12th CYCLE DEDICATION
GITIN 41 - dedicated by Rav Gedalya Weinberger of Brooklyn, N.Y., in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger, whose Yahrzeit is 18 Adar. Reb Chaim Tzvi, who miraculously survived the holocaust, raised his children with a strong dedication to Torah and its study.

1) A SLAVE DESIGNATED AS A SECURITY FOR A LOAN AND THEN FREED
QUESTION: The Mishnah (40b) discusses the case of a person who borrowed money and designated his Eved as security for the debt ("Apotiki") so that when repayment is due, the lender would take the Eved as repayment for his loan. The Eved was then freed. The Tana Kama and Raban Shimon ben Gamliel disagree about the exact procedure in such a situation.
The Gemara cites two explanations for the dispute in the Mishnah. Rav explains that the Mishnah refers to a case in which the original owner (the borrower) frees his Eved. By freeing his Eved, he removes ("Mafki'a") the lien ("Shibud") of the lender (the "second owner") from the Eved. Although the Eved is actually free, the Chachamim were concerned that the lender will try to claim the Eved as repayment for his debt, and as a result people will think that he is an Eved and besmirch his reputation. Therefore, the Chachamim required the lender to write a Get Shichrur to the Eved so that it is clear to all that he is not an Eved.
The Tana Kama maintains that the borrower -- who is the original owner of the Eved -- is exempt from paying back his debt (since he made the Eved an explicit "Apotiki" and the Eved is now free and is no longer his). The former Eved, however, must pay the lender for his freedom. Raban Shimon ben Gamliel argues and maintains that the borrower must pay the entire amount of the debt to the lender.
According to Rav, the dispute between the Tana Kama and Raban Shimon ben Gamliel is whether or not a person is liable for damaging the Shibud of another person. If one damaged a Shibud (an item owned by one person but on which another person has a lien), is it considered as though he damaged the actual property of the holder of the lien and must therefore compensate for the damage, or does the requirement to pay compensation for damages apply only when one damages an item under one's actual, physical ownership, and not just collateralized to him (since it is not considered owned by him yet)? The Tana Kama maintains that when the borrower freed his Eved and thereby "damaged" the Shibud of the lender, that form of damage is not considered damage for which he is liable to pay. Raban Shimon ben Gamliel maintains that it is considered damage, and thus the borrower must pay the lender for damaging his Shibud (i.e. freeing the Eved).
Ula explains that the lender gave the Eved (who was the "Apotiki" for the loan) a Get Shichrur. The Shichrur should really have no validity since the lender is not yet the owner of the Eved. However, since he gave the Eved a Get Shichrur, word has gone out that the Eved is now a free man, and thus the original owner of the Eved must free him. Since the lender's "Shichrur" of the Eved requires that the borrower give the Eved a real Get Shichrur, this might be considered an act of damage on the lender's part. The Tana Kama maintains that the lender is exempt from compensating the original owner of the Eved (the borrower). However, the Eved must pay to the original owner -- in return for his freedom -- the difference between the sum of the loan and his worth as an Eved (for example, if the loan was 100, and the Eved was worth 300, the Eved must pay 200 to the owner). Raban Shimon ben Gamliel argues and maintains that the Eved is completely exempt (since he did no damage to anyone), and that the lender must pay the borrower restitution for the loss of his Eved that he caused.
According to Ula, the dispute between the Tana Kama and Raban Shimon ben Gamliel is whether or not unrecognizable damage ("Hezek she'Eino Nikar") is considered damage for which one must pay restitution. According to the Tana Kama, such an act of damage is not considered damage for which one must pay, and therefore the lender who caused the Eved to be freed is exempt. According to Raban Shimon ben Gamliel, the lender is considered a "Mazik" and must pay restitution to the borrower, even though the damage that he did is not readily noticeable.
