1) THE PROHIBITION AGAINST "FORCING" A "YEFAS TO'AR"
OPINIONS: The Gemara derives from the verse, "And you shall take her into your house" (Devarim 21:12), that a Jewish soldier "may not force her (the Eshes Yefas To'ar) during war" -- "she'Lo Yilchatzenah ba'Milchamah."
To what does this verse refer? The Gemara earlier says that the purpose of the Halachah of Yefas To'ar is to permit the soldier to take the captive woman during wartime, and yet this verse implies that he is not permitted to take her.
(a) RASHI explains that the soldier may not force the woman to live with him during the war. Rashi implies that even the first act of Bi'ah is prohibited during war, and the Jewish soldier is not permitted to live with the Yefas To'ar until after she has completed her process of thirty days of mourning. Although the RAMBAN (on the Torah) points out that this seems to be the intention of the verse (Devarim 21:13) based on its straightforward reading, and TOSFOS and the Rishonim cite the Yerushalmi in which Rebbi Yochanan explicitly states such an opinion, the Gemara (21b) clearly differentiates between the first act of Bi'ah (the purpose of which is to appease the Yetzer ha'Ra) and the ensuing acts of Bi'ah. If the first act is not permitted until after the thirty-day mourning period when the woman's conversion is complete, what is the difference between the first act of Bi'ah and the other acts of Bi'ah? After thirty days have passed, she is his wife and all acts of Bi'ah are permitted!
TOSFOS, the TOSFOS HA'ROSH, and the other Rishonim explain that perhaps Rashi understands that the first act of Bi'ah is permitted after thirty days in order to ensure that during the war, the soldier's Yetzer ha'Ra will not overcome him. By informing him that he will be permitted to the woman later ("Pas b'Salo"), the Torah ensures that his Yetzer ha'Ra will not overcome him. In contrast, the subsequent acts of Bi'ah are not necessary to appease the Yetzer ha'Ra, for once the soldier knows that one Bi'ah will be permitted he already has "Pas b'Salo" and his Yetzer ha'Ra is appeased. The reason the Torah needs to permit her specifically after she undergoes conversion is, as Rashi here points out, that she converts against her will (like the conversion of an Eved Kena'ani).
(b) The RAMBAM (Hilchos Melachim 8:3) explains that "she'Lo Yilchatzenah ba'Milchamah" means that the soldier should not live with the Yefas To'ar during the throes of the battle, but rather he should take her to a private and secluded place away from the warfare and live with her there. Similarly, the RAMBAN (on the Torah) explains that he should take her into his home and live with her there even before her thirty-day process of mourning begins. He should not live with her in the battlefield.
(c) The SEFER YERE'IM cited by the Ramban and other Rishonim explains that "she'Lo Yilchatzenah ba'Milchamah" means that he may not force her to live with him against her will during wartime; only if she is willing is he permitted to live with her. This explanation conforms with Rashi's comments on the verse (Devarim 21:13), where he explains that during wartime the Nochri women would dress up in seductive clothing in order to allure the enemy. The Torah permits a soldier to live with a Yefas To'ar who uses such tactics. It does not permit a soldier to take a woman against her will, even during wartime. Some commentators point out that this may be the intention of Rashi here as well, who writes that the soldier should not force her to live with him; Rashi does not mean that he should not live with her at all during the battle, but that he should not live with her forcefully, against her will.
(d) RABEINU TAM cited by the Ramban and other Rishonim explains that "she'Lo Yilchatzenah ba'Milchamah" means that he should not live with her a second time during the war. Only the first Bi'ah is permitted during the war.
(e) TOSFOS explains in the name of RABEINU TAM that "she'Lo Yilchatzenah ba'Milchamah" means that he may not begin her thirty-day process of conversion during the war (in case the war lasts longer than thirty days). Rather, he must wait until the war ends (and he takes her home) before he may begin her thirty-day process of conversion.
