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Kidushin, 15

1) OVERRIDING A "GEZEIRAH SHAVAH" WITH A LOGICAL ARGUMENT

QUESTION: The Gemara cites a Beraisa in an attempt to identify the Tana who does not hold of the Gezeirah Shavah of "Sachir Sachir" which is used to teach Halachos from the Parshah of an Eved who sold himself (Eved Mocher Atzmo) to an Eved who was sold by Beis Din (Eved sh'Machruhu Beis Din), and vice versa. In the Beraisa, Rebbi Elazar ben Yakov teaches that we learn from the verse, "v'Shav El Mishpachto" (Vayikra 25:41), that not only does an Eved who sold himself, and an Eved who was Nirtza, go free at the Yovel year, but even an Eved who was sold by Beis Din. If Rebbi Elazar ben Yakov accepts the Gezeirah Shavah of "Sachir Sachir," then he would not need a verse to teach that the Halachah of going free at Yovel, which is written in the Parshah of an Eved who sold himself, applies also to an Eved sold by Beis Din. It must be that Rebbi Elazar ben Yakov does not hold of the Gezeirah Shavah.

The Gemara rejects this by suggesting that Rebbi Elazar ben Yakov does accept the Gezeirah Shavah of "Sachir Sachir," and nevertheless he would not be able to learn that an Eved sh'Machruhu Beis Din goes free at Yovel from the Parshah of Eved Mocher Atzmo, because an Eved sh'Machruhu Beis Din deserves an extra penalty since he did an Aveirah by stealing. Since he sinned, perhaps he should not go free with Yovel. Therefore, the verse of "v'Shav El Mishpachto" teaches that he indeed goes free at Yovel, even though he did an Aveirah.

Why does the Gemara suggest that the freedom of an Eved sh'Machruhu Beis Din at Yovel cannot be learned from a Gezeirah Shavah because the person did an Aveirah? We have a rule that a Pircha (logical challenge) can only be asked on a Binyan Av or on a Kal v'Chomer. A Gezeirah Shavah, though, is a Kabalah mi'Sinai on which no Pircha can be asked! Even though there is a logical distinction between Eved Mocher Atzmo and Eved sh'Machruhu Beis Din, the Gezeirah Shavah should teach that all Dinim that are taught with regard to one apply to the other!

It is true that there is a type of Gezeirah Shavah which can be rejected wit h a Pircha, and that is a Gezeirah Shavah which is not "Mufneh" (when the two similar words are free of any Derashah, they may be used unconditionally for the inference of a Gezeirah Shavah between the two topics ("Mufneh mi'Shenei Tzedadim"); when only one of the two words is free, one view holds that they can only be used for a Gezeirah Shavah if we have no logical argument against learning the Gezeirah Shavah). However, the Gezeirah Shavah of "Sachir Sachir" is obviously a strong Gezeirah Shavah which is "Mufneh." The first proof for this is that the Gemara derives, through the Gezeirah Shavah from Eved sh'Machruhu Beis Din, the Halachah that an Eved Mocher Atzmo can become a Nirtza, as well as the Halachah that the master may give his Eved a Shifchah Kena'anis. If the Gezeirah Shavah is not "Mufneh," then only an Eved sh'Machruhu Beis Din should be able to become Nirtza and to be given a Shifchah Kena'anis, as part of the penalty that he receives for stealing. Second, the Gemara earlier learns that Kinyan Kesef applies to an Eved Mocher Atzmo from the Gezeirah Shavah that compares it to an Eved sh'Machruhu Beis Din, even though the Gemara says that there is more reason for Kinyan Kesef to apply to Eved sh'Machruhu Beis Din, since he is sold against his will. If the Gezeirah Shavah is "Mufneh," then why does our Gemara reject learning the Halachah of Yovel for Eved Mocher Atzmo through the Gezeirah Shavah just because of the logic that perhaps Yovel applies only to Eved sh'Machruhu Beis Din as a penalty for stealing? (TOSFOS HA'ROSH, TOSFOS CHACHMEI ANGLIYAH)

ANSWERS:

(a) The CHAZON ISH (cited by YOSEF DA'AS) suggests that the Gemara is not merely suggesting a logical distinction between an Eved who sold himself and an Eved sold by Beis Din. Rather, the Gemara is relying on a *verse* to override the Gezeirah Shavah. The verse says, "v'Nimkar b'Geneivaso" (Shemos 22:2), teaching that the thief shall be sold in order to compensate the victim of the theft. The verse implies that whatever is necessary to do in order to compensate the victim is to be done. Therefore, if the theft occurred the year before Yovel, we might have thought that the thief can be sold for six years, overriding the impending Yovel year. It is this verse, and not merely the logical Pircha, that overrides the Gezeirah Shavah of "Sachir Sachir."

The meaning of this answer is not so clear, because we know that if one stole more than the value of six years of his service, we still do not sell him for more than six years in order to pay back his theft, even though the victim will not be receiving full compensation for the stolen item. Obviously, then, the verse does not mean literally that we must do everything possible to make sure that the victim is fully compensated.

Moreover, why does the Gemara mention that the Eved sold by Beis Din deserves a penalty, if the reason he would not go free at Yovel is because he must pay back the full amount that he stole? That is not a penalty for his act of stealing; it is the obligation to compensate the victim!

