Gittin 42bגיטין מ״ב ב
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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42bמ״ב ב

וחצי כופר ליורשיו אמאי הכי נמי לימא יום של רבו לרבו יום של עצמו לעצמו שאני הכא דקא כליא קרנא

and half of a ransom, i.e., half of the value of the deceased, to his heirs. According to what was stated earlier, why is this the halakha? So too, in this case let us say: If the ox killed him on the day of his master, then the full penalty of thirty shekels is paid to his master, but if it killed him on his own day, then the full ransom is paid to the slave himself, i.e., his heirs. The Gemara answers: This is different, for the principal is consumed. Since the slave is dead, even if the goring occurred on a day that he was working for himself, there is a permanent loss to the master, who is therefore entitled to be paid half of a penalty.

ואלא ה"ד דלא קא כליא קרנא כגון שהכהו על ידו וצמתה ידו וסופה לחזור

The Gemara asks: Rather, what are the circumstances when the principal is not consumed and the reimbursement is paid based on the day on which the ox gored the slave? The Gemara explains: It is a case where an ox struck him on his hand and his hand withered, but it will eventually return and heal. In this case, there is no permanent loss.

הניחא לאביי דאמר נותן לו שבת גדולה ושבת קטנה שפיר

The Gemara challenges: This works out well according to the opinion of Abaye, who says: If one injures another and the injury causes him temporary paralysis, then he gives him the value of the major loss of livelihood, i.e., the decrease in his value, as measured by his price on the slave market, due to his temporary paralysis. And he also give him the value of the minor loss of livelihood, i.e., the actual wages he lost during the time he was injured. This works out well, as in this case, the owner of the ox would have to pay the major loss of livelihood.

אלא לרבא דאמר אינו נותן לו אלא שבתו שבכל יום ויום האי שור הוא ושור אינו משלם אלא נזק

However, according to the opinion of Rava, who says: He gives him only the value of his loss of livelihood for each and every day but does not have to pay for the decrease in his value because the slave will be healed and will return to his previous value, this case is one of an ox that injured the half-slave half-freeman. And an ox, i.e., the owner of an ox, pays only damage, as measured by his price on the slave market, but he does not pay for loss of livelihood at all. How then does Rava explain this case?

אב"א כשהכהו אדם ואי בעית אימא מימרא היא ומימרא לרבא לא סבירא ליה

The Gemara answers: If you wish, say that this is referring to a case where the slave was struck by a person, not an ox, so that the one who struck him must pay for the loss of livelihood. And if you wish, say instead: This halakha is merely a statement of an amora, and Rava is not bound to hold in accordance with a statement of an amora.

איבעיא להו מעוכב גט שחרור יש לו קנס או אין לו קנס

§ A dilemma was raised before the Sages: If a slave is detained in his master’s possession only due to not having received a bill of manumission, but he is no longer obligated to perform labor for his master, e.g., in a case where his master declared him to be ownerless, does he render liable one whose ox kills him to pay the penalty of thirty shekels to his master, or does he not render one liable to pay the penalty?

(שמות כא, לב) כסף שלשים שקלים יתן לאדוניו אמר רחמנא והאי לאו אדון הוא או דלמא כיון דמחוסר גט שחרור אדון קרינא ביה

The Gemara analyzes this question: The Merciful One states in the Torah: “He shall give thirty shekels of silver to his master” (Exodus 21:32), and this is not a master, as in practice the slave has already been declared ownerless. Or perhaps, since he is lacking a bill of manumission, he is still called a master.

ת"ש המית מי שחציו עבד וחציו בן חורין נותן חצי קנס לרבו וחצי כופר ליורשיו מאי לאו כמשנה אחרונה

The Gemara suggests: Come and hear a proof for this based on what is taught in a baraita: If an ox killed one who is a half-slave half-freeman, then the owner of the ox gives half of a penalty, i.e., fifteen shekels, to the slave’s master and half of a ransom, i.e., half of the value of the deceased, to his heirs. What, is the baraita not in accordance with the ultimate version of the mishna, after Beit Hillel conceded to Beit Shammai that the master is forced to emancipate the half-slave half-freeman, and he is merely lacking a bill of manumission? Despite this, the baraita states that the master receives the money of half of a penalty.

לא כמשנה ראשונה

The Gemara answers: No, this baraita is in accordance with the initial version of the mishna and in accordance with the opinion of Beit Hillel, that the slave works for his master and himself on alternating days. He is still an actual slave, and that is why the master receives the sum of half of a penalty.

ת"ש הפיל את שינו וסימא את עינו יוצא בשינו ונותן דמי עינו ואי אמרת יש לו קנס וקנס לרבו השתא חבלי ביה אחריני יהבי ליה לרביה חבל ביה רביה גופיה יהיב ליה לדידיה

The Gemara suggests: Come and hear a proof based on what is taught in a baraita: If the master knocked out the slave’s tooth and then blinded his eye, then the slave is emancipated due to the loss of his tooth, as the verse states: “He shall let him go free for his tooth’s sake” (Exodus 21:27). And his master gives him reimbursement for the value of his eye, as though he were a freeman. And if you say that a slave that did not yet receive a bill of manumission does render one whose ox kills him liable to pay the penalty, and the penalty is paid to his master, then one could ask: Now if other people injure him, then they give the payment to his master; if his master himself injures him, then should he give the payment for the slave’s eye to him?

