והלכתא בכפות - וצ"ל נמי דמיירי בישן דכפות מהני דלא הוי חצר מהלכת וישן מהני דהוי משתמרת לדעתו כדאמרינן בגיטין פרק הזורק (גיטין דף עח.) גבי כתב גט לאשתו ונתנו ביד. עבדו ישן ומשמרתו ה"ז גט ניעור אין גט משום דהוי חצר המשתמרת שלא מדעתה ופריך ישן אמאי הוי גט חצר מהלכת הוא וכ"ת ישן שאני והאמר רבא כל שאילו מהלך לא קנה עומד ויושב לא קנה והלכתא בכפות אלמא אע"ג דמוקי לה בכפות אפ"ה ניעור אינו גט ואין לפרש הלכתא בכפות כלומר לא חשיב מהלכת ולא דמי לעומד ויושב וכיון דכפות מועיל ישן נמי מועיל דא"כ דבשאין כפות איירי רבא אמאי קאמר רבא ניעור אין גט משום דהוי חצר המשתמרת שלא לדעתה תיפוק ליה דהוי חצר מהלכת וכן פ"ה פרק הזורק והלכתא בכפות ובההוא קאמר רבא דניעור אין גט וכן פסקו הלכות גדולות דכפות וישן בעינן: The halakha is [that] where [a slave is] bound up. The Gemara cited two Braitas that contradict each other.
A) The first Braita says that if one took possession of a slave he does not acquire movable objects together with the slave.
B) The second Braita says that one does acquire ownership of the movable objects when taking possession of a slave.
The Gemara offers two approaches to reconcile the contradiction. In the second approach Rav Eeko son of Rav Amee says: that both Braitas agree that slaves are like movable objects and the kinyon of ‘אגב-together’ is not effectual. However, the Braita that says one does acquire the movable objects is speaking about objects that are on the person of the slave, such as his clothing. He acquires those because the slave’s body is the equivalent of a ‘חצר-courtyard’. The Gemara asks: the slave is a ‘walking courtyard’ and is not capable of acquiring. Ultimately the Gemara says that we are speaking of a slave who is tied and cannot move. His body is considered a non-moving courtyard and is capable of acquiring movable objects.
Tosafot will show that there is another condition that must be met for the kinyon to be effective. That is that the object that one is acquiring must be secure in the courtyard, under the control of the one who is acquiring the object. The Gemara in Masechet Gittin 78a discusses this requirement.
And we must also say that it, the Braita that says one does acquire the movable objects on the slave, is speaking of a slave who is sleeping.
There are two factors needed to make this kinyon work:
Because, that the slave is tied, accomplishes that he is not a ‘walking courtyard’, and that he is sleeping accomplishes that the object being acquired is secure, under his control,1לדעתו – literally means according to his mind or will. In the context that this phrase is used in the Gemara, it refers to the owner of the courtyard being in control of the item to be acquired because it is in his courtyard. as the Gemara says in Chapter HaZoraik (78a), in regard to one who wrote a divorce document for his wife and he placed it into the hand of her slave. If the slave is sleeping and she, the wife, is guarding it, the document, this is a divorce, she has taken possession of the document via the slave who is her ‘courtyard’ and she is legally divorced even though the document did not arrive in her hand. If the slave is awake, it is not a divorce, because the slave is a ‘courtyard’ that is secured, but not under her control. A slave who is awake is in control of himself and the divorce document.
The Gemara there in Gittin is not satisfied with her acquiring the divorce document because the slave is sleeping.
And the Gemara asks: when the slave is asleep, why is the divorce effective; the slave is a ‘walking courtyard’?
The Gemara suggests:
And if you should say: that when the slave is asleep, it is different because the slave cannot move while he is sleeping. But Rovo said: in any case where if the slave is walking, one could not acquire via the slave because he is a walking courtyard, even if he is standing or sitting one cannot acquire via the slave because he is still considered a walking courtyard, since he has the ability to walk away even if he is presently standing or sitting. The Gemara equates sleeping to standing and sitting and holds that when a slave is sleeping he is also considered a ‘walking courtyard’. The Gemara there answers: and the halochoh is that the kinyon is effective when the slave is tied and he cannot move when he wants to.
The Gemara there added the requirement that the slave be tied to the previously mentioned condition that he be sleeping.
We see that even though the Gemara ultimately interprets the Gemara as speaking of when the slave is tied, even so when he is awake, it is not a divorce. Two conditions must be met. The slave must be tied and sleeping.
Tosafot suggests an alternate approach to understanding that Gemara so that we will not have to add the requirement that the slave is sleeping to our Gemara and then rejects this suggestion.
And one should not explain that when the Gemara in Gittin says: the halochoh is so that the divorce is effective when the slave is tied, it means to say: when the slave is tied he is not considered as a ‘walking courtyard’, and he is not similar to a standing or sitting slave. And since tying the slave is effective, being asleep which is similar to being tied is also effective and the divorce is valid if the slave is sleeping even though he is not tied.
For if it were so, that Rovo is speaking of when the slave is sleeping but not tied, why does Rovo say that if he, the slave, is awake it is not a valid divorce, because the slave is a courtyard that is secured, but not under her control? He should deduce that the divorce is not valid because the slave is a walking courtyard2Why is the reason that it is a walking courtyard any better than the reason that it is not secured under her control? Some say that a ‘walking courtyard’ is not a ‘courtyard’ at all, whereas that the object must be under her control is merely a detail needed to make the kinyon effective that is generic for all methods of acquiring, because the person acquiring needs to exhibit control over the object he is about to acquire. See Tosafot Gittin 21a, ד"ה והלכתא בכפות, who says that sometimes even when the slave is awake, he may be secured under her control, but would still be a ‘walking courtyard’. when awake. Rovo did not need to introduce the reason that it was not under her control.
And so did Rashi explain in Chapter HaZoraik (Gittin 78a): ד"ה והלכתא בכפות, and Rashi says there: and it is in that case, when the slave is tied, that Rovo said that when he is awake the divorce is invalid. We see that Rashi holds that being tied is insufficient to make the divorce valid, the slave must also be asleep.
And so too did Halochos G’dolos rule, that it is required that the slave be tied and asleep.