THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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GITIN 37 (Adar 21) - This Daf has been dedicated anonymously l'Zecher
Nishmas the holy "No'am Elimelech," ha'Rav Elimelech [b'rebbi Eliezer] of
Lizhensk, on the day of his Yahrzeit. May the Rebbe be a Meilitz Yosher for
Klal Yisrael during these troubled times and plead to Hashem that He may
answer all of our Tefilos.
1) ACCEPTING REPAYMENT OF ONE'S LOANS AFTER SHEMITAH CANCELED THEM
QUESTION: The year of Shevi'is removes all outstanding debts. If the
borrower desires to pay back the debt even though he is not obligated to do
so, the Mishnah in Shevi'is teaches that the lender must say, "Meshamet
Ani." If the borrower insists that he wants to return it nonetheless and
says, "Even so [I want to return it!]", then the lender may accept it. The
Gemara here adds that the lender may "hang him until he says this" ("v'Tali
Lei Ad d'Amar Hachi").
2) BUYING A CAPTURED SLAVE FROM HIS CAPTORS
What does the Gemara mean?
(a) RASHI explains that if the borrower does not immediately offer to pay
back the loan (even though Shemitah canceled it), the lender may "hang him"
and force him to say that he wants to pay back the debt despite the fact
that Shemitah canceled it.
The ROSH and Rishonim ask that according to Rashi's explanation, how can
Shemitah ever cancel a debt? If the lender has the right to force the
borrower to pay him back, then Shemitah is entirely ineffective!
The TOSFOS RID (and BACH in Choshen Mishpat 67) explain that Rashi is
distinguishing between the original cancellation of the debt (before the
borrower attempts to pay it back despite Shemitah), and the second
cancellation of the debt -- when the lender says "Meshamet Ani" after being
offered to be repaid despite Shemitah. If the borrower never offers to repay
the debt, the debt is canceled and the lender has no right to even ask for
it. Once the borrower offers to repay the debt, though, then the lender is
only required to say the words, "Meshamet Ani;" after saying those words, he
may do whatever he can to collect the loan.
It seems that according to Rashi, when the borrower offers to repay the loan
despite Shemitah, he is acknowledging that he does not want Shemitah to
affect this debt. A person has the right to forfeit the Hashmatah of debts
that normally occurs during Shemitah. Therefore, as soon as he says that he
wants to pay, the debt remains like it was originally. Although the lender
is still prohibited from openly claiming the repayment of the loan, he may
force the borrower to say that he wants to repay the loan despite Shemitah,
since the borrower actually owes him the money. (Perhaps the Mitzvah to say
"Meshamet Ani" and not to claim the debt outright is only a requirement
mid'Rabanan instituted because of "Mar'is Ayin.")
(b) Many Rishonim disagree with Rashi. The RAMBAN in the name of the ARUCH,
the RASHBA in the name of RABEINU BARUCH, and the ROSH (4:9) and others
explains that the term "v'Tali Lei" does not mean that the lender may hang
the person, but that he may wait expectantly ("hang his eyes [in
expectation]" (Rosh), or "hang out his hand" (Ramban)), showing the borrower
that he is waiting to hear the borrower's offer to pay him back nonetheless.
He is permitted to convey the message, conspicuously, to the borrower that
he wants his money back. The Rosh cites support for this from the Yerushalmi
which says that when the lender says "Meshamet Ani," he may stretch out his
hands in a gesture showing that he is waiting for the money. The RAMBAM
(Hilchos Shemitah v'Yovel 9:29) suggests a similar explanation.
(c) The RA'AVAD on the Rif (and cited by the Ramban) explains that the
Gemara means that *after* the borrower says that he nonetheless wants to pay
back, and the lender receives the money, he should not immediately put the
money in his pocket. Rather, he should leave it hanging in front of him in
order to show that he is reluctant to take it back, so that it not look as
though he is not canceling the debt full-heartedly.
According to this explanation, why did Rabah become upset at Aba bar Marsa
when Aba bar Marsa did not say that he wants to repay the debt after Rabah
said that he let Shemitah annul the debt? Even if Aba would say that he
wants to pay it, Aba should still show reluctance! Aba was justified, then,
in not volunteering to repay the debt right away! Rabah should have no
reason to be upset just because Aba did not offer to pay back the debt.
The Ra'avad answers that Rabah was going beyond the letter of the law by
letting Shemitah annul his debts; he was doing so as a Midas Chasidus, and
not because the Torah required it (because Hillel had already instituted
Pruzbul). Therefore, it was not required for him to be "Toleh" the money.
Rather, he was allowed to take the money back immediately and even be upset
at Aba for not offering to give it to him on his own accord.
QUESTION: The Mishnah records a Machlokes regarding an Eved Kena'ani who was
ransomed from captives. The Tana Kama differentiates between whether the
redeemer ransomed the Eved with the intention of having him remain an Eved
(in which case he remains an Eved) and whether the redeemer ransomed the
Eved with the intention of having the Eved go free (in which case he becomes
free). Raban Shimon ben Gamliel argues and says that in either case, the
Eved goes free.
3) WHO ACQUIRES A RANSOMED SLAVE
In the Gemara, Abaye and Rava argue about the case in the Mishnah. Abaye
says that the Mishnah is referring to a redeemer who ransoms an Eved
*before* the Eved's owner despairs ("Ye'ush") and gives up hope of ever
getting his Eved back. Therefore, when the Eved is ransomed with the
intention that he remain an Eved, the Eved goes back to the original owner.
