Tuesday, February 17, 2009

When you purchase a Hebrew slave (rc)

Mishpatim running commentary, first pass, pt ii

ב כִּי תִקְנֶה עֶבֶד עִבְרִי, שֵׁשׁ שָׁנִים יַעֲבֹד; וּבַשְּׁבִעִת--יֵצֵא לַחָפְשִׁי, חִנָּם

כִּי תִקְנֶה -- the Torah here does not make a distinction between a mocher atzmo and machruhu bet din, as the focus is on the purchasing, and thus the purchaser. Rashi contrasts different legal sections on slaves, and assumes that each must be talking about a unique case, such that since the other section explicitly states a case of poverty, this must be machruhu bet din of the case of the thief we find mentioned in passing later in Mishpatim. This legal analysis can even be called a peshat analysis, and also can be correct, and halacha. But here we state that this is not immediately apparent on the surface level, and so we will not explicitly assume otherwise. (In Kiddushin 14b, we see that Rabbi Eleazar, or perhaps it is Rabbi Eliezer, maintains via a gezera shava that these laws apply equally to one who sells himself or is sold by bet Din.) Now I see Shadal says the same as peshat.

עֶבֶד -- the context, in the narrative section, is that the Israelites have just left a lengthy slavery in Egypt. From an emotional standpoint, how could they turn around an immediately issue laws allowing for slavery?

The answer is that not all slavery is created equally. Indeed, they left Egypt to serve (עבד) Hashem. And they did not sell themselves into slavery in Egypt, but it was imposed upon them. And the Egyptians worked their slaves extremely hard, such that the slavery was bitter. And it was without end.

Slavery, especially in the ancient world, had a purpose. If people ran out of money, they could starve to death, or they could suffer extreme hunger. They could hire themselves out as day laborers, but this did not guarantee the employer a steady source of work, and the pay might not be enough to support a family. This present "slavery" is for a bounded period of time -- six years -- and the master supports the servant as well as, it would seem, the servant's family.

See Ramban who associates this law of going free after 6 years with Devarim 15:15, וזכרת כי עבד היית בארץ מצרים ויפדך ה' אלוהיך על כן אנכי מצווך את הדבר הזה היום, in the context of haanek taanek. Slavery, even of your fellow Israelite, is possible and serves a purpose, but there are limits and rights, informed by this experience our people had in the land of Egypt.

While it is a separate section, the same underlying theme and motivation occurs in Vayikra -- לֹא-תַעֲבֹד בּוֹ, עֲבֹדַת עָבֶד. And also כְּשָׂכִיר כְּתוֹשָׁב יִהְיֶה עִמָּךְ.

This entire section is about the competing values of the property rights of the master, such that he can see a return on his investment, on the one hand, and the safeguarding of the rights and humanity of your brother Israelite who became a slave, on the other.

עִבְרִי -- this means Hebrew, and thus Israelite. Some try to connect this to Hapiru, and to a social class. See how Ivri is often used to refer to slaves:
וַתִּקְרָא לְאַנְשֵׁי בֵיתָהּ, וַתֹּאמֶר לָהֶם לֵאמֹר, רְאוּ הֵבִיא לָנוּ אִישׁ עִבְרִי, לְצַחֶק בָּנוּ: בָּא אֵלַי לִשְׁכַּב עִמִּי, וָאֶקְרָא בְּקוֹל גָּדוֹל.
וְשָׁם אִתָּנוּ נַעַר עִבְרִי, עֶבֶד לְשַׂר הַטַּבָּחִים, וַנְּסַפֶּר-לוֹ, וַיִּפְתָּר-לָנוּ אֶת-חֲלֹמֹתֵינוּ: אִישׁ כַּחֲלֹמוֹ, פָּתָר.
וַיָּשִׂימוּ לוֹ לְבַדּוֹ, וְלָהֶם לְבַדָּם; וְלַמִּצְרִים הָאֹכְלִים אִתּוֹ, לְבַדָּם--כִּי לֹא יוּכְלוּן הַמִּצְרִים לֶאֱכֹל אֶת-הָעִבְרִים לֶחֶם, כִּי-תוֹעֵבָה הִוא לְמִצְרָיִם.
וַיְהִי בַּיָּמִים הָהֵם, וַיִּגְדַּל מֹשֶׁה וַיֵּצֵא אֶל-אֶחָיו, וַיַּרְא, בְּסִבְלֹתָם; וַיַּרְא אִישׁ מִצְרִי, מַכֶּה אִישׁ-עִבְרִי מֵאֶחָיו.
כִּי תִקְנֶה עֶבֶד עִבְרִי, שֵׁשׁ שָׁנִים יַעֲבֹד; וּבַשְּׁבִעִת--יֵצֵא לַחָפְשִׁי, חִנָּם
but that can well be because they were Hebrews and the period was one of servitude. See Yonah state:
וַיֹּאמֶר אֲלֵיהֶם, עִבְרִי אָנֹכִי; וְאֶת-יְהוָה אֱלֹהֵי הַשָּׁמַיִם, אֲנִי יָרֵא, אֲשֶׁר-עָשָׂה אֶת-הַיָּם, וְאֶת-הַיַּבָּשָׁה.
and see how Yosef himself calls it the Eretz HaIvrim:
כִּי-גֻנֹּב גֻּנַּבְתִּי, מֵאֶרֶץ הָעִבְרִים; וְגַם-פֹּה לֹא-עָשִׂיתִי מְאוּמָה, כִּי-שָׂמוּ אֹתִי בַּבּוֹר.

How Ivri means this, I don't care. People have suggestions of descendants from Ever, or Ever HaYarden. The point is that there is a feeling of brotherhood here, and he has special rights within the fraternity of Israelite society.

