י״ב בתשרי ה׳תשע״ז (October 14, 2016)

Bava Metzia 19a-b: A Document Freeing a Slave

Does a non-Jewish slave prefer his status as a slave or would he prefer to be free?

This question, which is discussed in Massekhet Gittin (12b), is subject to a disagreement between the amora’im, and it may affect the ruling that we learned in the Mishna on yesterday’s daf, regarding returning a shetar shiḥrur – a document freeing the slave – to the slave if it was found.

Although the Mishna teaches that a shetar shiḥrur that was found should not be given to the master or the slave, our Gemara quotes a baraita that teaches that the shetar shiḥrur can be given to the slave if the master admits that he had already set the slave free with this document. The Gemara questions whether this is a good policy, given the fact that the master may have written the date on the document, but not actually have transferred it to the slave until a later date. This may create problems if the slave purchased land during that period – which therefore belonged to his master – and the confusion regarding the date of his independence may allow the real estate which guaranteed any loans taken by the master to be mistakenly thought to belong to the slave.

The Gemara explains that according to some opinions this is not a concern, since Abaye believes that the moment the witnesses sign the shetar it takes effect, even before it was given to the person for whom it was intended. In our case, this would work only if freeing the slave was considered to be to his benefit, based on the Talmudic rule zakin le-adam she-lo be-fanav – that someone can perform an act for his friend’s benefit, even without his friend’s knowledge.

Tosafot in Gittin explain that the idea that it is to a slave’s benefit to remain in bondage refers mainly to a slave who belongs to a kohen who has the right to enjoy the tithes that are given to a kohen and to members of his family. This also may apply to elderly slaves who are cared for by their masters; were they set free they would have to fend for themselves.

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