The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
As we have learned, the impetus for many of the laws that appear in this perek is the idea of tikun ha-olam, that the rule was established in order to encourage the proper workings of society. In our Mishnah we learn that a widow who comes to collect the money guaranteed to her by her late husband in the ketubah can only do so if she takes a shevua – an oath that she had not received any payment up until that point. As the Gemara points out, this is the normal rule for anyone who wants to collect money from the orphans. The Mishnah teaches that at some point the courts refused to allow widows to takes oaths, and replaced them with a neder, a vow – that the widow would accept upon herself not to partake of something that was important to her if she had already been paid the ketubah.
Why did the courts change their policy and refrain from allowing widows to take oaths? In answer to this question the Gemara tells a story about a widow who accepted the responsibility of watching a dinar – a coin – during a year of famine. She placed the dinar in her flour for safekeeping but accidentally baked it into a loaf of bread that she gave to a poor person. When the owner of the dinar came to collect it, she said “my child should die of poison if I derived any benefit from the coin.” A short time later, one of her children died, leading the sages to conclude that such oaths must be taken very seriously.
It appears that our Gemara works with assumption that the decision was made to abolish oath-taking by widows because of the severity of the punishment that was attached to it. The Talmud Yerushalmi offers a different approach, suggesting that these women did not take the oath seriously enough and that the Sages felt that it could not be relied upon. According to the Yerushalmi, women were more concerned with nedarim than with shavuot, so they switched to a more reliable method of verification.
Another example of tikun ha-olam – a rule established in order to encourage the proper workings of society – that appears in the Mishnah is Hillel‘s establishment of a pruzbol. A pruzbol is a legal document that is written prior to the beginning of the shemitta – Sabbatical – year. Aside from the agricultural laws connected with the shemitta year, the Torah also commands that all debts are annulled – via the law known as shemitat kesafim. The pruzbol document effectively turns over all debts to the courts so that the individual creditor will not be collecting – which would be forbidden after shemitta – rather the court, which is not obligated in this law, will be collecting the debts.
This enactment was established by Hillel in order to ensure that loans would be available to the poor even just prior to the shemitta year. Observing that many people refused to lend when they feared that the loan would not need to be repaid, Hillel expressed concern that the commandment to make loans available at all times would go unfulfilled (see Devarim 15:9). By establishing pruzbol, Hillel avoided this problem.
The mechanics of the enactment are subject to some disagreement. According to the Sifrei it appears that the law annulling debts during shemitta applies only to the creditor, but not when the loan was turned over to the court. Hillel’s legal document allowed the debt to be taken over by the court without the promissory notes actually changing hands. Another approach is that the law of shemitat kesfim applies even if the loan is turned over to the court. What the pruzbol accomplishes is effectively adding a condition to the loan allowing it to be collected though the medium of tenai she-ba-mamon kayyam – that in money matters any agreed upon condition applies, even if it negates the standard rules as presented by the Torah.
As we learned on yesterday’s daf, aside from the agricultural laws connected with the shemitta year, the Torah also commands that all debts are annulled during the Sabbatical year via the law known as shemitat kesafim. Can the borrower insist on paying back the loan or is the creditor obligated to refuse payment?
In this case, the Torah law notwithstanding, the creditor is not obligated to do more than offer a perfunctory statement that the loan need not be repaid. Should the borrower insist on paying, the lender can certainly take the money; in fact the general attitude of the sages is that loans should be paid back even after the shemitta year has annulled them.
In this vein, Rabbah rules ve-tali lei ad d’amar hakhi (“he hangs it – or him – until he says this”) a statement that is understood differently by the various rishonim. Rashi
suggests that after formally saying meshamet ani (“I recognize that shemitta frees you from paying”) the creditor can hang the borrower from a tree until he says af al pi ken (“nevertheless, I want to pay”). Most of the rishonim understand Rabbah as advising the creditor to hint broadly that he would like the loan repaid, even as he is saying the required formula meshamet ani. The Ra’avad understands differently, suggesting that it is the borrower who should hang the money in front of the lender, i.e. offer it to him even after he has refused it.
To illustrate this principle, the Gemara tells that once Abba bar Marta owed a sum of money to Rabbah. When Rabbah said meshamet ani, Abba bar Marta took him at his word and kept the money. When Abayye saw how upset Rabbah was, he followed Abba bar Marta and hinted broadly to him that Rabbah would accept payment of the loan were it offered to him. Upon receiving payment, Rabbah commented that a sage like Abba bar Marta should have known to respond af al pi ken.
Our Gemara is discussing the case of an eved kena’ani – a non-Jewish slave – and Rav Yehuda quotes Shmuel as teaching that releasing a non-Jewish slave is forbidden because it involves violating a positive commandment – le-olam ba-hem ta’avodu – “you should subjugate them forever” (see Vayikra 25:46). In fact, as the Gemara points out, Rabbi Yishmael believes that this passage is reshut – it gives permission to behave in this way, but does not require it. Rabbi Eliezer, however, views it as a commandment. The Gemara follows this up with a story describing how Rabbi Eliezer once found that the synagogue lacked a minyan of ten people and he freed his slave so that there would be the required ten, explaining that for the purpose of a mitzvah it would be permissible.
Some of the rishonim explain the possible prohibition against freeing a non-Jewish slave as stemming from the idea of lo tehanem – according to which giving a gift to a non-Jew with no expectation of reciprocity is forbidden (see Devarim 7:2). If this is the source of the prohibition then we can conclude that as long as the slave pays for his release, or if it is in the interest of the owner to free the slave, then the prohibition is no longer in place.
