THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
GITIN 9 & 10 - have been anonymously dedicated by a very special Marbitz
Torah and student of the Daf from Ramat Beit Shemesh, Israel.
1) "PALGINAN DIBURA"
QUESTIONS: The Gemara inquires about a case of an Eved who brings a Get
Shichrur (bill of release) for himself in which is written, "All of my
possessions are hereby given to you." Abaye and Rava argue concerning the
status of the Eved. Abaye says that since the Eved does not acquire any of
the possessions of his master with this Shtar (since, as a single (and
invalid) witness, his word is not sufficient to validate the Shtar), he also
does not acquire his freedom. Rava says that the Eved acquires his freedom,
but he does not acquire any of the master's possessions.
2) AN "ILEM" WHO DELIVERS A GET
Rav Ada bar Masnah asks that Rava seems to be following the opinion of Rebbi
Shimon and ruling that we use the principle of "Palginan Dibura," but we do
not follow the view of Rebbi Shimon with regard to "Palginan Dibura!"
The Gemara cites the source for where we find the opinion of Rebbi Shimon
regarding "Palginan Dibura." The Mishnah (Pe'ah 3:8) states that if a person
writes all of his possessions to his slave, the slave goes free (and
acquires all of his master's possessions). However, if the master writes a
clause excluding a specified part of his land from the gift to his slave,
the Tana Kama says that the Eved does not go free, because we assume that
just like the master left out that piece of property, he also did not intend
to give the Eved his own freedom. Rebbi Shimon argues and says that the Eved
does go free in such a case, because we assume that the master excluded only
the land that he specified to exclude. Rebbi Shimon agrees, however, that if
the master writes to his slave that he is giving him all of his possessions
"except for one small amount" without specifying which part of his property
he wants to exclude, then the slave does not go free.
How do we see from this Mishnah that Rebbi Shimon holds "Palginan Dibura?"
RASHI explains that Rebbi Shimon's words imply that the Eved goes free even
if the master writes to him that he is giving him all of his possessions
except for one field, without specifying which field. Since the master does
not specify which field he is excluded, the Eved cannot take any of the
fields. Therefore, the Eved will not receive any possessions from his master
except for his own freedom. (He does not receive any Metaltelin, because
ownership of Metaltelin cannot be transferred through a Shtar.)
Since Rebbi Shimon rules that the Eved goes free with such a Shtar, we see
that he holds "Palginan Dibura;" that is, even though the Shtar is not able
to transfer to him any of the land of the master, it is able to give him his
How does Rav Ada prove that we do not rule like Rebbi Shimon? He quotes Rav
Nachman who said that "even though Rebbi Yosi praised Rebbi Shimon, the
Halachah is like Rebbi Meir."
There are a number of questions on Rashi's explanation of the Gemara.
(a) First, why is Rebbi Shimon's case in the Mishnah in Pe'ah considered a
case of "Palginan Dibura?" In Rebbi Shimon's case, the reason why the Eved
does not receive any land is simply because it is not known which land the
master gave to him! Out of doubt, he does not get any land, because of the
principle "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." There is nothing
inherently faulty with the Shtar itself with regard to the land. If our
doubt only applies to the land and not to the Eved's freedom, then he
certainly should gain his freedom even if we do *not* say "Palginan Dibura!"
In general, the concept of "Palginan Dibura" applies only to a "Ne'emanus,"
the ability to believe a person's testimony. That is, if a person makes a
statement which has more than one consequence, and the person is not trusted
for one of the consequences, do we accept as trustworthy the statement with
regard to the other consequences? "Palginan Dibura" would allow us to accept
the person's testimony with regard to only one of the two consequences. The
Gemara also applies the concept of "Palginan Dibura" to a case where a
person makes a statement which has a number of consequences, and the person
intends for his statement to be understood in one particular way regarding
one of the consequences. Do we assume that he wants his statement to be
understood the same way regarding the other consequences (for example, the
case of a Shechiv Mera who wrote all of his property to his slave)?
