Ketubot 95 - 101
Teffilin and the Slave
A slave wearing teffilin? The issue of a slave putting on teffilin appears in a couple of places in the Babylonian Talmud aside from our own gemara which touches on it tangentially. A Torah student is required to perform all the services for his teacher that a slave performs for his master except for removing his shoes. Performing such a menial task, says Rabbi Yehoshua ben Levi, might give the onlooker the impression that the student is indeed a slave. Other sages qualify this ruling by stating that this fear is applicable only in a place where the student is not known to the public as a freeman or when the student is not wearing teffilin.
This implication that wearing teffilin is a sure sign that one is not a slave is based on the general rule that a slave is obligated only in those mitzvot which apply to women, and since women are exempt from teffilin, so is a slave. Tosefot raises the problem of an apparent conflict with an earlier gemara (Ketubot 28b) which states that a slave's wearing of teffilin in the presence of his master is not a sign that he has been freed. The resolution of the problem is that although a one-time wearing of teffilin is not an indication that a slave has been freed, it is certainly not normal for a slave to consistently put on teffilin.
This same concept of normalcy is applied by Tosefot elsewhere (Mesechta Gittin 40a) to explain why a slave on whom the master has placed teffilin is considered to have been freed. Why is this such an indication, ponders Tosefot. Can it be because the master would hesitate to put teffilin on a slave who is exempt from this mitzvah, since this would require him to make a blessing, which may be considered taking the name of Hashem in vain? Tosefot rejects this because it is his opinion, in contrast to that of Rambam, that women and slaves may make blessings on mitzvot such as succah, lulav and shofar from which they are exempt. His conclusion is that since it is not normal for a slave to wear teffilin, his master would not have put them on him unless he had earlier freed him.
Although a woman may perform any of the mitzvot from which she is exempt, and even make a blessing upon them according to Tosefot, the Rema (Shulchan Aruch Orach Chaim 37:3) rules that we must protest against an attempt by women to wear teffilin. The explanation for this given by the commentaries is that since they are not obligated in this mitzvah, it is unlikely that they will maintain the physical discipline required of anyone who wishes to be involved in so sacred an undertaking as wearing teffilin. There is a debate amongst the commentaries as to whether this restriction applies to slaves as well. Pri Megadim takes the position that we discourage slaves as well and adds another reason: Allowing a slave to consistently wear teffilin may lead to him being mistakenly taken for a freeman and permitted to marry a Jewish woman who is forbidden to marry a slave.
Circumstances Larger than Words
A man sold his field because he needed cash to buy another field or merchandise. But the expected deal fell through because the seller backed out. Can he now back out of the sale which he made only for the purpose of acquiring cash which he mistakenly thought he would need?
This issue is discussed at length in our gemara and the conclusion is that he can back out and get his money back.
Tosefot points out, however, that this is true only if he made it clear at the time of the sale that he was selling for the purpose of purchasing a particular item. If he failed, however, to make his intention known, he has no subsequent claim that this was his intention, because "words kept in the heart are not considered words." This phrase is borrowed from another gemara (Mesechta Kiddushin 49b) about a man who sold his property because he intended to make aliya to Eretz Yisrael, but he made no mention of his intention at the time of the sale. When he changed his plans and wished to back out of the sale, the Sage Rava ruled that he could not do so because he had not revealed what he had in his heart.
Although in both of these cases a verbal indication on the seller's part is sufficient grounds for subsequently nullifying the sale without the need for making a formal condition, this is not always so. Should a man sell his clothes in order to make aliya, even if he declares that this is his intention, he will not be able to subsequently nullify the sale when he changes his mind unless he had made a formal condition that the sale is totally dependent on his making aliya.
The reason for this difference is that -- while it is normal for one to sell his property when making aliya, and his verbal declaration that this is the purpose of the sale is therefore an effective clarification of his true intention -- it is not normal for one to sell his clothes in order to make aliya, and therefore nothing short of a formal condition can serve as grounds for nullification.
There are situations, concludes Tosefot, in which even a verbal clarification is not necessary, because the circumstances themselves are a clear indication. One example is found in an earlier gemara (Ketubot 79a) about a widow who wished to divest herself of property when entering a second marriage so that her new husband would not gain control of it. She wrote a document transferring ownership to her daughter from the first marriage. Her intention was obviously that should this new marriage end, the property would revert back to her. When this in fact happened, the daughter attempted to claim the property as hers. Rabbi Nachman, however, dismissed her claim because the circumstances so clearly indicated that the gift had been a conditional one.