Latest update: May 27th, 2013
The Rambam That Engendered Fifty Novella
‘He Says to His Maidservant: You Are Free’
Our sugya treats various possibilities of freeing slaves. According to the sages, and this is the halacha, a person cannot write a writ of emancipation for his slave freeing only half of him or her. A writ of emancipation can only serve to free a slave entirely.
A Pregnant Maidservant: The Contradiction
The Rambam seems to contradict himself. He rules (Hilchos Avadim 7:5): “If someone wrote to his pregnant shifchah, ‘You are free and your fetus is a slave,’ his statement is valid; ‘You are a slave and your fetus is free,’ he said nothing since it is as if he frees half of her.”
But why is this so? If freeing the fetus alone is considered like freeing half a slave and therefore invalid, why is freeing the mother without the fetus valid? Why isn’t that like freeing half a slave as well?
Rav Chaim of Brisk
Rav Chayim HaLevi of Brisk, zt”l, says we must examine the reason for the halacha that one cannot free half a slave with a writ of emancipation. The existence of a half-free, half-not-free person is not the problem, he says. Indeed, we encounter many such people in various sugyos in Shas. The problem is the act of freeing someone partially.
Uber Yerech Imo
Rav Chayim says that the Rambam maintains that a fetus is a limb of its mother. Therefore, someone who tries to free the fetus alone is regarded as having tried to free half of her. The reverse, however, is not true. The mother is a not a limb of its fetus (just like a fruit is part of its tree but the tree is not part of its fruit).
The Rambam, therefore, makes perfect sense. An owner can free the mother alone because he is freeing a whole slave. It is impossible, though, to free the fetus alone since it derives its existence from its mother and it would be like freeing half a slave (see Lechem Mishneh, Chidushei Rabbeinu Chayim HaLevi and Or Sameiach; and Kehilos Yaakov, Temurah 9:9).
At Odds With Our Gemara
We should mention that this Rambam’s ruling explicitly contradicts our Gemara, which explains that one cannot free a female slave and retain her fetus! Many people have toiled to solve this quandary. Sefer Hamafteiach, which cites Acharonim who address the Rambam’s rulings, mentions more than 50 works that discuss the issue!
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