Clarification: This means his descendants are not called brothers, which is not the case with regard to descendants of Geirim

Clarification (cont.): 'Rashi wants to say' ... (It is unclear what this last phrase refers to. See also Mesores ha'Shas).

Clarification: Since they are not killed, the Eved is not killed either ...

Reason: Since it is a case of 'Witnesses who cannot become Zom'min'.

Question: One can query Rebbi Yehudah from Ribis, Ona'ah and kidnapping, by all of which the Torah writes a derivative of "Ach", as well as from Tzedakah, where it writes "Achicha ha'Evyon"?

Answer: It is slightly implied in the first Perek of Gitin (Daf 12a) however, that there is no real obligation to give Tzedakah to an Eved ...

Source: Since Raban Shimon ben Gamliel holds that an Eved can say to his master in a time of drought 'Either sustain me or set me free, so that people will see me and take pity on me'.

Answer (cont.): Nor is one Chayav for kidnapping an Eved, even according to the Rabanan ...

Reason: Because the Torah writes "mi'Benei Yisrael.

Source: And in 'ha'Nechnakin' (Sanhedrin, Daf 86a) the Gemara cites the Machlokes between Rebbi Yehudah and the Rabanan that is discussed here.

Answer (concl.): And also Ribis and Ona'ah (is not applicable vis-a-vis an Eved ...

Reason: Since an Eved cannot acquire without his master.

Question: But throughout Shas we learn Eved via the Gezeirah Shavah "Lah" "Lah" from Ishah?

Refuted Answer: And if you will answer that "Echav" comes and includes Eved, taking it out of the Gezeirah Shavah ...

Refutation: Then it will also take it out of the Kal va'Chomer.

Answer: We only learn "Lah" "Lah" from Ishah, to be strict on an Eved, to make him like a Yisrael, at least vis-a-vis the Mitzvos that a woman is Chayav ...

Answer (cont.): But to make him less than a Yisrael, to invalidate him from testifying like a woman, that we will not learn (from it) ...

Reason: Since, min ha'Din, he is eligible to testify, as the Torah writes "and the two men shall stand", and an Eved is an Ish.

Implied Question: Whereas a Nochri, even though he too, is a man ...

Answer: Nevertheless, he is not a brother ...

Answer (concl.): But an Eved, who is both an Ish and a brother - regarding Mitzvos, ought to be eligible?

Rashi: In Gitin (Daf 9a DH 'Kesheirin' & DH 'Pesula de'Rabanan') in connection with Sh'taros that appear in Nochri law-courts, writes that Nochrim are eligible to testify min ha'Torah' ...

Refutation: But our Sugya does not seem to hold like that.

Explanation #1: Even though Milah is not applicable to her, it is nevertheless a Pircha.

Explanation #2: Some commentaries explain that she is not commanded to circumcise her son ...

Refutation: But that is not correct, because how can the Gemara then say 'Let Katan prove otherwise'?

Refuted Question: One cannot ask why we should not then learn that Mamzer, P'tzu'a Daka and K'rus Shafchah from Cazlan one of the current cases ...

Refutation: Because whereas the Tzad ha'Shaveh are not careful to keep all the Mitzvos - one due to his Rish'us, the other, because he is not commanded.

Clarification: It seems that it mentions the Kal va'Chomer even though it is unnecessary - to say that even if we would not learn it from the Pasuk itself, we could nevertheless learn it from a Kal va'Chomer.

Halachah: And we Pasken like him at the beginning of 'ha'Choletz' (Yevamos, Daf 36b).

Reason: Because of Takanas Usha, as the Gemara concludes.

Inference: This implies that, if not for Takanas Usha, Shmuel would concede that the husband cannot claim the property from the purchasers, since 'Kinyan Peiros is not like Kinyan ha'Guf'.

Question #1: How can he possibly justify that, seeing as above, in the first Perek (Daf 9a) he holds that 'Brothers who divide their father's property are considered purchasers, and here he holds 'La'av ke'Kinyan ha'Guf Dami' ...

Question #1 (cont.): If so, it is only someone who is Ben achar Ben all the way back to Yehoshua bin Nun who brings Bikurim, as the Gemara says at the end of ha'Shole'ach (Gitin, Daf 48a [See Tosfos there, DH 'I'])?

