1) "PALGINAN DIBURA"
QUESTIONS: The Gemara inquires about a case of an Eved who brings a Get Shichrur (bill of release) for himself in which it is written, "All of my possessions are hereby given to you." Abaye and Rava argue about the status of the Eved. Abaye says that since the Eved does not acquire any of the possessions of his master with this Shtar (since, as a single (and invalid) witness, his word is not sufficient to validate the Shtar), he also does not acquire his freedom. Rava says that the Eved acquires his freedom, but he does not acquire any of the master's possessions.
Rav Ada bar Masnah asks that Rava seems to follow the opinion of Rebbi Shimon who applies the principle of "Palginan Dibura." However, the Halachah does not follow the view of Rebbi Shimon with regard to "Palginan Dibura."
The Gemara cites the source for the opinion of Rebbi Shimon with regard to "Palginan Dibura." The Mishnah in Pe'ah (3:8) states that if a person writes all of his possessions to his slave, the slave goes free (and acquires all of his master's possessions). However, if the master writes a clause excluding a specified part of his land from the gift to his slave, according to the Tana Kama there the Eved does not go free because it is assumed that just as the master left out that piece of property from the gift to the Eved, he also did not intend to give the Eved his own freedom. Rebbi Shimon argues and says that the Eved does go free in such a case, because it is assumed that the master excluded only the land that he specified. Rebbi Shimon agrees, however, that if the master writes to his slave that he is giving him all of his possessions "except for one small amount" without specifying which part of his property he wants to exclude, the slave does not go free.
How do Rebbi Shimon's words in that Mishnah imply that he rules "Palginan Dibura"? RASHI explains that Rebbi Shimon's words imply that the Eved goes free even when the master writes to him that he is giving him all of his possessions except for one field, without specifying which field. Since the master does not specify which field he excludes, the Eved cannot take any of the fields. Therefore, the Eved receives no possessions from his master except for his own freedom. (He does not receive any Metaltelin, because ownership of Metaltelin cannot be transferred through a Shtar.)
Since Rebbi Shimon rules that the Eved acquires his freedom with such a Shtar even though he acquires nothing else, it is apparent that he rules "Palginan Dibura." Even though the Shtar is not able to transfer to him any of the master's other property, it is able to give him his own freedom.
How does Rav Ada prove that the Halachah does not follow the view of Rebbi Shimon? He quotes Rav Nachman who said that "even though Rebbi Yosi praised Rebbi Shimon, the Halachah is like Rebbi Meir."
There are a number of questions on Rashi's explanation of the Gemara.
(a) Why is Rebbi Shimon's ruling in the Mishnah in Pe'ah considered "Palginan Dibura"? In Rebbi Shimon's ruling, the Eved does not receive any land simply because it is not known which land the master gave to him. Out of doubt he gets no land because of the principle "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." There is nothing inherently faulty with the Shtar itself with regard to the land. Since the doubt applies only to the land and not to the Eved's freedom, the Eved certainly should gain his freedom even without the utilization of "Palginan Dibura"!
In general, the concept of "Palginan Dibura" applies only to "Ne'emanus," the ability to believe a person's testimony. That is, if a person makes a statement which has more than one consequence, and the person is not trusted for one of the consequences, is his word accepted with regard to the other consequences? "Palginan Dibura" allows Beis Din to accept the person's testimony with regard to only one of the consequences. The Gemara also applies the concept of "Palginan Dibura" to a case in which a person makes a statement which has a number of consequences, and the person intends for his statement to be understood in one particular way with regard to one of the consequences. May Beis Din assume that he wants his statement to be understood the same way with regard to the other consequences (for example, the case of a Shechiv Mera who wrote all of his property to his slave)? "Palginan Dibura" enables Beis Din to interpret the person's statement differently with regard to the different consequences.
How does the concept of "Palginan Dibura" apply to the person who gives away all of his possessions, except for one unspecified plot, to his Eved? The reason why the Eved does not receive land has nothing to do with the intention of, or the trustworthiness of, the master's statement!
