1) A SLAVE WHO MARRIES A JEWESS IN FRONT OF HIS MASTER
QUESTION: Rebbi states (39b) that when an Eved marries a Jewess in front of his master, he goes free. "Moreover," says the Gemara according to the Girsa of the RIF (as cited by the Mesores ha'Shas in the margin of the Gemara), "we force the master to write for his Eved a Shtar Shichrur."
RASHI explains that the reason why the Eved goes free when he marries a Jewess in front of his master is that since the master did not object, it must be that the master freed his Eved at an earlier time; had he not freed him, he would not let his Eved transgress the prohibition against marrying a free Jewess. Rashi means that there is an "Umdena," strong evidence based on circumstance, that the master gave a Shtar Shichrur to his Eved.
However, if the master presumably gave his Eved a Shtar Shichrur prior to the marriage and that is why the master does not object to the marriage, why is he forced to give a Shtar Shichrur to the Eved?
(a) The ROSH explains that indeed, the requirement for the master to give his Eved a Shtar Shichrur is not "m'Ikar ha'Din." It is not necessary for the sole purpose of freeing the Eved because, as Rashi explains, it is assumed that he already gave the Eved his Shichrur. Rather, the purpose of giving the Eved a Shtar Shichrur now is in order to prevent the master from claiming later that he wants his Eved back. For this purpose, the master must give his Eved a Shtar Shichrur so that the freed Eved will have in his possession clear proof that he is no longer an Eved.
(b) The RAMAH maintains that the master, "m'Ikar ha'Din," must give the Eved a Shtar Shichrur. Since there is no clear evidence that the Eved was freed but merely an "Umdena," the "Umdena" works only with regard to the monetary ownership of the Eved. The "Umdena" shows that he has acquired himself and thus the master cannot make the Eved work for him anymore. The "Umdena" alone does not work with regard to matters of Isurim, to permit the Eved to marry a Jewess. This is because the "Umdena" that the master freed his Eved is only a Safek. In order to completely remove the Isurim of Avdus, the Eved needs a Shtar Shichrur, and only then may he marry a Jewess. (Accordingly, the Eved will have to do another act of Kidushin with the Jewess after he receives the Shtar Shichrur.)
A practical difference between these two opinions exists in a case in which the owner of a Shifchah marries her himself (the case which the Gemara later discusses). In that case, too, there is an "Umdena" that the master freed his Shifchah because, otherwise, he would not transgress the Isur against marrying a Shifchah. In that case, however, there is no fear that the master will claim later that he never freed the Shifchah and that he wants her to work for him. Since he married her, he certainly will not claim that he married a Shifchah and cause people to ridicule him. Hence, according to the Rosh, the master does not need to give the Shifchah a Shtar Shichrur. According to the Ramah, however, the fact still remains that an "Umdena" does not suffice to free an Eved (or Shifchah in this case) with regard to matters of Isurim, and thus the master must give her a Shtar Shichrur. (In addition, after he gives her the Shtar Shichrur, he must perform Kidushin with her again, since when he did Kidushin with her the first time she was still a Shifchah with regard to the Isur of marrying a normal Jew.)
2) A FREED SLAVE WITH NO RECOURSE
OPINIONS: Ameimar states that an Eved who was made Hefker by his master has no recourse, "Ein Lo Takanah." The Gemara challenges Ameimar's ruling from the statement of Ula in the name of Rebbi Yochanan, who says that an Eved who was made Hefker by his master goes free and needs a Get Shichrur. This clearly implies that the Eved does have a "Takanah." Ameimar answers that Rebbi Yochanan means that the Eved needs a Get Shichrur "but is unable" to receive it.
What does the Gemara mean when it says that an Eved who was made Hefker has no recourse, "Ein Lo Takanah"?
(a) RASHI explains that "Ein Lo Takanah" means that he has no recourse with regard to Ishus, marriage, at all. He cannot marry a free Jewess because he still has not yet received a Get Shichrur to free him with regard to his Isurim. He also cannot marry a Shifchah Kena'anis because he was made Hefker and thus his master no longer has any monetary Shibud over him (see Rashi, 39b).
(b) TOSFOS (DH Oso) explains that as long as the Eved has not yet received his Get Shichrur he is considered a full-fledged Eved with regard to his Isurim. Hence, he may marry a Shifchah. When the Gemara says "Ein Lo Takanah," it means that he has no recourse with regard to marrying a free Jewess.
Tosfos' explanation seems problematic. Even if the Halachah does not follow the view of Ameimar and a master who was Mafkir his Eved is able (and is forced) to give a Get Shichrur to his Eved like the simple understanding of Rebbi Yochanan's words (see also the Gemara earlier, 38a), what reason is there to force the master to give his Eved a Get Shichrur? What difference does it make if the Eved, who has become Hefker, remains prohibited to marry a Jewess? According to Tosfos, he has a "Takanah" because he may still marry a Shifchah!