"Palginan Dibura" would allow us to interpret the person's statement
differently with regard to the different consequences.
How, though, could the concept of "Palginan Dibura" be applied to the person
who writes all of his possessions, except for one unspecified plot, to his
Eved? The reason the Eved does not receive land has nothing to do with the
intention of, or with the trustworthiness of, the master's statement!
(b) Why should the Eved not receive any land at all? He should receive all
the land except for the cheapest plot of land! (TOSFOS DH l'Olam)
(c) How can we prove from the statement of Rav Nachman, who said that the
Halachah follows Rebbi Meir, that we do not say "Palginan Dibura?" Rebbi
Meir and Rebbi Shimon seem to be arguing about two points. First, Rebbi Meir
says that if the master leaves out one item, then we assume that he intends
to leave out the Eved as well, and the Eved receives nothing. This does not
seem to be related to "Palginan Dibura." Second, Rebbi Shimon implies that
if the master excludes an unspecified plot of land and therefore the Eved
does not receive *any* land, we say "Palginan Dibura" and the Eved goes free
despite the fact that he receives no land. How do we know that Rav Nachman
is ruling against Rebbi Shimon in both points? Perhaps he is only ruling
that if the master leaves out one specified item, he leaves out the Eved as
well! As such, we cannot know what Rav Nachman holds with regard to
"Palginan Dibura" in cases where it is applicable!
(a) Rashi explains, according to the Tana Kama who argues with Rebbi Shimon,
that when the master excludes a specified plot of land from the gift to his
Eved, the reason the Eved does not go free is because we assume that just
like the master excluded that piece of land and he did not seriously mean
"*all* of my property," he also meant to leave out the Eved. He had no real
intention to free the Eved, and he was merely trying to flatter the Eved.
The Shtar was not written to be taken seriously.
In the case where the master leaves out an *unspecified* plot of land, the
same logic may be applied. Since we see that the master is not really giving
any of the land, the phraseology he used in the Shtar is not accurate. He
only has intention to give the Eved his freedom, but not to give him "*all*"
of his property! It must be that the master wrote "*all* of my property" in
order to flatter his slave, and he did not intend any of it to be taken
seriously. Accordingly, the concept of "Palginan Dibura" is necessary to
tell us that although the master was not serious with regard to the gift of
land, he *was* serious with regard to giving the slave his freedom. The
focus is on the *intention* of the master and not just on the Halachah of
how to treat property in doubt ("ha'Motzi me'Chaveiro"), and thus it is
indeed appropriate to apply the concept of "Palginan Dibura" here.
(b) We asked why the Eved does not receive all of the land except for the
plot with the lowest value. After all, when a person sells all of his land
to his friend except for one plot, the buyer receives all of the land except
for one plot, and since it is in doubt which plot he is not entitled to
receive, we assume that it is the best, most expensive plot (that is, the
buyer must bring proof that the seller intended to leave out a cheaper plot
Rashi's explanation answers this question as well. Perhaps a gift is
different than a sale. When a person makes a sale and receives money in
return for land, he cannot say that he was just fooling the buyer and he did
not mean to give any land. Therefore, we say that the sale is valid except
for one piece of land, and the buyer takes the cheapest plots of land. In
contrast, when a person gives a gift to his friend and leaves out an
unspecified plot, he can say later that he really did not intend to give
anything to his friend, but he was just trying to flatter his friend.
(See TOSFOS (DH l'Olam and DH Halachah) and the RAN, who explain the Gemara
differently than Rashi.)
(c) This approach answers the third question as well. When Rebbi Meir rules
that when a master gives all of his property to his Eved except for one item
we assume that he means to exclude the Eved from the gift as well, his
ruling is based on the concept of "Lo Palginan Dibura," we do *not* apply
"Palginan Dibura." Rebbi Meir is saying that since the master showed that he
did not seriously mean "*all*" of his property, we assume that he was not
serious about the rest of the property -- including the Eved -- either, for
otherwise he would not have said that he is giving to the Eved "*all* of my
property," but he would have specified what he wanted to give and said, "I
am giving to you *your freedom* (Atzmecha), and my property."
