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Gitin 38

GITIN 38 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.

1a) [line 4] V'LO HEM KONIM ZEH MI'ZEH - L'GUFO - and they do not buy each other - with regard to the "person" of the slave
b) [line 5] L'MA'ASEH YADAV - (lit. the work of his hands) the amount that he earns or produces

2) [line 7] KASPA / CHAZAKAH
(a) When a person buys or sells an object, he must make a Ma'aseh Kinyan (a formal Halachically-binding act denoting the change in status). The forms of Ma'aseh Kinyan that may be used are: for Metaltelin (mobile goods) - 1. Hagbahah, i.e. lifting an item; 2. Meshichah (lit. pulling), i.e. causing an item to move; 3. Chatzer, i.e. bringing the item into one's domain; for Mekarka'in (immobile goods) - Chazakah, i.e. performing an act that is normally performed by an owner.
(b) Examples of Chazakah for real estate are Na'al (locking), Gadar (fencing in) and Paratz (making a breach in a fence to create an entrance) or any act that is done to *enhance* the land, such as digging to improve a field and the like (MISHNAH Bava Basra 42a).
(c) A normal adult slave, although mobile, is compared to real estate with regard to the type of Kinyan that is required for his purchase (Kidushin 22b, based on Vayikra 25:46). As such, a slave may be purchased with Kesef (paying money), Shtar (handing over a contract) or Chazakah (having the slave perform an act for his intended master that demonstrates their impending relationship, with the intention of buying him).
(d) Examples of Chazakah for slaves are taking off his master's shoes, following his master to the bathhouse carrying a change of clothing for him, undressing his master, washing him, etc. (Kidushin ibid.).

3) [line 8] AMON U'MO'AV TAHARU B'SICHON - The lands of Amon and Mo'av were "purified" by Sichon. The lands of Amon and Mo'av were given to the sons of Lot as an inheritance (Devarim 2:9, 19) and Benei Yisrael were commanded not to take their lands in battle (ibid.). Sichon, the king of the Emoriyim, captured large parts of their territory (Bamidbar 21:26). As a result, Benei Yisrael were able to conquer these same territories from Sichon.

4) [line 10] "VA'YISHB MIMENU SHEVI" - "and he (the Amaleki King of Arad) took from Benei Yisrael a captive" (Bamidbar 21:1) - Chazal reveal that the captive was a Kena'ani maidservant (RASHI, YALKUT SHIMONI ibid.).

5) [line 13] GET SHICHRUR
(a) A Jew who owns a non-Jewish slave (an Eved Kena'ani) may release the slave from bondage in one of two ways: by accepting payment for the slave's release, or by giving the slave a "Get Shichrur," or bill of release (Kidushin 22b). If the slave is not released in one of these two ways, he is still considered to be a slave for all Halachic matters (such as with regard to whom he is allowed to marry and what Mitzvos he is obligated to keep.)
(b) Some maintain that even if a master declares his slave Hefker (ownerless), but does not give him a Get Shichrur, the slave is still considered to be a freeman with respect to Halachic matters (Yevamos 48a, Gitin 38a).

6) [line 16] AREV V'TZIDON V'RA'AYAH ACHRONAH - The Halachah follows the opinion of Rabban Shimon ben Gamliel whenever his opinion is quoted in the Mishnah, except in these three cases:

