QUESTIONS: The Gemara proves that a Nochri inherits the property of his father mid'Oraisa from the verse that states that Hash-m gave Har Se'ir to Esav as a Yerushah (Devarim 2:5). The Gemara rejects this proof on the grounds that a Nochri is not the same as a Jewish apostate (like Esav), and a Nochri does not inherit his father's property. As the Rosh writes, "A Jew who sinned is still a Jew." The Gemara therefore cites another verse to prove that a Nochri inherits his father's property.

(a) If the Gemara considers Esav a Jew, why does it attempt to prove from Esav's inheritance that a Nochri has Yerushah?

(Although the Rishonim and Acharonim discuss whether the Avos had the status of Bnei Noach or Bnei Yisrael (see PARASHAS DERACHIM #1, and RAMBAN, end of Parshas Emor), the Gemara, in its attempted proof, does not seem to consider the Avos to be Bnei Noach, since the Gemara's proof is specifically from Esav and not from the Avos. In fact, the Ramban cites this Gemara as proof that the Avos had the status of Bnei Yisrael.)

(b) Moreover, why does the Gemara consider Esav a Jew? Does it also consider all of his descendants Jews? If his descendants are not Jews because he married Nochriyos, how can he bequeath his property (such as Har Se'ir) to his children, even if he was a Jew? They should not be able to inherit from him because they are Nochrim! (MAHARIT, RASHASH)

(a) The RAMA MI'PANO (Ma'amar Chikur Din, end of 2:22) writes that Esav certainly was not a Jew. The Gemara's initial proof was correct. When the Gemara says that perhaps Esav was a Jew, it does not mean that he indeed was a Jew, but merely that no proof can be adduced from Esav that a Nochri inherits from his father. To refute the proof, even a weak refutation ("Dechiyah b'Alma") suffices.

Perhaps one may add that the Gemara here alludes to the logic which Rava uses at the end of the Sugya. Rava suggests that even if a Nochri does not inherit property, perhaps the close relatives of Avraham Avinu were granted an inheritance out of deference for Avraham Avinu. When the Gemara says that Esav was a Jewish apostate, it means that a Nochri-grandson of Avraham might have received an inheritance out of deference for Avraham. The Gemara therefore proceeds to prove from Lot that a Nochri inherits property, because Lot's relationship to Avraham Avinu (his nephew) was more distant than Esav's (his grandson).

(b) How does the Gemara understand the verse that says that Har Se'ir was given as an inheritance to Esav? Does it mean that Esav bequeathed it to his children, or that Esav himself inherited it from his father? The ROSH explains that it means that Esav gave Har Se'ir to his children as an inheritance. However, RASHI on this verse explains that Esav received it as an inheritance from his father.

According to Rashi, the Gemara here means that when Esav received Har Se'ir, he still had the status of a Jew. The BRISKER RAV (Parshas Toldos) explains why Esav had the status of a Jew:

Although Esav was excluded from being an heir to Avraham's spiritual legacy, Esav was not cast away from the Jewish people the same way that Yishmael was. Yishmael never had a role in the Jewish people. From the start, he was considered "Ben ha'Amah," the son of Hagar the maidservant, and not the son of Sarah. In contrast, Esav had a role in the Jewish people; he had the potential to become part of Klal Yisrael. Hash-m told Avraham, "b'Yitzchak Yikarei Lecha Zera" (Bereishis 21:12), which implies "'b'Yitzchak' v'Lo Kol Yitzchak" -- part of Yitzchak's progeny will be considered your children, but not all of them (see Nedarim 31a). Hash-m, however, did not inform Avraham Avinu which part of his progeny would be his spiritual heir. Only later would it be determined which son would be Avraham Avinu's spiritual heir. Yitzchak was given two lands to bequeath to his sons: Eretz Yisrael to the son who would be Avraham Avinu's spiritual heir, and Har Se'ir to the other son. He would determine which son would receive Eretz Yisrael and be the spiritual heir of Avraham Avinu at the time that he would give the blessing to his firstborn son. Rivka understood the importance of Yitzchak's blessing and therefore intervened to ensure that Yakov would receive the blessing and become the spiritual heir of Avraham.

Hence, at the moment Esav received Har Se'ir his status as a Ben Yisrael had not yet been determined. Only after that moment was the decision made to exclude him from the Jewish people because of his apostasy. For this reason the Gemara here states that he was able to receive Har Se'ir as an inheritance because he was a Yisrael Mumar, a Jewish apostate, since it was only after he received the inheritance that he lost his status of a Ben Yisrael. (M. Kornfeld)

QUESTIONS: The Beraisa teaches that certain laws apply to an Eved Ivri but not to an Amah Ivriyah: an Eved Ivri goes free after six years, he goes free at Yovel, and he goes free upon the death of his master. The Gemara asks why the Beraisa says that these laws do not apply to an Amah Ivriyah, when the Mishnah (14b) itself implies that they do apply to an Amah Ivriyah. The Gemara answers that the Beraisa refers to an Amah Ivriyah who was married through Yi'ud. One might have thought that the laws of an Amah Ivriyah continue to apply to her, and thus she leaves the husband at six years or at Yovel. Therefore, the Beraisa teaches that she does not leave at six years or at Yovel.

