Gittin 40a (מ.) — the Talmud in English

Rabbi Zeira said that Rabbi Hanina said that Rav Ashi said that Rabbi said: If a slave married a free woman -

who is forbidden to a slave -

in the presence of his master,

he has gone out

the slave

to freedom!

For certainly the master freed him; for otherwise, he would not have allowed him to marry a free woman, who is forbidden to him.

And

Rabbi Yohanan said to him: Is this all that you have in your possession,

that you know only this—Rabbi’s position?

And

if

I were to teach

that the Sages disagree with him; as it was taught in a beraita:

One who writes a document of betrothal for his maidservant

the Canaanite maidservant, and betroths her with it:

Rabbi Meir says:

she is

betrothed!

Because he certainly already freed her and she became fit for betrothal; for otherwise, he would not have betrothed her.

And the Sages say: She is not betrothed.

And the same applies, according to the Sages, to a slave who married a free woman in the presence of his master: there is no proof of his emancipation from his master’s silence, unlike Rabbi.

The Gemara rejects this: Rabbi’s statement is not subject to the aforementioned dispute among the tannaim. Rabbi’s statement does not concern a slave who married a free woman in the presence of his master, as it seems at first glance. Rather, it is

like

the case

that Rabba bar Rav Sheila said

below: that a slave goes out to freedom

when his master

himself

placed phylacteries on him -

Here too -

in Rabbi’s statement -

for

example,

when his master

himself

married

his slave

to a woman who was a free woman. In such a case, even the Sages agree that this proves that he freed him; for otherwise, he would not deliberately have brought upon himself the prohibition of a slave with a Jewish woman.

free woman. In such a case, even the Rabbis agree that this proves that he had freed him, since otherwise he would not have deliberately caused him to violate the prohibition against a slave marrying a Jewish woman.

We ask: Surely the Sages certainly disagree even in this case, for according to them, even if he himself betroths his maidservant, this does not prove that he freed her -

And

is there anything such that he would not cause his slave to commit a prohibition, while he himself

personally

commits a prohibition [could it be that a person would not cause his slave to commit a prohibition by marrying him to a free woman, while he himself would transgress a prohibition and marry a maidservant]?! Surely this is a kal va-chomer: if he would not bring his slave to transgress a prohibition, all the more so would he not bring himself to transgress a prohibition.

Rather,

Rather,

Rav Naḥman bar Yitzḥak said,

to explain in another manner that Rabbi’s statement is not dependent on the dispute among the tannaim:

Here -

in the dispute between Rabbi Meir and the Sages -

with what are we dealing?

As he said to her:

Take this document

and go out

through it to freedom,

and

also

be betrothed with it;

and if so, there is no contradiction between the Sages’ statement and Rabbi’s statement. In this case, one cannot prove from his actions that he had already freed her, for we see that he wishes to free her now through this document. And even according to Rabbi Meir, the reason is not that he necessarily freed her previously; rather, the explanation of their dispute is:

Rabbi Meir holds:

The betrothal document itself can also serve as a deed of emancipation, because

there is in the language

of this

phrase, “Behold, you are betrothed,” also

the language of emancipation!

Its meaning is: through this document, you shall become fit for betrothal—that is, a free woman—and you shall also be betrothed with it.

And the Rabbis hold: This language does not contain the language of emancipation! It is only a betrothal document, and it cannot also serve for emancipation.

Rabbi Yehoshua ben Levi said:

A slave who put on phylacteries in the presence of his master has gone out to freedom,

because it is not the practice of a slave to put on phylacteries, since he is not obligated in them. When he puts them on, he is conducting himself in the manner of a free Jewish man, and his master would not have allowed him to conduct himself in this way unless he had indeed freed him and he was a free man.

They raised an objection to Rabbi Yehoshua ben Levi from that which was taught in a beraita:

against Rabbi Yehoshua ben Levi, from the following beraita:

If

from the slave

his master borrowed

a loan,

or his master appointed him as a trustee

over his property,

or the slave put on

phylacteries

in the presence of his master, or he read

the slave

three verses

in the Torah

in the synagogue in the presence of his master -

although all these are practices of a free man, and when he conducts himself in this manner before his master it appears that he has been freed—nevertheless,

he has not gone out to freedom.

In any event, it teaches: “He put on phylacteries before his master; he did not go out to freedom,” which is difficult for Rabbi Yehoshua ben Levi!?