2) WHEN MUST AN EVED STATE THAT HE WISHES TO REMAIN ENSLAVED?
QUESTION: The Gemara cites a Beraisa which teaches that an Eved Ivri must make two verbal requests to stay with his master in order to become Nirtza, one at the beginning of his six years of servitude and one at the end. The Gemara eventually concludes that the first request does not need to be made at the actual start of his servitude (since, at that point, he has not yet married or had children from a Shifchah Kena'anis and cannot declare that he loves his wife and his children), but rather at the beginning of (or some time before) the last Perutah's worth of work that he is obligated to do for his master. He makes his second request at the end of the last Perutah's worth of work.
The text of the Gemara as it appears in our edition is consistent with the Girsa which RASHI prefers. The Gemara derives from the verse, "Lo Etzei Chofshi" (Shemos 21:5), that the Eved must say that he wants to remain an Eved at the time he otherwise would go free (at the end of six years). The Gemara derives from the phrase, "Im Amor Yomar ha'Eved" (ibid.), that the Eved must say that he wants to remain an Eved at the beginning of his six-year servitude. Rashi explains that "Lo Etzei Chofshi" implies just before he goes free, and "Im Amor Yomar ha'Eved" implies while he is still an Eved (when he still has at least a Perutah's worth of work left to do).
Rashi cites a variant Girsa which expounds the verses in the opposite way and derives from "Im Omar Yomar ha'Eved" that the Eved must ask to remain an Eved at the end of his servitude, and from "Lo Etzei Chofshi" that he also must make his request at the beginning of his servitude (at the beginning of the last Perutah's worth of work).
Rashi writes that he has no way to reconcile this Girsa. It is illogical to derive from "Im Amor Yomar ha'Eved" that the Eved must make his request specifically when he goes free (at the end of the last Perutah's worth of work); the Torah would not refer to him with the word "Eved" at the moment he goes free. Moreover, "Lo Etzei Chofshi" cannot imply that he must make his request at the beginning of his last Perutah's worth of work, because he is not about to be set free at that moment.
Also, how do the words, "Im Amor Yomar ha'Eved," specifically imply the end of his servitude? Perhaps they refer to any point during his six-year servitude during which he may be called "ha'Eved." Similarly, how do the words, "Lo Etzei Chofshi," specifically imply the beginning of the servitude?
These are the difficulties which Rashi has with this Girsa. Is there any way to resolve these questions and uphold this Girsa?
ANSWER: Perhaps this Girsa understands the concept of Avdus as the RAMBAN and RASHBA earlier explain it (16a; see Insights to 16:1 and 21:2). They explain that the acquisition of an Eved Ivri involves two different types of Kinyan. The first is a Kinyan Mamon, a monetary Kinyan. The master owns the Eved the same way he owns the rest of his property. This Kinyan obligates the Eved to work for his master.
The second type of Kinyan is a Kinyan Isur, a Kinyan which has Halachic, and not just monetary, ramifications. This Kinyan enables the Eved to marry a Shifchah Kena'anis (see Insights to 21:2).
According to their understanding of the nature of the Kinyan of an Eved Ivri, the word "Chofshi" may allude specifically to the monetary obligation, the Kinyan Mamon, which obligates the Eved to work for the master and restricts him from doing whatever he wants. "Lo Etzei Chofshi" means that he remains obligated to do what the master wants because the Kinyan Mamon remains in force. Accordingly, there must still remain at least a Perutah's worth of work left to do for his master.
In contrast, the phrase "ha'Eved" does not refer to his obligation to work for his master. Rather, it is the title of his status. It is the title of Eved which permits him to marry a Shifchah Kena'anis, and it is the Kinyan Isur which bestows upon him the title of Eved. Hence, even at the end of the last Perutah's worth of work when he no longer has any obligation to work for the master and no monetary obligation to him, he still has the title of Eved and is permitted to marry a Shifchah Kena'anis.
