Kiddushin, Daf Tet Zayin, Part 1
Introduction
This week s daf begins by discussing a source for the rule that a Jewish female slave is acquired by a document.
ובשטר : מנלן? אמר עולא אמר קרא (שמות כא, י) אם אחרת יקח לו הקישה הכתוב לאחרת מה אחרת מקניא בשטר אף אמה העבריה מקניא בשטר
And by document. From where do we know this?
Ulla said: The verse says, If he takes for himself another [wife] (Exodus 21:10): The verse compared her [the Hebrew maidservant] to another [wife]: just as the other [the wife] is acquired by document, so is a Hebrew maidservant acquired by document.
Ulla derives the law that a maidservant is acquired by a document from the fact that the two are mentioned in the same verse. Just as a wife is acquired in marriage by a document, so too is a female slave.
הניחא למ"ד שטר אמה העבריה אדון כותבו אלא למ"ד אב כותבו מאי איכא למימר
דאיתמר שטר אמה העבריה מי כותבו רב הונא אמר אדון כותבו רב חסדא אמר אב כותבו
הניחא לרב הונא אלא לרב חסדא מאי איכא למימר
Now, this works for the one that holds that the document of a Hebrew maidservant is written by her master; but for the one that holds that her father writes it, what can be said? For it has been stated: As to the document of a Hebrew maidservant, who writes it? R. Huna said: The master writes it; R. Hisda said: Her father writes it.
This makes sense for R. Huna; but to R. Hisda, what can be said?
When a woman is married, the husband, the one making the acquisition, writes the document. If the master writes the document to acquire the female slave, then the analogy makes sense. But according to R. Hisda, the father who is selling his daughter into slavery writes the document. This means that they are not analogous in marriage the acquirer writes, and in slavery the seller writes.
אמר רב אחא בר יעקב אמר קרא (שמות כא, ז) לא תצא כצאת העבדים אבל נקנית היא כקנין עבדים ומאי ניהו שטר
R. Aha b. Ya akov said: The verse says, She shall not go out as male slaves do (Exodus 21:7): but she may be acquired as male slaves are; and how is that? By document.
R. Aha b. Ya akov derives this halakhah from a precise reading of the verse. A female slave goes free in a unique way, but she is acquired the same way all slaves are by document.
ואימא אבל נקנית היא כקנין עבדים ומאי ניהו חזקה
אמר קרא (ויקרא כה, מו) והתנחלתם אותם לבניכם אחריכם אותם בחזקה ולא אחר בחזקה
But why not say: But she may be acquired as male slaves are, and how is that? Through hazakah (presumption of ownership)! The verse says, And you shall pass them [non-Jewish slaves] down as an inheritance for your children after you (Leviticus 25:46): only they [non-Jewish slaves are acquired] by hazakah, but others are not acquired by hazakah.
A non-Jewish slave can be acquired through hazakah. Hazakah, which means presumption of ownership, is achieved when a slave performs a labor for a master that would be typical only of a slave. So why not say that just as slaves are acquired by hazakah, so too are Jewish female slaves?
The answer is that the rabbis read Leviticus 25:46 as limiting acquisition by hazakah to non-Jewish slaves.
ואימא אותם בשטר ולא אחר בשטר
הכתיב לא תצא כצאת העבדים
ומה ראית מסתברא שטר ה"ל לרבויי שכן מוציאה בבת ישראל
אדרבה חזקה ה"ל לרבויי שכן קונה בנכסי הגר
באישות מיהת לא אשכחן
אי בעית אימא להכי אהני אם אחרת
Then say: Only they [are acquired] by document, but not another?
But it is written, She shall not go out as male slaves do.
And why do you prefer to read it this way?
It is logical that document is included [as a means of acquisition], since it divorces an Israelite woman.
On the contrary, hazakah should be included, since it acquires the property of a convert?
Still we do not find it in the context of marriage.
If you want you can say, if he take another comes to teach this.
The Talmud continues to push back why not say that Leviticus 25 implies that only non-Jewish slaves are acquired by document, not Jewish female slaves?
But then we d still need to account for the verse that distinguishes how female Jewish slaves go free and how non-Jewish slaves go free. This verse implied that they can all be acquired in the same way. So we have one verse that draws a distinction between them and one that compares them (in terms of acquisition).
So why say that the distinction is made in acquisition through hazakah and that they are both acquired by a document? Why not the opposite?
The answer is that a document has greater power since it is used for divorce.
But still, we could argue, that hazakah has greater power because it can be used to acquire the property of a convert who dies without heirs.
Still, we do not find a case where hazakah (possession) acquires in a case of marriage. And since acquisition of a female slave is somewhat similar to marriage, we can conclude that it does not work in this case. We could also prove that the comparison is only made with regard to rules connected to marriage because the very next verse in Exodus to marriage.
[I realize, this is complicated. Kol Hakavod if you made it through!]
ורב הונא האי לא תצא כצאת העבדים מאי דריש ביה ההוא מיבעי ליה שאינה יוצאה בראשי אברים כעבד
And R. Huna : This verse, She shall not go out as the male slaves do, how does he expound on it? He uses it to teach that she does not go out [free] through [the loss of her] major limbs, as a [non-Jewish] slave does.
Since R. Huna holds that the master writes the document, he can derive that a female slave is acquired by a document without using verse she shall not go out as male slaves do. Therefore, he can use this verse to teach that she does not go free if her master causes her to lose a limb. Only non-Jewish slaves go free under these circumstances.
ורב חסדא א"כ לכתוב קרא לא תצא כעבדים מאי כצאת העבדים ש"מ תרתי :
And R. Hisda? If so, Scripture should have written: she shall not go out as male slaves ; what does it mean as male slaves go out ? Learn both from this.
R. Hisda can learn both rules that she is acquired as are non-Jewish slaves and that she does not go free at loss of limb as do male slaves from this one verse since the verse has an extra word– go out.