Slaves and Land

Comparing Slaves and Land

The Torah has a hekesh which equates slaves with land. Our Gemora says that although slaves might be considered as land, there are differences between the two stemming from the fact that slaves are movable and land is not. Therefore, our Gemora says that even if people consider slaves like land, they don’t mean to include them is the sale of the city. All real land is included in the sale.

There are other instances where the actual difference between slaves and land causes them to have different halachos as well. Rav Chaim HaLevi quotes a Raavad who differentiates between these two categories. If one steals a slave and the owner gives up hope of retrieving him, the owner loses ownership of him. This is not the case with land. Why should there be a difference? Rav Chaim answers that if giving up hope is related to the ability the Torah gives thief to acquire a stolen object, there would be no difference between the two. Anytime an object is out of the possession of the owner, and the owner has lost hope of retrieval, he relinquishes ownership. It doesn’t matter whether the object was lost or stolen. Therefore what matters is whether the object in reality is out of the owner’s possession. Slaves, which move, can be considered out of the owner’s possession. Land, which is stationary, is always considered in the owner’s possession. Thus, even though there is a halachic comparison between the two categories, sometimes the different properties of each will determine differences in halachah.

HALACHOS FROM THE DAF

Slave - Karka or Mitaltilin

The Gemora inquired: When a shechiv mei’ra gave his movables as a gift, does a non Jewish slave have the status of karka (property, real estate), or movables (lit. movable objects, i.e. possessions that are not property)? Rashbam points out, that for Biblical laws there is no question that they are considered karka, however, here we need to ascertain what the shechiv mei’ra had in mind when he gave a gift of movables - did he mean to include the slave or not.

One of the cases mentioned in Rashbam where a slave has the status of karka is by kinyan. The Shulchan Aruch (Choshen Mishpat 196:1) rules: A slave has the same laws as karka, therefore he can be acquired via money, document or chazakah (he may also be acquired through kinyan suddar and meshicha, ibid). In order to be acquired via chazakah, the slave needs to serve his master, for example - he should tie or untie his shoes; he should carry the masters clothing to the bathhouse or do any of the myriad other chores which he is expected to do once he is officially his slave.

There is a machlokes Rishonim how to rule. The Gemora did not answer this question; therefore, the Rema says that the slave is not included in the gift, since the burden of proof is on the one exacting money from his fellow. The Rif, Rosh and Rambam, however, rule that the slave is included.

The Shulchan Aruch (Choshen Mishpat 248:10) rules that the slave is included.

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Comparing Slaves and Land

By: Reb Yonataon Sapir

The Torah has a hekesh which equates slaves with land. Our Gemora says that although slaves might be considered as land, there are differences between the two stemming from the fact that slaves are movable and land is not. Therefore, our Gemora says that even if people consider slaves like land, they don’t mean to include them is the sale of the city. All real land is included in the sale.

There are other instances where the actual difference between slaves and land causes them to have different halachos as well. Rav Chaim HaLevi quotes a Raavad who differentiates between these two categories. If one steals a slave and the owner gives up hope of retrieving him, the owner loses ownership of him. This is not the case with land. Why should there be a difference? Rav Chaim answers that if giving up hope is related to the ability the Torah gives thief to acquire a stolen object, there would be no difference between the two. Anytime an object is out of the possession of the owner, and the owner has lost hope of retrieval, he relinquishes ownership. It doesn’t matter whether the object was lost or stolen. Therefore what matters is whether the object in reality is out of the owner’s possession. Slaves, which move, can be considered out of the owner’s possession. Land, which is stationary, is always considered in the owner’s possession. Thus, even though there is a halachic comparison between the two categories, sometimes the different properties of each will determine differences in halachah.

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Land and Slaves

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The Mishna says that slaves share the status of land regarding the exclusions listed. Therefore, a sale of a slave is not subject to the rules of ona’ah. Abaye says that a rental is subject to the rules of ona’ah, since it is equivalent to a temporary sale.

The Rishonim explain that Abaye is only referring to rental of items whose regular sale is subject to ona’ah, but rental of land is not subject to ona’ah, similar to a permanent sale of land.

The Rishonim discuss whether hiring a worker is subject to ona’ah. The Ramban and Rashba say that hiring a worker is not subject to ona’ah, since the Torah states that ona’ah applies when buying or selling a “mimkar” - a sale item. When hiring a worker, there is no sale item per se, and therefore no ona’ah.

The Rambam (Mechira 13:15, 17) says that hiring a worker is not subject to ona’ah, since it is akin to renting a slave. Since buying a slave is not subject to ona’ah, renting one – which is a temporary sale – is also not subject to ona’ah. However, the Rambam says that when hiring a worker for a project, as opposed to hourly work, ona’ah does apply, since such a transaction is not considered a temporary sale of a slave, but a proper transaction of merchandise.