Rebbi Shimon, who argues, says that we do say "Palginan Dibura," and we
assume that the master was serious about freeing his Eved. Rebbi Shimon
takes this further and says that not only when the master left out only a
small part of his property do we assume that he was serious about giving the
Eved his freedom, but even if the master excluded *all* of his property
except the Eved, we assume that he was still serious about giving the Eved
his freedom. When Rav Nachman rules like Rebbi Meir, he is ruling that we do
not say "Palginan Dibura," and even if the master leaves out a small part of
his property, the Eved does not go free.
The Gemara concludes that Rebbi Meir's reasoning is not based on the logic
of "Lo Palginan Dibura." Normally, we assume that when a master leaves out a
small part of his property from the Shtar, he does not mean to leave out the
Eved, because the master clearly says that he is giving all of the rest of
his property to the Eved, and we thus apply "Palginan Dibura." Although
there is a slight possibility that the master was not serious about freeing
his Eved, we would not take that into account when deciding the meaning of
the words in the Shtar. However, with regard to a Get Ishah or a Get
Shichrur, the Torah writes that the words in the Get must be unequivocal
("Kerus Gita"). Therefore, since there is some degree of ambiguity in the
wording of the Shtar, the Eved cannot go free.
QUESTION: The Mishnah says that if a Shali'ach delivers a Get from Medinas
ha'Yam and he cannot say "b'Fanai Nichtav," the Get must be validated by
having two witnesses testify to the authenticity of the signatures in it.
The Gemara asks what type of Shali'ach the Mishnah is referring to when it
says that he cannot say "b'Fanai Nichtav." If he is a Cheresh, he cannot be
appointed as a Shali'ach in the first place, since he is not a Bar Da'as. It
must be that he was healthy at the time that he delivered the Get, and then
he became a Cheresh after delivering the Get but before saying "b'Fanai
Why does the Gemara not answer simply that the Shali'ach cannot say "b'Fanai
Nichtav" because he is an "Ilem," a mute, who cannot speak but who can hear.
Since he can hear, he is considered a Bar Da'as and can be appointed as a
Shali'ach, but he cannot say "b'Fanai Nichtav" because he is unable to
(a) TOSFOS (5a, DH Ileima) says that if the Mishnah would have meant that an
Ilem is bringing the Get, it would have said that "he *did not* say 'b'Fanai
Nichtav'" and not that "he *could not* say 'b'Fanai Nichtav'."
HALACHAH: The REMA (EH 142:7) cites the RIVASH (cited above) who rules like
Tosfos, that an Ilem cannot write "b'Fanai Nichtav," since it must be said
verbally. However, the BEIS SHMUEL (#11) points out that this seems to
contradict the Rema's own ruling in Choshen Mishpat (46:7), where he also
cites the RIVASH (#413) who rules that Kiyum Shtaros is more lenient than
other forms of testimony and may be done through writing! Since we rule like
Rava, that "b'Fanai Nichtav" is said in order to be Mekayem the Get, why
should an Ilem not be able to write "b'Fanai Nichtav" and be Mekayem the Get
through his written testimony?
What does Tosfos mean? Tosfos probably means that an Ilem would not have
watched the writing of the Get in the first place, since he knew that he
would not be able to say "b'Fanai Nichtav" when he delivers it, since he is
mute. Since he willingly did not witness the writing of the Get, the Mishnah
should phrase his inability to say "b'Fanai Nichtav" as a consequence of his
choice and say that he did not do what the Chachamim required of him ("he
*did not*..."). The phrase, "He *could not*...," implies that the Shali'ach
attempted to do what the Chachamim required of him but he was unable to; for
example, he was able to say "b'Fanai Nichtav" at the time that he saw the
writing of the Get, but he lost the ability to say it at a later point.
