(Permission is granted to print and redistribute this material
as long as this header and the footer at the end are included.)


brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld

Ask A Question about the Daf

Previous daf

Gitin, 13

GITIN 13 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.


QUESTION: Rebbi Meir maintains that it is not a Zechus for an Eved to go free. The Gemara explains that Rebbi Meir's logic is that an Eved prefers to remain an Eved in order to be permitted to live with a Shifchah.

If it is considered a Chov for an Eved to go free according to Rebbi Meir, then why does the Torah command a person to send his Eved to freedom for "Shen v'Ayin" -- if the owner of an Eved wounds him by knocking out an eye or a permanent tooth (or for severing any one of the 24 "Roshei Evarim"), the master must give the Eved his freedom (Shemos 21:26-27). How can the Torah punish the master -- for making the Eved suffer -- by requiring him to do something that will cause further suffering to the Eved (i.e. freeing him)? The Torah should have commanded the master to give the Eved to a different master, or to give money to the Eved! (MAHARITZ CHIYUS)

ANSWER: Once an Eved has suffered or has been abused due to his status as an Eved, he will always remember the traumatic experience of being an Eved and will no longer find pleasure in being permitted to live with a Shifchah. Therefore, the Torah commands the master to free him, since in such a situation freedom is certainly a Zechus for the Eved.


QUESTION: The Gemara discusses whether the Kinyan of Ma'amad Sheloshtan works only for transferring ownership of an item that is a Pikadon (a deposit), or even for a Milveh (a loan of money). Rava says that it is more logical that it works only for a Pikadon. However, Rav says that it works even to transfer a Milveh. The Gemara then questions how Ma'amad Sheloshtan works.

RASHI explains that the Gemara is asking that if Ma'amad Sheloshtan works for a Milveh, then how does it effect the transfer? The object that is being transferred is not a specific object, but rather it is a sum of money!

Rashi implies that there is a clear reason why Ma'amad Sheloshtan does work for a Pikadon, and the Gemara is asking only how it can work for a Milveh. It seems that in the case of a Pikadon, since there is a specific object that is being transferred, the Shomer is able to be Makneh that object to the intended recipient with "Kinyan Chatzer," through the principle of "Zachim l'Adam she'Lo b'Fanav."

According to Rashi, why would it be necessary to institute Ma'amad Sheloshtan to effect a transfer of a Pikadon? The ownership should be transferred through the mechanism of "Zachim l'Adam she'Lo b'Fanav," without the mechanism of Ma'amad Sheloshtan!

ANSWER: RASHI maintains that with regard to giving a gift (Matanah), when one says "Ten" ("give [this item to so-and-so]"), it is not considered as though he is saying "Zechi" ("make an acquisition [on this item on behalf of so-and-so]"); that is, "Ten Lav k'Zechi." (Only with regard to paying back a loan is "Ten k'Zechi;" see TOSFOS 11b, DH Kol.) Therefore, if the intended recipient is not standing there when the benefactor tells the Shomer to give ("Ten") the object to the intended recipient, the intended recipient is not Koneh the object until it reaches his hands. However, when the intended recipient is also present (i.e. Ma'amad Sheloshtan), then the Rabanan instituted that "Ten" should be considered like "Zechi" even for a Matanah. (See PNEI YEHOSHUA.)

This is why Rashi says that for a Pikadon, the mechanics of Ma'amad Sheloshtan are easy to understand -- since the Rabanan instituted that "Ten" is like "Zechi."

TOSFOS (DH Gufa), however, does not accept this approach. Tosfos asks that it should not have been necessary for the Rabanan to institute Ma'amad Sheloshtan simply because "Ten" is not like "Zechi." If the giver really intends for the transfer of the gift to take effect, he should say simply "Zechi," without Ma'amad Sheloshtan, and thus Ma'amad Sheloshtan is extraneous.

It is possible that Rashi learns that Ma'amad Sheloshtan was not instituted for the benefit of the giver, but for the benefit of the recipient, in order that he receive the gift immediately so that quarrels will be prevented in case the giver changes his mind. Alternatively, if Ma'amad Sheloshtan pertains only to a Pikadon, it might not be a rabbinical institution at all, but rather it was merely that the Rabanan understood that a person's intentions -- when he instructs the Shomer in the presence of the recipient to give over the object to the recipient -- is that "Ten" should mean "Zechi."

According to Rashi, Mar Zutra -- who concludes that Ma'amad Sheloshtan is a "Hilchesa b'Lo Ta'ama" -- rules like Rav that Ma'amad Sheloshtan works for a Milveh. Those who hold that it works only for a Pikadon maintain that it is a "Hilchesa b'Ta'ama," a Halachah *with* a reasonable explanation.

Tosfos, however, maintains that even if Ma'amad Sheloshtan works only for a Pikadon, it is still a "Hilchesa b'Lo Ta'ama." Hence, Ma'amad Sheloshtan works even if the object being transferred is not in the possession of the Shomer at the time, and, consequently, he cannot be Zocheh it for the recipient. In addition, Ma'amad Sheloshtan works even if the Shomer does not want to give it to the recipient.

The Acharonim ask that according to Tosfos -- who says that the Rabanan would not have instituted Ma'amad Sheloshtan if any other Kinyan could be used -- why was it necessary to institute Ma'amad Sheloshtan? The benefactor could give the object through the mechanism of "Odisa" ("Hoda'ah"), even against the will of the Shomer, and even if the object is not in the Shomer's domain. The owner could simply give an admission that the object belongs to the recipient, and that serves as sufficient evidence that the object now belongs to the recipient, as we find in the Gemara in Bava Basra (159a).

The Acharonim offer a number of answers.

1. The MAHARSHAL suggests that it is not advisable to admit that an object belongs to someone else when it really does not, because the Torah says "mi'Devar Sheker Tirchak" (Shemos 23:7). Therefore, the Rabanan instituted Ma'amad Sheloshtan in order to help a person avoid saying a lie.

2. The MAHARSHA answers that an "Odisa" will only make the object belong to the recipient when the benefactor made this admission in front of two witnesses (see RITVA, Bava Metzia 46a; without witnesses, we suspect that the benefactor is not serious about giving the gift). The Rabanan instituted Ma'amad Sheloshtan to avoid the need to find two witnesses.

Although these two answers explain the ROSH, who, like Tosfos, says that Ma'amad Sheloshtan was necessary because no other Kinyan would work, nevertheless they do not seem to apply to the words of Tosfos, for Tosfos himself asks according to Rashi that the Rabanan should not have instituted Ma'amad Sheloshtan because the benefactor could give the item through "Odisa." This implies that Tosfos holds that "Odisa" *is* a valid, alternative method.

3. The MAHARAM SHIF and KARNEI RE'EM explain that according to Tosfos, Ma'amad Sheloshtan not only transfers the ownership of the object, but it even transfers the obligation of Shemirah for the object, such that the Shomer must continue to watch the object for the new owner. Hence, if the Rabanan had not instituted Ma'amad Sheloshtan, then even if the owner would have transferred ownership through "Odisa," the Shomer could say that he was watching the object only for the original owner and he could insist on returning it only to the original owner. The enactment of Ma'amad Sheloshtan obligates the Shomer to return the object to the new owner as if he had accepted to watch it for him in the first place.

Next daf


For further information on
subscriptions, archives and sponsorships,
contact Kollel Iyun Hadaf,