(b) The ATZMOS YOSEF and SEFER HA'MIKNAH (DH Mihu) suggest that the logic that a thief deserves a penalty is so strong that it indeed overrides a Gezeirah Shavah. We find, on occasion, that a logical consideration can override a Gezeirah Shavah.

Even though it is clear from the Gemara and Rishonim in a number of places that a logical consideration can override a Gezeirah Shavah (see YOSEF DA'AS, and see Insights to Yevamos 3:2), nevertheless the logic that the thief sinned and therefore deserves a penalty is not the type of direct logic that can be used to override a Gezeirah Shavah. It is merely giving a reason why the Halachah should be more stringent in the case of an Eved sold by Beis Din; it is not giving a direct reason why the particular Halachah of Yovel should not apply.

Perhaps we may suggest that there is another logical consideration which *does* relate directly to the Halachah of Yovel. Rebbi Elazar ben Yakov might hold like the Tana Kama quoted earlier who rules that an Eved who sells himself can be sold for more than six years, because the verse, "v'Avadcha" (Devarim 15:12), takes Eved Mocher Atzmo out of the Gezeirah Shavah. We might suggest that this verse teaches not only that the Halachah of going free after six years does not apply to Eved Mocher Atzmo, but also that the Halachah of going free at Yovel does not apply to an Eved sold by Beis Din. Logic would dictate that the reason Eved Mocher Atzmo goes free at Yovel is because he has no other time period that would free him, and since an Eved sh'Machruhu Beis Din does go free after six years, he does *not* go free at Yovel.

Although this is logically justifiable, it is not the logic that the Gemara suggests. The Gemara suggests that an Eved sold by Beis Din should not go free at Yovel as a penalty for doing an Aveirah, and not because, in any case, he will go free after six years.

(c) Perhaps the Gemara does not mean to suggest that the Gezeirah Shavah of "Sachir Sachir" should teach that an Eved sold by Beis Din goes free at Yovel, because -- as we mentioned earlier -- there is a strong reason to suggest that the verse does not give the Halachah of Yovel to an Eved sold by Beis Din. Rather, what the Gemara means is that if Rebbi Elazar ben Yakov accepts the Gezeirah Shavah of "Sachir Sachir," then all of the Halachos of Eved Mocher Atzmo and Eved sh'Machruhu Beis Din will be the same (except for the few that are excluded explicitly). Consequently, the Halachah that an Eved sold by Beis Din goes free at Yovel should be learned through a Kal v'Chomer from Eved who sold himself (according to the Tana Kama who argues with Rebbi Elazar on 14b): if an Eved Mocher Atzmo who does not go free at six years goes free at Yovel, then certainly an Eved sh'Machruhu Beis Din who goes free at six years should go free at Yovel! (The logic that we suggested at the end of (b) above -- even though it can refute a Gezeirah Shavah -- cannot refute a Kal v'Chomer.) The Acharonim (Sefer ha'Miknah, Atzmos Yosef, and others) indeed point out that the Halachah of Yovel should be learned even without the Gezeirah Shavah of "Sachir Sachir," through a Binyan Av or a Kal v'Chomer.

If, however, Rebbi Elazar ben Yakov does not accept the Gezeirah Shavah of "Sachir Sachir," then we can understand why he does not make this Kal v'Chomer. Without "Sachir Sachir," the Halachah that a relative redeems an Eved Ivri will apply only to an Eved who sold himself (see TOSFOS 15b, DH Amai). An Eved sold by Beis Din will not have the Halachah of being redeemed by relatives. This will create a Pircha on the Kal v'Chomer, because perhaps only an Eved who sold himself will go free at Yovel, just like he goes free with "Ge'ulas Kerovim." But an Eved sold by Beis Din will *not* go free at Yovel, just like he does not go free with "Ge'ulas Kerovim." This is the Gemara's proof that Rebbi Elazar ben Yakov does not hold of the Gezeirah Shavah, since he requires a verse to teach that an Eved sold by Beis Din goes free at Yovel.

The Gemara refutes this proof by saying that even if Rebbi Elazar ben Yakov *does* accept the Gezeirah Shavah of "Sachir Sachir" and therefore he does not have the Pircha of "Ge'ulas Kerovim," he would still have another Pircha on the Kal v'Chomer. That Pircha would be that an Eved sold by Beis Din should not go free at Yovel because he did an Aveirah.

15b

QUESTION: Rebbi rules that an Eved Ivri who was sold to a Jew cannot be redeemed by relatives. Rather, in order to go free he must redeem himself. But if he can redeem himself, then let the relatives simply give him the money to redeem himself! What difference does it make if they cannot redeem him directly? (TOSFOS RID)

ANSWER: TOSFOS RID answers that the redemption of relatives ("Ge'ulas Kerovim") does not just mean that the relatives are able to redeem him, but that they have a Mitzvah to redeem him. When an Eved Ivri is sold to a Jew, the relatives of the Eved have no Mitzvah to redeem him, but they can certainly redeem him by giving him money if they want.

This has two practical applications. First, if the relatives do not want to spend money on the redemption of the Eved Ivri, Beis Din cannot force them to redeem him, because they have no Mitzvah to do so. Second, if the Eved Ivri himself does not want to be redeemed, he does not have to accept money from the relatives to redeem himself. In contrast, when an Eved Ivri sells himself to a Nochri, Beis Din can force the relatives to redeem him, and even if he does not want to be redeemed, he can be forced to be redeemed, since the Torah does not want a Jew to remain vulnerable to the foreign influences of the Nochrim (20b).