As we know, under Torah law, Israelites were permitted to acquire slaves from other nations among whom they lived. (They were also permitted to keep Israelite slaves, though the rules there are more lenient.) According to Leviticus 25:44-46, non-Jewish slaves are passed down from one generation to the next like any other kind of property. The text states: “You may keep them as a possession for your children after you, for them to inherit as property for all time.” (Leviticus 25:46)
Based on this verse, Rav Yehuda reports that Shmuel teaches:
Anyone who emancipates his slave violates a positive mitzvah.
Shmuel’s interpretation is rooted in the fact that the verse says that slaves are passed down “for all time.” Therefore, anyone who emancipates a slave is in violation of the verse. The Gemara objects:
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There was an incident involving Rabbi Eliezer, who entered a synagogue and did not find ten men. And he emancipated his slave and had him complete ten.
The Gemara relates an incident in which Rabbi Eliezer showed up in the synagogue to pray but did not find a prayer quorum of ten. So he simply freed his slave and had him complete the quorum. If that was permissible, then surely Shmuel’s interpretation of the verse is incorrect. Not so, says the Gemera.
A mitzvah is different.
This example of Rabbi Eliezer, says the Gemara, is an exception to the rule because the slave was freed to make a minyan, which is a mitzvah. In general, Shmuel’s teaching stands.
Or does it? The Gemara next cites a beraita that reveals that Shmuel’s opinion is not the only one:
The sages taught: “You may keep them … for all time,” is optional; this is the statement of Rabbi Yishmael.
Rabbi Akiva says: It is an obligation.
Rabbi Yishmael reads the verse, which states that slaves “may” be taken forever, as optional but not required. Shmuel (apparently following the opinion of Rabbi Akiva) holds that keeping slaves forever is obligatory. In the Mishneh Torah (Laws of Slaves 9:2), Maimonides formulates the law this way: “It is forbidden for a person to free a Canaanite slave. Anyone who frees such a slave violates a positive commandment, for Leviticus 25:46 states: ‘You may keep them … for all time.’ Nevertheless, if the master frees him, he attains his freedom.”
Maimonides sides with Shmuel and Rabbi Akiva in reading the verse as requiring slaves to be slaves forever. Freeing them is a violation of a biblical precept. Yet, if a slave owner frees their slave anyway, the slave is freed.
This is an interesting choice. If the Torah intended for the slave’s servitude to be endless, why should an owner’s attempt to free his slave be valid? On what grounds do we accept an action that is forbidden by the Torah?
Perhaps it is because both readings of the verse are possible. The Torah may be telling us that we must take possession of slaves for all of time. Or it might be giving us the option to do so if we want to while allowing us to free them if we do not.
Other than in the case of Rabbi Eliezer, who freed his slave to facilitate the fulfillment of a separate mitzvah, neither the Talmud nor the Rambam speculate about why someone might be motivated to release a slave when the Torah appears to prohibit doing so. What we do know is that if someone does free their slave, their action stands.
So while the law appears to follow Rabbi Akiva, one can choose to act in accordance with Rabbi Yishmael. And while doing so might put you at odds with a biblical verse, it seems to be in line with a theme of this chapter — making changes to the law “for the betterment of the world.”
Read all of Gittin 38 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 23rd, 2023. If you are interested in receiving the newsletter, sign up here.