Question #2: Similarly, the same problem applies to Rava, who Paskens like Resh Lakish at the beginning of 'ha'Choletz' (Yevamos, Daf 36a & 36b) that 'Kinyan Peiros La'av ke'Kinyan ha'Guf Dami', and yet he holds (in Kidushin, Daf 42b) that 'Brothers who divide ... are considered purchasers'. How can he justify this?

Question #3: And we too, how can we justify ourselves by Paskening both like Resh Lakish and 'Ein B'reirah' ...

Source: When, at the end of Beitzah (Daf 28a), we Pasken like Rebbi Oshaya - that bi'd'Oraysa Ein B'reirah?

Answer: The Ri explains that all those who hold 'Ein B'reirah, will not say that 'Brothers divide the property must return it to the kitty in the Yovel' - with the sole exception of Rebbi Yochanan ...

Proof: Which is why the Gemara asks how specifically he can justify his opinion.

Answer (cont.): Whereas we do not hold that returning the field in the Yovel is connected with B'reirah.

Proof #1: Because Rav Yochanan himself concedes that they brought Bikurim in the days of Yehoshua, even if we hold ('Kinyan Peiros) La'av ke'Kinyan ha'Guf Dami' ...

Proof #1 (cont.): As he says 'Ben achar Ben until Yehoshua bin Nun' ...

Proof #2: And about the division of Yehoshua too, the Gemara says in 'Yesh Nochlin' (Bava Basra, Daf 119b) that it was an inheritance for them from their fathers, yet they were not required to return it in the Yovel ...

Reason: Because it makes sense to say that since they divided it through a Navi and the Urim ve'Tumim - via a Gezeiras ha'Kasuv, they were able to bring Bikurim.

Basis of Machlokes: And the Machlokes between Rebbi Yochanan and the other Amora'im is ...

Basis of Machlokes (cont.): That according to Rebbi Yochanan, we do not learn from the division of Yuhoshua, since it was a Gezeiras ha'Kasuv; whereas the other Amora'im maintain that we learn all divisions of land from there - in that the land need not be returned, despite the fact that they have the Din of purchasers.

Question: According to Rebbi Yochanan, why was the institution necessary, seeing as he holds ' ... ke'KMinyan ha'Guf Dami'?

Answer: It is needed, for where the husband writes 'Din u'Devarim Ein li bi'Nechasayich u've'Peiroseihen u've'Peiros Peiroseihen Ad Sof ha'Olam!' ...

Answer (cont.): In which case he does not eat the Peiros ...

Source: As the Gemara states in Kesuvos (Daf 83a).

Answer (concl.): It will not suffice however, if he only writes 'Din u'Devarim Ein li bi'Nechasayich u've'Peiroseihen' ...

Reason: Since then uses the fruit itself to purchase Karka, and he eats the fruit thereof.

Question: The Ri asks why Rav Idi bar Avin ignores the Mishnah in Maseches Makos (Daf 3a & 3b), citing instead a Beraisa ...

Mishnah: As the Mishnah states 'We testify that P'loni divorced his wife and did not pay her Kesubah, between now and tomorrow he is destined to give it to her ...

Mishnah (cont.): We therefore asses how much a person would be willing to pay for the Kesubah of a woman, on the off-chance that she becomes widowed or divorced, whereas on the other hand, she might die and her husband will then inherit her'.

Opinion #1: And although the Amora'im argue as to whether we assess how much a person would want to pay taking into account the rights of the woman's Safek, the excess of which the witnesses must pay ...

Opinion #2: Or whether we assess how much he would want to pay taking into account the rights of the man's Safek ...

Question (cont.): Nevertheless, we can query them both as to why the Tana says that 'We assess the Tovas Hana'ah ... that if she dies, her husband will inherit her?', seeing as she may well sell it and he will then not inherit her?

Answer: Because the Mishnah is speaking about Manah/Masayim (of the Kesubah itself) ...

Answer (cont.): Since it is obvious that even if she would sell the Manah/Masayim, the purchasers would not claim it from the husband, seeing as she died in the lifetime of her husband. (continued on the following Daf)