Thursday, November 16, 2006

more on lo techaneim and l'olam bahem ta'avodu

The gemara Gittin 38a tells us that one who frees an eved kna’ani violates a mitzvas aseh of l’olam bahem ta’avodu. Assuming this is a real derasha and not an issur derabbanan (as most rishonim hold), how is it that we do find cases where a slave may be freed? The Mishna itself tells us that in a case of a chatzi eved chatzi ben chorin, e.g. a slave owned by to masters who was freed by one and is now caught in between being a slave or a full yisrael, there is a mitzvah on the second owner to free the slave. The gemara Brachos 47b also tells us that R’ Eliezer freed his slave to make a minyan – how could that be permitted? The gemara in Brachos asks this very question and answers that a mitzvah is different, i.e. freeing a slave for purpose of fulfilling a mitzvah is permitted. The gemara continues and asks isn’t this mitzvah a mitzvah haba’ah b’aveira, and answers that “mitzvah d’rabim” is different and overrides the aveirah. Tosfos in Gittin uses this same concept to explain freeing the chatzi eved – in the state of half-eved the person cannot fulfill peru u’revu, which is a fundamental mitzvah, and therefore the greater mitzvah overrides the issur of freeing the eved. However, the Ramban in Gittin suggests a completely different approach. According to Ramban, the mitzvah of freeing a slave is patterned after the issur of ‘lo techaneim’, not giving a free gift to a non-Jew. Yesterday’s comments by anon1 suggested that the benefit received by the master by the slaves years of hard work render his release not a free gift, but a gift in exchange for services provided. If this is what the Ramban meant, the problem is (as asked by the Magen Avraham and Turei Even) why does the gemara in Brachos need to invoke the idea that the slave of “mitzvah d’rabim” to obviate the problem of mitzvah haba’ah b’aveirah– as long as the release is not a free gift there is no issur?! It seems that a release on the basis of past service provided is not sufficient – there has to be some pressing need to release the slave into freedom, a need like “mitzvah d’rabim” which is strong enough to override the prohibition. The disagreement between Tosfos and the Ran is whether that need is doche “l’olam bahem ta’avodo”, or is the issur of releasing the slave “hutra” because it is no longer a free gift.
Returning to the original question of how Avraham could give matanos to the children of the pilagshim, the gemara in Sanhedrin asks what these matanos were and answers that they were the magical “shem tumah”. The Margolias haYam in Sanhedrin quotes a source as saying the reason the gemara asked what the matanos were and did not take the word at face value (as meaning some type of presents) is precisely because of this issur of “lo techaneim”! I don’t get the punchline, and the Margolias haYam does not explain further – does “lo techaneim” only apply to concrete gifts and not to abstractions like a “shem tumah”?

6 comments:

  1. "The gemara Brachos 47b also tells us that R’ Eliezer freed his slave to make a minyan – how could that be permitted?"

    Perhaps it is a derasha. After all, one of the pesukim you cited was "l’olam bahem ta’avodu" -- to Hashem (the melech Olam, who exists leOlam) with them (the servant) you shall make worship.

    Freeing a slave to make a minyan is thus a kiyum!

    ;)

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  2. Sounds like chassidishe Torah - I love it!

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  3. RE: Josh Waxman's point -- not so far off -- the chinuch, in explaining the mitzvas aseh of le-olam bahem taavodu, says that the reason that one can free an eved is because the point of the mitzvah is to allow the time and opportunity to bnei yisrael to serve Hashem. THerefore, freeing him to do a mitzva is perfectly consistent with the reason of the mitzvah - ayen sham.

    Re; your earlier point, I hear the question MGA and TE (where is the TE?) -- but what about the gemara on 40a re: freeing the eved or shifcha for koras ruach? Some rishonim do answer that there is no issur because once you cannot be meshabed them due to the ratzon of the previous owner/mes due to mitzvah le-kayem divrei ha-mes, there is no issur in simply writing a get shichrur. But my recollection is that there were rishonim who understood the heter of this gemara based the sevara of the Ramban and the Ran. I will bli neder look for it beferush.

    By the way, could the answer alternatively be that Avraham Avinu did not do mitzvos that reflected a certain halachic status which did not exist before matan torah? Meaning he did all mitzvos that required a maaseh mitzva, e.g., eating matzah, as Rashi and Chazal explained in last week's parsha. But he did not do mitzvos that reflected a halachic status that did not exist yet -- that was taluy on kedushas yisrael. It has been a while since I saw it, but doesnt the Griz give a similar answer as to why Avraham didnt do milah before he was nitztaveh and why Yaakov could marry two sisters (i.e. without the halachic status of yisrael, and ervah, there was no inyan in keeping it)? Likewise a mitzvah which is predicated on there being a difference between a yisrael and a goy would not be shayach before matan Torah.

    For e.g., the Rambam writes at the end of hilchos melachim that benei Noach can do mitzvos as einan metzuvim ve-osin and get schar - as Dama ben Nesinah famously showed with kibud av va-em (with certain limited exceptions, e.g. talmud torah, shabbos). However, even though they can do mitzvos voluntarily, they couldnt be mekadesh an ishah even if they tried because that is dependent on a halachic status which they dont have. Hu ha din hacha. Efshar.

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  4. Does lo techaneim aplly to something that is not fit for Jews? maybe the shen tumah was not meant for Jews so there is no lo techaneim. I know this is dochek, just throwing it out there

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  5. I will have to look again at daf 40, but see the footnotes to the Mossad haRav Kook Rashba on 38a re: the Ramban who points you to the MG"A and Turei Even in Chagiga 2b. (Side point: R' Akiva Eiger in Gittin 13 has a long discussion of this whole din that is very interesting).
    C.M. - it does apply even if not fit for Jews, see the Rashba who discusses the din of giving neveilah to ak aku"m.

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  6. Re your ending point: perhaps the difference is not so much between concrete and intangible but between concrete objects and knowledge. For instance, you might give me a book which deals with the halacha of inheritance, in which case you give me a physical gift that you can not later to give to others; or you teach me the halacha of inheritance, in which case you give me a gift which is not only intangible but which you can give repeatedly to others.

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