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Kidushin, 22

1) THE PROHIBITION AGAINST "FORCING" A "YEFAS TO'AR"

OPINIONS: The Gemara teaches regarding a Yefas To'ar that we learn from the verse, "And you shall take her into your house" (Devarim 21:12), that the Jewish soldier "may not force her during war" -- "sh'Lo Yilchatzenah ba'Milchamah."

What does this refer to? The Gemara earlier says that the purpose of the Halachah of Yefas To'ar is to *permit* the captive woman to the soldier during wartime!

(a) RASHI explains that the soldier may not force the woman to live with him during the war. This implies that even the first Bi'ah is prohibited during war, and it is permitted to live with a Yefas To'ar only after the entire process of thirty days of mourning has passed. Although the RAMBAN (Al ha'Torah) points out that this is what the intention of the verse (Devarim 21:13) seems to be, based on the most straightforward reading, and TOSFOS and the Rishonim cite a Yerushalmi in which Rebbi Yochanan explicitly states such an opinion, nevertheless our Gemara (21b) clearly differentiates between the first act of Bi'ah (the purpose of which is to appease the Yetzer ha'Ra) and the ensuring acts of Bi'ah. If the first act is not permitted until after the thirty-day mourning period, when the woman's conversion is completed, then what is the difference between the first act of Bi'ah after those thirty days have passed and the other acts of Bi'ah? After thirty days have passed, she is already his wife!

TOSFOS, TOSFOS HA'ROSH, and other Rishonim explain that perhaps Rashi understood that the first Bi'ah is permitted after thirty days in order to ensure that during the war, the soldier's Yetzer ha'Ra will not overwhelm him, by providing him with the knowledge that he will be permitted to this woman later ("Pas b'Salo"). In contrast, the other acts of Bi'ah that follow are not necessary to appease the Yetzer ha'Ra, for if he knows that one Bi'ah will be permitted, then he already has "Pas b'Salo" and his Yetzer is appeased. The reason the Torah has to give a special dispensation to permit her even though she undergoes conversion is because, as Rashi here points out, she converts against her will (like the conversion of an Eved Kena'ani).

(b) The RAMBAM (Hilchos Melachim 8:3) explains that "sh'Lo Yilchatzenah ba'Milchamah" means that the soldier should not live with the Yefas To'ar in the throes of the battle, but rather he should take her to a private, secluded place, away from the warfare, and live with her there. Similarly, the RAMBAN (Al ha'Torah) explains that he should take her home, into his house, and live with her there, even before she starts her thirty-day process of Aveilus. He should not live with her, though, in the battlefield.

(c) The YERE'IM cited by the Ramban and other Rishonim explains that "sh'Lo Yilchatzenah ba'Milchamah" means that he may not force her to live with him against her will during wartime; only if she is willing is it permitted. This conforms with what Rashi writes in the Chumash (Devarim 21:13) -- the Nochri women would dress up in times of war in order to willingly seduce the enemy men. Because of this, the Torah permits living with a Yefas To'ar who uses such tactics. It is not permitted, of course, to take a woman against her will, even during wartime. Some point out that this might also be the intention of Rashi here, who writes that he should not force her to live with her, meaning not that he should not live with her at all during the battle, but that he should not live with her forcefully, against her will.

(d) RABEINU TAM cited by the Ramban and other Rishonim explains that "sh'Lo Yilchatzenah ba'Milchamah" means that he should not live with her a second time during the war; only the first Bi'ah is permitted during the war.

(e) TOSFOS explains in the name of RABEINU TAM that "sh'Lo Yilchatzenah ba'Milchamah" means that he may not start the thirty-day process during the war, in case the war stretches on, but rather he must wait until the war is over and he takes her home before starting the thirty-day process of conversion.

QUESTION: The Gemara cites a Beraisa which teaches that an Eved Ivri must make two verbal requests to stay with his master in order to become Nirtza -- one request at the beginning of his six years of service and one at the end. The Gemara eventually concludes that the first request does not have to be made at the actual beginning of the six years (since, at that point, he has not yet married a Shifchah Kena'anis nor had children from her and cannot say that he loves his wife and his children), but rather he makes his first request at the beginning (or some time before) the last Perutah's worth of work that he is obligated to do for his master. He makes his second request at the end of the last Perutah's worth of work.

