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Kidushin, 16

1) WHICH IS STRONGER: A SHTAR OR A CHAZAKAH

QUESTION: The Gemara proves from verses that only one of the two Kinyanim, Shtar or Chazakah, can be used to acquire an Amah Ivriyah (according to Rav Chisda). Even though each of these Kinyanim has an element of superiority over the other (i.e. a Shtar is the only Kinyan that works to divorce a woman, and a Chazakah is the only Kinyan that works to take possession of the property of a Ger who died with no heirs), the Gemara proposes that it is more logical that a Shtar works to acquire an Amah Ivriyah, because we never find that Chazakah applies in situations of Ishus (issues related to marriage).

What difference does it make if the Kinyan of Shtar can be used in situations of Ishus? The Gemara here is discussing the acquisition of an Amah Ivriyah, which itself is not a situation of Ishus! Even though an Amah Ivriyah can become married through Yi'ud, the Gemara earlier (5a-5b) makes it clear that an Amah Ivriyah is not considered a matter of Ishus! (See TOSFOS 5a, DH sh'Ken Yeshnan.)

ANSWERS:

(a) The RITVA explains that even though Amah Ivriyah is not Ishus, nevertheless a Shtar is a stronger Kinyan than Chazakah, since Shtar can both create and remove an Isur in matters of Ishus, while a Chazakah cannot remove land from a person's possession and make it Hefker.

(b) The TOSFOS RID deletes the words "we do not find it in a case of Ishus," and he explains that the second answer of the Gemara is the only answer.

(c) The TOSFOS CHACHMEI ANGLIYAH write that an Amah Ivriyah *is* considered Ishus because Yi'ud can be performed with her. He does not address the question from the Gemara earlier, though. Perhaps he means that an Amah Ivriyah has a minimal element of Ishus, but not as strong an element of Ishus as Kidushin has. The Gemara earlier compares Amah Ivriyah with Kidushin, while this Gemara is comparing Shtar with Chazakah, and Chazakah applies *only* to land and does not apply to even a minimal element of Ishus.

Alternatively, Tosfos Chachmei Angliyah might learn like TOSFOS (5a, DH sh'Ken) who explains that the Gemara there maintains that Yi'ud is performed with the remainder of the servitude owed to the master, and not with the original money used to purchase the Amah Ivriyah, in which case there is no element of Ishus involved with the purchase of the Amah Ivriyah. (See Insights to 19a.) Our Gemara, in contrast, might be of the opinion that Yi'ud is performed with the money used to purchase the Amah Ivriyah. According to that opinion, an Amah Ivriyah certainly is related to Ishus, since the money used for her purchase might later create Yi'ud.

16b

QUESTION: The Gemara cites a Beraisa in which the Tana Kama says that Ha'anakah gifts are given to an Eved who goes free after six years of servitude, to an Eved who goes free at Yovel, and to an Eved Nirtza who goes free with the death of his master, and to an Amah Ivriyah who goes free with the appearance of Simanim (signs of maturity). Ha'anakah gifts are not given to an Eved who goes free with Gira'on Kesef. Rebbi Meir argues and says that even an Eved who goes free with Gira'on Kesef receives Ha'anakah gifts. Rebbi Shimon then adds that there are three cases of Ha'anakah for a man (an Eved who goes free at six years, at Yovel, and an Eved Nirtza who goes free at Yovel), and three cases of Ha'anakah for a woman (an Amah who goes free at six years, at Yovel, and with Simanim).

What is Rebbi Shimon adding? Even though Rebbi Shimon leaves out the death of the master, the Gemara earlier says that he leaves it out because he is only listing those things that free an Eved that come at a set time! He is merely repeating what the Tana Kama holds (i.e. that an Eved does not get Ha'anakah gifts when he goes free with Gira'on Kesef)! (RAMBAN and other Rishonim)

ANSWERS:

(a) The RAMBAN and other Rishonim write that indeed Rebbi Shimon agrees with the Tana Kama, and he only wants to point out that a man does not go free with Simanim and that a woman cannot become Nirtza. The TOSFOS HA'ROSH says further that Rebbi Shimon wants to add that when a Nirtza goes free at Yovel, he also receives Ha'anakah gifts.

(b) The TOSFOS RID writes that Rebbi Shimon indeed argues with the Tana Kama and maintains that when the Eved goes free with the death of the master, he does not receive Ha'anakah gifts, because the heir does not have to pay the Eved what his father owed to the Eved.

According to the Tosfos Rid, why does the Gemara mention that the death of the master has no set time, and that is why Rebbi Shimon does not discuss it? The Gemara should say instead that Rebbi Shimon cannot possible be referring to the death of the master, because then he would be saying the same as the Tana Kama! (SHITAH LO NODA L'MI; see PNEI YEHOSHUA.)

The SEFER HA'MIKNAH suggests a logical justification for this ruling. The Tana Kama is Rebbi Yehudah, who normally maintains that a "Milveh Kesuvah ba'Torah k'Kesuvah b'Shtar Damya" (see beginning of 13b), and therefore such a debt may be collect from the heirs of the debtor. Rebbi Shimon, in contrast, holds that it a "Milveh Kesuvah ba'Torah" is not considered to be written in a Shtar, and therefore it cannot be collected from the heirs of the debtor.