlier (45b) discusses a similar case in which a man divorces his wife only because of rumors about her infidelity, which later are found to be untrue. The Tana Kama rules that the husband is informed at the time of the divorce that he may not remarry this woman.
</p><p>
Rashi there, however, explains the husband's claim in that case differently from the way he explains it in the case of the Gemara here.
</p><p>
1. Rashi earlier (46a, DH Ta'ama) writes merely that the husband said at the time of the divorce that he was divorcing his wife because of her bad name. Rashi there does <i>not</i> write that the husband said at the time of the divorce that if the rumors are found to be untrue that he does not want the divorce to take effect. This is contrast to Rashi's explanation in the case of the Aylonis, where Rashi writes that the husband mentioned both the positive and negative sides of the conditional divorce. He stated, 'I divorce you with the intent that if you should develop Simanim (which show that you are not an Aylonis), I will take you back,' <i>and</i> he stated, 'If I would have known that you would not return, I would not have divorced you.'
</p><p>
2. Another difference is that Rashi earlier (46a, DH Ta'ama) writes that since the man knew that if he divorced his wife he would never be able to remarry her, the fact that he went ahead with the divorce shows that his real reason for divorcing her was simply that he did not like her. Rashi does not mention this reasoning in the case of the Aylonis.
</p><p>
What is the reason for these differences in Rashi's explanation of the two Sugyos?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>AVNEI MILU'IM</b> (10:1) quotes the <b>MISHNEH L'MELECH</b> (Hilchos Ishus 6:1) who suggests a novel proposal to the application of the requirement of 'Tenai Kaful.' Perhaps a 'Tenai Kaful' is necessary only when the stated condition is to be fulfilled <i>at a later date</i>, similar to the prototypical condition which Moshe Rabeinu stipulated with the tribes of Gad and Reuven. In contrast, when the condition involves merely a clarification of an event which has already transpired, a 'Tenai Kaful' is not necessary. (The Avnei Milu'im asserts that this actually is the opinion of the <b>RAN</b>.) 
</p><p>
What is the difference between the two cases? The Mishneh l'Melech explains that when the condition involves a future event, the transaction is considered as though it has taken effect but can be overturned later by the failure to fulfill the condition. Overturning a transaction requires a strong condition, a proper 'Tenai Kaful.' In contrast, when the condition is a clarification of the outcome of a past event, the condition determines whether or not the transaction actually takes effect in the first place. Accordingly, even an ordinary condition (without a 'Tenai Kaful') suffices to enable the transaction to take effect (or to prevent it from taking effect). 
</p><p>
The Avnei Milu'im applies this distinction to the Gemara here in order to explain why Rashi writes only with regard to the case of the Aylonis that the man stated both sides of the condition. In the case of the Aylonis, the man not only states that he is divorcing his wife because she has been found to be an Aylonis, but he also states that the divorce is on condition that his wife will not be cured from her condition of Aylonis <i>after</i> the divorce. Since the husband makes a condition based on a future event, a 'Tenai Kaful' is necessary to cause the Get to be annulled retroactively. If the husband would not make a 'Tenai Kaful,' his condition would not be valid. In contrast, in the case of the woman rumored to be unfaithful, the man attempts to make the Get contingent on what has already happened (his wife's unfaithfulness). In such a case, even an ordinary condition suffices to prevent the Get from taking effect in the first place. 
</p><p>
This approach answers the second question as well. Since the condition in the case of a Get given because of rumors about her unfaithfulness is based on events that have already happened, it makes sense to say that if he really liked her he would not have divorced her based solely on rumors. This logical argument against the intent of his condition, combined with the fact that he did not state a 'Tenai Kaful,' renders his condition ineffective. In the case of the Aylonis, however, the man made a strong condition, a 'Tenai Kaful.' The logic that he would not have divorced his wife merely because she was an Aylonis is not enough to ruin an explicit 'Tenai Kaful.' This is why he must be told at the time of the divorce that his condition is not valid.
</p><p>
(b) Another answer may be suggested for the second question. In the case of the divorce given because of rumors, it is logical to assume that the man divorced his wife because he simply did not like her because, otherwise, he would have waited to clarify whether or not the rumors were true. However, in the case of the Aylonis, the man intends to reserve the right to cancel the divorce <i>retroactively</i> in the event that she is later healed of her condition. Beis Din cannot tell him later that 'had you truly loved your wife you would have endeavored to ascertain whether or not she was an Aylonis,' because she <i>was</i> an Aylonis as far as anyone could tell at the time of divorce. The husband's stipulation at the time of the divorce was that although she clearly seems to be an Aylonis now, he does not want the divorce to be effective if she ever becomes cured from that condition. This condition, if it would be valid, obviously would stand as a tremendous obstacle to her ability to marry anyone else, because if she would ever become cured she would find herself married to her first husband while living in sin with the second man. This is why Beis Din tells the man, in response to his stipulation, that if he follows through with the divorce his condition will not take effect and she will be divorced unconditionally. (D. Bloom, Y. Montrose)
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO SOLD HIMSELF (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  A man sold himself to cannibals. He asked R. Ami to 
          redeem him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Ami:</font></b> The Mishnah teaches that if one sold himself 
               and his children to Nochrim, we do not redeem the 
               father, but we redeem his children. This is so the 
               children will not learn to act like the Nochrim. All 
               the more so, we redeem in order to save a life!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabanan:</font></b> This man is a Mumar (he sins to anger 
               Hash-m). We saw him eat Neveilos and Treifos 
               (animals that died without slaughter or were 
               mortally injured)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Ami:</font></b> Perhaps he desired eating them (but 
               otherwise, he would not sin).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rabanan:</font></b> Sometimes, when he has a choice, he prefers 
               forbidden food to permitted food!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Ami (to the man):</font></b> Leave. Based on their 
               testimony, I cannot redeem you.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Reish Lakish sold himself to cannibals. He took with him 
          a sack with a lead ball concealed inside. He knew that 
          they grant their victims any request on the last day, in 
          order that the victims will pardon them for eating them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> On his last day he requested that they all be tied 
               up, and he would give one and a half hits to each. 
               He was able to kill them all, most with only one 
               hit.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  When Reish Lakish died, he left over some saffron to his 
          heirs. He (regretted that he worked more than he needed 
          to, and) applied to himself 'they left their wealth to 
          others.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO SELLS HIS FIELD TO NOCHRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one sold his field to Nochrim, for Tikun 
          ha'Olam he buys the fruit and brings from it Bikurim (the 
          first Peros to ripen of the seven species. They are given 
          to a Kohen in the Mikdash.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara - Rabah):</font></b> A Nochri cannot acquire land in Eretz 
          Yisrael to exempt (what grows on) it from Ma'aser (so 
          that one need not tithe the fruit, like land of Chutz 
          La'aretz). 'To Me (Hash-m) is the land' - the Kedushah of 
          the land is Mine (it never goes away);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, a Nochri can acquire land in Eretz Yisrael 
               to allow him to dig pits (even though this damages 
               the land) - 'Shamayim is of Hash-m, and the land was 
               given to man.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (R. Elazar):</font></b> A Nochri can acquire land in Eretz Yisrael 
          to exempt it from tithes - '(you will tithe) your grain', 
          not the grain of Nochrim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, a Nochri cannot acquire land in Eretz 
               Yisrael to allow him to dig pits - 'the land is 
               Hashem's.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> What is the source of their argument?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> R. Elazar expounds 'your Degen (grain)', not 
          grain of Nochrim. Rabah expounds 'your Digun (piling of 
          grain)', not the piling of Nochrim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Support (Rabah for himself - Mishnah):</font></b> Leket, Shichechah 
          and Pe'ah (agricultural gifts left for the poor) of 
          Nochrim must be tithed, unless he declared them to be 
          Hefker.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The fruit grew on a Yisrael's 
                    field, and a Nochri took them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> If so, the fruit would be Hefker 
                    without any declaration. The Mishnah says 
                    'unless he declared them to be Hefker'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the fruit grew on a Nochri's field, 
               and a Yisrael took them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that if the Nochri does not make 
                    them Hefker, they must be tithed!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection:</font></b> Really, the fruit grew on a Yisrael's field, 
          and a Nochri took them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The fruit is not fully Hefker without a declaration. 
