Babylonian Talmud: Tractate Gittin

Folio 13a

Seeing then that a priest's slave who runs away and a priest's wife who flouts her husband can still eat of the terumah while this one [who is emancipated] cannot, [is it not a disadvantage to him to be emancipated]?' This was a good rejoinder, [was it not]? — Said Raba: That is the point of the answer of the Rabbis [recorded] in the Mishnah, 'BECAUSE HE IS HIS PROPERTY,' [by which they meant to say] that if the master wants he can take four zuz from a non-priestly Israelite [as the price of the slave], and so disqualify him wherever he is. Let us grant that R. Meir has made out his case with regard to the slave of a priest; how does he make it out with regard to the slave of an ordinary Israelite? — Said R. Samuel son of R. Isaac: [Emancipation is a disadvantage to the slave] because it disqualifies him from marrying a Gentile bondwoman. [On the contrary it is a benefit] because it qualifies him to marry a free woman? — A slave prefers a common woman; she allows him to take liberties, she is at his beck and call, she is not coy with him.

MISHNAH. IF A MAN SAYS, GIVE THIS GET TO MY WIFE, THIS DEED OF EMANCIPATION TO MY SLAVE, AND DIES [BEFORE THEY ARE GIVEN], THEY ARE NOT TO BE GIVEN AFTER HIS DEATH. [IF HE SAID], GIVE A MANEH TO SO-AND-SO AND DIED, THE MONEY SHOULD BE GIVEN AFTER HIS DEATH.

GEMARA. R. Isaac b. Samuel b. Martha said in the name of Rab: [This money is] only [to be given] if it has actually been put aside in a special place.¹  With what case are we dealing here? Shall I say the man was in health [when he gave the instruction]? What difference does it make that the money is available, seeing that the recipient has not yet performed the act of 'pulling'?²  And if he was on his death bed, why must the money have been put on one side? Even if it has not been put on one side, it is to be given, because the instruction of a man on his death bed has the same force as a written document formally handed over!³  R. Zebid said: We are in fact [dealing here] with the case of a man in health, and [our Mishnah is] in agreement with [the following dictum enunciated by] R. Huna in the name of Rab: [If a man says], You owe me a maneh, give it to So-and-so, [if he said this] in the presence of the third party,⁴  [the last named] becomes legally entitled to it.⁵  R. Papa said that we are indeed dealing here with the case of a man on his death bed, and [the Mishnah is] in agreement with another dictum of Rab, Viz.: 'If a man on his death bed says, Give a maneh to So-and-so out of my belongings, if he said, give this maneh, it is to be given, but if he said simply a maneh it is not to be given, because perhaps he was thinking of a buried maneh. The law is, however, that we do not suspect that anything is buried. Why did not R. Papa take the same view as R. Zebid?

1. Lit., 'heaped up in a corner'.
2. Meshikah, v. Glos. Until this has been performed, the donor can retract, as also his heir.
3. V. B.B. 151a.
4. Lit., 'in the presence of these three'.
5. [V. B.B. (Sonc. ed.) p. 616, nn. 15-16. This principle known as Ma'amad shlashtan which provides for the transfer of claims to a third party is assumed by R. Zebid to apply only to deposits because they are considered to be in the legal possession of the owner wherever they may be at the time. Similarly in the Mishnah it is necessary for the money to be specially set aside.]

— R. Papa was of opinion that Rab's dictum was meant to apply equally whether [the sum in question was] a loan¹  or a deposit. Why did not R. Zebid adopt the view of R. Papa? — Because [the language of] the Mishnah is not consistent with [the theory that it speaks of a man on his death bed]. How do we make this out? — Because it says: IF A MAN SAYS, GIVE THIS GET TO MY WIFE AND THIS DEED OF EMANCIPATION TO MY SLAVE, AND DIES BEFORE THEY WERE GIVEN, THEY ARE NOT TO BE GIVEN AFTER HIS DEATH. The reason is that he died; had he continued alive, they would have been given. And the reason why we say this²  is that he said 'Give' [and not merely 'write']; had he not said 'give', they would not have to be given,³  whereas in the case of a man on his death bed, although he did not use the word 'give', [the Get] is still to be given, as we learn [from the following Mishnah]: 'At first it was laid down that if a man was being led out in fetters [to execution] and said, "Write a Get for my wife", [the Get] was to be written and delivered. Later they laid down that the same rule applied to one who was leaving for a sea journey or joining a caravan [across the desert]. R. Simeon Shezuri said: It also applies to a man lying dangerously ill.'⁴  To this R. Ashi demurred: How do we know, he said, that our Mishnah adopts the View of R. Simeon Shezuri? Perhaps it adopts the view of the Rabbis.⁵

The text above stated: 'R. Huna said in the name of Rab: If a man says, You owe me a maneh, give it to So-and-so, [if he said this] in the presence of the third party, [the last-named] becomes legally entitled to it.' [Commenting on this,] Raba said, This dictum of Rab appears to be sound where [the money in question] is a deposit but not where it is a loan.⁶  But, by God! Rab said that it applies even where it is a loan. It has also been stated that Samuel said in the name of Levi: If a man says. You owe me some money, give it to So-and-so, [if he said so] in the presence of the third party. [the last-named] becomes the legal owner. What is the reason? — Amemar said: [The borrower in such case] is regarded as having pledged himself at the time of borrowing the money to repay it either to the lender or to anyone coming on his behalf. Said R. Ashi to Amemar: But on your showing, if the lender transferred the debt to children who had not yet been born when the loan was made, they would not acquire possession?⁷  For even according to R. Meir, who said that it is possible to transfer possession of things that do not yet exist,⁸  [the transference must be] to something that is existing, not to something that does not yet exist: The truth is, said R. Ashi,

1. [Though it cannot be regarded as being in the possession of the creditor, since the debtor is entitled to spend it. Consequently where a transfer is made by means of ma'amad shlashtan there would be no need for the money in question to be specially set aside.]
2. That they would have to be given if he continued alive.
3. Even had he lived.
4. V. infra 65b.
5. And therefore in the case of the dying man also the rule applies only in the case where he said 'give'.
6. V. supra p. 47. nn. 2 and 3.
7. Because the borrower could not be considered to have pledged himself to repay them.
8. E.g., fruit that will grow on a tree hereafter, v. B.M. 33b.