KIDUSHIN 16-17 - sponsored by Asher and Etti Schoor of Lawrence, NY. May they be blessed with a year filled with the joy of the Torah and see their children continue to grow in Avodas Hashem.
1) WHICH IS A STRONGER KINYAN: SHTAR OR CHAZAKAH
QUESTION: The Gemara proves from verses that only one of the two Kinyanim, Shtar or Chazakah, may be used to acquire an Amah Ivriyah (according to Rav Chisda). The Gemara suggests that although each of these Kinyanim has an element of superiority over the other (a Shtar is the only Kinyan that may be used to divorce a woman, and a Chazakah is the only Kinyan that may be used to take possession of the property of a Ger who died with no heirs), it is more logical that a Shtar works to acquire an Amah Ivriyah because there is no precedent for a Chazakah applying in situations of Ishus (issues related to marriage).
Why does the Gemara eliminate the possibility that a Chazakah may be used to acquire an Amah Ivriyah based on the fact that a Chazakah is never used in situations of Ishus? The acquisition of an Amah Ivriyah is not a situation of Ishus! Although an Amah Ivriyah can become married later through Yi'ud, the Gemara earlier (5a-5b) makes it clear that an Amah Ivriyah is not considered a matter of Ishus. (See TOSFOS 5a, DH she'Ken Yeshnan.)
(a) The RITVA explains that despite the fact that the acquisition of an Amah Ivriyah is not a matter of Ishus, the Gemara proves that a Shtar is a stronger Kinyan than a Chazakah from the fact that a Shtar not only brings land into a person's possession by making it his and removes it from his possession by making it Hefker, it also creates and removes Isurim in matters of Ishus. A Chazakah, in contrast, cannot make land Hefker and remove it from a person's possession.
(b) The TOSFOS RID emends the text of the Gemara and omits the words, "We do not find it (Chazakah) in a case of Ishus." He explains that the second answer of the Gemara is the only answer.
(c) The TOSFOS CHOCHMEI ANGLIYAH write that an Amah Ivriyah is considered a case of Ishus because of the master's right to perform Yi'ud with her. They do not address the question from the Gemara earlier, which clearly understands that an Amah Ivriyah is not considered a case of Ishus. Perhaps they mean that an Amah Ivriyah has a minimal degree of Ishus, but not the same degree of Ishus as Kidushin. The Gemara earlier compares Amah Ivriyah with Kidushin, while the Gemara here compares Shtar with Chazakah, and Chazakah applies only to land and not to cases of Ishus, even when the degree of Ishus is minimal.
Alternatively, the Tosfos Chochmei Angliyah may learn like TOSFOS
(5a, DH she'Ken) who explains that the Gemara earlier maintains that Yi'ud is performed with the value of the remainder of the servitude owed to the master, and not with the original money used to purchase the Amah Ivriyah. Accordingly, the original purchase of the Amah Ivriyah involves no element of Ishus. (See Insights to 19:1
.) The Gemara here, in contrast, may follow the opinion that Yi'ud is performed with the money used to purchase the Amah Ivriyah. According to that opinion, the purchase of an Amah Ivriyah certainly involves Ishus since the money used for her purchase might later be used to create Yi'ud.
2) REBBI SHIMON'S LIST OF RECIPIENTS OF "HA'ANAKAH"
QUESTION: The Gemara cites a Beraisa in which the Tana Kama states that gifts of Ha'anakah are given to an Eved who goes free after six years of servitude, to an Eved who goes free at Yovel, to an Eved Nirtza who goes free with the death of his master, and to an Amah Ivriyah who goes free with the appearance of Simanim (signs of maturity). Gifts of Ha'anakah are not given to an Eved who goes free with Gira'on Kesef. Rebbi Meir disagrees and maintains that even an Eved who goes free with Gira'on Kesef receives gifts of Ha'anakah. Rebbi Shimon adds that there are three cases of Ha'anakah for a man (an Eved who goes free at six years, an Eved who goes free at Yovel, and an Eved Nirtza who goes free at Yovel), and three cases of Ha'anakah for a woman (an Amah who goes free at six years, an Amah who goes free at Yovel, and an Amah who goes free with Simanim).
What does Rebbi Shimon intend to teach? He seems to repeat what the Tana Kama states, that an Eved who goes free with Gira'on Kesef does not receive gifts of Ha'anakah. Although Rebbi Shimon omits the death of the master, the Gemara earlier says that he omits it because he lists only those things which free an Eved and which come at a set time. (RAMBAN and other Rishonim)
(a) The RAMBAN and other Rishonim write that Rebbi Shimon indeed agrees with the Tana Kama. His intent is simply to point out that a man does not go free with Simanim and that a woman cannot become Nirtza. The TOSFOS HA'ROSH adds that Rebbi Shimon's intent is to point out that when a Nirtza goes free at Yovel, he also receives gifts of Ha'anakah.
(b) The TOSFOS RID writes that Rebbi Shimon argues with the Tana Kama and maintains that when the Eved goes free upon the death of his master, he does not receive gifts of Ha'anakah because the heirs have no obligation to pay their father's debt to the Eved.
The SEFER HA'MIKNAH suggests a logical justification for this ruling. The Tana Kama is Rebbi Yehudah, who normally maintains that a "Milveh Kesuvah ba'Torah k'Kesuvah b'Shtar Damya" (see beginning of 13b), and therefore such a debt may be collected from the heirs of the debtor. Rebbi Shimon, in contrast, maintains that a "Milveh Kesuvah ba'Torah" is not considered written in a Shtar, and therefore it cannot be collected from the heirs of the debtor.
(According to the Tosfos Rid, why does the Gemara say that the reason why Rebbi Shimon does not discuss the Eved's release upon the death of the master is that his death occurs at no predetermined time? The Gemara should say instead that Rebbi Shimon does not refer to the death of the master because he disagrees with the Tana Kama. (SHITAH LO NODA L'MI; see PNEI YEHOSHUA.))