               The owner left them only for Yisre'elim to take, not 
               for Nochrim to take them!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Support (for R. Elazar - Beraisa):</font></b> If a Yisrael bought a 
          field from a Nochri before the fruit was a third grown, 
          and sold it back after the fruit was a third grown, it 
          must be tithed, because it was already obligated to be 
          tithed (when it was a third grown by the Yisrael).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had it not grown a third when the Yisrael 
               owned it, it would be exempt (even after it finished 
               growing under Nochri ownership)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Rejection:</font></b> The Beraisa discusses Surya. The Tana holds 
          that Kivush Yachid (land conquered by an individual, in 
          this case David) is invalid (it does not get Kedushas 
          Eretz Yisrael. Tithes apply there mid'Rabanan, only on 
          the land of Yisre'elim.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Support (for R. Elazar - Beraisa - Rebbi):</font></b> If a Yisrael 
          and Nochri bought a field in partnership, the produce is 
          a mixture of Tevel (untithed produce) and Chulin (produce 
          that need not be tithed);
<br>
<br>

sjt:
<font><b>1) ONE WHO SELLS HIMSELF AND HIS CHILDREN TO NOCHRIM</b></font><b>
<br>QUESTION:</b> The Mishnah (46b) teaches that when a person sells himself and his children to Nochrim, we do not redeem him, but we redeem his children after he dies. The Gemara states that we redeem him the first two times he sells himself, and only after the third time we do not redeem him. The Gemara (end of 46b) relates an incident involving a man who sold himself to cannibals ('Luda'i') and then asked the Chachamim to redeem him from them. Rebbi Ami at first ruled that he should be redeemed based on a Kal va'Chomer. If we redeem children after their father's death, it must be because we are concerned that they not assimilate ('Kilkul'). If we are worried about assimilation, certainly we should be worried about the very <i>life</i> of the captive, and since the captive is in danger of being killed and eaten, we should be permitted to redeem him.
</p><p>
The <b>CHASAM SOFER</b> asks a number of questions on this Gemara.
</p><p>
(a) What is the basis for Rebbi Ami's Kal va'Chomer? The reason why we do not redeem the father himself, but we do redeem the children after the father's death, is that if we redeem the father he will keep selling himself and thereby bankrupt the communal funds by relying on the community to redeem him each time. Therefore, after he sells himself three times, he is penalized and may not be redeemed. This is evident from the fact that we redeem him the first two times, and then we stop redeeming him after he sells himself a third time. It is also evident from the fact that this Halachah appears as part of a series of Mishnayos which discuss decrees that were made because of 'Tikun ha'Olam.' 
</p><p>
The reason we do not redeem his children as long as he is alive is presumably because he will just sell them again. Therefore, after his death we may redeem them.
</p><p>
Why, then, does Rebbi Ami suggest that we should redeem the father to prevent assimilation and certainly to prevent his death? There is good reason for not redeeming the father, despite the possibility of assimilation or death, and that is 'Tikun ha'Olam' -- he will sell himself again and rely on communal funds to redeem him. Why does Rebbi Ami assume that the concern for assimilation and the concern for the captive's death override 'Tikun ha'Olam'?
</p><p>
(b) The Midrash (Bamidbar Rabah 21:4) teaches that one who causes another person to sin is worse than one who kills another person. Why, then, does Rebbi Ami assume that if we redeem the children to prevent them from sinning, we certainly redeem the father to prevent him from being killed? Sinning is considered <i>more</i> severe than killing.
</p><p>
<b>ANSWERS:</b>
<br>(a) If the Rabanan do not redeem the father after he sells himself for the third time because of 'Tikun ha'Olam' in order that he not continue selling himself, for the same reason they should not redeem the children even after his death -- in order to prevent the father from selling the children. If the father knows that his children will be redeemed upon his death, he will not refrain from selling them. Therefore, it must be that the only reason why the Rabanan instituted that the children be redeemed after their father's death despite the 'Tikun ha'Olam' is in order to prevent them from assimilating. They do not redeem the father because he is older and the Rabanan are not afraid that he will assimilate. However, if there would be a fear of assimilation or death to the father, that would override the concern for 'Tikun ha'Olam' and we would redeem him.
</p><p>
(Although it seems unfair to the children not to redeem them when their father was the one who sinned by unjustly selling them (indeed, the father does not even have the rights to sell them; if anything, selling them is an act of Gezeilah), nevertheless for the sake of 'Tikun ha'Olam,' to maintain the welfare of the community, the Rabanan instituted such decrees, such as the Takanah (45a) not to redeem captives when the captors ask for too much money. Although Beis Din will not redeem the children during the father's lifetime, any relatives of means certainly would be permitted to redeem them.)
</p><p>
(b) Certainly the person who causes someone else to sin is worse than the person who kills someone, because the damage he causes is perpetuated constantly; the person whom he taught to sin continues to sin throughout his life. Death, in contrast, occurs only once.
</p><p>
However, from the perspective of the victim, dying is certainly a worse fate that sinning, because it is irreversible. Sinning is reversible since a person can repent and do Teshuvah.
</p><p>
Moreover, in the case of children who were sold as slaves to Nochrim, although the sins they will commit as a result of assimilation will be repeated many times, their sins are not as severe because they are considered 'Tinokos she'Nishbu,' babies taken captive and never taught to observe the Mitzvos, and it is not their fault that they learned to sin. (See <b>KESAV SOFER</b>, EH 46, who also discusses his father's questions at length.)
</p><p>


<font><b>2) 'PE'AH' TAKEN BY A NOCHRI</b></font><b>
<br>QUESTION:</b> Rebbi Elazar maintains that land in Eretz Yisrael owned by a Nochri is exempt from Terumos u'Ma'aseros. Rabah challenges him from a Mishnah in Pe'ah which teaches that Leket, Shichechah, and Pe'ah of a Nochri's field are <i>Chayav</i> in Ma'aser. Rebbi Elazar answers that the Mishnah refers to Leket which a Nochri collected from a Jewish-owned field. Although Pe'ah normally is exempt from Ma'aser (because of a Limud which teaches that any produce which is free for all to take is exempt from Ma'aser; <b>RASHI</b> DH Leket), when a Nochri collects it, it is obligated in Ma'aser since a person does not make his Pe'ah into Hefker for a Nochri to take. 
</p><p>
Once the produce has been designated as Pe'ah, how does its status become undone when a Nochri takes it? It is true that a Nochri is not entitled to take it, just as a Jew is not entitled to take it if he is not an Ani. Nevertheless, it should simply be considered theft when the Nochri (or wealthy Jew) takes it. How does it revert back to a state of ordinary, non-Pe'ah produce?
</p><p>
Moreover, when a Nochri takes all of the Pe'ah, does the Jewish owner of the field need to separate Pe'ah a second time because its status of Pe'ah was retroactively removed? (<b>RABEINU KRESKAS</b>; <b>MISHNEH L'MELECH</b>, Hilchos Terumos 2:9)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MISHNEH L'MELECH</b> proves from the Gemara here that Pe'ah does not become exempt from Ma'aser until an Ani takes it. Before the Ani takes it, it is still obligated in Ma'aser. That is why the produce which the Nochri collects is obligated in Ma'aser. The Mishneh l'Melech adds that the same should apply when a wealthy Jew takes Pe'ah before an Ani takes it; it should be obligated in Ma'aser.
</p><p>
<b>TOSFOS REBBI AKIVA EIGER</b> to Pe'ah (4:9) asks a number of questions on the Mishneh l'Melech's assertion. The reason Pe'ah is exempt from Ma'aser is that any Ani is able to take it. Accordingly, it should be exempt from Ma'aser from the moment it is designated as Pe'ah and an Ani may take it.
</p><p>
Moreover, the Mishneh l'Melech himself points out that the Mishnah in Pe'ah (5:2) clearly implies that Leket is exempt from Terumos u'Ma'aseros even <i>before</i> the Ani takes it. The Mishneh l'Melech says that it must be that Leket is different from Pe'ah: Leket is exempt from Ma'aser immediately, while only Pe'ah is exempt only when the Ani takes it.
</p><p>
The Mishneh l'Melech's explanation is problematic, however, because the Gemara here -- which says that produce of Matnos Aniyim which a Nochri collects is obligated in Ma'aser -- discusses not only Pe'ah, but Leket and Shichechah as well! (Rebbi Akiva Eiger points out that there is another way to explain the Mishnah in Pe'ah 5:2.)
</p><p>
(b) <b>RABEINU KRESKAS</b> (cited by Tosfos Rebbi Akiva Eiger) answers that the Gemara refers to a city in which there are no Jewish poor people. Therefore, from the moment the owner separated the Pe'ah, the Pe'ah never really took effect since there were no Aniyim for whom Pe'ah needed to be separated. The Gemara in Chulin (143b) teaches that when there are no Aniyim, it is not necessary to leave Leket, Shichechah, and Pe'ah in one's field merely 'for the birds to take.' However, <b>TOSFOS</b> (DH A'da'ata) clearly does not share this view.
</p><p>
(c) Perhaps <i>with regard to a Nochri</i> Pe'ah is not considered Hefker because the Nochri has no right to take it. Therefore, even if a Jew later buys it from the Nochri he must treat it as non-Hefker produce (and separate Terumos u'Ma'aseros from it), since the Kinyan the Nochri made on it was not like a Kinyan from Hefker. 
</p><p>
In contrast, when a wealthy Jew takes Leket, Shichechah, or Pe'ah, although his act is considered theft, he is not obligated to separate Terumos u'Ma'aseros from it because from his perspective it can be considered Hefker: if he were to make all of his property Hefker and become poor, he would rightfully be entitled to take it.