(b) Why should the Eved receive no land at all? He should receive all of the land except for the cheapest plot! (TOSFOS DH l'Olam)
(c) How does the statement of Rav Nachman, who says that the Halachah follows Rebbi Meir, teach that "Palginan Dibura" does not apply? Rebbi Meir and Rebbi Shimon apparently argue about two points. Their first point of dispute is the case in which the master omits one specified piece of property from his gift. According to Rebbi Meir, it is assumed that he intends to leave out the Eved as well, and the Eved receives nothing. According to Rebbi Shimon, it is not assumed that he intends to leave out the Eved, and the Eved receives everything else (including his freedom). This ruling seems unrelated to "Palginan Dibura." Their second point of dispute is the case in which the master excludes an unspecified plot of land from the gift. Rebbi Shimon implies that if the master excludes an unspecified plot of land and therefore the Eved does not receive any land, "Palginan Dibura" applies and the Eved goes free despite the fact that he receives no land.
Perhaps when Rav Nachman rules like Rebbi Meir, he rules like him only in one point of the dispute, but not in both. Perhaps Rav Nachman rules that if the master omits one specific piece of property from the gift, he intends to omit the Eved as well. Accordingly, it is not evident what Rav Nachman maintains with regard to "Palginan Dibura" in cases where it is applicable.
(a) Rashi explains, according to the Tana Kama who argues with Rebbi Shimon, that when the master excludes a specified plot of land from the gift to his Eved, the reason the Eved does not go free is because it is assumed that just as the master excluded that piece of land and did not seriously mean "all of my property," he also intended to leave out the Eved. He had no real intention to free the Eved, and he was merely trying to flatter the Eved. The Shtar was not intended to be taken seriously.
In the case where the master leaves out an unspecified plot of land, the same logic applies. Since the master is not really giving any of the land to his Eved, the terminology he used in the Shtar is not accurate. He intends only to give the Eved his freedom, but not to give him "all" of his property. It must be that the master wrote "all of my property" in order to flatter his slave, and he did not intend any of the gift to be taken seriously. Accordingly, the concept of "Palginan Dibura" is necessary in this case to show that although the master was not serious with regard to the gift of land, he was serious with regard to giving the slave his freedom. The focus is on the intention of the master and not merely on the question of how to treat property in doubt ("ha'Motzi me'Chaveiro"), and thus it indeed is appropriate to apply the concept of "Palginan Dibura" here.
(b) Why does the Eved not receive all of the land except for the plot with the lowest value? After all, when a person sells all of his land to his friend except for one plot, the buyer receives all of the land except for one plot, and since it is in doubt which plot he is not entitled to receive it is assumed that it is the best, most expensive plot (that is, the buyer must bring proof that the seller intended to leave out a cheaper plot of land).
Rashi's explanation answers this question as well. Perhaps a gift differs from a sale. When a person makes a sale and receives money in return for land, he cannot say that he was not serious and merely wanted to fool the buyer, and that he did not mean to sell his land. The sale is valid and binding except for one piece of land, and the buyer takes all of the land except for the most expensive plot. In contrast, when a person gives a gift to his friend and leaves out an unspecified plot, he may claim later that he really did not intend to give anything to his friend, but that he was just trying to flatter his friend.
(See TOSFOS (DH l'Olam and DH Halachah) and the RAN, who explain the Gemara differently.)
(c) This approach answers the third question as well. When Rebbi Meir rules that when a master gives all of his property to his Eved except for one item it is assumed that he means to exclude the Eved from the gift as well, his ruling is based on the concept of "Lo Palginan Dibura," we do not apply "Palginan Dibura." Rebbi Meir means that since the master showed that he did not seriously mean "all" of his property, it is assumed that he also was not serious about the rest of the property, including the Eved, for otherwise he would not have said that he is giving to the Eved "all of my property" but he would have specified what he wanted to give and said, "I am giving to you your freedom (Atzmecha), and my property."
