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Gitin, 41

1) A SLAVE THAT WAS DESIGNATED AS A SECURITY FOR A LOAN AND THEN FREED

QUESTION: The Mishnah (40b) discusses a case of someone who borrowed money, and he designated his Eved to be the security for the debt ("Apotiki") so that when repayment is due, the lender will take the Eved as repayment for his loan. The Eved was then freed. The Tana Kama and Raban Shimon ben Gamliel disagree regarding the exact procedure in such a situation.

The Gemara cites two explanations for the Machlokes in the Mishnah. Rav explains that the case of the Mishnah is when the original owner (the borrower) freed his Eved. By freeing his Eved, he removes ("Mafki'a") the lien ("Shi'abud") of the lender (the "second owner") from the Eved. Even though the Eved is actually free, we are concerned that the lender will try to claim the Eved as repayment for his debt and people will then think that he is an Eved and besmirch his reputation. Therefore, the Rabanan require the lender to write a Get Shichrur to him so that it is clear to all that he is not an Eved.

The Tana Kama maintains that the borrower -- who is the original owner of the Eved -- is exempt from paying back his debt (since he made the Eved an explicit "Apotiki" and the Eved is now free and is no longer his). The former Eved, however, must pay the lender for his freedom. Raban Shimon ben Gamliel argues and maintains that the *borrower* must pay the entire amount of the debt to the lender.

According to Rav, the Machlokes between the Tana Kama and Raban Shimon ben Gamliel is whether or not a person is Chayav for damaging the Shi'abud of another person. If someone damaged a Shi'abud, an item owned by one person but on which another person has a lien, is it considered as though he damaged the actual property of the holder of the lien and he must therefore compensate for the damage, or do we say that compensation for damages applies only when one damages an item that is under one's actual, physical ownership, and not just collateralized to him (since it is not considered to be owned by him yet)? The Tana Kama maintains that when the borrower freed his Eved and thereby "damaged" the Shi'abud of the lender, that is not considered damage and he does not have to pay. Raban Shimon ben Gamliel maintains that it *is* considered damage, and thus the borrower must pay the lender for damaging his Shi'abud (i.e. freeing the Eved).

Ula explains that the *lender* gave the Eved (who was the "Apotiki" for his loan to the borrower) a Get Shichrur. The Shichrur should really have no validity, since the lender is not yet the owner of the Eved. However, since he gave the Eved a Get Shichrur, word has gone out that the Eved is now a free man, and thus the original owner of the Eved must free him. Since the lender's "Shichrur" of the Eved requires that the borrower free the Eved for real, this might be considered an act of damage on the lender's part. The Tana Kama maintains that the lender is exempt from paying the original owner of the Eved (the borrower). However, the *Eved* must pay to the original owner -- in return for his freedom -- the difference between the sum of the loan and his worth as an Eved (for example, if the loan was $100, and the Eved was worth $300, the Eved must pay $200 to the owner). Raban Shimon ben Gamliel argues and maintains that the Eved is completely exempt (since he did not do any damage to anyone), and that the *lender* must pay the borrower restitution for the loss of his Eved that he caused.

According to Ula, the Machlokes between the Tana Kama and Raban Shimon ben Gamliel is whether or not unrecognizable damage ("Hezek she'Eino Nikar") is considered damage for which one must pay restitution. According to the Tana Kama, such an act of damage is *not* considered indemnifiable damage, and therefore the lender who caused the Eved to be freed is exempt. According to Raban Shimon ben Gamliel, the lender is considered a "Mazik" and must pay restitution to the borrower, even though the damage that he did is not readily noticeable.

