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Gitin, 38

1) THE PROOF THAT A NOCHRI CAN MAKE A "KINYAN" THROUGH AN ACT OF "CHAZAKAH"

QUESTION: The Gemara proves that Nochri captors can acquire ownership of the Eved Kena'ani whom they captured by proving that a Nochri can acquire another Nochri, as his Eved, through a Chazakah (performing an act that shows his ownership). The Gemara derives this through a three-stage proof. First, it proves from a Kal v'Chomer that a Nochri can acquire the rights to the labor ("Ma'aseh Yadav") of his fellow Nochri (but he cannot acquire the actual body of the person): if a Nochri can own the "Ma'aseh Yadav" of a Jew (as it states in Vayikra 25:47), then certainly he can own the "Ma'aseh Yadav" of a Nochri. Second, it proves from a verse that a Nochri can make a Kinyan through an act of Chazakah and does not require a monetary payment to make a Kinyan: the verses (Bamidbar 21:23, 21:26, Shoftim 11:13) show that Sichon's conquest (through Chazakah) of parts of the lands of Amon and Moav enabled Yisrael to take those lands. Third, it proves that an act of Chazakah not only enables a Nochri to acquire land or another a Nochri, it enables a Nochri to acquire a Yisrael as well: the verse, "... he took captives from [Yisrael]" (Bamidbar 21:1), shows that the Canaanite king of Arad acquired slaves from Yisrael by capturing them (see Rashi on the verse there).

Why is it necessary for the Gemara to mention the first two proofs? The Gemara should immediately cite the verse "he took captives..." which proves clearly that a Nochri can acquire an Eved Kena'ani of a Jew through a Chazakah!

ANSWER: If not for the verse showing Sichon's conquest of the lands of Amon and Moav, we would not have been able to prove anything from the verse of "he took captives...," because no act of acquisition is stated explicitly in the verse. Only after we have already established that a Nochri can make a Kinyan through an act of Chazakah can we then interpret the verse of "he took captives..." as referring to an act of acquisition through Chazakah as well.

Why, then, do we need the first proof (the Kal v'Chomer)? Let it suffice to cite the proof describing the conquest of Sichon, which shows that a Nochri can make a Kinyan through an act of Chazakah, and the second proof which shows that Chazakah is also effective in acquiring an Eved!

The answer is that without the Derashah of "me'Hem," we would have assumed that a Nochri can acquire even the body of another Nochri. Therefore, we need the Derashah of "me'Hem" to show that a Nochri cannot own another Nochri's body, after which we bring the Kal v'Chomer to teach that he can at least own another Nochri for his "Ma'aseh Yadav." (See TOSFOS DH Dichtiv and TOSFOS HA'ROSH.)

QUESTION: The Gemara proves that Nochri captors can acquire ownership of the Eved Kena'ani whom they captured by proving that a Nochri can acquire another Nochri, as his Eved, through a Chazakah (performing an act that shows his ownership; see previous Insights). The Gemara proves from a verse that a Nochri can make a Kinyan through an act of Chazakah and it does not require a monetary payment, from the verses (Bamidbar 21:23, 21:26, Shoftim 11:13) that show Sichon's conquest (through Chazakah) of parts of the lands of Amon and Moav.

How does the Gemara prove that a Nochri has the ability to acquire an Eved from the verse regarding Sichon? The verse is referring to the *lands* of Amon and Moav, and not to the people of Amon and Moav!

ANSWERS:

(a) TOSFOS (DH Amon) explains that the Gemara is assuming that just as Sichon conquered the lands of Amon and Moav and acquired them through Chazakah, he also captured as slaves the people of Amon and Moav, acquiring them through Chazakah.

(b) The RASHBA explains that the only point that the Gemara wants to prove at this stage is that it is possible for a Nochri to make a Kinyan *Chazakah*. Once the Gemara proves that a Nochri can make a Kinyan through a Chazakah, we can apply this power of acquisition to anything. This also seems to be the intention of RASHI (DH b'Chazakah).

OPINIONS: The Gemara discusses acquiring an Eved or land through an act of Chazakah. What type of act is the Gemara referring to?

(a) RASHI and the RAN interpret "Chazakah" here to be referring to its usual meaning, an act that shows ownership. With regard to purchasing land, it refers to an act of guarding the land from trespassers as an owner would do. With regard to purchasing an Eved, it refers to an act of using the Eved for personal service (such as dressing and bathing the new owner) as an owner would do.

(b) TOSFOS and the RASHBA argue. They explain that this type of Kinyan would not suffice to effect a transfer of ownership. Instead, they explain that the "Chazakah" of our Gemara is referring to a new type of Kinyan: conquest through war ("Kivush Milchamah"). Conquering someone or something is a powerful enough act in and of itself to transfer ownership from the conquered to the conqueror, and for all intents and purposes the conqueror becomes the new owner.

