1:
Mishnah 7 was included in this chapter (and this tractate) because of its reference to the use of land. Mishnah 8, our present mishnah, also mentions land and therefore is included after mishnah 7. However, we should note that my translation 'property' rather than 'land' is based on all the classical sources which state that the provisions of these two
mishnayot apply to all property and not just to land. While our mishnah does not say so specifically and even though none of the classical commentators relate to the question, it seems to me that another point of connection between these last two
mishnayot of chapter 3 could be the fact that the transferor of the property presumes himself to be dying: none of the commentators, however, seem to limit the application of our mishnah in this way.
2:
The servant who is the subject of mishnah 8 is, of course, a "Canaanite" servant. We have often had occasion to describe this human situation, so I shall recapitulate here very briefly. A Jew can acquire a Jewish indentured servant only in certain very limited circumstances and only for a limited period of six years. (Any extension of that period must be with the express and free consent of the servant ratified by a court of law.) During the period of indenture the duties of the servant are rather limited. Our mishnah is not referring to such a "Jewish servant". If a Jew acquires a non-Jew as his indentured servant such a servant is technically referred to as a "Canaanite servant". At the end of one year's indentureship this kind of servant is given the choice of either embracing Judaism or being resold to a non-Jew. If the servant accepts Judaism he must bathe in a mikveh and then immediately assumes a halakhic status (vis a vis observance of the mitzvot) similar to that of a Jewish woman. The master may manumit his servant at any time, but this has to be done formally by writing a special deed of manumission [Get shichrur].
3:
In our present mishnah a master (possibly thinking that he is on his death bed) writes a deed transferring all his property to a Canaanite servant. (Our sources are full of references to a very warm and loving relationship between Jewish masters and their 'Canaanite' servants.) Our mishnah gives two conflicting views about the halakhic situation thus created: the second is attributed to Rabbi Shim'on [ben-Yoĥai] and the first is attributed to an unnamed sage whose view represents the view of all the other sages; we call this second sage Tanna Kamma ['the first sage'].
4:
Tanna Kamma holds that if a master deeds all his property to his Canaanite servant that servant automatically goes free. The reasoning is simple: technically the servant is part of the master's property and therefore if the master transfers to the servant ownership of all his – the master's – property he has incidentally transferred to the servant ownership of himself. On the other hand, if the master only transfers to the servant ownership of some of his property the servant does not go free. This is because Tanna Kamma holds that we must assume that the servant is part of the property which the master reserves for himself. (If the master wishes to manumit this servant together with some of his property while still maintaining ownership over the rest of his property he must write a specific Deed of Manumission for the servant.) In his commentary on our mishnah Rambam adds that if the servant does not go free he cannot assume ownership of any property and the master's deed of transfer is invalid.
5:
Rabbi Shim'on disagrees. He holds that a master is entitled to retain ownership of some of his property and yet transfer part of it to a Canaanite servant thereby also giving him manumission. Rabbi Shim'on, however, agrees with Tanna Kamma that such a transfer and manumission would be invalid if the master does not specify which part of his property he reserves to himself. This is clarified in the Tosefta [Peah 1:10]: if the master says that he deeds to his servant all his property "except for one ten thousandth part", which he leaves unspecified, that unspecified part must be assumed to include the servant himself and he does not thus go free. Halakhah does not follow Rabbi Shim'on, but is according to the view of Tanna Kamma described above – this despite the fact that in the Tosefta Rabbi Yosé highly praises the view of Rabbi Shim'on (and apparently agrees with his view).
This concludes our study of chapter 3 of this tractate.
Avraham Jacobs writes that he would like to comment on Nehama Barbiru's question [Peah 031]:
I can imagine some wealthy, not too pious, farmer who has some beds of crop right next to his villa. He does not like "these homelesses" trample his property next to his bedroom, being noisy besides. On the other hand, his donation to the Temple may increase his popularity with the priests there. So that's why.
I respond:
As I responded to Greg Ashe in the previous shiur the law does not recognise the validity of such considerations. This will become clearer when we study certain mishnayot in Chapter 4.
Sometime over the next few days we shall be transferring the Virtual Bet Midrash to a different server. While this will not make any eventual difference to the service from the point of view of the subscribers it will probably involve a short hiatus during which shiurim will not be sent and the web archive will not be available. Hopefully, our next shiur will be sent out next Monday, September 15th.