Why, though, is causing an Eved to become free considered damage that is not recognizable, "she'Eino Nikar?" It must be because we do not see any actual damage or change in the object (the Eved). If this is the reason why the Shichrur of an Eved is "Hezek she'Eino Nikar," then why is it so obvious to the Gemara's first explanation (that of Rav) that Raban Shimon ben Gamliel -- who says that when the owner of the Eved (the borrower) frees his Eved he must pay the lender -- maintains that one is Chayav for damaging the Shi'abud of another person? If freeing one's Eved is "Hezek she'Eino Nikar," then why is it so obvious that the borrower is obligated to pay the lender for that damage? It should depend on the Machlokes which the Gemara cites in the second explanation, whether one is Chayav for "Hezek she'Eino Nikar" or not! However, from the text of the Gemara it seems that the two explanations are unrelated.

ANSWER: It must be that the reason why causing the Shichrur of the Eved is considered "Hezek *she'Eino Nikar*" is not, like we assumed originally, because the Shichrur itself (the Eved becoming free) is not recognizable. Rather, the Shichrur *is* recognizable, even though no physical damage or change occurred. Since Shichrur involves the removal of the master's ownership from the Eved, it is considered a Hezek that *is* recognizable. This is because the act -- and consequences -- of Shichrur are evident to all, for whoever sees the owner giving his Eved a Get Shichrur sees a loss being caused to lender. This is what the first explanation of the Gemara assumes, and that is why it is obvious that the Shichrur of the Eved is a Hezek that *is* recognizable.

According to the second explanation of the Gemara, on the other hand, the Shichrur that the lender gave to the borrower's Eved should not take effect at all, because the Eved does not belong to the lender. It is only valid due to a Takanah d'Rabanan (as described above). As such, the actual act that the lender did has no power to free the Eved and is therefore considered a "Hezek she'Eino Nikar." (It is "Eino Nikar" either because it is not evident to all that there is a Takanah d'Rabanan which requires the owner to free his Eved as a result of the act of the lender, or because the act itself is not an actual of Shichrur, but merely an indirect cause for the Shichrur, and thus it is "Hezek she'Eino Nikar.") (A. Kroningold)

QUESTION: The Mishnah (40b) discusses a case of someone who borrowed money, and he designated his Eved to be the security for the debt ("Apotiki") so that when repayment is due, the lender will take the Eved as repayment for his loan. The Eved was then freed. The Tana Kama and Raban Shimon ben Gamliel disagree regarding the exact procedure in such a situation.

The Gemara cites two explanations for the Machlokes in the Mishnah (see previous Insight). In the second explanation, Ula explains that the lender gave the Eved (who was the "Apotiki" for his loan to the borrower) a Get Shichrur. The Shichrur should really have no validity, since the lender is not yet the owner of the Eved. However, since he gave the Eved a Get Shichrur, word has gone out that the Eved is now a free man, and thus the original owner of the Eved must free him. Since the lender's "Shichrur" of the Eved requires that the borrower free the Eved for real, this might be considered an act of damage on the lender's part. The Tana Kama maintains that the lender is exempt from paying compensation to the original owner of the Eved (the borrower). However, the *Eved* must pay to the original owner -- in return for his freedom -- the difference between the sum of the loan and his worth as an Eved (for example, if the loan was 100, and the Eved was worth 300, the Eved must pay 200 to the owner).

Even though the original owner (the borrower) no longer needs to pay the lender since the Eved (the "Apotiki") is no longer in his possession, the Eved must pay for what he gained -- his freedom. He only needs to pay the difference between his value (e.g. $300) and the loan (e.g. $100), since the owner, anyway, would have had to pay the value of the loan ($100), and thus the difference ($200) is the Eved's gain.

Raban Shimon ben Gamliel argues and maintains that the Eved is completely exempt (since he did not do any damage to anyone), and that the *lender* must pay the borrower compensation for the loss of his Eved that he caused.

Why, according to Raban Shimon ben Gamliel, is it so clear that only the lender must pay, and not the Eved? It is true that the lender caused the Hezek, but the Eved is receiving a benefit for which he should have to pay! The Eved is left with part of the loss that the lender caused ($100) and should have to pay for what he gained ($200)! It would be more appropriate to make the lender lose the amount of the loan ($100) and not have to pay for the loss of the Eved, and to make the Eved pay for the rest ($200), like the Tana Kama says! (See TORAS GITIN.)

