Babylonian Talmud: Tractate Gittin

Folio 40a

he automatically becomes a free man.¹  Said R. Johanan to him: Are you really sure of that?²  What I have learnt is, if a man writes a deed of betrothal³  for his female slave, R. Meir says that she becomes betrothed and the Sages say that she is not betrothed.⁴  The explanation is similar to that given by Rabbah son of R. Shilah, who said [in an analogous case], 'When his master puts the phylacteries on him.'⁵  So here, the slave becomes free when the master actually gives him a wife.⁶

But is it possible that there can be an action involving a breach of the law which a man would not allow to be done on behalf of his slave but would perform on his own behalf?⁷  — R. Nahman b. Isaac said; We are assuming here that in giving her the deed of betrothal] he says, Become free with this and be betrothed with this.⁸  R. Meir held that this expression ['be betrothed'] includes emancipation, and the Rabbis held that it does not include emancipation.

R. Joshua b. Levi said: If a servant puts on phylacteries in the presence of his master, he becomes a free man. An objection was raised; 'If his master borrows [money] from his slave, or if his master appoints him administrator of his affairs, or if he puts on phylacteries in the presence of his master, or if he reads three verses in his presence in the synagogue, he does not [thereby] become a free man'? — Rabbah son of R. Shila explained that [R. Joshua b. Levi was speaking of the case] where his master [himself] put the phylacteries on him.⁹

When R. Dimi came [from Palestine] he reported [the following ruling] in the name of R. Johanan: If a man when on the point of death says, I do not want my female slave So-and-so to be used as a slave after my death, the heirs can be compelled to make out for her a deed of emancipation. R. Ammi and R. Assi [expostulated with him] saying, Do you not admit that her children will be slaves?¹⁰  When R. Samuel b. Judah came, he said in the name of R. Johanan: If a man when on the point of death says, My female slave So-and-so has given me great satisfaction, let something be done to satisfy her, the heirs may be compelled to satisfy her.¹¹  The reason is that it is a religious duty to carry out the wishes of the deceased.

Amemar said: If a man declares his slave common property, nothing can be done for the slave.¹²  Why so? Because he no longer possesses his body, but he is still bound by the prohibition,¹³  and this he cannot transfer to him. Said R. Ashi to Amemar: But has not 'Ulla said in the name of R. Johanan and R. Hiyya b. Abin in the name of Rab, In either case¹⁴  he becomes a free man and requires a deed of emancipation? — He replied: He requires one, but nothing can be done for him.

According to another version, Amemar said: If a man declares his slave common property and then dies, nothing can be done for the slave. Why so? Because he no longer owns his body, but he is still bound by the prohibition, and this he cannot bequeath to his son. Said R. Ashi to Amemar: But when R. Dimi came he reported a ruling of R. Johanan [which conflicts with this]?¹⁵  — R. Dimi's statement was erroneous.¹⁶  Where, he rejoined, was the error? That the man did not say distinctly that the slave should be emancipated? But if he had done so, then they would have had to write her a deed of emancipation, [would they not]? — Said Amemar: I hold with R. Samuel b. Judah.¹⁷

A certain settlement of slaves was sold [by their Jewish masters] to heathens. When the second masters died, they applied to Rabina,¹⁸  and he said to them, Go and find the sons of your first masters, and they will write you out deeds of emancipation. The Rabbis expostulated with Rabina, saying, Has not Amemar laid down that if a man declares his slave common property and then dies, nothing can be done for the slave? — He replied: I adopt the view of R. Dimi. But, they said to him, R. Dimi's statement was erroneous! — He replied: What was the mistake? That the man did not say distinctly that the slave should be emancipated. But if he had said so, the heirs would have had to emancipate her, [would they not]?¹⁹  The law is as stated by Rabina.

A certain slave was owned by two men [in partnership], and one of them emancipated his half. The other thereupon thought to himself: If the Rabbis hear of this, they will force me to give him up.²⁰  So he went and transferred him to his son who was still under age. R. Joseph the son of Raba submitted the case to R. Papa. He sent him back answer: As he has done so it shall be done to him; his dealing shall return upon his own head.²¹  We all know that a child is fond of²²  money. We shall therefore appoint for him a guardian,