Rebbi Shimon argues and says that "Palginan Dibura" does apply, and it is assumed that the master was serious about freeing his Eved. Rebbi Shimon takes this one step further and says that not only is it assumed that the master was serious about giving the Eved his freedom when he left out only a small part of his property, but even when the master excluded from the gift all of his property except for the Eved, it is assumed that he was serious about giving the Eved his freedom. When Rav Nachman rules like Rebbi Meir, he rules that we do not apply "Palginan Dibura," and even if the master leaves out a small part of his property the Eved does not go free.
The Gemara concludes that Rebbi Meir's reasoning is not based on the logic of "Lo Palginan Dibura." Normally, it is assumed that when a master leaves out a small part of his property from the Shtar, he does not mean to leave out the Eved, because the master clearly says that he is giving all of the rest of his property to the Eved, and we thus apply "Palginan Dibura." Although there is a slight possibility that the master was not serious about freeing his Eved, that possibility is not taken into consideration when we determine the meaning of the words in the Shtar. However, with regard to a Get Ishah or a Get Shichrur, the Torah writes that the words in the Get must be unequivocal ("Kerus Gita"). Consequently, since there is some degree of ambiguity in the wording of the Shtar, the Eved cannot go free.
2) HALACHAH: AN "ILEM" WHO DELIVERS A GET
QUESTION: The Mishnah states that if a Shali'ach who delivers a Get from Medinas ha'Yam cannot say "b'Fanai Nichtav," the Get must be validated by having two witnesses testify to the authenticity of the signatures on it.
The Gemara inquires about what type of Shali'ach the Mishnah refers to when it says that he cannot say "b'Fanai Nichtav." If the Shali'ach is a Cheresh (deaf), he cannot be appointed as a Shali'ach in the first place since he is not considered a Bar Da'as, a person with sufficient intellectual capacity. It must be that he was healthy at the time he delivered the Get, and he became a Cheresh after he delivered the Get but before he could say "b'Fanai Nichtav."
Why does the Gemara not answer simply that the Shali'ach cannot say "b'Fanai Nichtav" because he is an "Ilem," a mute, who cannot speak but who can hear. Since he can hear, he is considered a Bar Da'as and may be appointed as a Shali'ach, but he cannot say "b'Fanai Nichtav" because he is unable to speak.
(a) TOSFOS (5a, DH Ileima) explains that if the Mishnah would have meant that the Shali'ach is an Ilem, it would have said that "he did not say 'b'Fanai Nichtav'" and not that "he could not say 'b'Fanai Nichtav'."
What does Tosfos mean? An Ilem does not choose not to speak; he cannot speak, and thus the words "he could not say 'b'Fanai Nichtav'" appropriately describe him! Tosfos apparently means that an Ilem would not have watched the writing of the Get in the first place since he knew that he would not be able to say "b'Fanai Nichtav" when he delivers it, since he is mute. Since he willingly did not witness the writing of the Get, the Mishnah should phrase his inability to say "b'Fanai Nichtav" as a consequence of his choice and say that he did not do what the Chachamim required of him ("he did not say..."). The phrase, "he could not say...," implies that the Shali'ach attempted to do what the Chachamim required of him but was unable to; for example, he was able to say "b'Fanai Nichtav" at the time he saw the writing of the Get, but he lost the ability to say it at a later point.
(b) The TOSFOS HA'ROSH (5a) explains that the Halachah that a Get delivered by an Ilem needs Kiyum through its signatures is an obvious Halachah. The Mishnah would not teach an obvious Halachah. If, however, the Mishnah refers to a person who was able to say "b'Fanai Nichtav" at the time he brought the Get, the Mishnah indeed teaches a novel Halachah, that although the Shali'ach presently is a Cheresh, the Chachamim are not concerned that people will mistakenly assume that they are permitted to appoint a Cheresh as a Shali'ach to deliver a Get.
(c) The RAN explains that if the Shali'ach is an Ilem, he could say "b'Fanai Nichtav" by writing the words on paper. Why would he be permitted to testify through writing, if there is a rule that testimony must come from a witness' mouth and not from what he writes ("mi'Pihem v'Lo mi'Pi Kesavam")? The Ran writes that since the Chachamim were lenient and required only a single witness to be Mekayem a Get by saying "b'Fanai Nichtav," they were also lenient to permit the Shali'ach to be Mekayem the Get through written testimony.
