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OUTLINES OF HALACHOS FROM THE DAF

Kollel Iyun Hadaf

prepared by Rabbi Pesach Feldman of Kollel Iyun Hadaf, Yerushalayim

daf@dafyomi.co.il, www.dafyomi.co.il

Rosh Kollel: Rabbi Mordecai Kornfeld

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1) CAN WE FORCE ONE TO WORK TO PAY HIS DEBTS? [Halva'ah : coercion]

(a) Gemara

1. (Rabah bar Huna): If one was incarcerated by Yisraelim, we may slaughter Pesach for him alone, since they promised to release him "She'eris Yisrael Lo Ya'asu Avlah v'Lo Yedabru Chazav." (They will not lie.)

2. Bava Metzi'a 10a (Rava): Rav taught that a worker can quit his job in the middle.

3. (Rav Nachman): This is because "Li Bnei Yisrael Avadim" - they are not slaves to slaves.

4. Gitin 58a (Rav Yehudah): "They oppressed a man and his house" refers to a case in which an apprentice counseled his teacher to divorce his wife. He lent to him the money to pay her Kesuvah. He divorced her, and the apprentice married her. The teacher could not pay his debt on time. The apprentice asked him to pay the debt by working for him.

i. The teacher served his ex-wife and the apprentice. While they ate and drank, his tears flowed into the cup. At this time, the Churban was decreed.

5. Shabbos 121b: Aba bar Marsa owed money to people of the Reish Galusa's house. They were paining him.

i. The Reish Galusa heard Aba say a Halachah in the name of Rav Yehudah, and said "leave him alone! He is a Chacham."

6. Kesuvos 63a (Mishnah): Similarly, if a man rebels against his wife...

7. Question: R. Yosi b'Ribi Chanina holds that rebellion is refusal to work. Is he obligated to work for her?!

8. Answer: He refuses to feed her.

(b) Rishonim

1. Rosh (Teshuvah 78:2): Shmuel (Bava Metzi'a 113a) taught that a Shali'ach Beis Din may not enter the borrower's house to take a security. All the more so Beis Din does not take his body to force him to work to pay his debt! R. Tam wrote so in a Teshuvah. We expound [that that one is sold to be an Eved Ivri only to pay for what he stole, but not to pay for what he owes for being a Ed Zomem (for testimony that he did not see) or for Kefel (paying double what one stole). Similarly we expound "not to pay his debt or his obligation to feed his wife." Hiring oneself out to a job is called a sale, like it says (Bava Metzi'a 56b) "rental for a day is like a sale". The Torah calls an Eved Ivri sold for six years a Sachir (hired worker). R. Eliyahu obligates hiring oneself out to feed his wife. R. Tam disagreed and brought proofs. Perhaps even R. Eliyahu obligates hiring oneself out only to feed a wife, but not for only other debtors. He learns from the Kesuvah, in which a man writes "I will work, honor (monetarily) and finance", like other matters we expound from the text of the Kesuvah. Do not bring a proof from Gitin 58a. Chachamim expounded that the entire episode was Oshek (affliction). This caused the decree for the Churban!

i. Rashi (91a DH Beis): A jail of Yisre'elim incarcerated him to force him to divorce his forbidden wife, or to pay money, or if he hit Ploni, and we are waiting to see if Ploni will recover.

ii. Question: If one put a lien on himself and his property, and he was diverting his property [so the lender will be unable to collect], do we confine him due to the lien he put on his body?

iii. Answer (Rashba 1069): There is no lien on his body to be sold and pay the way a thief is sold for his theft, and not to be confined. One cannot write to obligate himself to be and work like a slave. Rather, he owes like a borrower, and his property is like an Arev (guarantor).

iv. Rivash (484): Reuven borrowed from Shimon, and accepted a Kinyan to be bodily confined [if he will not pay]. One cannot stipulate to be confined. Regarding Kidushin on condition to be exempt from food, clothing or Onah (regular marital relations), R. Yehudah says that a monetary Tanai is valid (food and clothing), but a bodily Tanai is not, for she is pained through abstinence. Also confinement is bodily pain, so one cannot stipulate about it. If one says "hit me", some say that this exempts from payment for hitting him (Bava Kama 93a), but all forbid hitting him. Even a worker who hires himself out for the entire day can retract in the middle, due to "Li Bnei Yisrael Avadim." A Tanai does not force bodily work against his will, even if this is his trade and he is used to it. A Beraisa teaches that we leave a borrower with food for 30 days, clothing for 12 months, a bed... and the tools needed for his trade, even if he put a lien on all his property. One may not take a security even from Kelim used for food. How can one take the body for security?! He must pursue his income! The lender said that this is the law of the kingdom. It is so only in Alfrada. Such a stipulation does not help according to Torah law. The custom here is to confine borrowers or anyone against whom there is a claim, unless he gives Arevim. I wanted to protest, for it is unlike Torah law. They said that it is an enactment due to swindlers, and lest people refrain from lending. I did not protest. However, if the borrower is established to have Metaltelim, and is diverting them from the lender, Beis Din can force him, confine him and hit him. Paying a debt is a Mitzvah. If one does not fulfill an Aseh, Beis Din hits him until he dies. Since they may hit him to force him to fulfill his Mitzvah, they may confine him. If the borrower is poor, the lender may not even pass in front of him. Surely Beis Din will not help him to transgress, and a Tanai does not help. However, if he swore to imprison himself until he pays, we force him to fulfill his oath.