This explains why the verse, "Im Amor Yomar ha'Eved," refers to the end of the last Perutah's worth of work, when the Eved no longer has a monetary obligation to work for the master but has only the Halachic status (with regard to Isur) of an "Eved."
RASHI, who does not accept this explanation, is consistent with his own view as expressed earlier (16a) that there is no Kinyan Isur on an Eved Ivri.
3) AGADAH: MOSHE RABEINU'S SECOND REQUEST TO ENTER ERETZ YISRAEL
The Gemara teaches that an Eved must make two requests to stay with his master in order to become Nirtza, one request before the last Perutah's worth of work and one request at the end of the last Perutah's worth of work.
RAV YEHOSHUA LEIB DISKIN explains the verses in the beginning of Parshas Va'eschanan based on this Gemara. After Moshe Rabeinu beseeched Hash-m to allow him to enter Eretz Yisrael, Hash-m told Moshe, "Al Tosef Daber Elai Od ba'Davar ha'Zeh" -- "Do not continue to speak to me further on this matter" (Devarim 3:26). The commentators infer from these words that had Moshe Rabeinu asked Hash-m one more time to allow him to enter Eretz Yisrael, Hash-m would have had to yield to his request. (See DIVREI ELIYAHU in the name of the Zohar, and NACHAL KEDUMIM, end of Beha'aloscha.) Why would the second request have been more successful than the first, such that Hash-m would have had to acquiesce to it?
Rav Yehoshua Leib Diskin quotes the Midrash (Tanchuma #4, beginning of Va'eschanan) which explains that Moshe Rabeinu said to Hash-m, "You called me an 'Eved' (Devarim 34:5) and You wrote in the Torah that if an Eved says that he loves his master, wife, and children and therefore does not want to go free, that he remains an Eved." Moshe Rabeinu told Hash-m that, "I love my Master (Hash-m), and my wife and children (the Jewish people), and thus I do not want to go free" ('Chofshi Min ha'Mitzvos,' or 'freedom from the obligation of Mitzvos,' a reference to death. See Shabbos 30a and 151b, based on Tehilim 88:6).
The Gemara here teaches that an Eved Ivri is Nirtza only when he makes a second request, at the end of his last Perutah's worth of work. Moshe Rabeinu had reached the end of his life, the end of his last Perutah's worth of work as the leader of the Jewish people and the dedicated servant of Hash-m, and thus he wanted to make a second request at that point in accordance with the laws of an Eved Ivri who wishes to become Nirtza and to stay with the Master he loves and with the Jewish people he loves. Had he made the request at that point, Hash-m would have had to comply with his request in accordance with the laws of an Eved Ivri.
4) THE REASON WHY THE EAR OF AN "EVED NIRTZA" IS PIERCED
QUESTIONS: The Gemara cites "Derashos k'Min Chomer" to explain why the process of Retzi'ah of an Eved Ivri is done to the ear, and why the piercing is done specifically against a door. The ear is pierced because it was through his ear that he heard on Har Sinai the words of Hash-m, "For the Jewish people are My servants" (Vayikra 25:55), and he denied what he heard and subjugated himself to another master. His ear is pierced against a door because the door and the doorpost were witnesses in Mitzrayim to the blood that was placed on the door and doorpost to signify that Hash-m redeemed the Jewish people from Mitzrayim in order to make them His servants. When a person sells himself as an Eved to another person, he fails to acknowledge that he is an Eved only to Hash-m.
The symbolism of the door and doorpost is clear. The Retzi'ah takes place at the doorpost to remind the Eved of the door and doorpost that were marked with blood when Hash-m took the Jewish people out of Mitzrayim to make them His servants. How, though, does the ear, more than any other part of his body, remind the person of the giving of the Torah at Har Sinai? This person did not actually stand at Har Sinai and hear the words of Hash-m with his own ear. Although a person who actually stood at Har Sinai, heard the commandments, and denied what he heard and sold himself as a slave in the Midbar deserves to have his ear pierced, why should the Avadim in ensuing generations have their ears pierced? In what way does the ear in particular represent a person's obligation to be an Eved solely to Hash-m?
