Talmud - Gittin 41a גיטין מ״א א׳

and will say to him: You are my slave, because he was designated to be used as repayment for the debt, and lest the future children of this emancipated slave acquire the reputation of being disqualified, the court forces his second master, i.e., the creditor, and he makes him a freeman, and the slave writes a promissory note for his value, that he owes his own value to the creditor. Rabban Shimon ben Gamliel says: The slave does not write a promissory note for his value. Rather, his first master, who emancipated him, writes a promissory note, and then pays the value of the slave to the creditor, as the master designated the slave to be used for repayment.

The Gemara explains: With regard to what halakha do they disagree? They disagree with regard to the halakha in the case of one who causes damage to his friend’s lien, as one Sage, Rabban Shimon ben Gamliel, holds that one who causes damage to his friend’s lien is liable to pay for the damage, although the liened object itself does not belong to his friend. Therefore, in the case of the mishna, the one who emancipated the slave is required to write a promissory note for his value. And one Sage, the first tanna, holds that he is exempt. Consequently, it is the slave who is required to write a promissory note for his value.

It was also stated that Rabban Shimon ben Gamliel and the Rabbis disagree with regard to that issue: When discussing one who causes damage to his friend’s lien, we have arrived at the dispute between Rabban Shimon ben Gamliel and the Rabbis, which supports the above analysis.

Ulla said another explanation of the dispute in the mishna: Who emancipated him? His second master, for whom he served as a lien for his debt. The mishna should be explained as follows: According to the letter of the law, the slave is not at all obligated in mitzvot as a result of this emancipation, because the creditor did not have the authority to emancipate him. However, for the betterment of the world, since a rumor has spread about him that he is a freeman as a result of the emancipation, his first master is forced to make him a freeman, and the slave writes a promissory note for his value to be paid to his original master, who was forced to emancipate his slave without receiving compensation. Rabban Shimon ben Gamliel says: The slave does not write a promissory note for his value. Rather, the one who emancipates, the creditor, writes a promissory note and pays the original master.

The Gemara explains: With regard to what principle do they disagree? They disagree with regard to damage that is not evident, i.e., a case where the value of an item was lowered due to a change that occurred that is not noticeable in the physical properties of that item. One Sage, Rabban Shimon ben Gamliel, holds that damage that is not evident is termed damage. Consequently, since the master is forced to emancipate his slave as a result of the action of the creditor, it is viewed as if the creditor has damaged the item of the master. And one Sage, the first tanna, holds that damage that is not evident is not termed damage, and the creditor is not liable to pay.

The Gemara asks: What is the reason that Ulla did not say an explanation in accordance with the explanation of Rav with regard to the proper understanding of the mishna? The Gemara answers: Ulla could have said to you: Do you call the second person: His master, which is the term employed in the mishna to describe the one who emancipated the slave? The creditor never was in fact the master of the slave, as the slave was only liened to him.

The Gemara asks: And what is the reason that Rav did not say in accordance with the explanation of Ulla with regard to the proper understanding of the mishna? The Gemara answers: Rav could have said to you: Do you call the second person: One who emancipates, which is the term employed in the mishna to describe the action taken? The action he performed is not emancipation, as he does not have the authority to emancipate a slave that does not belong to him.

§ It was stated that the Sages disagreed with regard to a similar question: In the case of one who sets aside his field as designated repayment for others to whom he owes a debt, and a river flooded the field in a way that caused permanent damage, the Sage known as Ami Shappir Na’e, literally meaning Ami the Beautiful, says that Rabbi Yoḥanan says: The creditor does not collect from other property, and because this field was ruined the creditor incurs a loss. And Shmuel’s father said: He collects from other property.

Rav Naḥman bar Yitzḥak said: Because Ami is beautiful [shappir na’e], does he say halakhot that are not beautiful and correct? Why should the creditor not be able to collect his debt from other property? Interpret his halakha as referring to a case where the debtor said explicitly to the creditor: Not only is this field liened property, but you will have payment only from this field. In such a case, Ami Shappir Na’e ruled that if that field is destroyed, the creditor has no recourse.

This is also taught in a baraita: In the case of one who sets aside his field as designated repayment for another to whom he owes a debt, and a river flooded the field, the creditor collects from other property. But if the debtor said to the creditor: You will have payment only from this field, then he does not collect from other property.

It is taught in another baraita (Tosefta, Ketubot 12:3): In the case of one who sets aside his field as designated repayment to a creditor or for a woman’s marriage contract, and he later sells that field, the creditor or the woman collects only from other property but not from the field that was sold. Rabban Shimon ben Gamliel says: A creditor collects only from other property, but a woman does not need to collect from other property. She may seize the field that had been designated. What is the reason for the distinction? Since it is not the way of a woman to go to court, it is assumed that that particular field was designated to pay her marriage contract in any event, to avoid the need for her to enter into litigation to claim her due.

MISHNA: In the case of one who is a half-slave half-freeman because only one of his two owners emancipated him, he serves his master one day and serves himself one day; this is the statement of Beit Hillel. Beit Shammai say: Through such an arrangement you have remedied his master, as his master loses nothing through this. However, you have not remedied the slave himself, as the slave himself remains in an unsustainable situation. It is not possible for him to marry a maidservant because he is already a half-freeman, as it is prohibited for a freeman to marry a maidservant.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Gittin 41a examines a dispute over a partly-freed slave held as loan collateral, focusing on who owes a promissory note for his value.