1. Because we assume that if the master had not emancipated him he would not allow him to do this.
2. That Rabbi said this.
3. 'Behold thou art betrothed to me.'
4. Because we do not assume that he has emancipated her. The Sages here would include Rabbi.
5. Infra.
6. As in this case there can be no doubt that he has emancipated him.
7. Viz., his marrying his female slave before making out for her a deed of emancipation.
8. Where, however, he says merely 'Be betrothed' it is assumed that he had emancipated her already.
9. The master would not have conferred upon him this dignity had he not already emancipated him.
10. I.e., the expression, 'do not use her as a slave,' only means that they should not make her work too hard, not that she should be freed.
11. Even to the point of emancipating her.
12. To enable him to marry either a free woman or a slave. [According to Tosaf., however, he may still marry a slave. V. Tosaf. s.v. [H].
13. To marry a Jewess, which remains in force until the slave obtains a deed of emancipation.
14. Whether sanctified or declared common property. V. supra 38b, 39a.
15. Viz., that the heirs can be compelled to write a deed of emancipation, though they could claim to no ownership of the body of the slave in view of the father's instructions. V. supra.
16. As shown by R. Ammi and R. Assi supra.
17. According to whose version of R. Johanan's ruling, the heirs can use their own judgment.
18. To make them eligible for marrying Jewesses.
19. And so here, though the first masters declared them free as far as they were concerned, the heirs can nevertheless write them a deed of emancipation.
20. Lit., 'cause me to lose him', i.e., to allow him to purchase the other half of himself from me.
21. Obad. I, 15.
22. Lit., 'is attracted to'.

and [the slave] will rattle some coins before the child, and [the guardian] will write out a deed of emancipation for the slave in his name.¹

Our Rabbis have taught: If a man says, 'I have made my slave So-and-so free', 'he is hereby declared free', 'I declare him free,' then he becomes a free man. [If he says,] 'I shall make him free,' Rabbi says that he acquires possession [of himself],²  but the Sages say that he does not.³  R. Johanan explained that in every case we suppose a deed to have been made out.⁴

Our Rabbis have taught: If a man says, 'I have given such-and-such a field to So-and-so'; 'It is presented to So-and-so'; 'I declare it to be his,' then it is his. If he says, 'I shall give it to So-and-so,' R. Meir⁵  says that he acquires ownership of it, but the Sages say that he does not acquire ownership. R. Johanan explained that in every case we suppose a deed to have been given.

Our Rabbis have taught: If a man says, 'I have made my slave So-and-so free,' and the slave says, 'You have not freed me', we take into account the possibility that he has presented him a deed of emancipation through a third party.⁶  If, however, the master says, 'I have written and given to him,' and he says, 'He has not written for me nor given to me,' this is a case where the admission of the litigant is worth the evidence of a hundred witnesses. If a man says, 'I have given such-and-such a field to So-and-so', and the latter says, 'He has not given it to me,' we take into account the possibility that he may have presented it to him through a third party. If he says, 'I have written [a deed] and presented it to him,' and the other says, 'He has not written nor presented to me,' then in that case the admission of the litigant is worth the evidence of a hundred witnesses. [In such a case] who is entitled to the produce? — R. Hisda says the donor is entitled to the produce, whereas Rabbah says that the produce is entrusted to a third party.⁷  There is no conflict between the two rulings; the one applies to the father, the other to the son.⁸

MISHNAH. IF A MAN MAKES HIS SLAVE SECURITY⁹  [FOR A DEBT] TO ANOTHER MAN AND HE EMANCIPATES HIM, IN STRICT JUSTICE THE SLAVE IS NOT LIABLE FOR ANYTHING, BUT TO PREVENT ABUSES¹⁰  HIS MASTER IS COMPELLED TO EMANCIPATE HIM. AND HE GIVES A BOND FOR HIS PURCHASE PRICE. RABBAN SIMEON B. GAMALIEL SAYS THAT HE DOES NOT GIVE A BOND BUT HE EMANCIPATES HIM.¹¹

GEMARA. IF A MAN MAKES HIS SLAVE SECURITY FOR A DEBT AND HE EMANCIPATES HIM. Who emancipates him? — Rab says, his first master. In strict justice the slave is then not liable for anything to his second master, according to the dictum of Raba, that 'sanctification,¹²  leaven,¹³  and emancipation release from a creditor's lien.'¹⁴  To prevent abuses, however, [that is to say, for fear] lest he should find him in the street

1. A minor could not be compelled to emancipate his slaves, nor could his guardian do so for him. On the other hand, a minor was competent to sell movables. Hence if the slave could induce him to sell to him his half, well and good, and the function of the guardian was only to see that he obtained a fair price. According to Tosaf., the deed is made out in the name of the guardian. V. Tosaf. s.v. [H].
2. Along with the deed of emancipation in which these words are written.
3. Because this is only a promise that he will liberate him subsequently by means of another deed.
4. But if it is merely a verbal declaration, the master can retract.
5. Var. lec.; Rabbi.
6. Without the slave's knowledge. In such a case the slave would be liberated on the principle that a benefit may be conferred on a man without his knowledge.
7. Who puts it on one side till the 'coming of Elijah', i.e., till the truth of matter is ascertained.
8. We accept the disclaimer of the man who is alleged to have received the gift, but not of his son, as witnesses may still be found to prove that the gift was actually made.
9. [H] [G].
10. Lit., 'for the better ordering of the world'.
11. The whole of this Mishnah is explained in the Gemara.
12. If a man pledges an animal as security and then devotes it for a sacrifice.
13. If a man borrows from a Gentile on the security of leaven and the Passover intervenes, rendering the leaven forbidden for use.
14. V. B.K. 90a.