Why, though, is causing an Eved to become free considered damage that is not recognizable, "Hezek she'Eino Nikar"? It must be because no actual damage or change in the object (the Eved) is evident. If this is the reason for why the Shichrur of an Eved is considered "Hezek she'Eino Nikar," why is it so obvious to the Gemara's first explanation (that of Rav) that Raban Shimon ben Gamliel -- who says that when the owner of the Eved (the borrower) frees his Eved he must pay the lender -- maintains that one is liable for damaging the Shibud of another person? If freeing one's Eved is "Hezek she'Eino Nikar," why is it so obvious that the borrower is obligated to pay the lender for that damage? It should depend on the Machlokes which the Gemara cites in the second explanation, whether one is liable for "Hezek she'Eino Nikar" or not. However, from the text of the Gemara it seems that the two explanations are unrelated.
ANSWER: It must be that the reason why causing the Shichrur of the Eved is considered "Hezek she'Eino Nikar" is not, as mentioned above, that the Shichrur itself (the Eved becoming free) is not recognizable. Rather, the Shichrur is recognizable even though no physical damage or change occurred. Since Shichrur involves the removal of the master's ownership from the Eved, it is considered a Hezek that is recognizable. This is because the act -- and consequences -- of Shichrur are evident to all, for whoever sees the owner give his Eved a Get Shichrur sees a loss being caused to the lender. This is what the first explanation of the Gemara assumes, and this is why it is obvious that the Shichrur of the Eved is a Hezek that is recognizable.
In contrast, according to the second explanation of the Gemara, the Shichrur which the lender gave to the borrower's Eved should not take effect at all, because the Eved does not belong to the lender. It is only valid due to a Takanah d'Rabanan (as described above). As such, the act itself which the lender did has no power to free the Eved and is therefore considered "Hezek she'Eino Nikar." (It is "Eino Nikar" either because it is not evident to all that there is a Takanah d'Rabanan which requires the owner to free his Eved as a result of the act of the lender, or because the act itself is not an actual Shichrur but merely an indirect cause for the Shichrur, and thus it is "Hezek she'Eino Nikar.") (A. KRONENGOLD)
2) THE OBLIGATION OF THE SLAVE TO PAY FOR HIS FREEDOM
QUESTION: The Mishnah (40b) discusses the case of a person who borrowed money and designated his Eved as security for the debt ("Apotiki") so that when repayment is due, the lender would take the Eved as repayment for his loan. The Eved was then freed. The Tana Kama and Raban Shimon ben Gamliel disagree about the exact procedure in such a situation.
The Gemara cites two explanations for the dispute in the Mishnah (see previous Insight). In the second explanation, Ula explains that the lender gave the Eved (who was the "Apotiki" for the loan) a Get Shichrur. The Shichrur should really have no validity since the lender is not yet the owner of the Eved. However, since he gave the Eved a Get Shichrur, word has gone out that the Eved is now a free man, and thus the original owner of the Eved must free him. Since the lender's "Shichrur" of the Eved requires that the borrower give the Eved a real Get Shichrur, this might be considered an act of damage on the lender's part. The Tana Kama maintains that the lender is exempt from compensating the original owner of the Eved (the borrower). However, the Eved must pay to the original owner -- in return for his freedom -- the difference between the sum of the loan and his worth as an Eved (for example, if the loan was 100, and the Eved was worth 300, the Eved must pay 200 to the owner).
Although the original owner (the borrower) no longer needs to pay the lender since the Eved (the "Apotiki") is no longer in his possession, the Eved must pay for what he gained -- his freedom. He only needs to pay the difference between his value (300) and the loan (100) since the owner anyway would have had to pay the value of the loan (100), and thus the difference (200) is the Eved's gain.
Raban Shimon ben Gamliel argues and maintains that the Eved is completely exempt (since he did no damage to anyone), and that the lender must pay the borrower restitution for the loss of his Eved that he caused.
Why is it so clear to Raban Shimon ben Gamliel that only the lender must pay and not the Eved? It is true that the lender caused the Hezek, but the Eved is the one who receives a benefit for which he should have to pay. The Eved is left with part of the loss which the lender caused (100) and he should have to pay for what he gained (200). It would be more appropriate to make the lender lose the amount of the loan (100) and not have to pay for the loss of the Eved, and to make the Eved pay for the rest (200), as the Tana Kama says. (See TORAS GITIN.)