The Ran proves this from the laws of testimony on behalf of an Agunah. In the case of an Agunah, written testimony about the death of the woman's husband is accepted even though the testimony of a Tzarah (co-wife) of the Agunah is not accepted. In the case of a Get, where a Tzarah may deliver a Get and testify "b'Fanai Nichtav" (23b), certainly written testimony should be acceptable.
Tosfos and the Rosh obviously reject the Ran's approach and maintain that written testimony of "b'Fanai Nichtav" does not suffice to be Mekayem the Get. How do they respond to the Ran's proof?
1. The RIVASH (#240) explains that the reason why the Tzarah is believed is not that the Chachamim were more lenient in the case of the delivery of a Get, but rather that there is no reason to suspect that the Tzarah is lying. She will lie only if doing so will damage her Tzarah. In the case of permitting an Agunah, the testimony of a Tzarah is not accepted because she stands to cause considerable damage to her Tzarah with her lie, in that if her Tzarah marries another man based on her testimony she will become prohibited to her husband upon his return (which will demonstrate clearly the falsehood of the Tzarah's testimony). When the Tzarah says "b'Fanai Nichtav," however, her testimony cannot be proven false, because if the husband denies that he sent the Get he will not be believed.
2. The BEIS YOSEF (EH 142:7) suggests that with regard to accepting the word of a witness, Beis Din believes a Shali'ach who brings a Get more than a witness who testifies about an Agunah, simply because the fact that the Shali'ach is carrying the Get supports his statement. However, the reason why Beis Din does not accept testimony in writing is not related to the trustworthiness of the testimony or of the witness. It is simply a Gezeiras ha'Kasuv in which the Torah states that testimony in writing is not considered valid testimony. Therefore, the fact that the Ilem is carrying a Get cannot make his testimony any more valid than the written testimony in the case of an Agunah. Although the Chachamim were especially lenient in the case of an Agunah and permitted written testimony, they were not as lenient with regard to Gitin with regard to matters (of Pesulim) that are not related to the trustworthiness of the witness.
3. The reason why the Chachamim were more lenient with regard to written testimony in the case of an Agunah is that they saw a pressing need to be lenient. They were concerned that the person who witnessed the death of her husband might be far away and will not be interested in investing the time and expense involved in coming to testify personally for the woman about the death of her husband. Therefore, the Chachamim permitted that witness to send a letter with written testimony in order to permit the woman to remarry. In contrast, the Chachamim saw no pressing need to permit written testimony of "b'Fanai Nichtav," since the Shali'ach who brings the Get will always be standing in front of Beis Din at the time he says "b'Fanai Nichtav."
HALACHAH: The REMA (EH 142:7) cites the RIVASH (above) who rules like Tosfos, that an Ilem cannot write "b'Fanai Nichtav," since it must be said verbally. However, the BEIS SHMUEL (#11) points out that the Rema seems to contradict his own ruling in Choshen Mishpat (46:7), where he also cites the RIVASH (#413) who rules that Kiyum Shtaros is more lenient than other forms of testimony and may be done through writing! Since the Halachah follows Rava, who rules that "b'Fanai Nichtav" is said in order to be Mekayem the Get, why should an Ilem not be able to write "b'Fanai Nichtav" and be Mekayem the Get through his written testimony?
The Beis Shmuel answers that the Rema differentiates between an Ilem who cannot speak and a person who can speak but chooses to write. An Ilem cannot be Mekayem a Shtar through written testimony, while a person who is able to speak may be Mekayem a Shtar through written testimony.
3) THE ELEMENT OF "IGUN" INVOLVED WITH FREEING A SLAVE
QUESTION: The Gemara says that although the Chachamim were lenient to allow illiterate witnesses to sign a Get by having Beis Din make indentations in the paper which the witnesses trace with ink, they did not allow such signatures on a Get Shichrur of an Eved.
