Babylonian Talmud: Tractate Gittin

Folio 41a

and say to him 'you are my slave,'¹  his second master is compelled to emancipate him, the slave giving him a bond for his purchase price.²  R. Simeon b. Gamaliel says that it is not the slave but the one who emancipates him who has to give a bond. In regard to what point do the two authorities join issue? — In regard to the person who injures an object pledged as security to another, one³  holding that he is liable [to make it good] and the other that he is not liable.⁴  It has also been stated [elsewhere]: On the question of the man who injures an object which has been pledged as security to another, we find a difference of opinion between R. Simeon b. Gamaliel and the Rabbis.

'Ulla explains [as follows]: Who emancipates him? His second master. In strict justice the slave is still not liable for the performance of religious precepts [incumbent on free men only]. To prevent abuses,⁵  however — since he has been reported to be free — his first master is compelled to liberate him, and he [the servant] gives him a bond for his purchase price.⁶  R. Simeon b. Gamaliel says that he does not give the bond, but the one who emancipates him gives the bond. On what point do the two authorities join issue? — On the question of damage which is not recognisable,⁷  the one⁸  holding [that in the eye of the law] this is genuine damage and the other that it is not.⁹

Why did not 'Ulla accept the explanation of Rab? — He will say to you, Can you call the second his master?¹⁰  Why did not Rab adopt the explanation of 'Ulla? — He will say to you, Do you call the second the one who emancipates him?¹¹

It has been stated: If a man makes a field of his security [for a debt] to another, and it is flooded by a river, Ammi Shapir Na'eh¹²  says in the name of R. Johanan that he cannot recover his debt from the remaining property of the debtor. The father of Samuel, however, says that he can recover from the remainder of his property. Said R. Nahman b. Isaac: Because he is Ammi Shapir Na'eh he makes pronouncements which are not commendable.¹³  But we must explain his reported ruling to refer to the case where the debtor has said to the creditor: 'You shall not be able to recover save from this'.¹⁴  It has been taught to the same effect: If a man makes a field of his security for a debt to another and it is flooded by a river, [the creditor] may recover from the remainder of his property. If, however, he said to him, 'You shall not be able to recover save from this', he cannot recover from the remainder of his property. Another [Baraitha] taught: If a man makes his field security for a debt to his creditor or for a woman's kethubah, they may recover from the remainder of his property.¹⁵  R. Simeon b. Gamaliel, however, says that [while] a creditor may so recover a woman cannot recover from the remainder, because it is not seemly for a woman to keep on coming to court.¹⁶

MISHNAH. ONE WHO IS HALF A SLAVE AND HALF FREE¹⁷  WORKS FOR HIS MASTER AND FOR HIMSELF ALTERNATE DAYS.¹⁸  THIS WAS THE RULING OF BETH HILLEL. BETH SHAMMAI SAID: YOU HAVE MADE MATTERS RIGHT FOR THE MASTER BUT NOT FOR THE SLAVE. IT IS IMPOSSIBLE FOR HIM TO MARRY A FEMALE SLAVE BECAUSE HE IS ALREADY HALF FREE.¹⁹

1. And so defame his children.
2. To compensate him for the loss of his security.
3. R. Simeon.
4. V. B.K. 33b.
5. I.e., lest he should marry a Jewess while in this state.
6. In so far as this is in excess of the debt.
7. Here, the emancipation of the slave, v. infra 53a.
8. R. Simeon.
9. Therefore the second has to give no bond, but the slave must do so in return for the benefit he has received in being emancipated.
10. And the Mishnah says, 'His master is compelled'.
11. Seeing that he was not his master, how could he be said to emancipate him?
12. So called on account of his beauty (v. n. 7) Rash. Nid. 19b.
13. A play on the word shapir, which means 'beautiful', 'commendable', as also does na'eh.
14. For this reason he cannot recover from any other property.
15. I.e., the debtor can sell this field and let the creditors recover from the rest of his property.
16. And for this reason the husband specially made this field responsible, so that she should not have to go to law with the purchasers of his other fields, not knowing which had bought first and which last.
17. Explained in the Gemara; v. n. 9 and p. 178, n. 9.
18. Lit., 'serves his master one day and himself one day'.
19. And so an Israelite.

IT IS IMPOSSIBLE FOR HIM TO MARRY A FREE WOMAN BECAUSE HE IS HALF A SLAVE.¹  SHALL HE THEN REMAIN UNMARRIED?²  BUT WAS NOT THE WORLD ONLY MADE TO BE POPULATED, AS IT SAYS, HE CREATED IT NOT A WASTE, HE FORMED IT TO BE INHABITED?³  TO PREVENT ABUSES,⁴  THEREFORE, HIS MASTER IS COMPELLED TO LIBERATE HIM AND HE GIVES HIM A BOND FOR HALF HIS PURCHASE PRICE. BETH HILLEL THEREUPON RETRACTED [THEIR OPINION AND] RULED LIKE BETH SHAMMAI.

GEMARA. Our Rabbis taught: If a man emancipates half his slave,⁵  Rabbi says that the latter becomes his own master to that extent, and the Rabbis say that he does not. Rabbah says: The dispute [between them relates only to the case] where [the master has made out] a deed of emancipation. Rabbi holds, [since it says] And she be not at all redeemed nor freedom given her,⁶  we apply the same rule to a deed as to money.⁷  Just as with money the slave can acquire either the half or the whole of himself,⁸  so with a deed, he can acquire either the half or the whole of himself. The Rabbis, however, base their ruling on the occurrence of the word 'to her' [in connection both with a female slave] and with a [divorced] wife.⁹  Just as a wife cannot be divorced by halves, so a slave cannot acquire himself by halves. With money, however, both agree that he can so acquire himself. May we say that the point at issue between them [Rabbi and the Rabbis] is this, that [where a ruling may be based either on an analogy or a gezerah shawah]¹⁰  one holds that preference is to be given to the analogy and the latter to the gezerah shawah? — No; both agree that preference is to be given to the gezerah shawah,¹¹  but there is a special reason [for not doing so here, because the validity of the gezerah shawah] may be questioned thus: [This rule¹²  may well apply to] a woman since she cannot be liberated by money, but how infer from her to a slave who is liberated by money?