(b) The TOSFOS HA'ROSH (5a) explains that the Halachah that a Get delivered
by an Ilem needs Kiyum through its signatures is an obvious Halachah. The
Mishnah would not be teaching us anything new by telling us that Halachah.
If, however, the Mishnah is referring to a person who was able to say
"b'Fanai Nichtav" at the time that he brought the Get, then the Mishnah
would be teaching us that even though he is presently a Cheresh, we are not
concerned that people will learn from this that they are permitted to
appoint a Cheresh as a Shali'ach to deliver a Get.
(c) The RAN explains that if the Shali'ach was an Ilem, he *could* say
"b'Fanai Nichtav" by writing it down on paper. Why should he be able to
testify through writing? There is a rule that testimony must come from a
witness' mouth and not from what he writes ("mi'Pihem v'Lo mi'Pi Kesavam")!
The Ran writes that since the Rabanan were lenient and required only a
single witness to be Mekayem a Get by saying "b'Fanai Nichtav," they were
also lenient to permit him to be Mekayem the Get through written testimony.
The Ran proves this from the laws of Heter Agunos, where we find that we
accept written testimony that a woman's husband died, although we may not
accept the testimony of a Tzarah (co-wife) of the Agunah. In the case of a
Get, where we find that a Tzarah *may* deliver a Get and testify "b'Fanai
Nichtav" (23b), certainly written testimony should be acceptable.
Tosfos and the Rosh obviously reject the Ran's approach and maintain that
written testimony of "b'Fanai Nichtav" would not suffice for to be Mekayem
the Get. How, though, will they respond to the Ran's proof?
1. The RIVASH (#240) explains that the reason the Tzarah is believed is not
because the Rabanan were more lenient in the case of delivering a Get, but
rather because there is no reason to suspect that she is lying. She will
only lie if doing so will cause damage to her Tzarah. In the case of
permitting an Agunah, the testimony of a Tzarah is not accepted, because if
she is lying, she will cause damage to her Tzarah, in that if her Tzarah
marries another man based on her testimony, she will become prohibited to
her husband upon his return (and proves the Tzarah's testimony to be false).
When the Tzarah says "b'Fanai Nichtav," though, her testimony cannot be
proven false, since, if the husband denies sending the Get, he will not be
2. The BEIS YOSEF (EH 142:7) suggests that with regard to believing that a
witness is telling the truth, we believe a Shali'ach who brings a Get more
than we believe a witness who testifies about an Agunah, simply because the
fact that the Shali'ach is carrying a Get supports his statement. However,
the reason we do not accept testimony in writing is not related to the
trustworthiness of the testimony or of the witness. It is simply a Gezeiras
ha'Kasuv stating that testimony in writing is not considered valid
testimony. Therefore, the fact that the Ilem is carrying a Get cannot make
his testimony any better than the written testimony in the case of an
Agunah. Although the Rabanan were especially lenient in the case of an
Agunah and permitted written testimony, they were not as lenient with regard
to Gitin with regard to matters (of Pesulim) that are not related to the
trustworthiness of the testimony.
3. The reason the Rabanan were more lenient with regard to written testimony
in the case of an Agunah is because they saw a pressing need to be lenient.
They were concerned that the person who witnessed the death of her husband
might be far away and will not be interested in putting forth the time and
expense involved in coming to testify personally for the woman about the
death of her husband. Therefore, the Rabanan permitted that witness to send
a letter with written testimony in order to permit the woman to remarry. In
contrast, the Rabanan saw no pressing need to permit written testimony of
"b'Fanai Nichtav," since the Shali'ach who brings the Get will always be
standing in front of us at the time that he says "b'Fanai Nichtav."
The Beis Shmuel answers that the Rema differentiates between an Ilem who
cannot speak, and a person who can speak but chooses to write. An Ilem
cannot be Mekayem a Shtar through written testimony, while a person who can
speak can be Mekayem a Shtar through written testimony.
