Babylonian Talmud: Tractate Gittin

Folio 42a

The Mishnah [according to R. Joseph] is speaking of a slave belonging to two partners.¹

Rabbah says: The dispute [between Rabbi and the Rabbis] concerns the case where [the master] liberates the half of the slave and keeps the other half, but if he liberates one half and sells the other half or makes a gift of it to someone²  since, the slave emerges completely from his ownership, both Rabbi and the Rabbis would agree that he acquires [the half of himself]. Said Abaye to him: And do they not differ even [where the master parts] with the whole? Has not one [authority] taught: 'If a man assigns in writing his property to two of his slaves,³  they acquire ownership and emancipate one another,'⁴  while it has been taught by another, If a man says, 'All my property is made over to my slaves So-and-so and So-and-so', they do not acquire ownership even of themselves? Now are we not to say that the one [authority]⁵  concurs with Rabbi and the other with the Rabbis? — No; both concur with the Rabbis, [only] the one [refers to the case] where [the man] assigned the whole [of his property to both slaves],⁶  while the other [refers to the case] where he says half [to one and] half [to the other].⁷  But the second clause goes on: 'If he says, half [to one] and half [to the other] they do not acquire ownership.' Does not this show that the first clause refers to the case where he says 'the whole'? — This second clause explains the first, [thus:] 'They do not acquire ownership even of themselves. When is this so? If, for instance, he says, half [to one] and half [to the other].' This supposition is reasonable, since if we assume the first clause [to refer to the case] where he says 'the whole', seeing that where he says 'the whole they do not acquire ownership, is it necessary [to tell us that they do not do so] where he says 'half and half'? — This is not a conclusive argument. [It may be that] the second clause was put in to make clear [the reference in] the first: lest you might think that the first clause [refers to] where he said half [to one] and half [to the other], leaving us to infer that where he said 'the whole' they acquire ownership, he adds in the second clause, 'where he says half and half,' which shows that the first clause [speaks of the case] where he says 'the whole,' and even so they do not acquire ownership. Or if you like I can say that there is no contradiction, as the one authority is speaking of one document⁸  and the other of two documents. [If he is speaking of] one document, what is the point of 'half [to one] and half [to the other]'? Even if he said, '[Let each take] the whole,' they do not acquire ownership?⁹  — This in fact is what he does say, [as what he means is:] 'They do not acquire even themselves. When do we say this? [When he makes out] only one deed. If, however, [he makes out] two deeds, they do acquire ownership. And if he says half [to one] and half [to the other], even with two deeds they do not acquire ownership.'¹⁰  If you like again I can say that there is no contradiction; in the one case [the two deeds] are given at one and the same time, in the other case one after the other.¹¹  [If that is so], I can understand why the second does not acquire ownership, because the first has already become his owner; but why does not the first acquire both himself and the other? No; the best [solutions are] those which were given first. R. Ashi said:¹²  The case is different there, because he calls them 'my slaves'.¹³  Said Rafram to R. Ashi: perhaps he means, 'who were my slaves'? Have we not learnt: If a man assigns in writing all his property to his slave, the latter becomes free; if he excepts a piece of land however small, he does not become free.¹⁴  R. Simeon says: He becomes free in all cases unless the master says, 'The whole of my property is assigned to my slave So-and-so except one ten-thousandth part thereof'?¹⁵  Now the reason for this is that he added these words, otherwise he would be free.¹⁶  But [it may be asked], why, seeing that he calls him 'my slave'? Obviously he means, 'who was hitherto my slave'; so here he means, 'who were hitherto my slaves'.

[If a slave who is half-emancipated] is gored by an ox, if it is on a day on which he belongs to the master, the [compensation¹⁷  goes] to the master, if on the day when be belongs to himself, it goes to himself. If that is so, then on his master's day he should be allowed to marry a slave-woman and on his own day a free woman? — We do not apply this principle where a religious prohibition is involved.