ANSWER: The AYELES HA'SHACHAR offers the following explanation of the difference between acquiring freedom (as in our Mishnah) and acquiring money or other possessions. When one acquires or gains money or possessions, the beneficiary is in possession of some sort of monetary asset for which he should be required to pay. In contrast, when an Eved turns into a free person, there is no tangible asset that we can identify. It is true that yesterday he was an Eved and today he is free, but we do not consider him as possessing or owning himself, like he possesses or owns a tangible object. Rather, we consider him as having left the entire state of being owned. A free person is not property that is owned by someone, but rather he is a *person*, and a person cannot be owned.

Therefore, we do not view the freed Eved as owning anything as a result of the Shichrur, and we cannot require him to pay for a new asset in his possession.

The obligation that the Tana Kama describes is only a Chiyuv d'Rabanan, instituted in order to save the original owner from a significant loss due to the Takanah d'Rabanan that the Eved not be mistaken for a free person (as a result of the lender's act of Shichrur). (A. Kronengold)

41b

OPINIONS: The Mishnah discusses the situation of a person who is half-Eved and half-free ("Chatzyo Eved v'Chatzyo Ben Chorin"). Beis Hillel originally maintained that the Eved continues working for his master half of the time, and works for himself (i.e. he is free) half of the time (such as on alternate days). Although this is an appropriate arrangement regarding the monetary ownership of the Eved, Beis Shamai argues with Beis Hillel's initial view. Beis Shamai requires that the master free his half of the Eved, because the Eved is not able to fulfill the Mitzvah of Piryah v'Rivyah as long as any part of him is an Eved, since he is not able to marry a Shifchah (because of the part of him that is free) and he is not able to marry a free Jewess (because of the part of him that is still an Eved). Beis Hillel later agreed to the view of Beis Shamai.

Which part of the Eved is obligated to fulfill the Mitzvah of Piryah v'Rivyah? Is the part of him that is free obligated, or is even the part of him that is an Eved obligated to fulfill Piryah v'Rivyah (see also next Insight)?

(a) In order to answer this question, we must first examine the source for the Mitzvah of Piryah v'Rivyah. There are actually two verses which refer to the Mitzvah of Piryah v'Rivyah. The first verse is, "Peru u'Revu" (Bereishis 1:28). The second verse is, "He did not create it in vain; He fashioned it to be inhabited (la'Sheves)" (Yeshayah 45:18), the verse quoted by our Mishnah. The RIVAM, quoted by TOSFOS (DH Lo), maintains that the two halves of the person who is a half-Eved have two separate obligations. The part of him that is free is obligated in the basic Mitzvah of Piryah v'Rivyah, while the part that is an Eved is only obligated in "Sheves." (The part of him that is free is certainly obligated in that element as well; it is just that the part of him that is an Eved is *only* obligated in the concept of "Sheves" but not in the Mitzvah of Piryah v'Rivyah.)

The Rivam proves this from the wording of the Mishnah. If the reason to free the Eved is in order to enable him to fulfill the Mitzvah of Piryah v'Rivyah, then why does the Mishnah not quote the verse in Bereishis which is the source for the commandment of Piryah v'Rivyah? The Rivam explains that the Mishnah wants to quote a verse which is relevant to both parts of the half-Eved, half-free person, and therefore it cites only the verse of "Sheves," because an Eved is exempt from the commandment of the verse of Piryah v'Rivyah.

(b) TOSFOS in Chagigah (2b, DH Lo) argues with the Rivam. He holds that an Eved is always required to fulfill the Mitzvah of Piryah v'Rivyah. Tosfos infers from the wording of the Mishnah which uses the phrase, "[Lo Nivra ha'Olam Ela] l'Piryah v'Rivyah," that the Mitzvah of Piryah v'Rivyah applies even to the part of the person which is an Eved. What, though, does Tosfos do with the proof of the Rivam ?