In summary, according to Rashi and the Ran, a Nochri can purchase an Eved and acquire ownership through any type of Chazakah, provided that the owner agrees to transfer his ownership. In contrast, according to Tosfos and the Rashba, the only way a Nochri can acquire an Eved is in the exact case of the Mishnah -- where the Eved was captured.

However, according to Tosfos and the Rashba, does a Nochri acquire ownership of an Eved only through the Chazakah of conquest of war, or can he acquire an Eved through capturing him in other ways, such as kidnapping him?

The CHAZON ISH (147:11) writes that any act which the government permits is considered "Kivush," conquest. The ruling powers of most countries of Nochrim permit acquiring things through conquest and military victory. Theft, on the other hand, is an act of taking without permission, and thus an act of capturing an Eved through theft would not be considered a valid Kinyan.

QUESTION: Rav Shaman bar Aba says in the name of Rebbi Yochanan that an Eved who escapes from prison acquires himself and goes free. Assuming that his captors (who imprisoned him) are his new owners (as the Gemara earlier establishes), how does the slave acquire his ownership, and his freedom, from them by escaping from captivity?

ANSWERS:

(a) We must assume that the captors despaired ("Ye'ush") of finding the Eved and getting him back. Consequently, the Eved acquires himself after his owners' Ye'ush.

(b) The RASHBA explains, according to his own reasoning earlier (see previous Insight), that the captors acquired the Eved through the mere act of capture and conquest. Hence, by freeing himself from that conquest, or, in other words, by performing a "counter-conquest," the Eved is able to acquire himself. Therefore, the "battle for freedom" that the Eved undertakes (and is victorious in) is considered to be a valid act of Chazakah to acquire himself.

QUESTION: Rav Shaman bar Aba says in the name of Rebbi Yochanan that an Eved who escapes from prison acquires himself and goes free. In addition, we force his master to write for him a Get Shichrur.

If the Eved goes free as a result of his act of escaping from prison, then why is it necessary for his master to give him a Get Shichrur?

ANSWER: The state of being an Eved Kena'ani involves two different elements. The first aspect is the monetary ownership of the Eved. An Eved does not have monetary ownership of himself; he is the possession of his master. The second aspect is his status with regard to Isurim and Mitzvos. He is obligated to fulfill certain Mitzvos (like a woman), and yet he is prohibited from marrying a Jewess. With regard to both the status of his monetary ownership, and the status of his Isurim, he is considered to be in the domain of his master, since both of these elements are the results of the acquisition that his owner made on him.

Rebbi Yochanan is of the opinion that "Ye'ush" (when the owner despairs of ever getting his Eved back) can only free the Eved from the monetary domain of his master. Freedom from the status of an Eved with regard to Isurim can be obtained only through a Get Shichrur. This seems to be the intent of RASHI who writes that the Eved, when he escapes, goes free "from further working for his master" (DH Yatza l'Cherus), and that the master must give a Get Shichrur to the Eved "in order to permit him to marry a Jewess" (DH v'Kosev Lo Get).

Shmuel (later in the Gemara) argues and maintains that the act of Hefker makes the Eved completely free and he does not need a Get Shichrur.

The concept of two different elements of an Eved Kena'ani that the master owns answers another question in our Sugya. The Gemara later on this Daf relates an incident regarding a Shifchah Kena'anis with whom unscrupulous men were performing immoral acts. Abaye declared that if not for the prohibition against freeing an Eved (or Shifchah) Kena'ani, he would force the owner to free her so that she could marry a Jew who would watch over her.

This, however, seems to contradict the Gemara earlier, in which Rebbi Yochanan states that we force a master to free his Eved who escaped from prison. If freeing an Eved Kena'ani is prohibited, how could Rebbi Yochanan require a master to free his Eved?

The answer is that the prohibition to free an Eved is based on the verse, "You will work with them forever" (Vayikra 25:46), as the Gemara says (38b). In the case of the Eved who escaped from prison, the Eved was no longer in the domain of the master with regard to his monetary ownership (since the master already despaired, with "Ye'ush," of ever getting him back). The only element of ownership that the original owner still retains is the Isurim of the Eved. Since the ownership of the Eved with regard to his Isurim does not entitle the original owner to make the Eved work for him, the requirement that "you will work with them forever" does not apply. Therefore, the master may free him and does not transgress the prohibition. (See MINCHAS CHINUCH #347, based on TOSFOS DH Kol.)