When he is ransomed with the intention that he go free, he does not become
the redeemer's Eved, because the redeemer ransomed him on condition that he
go free. He does not go back to the original owner (even though he was
redeemed before Ye'ush), because of an enactment the Rabanan made lest
people refrain from redeeming slaves. Raban Shimon ben Gamliel says that in
either case the Eved goes back to the original owner (because it was before
Ye'ush), for he holds that it is a Mitzvah to redeem slaves, just like it is
a Mitzvah to redeem free people (so there is no need for an enactment).
Rava says that the redeemer ransomed the Eved *after* the owner's Ye'ush.
Therefore, if the Eved was ransomed with the intention that he go free, he
goes free because the original owner had Ye'ush. He does not work for the
redeemer because he redeemed him in order to set him free. If he was
ransomed with the intention that he remain an Eved, he becomes the
*redeemer's* Eved. Raban Shimon ben Gamliel says that in either case he
remains an Eved, because he holds like Chizkiyah who taught that this is an
enactment in order that slaves not get themselves captured in order to
become freed from their masters.
The Gemara questions Rava's explanation of the Mishnah. In order for the
redeemer to acquire the Eved from the captors when he ransoms him, the
captors must have acquired possession of the Eved. Otherwise, they would
have no legal right to sell him to anyone else. The Gemara thus discusses
whether a Nochri can acquire another Nochri as an Eved.
Why does the Gemara ask this question only on Rava? The same question
applies equally to the explanation of Abaye! Abaye says that the only reason
the Tana Kama holds that the Eved goes back to the original owner is because
he was ransomed before the original owner had Ye'ush. But if he would have
been ransomed *after* Ye'ush, the Tana Kama would agree that he becomes the
Eved of the redeemer, like Rava says! The only point of argument between
Abaye and Rava is the Takanah of Chizkiyah: Abaye maintains that Raban
Shimon ben Gamliel does *not* hold of that Takanah, while Rava maintains
that Raban Shimon ben Gamliel does hold of that Takanah. Why, then, does the
Gemara ask its question about the captors owning the Eved only according to
(a) The RITVA gives two answers. First, he says that it is true that Abaye
agrees with Rava that the Tana Kama holds that after Ye'ush, the Eved would
belong to the redeemer. However, since it is Rava who explicitly states that
Halachah, the Gemara chose to focus the question on Rava. The same question,
though, applies to Abaye as well.
(b) Second, the Ritva answers that Abaye actually argues with Rava regarding
this point as well. Abaye maintains that if the redeemer ransoms the Eved
after Ye'ush of the original owner, the redeemer would *not* acquire the
Eved for himself, because the captors *cannot* acquire ownership of the
Eved. Rather, the Eved would be set free once he was redeemed. Abaye argues
with the conclusion of the Gemara later (38a) which cites a verse to prove
that a Nochri can own another Nochri as an Eved. (Regarding why Abaye
argues, see Insights to 38a.)
QUESTION: Rava says that the Tana Kama of the Mishnah holds that when an
Eved is ransomed with the intention of having him remain an Eved, the Eved
becomes the property of the redeemer (see previous Insights). The Gemara
asks how could the redeemer acquire ownership of the Eved from the captors,
if the captors themselves did not own the Eved? The Gemara answers that the
captors indeed owned the Eved, presumably because they acquired him after
the Eved's original owner despaired ("Ye'ush") of ever getting him back and
thereby relinquished his ownership of the Eved. The Gemara then proves that
it is possible for a Nochri to own another Nochri as an Eved.
Why do the *captors* acquire ownership of the Eved after the original
owner's Ye'ush? The Eved should acquire *himself* (and become free) after
the Ye'ush of the owner at that point! Indeed, we find later (38a) that an
Eved acquires himself and goes free in a case where he escapes from prison
after the Ye'ush of his owner. In that case, even though there is no
apparent act of Kinyan being made for the Eved to acquire himself,
nevertheless he goes free by virtue of the fact that he conducts himself
like a free person; that conduct is a form of Kinyan to acquire himself.
Why, then, when the Eved is taken away from his master by captors does he
not acquire himself in the same way, since he is no longer acting as an Eved
for his master?
(a) Escaping from prison and thereby acquiring oneself as a free man, and
being taken into captivity away from one's master, are completely different.
When an Eved is taken into captivity, even though he is no longer working
for his master, the fact that he is in captivity is inherently antithetical
to acquiring himself as a free man! To make an act of acquisition over an
object, or over oneself in the case of an Eved, the person must demonstrate
control and independence. Hence, an Eved who was captured cannot acquire
himself while being held captive, because he has no control or independence!
In such a case it is impossible for the Eved to make such a Kinyan on
himself. (See PNEI YEHOSHUA who says something similar.)
(b) The IMREI MOSHE (23:8, based on Tosfos in Bava Kama 69a, DH Kol)
attempts to prove from here that the principle that an owner's Ye'ush
enables someone else to acquire the object of the Ye'ush only entitles the
*thief* himself to obtain ownership of the object that he stole. The owner's
Ye'ush does *not* allow anyone else to acquire the object. Hence, only the
captors (the thieves) can acquire the Eved, but not the Eved himself.
(c) The RASHBA maintains that the captors do not need the Ye'ush of the
original owner in order to acquire the Eved. Since they *captured* the Eved
and did not merely *steal* him (as the Gemara later (38a) differentiates),
the act of capturing is powerful enough to acquire the Eved immediately,
even before the original owner's Ye'ush. The Eved, therefore, cannot acquire
himself before the captors acquiring him, because in order to acquire
himself he needs the Ye'ush of the original owner, but by the time the owner
had Ye'ush, the Eved was already acquired by the captors!