Talmud zu Sheviit 10:6

Rebbi Jacob bar Aḥa said, there is disagreement about mortmain slaves. Rebbi Joḥanan said, if he sold them, they are not sold¹⁶Tosaphot in Giṭṭin 41a, s. v. אשה, are of the opinion that the Babli concurs.. Rebbi Eleazar said to him, they are eating heave by his power and you say so? He answered, do not paraphernalia slaves also eat by his power, and one says that if he sold them, they are not sold¹⁷If the wife is not from a priestly family, then her slaves can eat only because he made her his wife. He cannot sell them since nobody can sell what is not his; Tosephta 9:1.. From your own they¹⁸The developers of rabbinic doctrine. gave to you. It would be logical that one¹⁹A paraphernalia slave who is not property of a Cohen. should not eat heave. But they said that he eats²⁰As if he were the property of a Cohen., and they said, if he sold them, they are not sold. Rebbi Jacob bar Aḥa in the name of Rebbi Josiah. A baraita supports one and another baraita supports the other. A baraita supports Rebbi Eleazar: Paraphernalia slaves are freed on account of “tooth and eye”²¹If a slave loses a body part through his owner’s fault, he gains his freedom (Ex. 21:26). Paraphernalia slaves are property of the wife but not the husband. This part of the baraita is quoted in the Babli. Baba Qama 89a. from the wife but not the husband. Mortmain slaves²²This baraita holds that they are the husband’s property; therefore, he must have the absolute power to sell them, against R. Joḥanan. are freed by “tooth and eye” from the husband but not the wife. What does Rebbi Joḥanan do with this? They are quick to manumit²³The Babli agrees without a dissenting opinion., as we have stated²⁴Quoted as tannaitic text also in Giṭṭin 4:4 (fol. 45b), as amoraic in the Babli, Baba Qama 11b. 33b; Baba Meṣi‘a 44b.: If somebody mortgages²⁵Greek ὑποθήκη “mortgage”. a slave and later sold him, he is not sold²⁶The creditor can foreclose on the slave in the hands of the buyer.; if he freed him, he is freed²⁷The creditor has to sue the borrower for damages; he cannot put his hand on the ex-slave.. A baraita supports Rebbi Joḥanan: Neither mortmain slaves nor paraphernalia slaves are under the rules of “one or two days”²⁸Ex. 21:20. The exemption for the owner who hits his slave which provided that he is not prosecutable if the slave survives for two days is not available to either wife or husband. This baraita defines “owner” as a person who has both the right to and disposition of his property.
This text is also in the Babli Baba Qama 89b. and are freed by “tooth or eye” from neither the husband nor the wife. Where do they disagree? When he sold them forever or sold them for some time²⁹“Selling temporarily” is not selling the property but leasing the use of the property for a limited period.? If you say that he sold them permanently rather than temporarily, does everybody agree that they are sold? If you say that he sold them temporarily rather than permanently, does everybody agree that they are not sold? Let us hear from the following: ³⁰Ševi‘it 10:1 (Notes 22–24), in a slightly different version Babli Giṭṭin41a. If somebody mortgages his field to his wife for her ketubah or to a creditor for his claim and then sells it, it is sold and the buyer should beware for himself³¹The buyer has to insure himself against the possibility that the creditor or the wife at the dissolution of her marriage will foreclose the property and he will have to sue the seller for restitution of the sale price.. Rabban Simeon ben Gamliel says, for the ketubah of the wife it is not sold since it is unthinkable that a woman³²Without a male protector. Then the law has to protect her. should run around at courts of law. They said, Rebbi Eleazar parallels the rabbis, Rebbi Joḥanan Rabban Simeon ben Gamliel³³Since the wife has a lien on the mortmain slaves, the husband cannot alienate them without her consent, just as he cannot alienate real estate put up as collateral for her ketubah.
Rosh (R. Asher ben Ieḥiel) in his commentary on this Yerushalmi (Yebamot 7 #1) holds that the husband is prevented even from leasing the property without his wife’s consent. Rif (R. Isaac Fasi), Giṭṭin #472 holds that the husband may not sell but may lease for a limited time.. That means, we deal with a temporary sale. But if he sold permanently, everybody agrees that they are not sold.