Why did the Chachamim not institute the same leniency for a Get Shichrur? The Chachamim allowed a single Shali'ach to be Mekayem a Get Shichrur by saying "b'Fanai Nichtav," which shows that they recognized some element of Igun in the case of the Shichrur of an Eved, just like the element of Igun in the case of a Get Ishah. Why, then, were they not lenient to permit illiterate witnesses to sign a Get Shichrur with the assistance of Beis Din?
ANSWER: The RAMBAN and RABEINU KRESKAS answer that there is an element of Igun when an Eved who has received a Get Shichrur cannot be Mekayem it, because without validation of the Get Shichrur he can marry neither a Shifchah (a maidservant) nor a Bas Chorin (a normal Jewess). However, if the master does not write a Get Shichrur in the first place, the Eved remains permitted to a Shifchah and there is no element of Igun if he is not freed.
TOSFOS (9a, DH Shavu), however, rejects an argument similar to this one by pointing out that even if a Shali'ach is not believed to say "b'Fanai Nichtav," there will not necessarily be Igun for the slave, because the Shali'ach simply could refrain from delivering the Get to the Eved until there are two witnesses to validate it, and thus the Eved does not have to become prohibited to a Shifchah.
The RAN answers that when the master sends a Get to the Eved to be given against the Eved's will, the Shali'ach will deliver the Get before there is Kiyum, and therefore it would be considered Igun if the Shali'ach would not be believed to say "b'Fanai Nichtav." Therefore, the Chachamim instituted that the Shali'ach is believed to say "b'Fanai Nichtav" in order that there not be Igun for the Eved by not being allowed to marry a Shifchah or a Bas Chorin.
4) "ARKA'OS" OF "NOCHRIM"
QUESTION: The Beraisa says that a Get Ishah or Get Shichrur signed by Nochrim in a court of law of Nochrim ("Arka'os") is invalid, while other types of Shtaros are valid. RASHI explains first that other Shtaros are valid because of the rule, "Dina d'Malchusa Dina," which states that the laws of non-Jewish kingdoms are binding on all of their Jewish inhabitants. It seems from Rashi that although Nochrim are not valid witnesses, they are accepted as witnesses on a Shtar that involves a monetary transaction because of the rule that whatever the governing body says about monetary law is binding. Accordingly, a Nochri is not a valid witness for a Get Ishah or Get Shichrur, because they do not involve monetary transactions, and therefore "Dina d'Malchusa Dina" does not apply to them.
However, in the following comment of Rashi (DH Chutz), Rashi says that Nochrim are not valid witnesses for a Get because they are not "Bnei Kerisus" -- they have no involvement with Gitin and Kidushin, concepts which have no pertinence or applicability to them at all. In contrast, Nochrim do have involvement with matters of monetary law, which is pertinent to them because of their Torah obligation to set up courts of law ("Dinim"). With regard to the Shichrur of slaves, the testimony of Nochrim is not accepted because of the Gezeirah Shavah of "Lah, Lah" from Get Ishah. (Rashi repeats later (DH Pesula d'Rabanan, and 10b, DH Kerisa) that Nochrim are not valid witnesses for a Get because they are not "Bnei Kerisus.")
Rashi's words are difficult to understand for a number of reasons.
(a) If Rashi has already explained in his first comment that Nochrim are valid witnesses for Shtaros which involve monetary transactions because of "Dina d'Malchusa Dina," why does he write in the following comment that they are accepted as witnesses because they are obligated to fulfill the Mitzvah of "Dinim," implying that they are valid witnesses mid'Oraisa because the Torah commands them to set up courts of law?
If Rashi maintains that Nochrim are not valid witnesses mid'Oraisa and their testimony is accepted for monetary matters only because of the principle of "Dina d'Malchusa Dina," why does Rashi have to explain that they are not valid witnesses for a Get Ishah because they are not "Bnei Kerisus"? They are not valid witnesses because there is no "Dina d'Malchusa Dina" for a Get! On the other hand, if Rashi maintains that Nochrim are valid witnesses mid'Oraisa for monetary matters, as he implies in his second comment, why in his first comment does he need to give the reason of "Dina d'Malchusa Dina" to justify why Nochrim are valid witnesses?
