Gittin - Daf 38
- 1. An idolater can acquire another idolater and a Jew for their labor
On the previous Daf, the Gemara said that captors take ownership of their captives’ labor and can sell them. Reish Lakish provides the source: The Torah says "מהם תקנו" – from among [the people of Canaan] you may acquire slaves, which teaches: אתם קונים מהם – you may acquire one of them, ולא הם קונים מכם – but they cannot acquire one of you as a slave, ולא הם קונים זה מזה – nor can they acquire one another as a slave. Although they cannot acquire each other’s body, as ordinary property, they can acquire their labor, based on a kal vachomer: An idolater can even acquire a Jew for his labor (as taught in Kiddushin Daf 20a), so certainly he can acquire another idolater. Although this only proves they can be purchased with money, and not through chazakah (such as capture), Rav Pappa says: עמון ומואב טהרו בסיחון – The lands of Amon and Moav were “purified” by Sichon. Although the Jews were forbidden from conquering the lands of Amon and Moav, once they were taken by Sichon, the Jews could then conquer it from him, proving that he acquired those lands. Finally, the Gemara proves that an idolater can even acquire a Jew (i.e., a Jew’s slave, who has partial Jewish status) from the following passuk: וישב ממנו שבי – And [the Canaanite king] took of them captives, indicating they were owned as his captives.
- The prohibition to free a slave, and the exception for איסור – ex. case of the promiscuous slavewoman
There was a slavewoman in Pumbedisa with whom men were sinning. Abaye said, “If not for Rav Yehudah saying in the name of Shmuel: כל המשחרר עבדו עובר בעשה – Anyone who frees his slave transgresses a positive commandment (לעולם בהם תעבודו – you shall work them forever), I would force her master to free her,” so she could marry a Jew who would guard her. Ravina said that Rav Yehudah would agree to free her in this case, משום מילתא דאיסורא – because of the matter of prohibitions transgressed. Abaye, who forbids freeing a slave even to prevent transgressions, is challenged from an incident about a woman who was half slave and half free, whose master was compelled to free her because people were sinning with her!? The Gemara answers that in the case of the half slave woman, she cannot marry anyone, neither slave nor Jew. A full slave woman, however, can be designated to a slave who will guard her from other men, and does not need to be freed. Similarly, the Gemara explains that Rebbe Eliezer once freed a slave to complete a minyan of ten, because מצוה שאני – a mitzvah is different, and its fulfillment allows freeing a slave.
- Machlokes when one is makdish his slave if he goes free
Rabbah said in Rav’s name: המקדיש עבדו יצא לחירות – Someone who is makdish his slave, [the slave] goes free. He explains: גופיה לא קדיש – His body cannot be sanctified, since he is neither fit for a sacrifice nor as building materials, לדמי לא קאמר – and he did not say he was being makdish the value of the slave (to donate that amount), so this, too (i.e., being makdish him), was not his intent. Rather, דליהוי עם קדוש קאמר – he was saying he should become one of the holy nation, the Jews. Rav Yosef quoted Rav differently: המפקיר עבדו יצא לחירות – If one is mafkir his slave, he goes free, and the Gemara explains that he holds that only if he is mafkir his slave does he go free but one who is makdish his slave, he does not go free, because דלמא לדמי קאמר – perhaps he meant to be makdish the value of the slave. Rabbah notes his version of Rav is contradicted by a Baraisa, which teaches that if one is makdish all his property, the slaves are sold for the benefit of hekdesh, but do not go free. The Gemara answers that Rav is considered a Tanna and can disagree with a Baraisa.