Our texts are consistent with Rashi's preferred Girsa of the Gemara. The Gemara learns from the verse, "Lo Etzei Chofshi" (Shemos 21:15) that the Eved must say that he wants to remain an Eved at the time that he goes free at the end of six years. The Gemara learns from the phrase, "Im Amor Yomar ha'Eved" (ibid.), that the Eved must say that he wants to remain an Eved at the beginning of his six year servitude. RASHI explains that "Lo Etzei Chofshi" implies just before he goes free, and "Im Amor Yomar ha'Eved" implies while he is still an Eved (when he still has at least a Perutah's worth of work left to do).

Rashi cites a variant Girsa which teaches the opposite. According to that Girsa, we learn from "Im Omar Yomar ha'Eved" that the Eved must request to stay an Eved at the *end* of his servitude, and we learn from "Lo Etzei Chofshi" that he must also make the request at the *beginning* of his servitude (the beginning of the last Perutah's worth of work). Rashi says that he cannot reconcile this explanation, because how is it possible to derive from "Im Amor Yomar ha'Eved" that he has to make his request specifically when he goes free (at the end of the last Perutah's worth of work)? The Torah would not use the word "Eved" to refer to him at the point that he goes free! Moreover, how can we learn that he must make his request at the beginning of his last Perutah's worth of work from the verse, "Lo Etzei Chofshi?" He is not yet about to go free at that point! In addition, we could learn that he must make the request while he is still an Eved from the verse of "ha'Eved!" How is "ha'Eved" related to the end of the servitude, while "Chofshi" is related to the beginning of the servitude?

Is there any way to reconcile the explanation of the other Girsa?

ANSWER: Perhaps the other Girsa understands the concept of Avdus like the RAMBAN and RASHBA earlier (16a; see Insights there, Insights to 21b), who explain that there are two different types of Kinyanim involved with an Eved Ivri. The first is a Kinyan Mamon, a monetary Kinyan, just like the Kinyan on any other type of property. This Kinyan is what obligates the Eved to do work for the master.

The second type of Kinyan is a Kinyan Isur, a Kinyan that has Halachic, and not just monetary, ramifications. It is this Kinyan that enables an Eved Ivri to marry a Shifchah Kena'anis (see Insights to 21b).

According to their explanation, the word "Chofshi" might be alluding to the monetary obligation, the Kinyan Mamon, which obligates the Eved to do what the master wants and restricts him from doing what he himself wants. "Lo Etzei Chofshi" thus means that he still is obligated to do what the master wants, and that he still has a Kinyan Mamon obligating him, meaning that he still has at least a Perutah's worth of work left to do for his master. The phrase "ha'Eved," though, does not imply that he actually has to work, but that he has the title and status of "Eved." The title of Eved is what permits him to a Shifchah Kena'anis. It is the Kinyan Isur which bestows upon him the title of Eved. Hence, even at the end of the last Perutah's worth of work, when he no longer has any obligation to work for the master and no monetary obligation to him, he still has the title of an Eved and the laws of an Eved (i.e. he is permitted to a Shifchah Kena'anis).

That explains why the verse, "Im Amor Yomar ha'Eved," refers to the *end* of the last Perutah's worth of work, when the Eved no longer has a monetary obligation to work for the master, but rather has only the Halachic status (with regard to Isur) of an "Eved."

RASHI, who does not accept this explanation, follows his own view as expressed earlier (!6a). Rashi maintains that there is no Kinyan Isur on an Eved Ivri!

The Gemara teaches that an Eved must make two requests to stay with his master in order to become Nirtza, one request before the last Perutah's worth of work, and one request at the end of the last Perutah's worth of work.

RAV YEHOSHUA LEIB DISKIN uses this to explain the verses in the beginning of Parshas Va'Eschanan. After Moshe Rabeinu beseeches of Hashem to let him enter Eretz Yisrael, Hashem tells Moshe Rabeinu "Al Tosef..." -- do not request again to go into Eretz Yisrael. The commentators explain that it seems from the verse that if Moshe Rabeinu would have requested an additional time, Hashem would have had to acquiesce to his request (see also DIVREI ELIYAHU in the name of the Zohar, and NACHAL KEDUMIM, end of Be'ha'aloscha). Why would the second request add more than his first request? Why would Hashem have had to acquiesce to a second request?

