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Kidushin, 28

1) COMPARING AN "EVED IVRI" TO LAND

OPINIONS: The Gemara quotes Rava who says that a Gilgul Shevu'ah extends so far that when the defendant is obligated to make a Shevu'ah, the claimant can even make him swear that he is not his Eved Ivri. The Gemara asks why should this be different from any other monetary claim for which an independant Shevu'ah can be made (in a case of Modeh b'Miktzas, or when there is only one witness)?

The Gemara answers that Rava is following his own logic earlier (16a) when he said that the body of an Eved Ivri is owned by his master -- "Eved Ivri, Gufo Kanuy." Therefore, an Eved Ivri is not like other forms of Metaltelin for which a Shevu'ah can be made.

The Gemara asks that if an Eved Ivri is not like Metaltelin, then this Halachah already appears in the Mishnah that states that one makes a Gilgul Shevu'ah on *land*! The Gemara answers that there is a Chidush in teaching that a Gilgul Shevu'ah extends even to Eved Ivri, because we might have thought that he does not have to swear since, if he really was an Eved Ivri, everyone would know about it.

The Gemara seems to be comparing an Eved Ivri to land with regard to the Halachos of Shevu'ah: just like one does not make a Shevu'ah on a claim of land, he does not make a Shevu'ah on a claim that one owns him as an Eved Ivri. This is apparently based on the Hekesh earlier (22b), where the Gemara compares Eved to land based on the verse, "ve'His'nachaltem Osam" (Vayikra 25:46). That verse, however, is discussing an Eved Kena'ani.

Is it only an Eved Kena'ani who is compared to land, or is an Eved Ivri also compared to land, as our Gemara implies?

(a) The SHACH (end of CM 95:18) cites our Gemara, and he cites the Gemara earlier (7a) which seems to compare a married woman to land (see RASHI DH she'Yesh Lahen Achrayus). He also cites the Gemara in Megilah (23b) and in Sanhedrin (15a), which teach that when a person promises to give his value ("Dami Alai") to Hekdesh, his value must be evaluated by ten people, just like the appraisal of land requires ten people when a person wants to redeem a plot of land from Hekdesh, "because an Eved is compared to land." The Shach proves from these two sources that not only is an Eved Ivri compared to land, but even a free person is compared to land.

The MAGID MISHNAH (Hilchos To'en v'Nit'an 5:2) also understands the words of the RA'AVAD there to be implying that a free man is compared to land (see, however, (c) below). (b) The RAMBAM (Hilchos Mechirah 13:15) rules with regard to Ona'ah (underpaying) that if someone hires a person to work for him, there is no Ona'ah in his wages, because hiring a worker is akin to purchasing him temporarily. The hired worker is considered an Eved and there is a rule that "Avadim Ein Lahem Ona'ah" -- Ona'ah does not apply to Avadim, just like it does not apply to land (Bava Metzia 56a, 57a).

It could be that the Rambam is referring only to a *Nochri* worker (as the Magid Mishnah implies) and he is comparing the worker to an Eved *Kena'ani*, whom the verse indeed compares to land. However, the SHULCHAN ARUCH (CM 227:33) cites this Halachah with regard to a person who "hires his *friend*" to do work for him. He is clearly referring to a Jewish worker, who is compared to an Eved Ivri. The Shulchan Aruch is comparing an Eved *Ivri* to land which has no Halachah of Ona'ah! This is also the ruling of the TERUMAS HA'DESHEN (#318) who explains that Eved Ivri is also compared to land (because of his title of "Eved"), as is evident from our Gemara.

TOSFOS in Megilah (23b) uses the Gemara there to demonstrate that an Eved Ivri is compared to land (but a free person is not compared to land, in contrast to the view of the Shach). Even though the Gemara in Megilah is discussing a free person who says, "Dami Alai," we evaluate his worth by assessing how much he would be worth if he were to be sold as an Eved Ivri, and therefore we need as many people to assess his value as an Eved as we need to assess the value of land.

