Gittin 38

ולא הם קונים מכם ולא הם קונים זה מזה יכול לא יקנו זה את זה יכול לא יקנו זה את זה האמרת לא הם קונים זה מזה הכי קאמר ולא הם קונים זה מזה לגופו

but the gentiles cannot acquire one of you, as they do not have the ability to acquire a Jew as a slave, and they cannot acquire each other as slaves. The Gemara begins to introduce a question: One might have thought that they shall not be able to acquire each other. The Gemara immediately clarifies its question: Can it be that one might have thought that they shall not be able to acquire each other; but didn’t you already say that they cannot acquire each other? Rather, this is what he said: Gentiles cannot acquire each other with regard to the slave himself.

יכול לא יקנו זה את זה למעשה ידיו אמרת קל וחומר גוי ישראל קונה גוי גוי לא כל שכן

The Gemara now restates the question: One might have thought that they shall not be able to acquire each other as slaves even for the rights to his labor. The Gemara answers: You can say an a fortiori inference: If a gentile can acquire a Jew for the rights to his labor, as stated explicitly in the Torah (Leviticus 25:47), all the more so is it not clear that a gentile can acquire a gentile?

ואימא הני מילי בכספא אבל בחזקה לא אמר רב פפא עמון ומואב טהרו בסיחון

The Gemara challenges: But I could say that this halakha, that a gentile can acquire a gentile as a slave for the rights to his labor, applies only to acquisition via money. However, via an act of possession, by taking him captive, he does not acquire him. Rav Pappa says in response: The land of Ammon and Moab became purified through the conquest of Sihon. After the conquest of Sihon, the land that had belonged to Ammon and Moab was considered the property of Sihon, and it was permitted for the Jewish people to conquer it although they had not been permitted to conquer the land of Ammon and Moab. In the same manner, a gentile can acquire a slave by taking possession of him as a captive.

אשכחן גוי גוי גוי ישראל מנלן דכתיב וישב ממנו שבי

The Gemara asks: We found a source for a gentile acquiring a gentile through conquest, which is an act of taking possession; from where do we derive that a gentile can also acquire a Jew through the act of possession such as conquest? The Gemara answers: As it is written: “And the Canaanites, who dwelt in the South, heard tell that Israel came by the way of Atharim; and he fought against Israel, and took of them captive” (Numbers 21:1). This indicates that even a Jew is acquired by a gentile through the act of possession, in this case, conquest in war.

אמר רב שמן בר אבא אמר רבי יוחנן עבד שברח מבית האסורים יצא לחירות ולא עוד אלא שכופין את רבו וכותב לו גט שיחרור

§ Rav Shemen bar Abba says that Rabbi Yoḥanan says: A slave who escaped from prison is emancipated. He is no longer subjugated to his owner, as it is assumed that his owner has despaired of retrieving him. And moreover, his master is forced to write him a bill of manumission so that he can marry a Jewish woman.

תנן רבן שמעון בן גמליאל אומר בין כך ובין כך ישתעבד ואמר רבה בר בר חנה אמר רבי יוחנן כל מקום ששנה רבן שמעון בן גמליאל במשנתנו הלכה כמותו חוץ מערב וצידן וראיה אחרונה

We learned in the mishna that Rabban Shimon ben Gamliel says with regard to a slave who was redeemed from captivity: Both in this case and in that case he will be a slave. And Rabba bar bar Ḥana says that Rabbi Yoḥanan says: Every place where Rabban Shimon ben Gamliel taught a ruling in our mishna, the halakha is in accordance with his opinion, except for the following three cases: The responsibility of the guarantor, and the incident that occurred in the city of Tzaidan, and the dispute with regard to evidence in the final disagreement. Therefore, according to Rabbi Yoḥanan, the halakha is in accordance with the opinion of Rabban Shimon ben Gamliel in the mishna here, as it is not one of those three cases. This contradicts the ruling of Rabbi Yoḥanan cited above concerning a slave who escapes prison.

בשלמא לאביי מוקי לה להאי לפני יאוש והאי לאחר יאוש

The Gemara clarifies: Granted, according to the opinion of Abaye, he establishes the mishna as referring to a slave who is redeemed before the owner’s despair. For this reason, Rabban Shimon ben Gamliel rules that the redeemed slave is not emancipated, and the halakha is in accordance with his ruling. And this statement of Rabbi Yoḥanan, that a slave who escapes from prison goes free, applies after the owner’s despair. Therefore, there is no contradiction between the two statements of Rabbi Yoḥanan.

