KIDUSHIN 21 (30 Tishrei) - dedicated by Reb Mordechai Rabin (London/Yerushalayim) l'Iluy Nishmas his father, ha'Gaon Rav Gedalya Rabinowitz of Manchester, England (and in his later years, Bnei Brak, Israel). Hearing a Shiur of his was an unforgettable experience as can be attested to by his many Talmidim, both Bnei Yeshiva and Ba'alei Batim.
1) THE TYPE OF "MARTZE'A" USED TO PIERCE THE EAR OF AN "EVED NIRTZA"
QUESTION: The Beraisa states that according to Rebbi Yosi b'Rebbi Yehudah, the Martze'a (awl) used to pierce the ear of the Eved Nirtza may be any sharp object, while Rebbi maintains that it must be made from metal. The Beraisa continues, "Davar Acher" -- "another thing," and states that the word "ha'Martze'a" (Devarim 15:17) is intended to include ("l'Havi") the "large Martze'a." (The words "Davar Acher" seem to be extraneous, as the RASHASH points out. Indeed, these words do not appear in the text of the Rishonim here.)
Why is an extra word in the verse needed to teach that a large Martze'a may be used? The verse already teaches that any sharp object may be used (according to Rebbi Yosi b'Rebbi Yehudah) or any sharp metal object may be used (according to Rebbi).
(a) The TOSFOS HA'ROSH answers that one might have thought that a large Martze'a may not be used because it cuts rather than punctures due to its size. Therefore, the verse teaches that a large Martze'a nevertheless may be used.
(b) The RAMBAN and RITVA explain that the verse does not mean to teach that a large Martze'a is valid for use, but that a large Martze'a is preferable for use; it is a Mitzvah to use a large Martze'a. (The Ritva removes the word "l'Havi" ("to include," which implies that it is not the most preferable form of Martze'a) from the text of the Beraisa. His text is consistent with the Beraisa as it appears in the Sifri.)
The Ramban points out that this part of the Beraisa serves as an introduction to the next part in which Rebbi Elazar Yudan and the Chachamim disagree about where on the ear the Retzi'ah is performed. Rebbi Elazar Yudan maintains that the flesh of the ear is pierced, while the Chachamim maintain that the cartilage is pierced. The Chachamim prove that the cartilage is pierced from the Halachah that Retzi'ah may not be done to an Eved Ivri who is a Kohen, because the type of hole formed by Retzi'ah inflicts a blemish (Mum) which disqualifies a Kohen from performing Avodah. Since only a hole in the cartilage of the ear is considered a Mum, it must be that the Retzi'ah is done to the cartilage and not to the flesh. As an introduction to the proof of the Chachamim, the first part of the Beraisa teaches that a large Martze'a should be used for the Retzi'ah because the Mishnah in Bechoros (37b) teaches that a hole in the ear is considered a Mum only if it is the size of a "Karshinah," a bean. Only a large Martze'a would make a hole of that size and thereby render the Kohen a Ba'al Mum.
2) THE SOURCE THAT CERTAIN TYPES OF EVED CANNOT BECOME "NIRTZA"
QUESTION: Rav Nachman proves from the Beraisa that an Eved Ivri who is a Kohen may marry a Shifchah. In the Beraisa, the Chachamim rule that an Eved Ivri Kohen may not become Nirtza because the Retzi'ah will render him a Ba'al Mum and disqualify him from performing Avodah. Why do the Chachamim give this reason to exclude an Eved Ivri Kohen from Retzi'ah? The verse states that Retzi'ah may be done only to an Eved Ivri who is married to a Shifchah. If an Eved Ivri Kohen may not marry a Shifchah, that is the reason why Retzi'ah may not be done to him, and not because Retzi'ah will disqualify him from Avodah. It must be that an Eved Ivri Kohen is permitted to marry a Shifchah.
According to the Gemara's logic, why does the Gemara earlier (15a) need a separate source to teach that an Eved Ivri who sold himself may not become Nirtza? Since the Torah already teaches that an Eved Ivri who sells himself may not marry a Shifchah, he is automatically excluded from the Halachah of Nirtza! (TOSFOS 14b, DH v'Lo)
(a) TOSFOS and the TOSFOS HA'ROSH explain that although an Eved Ivri cannot marry a Shifchah, one might have assumed that the Gezeirah Shavah of "Sachir Sachir" compares him to an Eved sold by Beis Din and teaches that he can become Nirtza even though he cannot marry a Shifchah. Accordingly, an additional source is needed to teach that an Eved who sold himself cannot become Nirtza.
The Tosfos ha'Rosh cites proof for this answer from the Gemara earlier (17b) which derives from a verse that an Amah Ivriyah cannot become Nirtza. Why is a verse needed if an Amah Ivriyah cannot marry a Shifchah Kena'anis (or Eved Kena'ani)? It must be that one would have derived from the Hekesh which compares an Amah Ivriyah to an Eved Ivri sold by Beis Din that the Amah Ivriyah can become Nirtza even though she cannot marry an Eved Kena'ani.