</p><p>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says, the Nochri's produce 
               need not be tithed. The Yisrael's produce must be 
               tithed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They argue only about Breirah (R. Shimon holds that 
               each partner receives his own share. Rebbi holds 
               that each owns half of every fruit. When they divide 
               the fruit, it is as if they sell to each other.) All 
               agree that what grows on the Nochri's portion is 
               exempt!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Rejection:</font></b> Also this Beraisa discusses Surya. The Tana 
          holds that Kivush Yachid is invalid.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Support (for R. Elazar - R. Chiya bar Aba - Mishnah):</font></b> If 
          one sold his field to Nochrim, he buys the fruit and 
          brings from it Bikurim for Tikun ha'Olam.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only an enactment for Tikun ha'Olam. 
               Mid'Oraisa, it is exempt!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Rejection (Rav Ashi):</font></b> Really, a Nochri cannot acquire 
          land in Eretz Yisrael to exempt it from its Kedushah. 
          There were two enactments;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> At first, people would bring Bikurim mid'Oraisa. 
               Chachamim saw that people were selling since they 
               felt that the land retains its Kedushah, so they 
               enacted not to bring Bikurim from such fields;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The result was that people left the field in the 
               hands of the Nochri (to be exempt from Bikurim). 
               Chachamim enacted that people resume bringing 
               Bikurim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>OWNERSHIP OF THE PRODUCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (R. Yochanan):</font></b> If one sold the rights to consume the 
          Peros of his field, the buyer brings Bikurim and recites 
          the declaration (in which he thanks Hash-m for 'the land 
          that You gave to me');
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Reish Lakish):</font></b> The buyer brings Bikurim, but does not 
          recite.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan says that he brings and recites. He 
               holds that Kinyan (owning rights to the) Peros is 
               like Kinyan ha'Guf (owning the field itself);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reish Lakish says, he brings but does not recite. He 
               holds that that Kinyan Peros is not like Kinyan 
               ha'Guf.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Version #1 - Question (R. Yochanan - Beraisa):</font></b> 'For your 
          house' teaches that a man brings Bikurim from his wife's 
          property (in which he has Kinyan Peros) and recites.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Reish Lakish):</font></b> That is an exception, because the 
          Torah says 'for your house.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Version #2 - Question (Reish Lakish - Beraisa):</font></b> 'For your 
          house' teaches that a man brings Bikurim from his wife's 
          property and recites.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only because the Torah says 'for your 
               house.' Normally, one who has Kinyan Peros would not 
               recite!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (R. Yochanan):</font></b> We learn from here (to everywhere) 
          that Kinyan Peros is like Kinyan ha'Guf. (end of Version 
          #2)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (against R. Yochanan - Beraisa):</font></b> If a man was 
          bringing his wife's Bikurim, and he heard that she died, 
          he brings them and recites.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had she not died, he would not recite! 
               (Tosfos - we ask how R. Yochanan can learn from the 
               verse. Perhaps it discusses only this case!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> No, even had she not died, he would recite. The 
          Beraisa discusses when she died, to teach that we do not 
          decree due to R. Yosi bar Chanina's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> If David harvested Bikurim of 
               his land and sent them with a Shali'ach, and the 
               Shali'ach died, even if David finishes bringing them 
               himself, he does not recite. 'You will take... and 
               you will bring' - the same person must take and 
               bring (for the Parshah of recital to apply).
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE RETURN OF LAND IN YOVEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  R. Yochanan and Reish Lakish are consistent with what 
          they taught elsewhere.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (R. Yochanan):</font></b> If one sold his field at a time when Yovel 
          applies, the buyer brings Bikurim and recites the 
          declaration;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Reish Lakish):</font></b> The buyer brings Bikurim but does not 
          recite.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan says that he brings and recites, for 
               Kinyan Peros is like Kinyan ha'Guf.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reish Lakish says, he brings but does not recite, 
               for Kinyan Peros is not k'Kinyan ha'Guf.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  They needed to argue in both of these cases:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had they argued only in the previous case, one might 
               have thought that only then Reish Lakish says that 
               he is not like an owner, for he intended to buy only 
               the Peros. Here, he intended to buy the land itself!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had they argued only about Yovel, one might have 
               thought that only here R. Yochanan says that he is 
               like an owner, for he intended to buy the field 
               itself. There, he intended to buy only the Peros!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Support (for R. Yochanan - Beraisa):</font></b> If one bought a tree 
          and its land, he brings Bikurim and recites.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection #1:</font></b> The Beraisa discusses a time when Yovel 
          does not apply.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Support (for R. Yochanan - Beraisa):</font></b> If Reuven bought two 
          trees in Shimon's land, Reuven brings Bikurim and does 
          not recite.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had he bought three trees, he would recite!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection #1:</font></b> Also this Beraisa discusses a time when 
          Yovel does not apply.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> R. Yochanan and Reish Lakish argue only 
          about from the second Yovel onwards. All agree about the 
          first Yovel that the buyer brings and recites, since 
          sellers were not confident of getting back their fields.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection #2 (of both supports):</font></b> The Beraisos discuss the 
          first Yovel.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Suggestion:</font></b> R. Yochanan and Reish Lakish argue as these 
          Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah and R. Shimon):</font></b> If Reuven 
               bought his father's field and made it Hekdesh and 
               his father died, it is considered like an inherited 
               field. 'The field he bought, which is not an 
               inheritance (is not considered an inherited field)' 
               refers to a field that could not be an inheritance;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It excludes this case, in which Reuven bought a 
                    field that he could have inherited.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir says, if Reuven bought his father's field 
               and his father died, and Reuven was Makdish the 
               field, it is considered as an inherited field. 'The 
               field he bought, which is not an inheritance' refers 
               to a field that was not an inheritance;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It excludes our case, in which the field was 
                    Reuven's inheritance.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Yehudah and R. Shimon do not need a verse 
                    to teach this case.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Meir holds that Kinyan Peros is 
               k'Kinyan ha'Guf. When the father died, it is as if 
               the son did not inherit anything. Therefore, the 
               verse includes this case (the son was Makdish the 
               field after his father died) like an inherited 
               field;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yehudah and R. Shimon hold that Kinyan Peros 
                    Lav k'Kinyan ha'Guf. When the father died, the 
                    son inherits. Therefore, the verse is not 
                    needed for this case. Rather, it includes when 
                    the son made the field Hekdesh before the 
                    father died.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection (Rav Nachman bar Yitzchak):</font></b> Really, even R. 
          Yehudah and R. Shimon normally hold that Kinyan Peros is 
          k'Kinyan ha'Guf. Here is an exception, because they 
          expound the verse.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It should have said 'the field he bought that is not 
               his inheritance.' Rather, it says 'that is not from 
               his inheritance' to teach that it was not even a 
               potential inheritance.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If a son bought his father's field, the field 
                    could have been an inheritance.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OTHER APPLICATIONS OF OWNING THE PRODUCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Yosef):</font></b> Had R. Yochanan not said that Kinyan Peros 
          k'Kinyan ha'Guf, he would be unable to defend another of 
          his teachings.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Asi citing R. Yochanan):</font></b> Brothers who divide an 
               inheritance are like buyers. In Yovel, they return 
               their portions to each other.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Kinyan Peros were unlike Kinyan ha'Guf, the only 
               case of one who could bring Bikurim and recite ('the 
               land that You gave to me') would be one who 
               inherited a field never split among heirs. I.e., 
               from the time a Yisrael received the field in the 
               days of Yehoshua, the owner always left exactly one 
               heir!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rava):</font></b> A verse and a Beraisa support Reish Lakish.
<br>
<br>

sjt:
<font><b>1) 'KINYAN HA'PEROS K'KINYAN HA'GUF'</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan rules that a Kinyan Peros (a Kinyan on the output produced by an item, such as the fruit produced by a field) is like a Kinyan ha'Guf (a Kinyan on the field itself). Reish Lakish disagrees and rules that a Kinyan Peros is <i>not</i> like a Kinyan ha'Guf. According to Reish Lakish, if a person has a Kinyan Peros (he buys the rights to the produce of a field), when he brings Bikurim from that produce he may <i>not</i> read the Parshah of Bikurim. Since he does not have a Kinyan ha'Guf on the field itself he cannot say, 'This is produce of the land which Hash-m <i>has given to me</i>,' since he does not own the land. He has only a Kinyan Peros, which is not considered a Kinyan on the land.
</p><p>


Rav Yosef points out that if Rebbi Yochanan would have ruled that a Kinyan Peros is <i>not</i> like a Kinyan ha'Guf, Rebbi Yochanan would have encountered a serious difficulty. Rebbi Yochanan elsewhere expresses his opinion that 'Ein Bereirah.' According to that opinion, whenever brothers receive land as an inheritance from their father and divide it between them, it is considered as though they purchased from each other the respective properties that each one took as his portion ('Achin she'Chalku, Lekuchos Hen'). Since they purchased the portions, they must return them to each other when the Yovel year arrives (and re-divide the property among themselves). This is Rebbi Yochanan's view.