דלמא כמ"ד אינו צריך דתניא בכולן עבד יוצא בהן לחירות וצריך גט שחרור מרבו דברי ר' ישמעאל ר"מ אומר אינו צריך ר"א אומר צריך רבי טרפון אומר אינו צריך ר"ע אומר צריך

The Gemara answers: Perhaps this baraita is in accordance with the one who said that when a slave is emancipated because his master knocked out his tooth he does not need a bill of manumission and is automatically emancipated the moment his tooth is knocked out, as it is taught in a baraita: For all of them, for all twenty-four limbs about which the Sages said that a slave is emancipated if his master damages one of them, a slave is emancipated by means of them, and he requires a bill of manumission from his master; this is the statement of Rabbi Yishmael. Rabbi Meir says: He does not require a bill of manumission. Rabbi Eliezer says: He requires it. Rabbi Tarfon says: He does not require it. Rabbi Akiva says: He requires it.

המכריעין לפני חכמים אומרים נראים דברי ר' טרפון בשן ועין הואיל ותורה זכתה לו ודברי ר"ע בשאר אברים הואיל וקנס חכמים הוא

Those who rule before the Sages, i.e., those who attempt to rule by finding a middle ground between the different opinions, say as follows: The statement of Rabbi Tarfon, that the slave does not require a bill of manumission, seems correct in the case of a tooth or an eye, since the Torah transferred his freedom to him explicitly (Exodus 21:26–27). And the statement of Rabbi Akiva, that he does require a bill of manumission, seems correct in the case of other limbs, since it is a rabbinic penalty that he goes free.

קנס הא קראי קא דרשינן אלא אימא הואיל ומדרש חכמים הוא

The Gemara questions the wording used: Is it a rabbinic penalty? Don’t we interpret verses to conclude that a slave is emancipated when any of the twenty-four limbs are damaged by the master? Rather, say as follows: the statement of Rabbi Akiva seems correct in the case of other limbs, since it is an interpretation of the Sages, and it is not written explicitly in the Torah. This question of the Gemara remains unresolved.

איבעיא להו מעוכב גט שחרור אוכל בתרומה או אינו אוכל (ויקרא כב, יא) קנין כספו אמר רחמנא והאי לאו קנין כספו הוא או דלמא כיון דמחוסר גט שחרור קנין כספו קרינא ביה

§ A similar dilemma was raised before the Sages: If a priest’s slave was detained in his master’s possession only due to not having received a bill of manumission, may he partake of teruma, as the slave of a priest may, or may he not partake of it? The Gemara presents the sides of this dilemma: The Merciful One states in the Torah: “But if a priest buy any person, the purchase of his money, he may eat of it” (Leviticus 22:11), and this slave is not the purchase of his money, as the master cannot enslave him. Or perhaps since the slave is still lacking a bill of manumission, the words “the purchase of his money” are said about him.

ת"ש דאמר רב משרשיא כהנת שנתערב ולדה בולד שפחתה הרי אלו אוכלין בתרומה וחולקין חלק אחד על הגורן הגדילו התערובות משחררין זה את זה

The Gemara answers: Come and hear a solution to this question based on what Rav Mesharshiyya says: With regard to a woman married to a priest whose offspring was mixed with her maidservant’s offspring, and it is not known who is who, then these two children may partake of teruma. One is a priest and one is the slave of a priest, both of whom may partake of teruma. And they must divide one portion of teruma together at the threshing floor, because the slave of a priest is not allowed to collect teruma at the threshing floor. And when the mixed children have grown up, they free each other, and by doing so the one who was a slave is freed. This teaches that although the son of the maidservant was not enslaved for practical purposes, since his status as a slave could not be confirmed with certainty, he could still partake of teruma, as he was lacking a bill of manumission.

הכי השתא התם אם יבא אליהו ויאמר בחד מינייהו דעבד הוא קנין כספו קרינא ביה הכא לאו קנין כספו הוא כלל

The Gemara rejects this: How can these cases be compared? There, in the case of the two children, if Elijah the prophet will come and say about one of them that he is a slave, then he is called “the purchase of his money,” because in reality he is a full-fledged slave. Here, in the dilemma before the Sages, the slave is not the purchase of his money at all because the master declared him ownerless. This question of the Gemara remains unresolved.

איבעיא להו עבד שמכרו רבו לקנס מכור או אינו מכור

§ The Gemara discusses the penalty paid when an ox kills a slave: A dilemma was raised before the Sages: If a slave whose master sold him to another person only with regard to the penalty, meaning that if this slave were to be killed by an ox then the penalty would be paid to the purchaser, is he sold or is he not sold? In other words, does this sale take effect or not?

תיבעי לר"מ תיבעי לרבנן תיבעי לר"מ עד כאן לא קאמר ר"מ אדם מקנה דבר שלא בא לעולם אלא כגון פירות דקל דעבידי דאתו אבל הכא מי יימר דמינגח ואם תמצא לומר דמינגח ממאי דמשלם

The Gemara explains: Raise the dilemma according to the opinion of Rabbi Meir, who holds that one can transfer ownership of an entity that has not yet come into the world, and raise the dilemma according to the opinion of the Rabbis, who hold that one cannot. Raise the dilemma according to the opinion of Rabbi Meir, as Rabbi Meir states that a person can transfer ownership of an entity that has not yet come into the world only in a case such as produce of a date palm, as this is an entity whose manner it is to come, and since one can be assured of the dates growing, one can sell them even beforehand. However, here, who will say that the slave will be gored? And even if you say that he will be gored, from where do you know that the owner of the ox who gored him will pay the penalty?