Moreover, why is the ear pierced specifically for violating the verse, "The Jewish people are My servants," and not for violating any other Mitzvah in the Torah which the ear also heard at Har Sinai?
Finally, it does not seem logical that the ear should be pierced as a punishment to the person for denying what he heard at Sinai. The ear, after all, did what it was supposed to do -- it listened to the Mitzvos. It is the rest of the body which failed to fulfill the Mitzvos which the ear heard (such as the mouth, which uttered the words that made the person an Eved to another master).
ANSWER: The word "Lishmo'a" (to hear) refers not only to the sensory perception of hearing, but also to the acceptance of the words one hears (see Bamidbar 24:16, Shmuel I 15:22). The ear, therefore, is not only the part of the body which listens to words being spoken, but it symbolizes the person's acceptance of what he hears and his submission to that mandate. In this sense, it is the ear that makes a person an Eved.
RAV YITZCHAK HUTNER zt'l (in PACHAD YITZCHAK, Pesach 43:1) expresses this concept. He quotes RABEINU YONAH (Sha'arei Teshuvah 2:12) who writes that the ear is more important than the eye and the other limbs of a person, and therefore one has a greater responsibility to serve Hash-m with his ear than with his other limbs, by listening to and accepting rebuke and instruction in Avodas Hash-m.
Rav Hutner explains that what makes the ear unique is that it enables a person to be an Eved by accepting and subjugating oneself to the dictates of another. The Gemara in Bava Kama (85b) teaches that if one person blinds another person, he must pay restitution for the eye, but if he deafens another person, he must pay restitution for the entire value of the victim. The value of a person with regard to Nezikin (damages) is determined by the value the person would be worth as an Eved, and a deaf person has no value as an Eved.
Rav Hutner adds that all of the other parts of the body both receive sensory information and impart information. The eye sees the external world, and the look in a person's eye reveals what he feels inside. The nose breaths in and breaths out, the hands receive sensory information through the sense of touch and they impart information through touch. The ear, in contrast, only receives and does not impart any information to the world. In that sense it represents the total subjugation of oneself and the absolute acceptance of an external authority. For this reason the ear is the limb which represents Avdus, servitude. (This may be why it was customary to put earrings in the ears of slaves as a sign of servitude.)
This explains why Retzi'ah is done to the ear. It is the ear that heard on Har Sinai that the Jewish people are servants of Hash-m, and it is the ear which represents the acceptance of Hash-m's total and exclusive authority. Accordingly, the laws of Retzi'ah require that the ear be pierced as a reminder that a person is supposed to be an Eved to Hash-m and he should not deny that mandate by making himself an Eved to man.
5) THE ACQUISITION OF AN EVED WITH "CHALIPIN" AND "MESHICHAH"
QUESTION: The Mishnah teaches that an Eved Kena'ani is acquired with Kesef, Shtar, and Chazakah. The Gemara adds that two other Kinyanim work to acquire an Eved Kena'ani: Chalipin and Meshichah. The Gemara explains that the Mishnah does not mention these two Kinyanim because they work for Metaltelin as well, and the Mishnah lists only the forms of Kinyan which do not work for Metaltelin but nevertheless work to acquire an Eved Kena'ani.
The Mishnah earlier (14b) teaches that an Eved Ivri is acquired with Kesef, Shtar, and Chazakah, like an Eved Kena'ani. Is an Eved Ivri also acquired with Chalipin and Meshichah?
(a) The Beraisa (8a) derives from the verse, "mi'Kesef Miknaso" (Vayikra 25:51), that an Eved Ivri is not acquired with Chalipin.