</p><p>
However, the Gemara earlier teaches that any property that is returned to its original owner upon the arrival of the Yovel year is considered a Kinyan Peros (since the seller -- knowing that he would get his field back at Yovel -- did not intend to sell the Guf of the field but only the rights to the Peros). Accordingly, if Rebbi Yochanan would have ruled that a Kinyan Peros is not like a Kinyan ha'Guf, according to Rebbi Yochanan one would never be able to read the Parshah of Bikurim upon bringing fruit from any field that was ever divided between two brothers as an inheritance, at any point in history (because the ownership of that field, after it was inherited, remains a Kinyan Peros forever)! Therefore, it was necessary for Rebbi Yochanan to maintain that a Kinyan Peros <i>is</i> like a Kinyan ha'Guf in order to explain how the Parshah of Bikurim is read when fruit is brought as Bikurim.
</p><p>
<b>TOSFOS</b> (DH Iy) asks that in practice, Rav Yosef's point should pose a serious Halachic dilemma. The Halachah follows the view of Reish Lakish that a Kinyan Peros is <i>not</i> like a Kinyan ha'Guf. However, with regard to brothers who divide an inheritance, the Halachah is 'Ein Bereirah' -- when brothers divide an inheritance they are considered as though they purchased their portions from each other. Why, then, is the Parshah of Bikurim read when Bikurim fruits are brought from any field that was ever divided among brothers? (See Tosfos there who suggests two answers.)
</p><p>
The <b>RAMBAM</b> (Hilchos Bikurim 4:6) also rules like Reish Lakish, that a Kinyan Peros is not like a Kinyan ha'Guf. He also rules (Hilchos Shemitah v'Yovel 11:20) that brothers are like 'Lekuchos' and they return their fields to each other in Yovel. Therefore, Tosfos' question applies to the Rambam's ruling as well. However, neither of Tosfos' answers is applicable according to the Rambam. How does the Rambam answer the question of Tosfos? (See <b>LECHEM MISHNEH</b>, end of Hilchos Zechiyah u'Matanah; <b>BIRKAS HA'ZEVACH</b>, Erchin 26b; <b>PNEI YEHOSHUA</b>, and others.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHA'AGAS ARYEH</b> (#90), <b>PNEI YEHOSHUA</b>, and <b>TIFERES YAKOV</b> suggest that the Rambam follows his own view with regard to the definition of 'Yovel Rishon' mentioned earlier in the Gemara. The Gemara, in the name of Rav Chisda, says that during 'Yovel Rishon,' everyone (even Reish Lakish) agrees that a Kinyan Peros is like a Kinyan ha'Guf; since the seller is not yet convinced that the field will be returned during Yovel, he has intent to sell the Guf as well as the Peros. Most Rishonim explain that 'Yovel Rishon' refers to the first Yovel after the Jewish people started counting the years for Shemitos and Yovlos, during the times of Yehoshua.
</p><p>
The Rambam (Hilchos Bikurim 4:7), however, explains 'Yovel Rishon' differently. He explains that 'Yovel Rishon' refers to the first Yovel which the seller experiences in his lifetime. 
</p><p>
According to the Rambam, why does Rav Yosef say that if property was ever divided among brothers as an inheritance, one who brings Bikurim from that property does not read Parshas Bikurim? Why should he not read Parshas Bikurim because he (the heir) has not yet experienced his first Yovel? Since each brother is not certain that his property in the hands of the other brother will come back to him at Yovel, they both have genuine intent that the other brother should have a Kinyan ha'Guf on his portion. Accordingly, each one should be required to read Parshas Bikurim.
</p><p>
It must be that Rav Yosef disagrees with Rav Chisda who differentiates between the first and second Yovel. Rav Yosef maintains that even during the first Yovel, each brother has a Kinyan ha'Guf. Since the Rambam rules like Rav Chisda that the first Yovel is different, he also rules that when brothers bring Bikurim from an inherited field (before they experience the first Yovel), they indeed read Parshas Bikurim because they each have a Kinyan ha'Guf on the property.
</p><p>
However, the <b>CHASAM SOFER</b> points out that even according to Rav Chisda, heirs might differ from sellers. An heir certainly relies on the fact that the property will be returned at Yovel, since there is no reason for the other brothers to withhold giving back the land since they all stand to gain and lose equally. (Only someone who <i>sells</i> property before he experiences his first Yovel thinks that the buyer will not return it because the buyer will thereby lose his money.)
</p><p>
(b) The <b>LECHEM MISHNEH</b> answers that the Rambam is bothered by the question of Tosfos, who asks that Rava's rulings seem to contradict each other. Rava here supports the view of Reish Lakish (that a Kinyan Peros is not like a Kinyan ha'Guf), but in Kidushin (42b) Rava rules that brothers who inherit land are considered 'Lekuchos,' buyers from each other. Rava, therefore, must argue with Rav Yosef who says that these two opinions are mutually exclusive.
</p><p>
What is Rava's logic for explaining why Parshas Bikurim is read? The Lechem Mishneh explains that it is assumed that brothers probably want to give each other a Kinyan ha'Guf and not just a Kinyan Peros, even though they will have to return the portions to each other in Yovel, in order for them to be able to read Parshas Bikurim when they bring the first fruits. The Rambam rules like Rava and not like Rav Yosef, and that is why he does not consider it a contradiction to rule both like Reish Lakish (that a Kinyan Peros is not like a Kinyan ha'Guf) and that brothers who inherit land are considered 'Lekuchos,' buyers.
</p><p>
(c) The <b>PNEI YEHOSHUA</b> (in his second answer) also suggests that the Rambam does not rule like Rav Yosef (but rather like Rava), but he gives another reason to explain why the two rulings are not contradictory. The Rambam (Hilchos Shemitah v'Yovel 11:20) rules that although the brothers return their portions to each other in Yovel, they re-divide the property in the <i>exact same manner</i> as it was originally divided (see also <b>RASHI</b>, 25a, DH Lekuchos Hen). This is logical, because otherwise the land would have to be re-divided among all of the heirs of the original generation of Yehoshua (the people who entered Eretz Yisrael from the Midbar) every Yovel year.
</p><p>
The reason why a field sold during a time when Yovel is observed is assumed to be a Kinyan Peros and not a Kinyan ha'Guf is that the owner does not <i>intend</i> to sell the Guf, since he does not want the buyer to have the right to damage the Guf (such as by digging ditches) which will be returned to the seller at Yovel. (If he were to sell the Guf, the buyer would be allowed to do whatever he wants to the Guf, including digging ditches, which the seller does not want.)
</p><p>
In contrast, when brothers return their portions to each other in Yovel, they take back the same portion which they had before Yovel. Therefore, they have no reason to limit each other to receiving only a Kinyan Peros and not a Kinyan ha'Guf, since they are not going to receive the field which the other brother took in any case. Therefore, they may read Parshas Bikurim when they bring Bikurim.
</p><p>


lvr: 36
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The verse is 'the number of years of crops he will 
               sell to you.' (This implies that when Yovel applies, 
               only the Peros are sold.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A firstborn receives a double portion in 
               a field that returns to his father in Yovel. (This 
               implies that the field itself belonged to the 
               father, even though it was sold.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Abaye):</font></b> A husband needs a Harsha'ah (power of attorney) 
          in order to make claims in Beis Din about his wife's 
          property (even though he owns the Peros).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only if the Peros are not being 
               contested. If they are contested, since he may claim 
               about the Peros, he may also make claims about the 
               property itself (without a Harsha'ah).
<br>
<br><b>PEREK HANIZAKIN</b>
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>COLLECTION OF DEBTS FROM LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> All the following laws are for Tikun ha'Olam. 
          When a debt is collected from land, the quality of land 
          collected varies according to the source of the debt:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Damages are collected from Idis (highest quality 
               land);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A lender collects from Beinonis (middle quality 
               land);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A Kesuvah is collected from Ziburis (lowest quality 
               land);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Meir says, also a Kesuvah is collected from 
               Beinonis.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  A debt is not collected from Meshubadim (i.e. property 
          that was sold to someone else) if the debtor has Bnei 
          Chorin (property that he did not sell), even if it is 
          Ziburis.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Only Ziburis is collected from orphans.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  The following are not collected from Meshubadim:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Compensation for Peros (if Reuven bought a field 
               from Shimon, and really it was Levi's, Levi takes 
               back the field with any Peros that are on it, and 
               Reuven collects their value from Shimon);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Compensation for improvements (in the above case, 
               Reuven is compensated for improvements he made to 
               the field);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The food that a widow and (orphaned) daughters 
               receive from the deceased's estate.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  One who finds an Aveidah (lost item) need not swear.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> The first law is not only for Tikun 
          ha'Olam! It says 'from the best of his field and vineyard 
          he will pay'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> The Mishnah is like R. Yishmael, who 
          says that mid'Oraisa, he pays land no worse than the Idis 
          (best quality land) of the victim. For Tikun ha'Olam, the 
          damager pays with his own Idis.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> 'From the best of his field 
               and vineyard he will pay' refers to the best field 
               and vineyard of the victim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, the verse teaches only that damages 
               are collected from Idis, and all the more so 
               regarding Hekdesh.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Does R. Yishmael obligate one to pay Idis 
               whether his animal ate Peros of Idis or Ziburis?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1 (Rav Ada bar Avin):</font></b> The case is, the 
               animal ate a patch among many patches, and we do not 
               know if it ate a good patch or a bad patch.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> If we would know that it ate a bad 
               patch, he would pay for a bad patch. Now that we are 
               unsure, must he pay for a good patch?! One who seeks 
               to collect must prove that he is entitled to 
               collect!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2 (Rav Acha bar Yakov):</font></b> The case is, the 
               Idis of the victim was like the Ziburis of the 
               damager.