v. Tosfos (Bava Metzi'a 10a DH Ki Li): In any case one may hire himself out. Only an Eved Ivri, who may not retract and leave before the time without a document of freedom, transgresses "Avadai Hem."

vi. Hagahos Maimoniyos (Bava Metzi'a 459-460 DH Ki, citing Maharam): We should say that just like one may not sell himself to be an Eved Ivri, he may not hire himself out! I answer that a worker is not called an Eved, rather, a Sachir. We learn a leniency from a slave. If he was sick half the time, he need not compensate [after the six years finish]. All the more so, a worker! Three years is called a Sachir ("Shalosh Shanim ki'Ymei Sachir"). Therefore, a teacher, scribe or other profession may not hire himself out in someone's house and be supported on his table for more than three years, for this is not considered a Sachir. Even though he is not a full slave, he transgresses "Li Bnei Yisrael Avadim." Shabbos 127b supports this. It says that a man from Galil hired himself out for three years. This connotes that more than this is forbidden.

vii. Tosfos (Kesuvos 63a DH b'Omer): R. Eliyahu learns from here that one must hire himself out to teach children or do another Melachah in order to feed his wife. If not, how can a husband rebel from work? However, Rashi explains that feeding her is in exchange for her work. R. Eliyahu brought another proof from the Kesuvah "I will work, honor and finance." R. Tam rejected this. "I will work" in the field and bring food to the house, but he need not hire himself out.

(c) Poskim

1. Shulchan Aruch (CM 97:15): Paying one's creditor is a Mitzvah. We lash one [who has money] to do so until he fulfills it or dies. However, we do not force him to hire himself out or do Melachah in order to pay.

i. Beis Yosef (DH ul'Divrei): It seems that the Rosh agrees with R. Tam.

ii. SMA (29): We do not force him to hire himself out to pay a loan, since it was given to spend [so he is unlike a thief - PF].

iii. Gra (44): R. Eliyahu agrees about a debt, like the Rosh wrote. A proof for R. Tam is that the Gemara said 'I will not feed her." It did not say that he lacks what to feed her [and refuses to work to feed her. If this were true, it would be a bigger Chidush!]

iv. Pischei Teshuvah (5): Sha'ar Mishpat discusses whether or not he must hire himself out. He concluded that even though Beis Din does not force him, Rishonim argue about whether he must do so. Tosfos (Bava Metzi'a 10a) exempts, but Hagahos Mordechai obligates. The Rema (333:3) rules like this. We do not force him, but he must hire himself out in order to pay.

2. Shulchan Aruch (ibid.): Even if he stipulated that the lender may seize his body, and wrote this in the document, it does not help. He may not confine him or force him to work.

i. Bach (28): If one has Metaltelim, we force and lash him until he pays. If he does not, mid'Oraisa we do not force him to hire himself out and pain his body due to his debt. We learn from "Li Bnei Yisrael Avadim", that a worker can retract in the middle of the day. The Tur brings from the Rosh that a Tanai does not help, i.e. if he has no money. If we estimate that he has, we lash, excommunicate and confine him. The Rivash (484) says that if it is established that the borrower has Metaltelim and he is diverting them from the lender, Beis Din can force him and confine him. This is unlike the Rashba, who says that even then there is no lien on his body. Rashi connotes like this. He holds that it is obvious that Beis Din confines someone to make him pay. He connotes that he discusses confinement in order to pay a creditor. Also the Agudah says that we confine one who has money and does not pay. He learns from Aba bar Marsa. The Reish Galusa's house were paining him. The Beis Yosef rejected the proof. Perhaps the Reish Galusa's slaves did so. In many places, they acted against the Halachah. This is not a proper rejection. The Gemara clearly says that the Reish Galusa was paining him! (I.e. he consented - PF.) This is the custom everywhere. The enactment of congregations to confine one who does not have what to pay has no proper source.

ii. Ra'anach (58): If Beis Din investigates and finds that the borrower has no money, they may not confine or pain him, and all the more so in a jail, where there is mortal danger.

iii. Pischei Teshuvah (6): Pilpulei Charifta (Bava Metzi'a 5:38:2) says that it is proper to enact to confine a debtor, unlike letter of the law. Even if it was a business venture for the lender's profit, concern for discouraging loans applies. The Tumim (13) says that this is the custom, and no one protests. Perhaps the Chazakah is that everyone diverts his property. This requires investigation, for they have no one to rely on!

3. Rema: If he could pay but does not want to, Beis Din confine him and hit him until he dies, and force him to pay.

i. Gra (46): The Reish Galusa's house thought that Aba had money to pay. The Reish Galusa said "he is a Chacham", i.e. he would not lie.

4. Rema (ibid.): Some say that even if he lacks what to pay, if he swore to be confined until he pays, he must fulfill it.

i. Gra (48): An oath to harm oneself takes effect (Shevu'os 27a). Even the opinion that forbids denying oneself wine (Bava Kama 91b) agrees that Nezirus takes effect.

Other Halachos relevant to this Daf:

IS AVEILUS MID'ORAISA? (Nazir 15)

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