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Gitin 41

GITIN 41 - In memory of Meir ben Reb Yechezkel Shraga Brachfeld (Antwerp/Yerushalayim), at the conclusion of the Shiv'a following his untimely passing on 15 Adar 5761. A widely respected supporter of many Torah causes, Reb Meir's premature loss is mourned by the entire Olam ha'Torah.



(a) If, as Rav explains, it is the first master who set free the Eved whom he made an Apotiki, then when the Tana adds 'Ela Mipnei Tikun ha'Olam Kofin es Rabo ve'Oseh Oso ben-Chorin' he means the second master. We force him to write a second Sh'tar Shichrur on the basis of the fear - that he might later meet the Eved in the street and, claiming that he is his Eved, force him to return with him.

(b) According to the Tana Kama, the Eved is obligated to write a Sh'tar of debt, with which the second master can later claim from him. Raban Shimon ben Gamliel says - that it is the first master (who set him free) who must write the Sh'tar.

(c) The basis of their Machlokes is - whether one is obligated to pay for damaging someone else's Shi'bud (Raban Shimon ben Gamliel) or nor (the Tana Kama).

(a) According to Ula, it is the second master (to whom the Eved is Meshu'bad) who set the Eved free. When the Tana says 'Shuras ha'Din Ein ha'Eved Chayav K'lum', he means - that he is not really Chayav to observe the Mitzvos from which a woman is exempt.

(b) The Tikun ha'Olam on the basis of which the Chachamim now obligate him is - the fact that people began to speak of him as a ben-Chorin (and he will subsequently acquire a bad name when they see that he is not performing all the Mitzvos).

(c) According to Raban Shimon ben Gamliel, it is the second master (who set him free), who writes the Sh'tar. The basis of their Machlokes is - whether 'Hezek she'Eino Nikar (an inherent damage that is not discernable to the eye) is considered damage (Raban Shimon ben Gamliel) or not (the Tana Kama).

(d) The reason that ...

1. ... Ula declines to learn like Rav is - because he does consider the second man to be a master (which, according to Rav's interpretation of our Mishnah, the Tana does).
2. ... Rav declines to learn like Ula is - because he would not refer to the second one as a 'Meshachrer' (which according to Ula, our Tana does), seeing as his Shichrur is basically invalid.
(a) According to Ami Shapir Na'eh Amar Rebbi Yochanan, if a river swamps a field that the debtor designated an Apotiki, the creditor may no longer claim his debt. Shmuel's father holds - that he may still claim his debt from other property.

(b) Rav Nachman bar Yitzchak was not impressed with Ami Shapir Na'eh's statement. He commented that it was not for a person with a name like that (Ami the good-looking) to make statements that are not nice (since there is not the least reason for the creditor to lose his debt).

(c) He therefore qualified Ami Shapir Na'eh statement - by confining to an Apotiki Mefurash (where the debtor declared 'Lo Yehei Lach Pera'on Ela mi'Zu', restricting the payment to that field only. And even there, Shmuel's father holds that the creditor may claim from other property, should the Apotiki become flooded).

(d) A Beraisa supports Rav Nachman bar Yitzchak. The Tana of the Beraisa draws a distinction between whether the debtor designated a field as an Apotiki S'tam - in which case, the creditor may claim from other property in the event that the Apotiki became flooded, or as an Apotiki Mefurash - in which case he loses his claim.

(a) The Tana of another Beraisa speaks of someone who designated a field as an Apotiki for a debtor or for a woman's Kesuvah. When he says 'Govin mi'Sha'ar Nechasim', he means - that the debtor is permitted to sell the Apotiki, and pay him with other fields.

(b) Raban Shimon ben Gamliel makes a distinction between Kesuvas Ishah and other debtors in this regard - inasmuch it is not the way of a woman to take all the purchasers to Beis-Din to aascertain which field is Meshubad and which is not. Consequently, she married him on the understanding that the field that he designated for her Kesuvah is the only one from which she will claim (as if it was an Apotiki Mefurash), and he is not permitte to sell it.

(a) The two possible cases of a Chatzi Eved ve'Chatzi ben-Chorin - are two partners who purchased an Eved jointly, or two brothers who inherited an Eved from their father (see Sugya at foot of page).

(b) Beis Shamai obect to Beis Hillel, who maintain that an Eved who is half free serves his master and himself on alternate days - on the grounds that - that is fine from the point of view of the master, who has his slave, but how about the poor slave, who can 'marry' neither a Shifchah, because of the half of him that is free, nor a bas Yisrael, because the half of him that is a slave.

(c) The fact that he cannot marry creates a problem - inasmuch as the world was created to be populated, and everyone is obligated to participate, a free man by fulfilling the Mitzvah of "P'ru u'R'vu", and an Eved, by fulfilling the Mitzvah (mi'Divrei Nevi'im) of "Lo Sohu Bera'ah, Lasheves Yetzarah".

(d) The Halachah is like Beis Shamai - seeing as Beis Hillel conceded to Beis Shamai.




(a) If someone sets half his Eved free, Rebbi validates the Shichrur. The Rabbanan - regard such a Shichrur as invalid.

