KIDUSHIN 28 (7 Cheshvan) - in honor of the Yahrzeit of ha'Gaon Rav Meir Shapiro, creator of the Dafyomi study cycle. (See www.dafyomi.co.il/dafyomi.htm for links relating to the life of the Rav and to his Yahrzeit.)
1) THE COMPARISON BETWEEN AN EVED IVRI AND LAND
OPINIONS: The Gemara quotes Rava who says that the entitlement of a Gilgul Shevu'ah allows the claimant even to insist that the defendant take an oath that he is not his Eved Ivri. The Gemara asks why should such a claim differ from any other monetary claim for which an independent Shevu'ah is made (in a case of Modeh b'Miktzas or when there is only one witness).
The Gemara answers that Rava follows his own logic as expressed earlier (16a), where he says that the body of an Eved Ivri is owned by his master -- "Eved Ivri Gufo Kanuy." Accordingly, an Eved Ivri is not like other forms of Metaltelin for which a Shevu'ah may be made.
The Gemara asks that if an Eved Ivri is not considered Metaltelin, this Halachah is already mentioned in the Mishnah which states that one may make a Gilgul Shevu'ah on land. The Gemara answers that Rava needs to teach that a Gilgul Shevu'ah extends even to a claim of "Eved Ivri" because one might have thought that the defendant does not need to swear since, if he is an Eved Ivri, everyone would know about it.
The Gemara seems to compare an Eved Ivri to land with regard to the laws of Shevu'ah: just as a defendant does not make a Shevu'ah on a claim of land, he does not make a Shevu'ah on a claim that he is owned as an Eved Ivri. Apparently, this is based on the Hekesh which the Gemara earlier (22b) derives from the verse, "v'Hisnachaltem Osam" (Vayikra 25:46), which compares an Eved to land.
The Gemara understands that even an Eved Ivri is compared to land, but the verse refers only to an Eved Kena'ani. Exactly what type of Eved is compared to land?
(a) The SHACH (end of CM 95:18) cites the Gemara here which compares an Eved Ivri to land, and the Gemara earlier (7a) which apparently compares a married woman to land (see RASHI, DH she'Yesh Lahen Achrayus). He also cites the Gemara in Megilah (23b) and in Sanhedrin (15a) which teach that when a person promises to give his value ("Dami Alai") to Hekdesh, his value must be evaluated by ten people just as the appraisal of land requires ten people when a person wants to redeem a plot of land from Hekdesh, "because an Eved is compared to land." The Shach proves from these two sources that not only is an Eved Ivri compared to land, but even a free person is compared to land.
The MAGID MISHNEH (Hilchos To'en v'Nit'an 5:2) also infers from the words of the RA'AVAD that he maintains that a free man is compared to land (see, however, (c) below).
(b) The RAMBAM (Hilchos Mechirah 13:15) rules with regard to Ona'ah (underpayment) that when one hires a laborer, the laborer's wages are not subject to the law of Ona'ah because hiring a worker is akin to purchasing him temporarily. The hired worker is considered an Eved and the Halachah is that "Avadim Ein Lahem Ona'ah" -- Ona'ah does not apply to Avadim just as it does not apply to land (Bava Metzia 56a, 57a).
However, perhaps the Rambam refers only to a Nochri worker (as the Magid Mishneh implies), and he compares the worker to an Eved Kena'ani whom the verse indeed compares to land. However, the SHULCHAN ARUCH (CM 227:33) cites this Halachah with regard to a person who "hires his friend" to work for him, clearly referring to a Jewish worker who is compared to an Eved Ivri. The Shulchan Aruch compares an Eved Ivri to land to which the law of Ona'ah does not apply. This is also the ruling of the TERUMAS HA'DESHEN (#318) who explains that an Eved Ivri is included in the Torah's comparison of an Eved Kena'ani to land (because of his title of "Eved"), as is evident from the Gemara here.
TOSFOS in Megilah (23b) proves from the Gemara there that an Eved Ivri is compared to land (but a free person is not compared to land, in contrast to the view of the Shach). Although the Gemara in Megilah discusses the case of a free person who says, "Dami Alai," his worth is determined by how much a buyer would pay for him if he would be sold as an Eved Ivri, and therefore the same number of people are needed to assess his Eved-value as are needed to assess the value of land.
