1) A SLAVE WHO GOES FREE THROUGH "HEFKER"
QUESTION: The Gemara quotes Ula in the name of Rebbi Yochanan who says that an Eved whose master makes him Hefker goes free. Nevertheless, the master must still give his [former] Eved a Get Shichrur. As explained earlier (see Insights to 38:5), the reason why the Eved needs a Get Shichrur even though he became free when the master made him Hefker is that there are two elements to the state of being an Eved: the monetary ownership of the Eved, and the Isurim that apply to the Eved. When the master is Mafkir the Eved, he sets him free with regard to his monetary ownership but not with regard to his Isurim. To become free even with regard to his Isurim he needs a formal Get Shichrur.
Rebbi Aba challenges this ruling from a Beraisa which states that when a Ger dies with no children (and no heirs), all of his property is considered Hefker. The Tana Kama in the Beraisa says that all of the Ger's Avadim -- both adults and children -- go free. Aba Shaul says that only the adult Avadim go free; the children, who do not have the ability to make a Kinyan on themselves, remain Hefker and become the property of whoever makes a Kinyan on them. According to Rebbi Yochanan, how can the Avadim (at least the adult ones) acquire themselves and go free? The Avadim became Hefker (through the death of the Ger) but they did not receive a Get Shichrur! The Beraisa apparently contradicts the view of Rebbi Yochanan and supports the view of Shmuel who says (38a) that an Eved who becomes Hefker goes free and does not need a Get Shichrur.
Why does the Gemara assume that the Beraisa poses no problem to the view of Shmuel? How does Shmuel understand the view of Aba Shaul, who says that only the adult Avadim of the deceased Ger go free, but not the minor Avadim? Aba Shaul seems to rule that Hefker alone is not enough to set an Eved free; rather, an act of Kinyan is required, and thus an Eved who is a minor cannot acquire himself when he becomes Hefker!
ANSWER: TOSFOS (DH v'Chi) explains that according to Shmuel, the reason why an Eved goes free when he becomes Hefker is that there is no longer any dominion of a master over the Eved. In the case of an Eved who is a minor, who does not have the ability to make a Kinyan on himself, it is considered as though he is still under the dominion of his master.
What does Tosfos mean? The master made him Hefker or, in the case of the Beraisa, the master (who was a Ger) died! How can he still be under the dominion of his master?
Apparently, Tosfos means as the RASHBA and RAMAH write. They explain that when Shmuel says that an Eved goes free when there is "no dominion of a master over him," he does not mean that the Eved has no actual owner. Rather, he means that there is no one else who is able to take ownership over him since, by virtue of the removal of his former master, he takes ownership of himself. In the case of an Eved who is a minor, the minor cannot take ownership of himself and thus there remains upon him a monetary Shibud to serve a master, but at the present moment there is no master for him to serve. Since at the moment the Ger dies it is possible for someone to acquire the minor Eved, it is considered as though "the dominion of a master" is still upon him. Hence, the Eved requires a Get Shichrur to go free, and when someone takes possession of the minor Eved his Shibud to serve someone takes effect and he becomes that person's Eved. In contrast, when one is Mafkir an adult Eved, at the moment that there is no one who has dominion over him he acquires himself and thus goes free.
In summary, Shmuel maintains that whenever an Eved acquires himself with regard to monetary ownership, he also acquires himself with regard to Isurim. Since the minor Eved does not acquire himself with regard to monetary ownership (since he cannot make a Kinyan), he remains an Eved completely, so that whoever is the first one to make a Kinyan on him acquires him as his Eved. When an adult Eved becomes Hefker, since he acquires himself with regard to monetary ownership he also acquires himself with regard to Isurim, and he goes free completely.