<br>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>COLLECTION OF DAMAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  R. Yishmael holds that we assess (what is called Idis) 
          according to the victim's land. R. Akiva says that it is 
          according to the damager's land.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What is R. Yishmael's reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> It says 'field' later (in the Parshah), and also 
          earlier;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like the first time it refers to the victim's 
               field (being consumed), also the latter time (the 
               payments will be like the Idis of that field).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Akiva expounds 'from the best of his field he will 
          pay' - the field of the one paying.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  R. Yishmael learns from a Gezeirah Shavah and from this 
          verse.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He learns from the above Gezeirah Shavah (Sadeh-
               Sadeh).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The verse also teaches that if the damager has Idis 
               and Ziburis, and his Ziburis is not as good like the 
               Idis of the victim, he must pay with his Idis (even 
               if it is better than the Idis of the victim).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DAMAGES TO HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa - R. Akiva):</font></b> The verse teaches only that damages 
          are collected from Idis, all the more so regarding 
          Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> When does the Kal va'Chomer to Hekdesh apply?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> A man's ox gored an ox of Hekdesh.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> One pays when his ox gores 'the ox of his 
               fellow man', not an ox of Hekdesh!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> Rather, a man said 'it is upon me to give a 
          Maneh to Hekdesh.' The Gizbar (treasurer of Hekdesh) 
          collects from the man's Idis.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> If so, the Gizbar is like a creditor, who 
          collects Beinonis!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Akiva holds that a creditor 
               collects Idis, like damages.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> (Even if this were true,) we could not 
               learn from a creditor to Hekdesh. A creditor 
               collects from Idis, for he is stronger: he collects 
               damages. Hekdesh should not collect from Idis, for 
               it does not collect damages!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2:</font></b> Really, a man's ox gored an ox of Hekdesh. R. 
          Akiva holds like R. Shimon ben Menasiya.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Menasiya):</font></b> If a Hekdesh ox 
               gored a Yisrael's ox, Hekdesh does not pay;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a Yisrael's ox, even if it is Tam (it is not 
               established to gore), gored a Hekdesh ox, it pays 
               full damage.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> If so, why must we say that R. Akiva argues 
          with R. Yishmael when the Idis of the victim is like the 
          Ziburis of the damager?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps all agree that payments are like the Idis of 
               the victim. They argue only about damages to 
               Hekdesh! R. Akiva holds like R. Shimon ben Menasiya, 
               and R. Yishmael holds like Chachamim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1:</font></b> (This cannot be, for) if so, why did R. Akiva 
          say 'the verse teaches only'? (This implies that he 
          argues about how to explain the verse of damages!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection #2:</font></b> If so, what is the Kal va'Chomer to 
          Hekdesh? (Rashi - if also R. Akiva is lenient about 
          damages, that one need not pay better than the victim's 
          Idis, we cannot learn to be stringent about Hekdesh! 
          Tosfos - why does R. Akiva try to convince R. Yishmael 
          that one pays Idis to Hekdesh? R. Yishmael totally 
          exempts one whose cow damaged Hekdesh! R. Shlomo - we can 
          never know that Hekdesh has no land better than the 
          damager's Idis, so in any case the damager must give his 
          own Idis!)
<br>
<br>

sjt:
<font><b>1) RESTITUTION OF LAND FOR DAMAGES</b></font><b>
<br>QUESTION: RASHI</b> (DH Hacha b'Mai Askinan) writes that when the Mazik (the person who caused damage) says that he has no money with which to pay for the damage he inflicted on another person's property, the Nizak (the one who suffered the damage) may take land from the Mazik in accordance with the value of the damage inflicted. Rashi makes a similar statement earlier (48b, DH Min ha'Idis), where he implies that the Mazik must pay with land only when he has no money. If he has money, he must pay with cash.
</p><p>
What is the source for Rashi's words? Why does the Mazik not have the option to pay with land even when he <i>does</i> have money? Also, why does Rashi choose to express this ruling here in Gitin (and not anywhere in Bava Kama, where it would be more appropriate)? (<b>RASHASH</b> 48b)
</p><p>
<b>ANSWER:</b> The <b>CHASAM SOFER</b> proves that the <b>SHACH</b> (CM 419:1) indeed maintains that when the Mazik has money or Metaltelin (movable property), he may not pay with land (if the Nizak so desires). 
</p><p>
The <b>NETZIV</b> in <b>MEROMEI SADEH</b> quotes the <b>RAMAH</b> cited by the <b>NIMUKEI YOSEF</b> (Bava Kama 2a) who rules that if the Mazik has money, he must pay with money rather than with Metaltelin or with land. The Netziv explains (in <b>HA'EMEK SHE'EILAH</b> #111) how this ruling may be reconciled with the Gemara in Bava Kama (9a and 10a) which seems to contradict it.
</p><p>
Why does Rashi teach this law specifically in the Sugya here? The Chasam Sofer and Netziv point out that Rashi's intent here is to answer the question of <b>TOSFOS</b> (in DH Kegon). Tosfos asks why the only practical difference which the Gemara finds between the view of Rebbi Yishmael (who says 'bid'Nizak Shaiminan') and the view of Rebbi Akiva (who says 'bid'Mazik Shaiminan') is where the Ziburis (low quality) land of the Mazik is the same quality as the Idis (high quality) land of the Nizak. Why does the Gemara not suggest a practical difference in the opposite scenario -- where the Idis of the Mazik is like the Ziburis of the Nizak? According to Rebbi Akiva (who says that the Mazik pays according to the value of his own fields), it suffices for the Mazik to give his Idis. According to Rebbi Yishmael (who says that the Mazik must pay from a field of his that is as high in quality as the Idis of the Nizak), since the Mazik has no such field he may not pay with land. Instead, he must pay with money (since money is always considered to be as good as the best property; Bava Kama 9a). Tosfos leaves this question unanswered.
</p><p>
According to Rashi, the answer is clear. If the Mazik would have money, he would not be paying with land in the first place! Since he is trying to pay with land, he obviously has no money with which to pay, and therefore even according to Rebbi Yishmael he has no choice but to pay with the best of his lands, regardless of the quality of the Nizak's lands.
</p><p>
<br>


lvr: 36
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Objection #3 (Beraisa - R. Yishmael):</font></b> 'From the best of 
          his field and vineyard he will pay' refers to the best 
          field and vineyard of the victim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva says 'from the best of his field and 
               vineyard' - of the damager.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ANOTHER EXPLANATION OF THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #2 (to question 3:g, 48b - Ravina):</font></b> Really, the 
          Mishnah is like R. Akiva, who says that we assess Idis 
          based on the damager's land. The Mishnah is also like R. 
          Shimon, who derives laws based on the reasons for 
          Mitzvos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The reason the Torah said that damages are collected 
               from Idis is for Tikun ha'Olam.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Beraisa - R. Shimon):</font></b> Damages are collected from Idis 
          due to robbers and extortionists;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Such people will be discouraged from stealing when 
               they realize that Beis Din may later take their best 
               property for payment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim based the law on 'from the best of his 
               field and the best of his vineyard he will pay.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Continuation of Beraisa):</font></b> Creditors collect from (only) 
          Beinonis in order that one who covets his friend's choice 
          property will not lend to him, intending to collect the 
          property.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, Chachamim should have enacted that 
               they collect from Ziburis!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If so, borrowers would not find people to 
               lend to them.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Yehudah says, a Kesuvah is collected from Ziburis;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  R. Meir says, it is collected from Beinonis.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  R. Shimon says, the Kesuvah is collected from Ziburis, 
          for a woman wants to marry more than a man does;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also, a woman is divorced willingly or unwillingly, 
               but a man divorces only willingly.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that just like 
               Chachamim enacted that she receives a Kesuvah when 
               he divorces her, they should enacted a Kesuvah for 
               him when she (vexed him, and) forced the divorce. R. 