(b) According to Rabah, they argue in a case of a Sh'tar. Both Tana'im learn from the Pasuk "ve'Hafdei Lo Nifdasah" - (which, in their opinion, refers to a Shifchah half of whom has been set free) that it is possible to set half an Eved free with Kesef.

(c) Rebbi learns from the Hekesh "ve'Hafdei Lo Nifdasah O Chufshah Lo Nitan Lah" that just as he can set half an Eved free with Kesef, so too, can one set half of him free with a Sh'tar. The Rabbanan argue with him on the basis of the 'Gezeirah-Shavah' "Lah" "Lah" from Ishah, which teaches that half an Eved, like half a woman, cannot be set free by means of a Sh'tar.

(a) They appear to argue over whether a 'Hekesh' takes precedence over a 'Gezeirah-Shavah' or vice-versa. We conclude however, that both Tana'im agree that a 'Gezeirah-Shavah' takes precedence - either because the word itself is Mufneh (redundant), in which case the Torah inserted it for the D'rashah, or if it is not (and there is no Kashya on the 'Gezeirah-Shavah'), then it is because it was handed to Moshe on Har Sinai. The words of the Hekesh on the other hand, are neither redundant nor were they handed to Moshe at Sinai.

(b) Rebbi nevertheless follows the Hekesh - because an Eved (regarding separation) is superior to a woman, seeing as he goes free with Kesef, whereas a woman does not. Consequently, it is more logical in this case, to Darshen the Hekesh.

(a) According to Rav Yosef, they argue over setting the Eved free by means of Kesef, and not Sh'tar. Rebbi learns from "ve'Hafdei Lo Nifdasah". The Rabbanan disagree with him - because they hold "Dibrah Torah ki'Leshon B'nei Adam" (in which case the Torah is speaking about a full Shifchah, and not one who has been half set-free).

(b) Both agree that an Eved cannot be set half freed by means of a Sh'tar.

(c) Rav Yosef is disproved from a Beraisa. According to the Tana of the Beraisa - the Tana'im argue over Kesef.

(a) We propose that the Tana'im argue by Sh'tar exclusively, but that they agree by Kesef - in which case, Rav Yosef (who maintains that they argue by Kesef) will be disproved on two scores.

(b) We reply that, according to Rav Yosef, the Tana'im will argue by Kesef as well as by Sh'tar - and that Rebbi only presented the Machlokes by Sh'tar in order to stress the extent of Rebbi's opinion (that he validates Sh'tar, even though one could learn "Lah" "Lah" from Ishah that half a Shichrur is not valid).

(c) The reason that he does not rather present it by Kesef, to teach us the extent of the Rabbanan's opinion (i.e.. that they forbid Kesef even though one could learn from "ve'Hafdei Lo Nifdasah" that half a Shichrur *is* valid) is - because of the principle 'Ko'ach de'Heteira Adif' (a Limud Heter has an edge over a Limud Isur, inasmuch as one only permits something when one is absolutely certain that it is permitted, unlike an Isur, where one goes le'Chumra even when one is uncertain).

(a) The Tana of the Beraisa learns from "ve'Hafdei Lo Nifdasah" that the Pasuk exempts a Shifchah Charufah who is betrothed from S'kilah when she is half-Shifchah and half-free (through Kesef). He then learn from "O Chufshah Lo Nitan Lah" - that the Parshah incorporates a Shifchah who has not been set free by means of a Sh'tar, from which we derive that an Eved can be set free with a Sh'tar. He learns that this means Sh'tar, from a 'Gezeirah-Shavah' "O Chufshah Lo Nitan *Lah*" from "ve'Kasav *Lah* Sefer Kerisus".

(b) He subsequently includes a Shifchah who was half set free by means of a Sh'tar - from the Hekesh to Kesef (from the two phrases currently being discussed).

(c) This Beraisa is ...

1. ... ideal according to Rav Yosef - because, according to his amended opinion after being proved wrong, the author of the entire Beraisa is Rebbi.
2. ... problematic according to Rabah - because the Reisha is unanimous, whilst the Seifa goes according to Rebbi (though it is unclear why we cannot simply say that the entire Beraisa goes according to Rebbi, like Rav Ashi will indeed say shortly).
(d) Rabah would answer - that this is indeed the case, 'Reisha Divrei ha'Kol, ve'Seifa Rebbi'.
(a) When Rav Ashi says with regard to the previous Beraisa 'Rebbi Hi' - he means that the author of the entire Beraisa is Rebbi (and so what if the Rabbanan happen to concur with him in the Reisha).

(b) Our Mishnah talks about a case of 'Mi she'Chetzyo Eved ve'Chetzyo ben Chorin'. In view of this Sugya, Rabah will establish the Mishnah - when the master set his Eved free with 'Kesef', in which case even the Rabbanan will agree with Rebbi.

(c) This does not mean that Rav Yosef is forced to establish the author of our Mishnah as Rebbi - because, as Ravina explains, the Tana is referring to a case of an Eved who had two masters, one of whom set him free (as we explained in our Mishnah). In that case, the Mishnah will be unanimous, too.

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