TOSFOS there also seems to understand the Gemara earlier in Kidushin (7a) to be viewing the woman in the same category as an Eved Ivri (with regard to Kinyan Agav), and not like a free person, when it compares her to land. Even though the woman is actually a free person, nevertheless, since the husband has a Kinyan on her that affects her Halachicly (a Kinyan ha'Guf; see Insights to Kidushin 21:2 and 22:5). Therefore, she can be viewed like an Eved Ivri with regard to this Halachah. (Tosfos nevertheless asks why we should compare Eved Ivri to land when the verse that compares an Eved to land is referring to an Eved Kena'ani.)

Even though the Gemara (16a) derives from the verse, "v'His'nachaltem Osam," that only an Eved Kena'ani is acquired with Chazakah and not an Eved Ivri, the Mi'ut of the verse might be referring only to Kinyan Chazakah, but not to other Halachos relevant to land.

(c) The RAMBAN and RASHBA (Bava Metzia 56b), cited by the Magid Mishnah (Hilchos Mechirah loc. cit.) write that a Jewish worker is not compared to land and *does* have a Halachah of Ona'ah. Only an Eved Kena'ani is compared to land. This is also the opinion of TOSFOS earlier in Kidushin (7a, DH Im Ken). Even Rashi there might not be arguing with Tosfos on this point (see Insights there).

This also seems to be the view of RABEINU CHANANEL in Sanhedrin (15a), who writes with regard to the person who says "Dami Alai" that the reason why we evaluate the person with ten people is not because an Eved Ivri is compared to land, but because we must evaluate him as if he were an Eved *Kena'ani* and an Eved Kena'ani is compared to land.

This also might be the intention of the RA'AVAD cited above. The Ra'avad means that with regard to payment for damages, the payment for damage of a free person is compared to payment for damage to land, because the damage of a free person is evaluated based on his value if he were to be sold as an Eved, as the VILNA GA'ON writes (CM 95).

(These Rishonim are learning like the Rosh and most Rishonim in the beginning of the eighth Perek of Bava Kama (83b), who rule that damages are evaluated on the basis of the person's value as an Eved Kena'ani who is sold forever, and not on the basis of his value as an Eved Ivri who goes free after a number of years. However, Rashi in Bava Kama there writes that the damages of a person are evaluated as if he were sold as an Eved Ivri. (See KUNTRUSEI SHI'URIM to Bava Kama.))

In our Sugya, the RITVA and RAN explain that the Gemara is not comparing Eved Ivri to land, but rather it is saying that he is not like normal Metaltelin. This might also be Rashi's intention here (DH Gufo Kanuy).

OPINIONS: The Beraisa teaches that if a person calls his friend a Mamzer, "he receives forty lashes." RASHI explains that these lashes are a Rabbinic institution, enacted as a penalty. Rabbinic lashes such as these are known as "Makas Mardus."

The wording of the Gemara implies that with Makas Mardus, *forty* (actually, 39) lashes are administered. On the other hand, in a Mishnah in Nazir (23a) we find that when a woman drinks wine thinking that she is a Nazir, unaware that her husband already annulled her Nezirus, she does not receive the 39 Makos of the Torah. Rebbi Yehudah adds that she nevertheless receives Makas Mardus. This implies that Makas Mardus is *not* 39 lashes.

How is Makas Mardus normally adminstered?

(a) TOSFOS (Nazir 20b, DH Rebbi Yehudah) and the ROSH (ibid.) cite a Tosefta in Makos (3:10) which teaches that the Makos of the Torah comprise 39 lashes, but Beis Din must evaluate the strength of the person receiving the Makos in order to determine how many Makos he is fit to suffer without it endangering his life. Makas Mardus is different; the person is beaten until he either accepts to do what he is supposed to do, or "until his soul leaves him."