38b

OPINIONS: The Gemara (38a) relates an incident regarding a Shifchah Kena'anis with whom unscrupulous men were performing immoral acts. Abaye declared that if not for the prohibition against freeing an Eved (or Shifchah) Kena'ani, he would force the owner to free her so that she could marry a Jew who would watch over her. The Gemara here asks a question on Abaye's ruling. Another incident occurred wherein a maidservant who was half-free and half-Shifchah (that is, she was owned in partnership by two owners, and one of them freed his share in her) was involved in immoral acts, and the Rabanan forced her owner to free her in order to prevent further sinful acts from being done with her. The ruling of the Rabanan in that case clearly contradicts the ruling of Abaye.

The Gemara answers that in Abaye's case, there was another possible option, besides freeing her, which would put an end to the sinful acts being done with her. Since she was a full Shifchah, her owner could marry her off to an Eved. In the case of the half-Shifchah, though, she could not marry an Eved (because of the part of her that was half-free), and therefore the Rabanan had no choice but to force her master to free her.

The Gemara records another incident in which the Rabanan permitted an Eved Kena'ani to be freed. Rebbi Eliezer freed his Eved in order to obtain a tenth Jewish man for a Minyan. The Gemara says that in order to perform a Mitzvah (Davening with a Minyan), freeing an Eved is permitted.

Does this imply that we are permitted to transgress a prohibition (or at least a prohibition derived from a positive commandment) in order to fulfill a Mitzvah?

ANSWERS:

(a) The RITVA proves from here that the prohibition to free an Eved Kena'ani is only an Isur *mid'Rabanan*, which the Rabanan permitted under certain circumstances (such as to perform a Mitzvah d'Oraisa, and to prevent severe Isurim from being transgressed). The Ritva asserts that by no means may a Torah prohibition be transgressed in order to perform a Mitzvah.

(b) The RAMBAN and other Rishonim explain that the prohibition against freeing an Eved Kena'ani is similar to the prohibition of "Lo Sechanem" -- "Do not show them (Nochrim) favor" (Devarim 7:2), which the Gemara (Avodah Zarah 20a) interprets to be a prohibition against giving a Nochri a gift. Likewise, freeing an Eved is considered to be giving the Eved his freedom as a gift.

Consequently, since the prohibition against freeing an Eved is based on the prohibition against giving a gift to a Nochri, we may differentiate between different purposes or intentions for freeing the Eved. If the master's intention is to do a favor for his Eved, then freeing him is considered to be like giving him a present. If the master wants to free his Eved for his (the master's) own purposes, such as to help himself or others fulfill a Mitzvah, then the beneficiary is considered to be the master, and not the Eved.

(c) TOSFOS and the RASHBA explain that freeing an Eved for the sake of performing a Mitzvah is permitted only when that Mitzvah is a "Mitzvah Rabah," a great or special Mitzvah (such as preventing sins of immorality, or enabling people to Daven with a Minyan, or, as we find in Bava Basra 13a, to enable the fulfillment of the Mitzvah of "Peru u'Revu").

QUESTION: The Gemara says that as a result of three misdeeds, people lose their wealth. First, they release their slaves to freedom. Second, they inspect their property on Shabbos. Third, they conduct their Shabbos meals during the Rav's lecture in the Beis ha'Midrash.

Why are these three sins in particular punished by a loss of one's wealth?

ANSWERS:

(a) The MAHARSHA explains how losing one's wealth is an appropriate, measure-for-measure punishment for each of these three sins.

1. Freeing one's Eved. When a person is blessed with material possessions, he must be careful to act with them properly, in accordance with Hashem's will. If he performs transgressions with them (in this case, by freeing his Eved), he loses the right to the possessions which Hashem gave him, and he causes those possessions to be taken away from him.

2. Inspecting one's property on Shabbos. The Gemara in Shabbos (150b) implies that one who frees his mind from business matters on Shabbos will be blessed with riches. Here, the Gemara is expressing the converse -- by thinking about one's business matters on Shabbos, one loses his wealth.

3. Conducting one's Shabbos meal during the Rav's lecture in the Beis ha'Midrash. By not attending the weekly Shabbos lecture, one displays how worldly, physical pleasure is more important to him than Torah study. One who makes Torah study the primary part of his life, and his physical needs secondary, is assured of success with his livelihood. Conversely, one who makes his physical needs primary and his Torah study secondary will lose his wealth.

(b) The IYUN YOSEF finds a common denominator between these three sins. They all demonstrate a person's greed. A master does not free his Eved for no reason; it must be that the cost of upkeep of the Eved was not worth maintaining him, and therefore the master, out of greed, freed him. A greedy person might utilize Shabbos -- when one is free from going to work and being involved in other business pursuits -- as an ideal time to inspect his properties so that he does not have to waste his valuable time during the rest of the week to do so. Similarly, a greedy person will conduct his Shabbos meals while everyone else is in the Beis ha'Midrash, listening to the Rav's lecture. By conducting his meals at that time, the greedy person will avoid having to share his feast with poor people. Hashem punishes such acts of greed by taking away a person's wealth.