(b) Rashi's second approach, in which he implies that Nochrim are valid witnesses mid'Oraisa for Shtaros of monetary matters, seems to contradict a number of Sugyos, as Tosfos points out (here and in Bava Kama 88a). The Gemara in Bava Kama (88a) says that an Eved is a valid witness only because he is commanded to do Mitzvos, implying that a Nochri is not a valid witness.
In fact, the Gemara later (10b) questions the Mishnah which repeats the Halachah of this Beraisa. The Gemara asks why a Nochri should be accepted as a witness on a Shtar Matanah (a Shtar which effects a transaction of a gift) to make the Shtar able to create a Kinyan. Since the Shtar is signed by a Nochri, even if he is telling the truth the Shtar is like a "Chaspa b'Alma," a blank piece of earthenware of no value (implying that the Shtar has no valid witnesses signed on it). The Gemara answers that the Shtar is valid because of "Dina d'Malchusa Dina." (In its second answer, the Gemara suggests that a Shtar Matanah is indeed not valid when signed by Nochrim, but the Sugya here seems to follow the logic of the first answer; see Tosfos, DH Milsa).) The Gemara (10b) clearly expresses the reason which Rashi mentions in his first comment here, that Nochrim are valid witnesses only because of "Dina d'Malchusa Dina."
(c) In Rashi's second comment, in which he explains that Nochrim are not valid witnesses for a Get Ishah because they are not "Bnei Kerisus," he adds that they are also not valid witnesses for a Get Shichrur because of the Gezeirah Shavah of "Lah, Lah." The reason Rashi resorts to the Gezeirah Shavah is apparently in order to explain why the laws of Get Shichrur may be learned from the laws of Get Ishah with regard to the validity of Nochrim as witnesses. If Nochrim are disqualified from testifying for a Get Ishah simply because the concepts of Kidushin and Gerushin do not apply to them, the same logic would not disqualify them from testifying for a Get Shichrur, since the concept of Get Shichrur does have applicability to them. Rashi therefore adds that since a Nochri is unfit for the Kerisus of a Get Ishah, and a Gezeirah Shavah compares Get Shichrur to Get Ishah, it follows that just as a Nochri may not be a witness for a Get Ishah he may not be a witness for a Get Shichrur.
Why does Rashi take this approach? He should explain simply that a Nochri cannot own an Eved the same way a Yisrael owns an Eved (as the Gemara says later (38a), that a Nochri cannot own the body of another Nochri ("Gufo") but can own him only with regard to receiving the income from his labor, whereas a Yisrael has a Kinyan on the Guf of an Eved)! Rashi should say that a Nochri is unfit to be a witness for a Get Shichrur since the concept of Get Shichrur does not have applicability to a Nochri! (PORAS YOSEF, DIBROS MOSHE)
It is possible to argue that since a Nochri can own a slave of his own to some measure, he therefore is considered to have some involvement with the concept of Shichrur. (See Dibros Moshe.) However, even if this approach is correct, Rashi could just as well have explained that the concept of Shichrur from a Kinyan ha'Guf does not apply to a Nochri, and that is why a Nochri cannot sign a Get Shichrur. What forces Rashi to assume that the concept of Shichrur does apply to a Nochri with regard to Get Shichrur, and he cannot sign a Get Shichrur only because of the Gezeirah Shavah of "Lah, Lah"?