He said

in explanation,

Rabba bar Rav Sheila:

That which Rabbi Yehoshua ben Levi said, “He has gone out to freedom,” refers to a case

where his master put phylacteries on him with his own hands. In this case, it certainly proves that he freed him; it is not comparable to a slave who put on phylacteries himself, and his master saw and remained silent.

with his own hands. In that case, it certainly proves that he freed him; it is not comparable to a slave who put on phylacteries himself, and whose master saw him and remained silent.

When Rav Dimi came

[when Rav Dimi came from Eretz Yisrael],

he said

in the name of

Rabbi Yohanan:

One who said at the time of his death: “

Let my maidservant so-and-so not be enslaved

by my heirs

after my death,”

the heirs are compelled

after his death to free her,

and

they must

write her a deed of emancipation.

Because this language contains the language of declaring her ownerless, and the ownership of her labor thereby lapses. Therefore, they compel the heirs to free her in order to remove from her even the legal prohibition of slavery.

Rav Dimi added and said:

And Rabbi Ami and Rabbi Asi said before him

[before Rabbi Yohanan]:

Rabbi!

But

do you not concede

that the sons

of this maidservant are still

slaves

?

That is: “Let her not be enslaved” is neither language of emancipation nor language of declaring her ownerless. Rather, it means that they should not burden her with labor, while her person remains owned and her offspring remain slaves like her. If so, why should we compel the heirs to free her? Even if they are commanded not to work her because of the mitzva to fulfill the words of the deceased, they can nevertheless work her offspring, since they were not commanded concerning them by their father. If so, why should they free her!?

When Rav Shmuel bar Yehuda came

from Eretz Yisrael,

he said: That is not what happened. Rabbi Yohanan never said this, and Rabbi Ami and Rabbi Asi did not say anything to him;

rather, this is what

Rabbi Yohanan said:

One who said at the time of his death: “

My maidservant so-and-so has brought me satisfaction

and therefore

satisfaction shall be brought

also

to her”:

after his death,

the heirs are compelled, and they bring her satisfaction,

and if she can be satisfied only through emancipation, they compel them to free her.

And we explain:

What is the reason?

Because we hold: “

It is a mitzva to fulfill

the

words of the deceased.”

Ameimar said:

One who declares

his

slave ownerless: that slave

goes out to freedom and requires a deed of emancipation in order to remove the legal prohibition of slavery from him,

but he has no remedy,

even if he gives him a deed of emancipation.

And we explain:

What is the reason

that he has no remedy through being given a deed of emancipation?

Because

the person himself

of the slave [the monetary ownership in him] is no longer

acquired by him

by his master, since he declared him ownerless. Only

the legal prohibition remains

for him

with regard to him.

And a prohibition

alone

cannot

the master

transfer to him

to the slave.

He said

Rav Ashi

challenged Ameimar: But Ulla said in the name of Rabbi Yohanan, and

so too

Rav Hiyya bar Avin said in the name of Rav:

Both this one

who consecrates his slave

and this one

who declares him ownerless -

has gone out to freedom, and requires a deed of emancipation

to permit him with regard to the laws of the prohibition applying to him. This implies that he can give him a deed of emancipation, which contradicts you, who say, “He has no remedy”!

He said to him

Ameimar: Rabbi Yohanan and Rav did not say that he can be freed by a deed; rather, he

requires

a deed of emancipation,

but

nevertheless

has no remedy

through being given a deed of emancipation, for the reason already explained.

Some say:

This is what

Ameimar said:

One who declares

his

slave ownerless and

afterward

dies

the master,

that slave has no remedy!

But if the master did not die, Ameimar concedes that his master has the power to free him.

And we explain:

What is the reason

that if his master dies he has no remedy?

Because

the person himself

already

is not acquired by him

by his master through monetary ownership after he declared him ownerless. Rather,

a legal prohibition

alone

remains

for the master

concerning the slave.

And one does not bequeath a prohibition to his son

[a person does not bequeath an independent legal prohibition to his son], and consequently there is no one who can remove the prohibition from him.

He said

Rav Ashi

challenged Ameimar:

But when Rav Dimi came, he said

in the name of

Rabbi Yohanan: One who said at the time of his death, “Let my maidservant so-and-so not be enslaved after my death,” the heirs are compelled to write her a deed of emancipation. This shows that the heirs inherit even the legal prohibition their father had with regard to the slave, although his monetary ownership had already lapsed, and they have the power to free her, unlike Ameimar.

Rabbi Yoḥanan: One who says at the time of his death, “So-and-so, my maidservant, let them not enslave her after my death,” the heirs are forced to write a deed of emancipation for her. This apparently means that the heirs inherit even the legal prohibition that their father had with regard to the slave, although his monetary ownership had already ended, and they have the power to free her—unlike Ameimar.

