THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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KIDUSHIN 16 - This Daf has been dedicated in honor of the Bar Mitzvah of
Moshe Yisrael Turkel, of London England, by Mr. and Mrs. D. Kornfeld.
1) WHICH IS STRONGER: A SHTAR OR A CHAZAKAH
QUESTION: The Gemara proves from verses that only one of the two Kinyanim,
Shtar or Chazakah, can be used to acquire an Amah Ivriyah (according to Rav
Chisda). Even though each of these Kinyanim has an element of superiority
over the other (i.e. a Shtar is the only Kinyan that works to divorce a
woman, and a Chazakah is the only Kinyan that works to take possession of
the property of a Ger who died with no heirs), the Gemara proposes that it
is more logical that a Shtar works to acquire an Amah Ivriyah, because we
never find that Chazakah applies in situations of Ishus (issues related to
What difference does it make if the Kinyan of Shtar can be used in
situations of Ishus? The Gemara here is discussing the acquisition of an
Amah Ivriyah, which itself is not a situation of Ishus! Even though an Amah
Ivriyah can become married through Yi'ud, the Gemara earlier (5a-5b) makes
it clear that an Amah Ivriyah is not considered a matter of Ishus! (See
TOSFOS 5a, DH sh'Ken Yeshnan.)
(a) The RITVA explains that even though Amah Ivriyah is not Ishus,
nevertheless a Shtar is a stronger Kinyan than Chazakah, since Shtar can
both create and remove an Isur in matters of Ishus, while a Chazakah cannot
remove land from a person's possession and make it Hefker.
(b) The TOSFOS RID deletes the words "we do not find it in a case of Ishus,"
and he explains that the second answer of the Gemara is the only answer.
(c) The TOSFOS CHACHMEI ANGLIYAH write that an Amah Ivriyah *is* considered
Ishus because Yi'ud can be performed with her. He does not address the
question from the Gemara earlier, though. Perhaps he means that an Amah
Ivriyah has a minimal element of Ishus, but not as strong an element of
Ishus as Kidushin has. The Gemara earlier compares Amah Ivriyah with
Kidushin, while this Gemara is comparing Shtar with Chazakah, and Chazakah
applies *only* to land and does not apply to even a minimal element of
Alternatively, Tosfos Chachmei Angliyah might learn like TOSFOS (5a, DH
sh'Ken) who explains that the Gemara there maintains that Yi'ud is performed
with the remainder of the servitude owed to the master, and not with the
original money used to purchase the Amah Ivriyah, in which case there is no
element of Ishus involved with the purchase of the Amah Ivriyah. (See
Insights to 19a.) Our Gemara, in contrast, might be of the opinion that
Yi'ud is performed with the money used to purchase the Amah Ivriyah.
According to that opinion, an Amah Ivriyah certainly is related to Ishus,
since the money used for her purchase might later create Yi'ud.
2) REBBI SHIMON'S LIST OF WHO GETS "HA'ANAKAH"
QUESTION: The Gemara cites a Beraisa in which the Tana Kama says that
Ha'anakah gifts are given to an Eved who goes free after six years of
servitude, to an Eved who goes free at Yovel, and to an Eved Nirtza who goes
free with the death of his master, and to an Amah Ivriyah who goes free with
the appearance of Simanim (signs of maturity). Ha'anakah gifts are not given
to an Eved who goes free with Gira'on Kesef. Rebbi Meir argues and says that
even an Eved who goes free with Gira'on Kesef receives Ha'anakah gifts.
Rebbi Shimon then adds that there are three cases of Ha'anakah for a man (an
Eved who goes free at six years, at Yovel, and an Eved Nirtza who goes free
at Yovel), and three cases of Ha'anakah for a woman (an Amah who goes free
at six years, at Yovel, and with Simanim).
What is Rebbi Shimon adding? Even though Rebbi Shimon leaves out the death
of the master, the Gemara earlier says that he leaves it out because he is
only listing those things that free an Eved that come at a set time! He is
merely repeating what the Tana Kama holds (i.e. that an Eved does not get
Ha'anakah gifts when he goes free with Gira'on Kesef)! (RAMBAN and other
(a) The RAMBAN and other Rishonim write that indeed Rebbi Shimon agrees with
the Tana Kama, and he only wants to point out that a man does not go free
with Simanim and that a woman cannot become Nirtza. The TOSFOS HA'ROSH says
further that Rebbi Shimon wants to add that when a Nirtza goes free at
Yovel, he also receives Ha'anakah gifts.
(b) The TOSFOS RID writes that Rebbi Shimon indeed argues with the Tana Kama
and maintains that when the Eved goes free with the death of the master, he
does not receive Ha'anakah gifts, because the heir does not have to pay the
Eved what his father owed to the Eved.
According to the Tosfos Rid, why does the Gemara mention that the death of
the master has no set time, and that is why Rebbi Shimon does not discuss
it? The Gemara should say instead that Rebbi Shimon cannot possible be
referring to the death of the master, because then he would be saying the
same as the Tana Kama! (SHITAH LO NODA L'MI; see PNEI YEHOSHUA.)
The SEFER HA'MIKNAH suggests a logical justification for this ruling. The
Tana Kama is Rebbi Yehudah, who normally maintains that a "Milveh Kesuvah
ba'Torah k'Kesuvah b'Shtar Damya" (see beginning of 13b), and therefore such
a debt may be collect from the heirs of the debtor. Rebbi Shimon, in
contrast, holds that it a "Milveh Kesuvah ba'Torah" is not considered to be
written in a Shtar, and therefore it cannot be collected from the heirs of