               Shimon teaches that a man is never forced to 
               divorce. He can delay giving a Get.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>COLLECTION OF A KESUVAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> A Kesuvah is collected from Ziburis.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Mar Zutra brei d'Rav Nachman):</font></b> This applies only when 
          she collects from orphans. A divorcee collects from her 
          ex-husband from Beinonis.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Anyone who collects from orphans collects 
          Ziburis. Why did the Mishnah specify a Kesuvah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One who collects land from orphans 
               receives Ziburis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Mishnah says that a Kesuvah is 
               collected from Ziburis even when she collects from 
               her ex-husband.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> Really, it teaches that she collects from orphans 
          from Ziburis;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that we let her collect 
               better land to encourage marriage. The Mishnah 
               teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rava - Mishnah):</font></b> R. Meir says, she collects 
          from Beinonis.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> From whom does she collect Beinonis?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It is from orphans.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> Surely, R. Meir agrees that one who 
                    collects land from orphans receives Ziburis!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is from her ex-husband.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This shows that Chachamim who argue with R. Meir say 
               that she gets Ziburis from him.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Really, she collects Beinonis from orphans, to 
          encourage marriage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Abaye - Beraisa):</font></b> Damages are collected from 
          Idis. A creditor collects from Beinonis. A Kesuvah is 
          collected from Ziburis.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> From whom are these collected?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> They are from the orphans.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> If so, all would collect from 
                    Ziburis!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, they are from the debtor (regarding 
               a Kesuvah, the ex-husband) himself.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (Rav Acha bar Yakov):</font></b> No, they collect from the 
          debtor. The case is, a man became an Arev for his son's 
          damages, debts and (his son's wife's) Kesuvah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Everyone collects like he is entitled to. The 
               damaged party and creditor normally collect in the 
               lifetime of the son. The father pays them like the 
               son would have;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Kesuvah was destined to be collected from the 
               orphans after the husband's death. The father pays 
               as orphans, from Ziburis.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> An Arev for a Kesuvah need not pay it! 
               (The Gemara will explain why.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, the father accepted to be a 
               Kablan (an Arev whom the creditor may ask to pay 
               before he asks the borrower to pay).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> This is like the opinion that a Kablan 
               becomes obligated even if the borrower has no 
               property. According to the opinion that a Kablan 
               becomes obligated only if the borrower has property, 
               how can we answer?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1:</font></b> The son had property. Later, it was 
               flooded.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> One becomes obligated for his son even if 
               the son has no property.
<br>

sjt:
<p>
<font><b>2) AN 'AREV KABLAN'</b></font><b>
<br>OPINIONS:</b> Mar Zutra rules that when a woman collects the Kesuvah after her husband dies, she collects from the Ziburis (low quality land) of the estate of the husband. If the husband is alive and divorces his wife, he must pay the Kesuvah from his Beinonis (medium quality land). Abaye challenges this ruling from the Mishnah (48b) which states that a Kesuvas Ishah is paid with Ziburis, Nizakin (damages) are paid with Idis (high quality land), and a Ba'al Chov (lender) is paid with Beinonis. If the person who must pay in all of these cases is dead and his heirs are the ones who are paying from his estate, in <i>all</i> of these cases the payment should be rendered from Ziburis! It must be that the Mishnah refers to a living man who pays the Kesuvah to his wife upon divorcing her, and yet the Mishnah says that he pays only from Ziburis.
</p><p>
Rav Acha bar Yakov answers that the Mishnah refers to a situation in which the father of the Mazik (or debtor, or husband) accepted upon himself to be an Arev (guarantor) to pay the obligations of the son in the event that his son is not able to pay his obligations. In such a case, even after the son dies the father must pay the son's obligations in the manner described in the Mishnah (Idis for Nizakin, Beinonis for a Ba'al Chov). However, the Kesuvah is still paid only with Ziburis since the obligation of the Kesuvah takes effect <i>after</i> the death of the son, and therefore there was no time during the son's lifetime at which he was obligated to pay the Kesuvah with his Beinonis. Since the son would have been obligated to pay his debt only with Ziburis (via his heirs), the father (who accepted upon himself to pay his son's obligations) also pays it only with Ziburis. 
</p><p>
The Gemara adds that although a person who accepts Arvus, responsibility, for a man's obligation to pay a Kesuvah does <i>not</i> actually become obligated (but rather he accepted the 'Arvus' merely for the sake of encouraging the woman to marry the man), the case of the Mishnah refers to a father who accepted to be an 'Arev <i>Kablan</i>' for the Kesuvah-obligation of his son, and thus he indeed becomes obligated to pay the Kesuvah.
</p><p>
What is an 'Arev Kablan?'
</p><p>
(a) <b>RASHI</b> (DH b'Kablan) and the <b>RASHBAM</b> (Bava Basra 47a) explain that the word 'Kablan' denotes that the Arev <i>received</i> ('Kibel') money or an object on behalf of the borrower. Since the object passed through his hands, he has accepted a greater obligation towards the lender. <b>TOSFOS</b> (DH b'Kablan) explains that according to Rashi this is the meaning of 'Kablan' whenever the Gemara discusses the concept.
</p><p>
In the case of an ordinary loan, it is clear that the Arev can become a Kablan by accepting the money which the lender gives to the borrower. However, in the case of a Kesuvah, the woman has not yet received her Kesuvah, and she is not giving anything to the Arev Kablan in order to obligate him to pay the Kesuvah when the time comes. How, then, can a person become a Kablan for a Kesuvah?
</p><p>
Rashi explains that one can become a Kablan for a Kesuvah in a case in which the husband designated certain Metaltelin items in his possession for the payment of the Kesuvah, and he gave them to his wife to hold until the time comes to collect the Kesuvah. If the wife hands over those Metaltelin to an Arev in order for him to return them to her husband, the Arev becomes an Arev Kablan. 
</p><p>
The Gemara in Bava Basra (174a) gives different criteria for defining the difference between a Kablan and an Arev. The Gemara there says that when a person asks the lender to accept him as a Kablan for the loan, the wording he uses ('go give him money') differs from the wording used by an Arev ('lend him money'). Tosfos explains that Rashi understands that a Kablan requires both a different wording <i>and</i> physically accepting the money of the loan for the borrower.
</p><p>
However, Tosfos asks a strong question on Rashi's opinion from the Gemara there in Bava Basra. The Gemara concludes that 'if the Arev accepts and passes on the loan with his own hands, the lender has no claim on the borrower at all (Ein Lo l'Malveh Al ha'Loveh Kelum)'; rather, he must collect directly from the Arev and not from the borrower. Accordingly, when he accepts the loan directly from the lender, he is not a Kablan at all since in the case of a Kablan the lender may collect from the borrower if he so chooses, as is clear from the Gemara here (see Rashi, DH Is Lei Nichsei).
</p><p>
Tosfos answers that the case in Bava Basra in which the lender cannot collect from the borrower is where the Arev Kablan took money from the lender and gave it to the borrower (which is not the same as the case here; see also Tosfos ha'Rosh).
</p><p>
Tosfos' intention here is not clear (see <b>MAHARSHA</b>, <b>MAHARAM</b>, and <b>PNEI YEHOSHUA</b>). Perhaps Tosfos means that the case in Bava Basra is when the Arev Kablan said, 'Lend <i>me</i> money,' and then he went and lent the money that he received to the borrower. He did not request the money for the borrower but rather for himself. In this case, the Arev certainly is the only one who is obligated to pay back the loan to the lender (see <b>ALIYOS D'RABEINU YONAH</b> in Bava Basra 174a). In the case of the Gemara here, however, the father requested from the woman the Metaltelin that were reserved for the Kesuvah in order to 'return' them to his son, as Rashi writes.
</p><p>
(b) The <b>RASHBA</b> and <b>RITVA</b>, however, explain that a Kablan becomes a Kablan simply because of the wording he uses when he accepts the Arvus. This follows the simple reading of the Gemara in Bava Basra. It is not necessary for him to physically accept any money or object. The reason he is called a Kablan is because he has accepted ('Kibel') responsibility to pay back the loan. If he physically accepts the loan itself, his obligation is much greater than that of an Arev Kablan, and the lender may collect <i>only</i> from him and not from the borrower (as Tosfos here cites from Bava Basra 174a). 
</p><p>
The Rashbam himself (in Bava Basra 173b, DH Kablanus) seems to retract what he wrote earlier in Bava Basra and sides with the other Rishonim. 
</p><p>
(c) The <b>TOSFOS HA'ROSH</b> and the <b>RASHBA</b> (in the name of Tosfos) compromise and explain that, normally, a person becomes a Kablan based on the wording he uses and not because he physically accepts the loan. However, the wording alone is not enough to make a person a Kablan for a <i>Kesuvah</i> (because he does not cause any loss to the wife any by accepting responsibility, since she has not handed over any money as a result of his promise to pay back). Therefore, in order to become an Arev Kablan for a Kesuvah, it is necessary for the wife to have received Metaltelin which were designated for the payment of her Kesuvah and to return them based on the promise of the Arev. Only then does one become an Arev Kablan.
