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Kidushin, 21


QUESTION: The Beraisa teaches that according to Rebbi Yosi bar'Rebbi Yehudah, the Martze'a (awl) used to pierce the ear of the Eved Nirtza can be any sharp object, while Rebbi maintains that it must be made out of metal. The Beraisa continues, "Davar Acher" -- "another thing," and says that the word "ha'Martze'a" (Devarim 15:17) is written to include ("l'Havi") the "large Martze'a." (The words "Davar Acher" seem to be extraneous, as the RASHASH points out. Indeed, these words do not appear in the text of the Rishonim here.) Why do we need an extra verse to teach that a large Martze'a may be used? We already learned from the verse that *any* sharp object may be used (according to Rebbi Yosi bar'Rebbi Yehudah) or any sharp metal object may be used (according to Rebbi)!


(a) The TOSFOS HA'ROSH answers that we might have thought the large Martze'a is worse than other sharp objects, since -- because of its large size -- it cuts rather than punctures. Therefore, the verses teaches that a large Martze'a nevertheless may be used. (b) The RAMBAN and RITVA explain that the verse is not including a large Martze'a and saying that using such an instrument is *valid*, but rather it is teaching that it is a *Mitzvah* to use a large Martze'a. (The Ritva erases the word "l'Havi" (to include) which is consistent with the text of the Beraisa in the Sifri.)

The Ramban points out that this part of the Beraisa is an introduction to the next part of the Beraisa, in which Rebbi Elazar quotes the Chachamim who prove that in the process of Retzi'ah, the cartilage of the ear is punctured and not the flesh of the lobe, since we find that the type of hole that Retzi'ah makes inflicts a Mum on a Kohen invalidating him from Avodah, and we know that only a hole in the cartilage of the ear is considered a Mum. The Mishnah in Bechoros (37b) teaches that a hole in the ear is considered a Mum only if it is the size of a "Karshinah," a bean. Therefore, the Beraisa first teaches that the Torah tells us to use a large Martze'a, which would make a Kohen into a Ba'al Mum.

QUESTION: Rav Nachman proves than an Eved Ivri who is a Kohen may marry a Shifchah, since the Beraisa teaches that he can become Nirtza, and only an Eved who is married to a Shifchah may become Nirtza. Why, then, do we find that the Gemara earlier (15a) needs two different sources, one to teach that an Eved Ivri who sells himself may not marry a Shifchah, and another source to teach us that he may not become Nirtza? Once we know that he cannot marry a Shifchah, he is automatically excluded from the Halachah of becoming Nirtza! (TOSFOS 14b, DH v'Lo)


(a) TOSFOS and the TOSFOS HA'ROSH explain that even if an Eved Ivri cannot marry a Shifchah, we might think that the Gezeirah Shavah of "Sachir Sachir" teaches that he can become Nirtza even without being able to marry a Shifchah, since we must compare him to an Eved sold by Beis Din. The Tosfos ha'Rosh brings proof to this from the Gemara (17b) that learns from a verse that an Amah Ivriyah cannot become Nirtza. Why do we need a verse if an Amah Ivriyah cannot marry a Shifchah Kena'anis (or Eved Kena'ani)? It must be that we would learn from the Hekesh which compares Eved Ivri to Amah Ivriyah that all of the Halachos are the same, and that the Amah Ivriyah can become Nirtza even though she cannot marry an Eved Kena'ani.

However, the RASHBA (15a) refutes this proof. He explains that we need a verse to exclude Amah Ivriyah from the Halachah of Nirtza, because otherwise we might have learned from the verse, "Af la'Amascha Ta'aseh Ken" (Devarim 15:16), that an Amah Ivriyah can become Nirtza (as the Gemara says on 17b).

(b) The SHA'AR HA'MELECH (Hilchos Avadim 3:3) suggests that even though an Eved who sells himself normally cannot marry a Shifchah Kena'anis, if the person who sold himself was a Mamzer then he is permitted to marry a Shifchah, since a Mamzer is always permitted to marry a Shifchah Kena'anis. Hence, Perhaps the verse is needed to teach that even a Mamzer who sold himself cannot become Nirtza, even when he marries a Shifchah Kena'anis.

