Gittin 42a (מב.) — the Talmud in English

He said

he explained,

Ravina:

Our Mishna is discussing

a slave

who was

owned by two partners

or two brothers who inherited him from their father, and one of them emancipated his entire share in him,

and everyone

agrees.

For although there is no emancipation of half a slave, that is only because the master retained half of him; but whenever the master emancipated everything that he owned in him, even the Sages agree that he goes free, whether through money or through a document.

Rabba said: The dispute

between Rabbi and the Sages, who disagree over whether a document is effective for half a slave,

is

only in a case

where he emancipated half of him and retained half of him,

and it is in this case that the Sages hold that the slave did not acquire his freedom, because we derive the matter from a woman; and in the case of a woman, he divorces her entirely.

But if he emancipated half of him and sold

first or simultaneously

half of him, or

if he

gave as a gift

his

half,

even the Sages agree that the slave acquired his half—

Since the slave goes out from him

the

entirety

[since he goes out from him entirely],

everyone agrees that he acquires

the slave acquires half of himself through the deed of emancipation.

Abaye said to him: And

if it is

entirely,

meaning, in the manner Rabba stated, “that he goes out from him entirely,”

they do not disagree

that the Sages do not allow a slave to be emancipated partially?!

But one [beraita] taught

[we learned in one beraita]:

One who writes

all his

property

as a gift

to his two slaves

simultaneously, they

acquire

each half of the property, including the slaves. Consequently, each slave owns half of himself, while his other half is owned by his fellow slave.

And

if they wish to go free, they

emancipate one another,

each emancipating the half of himself that is owned by the other.

And another [beraita] taught

[we learned another beraita] that contradicts the preceding beraita:

One who says: “All my property is given to so-and-so and so-and-so, my slaves—even

the

slaves themselves did not acquire [anything].

And

is it not the case

[is this not how the baraitot must be reconciled so that they do not contradict one another]:

This

—the beraita in which we learned that they acquired [the property]—is

Rabbi’s

view, since he holds that it is possible to emancipate half of a slave. Therefore, half of each slave is emancipated, while his other half is owned by his fellow.

Whereas

this

—the beraita in which we learned that even the slaves themselves did not acquire [anything]—is

the Rabbis’

view, since they hold that emancipation is ineffective for half of a slave.

And now this is difficult: If you would say that when one transfers his half to another, he can emancipate his half even according to the Rabbis, then even according to the Rabbis the slaves should acquire [the property], since the master sold the other half of each slave to the other slave.

The Gemara answers:

No,

not as you explained; rather,

both this and that

—both beraitot—are

the Rabbis’

view, and the Gemara resolves the contradiction between them in three ways:

a.

This

—the beraita in which we learned that they acquired [the property]—is

where he said: “The entirety,”

meaning that in each document he transferred all his property. Since he retained nothing, for he transferred the other half of the slave to his fellow, even the Sages agree that the emancipation of half of him is effective.

Whereas

this

—the beraita in which we learned that even the slaves themselves did not acquire [anything]—is

where he said “

Half, half,”

meaning, he wrote in each document, “Half of my property is yours”; therefore, they did not acquire [anything].

And the reason is that it is not necessary to say that when he delivered the two documents one after the other, they did not acquire [the property], because at the time he delivered the document to one of them, he had not yet transferred his half to the other, and therefore he retained something; rather, even if he delivered them to both simultaneously, there is still retention here, because perhaps he did not transfer the other half of the slave to his fellow, but instead transferred the same half to each one. Consequently, they did not acquire anything, since something was retained.

The Gemara raises an objection to this answer:

But from the fact that the latter clause teaches

[from what we learned in the latter clause] of the beraita in which we learned that they did not acquire: “

And if he said, ‘Half, half,’ they did not acquire,”

meaning: Even if he said “half, half,” they likewise did not acquire [the property].

By inference,

it necessarily follows that

the first clause

of that beraita is discussing one who

said “

The entirety”; how can we explain that this beraita is discussing one who said “half, half,” and that this is why they did not acquire [the property]?!