MAHARIL DISKIN cites the Midrash (Tanchuma #4) at the beginning of va'Eschanan, which says that Moshe Rabeinu told Hashem, "You called me an 'Eved' (Devarim 34:5), and You wrote in the Torah that if an Eved says that he loves his master, his wife and his children and therefore he does not want to go free, that he remains an Eved." Moshe Rabeinu told Hashem that, "I love my Master (Hashem), and my wife and children (the Jewish people), and thus I do not want to go free ('Chofshi,' as in 'Chofshi Min ha'Mitzvos,' a state of being free of the obligation to perform Mitzvos, i.e. death). Our Gemara says that an Eved Ivri is only Nirtza when he makes a second request, at the end of his last Perutah's worth of work. Moshe Rabeinu had reached the end of his life, the end of his last Perutah's worth of work as the leader of the Jewish people and the dedicated servant of Hashem, and thus he requested a second time at that point, in accordance with the laws of an Eved Ivri who wishes to become Nirtza and to stay with his master, to stay with the Master he loves and with the Jewish people he loves. Had he made the request at that point, Hashem would have had to give in to his request.

22b

QUESTION: The Gemara cites "Derashos k'Min Chomer" to explain why an Eved Nirtza is pierced in his ear, and why the piercing is done specifically against a door. His ear is pierced because it was through his ear that he heard on Har Sinai the words of Hashem, "For the Jewish people are servants unto Me" (Vayikra 25:55), and yet he denied what he heard and went and subjugated himself to another master. His ear is pierced against the door, because the door and the doorpost were witnesses in Mitzrayim to the the blood placed on the door and doorpost to signify that Hashem was taking the Jewish people out of Mitzrayim in order to make them Avadim unto Him. Hence, when this person sells himself as an Eved to another person, he is forgetting that he is an Eved only to Hashem.

The symbolism of the door and Mezuzah is clear. The Retzi'ah takes place at the doorpost to remind the Eved of the door and doorpost that were marked with blood when Hashem took the Jewish people out of Mitzrayim to make them His servants. How, though, does the *ear* remind a person of the giving of the Torah at Har Sinai, more than any other part of his body? We can understand that a person who stood at Har Sinai and who then sold himself in the Midbar as an Eved to someone else, needs to have his ear pierced, because his own ear actually heard the commandment at Har Sinai, "For the Jewish people are servants unto Me." He is denying what he heard and that is why he must be pierced in the ear. But for all Avadim in ensuing generations, whose ears did not literally, physically hear Hashem speak these words at Har Sinai, why should their ears be pierced? In what way does the ear in particular, as opposed to any other part of the body, show that a person is supposed to be an Eved to Hashem? Also, in what way is the ear related more directly to hearing "the Jewish people are servants unto Me" more than to hearing the other things that we heard at Har Sinai (such that the ear is not pierced when a person does any other Aveirah)?

Moreover, the Sefarim ask that the ear should not be pierced, because the ear did what it was supposed to do -- it listened at Har Sinai. It is the rest of the body that did not do what it was supposed to do -- such as the mouth, which said that it wants to be an Eved to another person!

ANSWER: The word "Lishmo'a" (to hear) is used not only in the sense of physically listening to something, but also in *accepting* what a person hears (as in Bamidbar 24:16, and Shmuel I 15:22). Because of this, the ear is not only considered the vehicle of listening, but it also symbolizes acceptance of what is heard and subjugating oneself to the mandate that is heard. In this sense, it is the ear that makes a person an Eved. The PACHAD YITZCHAK (Pesach 43:1) expresses this concept. He quotes RABEINU YONAH (Sha'arei Teshuvah 2:12) who writes that the ear is a more important limb than the eyes and other limbs of a person, and therefore there is a greater responsibility to serve Hashem with the ear than with the other limbs, by listening to and accepting rebuke and directives in serving Hashem.

Rav Hutner explains that what makes the ear unique is that it enables a person to be an Eved by accepting and subjugating oneself to the dictates of another. The Gemara in Bava Kama (85b) teaches that if a person blinds another person, then he must pay restitution for the eye, but if he deafens another person, then he must pay the entire value of a person. The reason is because the value of a person with regard to Nezikin is determined by the value the person would be worth as an Eved, and a deaf person has no value as an Eved.

Rav Hutner adds that all the other parts of the body both receive sensory information and impart such information. The eye sees what is on the outside, and the look in a person's eye reveals what he is feeling inside. The nose breaths in and breaths out, the hands receive sensory information through the sense of touch and they give information. The ear, in contrast, only receives and does not give anything. In that sense it represents a total humbling of oneself and an absolute and unconditional acceptance of something from the outside. That is what makes the ear the limb of Avdus. (This might be why it was customary to put earrings in the ears of slaves as a sign of Avdus.)

