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Gitin, 37

37b

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").

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.

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 Rava?

ANSWERS:

(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?

ANSWERS:

(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!