אלא לרבא דאמר לאחר יאוש קשיא דרבי יוחנן אדרבי יוחנן

However, according to the opinion of Rava, who said that the mishna here is referring to a slave who is redeemed after the despair of the owner, there is a difficulty. The difficulty is due to the contradiction between the statement of Rabbi Yoḥanan in which he rules against the opinion of Rabban Shimon ben Gamliel, as he holds that a slave who escapes prison is emancipated, and the statement of Rabbi Yoḥanan in which he rules that the halakha is in accordance with the opinion of Rabban Shimon ben Gamliel.

אמר לך רבא טעמא מאי משום דחזקיה בורח שאני השתא לקטלא מסר נפשיה אפולי אפיל נפשיה לגייסות

The Gemara answers: Rava could have said to you: What is the reason that a slave who was redeemed is not emancipated? It is because of the concern expressed by Ḥizkiyya, that perhaps slaves would allow themselves to be captured by foreign troops in the hope that they would be redeemed and consequently emancipated. However, the case of one who escapes from prison is different, as the concern raised by Ḥizkiyya is not applicable. If now it is apparent that he is willing to give himself over to death to escape captivity, as he would be put to death for attempting to escape prison, is there a concern that he will throw himself willingly into captivity by allowing himself to be captured by foreign troops?

אמתיה דמר שמואל אשתבאי פרקוה לשום אמהתא ושדרוה ליה שלחו ליה אנן כרבן שמעון בן גמליאל סבירא לן את אי נמי כרבנן סבירא לך אנן לשום אמהתא פרקינן לה ניהלה

The Gemara relates: The maidservant of Master Shmuel was taken captive. Some people redeemed her to be a maidservant and sent her to him. They sent him the following message: We hold in accordance with the opinion of Rabban Shimon ben Gamliel, and therefore we hold that in any case she remains your maidservant. Even if you hold in accordance with the opinion of the Rabbis in the mishna, then you should know that we redeemed her to be a maidservant, and even the Rabbis would agree that she remains your maidservant.

ואינהו סבור לפני יאוש הוה ולא היא לאחר יאוש הוה ושמואל לא מיבעיא דאשתעבודי לא משתעבד בה אלא גיטא דחירותא נמי לא אצרכה

The Gemara adds: And they thought that this was before his despair, but that is not so. It was after his despair, and when Shmuel received the maidservant, it is not necessary to say that he did not enslave her. But also, he did not require her to receive a bill of manumission, as he held that she was a free woman in every respect.

שמואל לטעמיה דאמר שמואל המפקיר עבדו יצא לחירות ואינו צריך גט שיחרור שנאמר וכל עבד איש מקנת כסף עבד איש ולא עבד אשה אלא עבד שיש לו רשות לרבו עליו קרוי עבד שאין לו רשות לרבו עליו אין קרוי עבד

The Gemara comments: In this matter, Shmuel conforms to his standard line of reasoning, as Shmuel says: With regard to one who renounces ownership of his slave, the slave is emancipated, and he does not even require a bill of manumission. Shmuel cited a proof from that which is stated: “But every slave man that is bought for money” (Exodus 12:44). Does this apply only to a slave who is a man, and not to a woman slave? Rather, it means: The slave of a man, i.e., a slave whose master has authority and control over him, is called a slave, since he is the slave of a particular man. However, with regard to a slave whose master does not have authority over him, such as one who has been declared ownerless, he is not called a slave but a freeman. Therefore, once Shmuel despaired of retrieving his maidservant, she was no longer under his control and did not require a bill of manumission.

אמתיה דרבי אבא בר זוטרא אישתבאי פרקה ההוא תרמודאה לשום איתתא שלחו ליה לדידיה אי יאות עבדת שדר לה גיטא דחירותא

The Gemara relates: The maidservant of Rabbi Abba bar Zutra was taken captive. A certain gentile tarmoda’a redeemed her to be his wife. The Sages sent a message to Rabbi Abba bar Zutra: If you wish to act correctly, send her a bill of manumission.

היכי דמי אי דמצו פרקי לה למה לי גיטא דחירותא אי דלא מצו פרקי לה כי שדר לה גיטא דחירותא מאי הוי

The Gemara asks: What are the circumstances? If this is a situation where the Jews are able to redeem her, why do I need a bill of manumission? They should redeem her to be a maidservant. If this is a situation where they are unable to redeem her, when he sends her a bill of manumission, what of it? What effect will it have, as she is currently under the control of this gentile?