Tosfos there also understands that when the Gemara earlier in Kidushin (7a) compares a married woman to land, it places her in the same category as an Eved Ivri (with regard to Kinyan Agav) and not in the category of a free person. Although the woman certainly is a free person, she has the status of an Eved Ivri (with regard to certain matters) due to her husband's Kinyan (a Kinyan ha'Guf; see Insights to Kidushin 21:2
). (Tosfos asks, however, why the Gemara compares an Eved Ivri to land when the verse refers only to an Eved Kena'ani.)
Although the Gemara (16a) derives from "v'Hisnachaltem Osam" that only an Eved Kena'ani is acquired with Chazakah and not an Eved Ivri, this exclusion may refer only to Kinyan Chazakah but not to other Halachos relevant to land.
in Bava Metzia (56b, as cited by the Magid Mishneh, Hilchos Mechirah loc. cit.) write that a Jewish worker is not compared to land and thus his wage is
subject to the law of Ona'ah. Only an Eved Kena'ani is compared to land. This is also the opinion of TOSFOS
earlier in Kidushin (7a, DH Im Ken). Even Rashi there may agree with Tosfos on this point (see Insights to Kidushin 7:2
This also seems to be the view of RABEINU CHANANEL in Sanhedrin (15a) who writes that when a person says "Dami Alai" his value is assessed by ten people not because an Eved Ivri is compared to land, but because his assessment is based on his value as an Eved Kena'ani, and an Eved Kena'ani is compared to land.
This also may be the intention of the RA'AVAD (cited in (a) above). The Ra'avad means that with regard to payment for damages, the payment for injury to a free person is compared to payment for damage to land because injury to a free person is assessed based on what his value would be if he would be sold as an Eved, as the VILNA GA'ON writes (CM 95).
(These Rishonim follow the view of the Rosh and most Rishonim in the beginning of the eighth Perek of Bava Kama (83b), that damages are assessed on the basis of the person's value as an Eved Kena'ani who is sold permanently, and not on the basis of his value as an Eved Ivri who is sold temporarily. However, Rashi in Bava Kama there writes that damage to a person is assessed according to his value as an Eved Ivri. See KUNTRESEI SHI'URIM to Bava Kama.)
explain that the Gemara here does not intend to compare an Eved Ivri to land. Rather, the Gemara means that an Eved Ivri is not like ordinary Metaltelin. This may be the intention of Rashi here as well (DH Gufo Kanuy). (See Insights to Bava Kama 83:2
2) THE DIFFERENCE BETWEEN "MALKUS D'ORAISA" AND "MAKAS MARDUS"
OPINIONS: The Beraisa teaches that one who calls another person a Mamzer "receives forty lashes." RASHI explains that this punishment was enacted by the Rabanan as a penalty. Lashes that are mid'Rabanan are called "Makas Mardus."
The wording of the Gemara implies that the same number of lashes are administered for Makas Mardus as for Malkus d'Oraisa (forty, which means forty minus one, or 39). However, the Mishnah in Nazir (23a) teaches that when a woman drinks wine under the impression that she is a Nazir, unaware that her husband already annulled her Nezirus, she does not receive the Torah-prescribed Malkus which one normally would receive for transgressing a Neder. Rebbi Yehudah adds that she does receive Makas Mardus (Malkus d'Rabanan). The Gemara there implies that Makas Mardus differs from Malkus d'Oraisa.
In what ways does Makas Mardus differ from Malkus d'Oraisa?
(a) TOSFOS (Nazir 20b, DH Rebbi Yehudah) and the ROSH (ibid.) cite a Tosefta in Makos (3:10) which teaches that Malkus d'Oraisa is comprised of 39 lashes, but Beis Din must evaluate the strength of the person liable for Malkus and determine how many lashes he can tolerate (before they endanger his life). Makas Mardus is different; the person is beaten until he either accepts to do what Beis Din tells him to do or "until his soul leaves him" (Kesuvos 86a).
