1) ONE WHO SELLS HIMSELF AND HIS CHILDREN TO NOCHRIM
QUESTION: The Mishnah (46b) teaches that when a person sells himself and his children to Nochrim, we do not redeem him, but we redeem his children after he dies. The Gemara states that we redeem him the first two times he sells himself, and only after the third time we do not redeem him. The Gemara (end of 46b) relates an incident involving a man who sold himself to cannibals ("Luda'i") and then asked the Chachamim to redeem him from them. Rebbi Ami at first ruled that he should be redeemed based on a Kal va'Chomer. If we redeem children after their father's death, it must be because we are concerned that they not assimilate ("Kilkul"). If we are worried about assimilation, certainly we should be worried about the very life of the captive, and since the captive is in danger of being killed and eaten, we should be permitted to redeem him.
The CHASAM SOFER asks a number of questions on this Gemara.
(a) What is the basis for Rebbi Ami's Kal va'Chomer? The reason why we do not redeem the father himself, but we do redeem the children after the father's death, is that if we redeem the father he will keep selling himself and thereby bankrupt the communal funds by relying on the community to redeem him each time. Therefore, after he sells himself three times, he is penalized and may not be redeemed. This is evident from the fact that we redeem him the first two times, and then we stop redeeming him after he sells himself a third time. It is also evident from the fact that this Halachah appears as part of a series of Mishnayos which discuss decrees that were made because of "Tikun ha'Olam."
The reason we do not redeem his children as long as he is alive is presumably because he will just sell them again. Therefore, after his death we may redeem them.
Why, then, does Rebbi Ami suggest that we should redeem the father to prevent assimilation and certainly to prevent his death? There is good reason for not redeeming the father, despite the possibility of assimilation or death, and that is "Tikun ha'Olam" -- he will sell himself again and rely on communal funds to redeem him. Why does Rebbi Ami assume that the concern for assimilation and the concern for the captive's death override "Tikun ha'Olam"?
(b) The Midrash (Bamidbar Rabah 21:4) teaches that one who causes another person to sin is worse than one who kills another person. Why, then, does Rebbi Ami assume that if we redeem the children to prevent them from sinning, we certainly redeem the father to prevent him from being killed? Sinning is considered more severe than killing.
(a) If the Rabanan do not redeem the father after he sells himself for the third time because of "Tikun ha'Olam" in order that he not continue selling himself, for the same reason they should not redeem the children even after his death -- in order to prevent the father from selling the children. If the father knows that his children will be redeemed upon his death, he will not refrain from selling them. Therefore, it must be that the only reason why the Rabanan instituted that the children be redeemed after their father's death despite the "Tikun ha'Olam" is in order to prevent them from assimilating. They do not redeem the father because he is older and the Rabanan are not afraid that he will assimilate. However, if there would be a fear of assimilation or death to the father, that would override the concern for "Tikun ha'Olam" and we would redeem him.
(Although it seems unfair to the children not to redeem them when their father was the one who sinned by unjustly selling them (indeed, the father does not even have the rights to sell them; if anything, selling them is an act of Gezeilah), nevertheless for the sake of "Tikun ha'Olam," to maintain the welfare of the community, the Rabanan instituted such decrees, such as the Takanah (45a) not to redeem captives when the captors ask for too much money. Although Beis Din will not redeem the children during the father's lifetime, any relatives of means certainly would be permitted to redeem them.)
(b) Certainly the person who causes someone else to sin is worse than the person who kills someone, because the damage he causes is perpetuated constantly; the person whom he taught to sin continues to sin throughout his life. Death, in contrast, occurs only once.
However, from the perspective of the victim, dying is certainly a worse fate that sinning, because it is irreversible. Sinning is reversible since a person can repent and do Teshuvah.
Moreover, in the case of children who were sold as slaves to Nochrim, although the sins they will commit as a result of assimilation will be repeated many times, their sins are not as severe because they are considered "Tinokos she'Nishbu," babies taken captive and never taught to observe the Mitzvos, and it is not their fault that they learned to sin. (See KESAV SOFER, EH 46, who also discusses his father's questions at length.)