ANSWER: TOSFOS (DH Af Al Pi) explains that Nochrim are valid witnesses, mid'Rabanan, only for normal Shtaros of monetary matters. Rashi, in contrast, understands that they are valid witnesses mid'Oraisa. His source presumably is the Gemara later on this Daf which asks why the Beraisa does not mention that Get Ishah and Shichrur Eved are similar with regard to many other laws, such as the requirement of "Lishmah" and the invalidity of a Get written on something "Mechubar." The Gemara answers that the Beraisa is not listing any Pesulim d'Oraisa but only Pesulim which are mid'Rabanan. The Gemara challenges this assumption by asking that the Halachah that allows signatories who are Nochrim on other Shtaros but not on a Get is mid'Oraisa, and yet the Beraisa still includes it in its list. The Gemara answers that the Beraisa follows the opinion of Rebbi Elazar who says that "Edei Mesirah Karti" and thus the Pesul of such signatories is only mid'Rabanan.
It is clear from the Gemara that according to Rebbi Meir, signatories who are Nochrim are accepted on other Shtaros but not on a Get, because of a Pesul mid'Oraisa that applies specifically to a Get. That is why Rashi explains that Nochrim are valid witnesses for Shtaros of monetary matters mid'Oraisa. (The reason why they are valid mid'Oraisa is either "Dina d'Malchusa Dina" or because monetary matters have pertinence to them).
This approach may be understood further, based on the following two questions. What is the logic of the Gemara to suggest that the Beraisa is interested only in listing Pesulim that are mid'Rabanan? What reasoning might the Beraisa have for deeming it unnecessary to mention Pesulim d'Oraisa? After all, the Pesulim d'Oraisa are derived from Derashos and are not explicitly mentioned in the Torah, and thus they are not any more obvious than the Pesulim d'Rabanan. The Beraisa should find it necessary to provide a complete list of all of the similarities between Get Ishah and Shichrur Eved!
Moreover, the Gemara rejects the answer that the Beraisa is not listing Pesulei d'Oraisa due to the fact that the Beraisa itself mentions the similarity between Get Ishah and Shichrur Eved with regard to the Halachah of "Chazarah" (a person who sends a Get to his Eved or to his wife and changes his mind). According to Rebbi Meir, he may retract the Get, since both a Shichrur Eved and a Get Ishah are a "Chov" (liability) to the recipients. Because of this, the Gemara rejects the answer that the Beraisa limits itself to Pesulim d'Rabanan.
However, this question of the Gemara is obvious. What did the Gemara assume when it initially suggested that the Beraisa does not include Pesulim d'Oraisa? The Beraisa explicitly mentions a Pesul d'Oraisa (that of Chazarah)!
Rashi himself (DH Chutz) provides the answer to these questions. Rashi writes that with regard to every Pesul d'Oraisa, Shichrur Eved is similar to Get Ishah because of the Gezeirah Shavah of "Lah, Lah." Rashi means that there is nothing novel in teaching that any Pesul d'Oraisa which applies to Get Ishah also applies to Shichrur Eved; the Gezeirah Shavah teaches that. This is why the Beraisa does not need to list Pesulim d'Oraisa; it is obvious that with regard to Pesulim d'Oraisa, Shichrur is similar to Get Ishah due to the Gezeirah Shavah. The Chidush is only that Shichrur is similar to Get Ishah with regard to laws that are d'Rabanan, because the Gezeirah Shavah of "Lah, Lah" does not apply with regard to Dinim d'Rabanan. Rather, the Dinim d'Rabanan of Get Ishah apply to Shichrur only when a particular law is logically applicable to Shichrur as well.
This explains why the Gemara was not bothered by the fact that the Beraisa lists the Halachah that one who sends a Get to his wife or Eved may retract the Get. The reason why one may retract his decision after he sends a Get to his wife is that it is a liability (Chov) for a woman to be divorced, and the Halachah is that "Ein Chavin l'Adam she'Lo b'Fanav." Since the Halachah of Chazarah is based on the reality of whether it is a Zechus or a Chov for the woman (or the Eved) to receive a Get, it cannot be derived through the Gezeirah Shavah of "Lah, Lah." This is why the Chachamim, who argue with Rebbi Meir, maintain that one cannot retract a Get Shichrur which he has already sent to his Eved (unlike the Halachah in the case of a Get Ishah), for they maintain that a Get Shichrur is a Zechus for the Eved. Therefore, if Rebbi Meir argues with the Chachamim and maintains that Shichrur is also a Chov, it would be important for the Beraisa to mention that Shichrur is similar to a Get in this regard, even though it is a Halachah d'Oraisa, since it is not derived from the Gezeirah Shavah and, therefore, is not self-evident. (As to why the Gemara rejects the answer of "Pesulim d'Oraisa Lo Katani," see Insights to 10a).