Ameimar answered Rav Ashi:

That which

said

Rav Dimi

in the name of Rabbi Yohanan

is an error!

For Rabbi Ami and Rabbi Asi had already refuted him, as explained above.

Rav Ashi

wondered

at him,

Ameimar: But for

what

reason did they say that it is

an error? Surely it is only because

the father

did not say it [he did not say it] to his heirs

in the words

of emancipation, but rather said, “Let her not be enslaved,” whose meaning is merely that they should not burden her.

but rather said, “Let them not enslave her,” whose meaning is only that they should not burden her.

But

if

he said it -

the instruction to his sons -

in the language of emancipation,

[for example, “Behold, she is a free woman,”]

so too,

the law would accord with Rabbi Yohanan, and the heirs would be compelled to free her. Rabbi Ami and Rabbi Asi would not have challenged his words! Thus, even after his master dies, he has a remedy through a deed.

He said to him

Ameimar:

I hold in accordance with Rav Shmuel bar Yehuda -

above -

that

Rabbi Yohanan never said it, and Rabbi Ami and Rabbi Asi never raised this difficulty to him. You therefore have no proof from their words.

There was an incident involving

a certain settlement of Israelite slaves

who

were sold to a gentile,

[there was a group of slaves whose Israelite master sold them to a gentile],

and all the last masters died

[their last owners—the gentile who had acquired them—died].

They came

those slaves

before Ravina,

in order to permit them to marry Jewish women.

Ravina said to them

Ravina:

Go, return to the sons of your first masters, and let them write deeds of emancipation for you,

[return to the heirs of your first master, who was Jewish, so that they will write you deeds of emancipation].

The Sages

wondered

at Ravina:

But Ameimar said: One who declares his slave ownerless and dies—that slave has no remedy!?

Because he has no monetary ownership of him, only a prohibition, and a person does not bequeath a prohibition to his sons.

And these slaves too, once their master sold them to a gentile, his monetary ownership of them lapsed. As we hold [in the Mishna below, 43b]: One who sells his slave to a gentile has gone out to freedom, and nothing remains to him concerning them except legal ownership with regard to the prohibition. Inheritance does not apply to them; how, then, can the heirs give them deeds of emancipation!?

He said

in answer,

to them

Ravina to the Sages:

I

do not hold like Ameimar. Rather,

I hold in accordance with Rav Dimi!

For he said in the name of Rabbi Yohanan: If one declared his maidservant ownerless and died, the heirs are compelled to free her. This shows that inheritance applies to her, even though her monetary ownership had already lapsed. Therefore, they have the power to free her through a deed, since they inherited the legal ownership concerning her prohibition.

They said to him

the Sages said to Ravina:

That which

said

Rav Dimi

is

an error!

For Rabbi Ami and Rabbi Asi had already rejected it.

He said to them:

For

what

reason is it

an error? Surely it is only because

he

did not say it in the language of emancipation, but rather said, “Let her not be enslaved,” which does not imply emancipation.

But

if

he had said it in the language of emancipation, so too, the heirs would be compelled to free her, unlike Ameimar.

The Gemara concludes:

And we conclude:

The halakha is in accordance with Ravina!

If one declared his slave ownerless and died, the heirs have the power to free him through a deed and permit him to marry a Jewish woman, and they are compelled to do so.

There was an incident involving

a certain slave who

was owned by

two

partners.

One of them arose and freed his half

[one of the partners freed the half of the slave belonging to him], and from then on he was half slave and half free man.

The other said

[the other partner in the slave]: “

Now the Sages will hear about this

[now the Sages will hear about it], and they will compel me to free his other half,

and they will cause me to lose him

[and deprive me of the slave].”

For we learn in the Mishna below, 41a: Regarding one who is half slave and half free man, since he cannot marry a maidservant, as he is already half free, and he also cannot marry a free woman, as he is already half slave, the master is compelled to free his slave so that he can marry a free woman and fulfill the mitzva of procreation.

That man went

and

transferred

his share in the slave

to his minor son,

thereby preventing the court from compelling him to free the slave, since a minor is not subject to coercion by the court.

Rav Yosef son of Rava sent

this account of events,

to Rav Pappa.

Rav Pappa sent him:

Rav Pappa:

As the father did

the father—

so shall it be done to him; his recompense shall be returned upon his head!

And thus it was done:

we

indeed

know with regard to the child

[we recognize the minor],

that his mind is drawn toward money,

[he loves money].

We appoint

[we shall appoint]

a guardian for him.