It should be noted that every eved kena’ani is obligated in some level of mitzvot, a situation that leads the Rashba to conclude that he cannot be considered a non-Jew, and lo tehanem would not apply. According to this approach, we have a unique command of le-olam ba-hem ta’avodu, which would fall away should there be any good reason to set the slave free. So if the slave performed a particularly meritorious act towards his owner or his family, the owner can choose to set him free, viewing it as a type of payment in kind for his service.
The Gemara on the previous daf discusses a case where someone who owns a non-Jewish slave declares him to be kodesh – holy. Under ordinary circumstances, when such a statement is made about an animal or property, they are understood to have been consecrated to the Temple where they may be brought as sacrifices or sold by the Temple treasurer and the proceeds used for the needs of the mikdash. In our case, when dealing with a slave, Rabbah quotes Rav as saying that the slave becomes a free man. The logic behind this ruling is that his body cannot become kodesh (i.e., he cannot be brought as a sacrifice) and the owner did not say that he was donating the slave’s value to the Temple. Thus we understand his statement to mean that the slave would become a member of the am kadosh – of the holy people – i.e. he will become a full-fledged Jew.
In contrast to this view attributed to Rav, our Gemara quotes a baraita that a person who declares his slave to be kodesh can continue to have him work, since his only intention was to donate the slave’s value to the Temple. This position is identified by the Gemara as Rabbi Meir, who believes that when a person makes a statement we are obligated to interpret it in a meaningful way.
Rashi explains – and perhaps even has this as part of the text of the Gemara – that Rabbi Meir’s rule applies specifically to cases of hekdesh, so that when a person makes a statement consecrating something to the Temple, we must interpret it to mean something significant. Thus, if a person offers the erech – the estimated value – of a utensil to the Temple, we interpret it to mean the damim – the actual value of the utensil, since the laws of erekh apply only to people (see Vayikra 27:1-8). Similarly in our case, we understand the owner’s statement to refer to the value of the slave.
Although we learned above that it is considered a violation of a positive commandment for the owner of an eved kena’ani – a non-Jewish slave – to free him because of the pasuk le-olam ba-hem ta’avodu – “you should subjugate them forever” (see Vayikra 25:46), our Gemara discusses a number of cases where the activities of the owner is understood as a statement that he is freeing his slave. For example, Rabbi Yehoshua ben Levi teaches that when a slave owner leaves a set of Tefillin for his eved kena’ani, it is an indication that the slave is set free.
Although as we have mentioned, an eved kena’ani is obligated in many mitzvot, he is not obligated to put on Tefillin, since his only obligation is to perform those mitzvot that women are commanded to perform. Although a woman can perform mitzvot that she is not obligated to do on a voluntary basis, nevertheless it is out of the ordinary for an eved to do so. Thus, leaving him Tefillin is understood as a statement on the part of the owner that this man is no longer an eved.
Another case presented by the Gemara is the statement made by Rav Shmuel bar Yehuda quoting Rabbi Yochanan that a person on his deathbed who says “that slave was very kind to me (nachat ruach astah li), she should be dealt with kindly” is listened to, and the people who inherit are forced to deal with her kindly. The Gemara explains that this ruling stems from the common law of mitzvah le-kayyem divrei ha-met – that we are obligated to fulfill the expressed desires of someone who dies.
Rashi understands that the expression that she should be dealt with kindly means that we must offer her whatever will satisfy her; if she insists on her freedom, the heirs will be obligated to set her free. Some of the rishonim object to this interpretation, arguing that an unclear statement on the part of the dead man should not force his heirs to free the slave, something forbidden by the Torah. The Ramban and others respond that as long as there is a good reason for freeing the slave, it is permissible (see above daf, or page, 38). Nevertheless, many of the rishonim disagree with Rashi and say that the heirs are not obligated to do anything beyond offering her a comfortable job – as a slave.
The Mishnah on our daf discusses the case of an individual who was half-slave and half-free (e.g. the slave was owned in partnership by two people, one of whom freed him). At first, Bet Hillel ruled that the slave should simply work for himself half the time and for his owner half the time. Bet Shammai objected to such an arrangement, arguing that it solves the issue of work but not the half-slave’s personal issues. To solve those, Bet Shammai ruled that mipnei tikun ha-olam – to ensure the proper working of the world – we force the remaining owner to free the slave fully, and we will require the slave to pay his value to the owner over time. In this case Bet Hillel found the issues raised by Bet Shammai so convincing, and his solution so attractive, that they changed their ruling and agreed with Bet Shammai.
What are the half-slave’s personal issues that concerned Bet Shammai?
The Mishnah relates that the problems related to marriage. According to the halacha, his half-slave part could not marry a regular Jewish woman, but his half-free part could not marry a non-Jewish female slave. The option of celibacy is rejected because the purpose of the world is to populate it, based on the passage in Yeshayahu (45:18) “He did not create it for naught; He formed it to be inhabited.”
Rashi explains this pasuk as teaching that the will of God is that the world should not remain in its original, pristine form, rather that it must be settled, obligating people to have children. Tosafot raises the question why this passage from the Prophets is brought, rather than the commandment in the Torah to “be fruitful and multiply” (Bereshit 1:28). Among the answers that are offered is the suggestion that the sages wanted to emphasize how essential it is to bring children into the world; it is not merely a commandment, it is the fulfillment of the very purpose of creation.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.