3) THE ELEMENT OF "IGUN" INVOLVED WITH FREEING A SLAVE
QUESTION: The Gemara says that although the Rabanan were lenient to allow
illiterate witnesses to sign a Get by having Beis Din make indentations in
the paper so that the witnesses know how to sign, they did not allow such
signatures on a Get Shichrur of an Eved.
4) "ERKA'OS" OF "NOCHRIM"
Why did the Rabanan not institute the same leniency for a Get Shichrur that
they instituted for a Get Ishah? The Rabanan allowed a single Shali'ach to
be Mekayem a Get Shichrur by saying "b'Fanai Nichtav," which shows that the
Rabanan recognized some element of Igun in the case of the Shichrur of an
Eved, just like the element of Igun in the case of a Get Ishah. Why, then,
were they not lenient to permit illiterate witnesses to sign a Get Shichrur
with the assistance of Beis Din?
ANSWER: The RAMBAN and RABEINU KRESKAS answer that there is an element of
Igun when an Eved who has received a Get Shichrur cannot be Mekayem it,
because he cannot marry either a Shifchah (a maidservant) or a Bas Chorin (a
normal Jewess) out of doubt. However, if the master does not write a Get
Shichrur in the first place, the Eved remains permitted to a Shifchah and
there is no Igun if he is not freed.
TOSFOS (9a, DH Shavu), however, rejects an argument similar to this one by
pointing out that even if a Shali'ach is not believed to say "b'Fanai
Nichtav," there will not necessarily be Igun for the slave, because the
Shali'ach could simply refrain from delivering the Get to the Eved until
there are two witnesses to validate it, and thus the Eved does not have to
become prohibited to a Shifchah.
The RAN answers that when the master sends a Get to the Eved to be given
against the Eved's will, the Shali'ach will deliver the Get before there is
Kiyum, and therefore it is considered Igun if the Shali'ach would not be
believed to say "b'Fanai Nichtav." Therefore, the Rabanan instituted that
the Shali'ach is believed to say "b'Fanai Nichtav" in order that there not
be Igun for the Eved by not being allowed to marry a Shifchah or a Bas
QUESTION: The Beraisa says that a Get Ishah or Get Shichrur signed by
Nochrim in a court of law of Nochrim ("Erka'os") is Pasul, while other types
of Shtaros are valid. RASHI explains first that other Shtaros are valid
because of the rule, "Dina d'Malchusa Dina," which states that the laws of
non-Jewish kingdoms are binding on all of their Jewish inhabitants. It seems
from Rashi that although Nochrim are not valid witnesses, they are accepted
as witnesses on a Shtar that involves a monetary transaction because of the
rule that whatever the governing body says about monetary law is binding.
Accordingly, a Nochri is not a valid witness for a Get Ishah or Get
Shichrur, because they do not involve monetary transactions, and therefore
"Dina d'Malchusa Dina" does not apply to them.
However, in the following comment of Rashi (DH Chutz), Rashi says that
Nochrim are not valid witnesses for a Get because they are not "Bnei
Kerisus" -- they have no involvement with Gitin and Kidushin, for those
concepts have no pertinence or applicability to them at all. In contrast,
Nochrim do have involvement with matters of monetary law, which is pertinent
to them because of their Torah obligation to set up courts of law ("Dinim").
With regard to the Shichrur of slaves, the testimony of Nochrim is not
accepted because of the Gezeirah Shavah of "Lah, Lah" from Get Ishah. (Rashi
repeats later (DH Pesula d'Rabanan, and 10b, DH Kerisa) that Nochrim are not
valid witnesses for a Get because they are not "B'nei Kerisus.")
Rashi's words are difficult to understand for a number of reasons.