R. Joseph said that [the dispute between Rabbi and the Rabbis is where] the half-emancipation is made for money payment. Rabbi holds that the words 'redeeming she is not redeemed' indicate that she is [half] redeemed but not [wholly] redeemed, whereas the Rabbis hold that the Torah was here using an ordinary form of speech.¹³  Where, however, [the half-emancipation is made by] a deed, both [according to R. Joseph] agree that the slave does not acquire [that half of himself].

An objection was raised [from the following]: if a man emancipates half his slave with a deed, Rabbi says that the slave acquires that half of himself, while the Rabbis say that he does not acquire it. Is not this a refutation of R. Joseph? — It is. [And I infer from this Baraitha] that Rabbi and the Rabbis differ only where the emancipation is effected by a deed, but where it is effected by money payment they do not differ; in which case there will be a double refutation of R. Joseph?¹⁴  — R. Joseph may reply: [What the Baraitha shows is] that they differ in regard to a deed, and this applies also to money payment; and the reason why their difference is mentioned only in regard to a deed is to show to what lengths Rabbi is prepared to go.¹⁵  But why should not their difference be mentioned with reference to money payment to show to what lengths the Rabbis are prepared to go?¹⁶  — It prefers [to note] the strength [of this conviction] where it leads to a permission.¹⁷

Come and hear: 'And redeemed': I might take this to mean 'entirely [redeemed]', therefore it says, 'she was not redeemed'. If 'she was not redeemed,' I might think it means 'not at all'? Therefore it says, 'And redeemed'. How then do we explain? She is redeemed and yet not redeemed, with money or with the equivalent of money. I only know so far that this is the case¹⁸  with money [payment]; how do know that it is so with a deed? It says, 'And redeemed she was not redeemed, nor was her freedom given to her,' and in another place it says, And he shall write for her a bill of divorcement.¹⁹  Just as there the woman is liberated by a deed, so here. I only know so far that a half-emancipation [can be effected] by money or a full one²⁰  by a deed. How do I know that a half-emancipation [can be effected] by a deed? It says, 'And redeemed she be not redeemed or her freedom be not given to her.' The deed is here put on the same footing as money payment, [whence I conclude that] just as with money either a half or a full emancipation [can be effected], so with a deed. Now there is no difficulty here if we accept the view of R. Joseph after he was refuted:²¹  this [Baraitha] agrees with Rabbi.²²  But on the view of Rabbah²³  we must say that the first half²⁴  agrees with all and the second²⁵  only with Rabbi?²⁶  — To which Rabbah replies: That is so: the first half agrees with all and the second is according to Rabbi [only]. R. Ashi said: It follows Rabbi [throughout].²⁷  But then, what of the Mishnah, which says, ONE WHO IS HALF A SLAVE AND HALF FREE? This presents no difficulty on the view of Rabbah, because he can suppose it to refer to [one who has been emancipated] by money payment, and it represents the view of all, but on the view of R. Joseph²⁸  are we to say that it represents the view of Rabbi and not of the Rabbis? — Rabina replied:

1. And so not an Israelite.
2. Lit., 'shall he abstain'.
3. Isa. XLV, 18.
4. Lit., 'for the better ordering of the world'.
5. He says 'I emancipate half of you'.
6. Lev. XIX, 20.
7. Applying the word 'redeemed' to emancipation for money payment and freedom' to emancipation by deed and drawing an analogy (hekkesh) between the two.
8. As derived infra from the same verse.
9. Nor freedom given to her (lah) (Lev. XIX, 20), and And he write for her (lah) (Deut. XXIV, 1). The inference is drawn on the strength of the hermeneutical rule called gezerah shawah (v. Glos.).
10. V. supra n. 2.
11. Because the inference in this case is either based on a redundancy in the text or else on a very ancient tradition.
12. That there is no half-liberation by means of a deed.
13. Lit., 'speaking in the language of human beings.' i.e., using the words 'redeemed she was not redeemed,' to mean simply, 'she was not at all redeemed,' so that we cannot learn from these words that half-emancipation can be obtained by money payment.
14. Who said that the Rabbis do not admit half-emancipation even with money payment.
15. Lit., 'to show the strength of Rabbi'. Namely, even to the extent of ignoring the gezerah shawah which points in the other direction.
16. Even to the extent of ignoring the analogy which points in the other direction.
17. Here, the permission of the slave to emancipate half of himself, whereas the strength of the Rabbis' conviction leads them to prohibit him.
18. That a slave can be half emancipated.
19. Deut. XXIV, 1.
20. Because there is no half-liberation by a deed for a wife.
21. I.e., after the first half of his statement, that Rabbi dues nut admit half emancipation with a deed, had been refuted, but he had defended the other half, that the Rabbis did not admit it for money.
22. Who also said, according to the revised opinion, that half-emancipation could be effected either with a deed or with money.
23. Who said that according tithe Rabbis there is no half-emancipation by deed.
24. Which states that money effects half-emancipation.
25. Which states that even a deed effects half-emancipation.
26. And not the Rabbis who do not admit half-emancipation by deed.
27. Rabbi holding that the slave obtains half-emancipation in both cases.
28. According to whom the Rabbis hold that there is no half-emancipation whether by money or by deed.