</p><p>


lvr: 36
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS AN AREV OBLIGATED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  All agree that an Arev for a Kesuvah is not obligated.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  All agree that a Kablan for a loan is obligated.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Opinions differ about an Arev for a loan and a Kablan for 
          a Kesuvah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say that he is obligated even if the borrower 
               has no property;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Others say that he is obligated only if the borrower 
               has property.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  The Halachah is, in all cases he is obligated, even if 
          the borrower has no property, except for an Arev for a 
          Kesuvah. In that case, even if the husband has property, 
          the Arev is not obligated.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Why is he exempt?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> The woman does not lose any money, so the Arev 
          does not accept Acharayus (responsibility to pay if her 
          husband will not pay). He thinks that he is merely doing 
          a Mitzvah (to encourage the marriage).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  (On 49b 4:b, Mar Zutra taught that a divorcee collects 
          from her ex-husband from Beinonis.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Ravina):</font></b> Chachamim enacted a Kesuvah from 
          Ziburis because a woman wants to marry more than the man 
          does (she will marry in any case).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she collects Ziburis only from orphans, the 
               reason is because she collects from orphans!
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  Mar Zutra is refuted.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COLLECTING A DEBT FROM ORPHANS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mar Zutra brei d'Rav Nachman):</font></b> If a loan document was 
          brought for payment from orphans, even though it promises 
          that the lender may collect from Idis, he collects only 
          from Ziburis.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Support (Abaye):</font></b> A normal creditor collects from 
          Beinonis, yet he collects Ziburis from orphans.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection (Rava):</font></b> That is no proof, for mid'Oraisa, a 
          creditor is only entitled to Ziburis, like Ula taught!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ula):</font></b> Mid'Oraisa, a creditor collects Ziburis - 
               'you will stand outside, and the borrower (will give 
               you a security).'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Normally, the borrower will give the lowest quality 
               Kli.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim enacted that a creditor collects Beinonis, 
               in order that borrowers will find people to lend to 
               them.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Regarding orphans, no enactment was made. The 
               creditor collects from Ziburis like the Torah says.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Culmination of rejection):</font></b> Here, mid'Oraisa the 
               creditor collects from Idis (due to the Tanai). This 
               is even from orphans!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (against Rava - Avraham Chuza'ah's Beraisa):</font></b> 
          Only Ziburis may be collected from orphans, even for 
          damages.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Mid'Oraisa, damages are collected from Idis. (This 
               is like Mar Zutra's case!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, the damager's Ziburis is like the 
          victim's Idis. The Beraisa is like R. Yishmael;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yishmael says that mid'Oraisa, the damager must 
               pay with land as good as the victim's Idis. It was 
               an enactment to make him pay with his own Idis. This 
               enactment was not made against orphans.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (against Rava - R. Eliezer Niyusa'ah's Beraisa):</font></b> 
          We only collect from Ziburis of orphans, even if they are 
          Idis!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does it mean, 'even if they are 
               Idis'?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> This is even if the document says 
                    that the lender may collect from Idis.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Version #1 - Rashi - Answer:</font></b> No. It means, even if the 
          borrower had Idis, but no longer has it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rava's law.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> If one damages Ziburis, if he pays for this 
               with land, he pays Idis. If the Idis is gone, he 
               pays Beinonis.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> When orphans must pay, we make no enactment. 
               Mid'Oraisa, they pay Ziburis.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Version #2 - Tosfos - Answer:</font></b> No. It means, even if 
          orphans damaged a man's property on the river bank (he 
          collects only from Ziburis).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rava's law.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> One who damages Ziburis, if he pays for this 
               with land, he pays Idis. If he damages the edge of 
               the field by the river, even if the field is Idis, 
               he pays Beinonis. (The river floods it, so one 
               cannot grow crops. It is mere pasture, so one who 
               grazed his animals there is like a borrower, even if 
               the owner did not consent.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> When orphans damage, we make no enactment. 
               Mid'Oraisa, they pay Ziburis. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Mishnah):</font></b> When we collect land from orphans, we collect 
          Ziburis.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Rav Achdevoy bar Ami):</font></b> Does this refer only to 
          minors, or even to adult orphans?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Ziburis is an enactment to help orphans (it is 
               hard for them to sell property), it was enacted only 
               for minors, but not for adults;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps it is (letter of the law,) because a 
               lender does not expect the borrower to die. People 
               will lend money, even without an enactment to 
               collect from Beinonis of orphans. (This applies 
               equally to minors and adults.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer (Abaye Kashisha - Beraisa):</font></b> Chachamim referred 
          even to adult orphans, all the more so to minors.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps that is only regarding the oath 
          imposed on one who collects from orphans, since even 
          adult orphans do not know about their father's affairs, 
          but Ziburis is only from minors!
<br>
<br>

sjt:
<font><b>1) A 'SHIBUD' TO COLLECT A LOAN FROM LAND</b></font><b>
<br>QUESTION:</b> The Amora'im disagree about the law in the case of a Shtar Chov (deed of debt) in which a borrower wrote explicitly that he permits the lender to collect the debt from his Idis (high quality) property, even though a debt normally is collected only from Beinonis (middle quality). Abaye and Mar Zutra rule that in such a case, if the borrower dies and the lender comes to collect the debt from the heirs (Yesomim), he may collect only from the Ziburis and not from the Idis, as is the law in any case of one who collects a debt from Yesomim.
</p><p>
Rava disagrees and says that whenever one collects from Yesomim, mid'Oraisa the Yesomim need to pay only from Ziburis because, mid'Oraisa, when a loan is granted only Ziburis land becomes Meshubad (collateralized) to the repayment of the loan. It was the Rabanan who required that the borrower pay back with Beinonis land. Thus, when the borrower has died and the obligation to pay back the loan falls upon the Yesomim, the Rabanan suspended their requirement that a loan must be paid back with Beinonis and they allowed the Yesomim to pay with Ziburis, in accordance with the d'Oraisa requirement. However, when the borrower wrote explicitly in the Shtar that he agrees to pay from Idis, his Idis becomes Meshubad <i>mid'Oraisa</i> to the repayment of the loan. Since this Shibud on the Idis property is a Shibud d'Oraisa, even when the Yesomim pay back the loan they must pay back with Idis. This is the view of Rava.
</p><p>
Why, though, should the Yesomim need to pay back the loan with land of Idis? When a person writes in his Shtar that he agrees to pay back his loan with Idis, such a commitment should obligate only <i>him</i> to pay from Idis, and not his Yesomim. Why does Rava assume that even after the borrower dies and the responsibility to pay back the loan falls to the Yesomim, that the Yesomim must also pay from Idis <i>mid'Oraisa</i>? The Gemara in the end of Bava Basra records a dispute about whether a Shibud is d'Oraisa or not (that is, whether a Shibud -- the obligation of Yesomim to pay the debts of their father from the land they inherited -- is mid'Oraisa or mid'Rabanan). The opinion which maintains that the Shibud is only mid'Rabanan asserts that there is absolutely no obligation mid'Oraisa for the Yesomim to pay the debt from the property they inherit, because there is no concept of Shibud in the Torah itself. Why, then, in a case in which the Yesomim inherit the loan after the borrower dies, should Rava maintain that their obligation to pay Idis is mid'Oraisa? If a Shibud is <i>not</i> mid'Oraisa, any obligation that they have is only mid'Rabanan! (<b>TOSFOS</b> DH Keivan)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Keivan d'Dinei) explains the concept of Shibud of one's property in a new light. The Gemara earlier teaches that there is a concept of 'Arvus,' whereby one person becomes an 'Arev' and obligates himself to pay back the debts of another person. This is a d'Oraisa obligation, as the Gemara says in Bava Basra (173b). Rashi explains that just as a person can become obligated to repay someone else's debts, <i>land</i> itself can become obligated, so to speak, to pay the debts of its owner through the concept of Arvus. That is, the land itself becomes an Arev, as the obligation to repay the debt falls upon the person's property in the event that the person cannot repay it himself (for example, he dies or has no money). Rashi explains that since Arvus is a Torah concept, land can also become an Arev mid'Oraisa, and therefore it is clear that if one specifies a Shibud on his property the Shibud takes effect and his property becomes obligated to pay back the loan in the event that the person does not.
</p><p>
The obvious extension of this logic is that according to Rashi, a person can obligate his property (by making a Shibud on his property) to pay back the loan, even if the Halachah is 'Shibuda Lav d'Oraisa,' the Shibud that comes automatically with every loan is not mid'Oraisa. Rashi in fact writes this in Kidushin (13b, DH Lav d'Oraisa), according to the <b>RASHBA's</b> explanation of Rashi's words. What, then, does 'Shibuda Lav d'Oraisa' mean? It means that no Shibud is created <i>automatically</i> when a person borrows money, whether or not the loan is executed with a Shtar. If a person specifies that he wants to create a Shibud and make his property into an Arev, he may do so, and his property becomes obligated to repay the loan.