RASHI explains that when the Gemara suggests that the laws of six years and Yovel may apply to an Amah Ivriyah after Yi'ud, it means that if she wants to leave her husband at six years or at Yovel without a Get, she may do so.

(a) Why does Rashi write that if she "wants" to leave her husband at six years or Yovel, she may do so? If, as the Gemara suggests, one might have thought that Yi'ud does not affect the laws of going free at six years and at Yovel, the Amah should be required to leave at six years or at Yovel. She should not be "permitted" to leave merely if she so desires. (TAL TORAH; DEVAR SHMUEL in the name of RAV SHMUEL ROZOVSKY)

(b) Why does the Beraisa state that an Amah Ivriyah is not freed upon the death of her master after Yi'ud? Once Yi'ud is performed, she is married to the master. Just as a wife is no longer bound to her husband after his death, the Amah should no longer be bound to her master after his death! (TOSFOS RID, BEIS MEIR)

(a) The TAL TORAH answers that if she would go free after six years whether or not she wants to, the Kidushin of Yi'ud would not take effect in the first place since it would be a "Kidushin l'Zman," a temporary Kidushin which does not take effect (see Nedarim 30a).

However, it is not clear that the limitation of "Kidushin l'Zman" applies to Yi'ud, since Yi'ud is a Gezeiras ha'Kasuv and is not an ordinary form of Kidushin.

Alternatively, perhaps Rashi is bothered by the words of the verse (Shemos 21:11) which clearly imply that the Amah goes free without the master actively freeing her only when no Yi'ud was performed. Rashi explains that the Gemara assumes that if Yi'ud was not performed, the Amah goes free whether she wants to or not. If Yi'ud was performed, although she may remain his wife if she prefers, she also may opt to end the marriage.

(b) Why does the Beraisa state that an Amah Ivriyah is not freed with the death of the master after Yi'ud, if every wife is released from the bond of marriage upon her husband's death? The TOSFOS RID answers that an Amah Ivriyah can become Meyu'edes to the son of the master. In such a case, she does not go free with the death of the master. Alternatively, if the master dies without children, she does not go free upon his death because she is obligated to perform Yibum with his brother.

The Acharonim propose another answer. They point out that it is odd that the Beraisa omits a basic difference between an Eved Ivri and an Amah Ivriyah after Yi'ud -- the law that an Eved Ivri goes free with Gira'on Kesef, which does not apply to a Meyu'edes (see ATZMOS YOSEF). Indeed, the Beraisa as recorded in the Sifri includes the law that an Eved Ivri goes free with Gira'on Kesef, and it omits the law that the Eved Ivri goes free with the death of his master.

The Acharonim therefore suggest that there is an error in the wording of the Beraisa. Perhaps the text of the Beraisa here should be corrected to match the text as it appears in the Sifri. Accordingly, the Beraisa does not mention that an Eved Ivri goes free with the death of the master while a Meyu'edes does not. Both indeed go free with the death of the master. (RASHASH, BEIS MEIR)

QUESTION: The Gemara discusses whether Yi'ud creates only Erusin or also Nisu'in. The Gemara proves from a Beraisa that Yi'ud creates Erusin and not Nisu'in. The Beraisa states that a "widow" may be sold as an Amah Ivriyah by her father. How can a father sell his daughter who is a widow? Once a father has accepted Kidushin on behalf of his daughter, he may no longer sell her as an Amah Ivriyah even if her husband dies and she returns to his home. It must be that the Beraisa refers to a case in which the father did not marry off his daughter, but rather sold her as an Amah Ivriyah to a master who then married her through Yi'ud. Since Kidushei Yi'ud is not the same as a normal act of Kidushin (according to the opinion that the Yi'ud does not take effect retroactively from the time the master gave the money to the father), the father may sell her again as an Amah Ivriyah after she returns to his domain upon the death of her master. If Yi'ud creates Nisu'in, however, the daughter would not return to her father's domain after the death of her master and he would not have the right to sell her again. It is clear from the Beraisa that Yi'ud creates only Erusin.

The Gemara questions this proof. Perhaps Yi'ud does create Nisu'in, but the Nisu'in it creates is not the ordinary form of Nisu'in. Just as the Erusin which Yi'ud creates is not the same as a normal Erusin and the father may sell her as an Amah again after the Erusin of Yi'ud, perhaps the Nisu'in which Yi'ud creates is not the same as a normal Nisu'in and thus the father may sell her as an Amah again after the Nisu'in of Yi'ud.