The Acharonim reject this answer, because it is clear from the verse that the Eved's marriage to the Shifchah is part of the reason why he does not want to go free (since, upon going free, he will become prohibited to her). If the Eved is a Mamzer, then he is permitted to the Shifchah even when he is not an Eved, and thus going free will not prohibit her and it is not a reason why he would not want to go free.

(c) The RITVA (14b) answers that even though the master cannot force the Eved who sold himself to marry a Shifchah, nevertheless the Eved is permitted to marry one if he wants.

The Ritva proves that an Eved who sold himself is permitted to marry a Shifchah from the fact that he needs a Get Shichrur in order to go free. He needs a Get Shichrur because "Eved Ivri -- Gufo Kanuy," the body of the Eved is owned by the master (as the Gemara says on 16a). If an Eved Ivri who sold himself is not permitted to a Shifchah, in what way is his Guf owned by the master?

(This assertion of the Ritva is difficult to reconcile with the verses. The same verse that teaches that an Eved sold by Beis Din is permitted to marry a Shifchah teaches that such an Eved is given a Shifchah against his will. Why should we exclude an Eved who sold himself from only half of what the verse teaches, and not from everything? Apparently, the fact that the Torah requires a Get Shichrur in order to free an Eved who sold himself is the source that such an Eved is permitted to a Shifchah, according to the Ritva.)

The Ritva is alluding to the RAMBAN's interpretation of the Gemara (16a) that says that "Eved Ivri -- Gufo Kanuy." The Ramban there asks why does the Gemara say that the master must give the Eved Ivri a Get Shichrur and not just tell him to go, because of the fact that the Eved Ivri's Guf belongs to the master? If it is a monetary Kinyan just like anything else that the master owns, then he should be able to send away the Eved without a Get Shichrur, just like he can make any of his property Hefker or give it away!

The Ramban (cited by the RASHBA) answers that a Kinyan ha'Guf of an Eved is not a monetary Kinyan, but a "Kinyan Isur," similar to the Kidushin of a woman, and similar to the Kinyan of an Eved Kena'ani (see Insights to Gitin XX). Just like the Kinyan of Kidushin of a woman and the Kinyan of an Eved Kena'ani has Halachic ramifications of Isur (to prohibit her to the world, or to prohibit the Eved Kena'ani to a Bas Yisrael), so, too, the Kinyan of an Eved Ivri has Halachic ramifications -- it permits him to a Shifchah Kena'anis. Such a Kinyan cannot be annulled by simply being Mafkir the Eved (which is an act of a monetary nature), but rather it needs a Halachic removal (such as by giving a Shtar Shichrur).

The Ritva interprets the Kinyan ha'Guf of an Eved Ivri like the Ramban. He therefore wonders why an Eved who sold himself should need a Get Shichrur if there are no Halachic ramifications to his Kinyan! This is what leads the Ritva to conclude that the Kinyan of an Eved who sold himself does have Halachic ramifications, in that he, too, becomes permitted to a Shifchah.

However, the RASHBA (16a) reaches the opposite conclusion. He writes that it would seem, according to the Ramban, that an Eved who sold himself may indeed be sent away without a Get Shichrur. (Perhaps the Ritva maintains that we would learn from the Gezeirah Shavah of "Sachir Sachir" that a an Eved Mocher Atzmo also goes free with a Shtar and that his master has a Kinyan ha'Guf on him.)

RASHI and TOSFOS (16a) seem to have understood that the Kinyan ha'Guf of an Eved Ivri is not necessarily a Kinyan of Isur, like the Ramban understood, but rather it is a monetary Kinyan. Indeed, the master could be Mafkir the Eved Ivri and make him free without giving him a Get Shichrur. When the Gemara says that the master cannot send the Eved away unless he gives him a Shtar Shichrur, it means that he cannot forgive (be "Mochel") the obligation of the Eved Ivri to serve him, since that obligation is not just a Shi'abud (a commitment for the future that is forgivable), but rather the master actually owns the Eved with regard to his services, and therefore he must make a formal Kinyan to the Eved when he wants to give him back the rights to his services (see Rashi there, 16a, DH Gufo Kanuy).

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