2) "PE'AH" TAKEN BY A NOCHRI
QUESTION: Rebbi Elazar maintains that land in Eretz Yisrael owned by a Nochri is exempt from Terumos u'Ma'aseros. Rabah challenges him from a Mishnah in Pe'ah which teaches that Leket, Shichechah, and Pe'ah of a Nochri's field are Chayav in Ma'aser. Rebbi Elazar answers that the Mishnah refers to Leket which a Nochri collected from a Jewish-owned field. Although Pe'ah normally is exempt from Ma'aser (because of a Limud which teaches that any produce which is free for all to take is exempt from Ma'aser; RASHI DH Leket), when a Nochri collects it, it is obligated in Ma'aser since a person does not make his Pe'ah into Hefker for a Nochri to take.
Once the produce has been designated as Pe'ah, how does its status become undone when a Nochri takes it? It is true that a Nochri is not entitled to take it, just as a Jew is not entitled to take it if he is not an Ani. Nevertheless, it should simply be considered theft when the Nochri (or wealthy Jew) takes it. How does it revert back to a state of ordinary, non-Pe'ah produce?
Moreover, when a Nochri takes all of the Pe'ah, does the Jewish owner of the field need to separate Pe'ah a second time because its status of Pe'ah was retroactively removed? (RABEINU KRESKAS; MISHNEH L'MELECH, Hilchos Terumos 2:9)
(a) The MISHNEH L'MELECH proves from the Gemara here that Pe'ah does not become exempt from Ma'aser until an Ani takes it. Before the Ani takes it, it is still obligated in Ma'aser. That is why the produce which the Nochri collects is obligated in Ma'aser. The Mishneh l'Melech adds that the same should apply when a wealthy Jew takes Pe'ah before an Ani takes it; it should be obligated in Ma'aser.
TOSFOS REBBI AKIVA EIGER to Pe'ah (4:9) asks a number of questions on the Mishneh l'Melech's assertion. The reason Pe'ah is exempt from Ma'aser is that any Ani is able to take it. Accordingly, it should be exempt from Ma'aser from the moment it is designated as Pe'ah and an Ani may take it.
Moreover, the Mishneh l'Melech himself points out that the Mishnah in Pe'ah (5:2) clearly implies that Leket is exempt from Terumos u'Ma'aseros even before the Ani takes it. The Mishneh l'Melech says that it must be that Leket is different from Pe'ah: Leket is exempt from Ma'aser immediately, while only Pe'ah is exempt only when the Ani takes it.
The Mishneh l'Melech's explanation is problematic, however, because the Gemara here -- which says that produce of Matnos Aniyim which a Nochri collects is obligated in Ma'aser -- discusses not only Pe'ah, but Leket and Shichechah as well! (Rebbi Akiva Eiger points out that there is another way to explain the Mishnah in Pe'ah 5:2.)
(b) RABEINU KRESKAS (cited by Tosfos Rebbi Akiva Eiger) answers that the Gemara refers to a city in which there are no Jewish poor people. Therefore, from the moment the owner separated the Pe'ah, the Pe'ah never really took effect since there were no Aniyim for whom Pe'ah needed to be separated. The Gemara in Chulin (143b) teaches that when there are no Aniyim, it is not necessary to leave Leket, Shichechah, and Pe'ah in one's field merely "for the birds to take." However, TOSFOS (DH A'da'ata) clearly does not share this view.
(c) Perhaps with regard to a Nochri Pe'ah is not considered Hefker because the Nochri has no right to take it. Therefore, even if a Jew later buys it from the Nochri he must treat it as non-Hefker produce (and separate Terumos u'Ma'aseros from it), since the Kinyan the Nochri made on it was not like a Kinyan from Hefker.
In contrast, when a wealthy Jew takes Leket, Shichechah, or Pe'ah, although his act is considered theft, he is not obligated to separate Terumos u'Ma'aseros from it because from his perspective it can be considered Hefker: if he were to make all of his property Hefker and become poor, he would rightfully be entitled to take it.