We answer: The latter clause of that beraita did not come to add a law; rather, it

explains

the first clause, and this is what it says: This that we learned, “

Even the slaves themselves did not acquire,”

how is this so? For example, where he said, ‘Half, half.’

The Gemara supports this explanation:

This too is evident

as we explained the beraita!

For if it enters your mind that the first clause is where he said “

The entirety,”

and, consequently, the latter clause comes to add that even if he said “half, half” they likewise did not acquire, this cannot be said, because it is obvious:

Now

if

he said “

The entirety” and

they did not acquire,

if

he said “

Half, half,”

is it necessary

for the tanna to teach us that they did not acquire?!

The Gemara rejects this support:

If that is the reason—

it is not necessarily so. If you wish to infer from this proof that the first clause of the beraita discusses one who said “half, half,” this cannot be said, for one can say: Actually, the latter clause does not explain the first clause. Rather, the tanna stated in the latter clause that he said “half, half,” even though this is obvious, in order

tanna taught the latter clause where he said “half, half,” although it is obvious, is

to reveal

the

the first clause

[to reveal to you how the first clause is to be understood]:

So that you should not say: The first clause is where he said “

Half, half,”

but if he said “

The entirety”—

they acquired [the property].

Therefore,

the tanna stated in the latter clause that he said “

Half, half”;

by inference, the first clause is where he said “

The entirety,”

and even so, they did not acquire [the property].

And if you wish, say: It is not difficult!

The contradiction between the beraitot can be resolved differently:

b.

Here

—the second beraita, in which we learned that even the slaves themselves did not acquire [the property]—is referring to a case where he wrote all his property to both of them

in one document,

for example, he wrote: “All my property is given to so-and-so and so-and-so, my slaves.” Therefore, they did not acquire [the property], because two slaves cannot be emancipated with a single deed of emancipation.

Whereas

here

—the first beraita, in which we learned that they acquired [the property]—is referring to

two documents,

and even according to the Rabbis they acquired [the property], because he retained nothing.

The initial assumption was that even according to this answer, the latter clause comes to explain the first clause, which discusses one who said “half, half.” For if not, why does the latter clause need to state that saying “half, half” is ineffective? It is certainly a kal va-chomer from the first clause, as the Gemara asked above. Therefore, we ask:

If the second beraita is discussing

one document,

then

why specifically “

half, half,” so that they did not acquire [the property]?

After all,

even

if he

said “

the entirety,”

they likewise would not acquire [it]!?

We answer:

This is also what it says. The latter clause does not explain the first clause; in the first clause we are also discussing a case where he said “the entirety.” And if this is difficult for you—why does the latter clause need to teach that when he said “half, half” they did not acquire [the property], when this certainly follows from the first clause—

there is no difficulty, for this is the meaning of the beraita: One who says, “All my property is given to so-and-so and so-and-so, my slaves,”

even the slaves themselves did not acquire [the property],

even if he said “the entirety.”

When is this statement said? With one document; but with two documents, they acquired [the property].

And if he said “

half, half,”

even with two documents they likewise did not acquire [the property].

And if you wish, say,

there is a third way to reconcile the contradiction between the beraitot,

and it is not difficult:

c.

Here

—the first beraita, in which we learned that they acquired [the property]—is referring to a case where he delivered the two documents, in each of which he transferred all his property to its recipient,

simultaneously,

and even according to the Rabbis they acquired [the property], because he retained nothing.

Whereas

here

—the second beraita, in which we learned that even the slaves themselves did not acquire [the property]—is referring to a case where he delivered the two documents

one after the other,

and therefore neither acquired [the property], since he cannot transfer to one what he has already transferred to the other.

The Gemara raises an objection to this answer:

Granted, the latter

[the second]

does not acquire, since the first has already acquired it

[since all the property is already acquired by the first].

But the first

[the first recipient],

should acquire himself and acquire his fellow

[he should acquire himself and his fellow]!

For at the time he transferred all the property to him, he had not yet transferred anything to his fellow; therefore, the first recipient should have acquired all the property, including his fellow.

