Wednesday, January 1, 2020

Peah 3:8 - Legal Language

Going off on tangents, Mishna Peah 3:8 basically discusses if a slave goes free if his master gives him a gift. There is an unresolved debate in Talmudic law whether it is legally possible for a slave to own property. The ones who say it is not possible, say that all of a slave's possessions are legally the property of the master. He has use of them only. If somebody steals or damages them, he has no recourse to the courts, but his master may be able to use them to recover. As a result the master cannot give even of his own assets to the slave.

The standard way to free a slave is to give him a document which explicitly states that he is a free man (גֵּט שִׁחְרוּר). There is a school of thought that holds a master's gift to a slave is a backdoor way of setting him free. The legal theory is that since a slave cannot hold property, a gift reveals the master's intention to free the slave. Therefore he becomes a free man. The school of thought that holds a slave can hold property rejects this line of reasoning. 

Basically the text of the Mishna is the following: If in writing one gives all of his possessions to his slave, then the slave goes free. But, if he kept any land for himself, however small, he does not become free. Rabbi Shimon disagrees saying he always becomes free, unless the master states exactly, “Behold, all my goods are given to so-and-so my slave, with the exception of one ten-thousandth part of them". If this formula is followed everyone agrees that the slave does not go free even though a debate about the status of the gift remains. The commentaries analyze why this language works. A casual reader would not see why this text is definitive but a savvy one may see the term "one ten-thousandth" is unusual and ask a question. In any event it eliminates the problem of unintentionally freeing a slave.

It's a good question as to how as a practical matter such a situation would occur. Often yeshivas will take the position that practical application is irrelevant and the important thing is to understand the abstract ideas. There are many examples of this, including an opinion that the mitzvahs in the Torah concerning demolition of a house with leprosy, execution of a wayward son, and destruction of an idolatrous city, never happened and never could. The only reason they exist is to give us recompense for studying them. There is a story in "Jewish Fairy Tales and Legends" about a rich man who bequeaths everything he owns to his slave. But there is a provision in his will that his son, who is studying in a distant city, will have the right to choose one possession only. It's a great riddle. In the end his rabbi tells him to choose the slave and, everything that belongs to the slave, including his father's inheritance, belongs to him. He also gratuitously frees the slave who declines the offer.

We can learn from this Mishna that the world can be a complicated, contradictory, and even irrational place. Sometimes to get what is desired, a lawyer is required. He will follow appropriate procedures and write the precise language that every professional understands, and in the end hassles and misunderstandings are avoided.


לע"נ  האמא מלכה בת חיים ז"ל נלב"ע טז ניסן תשנ"ח
העלון ניתן לקבל בדואר אלקטרוני  וגם באתר http://dyschreiber.blogspot.com

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