The RASHBA (15a) refutes this proof. He explains that a verse is needed to exclude an Amah Ivriyah from the law of Nirtza, because without such a verse one would have derived that she is included in the law of Nirtza from the verse, "Af la'Amascha Ta'aseh Ken" (Devarim 15:16), as the Gemara earlier (17b) says.
(b) The SHA'AR HA'MELECH (Hilchos Avadim 3:3) suggests that although an Eved who sold himself cannot marry a Shifchah Kena'anis under ordinary circumstances, if the Eved who sold himself is a Mamzer he is permitted to marry a Shifchah (since a Mamzer is permitted to marry a Shifchah Kena'anis). Hence, perhaps the verse is needed to teach that even a Mamzer who sold himself cannot become Nirtza even when he is married to a Shifchah Kena'anis.
The Acharonim reject this answer. It is clear from the verse that the Eved's marriage to the Shifchah is part of the reason why he does not want to go free (since, when he goes free, he becomes prohibited to her). If the Eved is a Mamzer, he remains permitted to the Shifchah even when he goes free. His marriage to her, therefore, cannot be a reason for why he would choose to remain an Eved.
(c) The RITVA (14b) answers that although the master cannot force the Eved who sold himself to marry a Shifchah, the Eved is permitted to marry one if he wants.
The Ritva proves that an Eved who sold himself is permitted to marry a Shifchah voluntarily from the fact that he needs a Get Shichrur in order to go free. He needs a Get Shichrur because "Eved Ivri Gufo Kanuy," the "body" of the Eved is owned by the master (as the Gemara says on 16a). If an Eved Ivri who sold himself is not permitted to marry a Shifchah, in what way is his body owned by the master?
(The Ritva's assertion is difficult to reconcile with the verses. The verse that teaches that an Eved sold by Beis Din is permitted to marry a Shifchah also teaches that such an Eved is given a Shifchah against his will. Why does the Ritva exclude an Eved who sold himself from only half of what the verse teaches? Apparently, the Ritva understands that the fact that the Torah requires a Get Shichrur in order to free an Eved who sold himself is the source that such an Eved is permitted to a Shifchah.)
The Ritva's explanation is based on the RAMBAN's interpretation of the Gemara (16a) that states, "Eved Ivri Gufo Kanuy." The Ramban there asks, why does the Gemara say that the master must give the Eved Ivri a Get Shichrur because of the fact that the Eved Ivri's body belongs to the master? If the master has monetary ownership over the Eved's body, he should be able to send away the Eved without a Get Shichrur just as he may give away any of his other property or declare it Hefker.
The Ramban (cited by the RASHBA
) answers that a Kinyan ha'Guf of an Eved is not a monetary Kinyan but a "Kinyan Isur," similar to the Kidushin of a woman and the Kinyan of an Eved Kena'ani (see Insights to Gitin 40:3
). Just as the Kinyan of Kidushin of a woman and the Kinyan of an Eved Kena'ani has Halachic ramifications of Isur (the Kinyan of Kidushin prohibits the woman from marrying any other man, and the Kinyan of an Eved Kena'ani prohibits the Eved from marrying a Bas Yisrael), the Kinyan of an Eved Ivri has Halachic ramifications: it permits him to marry a Shifchah Kena'anis. Such a Kinyan cannot be annulled through a simple declaration of Hefker (which is an act that is effective only for a monetary Kinyan). Rather, it needs a proper Halachic annulment (a Get Shichrur).
The Ritva understands the Kinyan ha'Guf of an Eved Ivri as the Ramban does. He therefore wonders why an Eved who sold himself needs a Get Shichrur if there are no Halachic ramifications to his Kinyan. This question leads the Ritva to conclude that the Kinyan of an Eved who sold himself does have Halachic ramifications: it permits him to marry a Shifchah.
However, the RASHBA (16a) reaches the opposite conclusion. He writes that it seems, according to the Ramban's explanation, that an Eved who sold himself may indeed be sent away without a Get Shichrur. (Perhaps the Ritva maintains that the Gezeirah Shavah of "Sachir Sachir" teaches that an Eved who sold himself goes free only with a Shtar, and that his master has a Kinyan ha'Guf on him.)
RASHI and TOSFOS (16a) seem to understand that the Kinyan ha'Guf of an Eved Ivri is not necessarily a Kinyan of Isur, as the Ramban understands, but rather it is a monetary Kinyan. Indeed, the master may free his Eved Ivri without a Get Shichrur. When the Gemara says that the master cannot free the Eved unless he gives him a Get Shichrur, it means that he cannot forgive (with "Mechilah") the Eved Ivri's obligation to serve him, since that obligation is not simply a Shibud (a commitment that is forgivable) but it is part of the master's ownership of the Eved; he owns the Eved with regard to his services. Therefore, he must make a formal Kinyan to the Eved when he wants to give back the rights to his services. (See Rashi to 16a, DH Gufo Kanuy.)