לעולם דמצו פרקי לה וכיון דמשדר לה גיטא דחירותא חבורי מחברי אהדדי ופרקי לה ואיבעית אימא לעולם דלא מצו פרקי לה וכיון דמשדר לה גיטא דחירותא מיתזלא באפיה ומפריק לה

The Gemara answers: Actually, it is referring to a situation where they are able to redeem her but are not doing so. And since he sends her a bill of manumission, the residents of the city will join together and redeem her, as she is now a full-fledged Jew, whereas they would not have redeemed her to be a maidservant. And if you wish, say instead: Actually, it is referring to a case where they are unable to redeem her, as the ransom was too expensive. And once he sends her a bill of manumission, she will be disrespected in the eyes of the gentile who redeemed her to marry her, as he will find out that she is a maidservant of a Jew, and he will allow her to be redeemed.

והאמר מר חביבה להן בהמתן של ישראל יותר מנשותיהן הני מילי בצינעא אבל בפרהסיא זילא בהו מילתא

The Gemara challenges this statement: Would it be easier to redeem the maidservant once the gentile discovered that she is the maidservant of a Jew? But didn’t the Master say: The animals of Jews are more beloved to gentiles than their own wives? Apparently, the gentiles held the Jews in high regard, and the fact that she was a Jewish maidservant would not lower her in the gentile’s estimation. The Gemara answers: This statement applies only concerning matters that take place in private; however, in public, the matter is disrespected, and a gentile would not marry the maidservant of a Jew.

ההיא אמתא דהות בפומבדיתא דהוו קא מעבדי בה אינשי איסורא אמר אביי אי לאו דאמר רב יהודה אמר שמואל כל המשחרר עבדו עובר בעשה הוה כייפנא ליה למרה וכתיב לה גיטא דחירותא רבינא אמר כי הא מודה רב יהודה משום מילתא דאיסורא

§ The Gemara relates: There was an incident involving a certain maidservant in Pumbedita with whom people were performing prohibited sexual acts, and her master was unable to prevent this. Abaye said: If not for the fact that Rav Yehuda says that Shmuel says that anyone who emancipates his slave violates a positive mitzva, as it is written in the Torah: “Of them may you take your bondmen forever” (Leviticus 25:46), I would force her master, and he would write and give her a bill of manumission, enabling her to marry a Jew, which would ensure that she would cease her promiscuous behavior. Ravina said: In a case like that, Rav Yehuda concedes that it is permitted to emancipate her, due to the prohibited matter that others are violating.

ואביי משום איסורא לא האמר רב חנינא בר רב קטינא אמר רבי יצחק מעשה באשה אחת שחציה שפחה וחציה בת חורין

The Gemara asks: And does Abaye hold that one cannot emancipate a slave even due to a prohibition that is being violated? Didn’t Rav Ḥanina bar Rav Ketina say that Rav Yitzḥak says: There was an incident involving a woman who was a half-maidservant half-free woman, as she had belonged to two masters and was emancipated by one of them,

וכפו את רבה ועשאה בת חורין ואמר רב נחמן בר יצחק מנהג הפקר נהגו בה

and the court forced her master to emancipate her, and he made her a free woman. And Rav Naḥman bar Yitzḥak said in explanation of why they forced him to do this: They took liberties with her, i.e., people engaged in sexual intercourse with her freely. This demonstrates that it is permitted to free a slave to prevent people from violating prohibitions.

הכי השתא התם לא לעבד חזיא ולא לבן חורין חזיא הכא אפשר דמיחד לה לעבדיה ומנטר לה

The Gemara rejects this proof: How can these cases be compared? There, in the case of a half-maidservant half-free woman, she is not fit for marrying a slave and she is not fit for marrying a freeman. This is why she is available to all, and the only way to solve this problem is to emancipate her. Here, in the case of the maidservant, it is possible for the master to assign her to marry his slave, and that slave will guard her from people who wish to be promiscuous with her. Therefore, it is not necessary to emancipate her.

גופא אמר רב יהודה אמר שמואל כל המשחרר עבדו עובר בעשה שנאמר לעולם בהם תעבודו

§ The Gemara returns to discussing the matter itself cited above. Rav Yehuda says that Shmuel says: Anyone who emancipates his slave violates a positive mitzva, as it is stated: “Of them may you take your bondmen forever” (Leviticus 25:46). This is a positive mitzva requiring that one subjugate slaves their entire lives. Therefore, it is prohibited to emancipate them.