The Gemara there asks that according to the view of Rav Nachman, who maintains that an item of food cannot effect a Kinyan Chalipin, the Beraisa does not prove that an Eved Ivri is not acquired with Chalipin, because the Beraisa specifically says that an Eved Ivri cannot be acquired with food (Tevu'ah). Nevertheless, TOSFOS there (DH u'Mai) implies that in practice an Eved Ivri cannot be acquired with Chalipin. Even if the Beraisa does not follow the view of Rav Nachman, the verse "mi'Kesef Miknaso" indeed excludes Kinyanim performed without money but with objects (such as Kinyan Chalipin).
The KETZOS HA'CHOSHEN (195:8) proposes a logical framework to understand why an Eved Ivri is not acquired with Chalipin, based on what TOSFOS teaches in Erchin (30a, DH v'Lo). Tosfos there explains that Chalipin can be used only for a "Kinyan Muchlat," an absolute Kinyan of a concrete object. It cannot be used to acquire something that will eventually be returned to its owner, such as a "Matanah Al Menas l'Hachzir," She'eilah (borrowing), and Sechirus (renting). An Eved Ivri is not owned with a Kinyan Muchlat, but rather he goes free after six years or at Yovel, and thus he cannot be acquired with Chalipin . In contrast, an Eved Kena'ani serves his master forever, and thus he can be acquired with Chalipin.
(b) The RITVA (14b) writes that an Eved Ivri cannot be acquired with Meshichah. However, he does not explain his source for this ruling. Why is an Eved Ivri different from any other item of Metaltelin (which is acquired with Meshichah)?
Apparently, the Ritva is consistent with his explanation of the Gemara there (14b). He explains that the Sugya there follows the opinion of Rebbi Yochanan. Rebbi Yochanan rules that, mid'Oraisa, Metaltelin may be acquired only with Kesef and not with Meshichah. Although the Rabanan instituted that the Kinyan Kesef does not take effect until Meshichah is performed, they did so only to prevent a seller from being negligent in caring for the purchased product which is still in his domain after the transfer of money. There is no such concern in the case of the Kinyan of an Eved Ivri (who protects himself from harm), and thus the Rabanan did not require Meshichah for the acquisition of an Eved Ivri. According to this explanation, Reish Lakish -- who disagrees with Rebbi Yochanan and maintains that Meshichah is a valid Kinyan for all forms of Metaltelin -- would rule that an Eved Ivri is able to be acquired with Meshichah.
The PNEI YEHOSHUA (14b) and other Acharonim, however, rule unequivocally that Meshichah cannot be used to acquire an Eved Ivri, as the Gemara here implies when it says that Chalipin and Meshichah work only for an Eved Kena'ani. The Pnei Yehoshua explains that the reason for this is that Meshichah may be used only to make an absolute Kinyan, similar to what the Ketzos ha'Choshen writes with regard to Kinyan Chalipin.
The SEFER HA'MIKNAH (55:1) points out that this logic is stated explicitly by the Ritva (47b) who writes that Meshichah cannot be used to make a Kinyan on a borrowed object since the borrower acquires only the usage of the object and not the object itself. An act of pulling (Meshichah) the object itself cannot acquire the usage of the object for the borrower. Similarly, a master who acquires an Eved Ivri acquires only the usage of the Eved but not his actual body.
The Pnei Yehoshua asks that the Gemara earlier (16a) clearly contradicts this approach. The Gemara there states that the master does have a Kinyan ha'Guf on the Eved's body.
Perhaps a simple answer to the Pnei Yehoshua's question may be suggested based on the teaching of the RAMBAN and Rishonim there, who explain that the Kinyan ha'Guf which the master has on the Eved is not literally a Kinyan on the body of the Eved himself. Rather, it is a "Kinyan Isur," a Kinyan which causes a change in Halachic status by permitting the Eved to marry a Shifchah Kena'anis.