Rather, it is clear,

it is established,

as we answered initially,

in accordance with one of the first two formulations stated above for resolving the beraita.

Rav Ashi said

to resolve the contradiction between the beraitot:

There it is different,

in the second beraita, and that is why they did not acquire [the property], since

he calls him

in the document

“my slaves.”

This indicates that he does not include emancipation in the document, since he calls them “my slaves.” He mistakenly believes that it is possible to transfer property to slaves, and therefore they acquired nothing.

He said

he challenged

Rafram to Rav Ashi:

From where do you know that he is mistaken in transferring property to his slaves?

And

after all,

perhaps he said, “my slaves who already were”

—that is, he does not intend that the property be acquired by his slaves, but intends to transfer his property to those who were his slaves until the moment of the transfer, but not thereafter.

Did we not learn,

[did we not indeed learn]:

One who writes all his property to his slave—the slave goes free.

And if

he retained land

of any amount,

which he did not transfer to his slave, without specifying which land, he

does not go free.

Since the slave acquired no land at all—for with regard to every piece of land, we must say that perhaps this is the piece that he retained—it follows that all his statements are not fulfilled, since they included the transfer of land, and that transfer did not take effect. Therefore, none of the language of the document is fulfilled, and he acquires nothing.

Rabbi Shimon says: He always remains free

even if he retained land of any amount.

For according to Rabbi Shimon, “we divide the statement.” Although the statement is not fulfilled with regard to the land, it is fulfilled with regard to the rest of the property.

Until he says: “

All my property is given to so-and-so, my slave, except for one ten-thousandth of it,”

for then the slave acquires nothing at all, because it can be explained that the master retained the slave himself, even though the slave is not one ten-thousandth of the property; perhaps the master does not value his slave as more than one ten-thousandth of his property.

In any event, we can derive from Rabbi Shimon’s words, as he phrased them: “All my property is given to so-and-so, my slave, except for etc.”:

The reason

[only because]

he said so: “except for one ten-thousandth of it”; therefore the slave did not acquire [the property].

“Except for one ten-thousandth of it”; therefore, the slave did not acquire anything.

If he did not say so,

but simply wrote, “All my property is given to so-and-so, my slave,” then

he acquires

the slave [the property].

But this is difficult:

Why

does the slave acquire [the property] when he wrote in this language?

But

he calls him

“slave”

the master himself. If so, he mistakenly believes that it is possible to give a gift to a slave, and he does not include emancipation in the document?!

Rather,

necessarily, the expression “my slave” does not contradict emancipation, because his intention is “

my former slave.”

Here too,

in the beraita in which he wrote “my slaves,” we should interpret his intention as: “

my former slaves.”

We learned in the Mishna: One who is half slave and half free serves his master one day and himself one day:

Now the Gemara discusses the other laws concerning this slave:

a. If

an ox gored

one who is half slave and half free and injured him, the law is as follows: If the ox gored him on the

day

that belongs to

his master,

the compensation for the injury also belongs

to his master,

as with any other slave, whose injury compensation belongs to his master.

But if the ox gored him on the

day belonging to himself,

the compensation belongs

to him.

And we challenge this:

But if that is so

we too should say: on

his master's day he should marry

the slave

a maidservant

according to the law of a slave who is permitted to marry a maidservant.

And yet, on

his own day, he should marry a freeborn woman

according to the law of a free man who is permitted to marry a freeborn woman!?

But it necessarily follows that this is not so, from what Beit Shammai said in our Mishna: “You have not rectified his own situation.” Thus, he cannot marry a woman at all.

And we answer:

We did not state that a prohibition

is divided, with one day belonging to one and one day to the other; rather, only monetary laws are divided, just as the labor is divided.

Ta shma,

to prove that it is not as we said—that payment for damages is divided, with one day belonging to one and one day to the other:

From that which was taught in a beraita:

If the ox killed

one who is

half slave and half free man,

the owner of the ox

pays:

Half the fine—

on account of the half of him that is a slave—

to his master,

as with any other slave who was killed by his ox, for which he pays a fine of thirty shekels to his master.