Come and hear: If [an ox] kills one who is half a slave and half free, the owner gives half the fine¹⁸  to his master

1. And even the Rabbis would admit that one of them can liberate the half belonging to him, since, as far as he is concerned, this is a complete liberation, analogous to that if a wife.
2. At the same time as or just before he liberates him.
3. By means of two deeds which he gives to a messenger on their behalf at the same time, so that each is entitled to a half.
4. I.e., each emancipates the half of the other which he has acquired.
5. Who says that a slave is emancipated by halves.
6. In which case even the Rabbis admit that they acquire ownership, because, as they are both liberated at once, they emerge completely from his ownership.
7. In which case they do not emerge from his ownership, even if he presented both of the deeds at the same moment, because it is possible that he assigns the same half of his property to both, and so half of each of them is still left enslaved.
8. In which case they are not liberated, just as two women cannot become divorced with one Get.
9. Because two slaves cannot be emancipated with one deed.
10. Because they do not emerge completely from the ownership of the master.
11. In both cases the whole being assigned to both.
12. R. Ashi seeks to reconcile the two authorities cited above.
13. In the deed they are designated as slaves, hence it is to be assumed that it was not his intention to liberate them but merely to make them a present of his property, which, however, as slaves they are not competent to acquire.
14. Since we do not know which fraction was excepted, the slave acquires no land, and since he acquires no land he does not acquire himself, since we cannot divide the assignment of himself from the assignment of the land, v. supra p. 30.
15. R. Simeon holds that we can in this case divide the assignments, but we do not know whether the ten-thousandth part does not refer to the slave himself.
16. Lit., 'acquire'.
17. The so-called 'damage' (nezek), the depreciation in his money value.
18. Of thirty pieces of silver, according to Ex. XXI, 32.

and half the ransom¹  to his heirs.²  Why [should this be so]? Let us say that on his master's day [the money goes] to his master and on his own day to himself? — The case is different here, because the principal³  is consumed — 4 What sort of case is it then in which the principal is not consumed?⁵  — If, for instance, [the ox] wounded him on his hand, causing it to shrivel, but so that it will eventually be healed. This answer is satisfactory if we accept the view of Abaye, who said that he is compensated [in such circumstances] both for the larger incapacitation and the smaller incapacitation.⁶  But on the view of Raba who said that he is only compensated for his incapacitation from day to day,⁷  [it may be objected that] we are dealing with an ox, and an ox [makes the master liable] only for payment of damage?⁸  — If you like I can say [that this rule⁹  applies only] when the blow is given by a man,¹⁰  and if you like I can say that the passage above is only an expression of opinion,¹¹  and it is one with which Raba does not hold.

The question was raised: If an [emancipated] slave¹²  has not yet received his deed of emancipation, is a fine to be paid for him or not [if he is killed by a goring ox]? Thirty shekels of silver he shall give to his master¹³  said the All-Merciful, and this [man] is not his master; or do I say that since the slave is still short of a deed of emancipation, we do call him a master? — Come and hear: If an ox kills one who is half a slave and half free, the owner gives half the fine to the master and half the ransom to the slave's heirs. Now this is so, is it not, on the basis even of the later teaching?¹⁴  — No; only on the basis of the earlier teaching.¹⁵

Come and hear: If a man knocks out a tooth of his slave and also blinds him of an eye, the slave is liberated on account of the tooth and receives compensation for the eye.¹⁶  If now you say that a fine must be paid for him and the fine belongs to his master, seeing that when others injure him they pay the master, when the master himself injures him is he to pay to the slave?¹⁷  — Perhaps this passage agrees with the authority who says that he does not need a deed of emancipation, since it has been taught: For all these [maimings]¹⁸  a slave is liberated; he requires, however, a deed of emancipation from his master. R. Meir says he does not require one; R. Eliezer says he does require one; R. Tarfon says he does not require one; R. Akiba says he does require one. Those who determine [the issue] in the presence of the Sages¹⁹  say: The opinion of R. Tarfon is to be preferred in the case of a tooth and an eye, because the Torah [itself] conferred on him [his freedom in this case];²⁰  but the opinion of R. Akiba in the case of the other members, because [the liberation] in that case is a fine imposed by the Sages [on the master]. A fine, you call it? They deduce it from the text of the Scripture!²¹  — Let us say, therefore, because it is a deduction of the Sages.²²