Rashi there, however, explains that a Kinyan ha'Guf means literally that the owner has a Kinyan on the body of the Eved Ivri (see above, Insight #2, and see Insights to 16:1 and 21:2). According to Rashi, why is Meshichah not a valid form of Kinyan for an Eved Ivri? (See Pnei Yehoshua there.)
Rashi apparently addresses this question earlier (14b), where the Gemara asks for the source that a Kinyan Kesef may be used to acquire an Eved who sold himself. The Gemara asks that perhaps a Kinyan Kesef may be used only to acquire an Eved Ivri sold by Beis Din because such an Eved is sold against his will. Rashi there (DH Machruhu Beis Din) explains that since he is sold against his will, it is only logical that he should be able to be acquired with Kesef without any act of Meshichah. (See Insights there.) Rashi means that it is more logical that a Kinyan Kesef should work for an Eved sold against his will because it is an easier Kinyan to make. An Eved who can be sold more easily (i.e. there is no need for his consent) should be able to be acquired more easily. Why, though, does Rashi not explain simply that even if a Kinyan Kesef is not an easier Kinyan, it is an additional form of Kinyan, and since one who is acquired against his will should be easier to acquire, he should be acquired with the additional Kinyan of Kesef besides the other Kinyanim which work for an Eved Ivri?
Rashi clearly understands that if an Eved Ivri is acquired with Kesef because of the verse "mi'Kesef Miknaso," then just as the words "mi'Kesef Miknaso" exclude Kinyan Chalipin (8a), they also exclude Kinyan Meshichah. Consequently, Rashi has a question. Why should Beis Din's ability to sell a person as an Eved against his will be a deciding factor in allowing him to be acquired with Kesef and not with Meshichah, while an Eved who sells himself may be acquired only with Meshichah (had there been no verse) and not Kesef? (Rashi seeks to explain the Sugya even according to Reish Lakish who maintains that Meshichah is a valid Kinyan for Metaltelin. See Rashi there, DH Ho'il.) Hence, Rashi explains that Kesef is an easier Kinyan than Meshichah, and that is why it follows that an Eved who may be sold against his will should be acquired with Kesef and not with Meshichah. What makes Kesef an easier Kinyan? Perhaps it is an easier Kinyan because of what the Gemara here (22b) says -- the Meshichah of an Eved Kena'ani involves not only calling him to come, but forcefully pulling him over against his will. This clearly is a more difficult Kinyan to make than the Kinyan of Kesef.
This approach also explains why Rashi there (14b, DH Machruhu Beis Din) refers to Meshichah with the word "Chazakah." He means that the Meshichah that would have to be done to acquire an Eved Ivri would have to be a Meshichah done against his will, similar to what Rashi writes here (22b, DH Takfo), that this Meshichah is done "b'Chazakah" -- with force.
Therefore, according to the Gemara's conclusion (14b) that an Eved who sells himself can be acquired with Kesef because of the verse, "mi'Kesef Miknaso," the same verse teaches that he cannot be acquired with Meshichah.
One might ask, however, that an Eved Ivri may be acquired through a Kinyan Shtar (16a). Why does the verse of "mi'Kesef Miknaso" not also exclude the Kinyan of Shtar? Perhaps a Shtar is not excluded by the words "mi'Kesef Miknaso" since the price of the Eved is written in the Shtar which makes the Kinyan, and thus those words ("mi'Kesef Miknaso") may also refer to a Shtar. The verse teaches that the price of the Eved must be involved in the Kinyan, whether through Kesef or through Shtar. Meshichah, in contrast, is entirely unrelated to the price of the Eved. According to this explanation, Rashi (14b, DH she'Megara'as) might not mean that Gira'on Kesef may be done only when the Eved was purchased with Kesef but not when he was purchased with a Shtar (as RABEINU TAM explains; see Insights there). Rather, Rashi may mean that Gira'on Kesef may be done only when the value of the Eved was involved in the Kinyan, whether with Kinyan Kesef or with Kinyan Shtar (as opposed to Meshichah).