This approach explains why Rashi finds it necessary to explain that a Nochri is not a valid signatory for a Get Shichrur because of the Gezeirah Shavah of "Lah, Lah" and not because he has no relevance to Shichrur. Since the Gemara says that the Halachah of "Arka'os" is a Pesul d'Oraisa (which, therefore, should not be listed in the Beraisa), it is evident that it applies to Shichrur as derived from Get Ishah through the Gezeirah Shavah of "Lah, Lah." This answers the third question.
The other two questions answer each other. As mentioned above, Rashi finds it necessary to explain that a Nochri would have been a valid witness for a Get Shichrur if not for the Gezeirah Shavah of "Lah, Lah." Consequently, Rashi must find a way to explain how a Nochri could be a valid witness mid'Oraisa, when the Gemara later (10b) clearly says that his testimony is worthless even for a Shtar Matanah (and certainly for a Get Shichrur)! Rashi answers that the Nochri is a valid witness for Shtaros of monetary matters because of "Dina d'Malchusa Dina." The Gemara later (10b) which says that a Nochri is not valid for Shtarei Matanah refers to a place in which there is no "Dina d'Malchusa Dina" that allows Nochrim to testify on a Shtar Matanah. Where there is "Dina d'Malchusa Dina," however, the Nochri is a valid witness, as the Gemara there says in its answer to its question concerning why a Nochri can be a valid witness for a Shtar Matanah.
That answer alone, however, does not suffice. Why should "Dina d'Malchusa" make a Nochri a valid witness mid'Oraisa for a Shtar Shichrur (if not for the Gezeirah Shavah of "Lah, Lah")? "Dina d'Malchusa Dina" applies only with regard to monetary law!
To answer this question, Rashi proposes that the source for the laws of "Dina d'Malchusa Dina" is the Torah's obligation for Bnei Noach to set up a system of courts and law. Rashi is explaining that this commandment not only obligates the Nochrim to ensure that justice is administered for criminals, but it also grants them the power to set up a system of law which establishes guidelines for monetary matters, such as guidelines for what constitutes an acquisition. This is what the Chachamim refer to when they say "Dina d'Malchusa Dina" -- the system of the courts of Nochrim that establishes legal guidelines in monetary matters is binding on all of the residents of that country, mid'Oraisa. (See Dibros Moshe.)
If this is the source for the right of the Nochrim to establish laws, this source gives them the right to enact any mandate or statute pertaining to anything that affects their constituents in any way -- and not just for monetary law. Granted, they cannot set up guidelines with regard to what is considered Kidushin and Gerushin; since Kidushin has no applicability to Nochrim, the Torah does not command them -- or give them the right -- to establish guidelines for it. However, a Nochri does have the ability to acquire an Eved (even though that acquisition is not a "Kinyan ha'Guf" but only grants the owner the rights to the slave's income). Therefore, "Dina d'Malchusa Dina" applies and grants the Nochri court system the right to enact laws which are binding with regard to the purchase of slaves. Rashi proposes that because of these laws, the signature of a Nochri witness should be valid even for a Get Shichrur of a Jew's Eved.
This explains why the Gezeirah Shavah of "Lah, Lah" is required to teach that Dina d'Malchusa does not give Nochrim the ability to make an enactment that will affect the Get Shichrur of an Eved Kena'ani. (The logic behind this teaching of the Gezeirah Shavah is that the Shichrur of an Eved Kena'ani of a Jew is not in the same category as the Shichrur of an Eved of a Nochri. Rather, it is a contract which involves Kerisus of Kinyan ha'Guf, and Nochrim are not "Bnei Kerisus.") (M. KORNFELD)