The ARUCH (Erech "Mered") differentiates similarly between the two, writing that one who transgresses a Mitzvas Aseh (by refusing to do it) is beaten until his soul leaves him, and, similarly, one who transgresses the words of the Chachamim is beaten without having his strength evaluated and without a set number of lashes. (The Aruch writes that they are called Makas Mardus because the person "rebelled" (Marad) against the Chachamim and the Torah.) This is also the opinion of the GE'ONIM (cited by the NIMUKEI YOSEF at the end of Makos). The RAMBAM (Hilchos Chametz u'Matzah 6:12), too, records that Makas Mardus for one who eats Matzah on Erev Pesach (an Isur d'Rabanan) is administered until he does what he is supposed to do or until his soul leaves him. RASHI in Chulin (141b, DH Makas) also writes that Makas Mardus means beating without a limit (until he accepts to do what he is supposed to do).

However, as the RIVASH (#90) was asked, how can Makos d'Rabanan be worse than the Malkus of the Torah? The Rivash answered that Makas Mardus that are given "until his soul leaves him" are only a form of preventative Makos, given to force a person to fulfill a Mitzvas Aseh mid'Oraisa that he refuses to fulfill. However, if a person transgressed a Mitzvah mid'Rabanan and Beis Din simply wants to punish him for his wrongdoing, Makas Mardus certainly have a limit. TOSFOS (Nazir 20b, DH Rebbi Yehudah) and the ROSH (Nazir 21b, DH Rebbi Yehudah) make a similar distinction.

(The Rivash adds that Beis Din never beats a person until his soul leaves him for refusing to fulfill -- or to stop transgressing -- a Mitzvah mid'Rabanan. However, Rashi and the Rambam (ibid., according to our Girsa in the Rambam; see the commentaries there) seem to disagree with him on this point, and sanction such limitless Malkus even for refusing to fulfill a Halachah d'Rabanan.)

But how many lashes are given when Makas Mardus is administered for a past transgression?

(b) The RIVASH cites Tosfos (see Tosfos in Bechoros 54a, DH u'Shnei) as saying that Makas Mardus comprise 39 Makos just like Malkus of the Torah, but they are not as powerful as Malkus d'Oraisa. They are given while the person is dressed, and without the full strength of the one administering the lashes. This is why it is not necessary to evaluate if the person will survive the Makos. He cites our Gemara as his source for this ruling.

Some add that Makas Mardus are done with a stick instead of a whip (see Rashi, Sanhedrin 7b, DH Makel). According to this, the word "Mardus" might come from the expression of "Rodeh b'Makel" (see Sotah 40a, Shabbos 52b).

(c) The Rivash himself proposes that Makas Mardus are not a set number of lashes. In contrast to Malkus of the Torah, where the number of lashes is determined by the strength of the sinner, Makas Mardus are determined by the severity of the sin. He concurs with Tosfos that the lashes are not as strong or as painful as the Malkus of the Torah. However, even if the person can bear more lashes, if his sin is not as severe, he is given only the number of lashes that the particular transgression warrants.

Perhaps he will explain the reason why our Gemara prescribes *forty* Makos for Makas Mardus in the same manner that TOSFOS and the other Rishonim explain. The reason he is given forty Makos is because he accused his friend of being a Mamzer, and, consequently, that his friend transgressed a Lo Ta'aseh by marrying a Jewess and therefore deserves forty Makos for that Aveirah. Therefore, the offender, too, is punished with forty Makos.

(d) RABEINU TAM (cited by SHILTEI GIBORIM on the MORDECHAI, Bava Basra 8:1, and by TESHUVOS RASHBASH #96) explains that the Makas Mardus for an Aveirah that was already done are only 13 lashes and not 39. The reason the Torah prescribes 39 is because of the need to give a triple set of lashes, one on each of the two shoulders, and one on the stomach. Makas Mardus do not have to be tripled and are only given on the back, and therefore only 13 are given. (See Insights to Yoma 77:1. This might be what the Aruch means when he mentions that Makas d'Oraisa are "Meshulashos," but not Makas Mardus.) (He, too, will explain our Gemara as Tosfos does.)

28b