מיתיבי מעשה ברבי אליעזר שנכנס בבית הכנסת ולא מצא עשרה ושחרר עבדו והשלימו לעשרה מצוה שאני

The Gemara raises an objection from a baraita: There was an incident involving Rabbi Eliezer, who entered a synagogue to pray, and he did not find a quorum of ten men, and he emancipated his slave and had him complete a quorum of ten. This demonstrates that one is permitted to emancipate his slave. The Gemara answers: Freeing a slave to enable the performance of a mitzva, e.g., completing a quorum, is different. This does not demonstrate that in general one is permitted to emancipate his slave.

תנו רבנן לעולם בהם תעבודו רשות דברי רבי ישמעאל רבי עקיבא אומר חובה ודילמא רבי אליעזר סבר לה כמאן דאמר רשות

The Gemara raises an objection from a baraita to the proof citing the incident involving Rabbi Eliezer: The Sages taught: “Of them may you take your bondmen forever,” is optional; this is the statement of Rabbi Yishmael. Rabbi Akiva says: It is an obligation. The Gemara now explains the Gemara’s objection: But perhaps Rabbi Eliezer holds in accordance with the opinion of the one who says that it is optional. Therefore, the incident involving Rabbi Eliezer cannot serve as a proof that even those who hold that it is prohibited to free a slave would hold that it is permitted to free a slave to enable the performance of a mitzva.

לא סלקא דעתך דתניא בהדיא רבי אליעזר אומר חובה

The Gemara answers: It cannot enter your mind to say that Rabbi Eliezer holds that enslaving them permanently is optional, as it is taught explicitly in a baraita that Rabbi Eliezer says: “Of them may you take your bondmen forever” is an obligation.

אמר רבה בהני תלת מילי נחתי בעלי בתים מנכסיהון דמפקי עבדייהו לחירותא ודסיירי נכסייהו בשבתא ודקבעי סעודתייהו בשבתא בעידן בי מדרשא דאמר רבי חייא בר אבא אמר רבי יוחנן שתי משפחות היו בירושלים אחת קבעה סעודתא בשבתא ואחת קבעה סעודתא בערב שבת ושתיהן נעקרו

In connection with this issue, Rabba said: With these three matters homeowners become impoverished: That they emancipate their slaves; and that they inspect their property on Shabbat; and that they set their meals on Shabbat at the time of the sermon in the study hall, so that they miss it, as Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: There were two families in Jerusalem, one that set its meal on Shabbat and one that set its meal on the eve of Shabbat, and both of them were uprooted. One family was uprooted because they caused the suspension of Torah study, and the other was uprooted because by eating their meal on Shabbat eve, they did not properly distinguish between Shabbat and Shabbat eve.

אמר רבה אמר רב המקדיש עבדו יצא לחירות מאי טעמא גופיה לא קדיש לדמי לא קאמר דליהוי עם קדוש קאמר

§ Rabba says that Rav says: With regard to one who consecrates his slave, the slave is emancipated. The Gemara explains: What is the reason for this? He did not consecrate the slave himself, as the slave cannot become consecrated to be an offering. If you say that it is only with regard to his monetary value that he is consecrated, i.e., the owner pledges to give the value of his slave to the Temple, his owner did not say this. Therefore, it must be that he said that this slave should be a member of the sacred nation, meaning that the slave should be emancipated and become a Jew.

ורב יוסף אמר רב המפקיר עבדו יצא לחירות מאן דאמר מקדיש כל שכן מפקיר מאן דאמר מפקיר אבל מקדיש לא דלמא לדמי קאמר

And Rav Yosef says that Rav says: With regard to one who renounces ownership of his slave, the slave is emancipated. The Gemara points out: According to the one who says that one who consecrates his slave emancipates him, this is all the more so with regard to one who renounces ownership. But according to the one who says that one who renounces ownership of his slave emancipates his slave holds that this is the halakha only if one renounces ownership of his slave; but one who consecrates his slave does not emancipate him, as perhaps when he consecrated his slave he said that his slave is consecrated with regard to his monetary value, he should be sold and the profit donated toward the Temple maintenance.

