the gemara makes a קל וחומר to teach us that the father gets her מעשה ידים, the question i had is, why do we need a ק"ו we should say more simply that if the father has the ability to sell her as a slave and then he master will get the מעש"י then obviously the father until then owned the מעש"י.
i was harboring this question since daf 40, i found the question today in rav elyashivs sefer, see there for his answer. I asked my Rebbi this question and he answered simply - the father doesn't own her מעש"י and the proof is that he can't force her to work, all he has is the right to sell her as a slave and ממילא she will have to work for her master,
so it come out that the father doesn't really own her מעש"י just that if she works he has a right to get it, I'm not sure how to define this ownership, it seems a little strange because ממ"נ if he owns it he should be able to force her to work and if not then why does he get it?
3 comments:
i disagreee with your premise both in your question and your answer.
re: your question - why do you assume that this "kal v'chomer" is anything more than a simple sevara to show that the father does in fact OWN ma'aseh yadayim. See Tosafos 46b d.h. v'aima, who indicates in his answers to distinguish between ma'aseh yadayim and kesef kiddushin, that the logic of the gemara is simply that the father owns ma'aseh yadayim from the fact that he can sell her as an amah.
RE: your rebbis answer - where in the world do you get this from that a father cannot force a daughter to work. The father OWNS ma'aseh yadayim and can certainly force her to produce whatever she is capable of producing. The Shita m'kubetzes 43a (in the name of ramban) when the gemara asks if the brothers inherit ma'aseh yadayim, explains that even acc. to r' sheishes who says:
נ"ל דאפילו רב ששת נמי לא קאמר שתהא הבת נזונת ועושה (דהיינו שמעשה ידיה לאחיה) בעל כרחה לאחין, כמו שאביה כופה לעשות וליזון מן התורה, אלא רב ששת מדרבנן קאמר דקסבר לא תקינו רבנן מזוני אלא בעושה ואוכלת דומיא דאלמנה, ורב פליג עליה ואמר סתם דמעשה ידיה לעצמה.... והשתא בעי רב כהנא מאי טעמא דרב...דאורייתא אמאי אין הבנים במקום אביהן ואפילו לכוף אותה שתהא נזונת ועושה? ומפרש לה מדכתיב "והתנחלתם אותם".
It is clear that the father can force her and totally OWNS full rights to her ma'aseh yadayim.
Also, see Tosafos 43 d.h. magid, who explains the need for the pasuk that brothers don't inherit z'chus of her ma'aseh yadayim (midioraysa) even by a ketana. I would have thought that since ma'aseh yadayim of ketana belong to the father based on the kal v'chomer, the sons should inherit rights to her ma'aseh yadayim. Now, if it is a real kal v'chomer we should say dayo (see tosafos yeshanim there), since the sons can't sell her, there should be no hava amina that they get ma'aseh yadayim! But based on the fact that it is not a realy kal v'chomer, rather just a way of showing the father OWNS her ma'aseh yadayim (from the fact that he can sell them), it makes sense that the brothers should also inherit ma'aseh yadayim even though they can't sell her.
wow! great!
regarding the Shita - I agree.
Regarding the kal v'chomer, rav elyashiv entertains the possibility that its not a real kalo v'chomer (what i thought as well) but proves otherwise from tosfos in 47a. i will have to check more carefully tomorrow.
I learned Tosafos on 47a d.h. hashta, which implies in the answer of "mori ha'aram" that it is a real kal v'chomer since the whole answer is that we do not gain anything by using this kal v'chomer instead of the kal v'chomer of "if na'arus makes her go out free, certainly the father can't sell a na'arah". However, it is possible that that is also not a real kal v'chomer, rather that from the fact that she goes out as a na'arah is a proof that a sale cannot be binding on a na'arah.
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