THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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GITIN 38 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love
for Torah and those who study it.
1) THE PROOF THAT A NOCHRI CAN MAKE A "KINYAN" THROUGH AN ACT OF "CHAZAKAH"
QUESTION: The Gemara proves that Nochri captors can acquire ownership of the
Eved Kena'ani whom they captured by proving 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 a three-stage proof.
First, it proves from a Kal v'Chomer that a Nochri can acquire the rights to
the labor ("Ma'aseh Yadav") of his fellow Nochri (but he cannot acquire the
actual body of the person): if a Nochri can own the "Ma'aseh Yadav" of a Jew
(as it states in Vayikra 25:47), then certainly he can own the "Ma'aseh
Yadav" of a Nochri. Second, it proves from a verse that a Nochri can make a
Kinyan through an act of Chazakah and does not require a monetary payment 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. Third, it proves that an act of
Chazakah not only enables a Nochri to acquire land or another a 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
2) SICHON'S "KINYAN" THROUGH AN ACT OF "CHAZAKAH"
Why is it necessary for the Gemara to mention the first two proofs? The
Gemara should immediately cite the verse "he took captives..." which proves
clearly that a Nochri can acquire an Eved Kena'ani of a Jew through a
ANSWER: If not for the verse showing Sichon's conquest of the lands of Amon
and Moav, we would not have been able to prove anything from the verse of
"he took captives...," because no act of acquisition is stated explicitly in
the verse. Only after we have already established that a Nochri can make a
Kinyan through an act of Chazakah can we then interpret the verse of "he
took captives..." as referring to an act of acquisition through Chazakah as
Why, then, do we need the first proof (the Kal v'Chomer)? Let it suffice to
cite the proof describing 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!
The answer is that without the Derashah of "me'Hem," we would have assumed
that a Nochri can acquire even the body of another Nochri. Therefore, we
need the Derashah of "me'Hem" to show that a Nochri cannot own another
Nochri's body, after which we bring the Kal v'Chomer to teach that he can at
least own another Nochri for his "Ma'aseh Yadav." (See TOSFOS DH Dichtiv and
QUESTION: The Gemara proves that Nochri captors can acquire ownership of
the Eved Kena'ani whom they captured by proving that a Nochri can acquire
another Nochri, as his Eved, through a Chazakah (performing an act that
shows his ownership; see previous Insights). The Gemara proves from a verse
that a Nochri can make a Kinyan through an act of Chazakah and it does not
require a monetary payment, from the verses (Bamidbar 21:23, 21:26, Shoftim
11:13) that show Sichon's conquest (through Chazakah) of parts of the lands
of Amon and Moav.
3) THE ACT OF A "CHAZAKAH"
How does the Gemara prove that a Nochri has the ability to acquire an Eved
from the verse regarding Sichon? The verse is referring to the *lands* of
Amon and Moav, and not to the people of Amon and Moav!
(a) TOSFOS (DH Amon) explains that the Gemara is assuming 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, acquiring
them through Chazakah.
(b) The RASHBA explains that the only point that the Gemara wants to prove
at this stage is that it is possible for a Nochri to make a Kinyan
*Chazakah*. Once the Gemara proves that a Nochri can make a Kinyan through a
Chazakah, we can apply this power of acquisition to anything. This also
seems to be the intention of RASHI (DH b'Chazakah).
OPINIONS: The Gemara discusses acquiring an Eved or land through an act of
Chazakah. What type of act is the Gemara referring to?
4) A SLAVE WHO ESCAPES FROM CAPTIVITY
(a) RASHI and the RAN interpret "Chazakah" here to be referring to its usual
meaning, an act that shows ownership. With regard to purchasing land, it
refers to an act of guarding the land from trespassers as an owner would do.
With regard to purchasing 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
(b) TOSFOS and the RASHBA argue. They explain that this type of Kinyan would
not suffice to effect a transfer of ownership. Instead, they explain that
the "Chazakah" of our Gemara is referring to a new type of Kinyan: conquest
through war ("Kivush Milchamah"). Conquering someone or something is a
powerful enough act in and of itself to transfer ownership from the
conquered to the conqueror, and for all intents and purposes the conqueror
becomes the new owner.
In summary, 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 exact case of
the Mishnah -- where the Eved was captured.
