|Tractate Peah, Chapter 1
Tosefta 161[A person who is either dangerously ill or healthy,2] writes away [in a contract3 all of] his [movable and immovable]4 property to his [non-Jewish]5 slave, [the slave] goes out a free person.6 [But] if [the owner] left [for himself] land7 of any size,8 [then the slave] does not go out a free person.9 Rebbi Shimon says, “[A person] who says, ‘All of my [movable and immovable] property is given to so and so, my slave, except for [this] one of many thousands [of items] among them,’10 [it is as if] he did not say anything [and the slave does not go out free, but rather remains his slave].11 [But if a person said that he is giving all of his movable and immovable property to his slave, ‘except for a particular city, [or] except for a particular field’,12 even though there is no [anything else] there except for that field or that city (i.e. the owner did not have any other possessions anyway) this slave has acquired the [only other] property [of that person] (i.e. himself) and [therefore] acquired himself [to go out as a] free person.”13 And when [these] words [of Rebbi Shimon] were said in front of Rebbi Yosse,14 he said “Lips will kiss the one who replies straight things.” (Mishlei 24:26)15
מסכת פאה פרק א
הכותב נכסיו לעבדו יצא בן חורין. אם שייר קרקע כל שהוא לא יצא בן חורין. רבי שמעון אומר הרי האומר כל נכסיי נתונין לפלוני עבדי חוץ מאחד מריבוא שבהן לא אמר כלום. חוץ מעיר פלנית ושדה פלונית אף על פי שאין שם אלא אותה שדה ואותה העיר זכה עבד זה בנכסים וקנה עצמו בן חורין. וכשנאמרו דברים לפני רבי יוסה אמר (משלי כד:כו) שְׂפָתַיִם יִשָּׁק מֵשִׁיב דְּבָרִים נְכֹחִים.
- Mishna Peah 3:8 mentions the case where a person gave away either all of his property or some of his property to his slave and if that automatically renders the slave free or not. This Tosefta expands on that case.
- It makes no difference whether the person is dangerously ill or healthy when it comes to giving away his property to his slave, because his slave is also considered to be his property which gets passed on to his inheritors and does not have an official termination point, like a marriage which disappears with the husband’s death.
- The most common way for a slave to be freed is by receiving from his master a document that declares the slave’s freedom called Get Shichrur (Bill of Freedom), which is similar in content to a regular bill of divorce. See Mishna Kiddushin 1:3 and Mishna Gittin 9:3. Therefore since this transaction of the master’s property in the end frees the slave it must be written in a contract and not merely verbal.
- According to Torah law slaves themselves are considered to be immovable property just like land. See Talmud Bavli (Shvuot 42b). However there is a question in Talmud Bavli (Bava Batra 150a-b) if slaves are considered to be like immovable or movable property in Rabbinical law. See Tosafot (Bava Batra 150a, Avda). Depending on how that question is resolved in that Sugya (Talmudic discussion) it would make a difference whether this Tosefta is talking about only immovable property or movable property as well. If slaves are immovable property even by Rabbinical law then the master would only have to give away all of his immovable property to his slave, but not his movable property. Since immovable property would include the ownership of the slave himself giving it to the slave himself is in reality giving him his freedom. However if by Rabbinical law slaves are considered to be like movable property then the slave would have to be given both the immovable property, in order acquire his freedom by Torah law and the movable property in order acquire his freedom by Rabbinical law. The conclusion of that Sugya seems to be that by Rabbinical law slaves are considered to be movable property and therefore in this Tosefta the master must give away both the immovable and movable property to his slave in order for the slave to acquire his freedom.
- There are two kinds of slaves that can exist by Torah law – Jewish (Eved Ivri) (see Shemot 21:1-5) and Non-Jewish (Eved Canaani) (see Vayikra 25:44). A Jewish slave is a very particular case of slavery which usually occurs when a Jew is unable to repay his debts to another Jew, all his possessions get taken away and he is forced to sell himself into slavery in order to survive or if Jewish thief is unable to pay back what he stole and is sold into slavery by the court. Non-Jewish slaves are simply purchased or captured in war. Either type of the slave can be freed by granting them the Bill of Freedom, Get Shichrur, and therefore the Tosefta can be referring to either type of slaves in this case.
- Since the slave is included into the property that the master gave to him he acquires his freedom.
- The Tosefta does not literally mean land, but movable property as well as was already explained above in note 4.
- Any size means literally “any size”, even if it is so small that a person cannot even stand on it, because land always has value to it.
- Since the master kept some of his property to himself, no matter how miniscule, it is considered that he intended to keep the slave as well. And even though the master wrote in the contract that he is giving away all of his property, since he kept some of it is clear that he did not intend to give literally everything away to his slave and therefore the slave does not go out free. Since the slave does not go out free he also does not acquire the property that he master gave him, because all property that the slave acquires is automatically acquired by his master.
- Meaning that the master did not specify which item he wants to keep, but rather he just said that one of them he wants to keep.
- Rebbi Shimon holds that since the master did not specify which item he wants to keep we assume that the item that he wanted to keep was this slave and therefore the slave does not go out free. Since the slave does not go out free he also does not acquire any other property that he master gave him as was already explained above in note 9. That is why Rebbi Shimon says that it as if the master did not say anything at all, because his complete proclamation ended up being in vain, since nothing got accomplished, not the freedom of the slave and not the slave’s acquirement of the master’s property.
- Meaning that the master specified exactly which item he intends to keep.
- Since the master specified that he intends to keep a particular city or field obviously he intended to free the slave, and therefore the slave goes out free and is therefore able to acquire all of the other property that the master gave him except for what the master specified that he wants to keep. According to the Tanna Kama even if the master specified which item he wanted to keep still the slave does not go out free, because we assume that the master intended to keep the slave as well and never referred to him in his other possessions. However Rebbi Shimon argues and holds that the master is capable to differentiate between the specific thing that he intended to keep and the slave. Talmud Bavli (Gittin 9a) explains that the reason for Tanna Kama’s opinion is that the Get Shichrur must contain a description of a single act that completely releases the property described in it. Since in this particular case it contained both an act of release for most of the property and an act of keeping for the particular item that the master specified it is not considered to be a complete document of release which makes it invalid and therefore the whole transaction did not take place. However Rebbi Shimon is not concerned with that and holds that since the master specifically indicated what he intends to keep and what he intends to release it is considered to be a valid Get Shichrur and that transaction described in it takes place.
- Rebbi Yossi’s name is sometimes spelled יוסי (Yossi) and sometimes spelled יוסה (Yosse), even though it refers to the same person. I have kept the spelling here that appears in all Tosefta manuscripts even though it may appear inconsistent with previous Toseftot.
- When Rebbi Yossi heard how much Rebbi Shimon’s statement makes more sense than the Tanna Kama’s he proclaimed about him the verse in Mishlei, meaning that a person who says something straight and correct deserves to be kissed.