ANSWER: The AYELES HA'SHACHAR offers the following explanation of the difference between the acquisition of freedom (as in the case of the Mishnah) and the acquisition of money or other possessions. When one acquires or gains money or possessions, the beneficiary is in possession of some sort of monetary asset for which he should be required to pay. In contrast, when an Eved turns into a free person, there is no identifiable tangible asset. It is true that yesterday he was an Eved and today he is free, but he is not considered to possess or own himself like he possesses or owns a tangible object. Rather, he is considered as having left the entire state of being owned. A free person is not property that is owned by someone (even himself), but rather he is a person, and a person cannot be owned.
Therefore, the freed Eved is not viewed as owning anything as a result of the Shichrur, and he cannot be required to pay for a new asset in his possession.
The obligation that the Tana Kama describes is only a Chiyuv d'Rabanan, instituted in order to save the original owner from a significant loss due to the Takanah d'Rabanan that the Eved not be mistaken for a free person (as a result of the lender's act of Shichrur). (A. KRONENGOLD)

41b----------------------------------------41b

3) THE STATUS OF A PERSON WHO IS HALF-SLAVE, HALF-FREE
OPINIONS: The Mishnah discusses the status of a person who is half-slave and half-free ("Chatzyo Eved v'Chatzyo Ben Chorin"). Beis Hillel originally ruled that the slave is to work for his master half of the time and for himself half of the time (he alternates days for whom he works). Although this arrangement suits the dual monetary ownership of the slave, it does not resolve the dilemma posed to the slave's nuptial status: a half-slave, half-free man cannot marry any woman; he cannot marry a Shifchah (maidservant) because of the half-free part of him, and he cannot marry a free Jewess because of the half-slave part of him. For this reason, Beis Shamai disagreed with Beis Hillel and required that the master free his portion of the slave in order to enable the slave to fulfill the Mitzvah of Piryah v'Rivyah.
The Mishnah relates that Beis Hillel retracted his original opinion and accepted the ruling of Beis Shamai.
When the Mishnah says that the slave is obligated to fulfill the Mitzvah of Piryah v'Rivyah, which part of him is obligated? Is only the part of him that is free obligated, or is even the part of him that is a slave obligated to fulfill Piryah v'Rivyah? (See following Insight for why a slave may have an obligation of Piryah v'Rivyah.)
(a) In order to answer this question, it is necessary to examine the source for the Mitzvah of Piryah v'Rivyah. Two verses refer to the Mitzvah of Piryah v'Rivyah. The first verse states, "Peru u'Revu" -- "Be fruitful and multiply" (Bereishis 1:28). The second verse states, "He did not create it in vain; He fashioned it to be inhabited (la'Sheves)" (Yeshayah 45:18). This is the verse quoted by the Mishnah.
The RIVAM (quoted by TOSFOS DH Lo) maintains that the two halves of the person who is a half-slave have two separate obligations. The free part of him is obligated to fulfill the basic Mitzvah of Piryah v'Rivyah, while the slave part of him is obligated only to fulfill "la'Sheves." (The free part of him certainly is obligated to fulfill that element as well. The difference is that the slave part of him is only obligated to fulfill the concept of "la'Sheves" but not the actual Mitzvah of Piryah v'Rivyah.)
The Rivam adduces support from the wording of the Mishnah. If the reason why the master must free the half-slave is to enable him to fulfill the Mitzvah of Piryah v'Rivyah, why does the Mishnah not quote the verse in Bereishis which is the source for the Mitzvah of Piryah v'Rivyah? It must be that the Mishnah prefers to quote a verse which is relevant to both parts of the half-slave, half-free person. Since a slave is not obligated to fulfill the Mitzvah of "Peru u'Revu," the Mishnah cites the verse of "la'Sheves."
(b) TOSFOS in Chagigah (2b, DH Lo) disagrees with the Rivam. He asserts that a Jewish slave is obligated to fulfill the Mitzvah of Piryah v'Rivyah. Tosfos infers from the wording of the Mishnah, "[Lo Nivra ha'Olam Ela] l'Piryah v'Rivyah," that the Mitzvah of Piryah v'Rivyah applies even to the part of the person which is a slave.