Rav Hutner explains that this is why the Retzi'ah is performed with the ear. It is the ear that heard on Har Sinai that we are Avadim of Hashem. It means that everything that the ear heard on Har Sinai makes him an Eved of Hashem. This explains also why even today, with the Halachos of Retzi'ah, piercing the ear is a reminder that a person is supposed to be an Eved to a Higher Authority and he is denying that by making himself an Eved to man.

QUESTION: The Mishnah teaches that an Eved Kena'ani can be acquired with Kesef, Shtar and Chazakah. The Gemara adds another two Kinyanim that work to acquire an Eved Kena'ani: Chalipin and Meshichah. The Gemara explains that the Mishnah does not mention these two Kinyanim, since they work for Metaltelin as well, and the Mishnah is listing only those Kinyan that do not work for Metaltelin and that still work to acquire an Eved Kena'ani.

What is the Halachah with regard to acquiring an Eved Ivri with Chalipin or Meshichah? The Mishnah earlier (14b) teaches that an Eved Ivri is acquired with Kesef, Shtar and Chazakah (like an Eved Kena'ani). Is he also acquired with Chalipin and Meshichah?

ANSWERS:

(a) Regarding Chalipin, the Beraisa (8a) learns from the verse, "mi'Kesef Miknaso" (Vayikra 25:51) that an Eved Ivri is not acquired with Chalipin. The Gemara there explains that according to Rav Nachman, we do not see from this Beraisa than an Eved Ivri is not acquired with Chalipin, because the Beraisa says that an Eved Ivri cannot be acquired with food (Tevu'ah), and Rav Nachman says that food cannot make a Kinyan Chalipin. Nevertheless, Tosfos there (DH u'Mai) seems to accept, as the Halachah, that an Eved Ivri cannot be acquired with Chalipin. Even if the Beraisa does not follow the opinion of Rav Nachman, nevertheless the verse that says "mi'Kesef Miknaso" indeed is excluding Kinyanim that are done without money, but with objects (such as Kinyan Chalipin).

The KETZOS HA'CHOSHEN (195:8) proposes a logical framework to understand why an Eved Ivri is not acquired through Chalipin, based on what TOSFOS teaches in Erchin (30a, DH v'Lo). Tosfos there explains that Chalipin can be used only for a "Kinyan Muchlat," an absolute Kinyan of a concrete object. It cannot be used to acquire something that will eventually be returned to its owner, such as a "Matanah Al Menas l'Hachzir," She'eilah (borrowing), and Sechirus (renting). An Eved Ivri is not owned with a Kinyan Muchlat, but rather he goes free after six years or Yovel, and therefore Kinyan Chalipin cannot work to acquire him. In contrast, an Eved Kena'ani serves his master forever, and thus he can be acquired with Chalipin.

(b) Regarding Meshichah, the RITVA (14b) writes that an Eved Ivri cannot be acquired through Meshichah. However, he does not explain what his source is for this. Why should an Eved Ivri be different than any other item of Metaltelin that can be acquired with Meshichah?

Perhaps the Ritva is following his own view in that Sugya in which he explains the Sugya in accordance with the opinion of Rebbi Yochanan. Rebbi Yochanan who holds that, mid'Oraisa, Metaltelin can only be acquired through Kesef and not through Meshichah. Even though the Rabanan instituted that the Kinyan Kesef does not take effect until a Kinyan Meshichah is made, that was done in order to prevent the seller from being negligent in caring for the purchased product that is still in his domain after the transfer of money. There is no such concern with regard to the Kinyan of an Eved Ivri (who protects himself), and thus the Rabanan did not institute Kinyan Meshichah for the acquisition of an Eved Ivri. According to this explanation, Reish Lakish, who argues with Rebbi Yochanan and maintains that Meshichah is a valid Kinyan for all Metaltelin, will hold that an Eved Ivri should be able to be acquired through Meshichah.

The PNEI YEHOSHUA (14b) and other Acharonim, however, rule unequivocally that Meshichah cannot be used to acquire an Eved Ivri, like our Sugya implies when it says that Chalipin and Meshichah work only for an Eved Kena'ani. The Pnei Yehoshua explains that the reason for this is because Meshichah can only be used to make an absolute Kinyan, similar to what the Ketzos ha'Choshen writes with regard to Kinyan Chalipin.

The SEFER HA'MIKNAH (55:1) points out that this logic is clearly stated by the Ritva (47b) who writes that Meshichah cannot be used to make a Kinyan on a borrowed object, since the person is only being Koneh the *usage* of the object and not the object itself. Pulling (Meshichah) the object itself cannot acquire for him the *usage* of the object.

