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Gitin 39

GITIN 39 (Adar 23) - Dedicated by Rabbi Yehoshua Wachtfogel l'Iluy Nishmas his mother, Sarah bas ha'Rav Moshe Wachtfogel, on the day of her Yahrzeit. Raised by her grandfather, the holy Rav Benzion Shapiro from Yerushalayim of old, even during her years in the U.S. her house always glowed with the holiness and warmth of the Yekirei Yerushalayim. Her presence is sorely missed by her many friends, and certainly by her many children, grandchildren and great-granchildren.



(a) The Beraisa states 'ha'Makdish Avdo Oseh ve'Ochel', in a case where the master declared 'Harei Hu Hekdesh'.

(b) He meant to say - 'Hekdesh le'Damav' (like Rav Yosef learned above). The effect of his declaration is - that the owner is obligated to pay the value of the Eved to Hekdesh, failing which the Gizbar will sell him to someone else.

(c) Rabah (who said 'ha'Mafkir Avdo Yeitzei le'Cheirus') establishes the Beraisa like Rebbi Meir - who says 'Ein Adam Motzi D'varav le'Vatalah', meaning that having declared him Hekdesh, the owner wanted him to be Hekdesh in whichever way possible (and not to go free).

(d) We prove this from the Seifa, which applies the same Din to a case where a person was Makdish himself - and who does certainly not stand to be sold (like an Eved is), and to whom this Din would only therefore apply according to Rebbi Meir, who says 'Ein Adam Motzi Devarav le'Vatalah'.

(a) The Tana Kama in a Beraisa says 'ha'Makdish Avdo Ein Mo'alin Bo'. Raban Shimon ben Gamliel says - 'Mo'alin be'Sa'aro'.

(b) We reject the suggestion that their Machlokes is based on whether 'ha'Makdish Avdo' is Kadosh or not - because then the Tana should rather have presented the Machlokes as ' ... Eino Kadosh' and 'Kadosh'.

(c) We conclude that both Tana'im hold 'ha'Makdish Avdo' is Kadosh', and suggest that their Machlokes is based on whether Avadim are like Karka or like Metaltelin. The Tana Kama holds 'Avdi ki'Mekarka'i' - and Karka is not subject to Me'ilah, whilst Raban Shimon ben Gamliel holds that 'Avdi ki'Metaltelin'.

(d) We reject this interpretation of the Machlokes too - on the grounds that they should then have argued over the body of the Eved, rather than his hair.

(a) We finally establish - that both Tana'im hold 'Avdi ki'Mekarka'i', and Raban Shimon ben Gamliel's reason for saying 'Mo'alin be'Sa'aro' is - because, in his opinion, hair that stands to be cut is considered Metaltelin, and is therefore subject to Me'ilah, whereas according to the Rabbanan, it is considered Karka.

(b) Regarding someone who claims ten laden vines from his friend, to which his friend admits five, Rebbi Meir says 'ke'Karka ve'Einan ke'Karka' - meaning that, the grapes are considered Metaltelin, and the defendant who admitted to part of the claim, is obligated to swear.

(c) According to the Rabbanan, he is exempt from a Shevu'ah - because as long as grapes are still attached to the vine, they are considered Karka, and Karka is *not subject to a Shevu'ah*; whereas Rebbi Meir maintains that since the grapes are ready to be picked, they are considered Metaltelin, which *are*.

(d) The two sets of Tana'im appear to coincide with each other (Rebbi Meir like Raban Shimon ben Gamliel, and the Chachamim like the Chachamim). We reconcile Rebbi Meir with the Chachamim of Raban Shimon ben Gamliel however - due to the fact that, whereas grapes that are left on the vine stand to go bad, hair that continues to grow on the head does not. Consequently, Rebbi Meir might well agree with the Chachamim that hair is still considered part of the Eved.

(a) When Rebbi Chiya bar Yosef came to Eretz Yisrael and told Rebbi Yochanan of Rav's ruling 'ha'Mafkir Avdo Yeitzei le'Cheirus', and Rebbi Yochanan commented 'Amar Rav Hachi' - he was expressing (pleasant) surprise that Rav concurred with him.

(b) He could not have have been querying Rav - because he had been quoted by Ula as having said exactly the same thing, only Ula added 've'Tzrich Get Shichrur' (not like Shmuel, who said earlier 'ha'Mafkir Avdo, Eino Tzarich Get Shichrur').

(c) Others explain that Rebbi Yochanan made his comment based on the fact that Rav's statement was not quoted to him in full. They omitted the addition 've'Tzarich Get Shichrur', at which Rebbi Yochanan expressed surprise.

(a) If a Ger who has had no children since his conversion, dies, his property is Hefker. According to the Tana Kama of a Beraisa, any Avadim that he leaves behind acquire themselves and go free. Aba Shaul agrees that the grown-up Avadim go free - but the Ketanim, in his opinion, do not, because they are unable to acquire themselves, and 'Who gave them a Get Shichrur'?

(b) Rebbi Aba queried Ula as to how Rebbi Yochanan could possibly insist that Avadim require a Get Shichrur in light of this Beraisa. But Ula, unimpressed by the Kashya, did not even bother to answer. Rav Nachman explained - that Rebbi Yochanan only requires a Get Shichrur as long as the master is alive, but once he dies, his Eved is no worse than a woman (from whom his Halachos are derived [from the 'Gezeirah-Shavah' "Lah" "Lah"]), who requires a Get during her husband's lifetime, but who goes free without one after his death.

(c) The reason that the Avadim of a Yisrael (who is not a Ger) do not go free when their master dies is - because the Torah writes "Le'olam Bahem Ta'avodu".

