Friday, January 24, 2014

Mishpatim -- "Then his wife shall go out with him" -- when did she enter servitude?!

In the beginning of parashat Mishpatim, we see the following law:

ג  אִם-בְּגַפּוֹ יָבֹא, בְּגַפּוֹ יֵצֵא; אִם-בַּעַל אִשָּׁה הוּא, וְיָצְאָה אִשְׁתּוֹ עִמּוֹ.3 If he come in by himself, he shall go out by himself; if he be married, then his wife shall go out with him.
ד  אִם-אֲדֹנָיו יִתֶּן-לוֹ אִשָּׁה, וְיָלְדָה-לוֹ בָנִים אוֹ בָנוֹת--הָאִשָּׁה וִילָדֶיהָ, תִּהְיֶה לַאדֹנֶיהָ, וְהוּא, יֵצֵא בְגַפּוֹ.4 If his master give him a wife, and she bear him sons or daughters; the wife and her children shall be her master's, and he shall go out by himself.

What does it mean that his wife goes out with him? When did she go into servitude? According to established halacha only a minor girl can be a maidservant. Thus the (perhaps midrashic) explanation that this means that the master is obligated in her support during the duration.

To bolster the idea, I would note that the function of pasuk 3 is as the general principle spelled out in more detail in pasuk 4. That is, there is a different type of wife his master may give him, namely a slavewoman. Such a woman is not his real wife but just functions as a breeder for permanent slaves. And so he must leave this wife, and by explicit extension, his children, to his master. However, if he comes in to servitude with a wife already, any children born to him during this duration are his own and are not slaves. And his wife is obviously his wife.

It is still not absolutely precise, since it gives the implication that in the duration of his servitude, his wife has the status of slave. But it might be argued that it is precise enough to convey the intended point. That she doesn't leave him, but is part of the eved's household, during which she gets support, and so she accompanies him as would be entirely expected.

If so, the midrash might be argued to be the peshat as well.

Shadal takes a different tack towards peshat and derash, and Written Law and Oral Law, and writes:

"If he be the husband of a wife -- according to the peshat, his wife also comes with him into the household of the master, and works in the house. And this would be correct regarding one who sells himself, for he is able to be sold together with his wife. However, according to the position of Rashi and some of Chazal, who explained this parasha regarding one [a thief] who was sold by Bet Din, it is not correct that the wife should be sold for the sin of her husband who stole. And therefore they said "now who brought her in that she should go out? Rather Scriptures is informing that one who acquires a Hebrew servant is required in sustaining the fellow's wife and children." And all this is to increase to trait of chessed and rachamim in Israel.

And also regarding one who sold himself, the Chachamim [J: rather than by Biblical fiat] did not permit that the woman comes to the household of the master, but rather they required the master to support her and her children, while she stayed in her own home, with her handiwork for herself and not for the master -- so rules the Rambam. (However according to the Ramban the master takes the handiwork of the wife and children, yet she is still is in her own home and does not come to his house to work his work.)

And therefore, upon the pasuk (Vayikra 25:41):
מא  וְיָצָא, מֵעִמָּךְ--הוּא, וּבָנָיו עִמּוֹ; וְשָׁב, אֶל-מִשְׁפַּחְתּוֹ, וְאֶל-אֲחֻזַּת אֲבֹתָיו, יָשׁוּב.41 Then shall he go out from thee, he and his children with him, and shall return unto his own family, and unto the possession of his fathers shall he return.

which without a doubt speaks about one who sells himself because of his poverty, Rabbi Shimon said (and Rashi brings him down) that "if he be sold, who sold his children?!" However, the Torah, just as it permits a father to sell his minor daughter, so too permits that he sells himself together with his wife and minor children.

And behold it is known that in days of old the father was ruler upon the members of his household and their lives were in his hand (as is apparent from the words of Yehuda, "Take her out and burn her!"). And the Torah cancelled from him this rulership and did not permit the death of the Ben Sorer UMoreh except via the decree of the judges. And so too the sale of the wife and chldren, the Written Torah permitted it, and it was forbidden in the Oral Torah. And further they added (Kiddushin daf 20) that the master cannot assign him a Canaanite maidservant [to procreate with to produce more slaves] unless he already has a wife and children, and this (like the words of my student Moshe Kohen Porto) is because it is not fitting that he father slaves for his master prior to his fulfilling the mitzvah of piryah verivyah and produce children to establish his name in Israel."

An interesting approach, in which Oral Law, or perhaps Rabbinic law, functions as a series of further ordinances and reforms on top of the Written Law, extended ideas, values and approaches already present in the Written Law. Perhaps as society progressed?

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