The Pnei Yehoshua asks how are we to understand the Gemara earlier (16a) which says that the master has a Kinyan ha'Guf on the Eved? We might answer like the RAMBAN and Rishonim there who explain that the Kinyan ha'Guf is not referring to a literal Kinyan on the body of the Eved himself, but rather it refers to a Halachic Kinyan, a Kinyan Isur, which is the Kinyan that permits him to a Shifchah Kena'anis.

Rashi there, however, as we pointed out (see Insights to 21b and Insight #2 above), does not seem to accept this logic, but explains that a Kinyan ha'Guf means literally that the owner has a Kinyan on the body of the Eved Ivri himself, and therefore he cannot just be Mochel to the Eved Ivri his obligation to work, but he must be Makneh the Eved Ivri back to himself with a Shtar. According to Rashi, why can Meshichah not be used to acquire an Eved Ivri? (See Pnei Yehoshua there.)

The answer might be as follows. Rashi seems to have dealt with this question earlier (14b). The Gemara there asks how do we know that a Kinyan Kesef can be used to acquire an Eved who sold himself? Perhaps it can be used only to acquire an Eved Ivri sold by Beis Din, since such an Eved is sold against his will. Rashi there (DH Machruhu Beis Din) explains that since he is sold against his will, it should follow, logically, that he can be acquired through Kesef without any act of Meshichah. (See Insights there.)

Rashi appears to be explaining why a Kinyan Kesef should be the more logical Kinyan to work for an Eved sold against his will, by explaining that it is an easier Kinyan to make. Therefore, someone who can be sold more easily should be able to be acquired more easily. Why, though, does Rashi not simply explain that even if Kesef is not an easier Kinyan, it is an *additional* Kinyan, and someone who is acquired against his will should be easier to acquire, and therefore it has the *additional* Kinyan of Kesef, besides the other Kinyanim which work for an Eved Ivri?

It seems clear from Rashi's words that he understood that if an Eved Ivri is acquired through Kesef because of the verse "mi'Kesef Miknaso," then just like the words "mi'Kesef Miknaso" exclude Kinyan Chalipin (8a), so, too, it excludes Kinyan Meshichah. Therefore, Rashi was asking why should the fact that an Eved sh'Machruhu Beis Din is sold against his will be a deciding factor in allowing him to be acquired through Kesef and not through Meshichah, rather than an Eved Mocher Atzmo, who is acquired through Meshichah (had there been no verse) and not with Kesef? (Rashi wants to explain the Sugya even according to Reish Lakish who says that Meshichah is Koneh b'Metaltelin; see Rashi there, DH Ho'il.) Hence, Rashi explains that Kesef is an easier Kinyan than Meshichah, and that is why it follows that an Eved who can be sold against his will should be acquired with Kesef and not with Meshichah. Why is Kesef an easier Kinyan? Perhaps it is because of what our Gemara (22b) tells us -- the Meshichah of an Eved Kena'ani involves not just calling him to come, but rather forcefully pulling him over against his will. This clearly is a more difficult Kinyan to make than the Kinyan of Kesef.

This explains also why Rashi there (14b, DH Machruhu Beis Din) refers to Meshichah with the word "Chazakah." He means that the *Meshichah* that would have to be done to acquire an Eved Ivri would have to be a Meshichah done *against his will*, similar to what Rashi writes here (22b, DH Takfo), that this Meshichah is done "b'Chazakah" -- with force.

Therefore, according to the Gemara's conclusion (14b) that an Eved Mocher Atzmo *can* be acquired through Kesef because of the verse, "mi'Kesef Miknaso," that same verse teaches that he *cannot* be acquired through Meshichah.

We might ask, though, that we know that an Eved Ivri can also be acquired through Kinyan Shtar (16a). Why do we not also exclude the Kinyan of Shtar from the verse of "mi'Kesef Miknaso?" Perhaps a Shtar is not contradicted by the words "mi'Kesef MIknaso," since the price of the Eved is written in the Shtar which makes the Kinyan. Meshichah, in contrast, has nothing to do with the price of the Eved; the verse is teaching that the price of the Eved must be involved in the Kinyan. According to this, Rashi (14b, DH sh'Megara'as) might not mean that Gira'on Kesef can only be done if the Eved was purchased with Kesef as opposed to with a Shtar (like RABEINU TAM explains; see Insights there). Rather, Rashi means that Gira'on Kesef can only be done if the value of the Eved was involved in the Kinyan, either with Kinyan Kesef or with Kinyan Shtar (as opposed to Meshichah).