(a) AREV (Bava Basra 173b-174a): The Chachamim rule that a loan may be given on the condition that the creditor can collect from the debtor's guarantor (Arev Kablan) before first going to the debtor. Rabban Shimon ben Gamliel rules that if the debtor has property, the creditor must collect from him, even if the loan was given under the above conditions.
(b) TZIDON (Gitin 74a): It occurred once in Tzidon that a man said to his wife, "This will be a valid Get (bill of divorce) on condition that you bring to me my robe," and then the robe was lost. According to the Rabanan, the Get is annulled and void. Rabban Shimon ben Gamliel maintains that she may give the value of the robe and the Get will be effective.
(c) RAA'YAH ACHRONAH (Sanhedrin 31a): The Chachamim rule that a litigant, after being instructed in Beis Din to prove his case, who says, "I do not have any proof," may not use any proof that he may subsequently find as valid evidence. (Since he already admitted to not having proof, we suspect that the documents that he brings afterwards may be forged.) Rabban Shimon ben Gamliel rules that we acknowledge the possibility that he did not know about the evidence for his case at the moment that he said he did not have proof, and he may therefore use the proof he subsequently finds as valid evidence.
7) [line 22] AMSEI - the handmaiden
8) [line 23] PARKUHA L'SHUM AMHASA V'SHADRUHA LEI - [some people] redeemed her to continue being Mar Shmuel's maidservant and sent her back to him

9) [line 30] "V'CHOL EVED ISH MIKNAS KASEF; [U'MALTAH OSO, AZ YOCHAL BO.]" - "But every man's servant who is bought for money, [when you have circumcised him, then shall he eat of it (the Korban Pesach).]" (Shemos 12:44)

10) [line 36] TARMODA'AH - from Tarmod (or Tadmor) = Palmyra, an oasis in the Syrian desert)

11a) [line 37] IY YA'US AVDAS - if you would do the proper thing
b) [line 38] SHADAR LAH GITA D'CHEIRUSA - send her a Get Shichrur
12) [line 44] MIT'ZELA B'APEI - she will become lowly in his eyes

Rav Yehudah cites the opinion of Shmuel, that anyone who frees his slave transgresses the Mitzvas Aseh of "l'Olam Bahem Ta'avodu" - "they shall be your slaves forever" (Vayikra 25:46).

14) [last line] CHETZYAH SHIFCHAH V'CHETZYAH BAS CHORIN - a woman who is part slave (Shifchah Kena'anis), part free; e.g. a maidservant originally owned by partners, one of whom freed his half


15) [line 2] MINHAG HEFKER NAHAGU BAH - various vile men had their way with her after she abandoned herself to them, since could marry neither freemen nor slaves

16) [line 4] U'MANTAR LAH - and he will protect her
17) [line 6] "[V'HISNACHALTEM OSAM LI'VNEICHEM ACHAREICHEM LA'RESHES ACHUZAH,] L'OLAM BAHEM TA'AVODU; [UV'ACHEICHEM BENEI YISRAEL, ISH B'ACHIV LO SIRDEH VO B'FARECH]" ..." - "[And you shall hold onto them as a heritage for your children after you, to give to your heirs as a possession;] you shall work with them forever; [but your brothers, the people of Yisrael, you shall not subjugate with hard labor.]" (Vayikra 25:46)

18) [line 14] NACHASEI BA'ALEI BATIM MI'NICHSEIHON - homeowners (a term for the common man) loose [all or most of] their assets

19) [line 15] SAIREI NICHSAIHU B'SHABATA - they inspect their possessions on Shabbos [to ascertain what they need]

20) [line 16] D'KAV'EI SE'UDASAIHU B'SHABATA, B'IDAN BEI MIDRASHA - they schedule their Shabbos meals at the time of the weekly Shi'ur

21) [line 31] GIZBARIN - the appointees of Hekdesh, treasurers
22) [line 35] RAV, TANA HU U'FALIG - Rav has the status of a Tana (a Sage of the Mishnah) and may hold a dissenting opinion against a Mishnah

23) [line 36] "ACH KOL CHEREM [ASHER YACHARIM ISH LA'SH-M, MI'KOL ASHER LO;] ME'ADAM [U'VHEMAH...]" - "However no devoted thing, [that a man shall devote to HaSh-m of all that he has, both] of man [and beast, and of the field of his possession, shall be sold or redeemed; every devoted thing is most holy to HaSh-m.]" (Vayikra 27:28)

24) [last line] OSEH V'OCHEL - (lit. he produces and eats) he works and buys his sustenance with his earnings

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