OPINIONS: The year of Shevi'is cancels all outstanding debts. The Mishnah in Shevi'is teaches that if a borrower desires to repay the debt even though he is not obligated to, the lender must say, "Meshamet Ani." If the borrower insists that he wants to return the money nonetheless and says, "Even so [I want to return it]", the lender may accept it. The Gemara here adds that the lender may "hang him until he says this" ("v'Tali Lei Ad d'Amar Hachi").

What does the Gemara mean?

(a) RASHI explains that if the borrower does not offer immediately to pay back the loan (even though Shemitah canceled it), the lender may "hang him" and force him to say that he wants to pay back the debt despite the fact that Shemitah canceled it.

The ROSH and Rishonim ask that according to Rashi's explanation, how will Shemitah ever cancel a debt? If the lender has the right to force the borrower to pay him back, Shemitah is entirely ineffective!

The TOSFOS RID (and BACH, CM 67) explain that Rashi distinguishes between the original cancellation of the debt (before the borrower attempts to pay it back despite Shemitah) and the second cancellation of the debt (when the lender says "Meshamet Ani" after he is offered repayment despite Shemitah). If the borrower never offers to repay the debt, the debt is canceled and the lender has no right to ask for it. Once the borrower offers to repay the debt, however, the lender is required only to say the words, "Meshamet Ani"; after he says those words, he may take any measure to collect the loan.

It seems that according to Rashi, when the borrower offers to repay the loan despite Shemitah, he is acknowledging that he does not want Shemitah to affect his debt. A person has the right to forfeit the Hashmatah of debts which takes effect during Shemitah. Therefore, as soon as he says that he wants to pay, the debt remains as it was originally. Although the lender is still prohibited from openly claiming the repayment of the loan, he may force the borrower to say that he wants to repay the loan despite Shemitah, since the borrower actually owes him the money. (Perhaps the Mitzvah to say "Meshamet Ani" and not to claim the debt outright is only a requirement mid'Rabanan instituted because of "Mar'is ha'Ayin.")

(b) Many Rishonim disagree with Rashi. The RAMBAN in the name of the ARUCH, the RASHBA in the name of RABEINU BARUCH, the ROSH (4:9) and others explains that the term "v'Tali Lei" does not mean that the lender may hang the borrower, but that he may wait expectantly ("hang his eyes [in expectation]" (Rosh), or "hang out his hand" (Ramban)), showing the borrower that he is waiting to hear the borrower's offer to pay him back despite Shemitah. He is permitted to convey the message conspicuously to the borrower that he wants his money back. The Rosh cites support for this explanation from the Yerushalmi which says that when the lender says "Meshamet Ani" he may stretch out his hands in a gesture showing that he is waiting for the money. The RAMBAM (Hilchos Shemitah v'Yovel 9:29) suggests a similar explanation.

(c) The RA'AVAD on the Rif (and cited by the Ramban) explains that the Gemara means that after the borrower says that he nonetheless wants to pay back, and the lender receives the money, he should not immediately put the money in his pocket. Rather, he should leave it hanging in front of him in order to show that he is reluctant to take it back, so that it not appear as though he is not canceling the debt full-heartedly.

According to this explanation, why did Rabah become upset at Aba bar Marsa when Aba bar Marsa did not say that he wants to repay the debt after Rabah said that he let Shemitah annul the debt? Even if Aba would have said that he wants to pay it, Rabah still should have shown reluctance. Aba was justified in not volunteering to repay the debt right away, and Rabah should have had no reason to be upset just because Aba did not offer to pay back the debt.

The Ra'avad answers that since Hillel had already instituted the enactment of Pruzbul, Rabah was acting beyond the letter of the law by letting Shemitah annul his debts. He did so as a Midas Chasidus and not because the Torah required it. Therefore, he was not required to be "Toleh" the money. Rather, he was allowed to take the money back immediately, and even to become upset at Aba for not offering to give it back to him on his own accord.

QUESTION: The Mishnah records a dispute with regard to the law of an Eved Kena'ani who was ransomed from captives. The Tana Kama differentiates between a case in which the redeemer ransomed the Eved with intention that he remain an Eved (in which case he remains an Eved) and a case in which the redeemer ransomed the Eved with intention that the Eved go free (in which case he goes free). Raban Shimon ben Gamliel disagrees and says that in either case, the Eved goes free.

In the Gemara, Abaye and Rava disagree about the nature of the Mishnah's case. Abaye says that the Mishnah refers to a redeemer who ransoms an Eved before the Eved's owner despairs ("Ye'ush") of ever getting his Eved back. Therefore, when one ransoms the Eved with intention that he remain an Eved, the Eved goes back to the original owner. When one ransoms the Eved with intention that he go free, he does not become the redeemer's Eved, because the redeemer ransoms him on condition that he go free. He does not go back to the original owner (even though he was redeemed before Ye'ush) because of an enactment the Rabanan made lest people refrain from redeeming slaves. Raban Shimon ben Gamliel says that in either case the Eved goes back to the original owner (since he was ransomed before Ye'ush), because he maintains that it is a Mitzvah to ransom slaves just as it is a Mitzvah to ransom free people (and thus there is no need for an enactment).