</p><p>
Hence, according to Rashi, a person may make a Shibud on property of Idis even though mid'Oraisa only his Beinonis or Ziburis is obligated to repay the loan, because the property can become an Arev. In the same vein, Rashi in Kidushin writes that a person may create an obligation on his property for his Yesomim to pay back the debt, even if the Halachah is 'Shibuda Lav d'Oraisa,' by specifying in the conditions of the loan that he wants to make his property Meshubad. As the <b>SEFER HA'MIKNEH</b> in Kidushin points out, these two points are related, and Rashi here is consistent with his opinion in Kidushin.
</p><p>
This explains why Rashi here maintains that when a person specifies that he wants his Idis to become Meshubad, it becomes Meshubad even for his heirs to pay back with Idis. Since he made his property an Arev, it is Meshubad to the loan even if the Halachah is 'Shibuda Lav d'Oraisa.'
</p><p>


This is also the view of the <b>RASHBA</b> here who agrees with Rashi both here and in Kidushin and writes that a person may make a Shibud mid'Oraisa by specifying the Shibud, even though normally a Shibud is not mid'Oraisa. The same logic also explains the case of Avram Choza'a, in which the Gemara assumes that since there is a Chiyuv d'Oraisa to pay for Nezikin (damages) with Idis, the Yesomim also are obligated to pay back with Idis. This is because of the same logic: even though the Shibud is mid'Rabanan, nevertheless once a Shibud takes effect on property (such as in the case of Nezikin, where there certainly is a Shibud d'Oraisa to pay from Idis), the land becomes an Arev. Consequently, even the Yesomim are obligated to pay from those fields. (See <b>PNEI YEHOSHUA</b>.)
</p><p>
(b) <b>TOSFOS</b> (DH Keivan), however, explains that the reason why Rava assumes that when a person specifies Idis in the Shtar the Yesomim are obligated mid'Oraisa to pay back the loan with Idis is that Rava maintains that 'Shibuda d'Oraisa.' If a Shibud would be mid'Rabanan, there indeed be no obligation for the Yesomim to pay back from Idis!
</p><p>
Tosfos seems to follow this opinion in the end of Bava Basra (175b, DH Devar Torah) where he writes that even if one specifies in the Shtar that he accepts upon himself Achrayus, he has no responsibility of Achrayus according to the view that a Shibud is not mid'Oraisa. This is also the opinion of the <b>RITVA</b> in Kidushin (13b) who explains that according to the opinion that 'Shibuda Lav d'Oraisa,' a Shibud -- which is an act of Kinyan to obligate oneself to pay back from a certain property if one does not have enough money to pay back on his own -- is not a full Kinyan because the person does not actually give anything over to the lender at the time of the loan. He merely says that if he does not have money of his own to pay back, the lender may come and collect from those who purchased land from him (the Lekuchos) or from his heirs (the Yesomim). Since a full Kinyan has not been executed but rather a 'half-Kinyan' ('Kinyan l'Chatza'in'), so to speak, it has no binding effect.
</p><p>
This is the reasoning of the opinion that 'Shibuda Lav d'Oraisa.' Since that opinion maintains that it is impossible to make a Kinyan of Shibud because it is a 'Kinyan l'Chatza'in,' even if the borrower specifies in his Shtar that he wants a Shibud, there will be no Shibud. This is because a Shibud is not a Kinyan; it is not something that represents a transaction of any sort, and therefore it is meaningless. The <b>RITVA</b> explains that this point is the basis for the argument among the Amora'im with regard to whether the concept of Shibud is mid'Oraisa or mid'Rabanan. According to the opinion that it is mid'Oraisa, a Shibud is not a half-Kinyan but rather a full Kinyan which is 'Mitla Tali v'Kai' -- it is 'hanging' and waiting to take effect (either from this point on ('mi'Kan ul'Haba'), according to Rava in Pesachim (30b), or retroactively ('l'Mafrei'a'), according to Abaye there). It is a 'hanging' Kinyan, a Kinyan in waiting, and not half of a Kinyan. In contrast, according to the opinion that the concept of Shibud is not mid'Oraisa, a Shibud is not a Kinyan and cannot be created even if the borrower specifies a Shibud in a Shtar.
</p><p>
It is clear from the words of the Ritva and Tosfos that they maintain that land cannot become an Arev. Only a person can become an Arev, not property. Hence, the only question is whether or not there was a Kinyan.
</p><p>
This opinion of the Ritva in Kidushin does not contradict what the Ritva mentions here. The Ritva here (Kesav Yad) cites the <b>RAMAH</b> and <b>RAMBAN</b> who explain that if the borrower specifies in the Shtar that he will pay back with Idis and that even his heirs will have to pay back with Idis, the Shtar <i>does</i> obligate the heirs to pay back with Idis, even according to Abaye and Mar Zutra. This is also the opinion of the <b>TOSFOS RID</b>. According to these Rishonim, the dispute between Abaye and Rava is whether the father's intention was to be Meshabed his Idis only for himself while he was alive, or even for after his death. If his intention was to be Meshabed his Idis for after his death, certainly his heirs must pay from Idis because the enactment of the Rabanan to be lenient with Yesomim and to collect from Ziburis does not override what the father specified explicitly. These Rishonim learn this from the Gemara in Kesuvos (87a) which states that when a father specifies that his wife should collect her Kesuvah after his death without having to make a Shevu'ah, she indeed may collect it without a Shevu'ah; the husband's edict overrides the Rabanan's enactment that she must make a Shevu'ah in order to collect her Kesuvah from Yesomim.
</p><p>
The wording of the Ritva here is that when the father specifies that he wants his heirs to pay from Idis, his statement is a 'Tenai b'Davar sheb'Mamon,' a stipulation regarding a monetary matter. The law is that such a condition is binding and it overrides the normal Halachah. This does not contradict the Ritva's view that a person cannot create a Shibud on himself. The Ritva here does not mean that if the concept of Shibud is not mid'Oraisa, then when the borrower specifies that the debt should be collected from the Idis of his heirs after his death he creates a Shibud on them mid'Oraisa. Rather, the same Shibud he creates on himself he can create on the Yesomim: If Shibud is not mid'Oraisa, he can create only a Shibud mid'Rabanan on his Yesomim; if Shibud is mid'Oraisa, he can create a Shibud mid'Oraisa on his Yesomim. Although the Ritva in Kidushin explains that Shibud is a type of a Kinyan according to the opinion that 'Shibuda d'Oraisa,' presumably also the Shibud d'Rabanan which the Rabanan created (according to the opinion that Shibud is not mid'Oraisa) is a type of a Kinyan that is 'hanging.' Why, then, does he write here that it is a Tenai, a condition? It seems that the Ritva here does not really mean that it is literally a Tenai that the borrower stipulated. Rather, he means that it is a <i>Kinyan</i> of Shibud, but since the Kinyan is not fully effective it is hanging and waiting until the lender collects from it. Therefore, he refers to it as a Tenai rather than as a full-fledged Kinyan. This seems obvious from the fact that if it would be a Tenai, the borrower would not be able to obligate his heirs to pay back with the condition that he makes. He cannot make a condition that he is borrowing money on condition that his heirs pay back with Idis, for he cannot tell them what to do.
</p><p>
However, the <b>ME'IRI</b> (Bava Basra 175b, Kidushin 13b) writes that even if Shibud is not mid'Oraisa, the borrower can create a Shibud if he desires, because he can make a <i>Tenai</i> in the loan saying that the lender can collect the land from Lekuchos and from Yesomim through a Shibud.
</p><p>
The Me'iri's words are very difficult to understand. How can a Tenai obligate those who purchase land from the borrower, or those who inherit land from the borrower, to pay back his loan? They cannot be bound by his Tenai! If Shibud is not mid'Oraisa, why does the Me'iri write that the borrower can create a Shibud d'Oraisa (by writing his desire to do so in the Shtar) because of the concept of Tenai?
</p><p>
Perhaps the Me'iri means that when a person makes a Tenai that he is going to pay back land for his debt if he has no money with which to pay, and that the lender may collect his land from Lekuchos, later -- when the borrower sells his land -- it is as if he makes a condition in the <i>sale</i> that his creditor is entitled to collect this property as payment for his loan. When the borrower sells his property, he does <i>not</i> sell it with regard to the Shibud that the lender has on it. The Me'iri may understand that there is such a thing as a 'Kinyan Peros' on land, whereby one may own the land only with regard to its Shibud (that is, for the right to collect from it if the borrower has no money). This is similar to the Gemara's discussion earlier concerning whether a person may sell his Eved only for the right to receive the Kenas that might come in case the Eved is killed by an ox. In the same way, a person may sell his property with regard to its Shibud. That is what a person does when he makes a Tenai that his creditor may collect from his land. It is like he gives the land to the creditor only for the right to collect the loan from it in case there is no money to collect. Hence, when the Yesomim or Lekuchos receive that property (after the loan), they do not have the right to stop the creditor from collecting from it because the creditor already owns the land with regard to the right to collect from it if the borrower does not have money with which to pay back his loan.
</p><p>


