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Gitin 38
GITIN 38 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love
for Torah and those who study it.
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1a) [line 4] V'LO HEM KONIM ZEH MI'ZEH - L'GUFO - and they do not buy each
other - with regard to the "person" of the slave
b) [line 5] L'MA'ASEH YADAV - (lit. the work of his hands) the amount that
he earns or produces
2) [line 7] KASPA / CHAZAKAH
(a) When a person buys or sells an object, he must make a Ma'aseh Kinyan (a
formal Halachically-binding act denoting the change in status). The forms of
Ma'aseh Kinyan that may be used are: for Metaltelin (mobile goods) - 1.
Hagbahah, i.e. lifting an item; 2. Meshichah (lit. pulling), i.e. causing an
item to move; 3. Chatzer, i.e. bringing the item into one's domain; for
Mekarka'in (immobile goods) - Chazakah, i.e. performing an act that is
normally performed by an owner.
(b) Examples of Chazakah for real estate are Na'al (locking), Gadar (fencing
in) and Paratz (making a breach in a fence to create an entrance) or any act
that is done to *enhance* the land, such as digging to improve a field and
the like (MISHNAH Bava Basra 42a).
(c) A normal adult slave, although mobile, is compared to real estate with
regard to the type of Kinyan that is required for his purchase (Kidushin
22b, based on Vayikra 25:46). As such, a slave may be purchased with Kesef
(paying money), Shtar (handing over a contract) or Chazakah (having the
slave perform an act for his intended master that demonstrates their
impending relationship, with the intention of buying him).
(d) Examples of Chazakah for slaves are taking off his master's shoes,
following his master to the bathhouse carrying a change of clothing for him,
undressing his master, washing him, etc. (Kidushin ibid.).
3) [line 8] AMON U'MO'AV TAHARU B'SICHON - The lands of Amon and Mo'av were
"purified" by Sichon. The lands of Amon and Mo'av were given to the sons of
Lot as an inheritance (Devarim 2:9, 19) and Benei Yisrael were commanded not
to take their lands in battle (ibid.). Sichon, the king of the Emoriyim,
captured large parts of their territory (Bamidbar 21:26). As a result, Benei
Yisrael were able to conquer these same territories from Sichon.
4) [line 10] "VA'YISHB MIMENU SHEVI" - "and he (the Amaleki King of Arad)
took from Benei Yisrael a captive" (Bamidbar 21:1) - Chazal reveal that the
captive was a Kena'ani maidservant (RASHI, YALKUT SHIMONI ibid.).
5) [line 13] GET SHICHRUR
(a) A Jew who owns a non-Jewish slave (an Eved Kena'ani) may release the
slave from bondage in one of two ways: by accepting payment for the slave's
release, or by giving the slave a "Get Shichrur," or bill of release
(Kidushin 22b). If the slave is not released in one of these two ways, he is
still considered to be a slave for all Halachic matters (such as with regard
to whom he is allowed to marry and what Mitzvos he is obligated to keep.)
(b) Some maintain that even if a master declares his slave Hefker
(ownerless), but does not give him a Get Shichrur, the slave is still
considered to be a freeman with respect to Halachic matters (Yevamos 48a,
Gitin 38a).
6) [line 16] AREV V'TZIDON V'RA'AYAH ACHRONAH - The Halachah follows the
opinion of Rabban Shimon ben Gamliel whenever his opinion is quoted in the
Mishnah, except in these three cases:
(a) AREV (Bava Basra 173b-174a): The Chachamim rule that a loan may be given
on the condition that the creditor can collect from the debtor's guarantor
(Arev Kablan) before first going to the debtor. Rabban Shimon ben Gamliel
rules that if the debtor has property, the creditor must collect from him,
even if the loan was given under the above conditions.
(b) TZIDON (Gitin 74a): It occurred once in Tzidon that a man said to his
wife, "This will be a valid Get (bill of divorce) on condition that you
bring to me my robe," and then the robe was lost. According to the Rabanan,
the Get is annulled and void. Rabban Shimon ben Gamliel maintains that she
may give the value of the robe and the Get will be effective.