(a) If Rashi already explains in his first comment that Nochrim are valid
witnesses for Shtaros involving monetary transactions because of "Dina
d'Malchusa Dina," then why does he write in the following comment that they
are accepted as witnesses because they are obligated to fulfill the Mitzvah
of "Dinim," implying that they are valid witnesses mid'Oraisa because the
Torah commands them to set up courts of law? Why does Rashi have to explain
that they are not valid witnesses for a Get Ishah because they are not
"B'nei Kerisus?" They are not valid witnesses because there is no "Dina
d'Malchusa Dina" for a Get! On the other hand, if Rashi holds that Nochrim
*are* valid witnesses for monetary matters, as he implies in his second
comment, then why, in his first comment, does he have to give the reason of
"Dina d'Malchusa Dina" to justify why Nochrim are valid witnesses?
ANSWER: TOSFOS (DH Af Al Pi) explains that Nochrim are only valid witnesses,
mid'Rabanan, for normal Shtaros of monetary matters. Rashi is explaining,
though, that they are valid *mid'Oraisa*. His source is probably from the
Gemara later on this Daf which asks why the Beraisa does not mention that
Get Ishah and Shichrur Eved are similar with regard to many other laws, such
as the requirement of "Lishmah" and the invalidity of a Get written on
something "Mechubar." The Gemara answers that the Beraisa is not listing any
Pesulim d'Oraisa, but only Pesulim which are mid'Rabanan. The Gemara
challenges this assumption by asking that the Halachah of having signatories
who are Nochrim is mid'Oraisa, and yet the Beraisa still includes it in its
list! The Gemara answers that the Beraisa follows the opinion of Rebbi
Elazar who says that "Edei Mesirah Karti" and thus the Pesul of such
signatories is only mid'Rabanan.
(b) Rashi's second approach, in which he implies that Nochrim are valid
witnesses, mid'Oraisa, for Shtaros of monetary matters, seems to contradict
a number of Sugyos, as Tosfos points out (here and in Bava Kama 88a). The
Gemara in Bava Kama (88a) says that an Eved is a valid witness only because
he is commanded in Mitzvos, implying that a Nochri is not a valid witness.
The Gemara later (10b) questions the Mishnah which repeats the Halachah of
this Beraisa, asking why a Nochri should be accepted as a witness on a Shtar
Matanah (a Shtar which effects a transaction of a gift), to make the Shtar
able to create a Kinyan. Since the Shtar is signed by a Nochri, even if he
is telling the truth, the Shtar is like a "Chaspa b'Alma," a blank piece of
earthenware of no value (implying that the Shtar does not have valid
witnesses signed on it). The Gemara answers that the Shtar is valid because
of "Dina d'Malchusa Dina." (In its second answer, the Gemara suggests that a
Shtar Matanah is indeed not valid when signed by Nochrim, but our Sugya
seems to be following the logic of the first answer (see Tosfos, DH Milsa).)
The Gemara (10b) seems to be saying clearly like Rashi's first comment here,
that Nochrim are valid witnesses only because of "Dina d'Malchusa Dina."
(c) In Rashi's second comment, in which Rashi explains that Nochrim are not
valid witnesses for a Get because they are not "B'nei Kerisus," he adds that
they are not valid witnesses for a Get Shichrur because of the Gezeirah
Shavah ("Lah, Lah"). (In order to justify the Gezeirah Shavah, Rashi adds
that since Kidushin and Gerushin have no applicability to Nochrim, they
become unfit for anything that involves Kerisus, in order to explain why we
can learn the laws of Get Shichrur from Get Ishah with regard to the
validity of Nochrim as witnesses. If they simply have nothing to do with
Kidushin and Gerushin, that would not invalidate them for testifying on a
Get Shichrur, since the concept of Get Shichrur *does* have applicability to
them. Once they become unfit for the Kerisus of a Get Ishah, then we can
learn the laws of Get Shichrur from Get Ishah, and learn that they cannot be
witnesses for a Get Shichrur.)
