Gittin 23b — the Talmud in English

From this you can infer that

this is what you learn:

that a Canaanite slave is fit to serve as an agent to deliver a bill of divorce. For a Canaanite slave has a stronger legal status in this regard than a gentile, because he is subject to mitzvot. And just as he is fit to serve as an agent for delivery, so too he should be fit to serve as an agent for receipt, since there is no difference between the two types of agency.

to serve as an agent for delivery. For a Canaanite slave is superior to a gentile, since he is subject to mitzvot. And just as he is fit to serve as an agent for delivery, so too is he fit to serve as an agent for receipt, for there is no difference between them.

Rav Asi said that Rabbi Yohanan said: A slave cannot serve as an agent to receive a bill of divorce for a woman from her husband, because he is not subject to the laws of bills of divorce and betrothal,

since he cannot betroth or divorce a Jewish woman, and therefore he cannot become an agent for this matter. Because of this difficulty, Rabbi Yosei Migash explained that Rabbi Yohanan disqualified a slave only from receiving the bill of divorce; but he is fit to deliver it. Thus the Mishna is readily understood, since it is discussing delivery: specifically, a gentile is disqualified, whereas a slave is fit. Ramban explained his view as follows: An agent for delivery is merely an ordinary agent, and a slave is subject to the laws of agency. But an agent for receipt causes the woman to be divorced as soon as the bill of divorce reaches him, and a slave does not have the legal capacity for divorce, since he is not subject to the laws of bills of divorce. The Avnei Miluim, section 35, subsection 9, wrote that this is difficult to understand, since surely even an agent for delivering a bill of divorce must have the legal capacity for severance. He explained that an agent for delivery does not perform the act of divorce, since the giving of the document itself need not be performed for the purpose of divorce. Even if he gives it to her as a deposit, it is effective when he later says to her, “This is your bill of divorce.” It is only necessary that the document be given by the husband. The agency likewise concerns only the act of giving, so that this will not be a case of “Take your bill of divorce from the ground.” This is effective even when performed by someone who does not have the legal capacity for severance, because he does not perform the act of divorce; he is only an agent for giving the document. [Furthermore, the statement “This is your bill of divorce” is not indispensable according to Torah law. Rather, the bill of divorce itself effects the divorce, since the required wording is written in it.] A slave is subject to the laws of agency in all areas, whereas an agent for receipt performs the act of divorce and therefore must have the legal capacity for severance. In Eilat HaShachar, the view of Rabbi Yosei Migash was explained differently: The concept of severance applies only to the woman, so that she becomes separated from the relationship she previously had with him. But the husband, who was not subordinate to the woman even before the divorce, need not acquire the status of one with the legal capacity for severance. Therefore, it is explained in Kiddushin 5 that if he says, “I am not your husband,” it is not a valid bill of divorce, because he has thereby separated himself from her. That is not the nature of divorce, which is to sever her from him, rather than to sever the husband from the woman, since he is not subordinate to her. Rabbi Yosei Migash therefore holds that only an agent for receipt, who seeks to stand in the woman’s place, where the concept of severance applies, must also have the legal capacity for severance. An agent for delivery, however, stands in the husband’s place, where the concept of severance does not apply; therefore, the agent need not have that capacity either.

Rabbi Elazar challenged this: The reason

the entire reason for Rabbi Yohanan’s statement that a slave is disqualified from serving as an agent for a bill of divorce is

that it concerns a matter in which he has no legal standing.

This is because it is a matter to which he does not belong. This implies:

but in a matter in which he does have legal standing,

for example, teruma, since a slave is forbidden to eat untithed produce, and if he has untithed produce of his own—for example, if someone gave him such produce on the condition that his master would have no rights to it—he must separate teruma from it, and the teruma takes effect properly, since a slave is obligated in all the mitzvot in which a woman is obligated. Shall we say that because he has legal standing with regard to teruma, he is

fit

to serve as an agent to separate teruma?

But a gentile, and a Samaritan, have legal standing with regard to teruma from their own produce,

as they can separate teruma from produce of their own.

For we learned in Tractate Terumot:

in tractate Terumot:

“If a gentile or a Samaritan separated teruma from their own produce, their teruma is teruma,”

and it is forbidden for one who is not a kohein—a member of the priestly family that served in the Temple—to eat it. A gentile can consecrate property, and therefore he can also separate teruma.

Nevertheless,

we learned in Tractate Terumot:

in tractate Terumot:

“If a gentile separated teruma from

produce

belonging to a Jew, even with his permission,”

meaning that the Jew appointed him as his agent for this purpose,

“his teruma is not teruma.”

What is the reason?

Is it not because it is written regarding teruma, “So shall you separate

thus shall you separate

also you,”

and we derive from the extra word “also” that an agent too may separate teruma?

Accordingly, we derive an analogy between “you” and “also”:

Just as

“you” means

“Israelites, so too your agents—

“Israelites.”

