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The Contradiction That Yielded 50 Explanations
‘He Says to His Maidservant: You Are Free’
(Temura 25b)

 

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Our sugya discusses freeing slaves. According to the Sages – whose position is accepted l’halacha – a person cannot free half his slave with a write of emancipation. Either he frees him (or her) entirely or he frees him (or her) not at all.

 

A Pregnant Maidservant

The Rambam rules, “If someone wrote to his pregnant female slave, ‘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 as it is like he frees half of her” (Hilchos Avadim 7:5).

First, the Rambam rules that one can free a female slave without her fetus. Then he rules that one cannot free the fetus alone, as it is like freeing half a slave. But if freeing the fetus is like freeing half the slave, isn’t freeing the slave alone without the fetus also like freeing half a slave? (see the Raavad’s remarks).

 

A Brisker Answer

Rabbi Chayim HaLevi of Brisk, zt”l, answers this question as follows: The Rambam maintains that a fetus is a limb of its mother. Therefore, someone who tries to free the fetus is regarded as freeing half of the mother. But just because a fetus is a limb of its mother doesn’t mean the mother is a limb of her fetus – just like a fruit is obviously part of a tree, but the tree isn’t part of the fruit. A mother’s status does not depend on her fetus.

Thus, it is possible to free the mother alone and thereby free a whole slave, but it is impossible to free the fetus alone and thereby free a whole slave (see Lechem Mishneh, Chidushei Rabbeinu Chayim HaLevi and Or Sameiach; and Kehilos Yaakov, Temurah 9:9).

 

At Odds With Our Gemara

We must mention that the Rambam’s ruling contradicts our Gemara, which says that one cannot free a female slave and retain her fetus. Many have toiled to solve this quandary. Sefer HaMafteiach, which cites Acharonim who address the Rambam’s rulings, mentions more than 50 works that discuss it!

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Rabbi Yaakov Klass, rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn, is Torah Editor of The Jewish Press. He can be contacted at yklass@jewishpress.com.
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