(a) Ameimar (Rebbi Yochanan's Talmid - see Tosfos 'a'Lamah') rules that an Eved whose master declared him Hefker and then died, is stuck (he does not go free, and the heirs cannot set him free either).

(b) The reason for this is - because the declaration of Hefker removed the monetary rights that his master had in him, and the Kinyan Isur that remains (and for which a Get Shichrur is required) is not something that can be bequeathed to one's heirs.

(c) We cannot reconcile Ula Amar Rebbi Yochanan with Ameimar.




(a) Rebbi Ya'akov bar Idi quoting Rebbi Yehoshua ben Levi, rules like Aba Shaul (that a Ger Katan is not Hefker). Rebbi Zeira asked him whether he heard it directly from him or whether he deduced it from a statement of his. Rebbi Yehoshua ben Levi quoting Rebbi stated that if someone said 'Nisya'ashti mi'P'loni Avdi' (a form of Hefker) - 'Ein Lahem Takanah (he can marry neither a Shifchah nor a bas Yisrael as we explained earlier) Ela bi'Shtar'.

(b) Rebbi Yochanan explaining Rebbi - ascribes this to the 'Gezeirah-Shavah' "Lah" "Lah" from Ishah; just as a woman requires a Sh'tar, so too does an Eved.

(c) Assuming Rebbi Ya'akov bar Idi learned it from this statement of Rebbi Yehoshua ben Levi, he would have extrapolated from Rebbi's comparison to Ishah that he is speaking specifically by an Eved Gadol, who acquired his Kinyan Mamon with his master's Yi'ush, remaining with the Kinyan Isur, which requires a Get Shichrur, without which he remains in limbo. An Eved Katan, on the other hand, who did not acquire himself with his master's Yi'ush, remains permitted to live with a Shifchah Cena'anis (i.e. he remains an Eved, like Aba Shaul).

(d) In fact, he heard it directly from Rebbi Yehoshua ben Levi, which is just as well. Otherwise, we might have interpreted Rebbi to mean - that, just as a woman requires a Sh'tar, so too does an Eved whose master is Meya'esh from him require a Sh'tar, even a Katan, because like an Eved Gadol, he is able to acquire his own Kinyan Mamon (like the Tana Kama of Aba Shaul).

(a) Rebbi Chiya bar Aba Amar Rebbi Yochanan rules like the Rabbanan of Aba Shaul. He heard it directly from Rebbi Yochanan, rather than extrapolate it from Rebbi Yochanan's statement explaining Rebbi (in the same way as we just explained Rebbi Ya'akov bar Idi).

(b) We know that he did not extrapolate it from Rebbi Yochanan's statement (as we just explained) - because then, we would have the option of Darshening it the other way, as we explained Rebbi Ya'akov bar Idi initially.

(c) In any event, in the case of an Eved Gadol whose master was Meya'esh from him, Rebbi certainly maintains 'Ein Lahem Takanah Ela bi'Sh'tar' - but that is because the Eved has already acquired his own Kinyan Mamon; whereas when Rebbi himself ruled earlier (in the case of 'ha'Makdish Avdo') 'Af Hu Nosen D'mei Atzmo ve'Yotzei ... ', that was because the Kinyan Mamon still remained.

(d) We learn that an Eved Cena'ani can be acquired with money - from the Pasuk in Kedoshim (with regard to a Shifchah Charufah) "ve'Hofdei Lo Nifdasah".

(a) Rebbi Shimon Amar Rebbi Akiva learn from "Lo Yumsu ... ve'Hofdei Lo Nifdasa O Chufshah *Lo Nitan Lah*" - that a Shifchah Cena'anis (or an Eved Ivri) cannot be acquired with money, only with a Sh'tar.

(b) The case of a Shifchah Charufah (who brings an Asham), according to Rebbi Akiva - is where she was set free with a Get Shichrur by one of her masters, and betrothed to a Yisrael.

(c) If she had not been set free at all (even by one of her masters) - then she would have been subject to the La'av of "Lo Sihyeh Kedeishah", but would not have been a Shifchah Charufah (to bring an Asham).

(d) According to Rebbi Akiva, a Shifchah who is betrothed to a Yisrael and commits adultery after having been set free by means of ...

1. ... a Sh'tar Shichrur - is Chayav Sekilah.
2. ... money - contravenes the La'av of "Lo Sihyeh Kedeishah" but is not Chayav Sekilah.
(a) Rami bar Chama Amar Rav Nachman 'Halachah ke'Rebbi Shimon'. Rav Yosef bar Chama Amar Rebbi Yochanan says - 'Ein Halachah ke'Rebbi Shimon'.

(b) Rabah bar Shilas too, maintains 'Ein Halachah'. When he arrived in Sura, he asked Rebbi Zeira - for details of the case where Rav Nachman ostensibly ruled like Rebbi Shimon.

(c) Rebbi Zeira related the incident - where a dying man exclaimed to his weeping Shifchah 'How long will you continue to be enslaved?' before removing his hat and throwing it to her so that she should acquire herself together with the hat.

(d) Everyone thought that when Rav Nachman ruled 'Lo Asah ve'Lo K'lum, he meant to permit her to get married.

1. They thought that, as far as the Kinyan Mamon was concerned, she was free (like Rebbi Shimon), and was no longer under her master's jurisdiction.
2. What he really meant however, was - that the Kinyan was completely invalid, because the Kinyan with which the Shifchah was supposed to acquire herself was that of Chalipin, and Chalipin requires the article to belong to the acquirer (the Shifchah in this case), and not to the Makneh (the master). Consequently, she did not even acquire her Kinyan Mamon either.
11) 'Rav Shmuel bar Achisa'i ... Amar Rav Hamnuna Halachah ke'Rebbi Shimon'. Rav Shmuel bar Achisa'i himself said -'Ein Halachah ke'Rebbi Shimon'.

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