The verse teaches that a gentile is not fit to serve as an agent. A Canaanite slave likewise is not included among Israelites, and is therefore entirely excluded from the laws of agency. Why, then, did Rav Asi say in the name of Rabbi Yohanan that a slave is disqualified from agency for a bill of divorce because he is not subject to the laws of bills of divorce and betrothal?

The Gemara answers:

The scholars of the academy of Rabbi Yannai said: No.

Rather, this is how we derive the analogy:

Just as

“you” means

“members of the covenant,”

meaning circumcised and entered into the covenant of the mitzvot,

so too your agents are

“members of the covenant.”

Only a gentile is excluded by this derivation. A Canaanite slave, however, is both circumcised and a member of the covenant, as it is stated: “From the hewer of your wood to the drawer of your water, to bring you into the covenant.” He is therefore fit to serve as an agent in every matter to which he has legal standing, such as teruma. He is disqualified only with regard to a bill of divorce, because he is not subject to the laws of bills of divorce and betrothal.

Rabbi Hiyya bar Abba said that Rabbi Yohanan said: A slave cannot serve as an agent to receive a woman’s bill of divorce from her husband, because he is not subject to the laws of bills of divorce and betrothal.

And even though we learned in a beraita—a tannaitic source not included in the Mishna—in Tractate Terumot:

one who gives a bill of emancipation to his Canaanite maidservant and says to her, “

You remain a maidservant,”

meaning that she herself will remain a maidservant, “

your child

will be

free”—

“If she was

his maidservant

pregnant,

that is, carrying a fetus,

she acquires it for him

the emancipation for her child, and the child becomes free.

Thus, a maidservant can receive a bill of emancipation on behalf of her child. Nevertheless, the ruling of Rabbi Hiyya bar Abba in the name of Rabbi Yohanan is correct, as the Gemara now explains.

The Gemara asks:

What is meant by “

if she was pregnant, she acquires it for him”?

That is, how does the law concerning the maidservant and her fetus challenge the ruling of Rabbi Hiyya bar Abba in the name of Rabbi Yohanan? He is speaking about a woman’s bill of divorce; what connection is there between a bill of emancipation and a woman’s bill of divorce? Surely a slave can receive a bill of emancipation on behalf of another, because he has legal standing in this matter with regard to himself and is subject to the laws of emancipation. This is not so with a woman’s bill of divorce, since a slave is not subject to the laws of bills of divorce and betrothal.

The Gemara answers:

When Rav Shmuel bar Yehuda came, he said: Rabbi Yohanan stated two rulings.

In addition to the ruling stated above concerning a woman’s bill of divorce, Rabbi Yohanan stated another ruling. It was with regard to that ruling that he raised the challenge from the bill of emancipation, saying, “And even though we learned.”

And this is what Rabbi Yohanan said:

It appears that a slave may receive a bill of

emancipation

for his fellow slave,

as his agent,

from the master of his fellow slave,

because, as stated, he can serve as an agent with regard to a bill of emancipation, since he is subject to the laws of emancipation.

But not from his own master.

If both slaves belong to the same master, one slave cannot receive a bill of emancipation on behalf of the other from their master, because “a slave’s hand is like his master’s hand.” It follows that the bill of emancipation has not yet left the master’s control. This is not so when it comes from the master of the other slave: with regard to that master, the slave has the legal capacity to receive the document for his fellow, since that person is not his master.

The fact that a slave can receive a bill of emancipation for himself, even though his hand is like his master’s hand, follows from the principle that “his document and his hand come into existence simultaneously,” since through that very document he becomes free from his master. Rashi.

This is the explanation of “And even though we learned”:

And if someone whispers in your ear

to raise the following challenge, and

say:

after all,

“This is a stated law,

that he can also receive a bill of emancipation for his fellow from his own master, as we learned: “

If she was pregnant, she acquires it for him.”

After all, the maidservant acquires from her master a bill of emancipation for her child”—

Say to him: Two great sages of the generation explained this matter!

They are:

Rabbi Zeira and Rabbi Shmuel bar bar Yitzḥak.

One said:

the reason is:

Who is the author of

this beraita concerning the maidservant?—

It is Rabbi, who says: “One who emancipates half of his slave acquires

that half, and it becomes free.” The person is then half slave and half free person, because even with regard to only half of him we say that “his document and his hand come into existence simultaneously,” and he has the legal capacity to receive the bill of emancipation. Therefore, the maidservant can receive a bill of emancipation from her master on behalf of her child.

And the other said—he adds and completes the explanation:

he further explains the matter:

What is Rabbi’s reason in this case?

After all, the maidservant and her child are two separate bodies, and this does not resemble emancipating half of one’s slave!

Rabbi holds:

Rabbi holds that

a fetus

is considered a limb of its mother.