Tosfos there explains that the reason why the Mishnah cites the verse of "Sheves" is because that verse teaches the great importance of the Mitzvah, for it says that the Mitzvah of Piryah v'Rivyah is one of the purposes of Hashem's creation of the world.

QUESTION: The Gemara teaches that the obligation of an Eved to observe the Mitzvos is equivalent to the obligation of a woman, as derived from the Gezeirah Shavah of "Lah, Lah." The Gemara in Yevamos (65a) states clearly that a woman is exempt from the Mitzvah of Piryah v'Rivyah. Why, then, is an Eved obligated in the Mitzvah of Piryah v'Rivyah? Why should this Mitzvah be different than all other Mitzvos, in which an Eved is obligated only if a woman is obligated?

ANSWERS:

(a) The PNEI YEHOSHUA here differentiates between various types of Mitzvos with regard to deriving the Eved's exemption from the exemption of a woman. One type of Mitzvah from which a woman is exempt is a Mitzvah which is dependent on a specific time ("Mitzvas Aseh she'ha'Zman Grama"). This exemption is a Gezeiras ha'Kasuv, derived from verses in the Torah (see Kidushin 34b). Another type of Mitzvah from which a woman is exempt is a Mitzvah for which a woman does not have the capability to fulfill (such as the Mitzvah of Milah, and the Mitzvah not to shave one's beard). A woman, obviously, has no obligation to fulfill such Mitzvos, and nor is she obligated to perform those Mitzvos on her children.

The Pnei Yehoshua asserts that the Gezeirah Shavah that equates an Eved to a woman only applies to the Mitzvos that a woman *could* perform but is exempted by the Torah from performing it. In contrast, the Gezeirah Shavah does *not* apply to Mitzvos that a woman does not have the capability to perform, and thus an Eved *is* obligated to perform those Mitzvos. On the contrary, since he has the capability to perform those Mitzvos, there is no reason to exempt him.

The reason a woman is exempt from the Mitzvah of Piryah v'Rivyah is because of the reasoning of "Ish Darcho Lichvosh, v'Ein Ishah Darcho Lichvosh" -- "it is the manner of a man to conquer, and not the manner of a woman to conquer" (Yevamos 65b). That logic applies only to a woman and not to a male Eved, and thus the Gezeirah Shavah does not apply and an Eved remains obligated to perform the Mitzvah of Piryah v'Rivyah.

(b) The TUREI EVEN (Chagigah 4a) and MISHNEH L'MELECH (Hilchos Melachim 10:7) answer that the commandment of "Peru u'Revu" (Bereishis 1:28) was said to Adam ha'Rishon and should apply to all people, Jews and B'nei Noach alike. The Gemara in Sanhedrin (59b) states that B'nei Noach were indeed included in the Mitzvah of Piryah v'Rivyah -- until the Torah was given to the Jewish people at Har Sinai. At that time, all of the Mitzvos of the Torah were given exclusively to the Jewish people, and were removed from B'nei Noach (unless the Torah specifically includes them). The Acharonim explain that this removal from B'nei Noach of the obligation of certain Mitzvos applies only to B'nei Noach who have no part in the Kedushah of Yisrael. An Eved Kena'ani, though, has a part in the Kedushah of Yisrael, through the requirement that he undergo Milah and Tevilah when he becomes an Eved. Hence, the giving of the Torah at Har Sinai did not remove from him any of the Mitzvos that were originally given to B'nei Noach, since the Eved is part of the Jewish people to some degree. That is why the Mitzvah of Piryah v'Rivyah remained binding on the Eved.

According to this, the Eved's obligation of Piryah v'Rivyah is a remnant of the original commandment to all B'nei Noach. It is not a result of the new obligation of Piryah v'Rivyah that was given to the Jewish people.

This explains why the Eved has a greater obligation that a woman with regard to Piryah v'Rivyah. While it is true that the Gezeirah Shavah teaches that an Eved should have the same obligations as a woman, his obligation in Piryah v'Rivyah is not related to the Mitzvah given to the Jewish people. Rather, it is an obligation incumbent upon him as a Ben Noach.