איבעיא להו צריך גט שיחרור או לא צריך תא שמע דאמר רב חייא בר אבין אמר רב אחד זה ואחד זה יצא לחירות וצריך גט שחרור

A dilemma was raised before the Sages: In both of these cases, where the slave is emancipated after his owner renounces his ownership of him or consecrates him, does the slave require a bill of manumission, or does he not require a bill of manumission? The Gemara suggests a proof to resolve this dilemma: Come and hear that which Rav Ḥiyya bar Avin says that Rav says: In both this case, where one consecrates his slave, and that case, where one renounces ownership of his slave, the slave is emancipated but nevertheless requires a bill of manumission.

אמר רבה ומותבינן אשמעתין המקדיש נכסיו והיו בהן עבדים אין הגזברין רשאין להוציאן לחירות אבל מוכרין אותן לאחרים ואחרים מוציאין אותן לחירות רבי אומר אומר אני אף הוא נותן דמי עצמו ויוצא מפני שהוא כמוכרו לו מתניתא קא רמית עליה דרב רב תנא הוא ופליג

Rabba said: And we raise an objection from a baraita to our halakha that Rav said that one who consecrates his slave emancipates him: With regard to one who consecrates all his possessions, and among them were slaves, the Temple treasurers are not allowed to emancipate them. However, they may sell the slaves to others, and these others may emancipate them. Rabbi Yehuda HaNasi says: I say that even the slave himself can give his own monetary value and is emancipated, due to the fact that it is as if the Temple treasurer sold him to himself. This demonstrates that the act of consecrating one’s slave does not emancipate him. The Gemara rejects this argument: Do you raise an objection to Rav from a baraita? Rav himself is a tanna, and, as such, has the authority to dispute the determination in the baraita.

תא שמע אך כל חרם וגו׳ מאדם אלו עבדיו ושפחותיו הכנענים הכא במאי עסקינן דאמר לדמי

The Gemara raises another objection from a baraita to the opinion of Rav: Come and hear: “Notwithstanding, no dedicated thing that a man may dedicate to the Lord from all that he has, whether of man or beast, or of the field of his possession, shall be sold or redeemed” (Leviticus 27:28). The Sages interpret the verse as follows: “Of man”; these are his Canaanite slaves and maidservants. This demonstrates that one may consecrate his slaves and they are not emancipated as a result. The Gemara answers: With what are we dealing here? This is referring to a case where the master said explicitly that he is consecrating them with regard to their monetary value.

אי הכי אידך נמי דאמר לדמי

The Gemara asks: If that is so, then why not say that the other baraita quoted above is also referring to a case where one said explicitly that the slave is consecrated with regard to his monetary value? Why is it necessary to answer that Rav disagrees with that baraita?

אי הכי אין הגזברים רשאין להוציאן לחירות גזברים מאי עבידתייהו

The Gemara answers: If that is so, that the baraita is referring to one who said that the slaves are consecrated only with regard to their monetary value, then why does the baraita state that the Temple treasurers [gizbarim] are not allowed to emancipate them. The Temple treasurers; what are they doing in this discussion? They would never be able to emancipate the slaves, as the slaves were never actually consecrated.

ותו אבל מוכרין אותן לאחרים ואחרים מוציאין אותן לחירות אחרים מאי עבידתייהו ותו רבי אומר אומר אני אף הוא נותן דמי עצמו ויוצא מפני שהוא כמוכרו לו ואי לדמי מאי מפני שהוא כמוכרו לו

And furthermore, the baraita states: However, they may sell the slaves to others, and these others may emancipate them. Others; what are they doing in this discussion? They also should not be able to emancipate the slaves. And furthermore, the baraita states: Rabbi Yehuda HaNasi says: I say that even the slave himself can give his own monetary value and is emancipated, due to the fact that it is as if the Temple treasurer sold him to himself. And if the slave was consecrated only with regard to his monetary value, what is the meaning of: Due to the fact that it is as if the Temple treasurer sold him to himself? The baraita makes sense only according to the opinion that one who consecrates a slave consecrates the slave himself, and since there is nothing for the Temple to do with the slave, he must be redeemed and the money used in his place. Therefore, the baraita contradicts Rav’s opinion.

תא שמע המקדיש עבדו עושה ואוכל שלא הקדיש אלא דמיו

The Gemara raises another objection to Rav’s opinion from a baraita: Come and hear: In a case of one who consecrates his slave, the slave works and is sustained as compensation for his labor, as the master consecrated only his monetary value and donates that sum to the Temple treasury. This demonstrates that the slave does not become consecrated, as he may still work for the master, and he is also not emancipated.