Why does Rashi take this approach? He should explain simply that a Nochri
cannot own an Eved the same way as a Yisrael owns an Eved (like the Gemara
says later (38a) that a Nochri cannot own the body of another Nochri
("Gufo") but can only own him with regard to receiving the income from his
labor, whereas a Yisrael has a Kinyan on the Guf of an Eved)! Rashi could
have said that a Nochri is unfit to be a witness for a Get Shichrur since
the ownership of an Eved has no pertinence to him! (PORAS YOSEF, DIBROS
Although it is possible to argue that since a Nochri can own a slave to some
measure, and therefore he is considered to have some involvement with the
concept of Shichrur (Dibros Moshe), nevertheless, what is forcing Rashi to
make that assumption? It would have been more straightforward to explain
that a Nochri has nothing to do with the Shichrur of an Eved Kena'ani whose
Guf is owned by his master, and that is why a Nochri is not a valid witness!
It is clear from the Gemara that according to Rebbi Meir, the law of
signatories who are Nochrim is mid'Oraisa. That is why Rashi explains that
Nochrim are valid witnesses for Shtaros of monetary matters *mid'Oraisa*
(either because of "Dina d'Malchusa Dina," or because monetary matters have
pertinence to them).
We can expand on this by explaining, first, what the logic of the Gemara is
to suggest that the Beraisa is only interested in listing Pesulim that are
mid'Rabanan. What reasoning could the Beraisa have had for deeming it
unnecessary to mention Pesulim d'Oraisa (since all of the Pesulim d'Oraisa
are learned from Derashos and are not explicitly mentioned in the Torah,
they are not any more obvious than the Pesulim d'Rabanan)? The Beraisa
should find it necessary to provide us with a complete list of all of the
similarities between Get Ishah and Shichrur Eved! In addition, the Gemara
rejects the answer that the Beraisa is not listing Pesulei d'Oraisa from the
fact that the Beraisa itself mentions the similarity between Get Ishah and
Shichrur Eved regarding the Halachah of "Chazarah" -- a person who sends a
Get to his Eved or to his wife and changes his mind. According to Rebbi
Meir, he may retract the Get, since both a Shichrur Eved and a Get Ishah are
a "Chov" (liability) to the recipients. Because of this, the Gemara rejects
the answer that the Beraisa is limiting itself to Pesulim d'Rabanan.
This question of the Gemara, though, is obvious! What did the Gemara think
when it initially suggested that the Beraisa is not listing Pesulim
d'Oraisa? The Beraisa explicitly mentions a Pesul d'Oraisa (that of
Rashi himself (DH Chutz) provides the answer to these questions. Rashi
writes that regarding every Pesul d'Oraisa, Shichrur Eved is similar to Get
Ishah because of the Gezeirah Shavah of "Lah, Lah." Rashi means that there
is no Chidush that any Pesul d'Oraisa that applies to Get Ishah also applies
to Shichrur Eved, because the Gezeirah Shavah teaches us that any Halachah
in the Torah that applies to Get Ishah applies to Shichrur as well. This is
why the Beraisa does not have to list Pesulim d'Oraisa -- because it is
obvious that with regard to Pesulim d'Oraisa, Shichrur is similar to Get
Ishah, due to the Gezeirah Shavah. The Chidush is only that Shichrur is
similar to Get Ishah with regard to Dinim d'Rabanan, since, with regard to
Dinim d'Rabanan, we do not apply the Gezeirah Shavah of "Lah, Lah." Rather,
we only apply the Dinim d'Rabanan of Get Ishah to Shichrur when the Halachah
is logically applicable to Shichrur as well.
This is why the Gemara was not bothered by the fact that the Beraisa lists
the Halachah that one who sends a Get to his wife or Eved may retract the
Get. The reason that one may retract his decision after he sends a Get to
his wife is because it is a Chov for a woman to be divorced, and we rule
that "Ein Chavin l'Adam she'Lo b'Fanav." Since this Halachah of Chazarah is
based on the reality of whether it is a Zechus or a Chov for the woman (or
the Eved) to receive the Get, it cannot be derived through the Gezeirah
Shavah of "Lah, Lah!" This is why the Chachamim, who argue with Rebbi Meir,
say that one *cannot* retract a Get Shichrur that he has sent to his Eved
(unlike the Halachah in the case of a Get Ishah), for they maintain that a
Get Shichrur is a Zechus for the Eved. Therefore, if Rebbi Meir argues with
the Rabanan and maintains that Shichrur is also a Chov, it would be
important for the Beraisa to tell us that Shichrur is similar to a Get in
this regard, even though it is a Halachah d'Oraisa, since it is not derived
from the Gezeirah Shavah and, therefore, is not self-evident. (Concerning
why the Gemara does reject the answer of "Pesulim d'Oraisa Lo Ketani," see
Insights to 10a).