When he emancipates the child,

it is as though he transferred to her

to the maidservant

one of her limbs,

and this is equivalent to emancipating half of his slave. Rabbi Hayyim Soloveitchik answered that a person acquires through his hand not because his hand is owned by him, but because every person has the capacity to acquire through a hand. Since we say that the document and the hand come into existence simultaneously, the fetus already has the capacity to acquire through a hand for the purpose of receiving the bill of emancipation. It does not matter that, in the meantime, the hand through which he receives the document is his mother’s hand, which belongs to the master, since in any event he has the capacity to acquire through a hand. The writings of Rabbi Hayyim and his novellae on the laws of slaves. The Hatam Sofer gave a similar answer: The power of the fetus extends into each corresponding limb and draws nourishment from it. Therefore, the maidservant’s hand contains the power of the emancipated fetus’s hand, and the document and the hand come into existence simultaneously.

Mishna:

We learned in Tractate Yevamot that the Sages enacted, because of the plight of a woman whose husband is missing, that a woman may marry on the basis of the testimony of a single witness who testifies that her husband died.

Witnesses who are otherwise disqualified from testimony are also trusted for this testimony. Therefore, a woman, a relative, and even the woman herself may testify that her husband died. The exception is the five women listed below. They are not trusted to testify that her husband died, because they hate her, and there is concern that they might testify falsely in order to harm her: she would marry another man, and then become forbidden both to him and to her first husband.

Our Mishna teaches that

even

those

women who are not trusted

to testify and

say

that

her husband died,

nevertheless they are

trusted to bring

to the woman

her bill of divorce

from her husband. We do not fear that, because of their hatred, they will harm her, as the reason is explained below.

These are the women who are not trusted to testify that a woman’s husband died:

her mother-in-law,

her husband’s mother;

her mother-in-law’s daughter,

her husband’s sister;

her rival wife,

another woman married to her husband;

her yevama,

the wife of her husband’s brother;

and her husband’s daughter,

who was born to another woman.

What is the difference between a bill of divorce and death?

Why are these women trusted with regard to a bill of divorce more than to testify about the husband’s death? It is because

with

a bill of divorce,

the written document provides proof.

We rely primarily on the bill of divorce itself that she brings, and not only on her testimony.

The woman herself may bring her bill of divorce

from abroad,

provided that she must say: “

It was written in my presence and signed in my presence,”

as is required of every agent who brings a bill of divorce from abroad.

Gemara—the Talmudic discussion of the Mishna:

The Gemara raises a contradiction between the beraita and the Mishna:

But it was taught in a beraita: Just as these five women are not trusted

these five women

to say, “Her husband died,” so they are not trusted to bring

her

bill of divorce!

The Gemara answers:

Rav Yosef said: This is not difficult:

Here it is referring to the Land of Israel, and there it is referring to outside the Land of Israel.

In the Land of Israel, where we do not rely on her statement,

we need not rely at all on her trustworthiness, since an agent who brings a bill of divorce in the Land of Israel need not say, “It was written in my presence and signed in my presence.” There is only the agency itself.

She is trusted

to bring the bill of divorce.

But

outside the Land of Israel, where her statement

is relied upon,

since she must say, “It was written in my presence and signed in my presence,” when she brings the bill of divorce,

she is not trusted

to say, “It was written in my presence and signed in my presence,” because perhaps she is lying in order to harm the woman, so that she will marry on the basis of an invalid bill of divorce.

Abaye said

to Rav Yosef:

On the contrary! The opposite is more reasonable.

In the Land of Israel, if the husband comes

and

protests,

saying that he did not write the bill of divorce,

we heed him,

we accept his protest, since the agent did not say of the bill of divorce, “It was written in my presence and signed in my presence,” and the document was not validated in court. Since

it is possible to say that she intends to harm the woman,

there is concern that the bill of divorce is indeed forged, and that she intends to harm the woman, so that after she marries another man, her husband will come and protest against the bill of divorce, his protest will be accepted, and she will become forbidden to both men. Therefore,

she is not trusted

to bring the bill of divorce.

But

outside the Land of Israel,

she cannot harm her, since even

if the husband comes and protests, we do not heed him,

and the bill of divorce remains valid, because it has already been validated in court through the agent’s statement, “It was written in my presence and signed in my presence.” Therefore,

she is trusted

to bring the bill of divorce and say, “It was written in my presence and signed in my presence.”

A beraita was taught in accordance with Abaye: Rabbi Shimon ben Elazar said in the name of Rabbi Akiva: A woman is trusted to bring

her

bill of divorce

from abroad.

We learn this

by an a-fortiori inference: If, with regard to women concerning whom the Sages said

that

they are not trusted to say that her husband died,

nevertheless they are

trusted to bring

her

bill of divorce,

she

herself,

who is trusted to say that her husband died—should she not certainly be trusted to bring

her

bill of divorce?