Gittin 39 continues the discussion as to how to fully emancipate slaves in order to both allow them to achieve financial independence and to permit them to marry. On Gittin 39b, the gemara revisits a scenario first broached on 38b, in which a slave owner had declared that his slave was financially free (hefker) without giving the slave the requisite emancipation document (shtar schichrur). When first raised on 38b, Rebbi had said that the only way that this person could be fully free (and thus be permitted to marry) was if the slave received the emancipation document.
When the topic was broached again on 39b, R' Chiya was asked what was the actual controversy that prompted the discussion. In the answer, the gemara provides insight into the concept of kinyan chalifin. By way of introduction - as taught more generally in Bava Metzia, a kinyan chalifin is a method of transfer by which a person uses an object to act as a surrogate for the transaction. This is traditionally accomplished with an item such as a handkerchief (i.e. kinyan sudar) whereby the buyer gives the seller the handkerchief and in so doing effects the transfer of the item that he wants.
R' Chiya explained that the scenario in our gemara involved a female slave who belonged to a man who was dying. She asked the man to set her free, to which he threw her his hat and said that she should take the hat and make a kinyan on it, while at the same time freeing herself as the hat would serve as the kinyan chalifin for her emancipation.
When asked whether this was an effective form of emancipation, R' Nachman indicated that it was not. The gemara then explains that observers thought that R' Nachman answered negatively because he follows the school of thought of R' Shimon that the emancipation must only be by document and cannot involve a monetary transaction. The gemara indicates that this is incorrect, as the rationale behind R' Nachman's ruling was that the kinyan chalifin was ineffective because the kinyan must be carried out with an item that belongs to the individual who is accepting the transfer. This is an important point as it relates to kinyan chalifin, as it underscores that it can only be accomplished with an object that belongs to the buyer. Had the owner attempted to emancipate the slave with an object that belonged to her as the kinyan, the emancipation would have been proper. However, since the kinyan chalifin was done with an object that belonged to the "seller" it was ineffective.
When the topic was broached again on 39b, R' Chiya was asked what was the actual controversy that prompted the discussion. In the answer, the gemara provides insight into the concept of kinyan chalifin. By way of introduction - as taught more generally in Bava Metzia, a kinyan chalifin is a method of transfer by which a person uses an object to act as a surrogate for the transaction. This is traditionally accomplished with an item such as a handkerchief (i.e. kinyan sudar) whereby the buyer gives the seller the handkerchief and in so doing effects the transfer of the item that he wants.
R' Chiya explained that the scenario in our gemara involved a female slave who belonged to a man who was dying. She asked the man to set her free, to which he threw her his hat and said that she should take the hat and make a kinyan on it, while at the same time freeing herself as the hat would serve as the kinyan chalifin for her emancipation.
When asked whether this was an effective form of emancipation, R' Nachman indicated that it was not. The gemara then explains that observers thought that R' Nachman answered negatively because he follows the school of thought of R' Shimon that the emancipation must only be by document and cannot involve a monetary transaction. The gemara indicates that this is incorrect, as the rationale behind R' Nachman's ruling was that the kinyan chalifin was ineffective because the kinyan must be carried out with an item that belongs to the individual who is accepting the transfer. This is an important point as it relates to kinyan chalifin, as it underscores that it can only be accomplished with an object that belongs to the buyer. Had the owner attempted to emancipate the slave with an object that belonged to her as the kinyan, the emancipation would have been proper. However, since the kinyan chalifin was done with an object that belonged to the "seller" it was ineffective.
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