The ARUCH (Erech "Mered") differentiates similarly between the two types of Malkus. He writes that one who transgresses a Mitzvas Aseh (by refusing to fulfill it) is lashed until his soul leaves him, and one who transgresses the words of the Chachamim is lashed with no assessment of his strength and no set number of lashes. (The Aruch writes that these lashes are called "Makas Mardus" because the person "rebelled" (Marad) against the Chachamim and the Torah.) This is also the opinion of the GE'ONIM (cited by the NIMUKEI YOSEF, end of Makos). The RAMBAM (Hilchos Chametz u'Matzah 6:12) also writes that Makas Mardus for one who eats Matzah on Erev Pesach (an Isur d'Rabanan) is administered until he does what he is supposed to do or until his soul leaves him. RASHI in Chulin (141b, DH Makas) also writes that Makas Mardus involves lashes without limit (until the person accepts to do what he is supposed to do).
Why, though, are the laws of Malkus d'Rabanan more strict than the laws of Malkus d'Oraisa? This question is especially applicable in the case of the Mishnah in Nazir, in which the sin of the woman cannot even be called a transgression of an Isur d'Rabanan; she is punished merely for intent to transgress an Isur d'Oraisa.
The RIVASH (#90) addresses this question and concludes that Makas Mardus which is administered "until his soul leaves him" is merely a form of preventative Malkus, given as rebuke to convince a person to fulfill a Mitzvah actively (Kum v'Aseh). However, if a person transgressed a Mitzvah d'Rabanan and Beis Din simply wants to punish him for his wrongdoing, Makas Mardus certainly has a limit, and it is treated like Malkus d'Oraisa. TOSFOS and the ROSH in Nazir make a similar distinction. (According to the Rivash, the word "Mardus" does not mean "rebelling" but "rebuke," as in Berachos 7a. See also Rashi in Chulin, loc. cit.)
(The Rivash adds that for refusal to fulfill -- or to stop transgressing -- a Mitzvah d'Rabanan, Beis Din never beats a person until his soul leaves him. However, Rashi and the Rambam (ibid., according to the text of the Rambam which appears in our editions; see commentators there) apparently disagree with the Rivash on this point and sanction unlimited Malkus even for refusal to fulfill a Mitzvah d'Rabanan.)
(b) The RIVASH cites TOSFOS (see Tosfos to Bechoros 54a, DH u'Shnei) who explains that Makas Mardus is comprised of 39 lashes like Malkus d'Oraisa, but they are not as powerful. They are given while the person is dressed and without the full strength of the one who administers them. This explains why Beis Din is not required to assess whether the person can tolerate the Malkus.
Some add that Makas Mardus is administered with a stick instead of a whip (see Rashi to Sanhedrin 7b, DH Makel). According to this view, the word "Mardus" may be based on the expression, "Rodeh b'Makel" (see Sotah 40a, Shabbos 52b).
(c) The Rivash himself proposes that Makas Mardus are comprised of no set number of lashes. In contrast to Malkus of the Torah for which the number of lashes is determined by the strength of the sinner, the number of lashes of Makas Mardus is determined by the severity of the sin. He concurs with Tosfos that the lashes are not as strong or as painful as Malkus d'Oraisa. However, if the sin was not severe, he is given only the number of lashes which that particular transgression warrants even if he can tolerate more lashes.
Perhaps the Rivash understands the reason why the Gemara here prescribes forty lashes of Makas Mardus in the same way that TOSFOS and the other Rishonim understand it. The sinner is given forty lashes because he accused his fellow man of being a Mamzer and transgressing the Lo Ta'aseh against marrying a Jewess, for which he should be punished with Malkus d'Oraisa. The sinner therefore deserves forty lashes for making such an accusation.
(d) RABEINU TAM
(cited by the SHILTEI GIBORIM
on the MORDECHAI
, Bava Basra 8:1, and by the TESHUVOS RASHBASH
#96) explains that the punishment of Makas Mardus for a transgression which one already committed is comprised of only 13 lashes and not 39. The Torah prescribes 39 lashes because it requires that a triple set of lashes be given -- one set on each of the two shoulders, and one set on the stomach. Makas Mardus does not need to be tripled and is administered only on the back, and therefore only 13 lashes are given. (See Insights to Yoma 77:1
.) This may be the intention of the Aruch when he mentions that Malkus d'Oraisa must be "Meshulashos," but not Makas Mardus. (See also Insights to Nazir 23:1, Sanhedrin 26:1, and Chulin 141:4.)