The Drisha (227:47) explains that a slave is defined by his time being owned by his owner. Therefore, an hourly worker can be considered temporarily enslaved, since during his employment period, his time is owned by the employer, while a project worker is not even temporarily enslaved, since his time is always only his. Since the Rambam exempted employment as a function of a slave’s exclusion, project work, which is not similar to a slave’s work, is not exempted. However, the Ramban and Rashba offer a more fundamental reason to exempt employment from ona’ah, and therefore apply this to all types of employment, including project work.

This dispute among the Rishonim would seem to depend on a general dispute among the Rishonim about exclusions of slaves. Rashi (Kiddushin 7a, 28a) and Tosfos (Megilla 23b Shamin) say that whenever the Gemora makes halachic statements about slaves, this applies to any person, even if he is free. Therefore, the Gemora (Kiddushin 7a) considers a wife being betrothed to be equivalent to real estate (as far as modes of acquisition), and the Gemora (Kiddushin 28a) treats someone’s claim that one is his Jewish slave to be equivalent to a dispute over land (as far as swearing). Tosfos (Kiddushin 7a, 28a) and the Ritva (Kiddushin 28a), however, say that the categorization of slaves as equivalent to land only applies to Kena’ani slaves, and not to free people, or even to Jewish slaves. The Tur and Shulchan Aruch (HM 227:33,36) rule like the Rambam.

The Shach (HM 95:18) rules that the halachic rules of a slave apply to all people, since the Torah is simply using slaves as a vehicle to explain that human acquisition is equivalent to land acquisition. In general, only Kena’ani slaves are acquired, which is why the Torah used them to teach this rule.This is consistent with the position of the Shulchan Aruch.

The Kovetz Shiurim (Bava Basra 310) suggests that the Rambam may not rule that the laws of slaves apply to all people. However, this is because only a slave can be truly permanently acquired, while other situations (e.g., a wife or Jewish slave), are only temporary, and cannot be compared to land. However, in regard to ona’ah, the exclusion of a slave also excludes hourly employment. Abaye explained that ona’ah applies to rental, only since it is considered a temporary sale. Therefore, a rental is subject to ona’ah where an equivalent permanent sale is subject to ona’ah. Although the employee does not have the rules of a slave, and cannot be permanently bought, employment’s theoretical permanent counterpart would be enslavement, which is not subject to ona’ah. Therefore, the temporary sale of employment cannot be subject to ona’ah, since ona’ah derives from considering a rental as a temporary sale, as Abaye stated.

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Price Fraud by Land

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Rav Nachman said: If brothers divide an inheritance, they are regarded as purchasers (for they are exchanging their true portions for those that they actually receive). If one brother received more than the other, but it was less than a sixth more than his brother’s share, the deal remains valid. If it was more than a sixth, the deal is void. If it was precisely a sixth, the deal is valid, but he is required to return the extra.

Rava rules: That which we said that if it was precisely a sixth, the deal is valid, but he is required to return the extra, that is only if they were dividing movable property. However, if they were dividing land, the rules for “price cheating” do not apply (and the extra would not need to be returned).

And by land, the extra does not need to be returned only if they divided it according to value. However, if they divided it according to measurement, the extra must be returned. This is in accordance with what Rabbah said, for he said: Anything which is sold according to measure, weight or number (and the amount specified was not the amount delivered), it must be returned even if it (the discrepancy) was less than the usual amount for “price cheating.”

The Ri”f rules (and this seems to be Rash”i’s opinion as well) that there is no “price fraud” by land is only if the discrepancy was exactly a sixth; however, if the discrepancy was for more than a sixth, the deal is void.

Rabbeinu Tam holds that there are no rules of “price fraud” by land as long as the discrepancy is not by more than half of its value; however, if the discrepancy was for more than half of the land’s value, the deal is void.

The Baal Hameor writes that if the discrepancy is for exactly half of its value, there is no rule of “price fraud”; however, if the discrepancy was for more than half of the land’s value, the deal is void.

The Rambam, however, rules that there are no halachos of “price fraud” by land at all, and the transaction is never voided. This is because there is no limit to the price of land.

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Price Fraud - Kesuvos 99 - Daf yomi

The Keli Yakar writes that the reason there is no onaah (price fraud) in respect to land is because land stays forever; even if presently, the land is not worth that price, it will eventually go up. This cannot be said in respect to movable property, for who knows if this particular item will be in existence by the time the price rises.

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