Rava says that the Mishnah refers to a redeemer who ransoms an Eved after the owner's Ye'ush. Therefore, if he ransoms the Eved with intention that he go free, he goes free because the original owner had Ye'ush. He does not work for the redeemer because he redeemed him in order to set him free. If the redeemer ransoms him with intention that he remain an Eved, he becomes the redeemer's Eved. Raban Shimon ben Gamliel says that in either case he remains an Eved, because he rules like Chizkiyah who taught that this enactment was made in order that slaves not cause themselves to become captured in order to become freed from their masters when ransomed.

The Gemara questions Rava's explanation of the Mishnah. In order for the redeemer to acquire the Eved from the captors when he ransoms him, the captors must have acquired possession of the Eved. Otherwise, they have no legal right to sell him to anyone else. The Gemara thus discusses whether a Nochri can acquire another Nochri as an Eved.

Why does the Gemara ask this question only on Rava? The same question applies equally to the explanation of Abaye! Abaye says that the Tana Kama maintains that the Eved returns to the original owner only because he was ransomed before the original owner had Ye'ush. If he would have been ransomed after Ye'ush, the Tana Kama would agree that he becomes the Eved of the redeemer, as Rava says. The only point of dispute between Abaye and Rava is the enactment of Chizkiyah: Abaye asserts that Raban Shimon ben Gamliel maintains that there is no such Takanah, while Rava argues that Raban Shimon ben Gamliel maintains that there is such a Takanah. Why does the Gemara ask its question about the captors' ownership of the Eved only according to Rava?

(a) The RITVA gives two answers. In his first answer, he writes that it is true that Abaye agrees with Rava that according to the Tana Kama, after the owner's Ye'ush the Eved would belong to the redeemer. However, since it is Rava who explicitly states that Halachah, the Gemara chooses to focus the question on Rava. The same question applies equally to Abaye as well.

(b) In his second answer, the Ritva writes that Abaye argues with Rava in this regard as well. Abaye maintains that if the redeemer ransoms the Eved after Ye'ush of the original owner, the redeemer does not acquire the Eved for himself because the captors cannot acquire ownership of the Eved. Rather, the Eved is set free once he is redeemed. Abaye argues with the conclusion of the Gemara later (38a) which cites a verse to prove that a Nochri can own another Nochri as an Eved. (Regarding why Abaye argues, see Insights to 38a.)

QUESTION: Rava asserts that the Tana Kama of the Mishnah maintains that when one ransoms an Eved with intention that he remain an Eved, the Eved becomes the property of the redeemer (see previous Insight). The Gemara asks how the redeemer can acquire ownership of the Eved from the captors if the captors themselves did not own the Eved. The Gemara answers that the captors indeed owned the Eved. Presumably, the captors acquired the Eved after his original owner despaired ("Ye'ush") of ever getting him back and thereby relinquished his ownership of the Eved. The Gemara then proves that it is possible for a Nochri to own another Nochri as an Eved.

Why do the captors acquire ownership of the Eved after the original owner's Ye'ush? The Eved should acquire himself (and become free) after the Ye'ush of the owner at that point! The Gemara later (38a) teaches that an Eved acquires himself and goes free in a case where he escapes from prison after the Ye'ush of his owner. In that case, although no apparent act of Kinyan is made for the Eved to acquire himself, he nevertheless goes free by virtue of the fact that he conducts himself like a free person; that conduct is a form of Kinyan to acquire himself. Why, when the Eved is taken away from his master by captors, does he not acquire himself in the same way, since he is no longer acting as an Eved for his master?

(a) Escaping from prison and thereby acquiring himself as a free man, and being taken into captivity away from one's master, differ fundamentally. When an Eved is taken into captivity, although he is no longer working for his master, the fact that he is in captivity is inherently antithetical to acquiring himself as a free man. To make an act of acquisition over an object, or over oneself in the case of an Eved, the person must demonstrate control and independence. An Eved who was captured cannot acquire himself while in captivity because he has no control or independence. In such a case it is impossible for the Eved to make a Kinyan on himself. (See PNEI YEHOSHUA for a similar approach.)

(b) The IMREI MOSHE (23:8, based on Tosfos to Bava Kama 69a, DH Kol) attempts to prove from here that the principle that an owner's Ye'ush enables someone else to acquire the object of the Ye'ush entitles only the thief himself to obtain ownership of the object that he stole. The owner's Ye'ush does not allow anyone else to acquire the object. Hence, only the captors (the thieves) can acquire the Eved, but not the Eved himself.

(c) The RASHBA maintains that the captors do not need the Ye'ush of the original owner in order to acquire the Eved. Since they captured the Eved and did not merely steal him (as the Gemara later (38a) differentiates), the act of capturing is powerful enough to acquire the Eved immediately, even before the original owner's Ye'ush. The Eved, therefore, cannot acquire himself before the captors acquire him, because in order to acquire himself he needs the Ye'ush of the original owner, but by the time the owner had Ye'ush the Eved was already acquired by the captors.