OPINIONS: The Mishnah earlier (29a) records a dispute between Rebbi Meir (or, according to some texts, Rebbi) and the Chachamim in the case of a person who said to his friend, "Take this sheep, and your maidservant should sleep with my servant." The Chachamim maintain that the animal given is considered an Esnan. Rebbi Meir maintains that it is not an Esnan. The Gemara asks why such a transaction should result in the animal becoming an Esnan, if the relationship that occurred as a result of the giving of the animal was a permitted relationship; an Eved Ivri is permitted to be with a Nochri maidservant. After a lengthy discussion, the Gemara concludes that the Mishnah's case is that of an Eved Ivri who does not already have a Jewish wife and children. A Beraisa states that only when an Eved Ivri already has a Jewish wife and children may his master give him a Nochri maidservant.

The Gemara does not explain the basis underlying the dispute between Rebbi Meir and the Chachamim. What is the basis of their argument?

(a) RASHI (DH Ein Rabo) explains that the Chachamim and Rebbi Meir disagree about the law of the Beraisa. The Chachamim maintain that the Beraisa is correct, and that an Eved Ivri may be with a Nochri maidservant only when he has a Jewish wife and children. If he does not yet have a wife and children, then having relations with a Nochri maidservant is prohibited, and payment given in return for such a relationship can be considered an Esnan. Rebbi Meir maintains that this law is not correct; an Eved Ivri is not prohibited from having relations with a Nochri maidservant, and therefore payment for such a relationship cannot be considered an Esnan.

(b) The RAMBAM (in Perush ha'Mishnayos) gives a different explanation. He writes that according to Rebbi Meir, because an Eved Ivri may potentially be with a Nochri maidservant (if he has a Jewish wife and children), an Esnan never results from this relationship, even when it is consummated unlawfully. The Chachamim argue and maintain that there is no general rule that an Esnan cannot result from such a relationship, but rather the specific circumstances of each case are taken into account. In a case in which the relationship is forbidden, it can result in an Esnan.

(c) Earlier in the Gemara, Rav Huna suggests that the Eved mentioned in the Mishnah is not an Eved Ivri. Rather, the Mishnah is expressing euphemistically that the owner of the sheep himself wants to be with the Nochri maidservant. The Gemara rejects Rav Huna's suggestion by pointing out that if this is the Mishnah's intent, then why does Rebbi Meir say that the relationship does not result in an Esnan? Such a relationship certainly is forbidden, and it certainly results in an Esnan!

The SEFAS EMES explains the logic behind Rav Huna's understanding of the argument. Rebbi Meir agrees that the relationship is forbidden. However, Rebbi Meir maintains that an Esnan is defined as an object transferred from the man to the woman involved in the relationship. In this case, the woman involved receives nothing; it is her master who receives the animal. The Chachamim argue that this type of transfer also renders the animal an Esnan.

Why, though, does the Gemara not give this answer for Rav Huna? The Sefas Emes explains that there is a Halachah in the laws of Kidushin that a woman may tell a man to give money to someone else, and through his act of giving money to the third party she becomes betrothed to him (this is her "acceptance" of the money of Kidushin). The Sefas Emes writes that if this is true with regard to Kidushin, then it also should be true for an Esnan. Hence, even though the animal was not given to the woman but to her master, it becomes an Esnan. This is why the Gemara seeks another explanation for the dispute between Rebbi Meir and the Chachamim. (For more discussion regarding this logic, see the OLAS SHLOMO.)

(The words of the Sefas Emes seem difficult to understand. It makes sense that a gift given at the behest of a woman should be attributed to her, and it is considered as though she received the actual money. However, the deal between this man and the owner of the maidservant is not done with the woman's free will; the owner commands the maidservant what to do. Even if Beis Din would force the owner not to command his maidservant to do something which would cause a Jew to sin with her, the animal is not being delivered to her owner at her request. Why, then, does the Sefas Emes suggest that the Gemara does not give this answer (that Rebbi Meir maintains that an Esnan must involve the acceptance of the woman) because of the case of Kidushin?) (Y. MONTROSE)

QUESTION: Rava states that a Velad ha'Nirba'as (the offspring of a female animal that had relations with a man) is forbidden to be offered as a Korban, just as the Nirba'as itself may not be offered as a Korban. The Gemara concludes that the reason for this prohibition is that "Ubar Yerech Imo" -- the fetus is considered part of its mother, and thus the fetus itself is considered to have had relations with the man as well. This, of course, applies only to a fetus that was formed before the illicit act took place.

REBBI AKIVA EIGER (Teshuvos, #172) asks that according to this reasoning, a man should be prohibited from having relations with his pregnant wife, since it is considered as though the act is being done with the fetus, his child, as well (which is forbidden as one of the prohibitions of Arayos), as the Gemara here says with regard to the fetus of a Velad ha'Nirba'as. Why do none of the Poskim mention such a prohibition?

(a) REBBI AKIVA EIGER answers that the Isur of Arayos with a girl under the age of three is not included in the normal prohibition of Arayos (see Nidah 45a); because she is not fit to have relations, the act is not considered an act of Arayos. Rather, it is forbidden because of Hashchasas Zera l'Vatalah. Accordingly, that prohibition does not apply when one is having permitted relations with his wife.

(b) The TIFERES YISRAEL discusses this question at length. He asserts that the basis of the question is incorrect. The only reason why the fetus of a Nirba'as is affected is that the act done to the mother was forbidden, and it therefore caused the mother's status to change. Since the Halachah is "Ubar Yerech Imo," the implications of that forbidden act are applied to the fetus as well. However, when a permitted act is done and no change of status in the mother is effected, there is no change of status to apply to the fetus.

(c) The HAGAHOS to the Teshuvos of Rebbi Akiva Eiger (Machon ha'Ma'or edition) suggests another answer. It is possible that there simply is no prohibition against having relations with a fetus. The Isurim of Arayos take effect only when the person is born, in contrast to an animal that can be called a Nirba and be forbidden to be offered as a Korban while it is a fetus. (Y. MONTROSE)