Today’s sugya brings a foundational dispute as to how slave designation is performed.
According to the first opinion in this baraita, the master can designate her right up until sunset during the last day of her servitude. The idea seems to be that when the master bought her, he already paid the kiddushin money. Thus he need not forgive her any work or give her any money.
R. Yose son of R. Yehudah says that there must be time for her to work for him the value of a perutah. This is the kiddushin money, because as we have seen R. Yose son of R. Yehudah does not hold that the sale counts as kiddushin.
The baraita continues with a parable. The parable talks about a person who uses an unclear betrothal formula (we will talk about this a lot later in the tractate). He says that she will be betrothed now and also after thirty days. Then, before the thirty days elapse, someone else comes and betroths her. She is betrothed to the first, for the baraita considers his betrothal as having begun “now.” The question is—what does this have to do with the slave designation? And with whose opinion does this accord?
The parable does not seem to work with R. Yose son of R. Yehudah. He holds that the sale is not a form of betrothal. She must have enough time left to work the value of a perutah. This is not like the case of betrothal that begins at two different times.
Rather, the parable is similar to the ruling of the rabbis. The betrothal begins with the sale but is only completed when he designates her. So too this man’s betrothal begins when he gives her the kiddushin and is only completed at the end of thirty days. If another man tries to betroth her in-between, she is not betrothed.
We might have thought that since the master, when buying the slave, did not say that his betrothal was beginning at this point, this is not analogous to the case of “from now and after thirty days,” therefore the baraita needed to teach us that it is.
Today’s sugya contains another baraita with a dispute between R. Yose son of R. Yehudah and the other sages over marriage by designation. This baraita is very similar to the one we learned yesterday.
According to R. Yose son of R. Yehudah, the initial sale is not an act of betrothal, even if the master believes that it will lead to it eventually. Therefore, if the father betroths her to someone else, she is betrothed. While this is a betrayal of the master, it is effective. The sages say that the master can designate her, even if the father tried to betroth her to someone else. They hold that the sale essentially was an act of betrothal.
The baraita draws a parable to a man who betroths a woman after thirty days. If she accepts kiddushin from someone else within those thirty days, she is betrothed to this second person.
In the parable, the master is analogous to the first man and the man to whom the father betrothed her is analogous to the second one. The parable does not work for the opinion of the sages, for they say that the master can designate her even though the father betrothed her to someone else. Thus the betrothal of the second person does not work.
Thus the parable accords with the opinion of R. Yose son of R. Yehudah. He holds that the sale is not akin to betrothal and therefore the father can betroth her to someone else. So too, a man who says “behold you are betrothed to me after thirty days” has not betrothed her until the thirty days are over.
The parable teaches us that even though when buying the girl the master did not state that his kiddushin would not begin until he designates her, this is still like a case of a man who states “behold you are betrothed to me after thirty days.” She is not betrothed until the master actually designates her and if someone else betroths her in the meanwhile, she is betrothed.
Today’s sugya deals with a father who wants to sell his daughter but not allow her to be designated. Can he make such a deal? And what about a case where he sells her to a master to whom she is prohibited in marriage?
The Torah gives the master the right to designate the slave either to him or to his son. According to R. Meir, the father can prevent this from happening by making a stipulation at the time of the sale. According to the other sages, one cannot make a stipulation to avoid the Torah’s laws.
The Talmud raises what seems to be a contradiction in the opinions of R. Meir. Above he implies that one can make a stipulation against that which is written in the Torah. But in the case of a husband who tries to stipulate with a woman that he will betroth her but not take on the responsibilities mandated by the Torah he rules that the stipulation is invalid. This seems clearly to be a contradiction.
Hizkiyah explains that the case of the slave is different because the Torah explicitly says that the father can sell her just to be a slave. In general, though, R. Meir would agree that one cannot make a stipulation that contradicts the Torah.
The rabbis do not need a special midrash on the word “to be a slave” because they already hold that one cannot make a stipulation to contravene Torah law. So what do they do with this word? They use it to teach that he can sell her to those unfit to marry her, but with whom betrothal is valid. This category would primarily include a mamzer.
The baraita argues that we should not need this word, that it is logical that he should be able to sell her to those unfit to her. After all, a father can betroth his daughter to those unfit to her (he should not do so, but he has the legal ability). And if something is logical, then we do not need a verse to teach it.
To counter this, the baraita argues that a father has rights with regards to betrothing his daughter that he does not have with regard to selling her. He can betroth her when she is a na’arah, a young girl, but he can only sell her when she is a minor. Thus we might have thought that he can betroth her to a mamzer, but not sell her to one. Hence we need the verse to teach that he can.
R. Eliezer reads another verse as allowing her to be sold to those unfit for her. So then what does he do with the word “to be a slave”? He claims that it teaches that he can sell her to relatives, even though these relatives cannot marry her because that would be incest.
Again, the baraita claims that this is obvious—if he can sell her to those unfit for her, clearly he can sell her to relatives. But this argument is easily debunked. He can sell her to those unfit for her, because even though designation would be prohibited, it would still be possible. But we might have thought that he cannot sell her to relatives because these relatives could not designate her. Therefore, the verse teaches us that he can even sell her to a relative, one who could not designate her because marriage with this relative is prohibited.