According to Rashi, it is clear why the master is forced to give his Eved a Get Shichrur. Once the Eved becomes Hefker he is unable to marry anyone, Jewess or Shifchah. As such, he is unable to fulfill the Mitzvah of Piryah v'Rivyah, and therefore his master is forced to free him completely. According to Tosfos, however, who maintains that the Eved is still permitted to marry a Shifchah and to fulfill the Mitzvah of Piryah v'Rivyah with her, why should the master be forced to give a Get Shichrur to the Eved he was Mafkir?
The PNEI YEHOSHUA answers that according to Tosfos, the reason the master is forced to free his Hefker Eved is not that the Eved has no other recourse, but due to a different principle -- "Kofin Alav Al Midas Sedom." That is, whenever one person stands to lose nothing by giving some benefit to a second person ("Zeh Neheneh (this one benefits) v'Zeh Lo Chaser (and this one loses nothing)"), the first person is forced to give that benefit to the second person. Since the master was already Mafkir his Eved, he loses nothing by giving his Eved a Get Shichrur. On the other hand, his Eved can only gain by receiving a Get, because he will then become a full-fledged Jew, obligated to fulfill all of the Mitzvos like every other Jew. This is why, according to Tosfos, the Gemara says that the master is forced to free his Eved with a Get Shichrur.
(The MINCHAS CHINUCH (#347) points out that the obligation to fulfill all of the Mitzvos and the prohibition against marrying a Shifchah are concomitant. Once the Eved becomes prohibited to a Shifchah, he becomes obligated to observe all of the Mitzvos. Therefore, according to Rashi, just as the Eved becomes prohibited to a Shifchah through becoming Hefker, he also becomes obligated to observe all of the Mitzvos like every Jew. The only reason he needs a Get Shichrur is to permit him to marry a Jewess. Tosfos, however, maintains that he is permitted to a Shifchah when he becomes Hefker, and thus he is not yet obligated to observe all of the Mitzvos until he receives a Get Shichrur.)
3) GIVING A GET SHICHRUR AFTER THE DEATH OF THE MASTER
QUESTION: Ameimar and Rav Dimi disagree about the Halachah in a case in which a master was Mafkir his Eved and then died. Their dispute revolves around whether the master is able to bequeath to his sons his Kinyan on the Eved with regard to the Eved's Isurim without bequeathing to them a Kinyan on the monetary ownership of the Eved (since he was Mafkir the Eved with regard to the monetary ownership). The Gemara rules like Rav Dimi who says that the master is able to bequeath to his sons the Kinyan of the Eved with regard to his Isurim without the Kinyan of monetary ownership. The sons who inherit the Eved must give the Eved a Get Shichrur to free him.
Why do the sons need to give the Eved a Get Shichrur? The Gemara earlier (39a) teaches that just as a Get Shichrur frees an Eved, so, too, does the death of his master. Why, when the master was Mafkir his Eved (retaining ownership with regard to the Eved's Isurim) and then died (effectively freeing the Eved completely), must the sons give the Eved a Get Shichrur?
(a) TOSFOS (DH Ha Amrah) says that the Eved indeed is completely free without the Get Shichrur since the master died. The only reason why the sons need to give him a Get Shichrur is so that the heirs will not be able to claim later that the Eved belongs to them, since not everyone is aware that an Eved goes free at the death of his master. (See also ROSH.)
(b) A similar question may be asked about the case later in the Gemara, in which a master sold his Eved to a Nochri and then died, and then the second owner (the Nochri) died. Ravina required the heirs of the original owner to give a Get Shichrur to the Eved (since he ruled that they inherit from their father the Kinyan Isurim of the Eved, as explained above). Why, though, did they need to give him a Get Shichrur? Once the original owner died, the Kinyan Isur on the Eved was removed, and the only thing that remained was a monetary Kinyan on the Eved in the hands of the Nochri. That monetary Kinyan was removed at the moment the Nochri died, and the Eved should be completely free!
The ROSH answers that as long as the Eved is not in the domain of the original owner, it is not possible for the original owner to free the Eved (either by giving him a Get Shichrur or through his death). Shichrur can be given only by the Eved's master, and the original owner is no longer considered his master since he does not own the Eved with a monetary Kinyan. When the original owner dies, therefore, his death does not serve as Shichrur for the Eved with regard to the Kinyan Isur. That is why, when the Nochri dies, the sons of the original owner need to give the Eved a Get Shichrur.
Similarly, when the master was Mafkir his Eved and then died, his death does not serve to free the Eved with regard to the Eved's Isurim, and therefore the sons who inherit the Kinyan Isur must give him a Get Shichrur.