Gittin 44bגיטין מ״ד ב
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44bמ״ד ב

ואם תימצי לומר כוון מלאכתו במועד ומת לא קנסו בנו אחריו משום דלא עבד איסורא הכא מאי לדידיה קנסו רבנן והא ליתיה או דילמא לממוניה קנסו רבנן והא איתיה

And if you say that there is a different comparison: The halakha is that while there are types of labor that one is permitted to perform on the intermediate days of Passover and Sukkot, one may not intentionally schedule the labor to be performed at those times. One who does so is penalized and must forfeit the profits of that labor. The halakha is that if one planned to perform his labor on the intermediate days of the Festival, and he died, then his child is not penalized after him, because the son did not perform a prohibited act. Here, what is the halakha? Did the Sages penalize only him, and he is no longer alive, or perhaps the Sages penalized his property, by saying that he should lose it, and his property still exists?

אמר ליה תניתוה שדה שנתקווצה בשביעי' תזרע למוצאי שביעית נטייבה או נדיירה לא תזרע למוצאי שביעית

Rabbi Asi said to him: You already learned in a mishna (Shevi’it 4:2): A field whose thorns were removed during the Sabbatical Year may be sown after the conclusion of the Sabbatical Year, since removing thorns is not full-fledged labor that renders the produce of the field prohibited. And it is taught in a baraita (Tosefta, Shevi’it 3:6): If it had been improved with fertilizer, or if it had been populated by the owner’s herd in order to fertilize the field with their manure, it may not be sown after the conclusion of the Sabbatical Year, for the Sages imposed a penalty to prevent one from benefiting from prohibited labor.

וא"ר יוסי בר' חנינא נקטינן הטיבה ומת בנו זורעה אלמא לדידי' קנסו רבנן לבריה לא קנסו רבנן

And Rabbi Yosei, son of Rabbi Ḥanina, says: We have a tradition that if one improved his field in a forbidden manner, and then died, his son may sow it. Apparently, we should infer that the general principle with regard to penalties is that the Sages applied the penalty to the one who committed the transgression himself, but the Sages did not penalize his son.

אמר אביי נקטינן טימא טהרות של חבירו ומת לא קנסו רבנן בנו אחריו מ"ט היזק שאינו ניכר לא שמיה היזק וקנסא דרבנן היא לדידיה קנסוהו רבנן לבריה לא קא קנסו רבנן:

Abaye said: We have a tradition that if someone defiled his friend’s ritually pure items, thereby incurring liability to pay for the damage that he caused, and died before paying, the Sages did not penalize his son after him to pay for the damage. What is the reason for this? Damage that is not evident, i.e., that does not involve any physical change to the goods that is visible to the eye, is not considered damage by Torah law; but since the other party did suffer a loss, there is a penalty of the Sages. The Sages applied the penalty only to the one who caused the damage himself, but the Sages did not apply the penalty to his son.

או לחוצה לארץ: תנו רבנן המוכר עבדו לחוצה לארץ יצא לחירות וצריך גט שחרור מרבו שני רבן שמעון בן גמליאל אומר פעמי' יצא ופעמים לא יצא כיצד אמר פלוני עבדי מכרתיהו לפלוני אנטוכי לא יצא לאנטוכי שבאנטוכיא יצא

§ The mishna taught that if one sells his slave to a gentile or to a Jew outside of Eretz Yisrael then the slave is emancipated. The Sages taught (Tosefta, Avoda Zara 3:18): With regard to one who sells his slave to a Jew outside of Eretz Yisrael, the slave is emancipated, but he nevertheless requires a bill of manumission from his second master. Rabban Shimon ben Gamliel says: Sometimes he is emancipated and sometimes he is not emancipated. How so? If the master said: So-and-so my slave, I sold him to so-and-so of Antioch, then he is not emancipated, because it is possible that he describes the purchaser this way because he was born in Antioch, and now he lives in Eretz Yisrael. However, if he said: I sold him to so-and-so of Antioch who is in Antioch, then he is emancipated, as his statement clarifies that he is selling his slave to one who lives outside of Eretz Yisrael.