How, though, does Tosfos refute the proof of the Rivam? Tosfos explains that the Mishnah cites the verse of "la'Sheves" because that verse teaches the great importance of the Mitzvah when it says that the Mitzvah of Piryah v'Rivyah is one of the primary purposes of Hash-m's creation of the world. (See also Insights to Chagigah 2:4.)
4) WHY IS A SLAVE COMMANDED TO FULFILLED THE MITZVAH OF "PIRYAH V'RIVYAH"
QUESTION: The Gemara teaches that an Eved Kena'ani's obligation to observe the Mitzvos is equivalent to a woman's obligation, as derived from the Gezeirah Shavah of "Lah Lah." The Gemara in Yevamos (65a) clearly states that a woman is exempt from the Mitzvah of Piryah v'Rivyah. Why, then, is an Eved obligated in the Mitzvah of Piryah v'Rivyah? Why should this Mitzvah be different from all other Mitzvos, which an Eved is obligated to observe only if a woman is obligated?
ANSWERS:
(a) The PNEI YEHOSHUA explains that the comparison of an Eved's obligation of Mitzvos to a woman's obligation is not absolute. There is a difference between certain types of Mitzvos. One type of Mitzvah from which a woman is exempt is a Mitzvah which depends on a specific time ("Mitzvas Aseh sheha'Zeman Gerama"). This exemption is a Gezeiras ha'Kasuv, derived from verses in the Torah (see Kidushin 34b). Another type of Mitzvah from which a woman is exempt is a Mitzvah which a woman does not have the capability to fulfill (such as the Mitzvah of Milah and the prohibition against shaving one's beard). A woman obviously has no obligation to fulfill such Mitzvos.
The Pnei Yehoshua asserts that the Gezeirah Shavah which equates an Eved to a woman applies only to the Mitzvos that a woman could perform but is exempted by the Torah. In contrast, the Gezeirah Shavah does not apply to Mitzvos which a woman does not have the capability to perform, and thus an Eved is obligated to perform those Mitzvos. Since he has the capability to perform those Mitzvos, there is no reason to exempt him.
The reason why a woman is exempt from the Mitzvah of Piryah v'Rivyah is the logic of "Ish Darcho Lichvosh v'Ein Ishah Darchah Lichvosh" -- "it is the manner of a man to conquer, and not the manner of a woman to conquer" (Yevamos 65b). That logic applies only to a woman, and not to a male Eved, and thus the Gezeirah Shavah does not apply and an Eved remains obligated to perform the Mitzvah of Piryah v'Rivyah.
(b) The TUREI EVEN (Chagigah 4a) and MISHNEH L'MELECH (Hilchos Melachim 10:7) answer that the commandment of "Peru u'Revu" (Bereishis 1:28) was said to Adam ha'Rishon and should apply to all people, Jews and Bnei Noach alike. The Gemara in Sanhedrin (59b) states that Bnei Noach indeed were included in the Mitzvah of Piryah v'Rivyah -- until the Torah was given to the Jewish people at Har Sinai. At that time, all of the Mitzvos of the Torah were given exclusively to the Jewish people and were removed from Bnei Noach (unless the Torah specifically includes them). The Acharonim explain that the removal of the obligation of certain Mitzvos from Bnei Noach applies only to Bnei Noach who have no part in the Kedushah of Yisrael. An Eved Kena'ani, however, has a part in the Kedushah of Yisrael through the requirement that he undergo Milah and Tevilah when he becomes an Eved. Hence, the giving of the Torah at Har Sinai did not remove from him any of the Mitzvos that were originally given to Bnei Noach, since the Eved is part of the Jewish people to some degree. That is why the Mitzvah of Piryah v'Rivyah remains binding on the Eved.
According to this explanation, the Eved's obligation of Piryah v'Rivyah is a remnant of the original commandment to all Bnei Noach. It is not a result of the new obligation of Piryah v'Rivyah that was given to the Jewish people.
This explains why the Eved has a greater obligation than a woman with regard to Piryah v'Rivyah. While it is true that the Gezeirah Shavah teaches that an Eved should have the same obligations as a woman, his obligation in Piryah v'Rivyah is not related to the Mitzvah given to the Jewish people. Rather, it is an obligation incumbent upon him as a Ben Noach.

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