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Kidushin, 23

23b

QUESTION: Rebbi Shimon ben Elazar rules that an Eved Kena'ani cannot accept his own Get Shichrur. Rather, someone else must accept it for him. The Gemara asks, according to Rebbi Shimon ben Elazar, can an Eved Kena'ani appoint a Shali'ach to accept his Get Shichrur on his behalf?

What is the Gemara's question? Rebbi Shimon ben Elazar says clearly that another person *can* accept a Get Shichrur for the Eved Kena'ani! Does that not show clearly that the Eved can appoint a Shali'ach? And if we say that the reason why another person can accept a Get for the Eved Kena'ani is because of the principle of Zechiyah ("Zochin l'Adam"), then what difference does it make if the Eved can or cannot make a Shali'ach? In any case, the other person should be able to be Koneh the Get for the Eved through Zechiyah! If the Gemara is discussing a case in which the Eved, upon receiving the Get, complains that he never wanted it, then both in the case of Zechiyah and in the case of Shelichus, he should not acquire the Get, because he shows that he is not interested in being free and that it is a Chov (detriment) to him! (RASHBA, RITVA; see TOSFOS DH Mahu.)

ANSWERS: The answer to this question involves a broader question discussed by the Rishonim in many places: Does Zechiyah itself work through Shelichus, in that it is obvious to us ("Anan Sehadi") that the recipient would want the person to be his Shali'ach to receive the item, or does it work through a a completely different mechanism (see TOSFOS in Kesuvos 11a, DH Matbilin, and the RAN in Kidushin 42a). The different answers to our question depend on how we understand Zechiyah.

(a) The RASHBA and other Rishonim prove from our Sugya that Zechiyah and Shelichus are two separate concepts. That is why the Gemara asks whether the Eved Kena'ani can make a Shali'ach, even though we know that he can acquire the Get through Zechiyah. The Rashba, Ritva, and Tosfos (in his first answer) explain that our Gemara means to say that if an Eved cannot appoint a Shali'ach, then when he tells someone to receive his Get through Shelichus, and the master gives the Get Shichrur to that person saying that "I want you to accept this Get the way the Eved wants you to accept it," then indeed the Get will not be valid if the Eved does not have the ability to appoint a Shali'ach.

The logic for this is that even though the person could have received the Get for the Eved through Zechiyah, once he chooses to take it through Shelichus and not through Zechiyah he does not acquire the Get for the Eved through Zechiyah. Since the Eved cannot make a Shali'ach, the person also cannot acquire the Get for the Eved as a Shali'ach, and thus the Eved is not freed.

(b) The RITVA cites RABEINU YITZCHAK HA'LEVI, who agrees that Zechiyah does not work through Shelichus, but who answers the question in a different manner. The practical difference of whether or not an Eved can appoint a Shali'ach is when an Eved appoints a Shali'ach to accept his Get, and the Shali'ach accepts it and brings it back to the Eved, and then the Eved says that he changed his mind and did not want the person to accept the Get for him at the time that he accepted it. If the person acquires the Get for the Eved through Zechiyah, then when the Eved changes his mind and says that he did not want a Get, he will not be freed because it turns out that it was not a Zechus (benefit) for him, but rather it was a Chov. However, if an Eved can make a Shali'ach, and the person accepted the Get for the Eved through Shelichus, then even though the person cannot acquire the Get through Zechiyah, nevertheless he acquired the Get for the Eved through Shelichus, since the Eved did not explicitly annul the appointment of the Shali'ach but merely lost interest in being freed. Since he did not annul the Shelichus, the Shali'ach is able to acquire the Get for the Eved, because the Eved consented to acquire it at the time of the appointment of the Shali'ach, and it makes no difference that the Eved was not interested in the Get at the time that the Shali'ach actually received it, as long as the person he sent is still a Shali'ach. (See the SHITAH NODA L'MI who gives a similar explanation).

(c) RASHI in Gitin (9b) and TOSFOS in Kesuvos (and other places) write that Zechiyah *does* work through Shelichus. How, then, do they understand our Gemara which says that an Eved Kena'ani might not be able to make a Shali'ach because he cannot receive the Get himself, and nevertheless someone else can receive the Get for him?

TOSFOS and the TOSFOS HA'ROSH explain that when the Gemara suggests that an Eved cannot make a Shali'ach, it maintains that the reason another person can accept a Get for the Eved is neither because of Shelichus *nor* because of Zechiyah. How, then, can someone accept a Get for the Eved? It seems that Tosfos understands that Rebbi Shimon ben Elazar is arguing with the logic of Rava and Abaye (on 23a) who differentiate between Kesef and Shtar. He holds that just like Kesef can be accepted by someone else for the Eved, and it does not have to be accepted by the Eved himself, so, too, the Shtar can be accepted by someone else, since the master can free the Eved against his will. It makes no difference that the Shtar is not taken by the master but by the other person; the other person can still free the Eved against his will without relying on Shelichus.

Tosfos writes that according to this understanding, the Gemara's question is as follows. Is the reason Shtar works according to Rebbi Shimon ben Elazar by being received by someone else ("Shtar Al Yedei Acherim") because the Shtar does not have to be accepted by the Eved but can be accepted by anybody? Or does a "Shtar Al Yedei Acherim" work because of Zechiyah and Shelichus, and therefore if the Eved insists that he does not want to receive the Shtar, he cannot be freed against his will? The Tosfos ha'Rosh notes that this also appears to be the way Rashi learns the Gemara (in DH k'Ishah, and DH O Dilma). The Gemara's question is how does "Shtar Al Yedei Acherim" work according to Rebbi Shimon ben Elazar.

(d) RASHI, however, adds that there is another practical difference if an Eved can appoint a Shali'ach. Rashi (DH O Dilma) writes that if an Eved Kena'ani cannot make a Shali'ach, then when Rebbi Shimon ben Elazar says that a "Shtar Al Yedei Acherim" works to free the Eved, he means "either that the master can be Mezakeh to him the Shtar through another person, *or* that another person could take the Get without the Eved's knowledge." The second half of Rashi's statement is clear -- if the Eved cannot make a Shali'ach, then a "Shtar Al Yedei Acherim" must work without the Eved's consent, but against his will, like Tosfos writes. However, what does Rashi mean in his first explanation, when he says that the master could be Mezakeh to the Eved a Get through giving it to another person, even though Shelichus does not work? If Zechiyah works through Shelichus, then how could Zechiyah work if Shelichus here does not work? (See BIRKAS SHMUEL, #11, DEVAR SHMUEL, IMREI BINYAMIN.)

It seems that Rashi himself was questioning whether Zechiyah works through Shelichus or not. In his first explanation, he assumes that the question of the Gemara is whether Zechiyah works through Shelichus. If an Eved can make a Shali'ach, then we have no reason to propose that Zechiyah is a separate form of freeing the Eved; rather, it will work through the assumption that the Eved would have made the person a Shali'ach. If the Eved *cannot* make a Shali'ach, then we must conclude that Zechiyah does not work through the mechanics of Shelichus, and that is why the Eved can go free through a "Shtar Al Yedei Acherim." The conclusion of the Gemara is that Zechiyah works through Shelichus. (See RITVA at the end of the Sugya.)