והא תניא מכרתיהו לאנטוכי יצא לאנטוכי השרוי בלוד לא יצא

The Gemara challenges: But isn’t it taught in that same baraita: If he said: I sold him to so-and-so of Antioch, then the slave is emancipated, but if he said: I sold him to so-and-so of Antioch who dwells in Lod, a city in Eretz Yisrael, then the slave is not emancipated. This indicates that if he states that he sold the slave to so-and-so of Antioch, without further comment, the slave is emancipated; this is not in accordance with the statement of Rabban Shimon ben Gamliel.

לא קשיא הא דאית ליה ביתא בארץ ישראל הא דאית ליה אושפיזא בארץ ישראל

The Gemara answers: It is not difficult. This case, when he is not emancipated, is referring to when the purchaser from Antioch has a house in Eretz Yisrael, and it may be that he purchased the slave to serve in his house in Eretz Yisrael. That case, in which the slave is emancipated, is referring to when he has only an inn [ushpiza] where he is staying in Eretz Yisrael, and the only home belonging to the purchaser is outside of Eretz Yisrael.

בעי רבי ירמיה בן בבל שנשא אשה בארץ ישראל והכניסה לו עבדים ושפחות ודעתו לחזור מהו

Rabbi Yirmeya raises a dilemma: If there was a resident of Babylonia who married a woman in Eretz Yisrael, and she brought in to the marriage slaves and maidservants for him, and he intends to return to Babylonia, then what is the halakha? Is marrying him akin to selling the slaves to her husband? Since he plans to take them out of Eretz Yisrael, will they be emancipated?

תיבעי למ"ד הדין עמה תיבעי למ"ד הדין עמו

Let the dilemma be raised according to the one who said: The law is with her, that in the event of a divorce the slaves remain in her possession, and her husband cannot pay her for them in order to maintain possession of them; and let the dilemma be raised according to the one who said: The law is with him, and he may pay her and retain possession of the slaves.

תיבעי למאן דאמר הדין עמה כיון דהדין עמה כדידה דמו או דילמא כיון דמשעבדי ליה לפירא כדידיה דמו

The Gemara explains: Let the dilemma be raised according to the one who says that the law is with her, and since the law is with her, the slaves are therefore considered as hers. It is not considered as if she sold them, and consequently they are not emancipated; or perhaps since they are liened to the husband for him to keep the profits of the slaves’ labor, as the profits from their labor belong to the husband like the revenue from other property that a woman brings into the marriage, the slaves are considered as his, and it is as though he purchased her slaves.

ותיבעי למאן דאמר הדין עמו כיון דהדין עמו כדידיה דמו או דלמא כיון דלא קני ליה לגופיה כדידה דמו תיקו:

And let the dilemma be raised according to the one who says: The law is with him, and since the law is with him, the slaves are therefore considered as his, and they should be emancipated; or perhaps since the husband did not acquire the slave himself, but only the rights to his labor, the slaves are considered as hers. No answer was found, and the Gemara concludes that the dilemma shall stand unresolved.

אמר ר' אבהו שנה לי רבי יוחנן עבד שיצא אחר רבו לסוריא ומכרו שם רבו יצא לחירות והתני ר' חייא איבד את זכותו

Rabbi Abbahu says: Rabbi Yoḥanan taught me: If there was a slave who willingly followed his master to Syria, which is considered to be outside of Eretz Yisrael with regard to the sale of slaves, and his master sold him there, then the slave is emancipated. The Gemara challenges: But didn’t Rabbi Ḥiyya teach: If a slave left Eretz Yisrael willingly, he lost his right to be emancipated if he is then sold outside of Eretz Yisrael?

