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
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?
- To Next Folio -