(c) RAA'YAH ACHRONAH (Sanhedrin 31a): The Chachamim rule that a litigant,
after being instructed in Beis Din to prove his case, who says, "I do not
have any proof," may not use any proof that he may subsequently find as
valid evidence. (Since he already admitted to not having proof, we suspect
that the documents that he brings afterwards may be forged.) Rabban Shimon
ben Gamliel rules that we acknowledge the possibility that he did not know
about the evidence for his case at the moment that he said he did not have
proof, and he may therefore use the proof he subsequently finds as valid
evidence.
7) [line 22] AMSEI - the handmaiden
8) [line 23] PARKUHA L'SHUM AMHASA V'SHADRUHA LEI - [some people] redeemed
her to continue being Mar Shmuel's maidservant and sent her back to him
9) [line 30] "V'CHOL EVED ISH MIKNAS KASEF; [U'MALTAH OSO, AZ YOCHAL BO.]" -
"But every man's servant who is bought for money, [when you have circumcised
him, then shall he eat of it (the Korban Pesach).]" (Shemos 12:44)
10) [line 36] TARMODA'AH - from Tarmod (or Tadmor) = Palmyra, an oasis in
the Syrian desert)
11a) [line 37] IY YA'US AVDAS - if you would do the proper thing
b) [line 38] SHADAR LAH GITA D'CHEIRUSA - send her a Get Shichrur
12) [line 44] MIT'ZELA B'APEI - she will become lowly in his eyes
13) [line 50] KOL HA'MESHACHRER AVDO OVER B'ASEH
Rav Yehudah cites the opinion of Shmuel, that anyone who frees his slave
transgresses the Mitzvas Aseh of "l'Olam Bahem Ta'avodu" - "they shall be
your slaves forever" (Vayikra 25:46).
14) [last line] CHETZYAH SHIFCHAH V'CHETZYAH BAS CHORIN - a woman who is
part slave (Shifchah Kena'anis), part free; e.g. a maidservant originally
owned by partners, one of whom freed his half
38b---------------------------------------38b
15) [line 2] MINHAG HEFKER NAHAGU BAH - various vile men had their way with
her after she abandoned herself to them, since could marry neither freemen
nor slaves
16) [line 4] U'MANTAR LAH - and he will protect her
17) [line 6] "[V'HISNACHALTEM OSAM LI'VNEICHEM ACHAREICHEM LA'RESHES
ACHUZAH,] L'OLAM BAHEM TA'AVODU; [UV'ACHEICHEM BENEI YISRAEL, ISH B'ACHIV LO
SIRDEH VO B'FARECH]" ..." - "[And you shall hold onto them as a heritage
for your children after you, to give to your heirs as a possession;] you
shall work with them forever; [but your brothers, the people of Yisrael, you
shall not subjugate with hard labor.]" (Vayikra 25:46)
18) [line 14] NACHASEI BA'ALEI BATIM MI'NICHSEIHON - homeowners (a term for
the common man) loose [all or most of] their assets
19) [line 15] SAIREI NICHSAIHU B'SHABATA - they inspect their possessions on
Shabbos [to ascertain what they need]
20) [line 16] D'KAV'EI SE'UDASAIHU B'SHABATA, B'IDAN BEI MIDRASHA - they
schedule their Shabbos meals at the time of the weekly Shi'ur
21) [line 31] GIZBARIN - the appointees of Hekdesh, treasurers
22) [line 35] RAV, TANA HU U'FALIG - Rav has the status of a Tana (a Sage of
the Mishnah) and may hold a dissenting opinion against a Mishnah
23) [line 36] "ACH KOL CHEREM [ASHER YACHARIM ISH LA'SH-M, MI'KOL ASHER LO;]
ME'ADAM [U'VHEMAH...]" - "However no devoted thing, [that a man shall devote
to HaSh-m of all that he has, both] of man [and beast, and of the field of
his possession, shall be sold or redeemed; every devoted thing is most holy
to HaSh-m.]" (Vayikra 27:28)
24) [last line] OSEH V'OCHEL - (lit. he produces and eats) he works and buys
his sustenance with his earnings
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