The Gemara rejects this argument and says that although there are different types of Erusin, there cannot be different types of Nisu'in. Once any form of Nisu'in has taken effect, the father no longer has any rights over his daughter.

RASHI explains that after Erusin the daughter is still in her father's domain. The only reason why the father may not sell her after Erusin is the Gezeiras ha'Kasuv which states that he may not sell her after he accepts Kidushin for her. When the master performs Yi'ud without asking the father for his consent, perhaps the father is still able to accept Kidushin for her. Nisu'in, however, completely removes the daughter from the father's domain, and thus the father no longer has any right to sell her.

What is the Gemara's initial assumption when it attempts to compare Nisu'in to Erusin? It is obvious that Nisu'in differs from Erusin because it removes her from her father's domain. Accordingly, if Yi'ud creates Nisu'in, clearly the father may no longer sell her as an Amah Ivriyah. Why does the Gemara entertain the possibility that he may sell her after the Nisu'in of Yi'ud?

ANSWER: There are two ways to understand the Halachah that a father may not sell his daughter after he has accepted Kidushin for her. According to one approach, a Gezeiras ha'Kasuv limits the father's right to sell his daughter as an Amah. (In this case, the Halachah may be understood as follows. The Torah allows the father to sell his daughter as an Amah because it is to her advantage to have someone provide for her and take care of her needs if the father is unable to do so. If the father marries her off, it shows that he considers her mature enough to take care of herself and to manage a household. If the daughter is deemed mature enough to be married, she no longer would derive benefit by being sold as an Amah since she does not need someone to take care of her.)

A second way of understanding this Halachah is that just as Nisu'in removes the daughter from the father's domain, Kidushin removes the daughter from his domain to a limited extent. Kidushin removes the daughter from the father's domain only with regard to his ability to sell her as an Amah (and with regard to his ability to annul her vows).

RASHI's words (DH bi'Shlama) imply the first way of understanding, while TOSFOS (DH bi'Shlama) seems to follow the second approach.

HE'OROS B'MASECHES KIDUSHIN suggests that even according to Rashi, the Gemara initially understands that Erusin is a form of Yetzi'ah, exiting, from the domain of the father, like Nisu'in, and thus it assumes that Erusin and Nisu'in of Yi'ud are comparable. If the Erusin of Yi'ud is not a form of Yetzi'ah, the Nisu'in of Yi'ud is also not a Yetzi'ah. According to Rashi, the Gemara answers that the reason why the father may not sell his daughter after Kidushin is not that Kidushin is a form of Yetzi'ah which removes her from his domain, but rather it is the Gezeiras ha'Kasuv that limits the conditions under which he may sell her. Hence, Erusin created by Yi'ud may be different since the father did not accept Kidushin for her (and thus he did not show that he considers her mature enough to become married).

According to Tosfos, the Gemara answers that even if Erusin is a form of Yetzi'ah, it is a novel form of Yetzi'ah, a "Chidush," since it is considered a Yetzi'ah only with regard to the father's right to sell her and not in any other way. Since it is a Chidush, it is limited to the very specific case of a father who accepts Kidushin for his daughter, and it does not apply to Erusin created through Yi'ud. In contrast, Nisu'in's removal of the daughter from her father's domain is not a Chidush since it removes her from his domain entirely. Therefore, Nisu'in created by Yi'ud also should remove her entirely from his domain. (See Tosfos.)

QUESTION: The Gemara discusses whether Yi'ud creates only Erusin or also Nisu'in.

Why should Yi'ud create Nisu'in? When the master performs Yi'ud, he says to the Amah, "Harei At Mekudeshes Li" (19b), the standard formula for Kidushin. Since Yi'ud is a form of Kidushin, why should it create Nisu'in? No other form of Kidushin creates Nisu'in.

ANSWER: The Gemara proposes that Yi'ud creates Nisu'in because Nisu'in is normally accomplished by the act of bringing the woman into the man's home. In the case of an Amah Ivriyah, the Amah already lives in her master's home. Therefore, at the moment he performs Yi'ud, perhaps both Erusin and Nisu'in should take effect. On the other hand, since she did not enter the master's home originally in order to be his wife, perhaps she still requires a Chupah for Nisu'in. (See SHITAH LO NODA L'MI, PNEI YEHOSHUA, and CHIDUSHEI RABEINU CHAIM HA'LEVI).

The PNEI YEHOSHUA adds that the verse (Shemos 21:10) supports the opinion that Yi'ud creates Nisu'in, because after it mentions Yi'ud it teaches that the master must provide his wife with "She'er, Kesus, and Onah," all of which are the obligations of Nisu'in.