The question was raised: If a [liberated] slave [of a priest] is still short of a deed of emancipation, may he eat terumah or not? The All-Merciful has laid down that [terumah may be eaten] by [one who is] the purchase of his [the priest's] money,²³  and this one is no longer 'the purchase of his money'; or perhaps since he is short of a deed of emancipation do we still call him 'the purchase of his money'? — Come and hear: R. Mesharsheya has said:²⁴  If the child of a priestess has become interchanged with the child of her female slave, both may eat terumah²⁵  and must take their portion together from the threshing floor.²⁶  When the changelings grow up, they emancipate one another.²⁷  Are these two cases parallel? In the latter case, should Elijah²⁸  come and declare one of them to be a slave, we should call him 'the purchase of his money'; but in the other case he is not the 'purchase of his money' at all.

The question was raised: If a man sells his slave in respect of the fine only,²⁹  he sold or not sold? The question is pertinent whether we adopt the view of R. Meir or whether we adopt that of the Rabbis.³⁰  It is a question for R. Meir, [since we may say that] when R. Meir laid down that a man can transfer something which does not yet exist,³¹  [he was thinking] for instance of the fruit of a date tree which is expected to come into existence later, but in this case who can tell if the slave will actually be gored? And even if he is gored, how can we tell that the owner of the ox will pay?

1. Due to him as a free man, according to Ex. XXI, 30.
2. The Gemara discusses later what heirs a slave can have.
3. I.e., the slave himself.
4. And the division of days no longer applies here.
5. For which the owner of the ox, according to the first passage cited above, pays to the master or to the slave, as the case may be.
6. The larger incapacitation is his depreciation in money value were he to be sold immediately on his injury as slave, technically known as 'nezek' (damage). The smaller incapacitation is the money which, even with his injured hand, he could earn as a watcher in a cucumber field if he were not confined to his bed.
7. That is to say, for the money which he loses through not being able to follow his usual occupation, and not his depreciation in money value, v. B.K. 86a.
8. And not for the kind of compensation mentioned by Raba, which comes only under the head of 'incapacitation'.
9. That on his master's day the money goes to the master and on his own day to himself.
10. Who is liable also for incapacitation. The wording of the first passage will thus have to be amended.
11. And not a Mishnah or Baraitha.
12. Belonging to the classes mentioned above (sanctified, declared common properly, and half free) whose master can be forced to emancipate him but who still requires a deed of emancipation.
13. Ex. XXI, 32.
14. The reference is to the ruling given by Beth Hillel after they had been convinced by Beth Shammai that the master of a half-free slave could be forced to emancipate him, supra 43b.
15. When Beth Hillel said that he could not be forced, and was therefore still master in the full sense of the term. This, however, is not the halachah.
16. As being now a free man, v. Ex. XXI, 26. It is being, however, assumed at the present stage that the slave still needs a deed to complete his emancipation.
17. We must say therefore that as soon as the tooth is knocked out he is no longer a slave, though he has not yet received a deed of emancipation. Hence we infer that a fine need not be paid for him either if he is killed by a goring ox.
18. The Rabbis enumerated twenty-four maimings for the infliction of which by the master the slave obtained his freedom. V. Kid. 242, b.
19. Who precisely these were is not recorded.
20. Ex. XXI, 26, 27.
21. In Kid. loc. cit.
22. And not on a par with an express statement of the Torah.
23. Lev. XXII, 11.
24. [Or 'reported'. The passage quoted is actually a Mishnah. This is apparently another example of a ruling of a Tannaitic teaching reported by an Amora which found subsequently its way into the Mishnah, cf. Hoffmann, D. Die Erste Mishnah, pp. 156ff.]
25. One as a priest and the other as the slave of a priest.
26. The Rabbis ordained that a priest's slave should not collect the terumah from the threshing floor unless his master was with him, for fear that he might himself claim to be a priest.
27. And yet until the deed of emancipation is given the one of them who was a slave could eat the terumah.
28. Who can ascertain the truth of matter.
29. I.e., he sells only his right to receive the thirty shekels, should the slave be gored to death.
30. On the question whether it is possible to transfer ownership of something that does not yet exist.
31. Lit., 'that has not come into the world'.