לא קשיא כאן שדעת רבו לחזור כאן שאין דעת רבו לחזור

The Gemara answers: It is not difficult. Here, where he is emancipated, it is referring to a case where his master’s intention upon traveling to Syria was to return, and the slave followed him under that assumption. Therefore, when the master sold the slave in Syria, it is as though he sold him from Eretz Yisrael to outside of Eretz Yisrael. There, where he is not emancipated, is referring to a case where his master does not intend to return, and the slave followed him under that assumption. Since the slave willingly left Eretz Yisrael permanently, he lost his right to be emancipated if he is then sold outside of Eretz Yisrael.

והתניא יוצא העבד אחר רבו לסוריא יוצא לא סגי דלא נפיק והתנן ואין הכל מוציאין

And the Gemara notes that this distinction is taught in a baraita (Tosefta, Avoda Zara 3:18): The slave follows his master to Syria. The Gemara asks: Must he follow him? Is it not possible for him not to follow his master? But didn’t we learn in a mishna (Ketubot 110b): All may ascend to Eretz Yisrael, i.e., a woman or slave can say that he or she wishes to ascend, and they may do so against the wishes of their husbands or masters; but all may not remove, i.e., one cannot force his slave to leave Eretz Yisrael with him.

אלא יצא העבד אחר רבו לסוריא ומכרו רבו שם אם דעת רבו לחזור כופין אותו ואם אין דעת רבו לחזור אין כופין אותו

Rather, the baraita should be understood as speaking after the fact: If a slave willingly followed his master to Syria, and his master sold him there, then if his master’s intention when he traveled to Syria was to return to Eretz Yisrael, then he is forced to emancipate the slave; but if his master did not intend to return to Eretz Yisrael, and the slave willingly left with him, then he is not forced to emancipate the slave, as the slave has lost his right to be emancipated if he is then sold outside of Eretz Yisrael.

אמר רב ענן שמעית מיניה דמר שמואל תרתי חדא הך ואידך דאיתמר המוכר שדהו בשנת היובל עצמה רב אמר מכורה ויוצאה ושמואל אמר אינה מכורה כל עיקר

Rav Anan said: I learned two halakhot from Mar Shmuel. One was this halakha, that a slave is emancipated after being sold to someone outside of Eretz Yisrael; and the other halakha I learned is as it was stated that there was a dispute with regard to the following issue: Certain types of fields that were sold before the Jubilee Year are returned to their original owners in the Jubilee Year. What is the halakha with regard to one who sells his field in the Jubilee Year itself? Rav says: It is sold in principle. However, it leaves the possession of the purchaser immediately, and the purchaser is not refunded his money. And Shmuel says: It is not sold at all.

בחדא הדרי זביני ובחדא לא הדרי זביני ולא ידענא הי מינייהו

Rav Anan continues his statement with regard to the two halakhot he was taught by Mar Shmuel: In one of the two sales the money received from the sale is returned, and in one of the two sales the money received from the sale is not returned, and the purchaser loses his money, but I do not know in which of the cases the money is returned and in which of the cases it is not returned.

אמר רב יוסף ניחזי אנן מדתני בברייתא המוכר עבדו לחו"ל יצא לחירות וצריך גט שחרור מרבו שני שמע מינה קנייה רבו שני ולא הדרי זביני וכי אמר שמואל התם אינה מכורה ומעות חוזרין

Rav Yosef said: Let us see if it could be determined which case involves which halakha. From what is taught in the baraita: One who sells his slave to a Jew outside of Eretz Yisrael, then he is emancipated, but he nevertheless requires a bill of manumission from his second master. Learn from the baraita that his second master acquired him, and the money of the sale is not returned. In other words, from the fact that there is the need for the second master to emancipate him, it is clear that the sale took effect. Therefore, it stands to reason that the purchaser is not refunded the money of the sale. And if so, when Shmuel said there that the field is not sold, he meant that the sale does not take effect at all and the money returns to the purchaser.