What we have said explains why Rashi finds it necessary to explain that a
Nochri is not a valid signatory for a Get Shichrur because of the Gezeirah
Shavah of of "Lah, Lah" and not because he has no relevance to Shichrur.
Since the Gemara says that the Halachah of "Erka'os" is a Pesul d'Oraisa
(which, therefore, should not be listed in the Beraisa), it is evident that
it applies to Shichrur as learned from Get Ishah through the Gezeirah Shavah
of "Lah, Lah." This answers our third question.
The other two questions answer each other. As we wrote, Rashi finds it
necessary to explain that a Nochri would have been a valid witness for a Get
Shichrur, if not for the Gezeirah Shavah of "Lah, Lah." Consequently, Rashi
must find a way to explain how a Nochri could be a valid witness mid'Oraisa,
when the Gemara later (10b) says clearly that his testimony is worthless
even for a Shtar Matanah (and certainly for a Get Shichrur)! Rashi therefore
explains that the Nochri is a valid witness for Shtaros of monetary matters
because of "Dina d'Malchusa Dina." The Gemara later (10b) that says that a
Nochri is not valid for Shtarei Matanah is referring to a place in which
there is no "Dina d'Malchusa Dina" for testimony on a Shtar Matanah. Where
there is "Dina d'Malchusa Dina," though, the Nochri *is* valid. Indeed, this
is what the Gemara says in its answer to its question there concerning why a
Nochri can be a valid witness for a Shtar Matanah.
Still, however, why should that make a Nochri a valid witness, mid'Oraisa,
for a Shtar Shichrur (if not for the Gezeirah Shavah of "Lah, Lah")? "Dina
d'Malchusa Dina" applies only with regard to monetary law!
In order to answer this, Rashi proposes that the source for the laws of
"Dina d'Malchusa Dina" is the Torah's obligation for B'nei No'ach to set up
a system of courts and law. Rashi is explaining that this commandment not
only obligates the Nochrim to see to it that justice is administered for
criminals, but it also grants them the power to set up a system of laws
which establishes guidelines regarding monetary matters, such as what
constitutes an acquisition. This is what the Chachamim refer to when they
say "Dina d'Malchusa Dina" -- the system of the courts of Nochrim that
establishes legal guidelines in monetary matters which is binding on all of
the residents of that country, mid'Oraisa. (See Dibros Moshe.)
If this is the source for the right of the Nochrim to establish laws, then
this source gives them the right to enact any mandate or statute pertaining
to anything that affects the constituents of the country in any way. They
cannot set up guidelines regarding what is considered Kidushin and Gerushin,
since Kidushin cannot be effected by Nochrim; since Kidushin has no
applicability to Nochrim, the Torah does not command them -- nor give them
the right -- to establish guidelines for it. However, a Nochri does have the
ability to acquire an Eved (at least with regard to receiving his income),
and therefore "Dina d'Malchusa Dina" applies and grants the Nochri court
system the right to enact laws which are binding with regard to the purchase
of slaves. Because of these laws, the signature of a Nochri witness should
be valid even for a Get Shichrur of an Eved of a Jew. Therefore, the
Gezeirah Shavah of "Lah, Lah" is required in order to teach us that the
Shichrur of an Eved of a Jew is *not* in the same category as the Shichrur
of an Eved of a Nochri. Rather, it is a contract which involves Kerisus, and
Nochrim are not "B'nei Kerisus."