However, 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?
The CHAZON ISH (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
QUESTION: 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?
5) GIVING A "GET SHICHRUR" TO A SLAVE WHO IS ALREADY FREE
(a) We must assume that the captors despaired ("Ye'ush") of finding the Eved
and getting him back. Consequently, the Eved acquires himself after his
(b) The RASHBA 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 is victorious in) is considered to be a valid act of
Chazakah to acquire himself.
QUESTION: Rav Shaman bar Aba says in the name of Rebbi Yochanan that an Eved
who escapes from prison acquires himself and goes free. In addition, we
force his master to write for him a Get Shichrur.
If the Eved goes free as a result of his act of escaping from prison, then
why is it necessary for his master to give him a Get Shichrur?
ANSWER: The state of being an Eved Kena'ani involves two different elements.
The first aspect 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 to be in
the domain of his master, since both of these elements are the results of
the acquisition that his owner made on him.
Rebbi Yochanan is of the opinion that "Ye'ush" (when the owner despairs of
ever getting his Eved back) can only free the Eved from the monetary domain
of his master. Freedom from the status of an Eved with regard to Isurim can
be obtained only through a Get Shichrur. This seems to be the intent of
RASHI 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).
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.
The concept of two different elements of an Eved Kena'ani that the master
owns answers another question in our Sugya. The Gemara later on this Daf
relates an incident regarding 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
This, however, seems to contradict the Gemara earlier, in which Rebbi
Yochanan states that we force a master to free his Eved who escaped from
prison. If freeing an Eved Kena'ani is prohibited, how could Rebbi Yochanan
require a master to free his Eved?
The answer is that the prohibition to free 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 MINCHAS CHINUCH
#347, based on TOSFOS DH Kol.)
6) HALACHAH: SUSPENDING A PROHIBITION IN ORDER TO PERFORM A MITZVAH
OPINIONS: The Gemara (38a) relates an incident regarding 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 asks a question on
Abaye's ruling. Another incident occurred wherein 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.
7) AGADAH: THREE SINS FOR WHICH ONE LOSES HIS WEALTH
The Gemara answers that in Abaye's case, there was another possible option,
besides freeing her, which would 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.
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 (Davening with a Minyan), freeing an Eved is permitted.
Does this imply that we are permitted to transgress a prohibition (or at
least a prohibition derived from a positive commandment) in order to fulfill
(a) The RITVA proves from here that the prohibition to free an Eved Kena'ani
is only an Isur *mid'Rabanan*, 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.
(b) The RAMBAN 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 to be a prohibition against giving a Nochri a gift.
Likewise, freeing an Eved is considered to be giving the Eved his freedom as
Consequently, since the prohibition against freeing an Eved is based on the
prohibition against giving a gift to a Nochri, we may differentiate between
different purposes or intentions for freeing the Eved. If the master's
intention is to do a favor for his Eved, then freeing him is considered to
be like giving him a present. 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, then the beneficiary is considered to be the master, and not the
(c) TOSFOS and the RASHBA 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,
or enabling people to Daven with a Minyan, or, as we find in Bava Basra 13a,
to enable the fulfillment of the Mitzvah of "Peru u'Revu").
QUESTION: The Gemara says that as a result of three misdeeds, people lose
their wealth. First, they release their slaves to freedom. Second, they
inspect their property on Shabbos. Third, they conduct their Shabbos meals
during the Rav's lecture in the Beis ha'Midrash.
Why are these three sins in particular punished by a loss of one's wealth?
(a) The MAHARSHA explains how losing one's wealth is an appropriate,
measure-for-measure punishment for each of these three sins.
1. Freeing one's Eved. When a person is blessed with material possessions,
he must be careful to act with them properly, 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 Hashem gave him, and he
causes those possessions to be taken away from him.
(b) The IYUN YOSEF 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 going to work and
being involved in other 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. Hashem punishes such
acts of greed by taking away a person's wealth.
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 is expressing the converse -- by
thinking about one's business matters on Shabbos, one loses his wealth.
3. Conducting one's Shabbos meal during the Rav's lecture in the Beis
ha'Midrash. By not attending the weekly Shabbos lecture, one displays how
worldly, physical pleasure is more important to him than Torah study. One
who makes Torah study the primary part of his life, and 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