שֵׁשׁ שָׁנִים יַעֲבֹד -- thus this is a limited term engagement.

וּבַשְּׁבִעִת -- as Rashbam makes clear, שביעית למכירתו ולא שביעית לשמטה. This means that it will always be six years, as opposed to a maximum of six years, depending on when shemitta falls out. Too bad, as we might have had an easier time harmonizing this local legal section with Vayikra 25, which has him go free at Yovel, implying only at Yovel. Except of course that looking at that section in Vayikra, it is "obsessed" with Yovel and how it intersects with all sorts of laws, including buying houses, and fields. As such, it might only treat it from the Yovel perspective, but other limitations could apply.

Can he sell himself for longer, and would this be legally effective? This might be an example of a fixed time, and a recommendation? Pashut peshat would suggest otherwise, that this is a maximum.

לַחָפְשִׁי -- not as a social class; rather, it means out to freedom.

חִנָּם -- you should not think that the initial sale price was selling his body to the master permanently, such that at the termination of the period of servitude, whenever it may be, he must buy himself back for full price. Rather, since he serves for this fixed amount of time, he is effectively hiring himself out as a hired laborer for these six years, and at the end of this time, he has paid off his debt with his labor.

Also, he goes out free, but if he wants any assigned wife or any children to go out, he must pay for them. That is why this is necessary to mention -- for the contrast.

ג אִם-בְּגַפּוֹ יָבֹא, בְּגַפּוֹ יֵצֵא; אִם-בַּעַל אִשָּׁה הוּא, וְיָצְאָה אִשְׁתּוֹ עִמּוֹ.

אִם-בְּגַפּוֹ יָבֹא -- this pasuk is a heading, and easy mnemonic, for the law in 4-6.

וְיָצְאָה אִשְׁתּוֹ עִמּוֹ -- this does not mean that his wife becomes a slave with him. Rather, the focus is really on the first part of the pasuk.

When an Israelite man goes into slavery, his master may make use of him in various ways. One such way is to produce more slaves for himself. But there is an emotional connection which might develop between the Israelite slave and the slave-girl the master gives him, and between the Israelite slave and any children he might have. How does one balance these competing claims?

The answer is that the only one who automatically "goes out" to freedom accompanied by his wife is the Israelite who had his wife with him initially. She and any children is supported and housed by the master, just as the slave is. This does not mean that she is forced to work. And halacha does not recognize adult married maidservants, however we might understand Vayikra 25 on a peshat level (and indeed, one may understand it that way, like Chazal). If somehow she were forced to work, she would still go out with him. The focus, though, is on what he cannot do, and who does not go out free without any payment.

If his wife went in with him, the clear implication is also that any children would also belong to him and not to his master.

ד אִם-אֲדֹנָיו יִתֶּן-לוֹ אִשָּׁה, וְיָלְדָה-לוֹ בָנִים אוֹ בָנוֹת--הָאִשָּׁה וִילָדֶיהָ, תִּהְיֶה לַאדֹנֶיהָ, וְהוּא, יֵצֵא בְגַפּוֹ.

אִם-אֲדֹנָיו יִתֶּן-לוֹ אִשָּׁה -- this would seem to be a Canaative maidservant. It is difficult to prove about the children, but perhaps we can consider it from the perspective of the woman assigned to this Israelite slave.

The next section is וְכִי-יִמְכֹּר אִישׁ אֶת-בִּתּוֹ לְאָמָה, where based on context, and the protections offered, we are talking about an Israelite man selling his Israelite daughter into this servitude. Part of these protections appear to be that this is not a sexual servitude. He cannot even sell her, for working and perhaps for marriage, leAm nochri. Only the master or his son (and perhaps other family members) can marry her, and in such an instance that they do marry her, she is no longer a servant, but a free woman with all the rights any other wife has. I cannot imagine in the context of these protections that the master would be able to assign her to sleep with one of his Hebrew slaves. It must be someone without this special status and protections, and that would then be the Shifcha Kenaanit.

וְהוּא, יֵצֵא בְגַפּוֹ -- because from a monetary standpoint, this woman is owned by his master and these children as yelid bayit, and belong to his master. Only he goes free without money.

From a legal perspective, maybe there is no family unit, and he might cavelierly walk away. However, it is cruel to break a family apart, assuming they formed a family bond. And so he can perhaps purchase them, or purchase their freedom. If he was poor enough to sell himself or be sold into slavery, he likely does not have such funds. Therefore,

ה וְאִם-אָמֹר יֹאמַר, הָעֶבֶד, אָהַבְתִּי אֶת-אֲדֹנִי, אֶת-אִשְׁתִּי וְאֶת-בָּנָי; לֹא אֵצֵא, חָפְשִׁי

וְאִם-אָמֹר יֹאמַר, הָעֶבֶד -- even though it was a servitude for a fixed period of time, it can be extended. But this is at the discretion of the Israelite slave, not (it would seem) the choice of the master. On the other hand, can we force a master to accept a perpetual servant? Perhaps not, and it is only if the position is offered. Either way, the emphasis on this pasuk is that there is this option available to the slave, and he can choose it or not choose it. And thus he is not sold into perpetual slavery, as per pasuk 2.

אָהַבְתִּי אֶת-אֲדֹנִי -- no one would choose slavery just because of personal affection for his master. The import here is that his master was a good employer and did not mistreat him, such that he is willing to continue on as a slave, given the benefit of being able to remain with his family.

אֶת-אִשְׁתִּי וְאֶת-בָּנָי -- they are primary.

It would be a tremendous betrayal to subsequently sell the wife or the children as slaves to another person, but from a legal standpoint, this could well be possible.

ו וְהִגִּישׁוֹ אֲדֹנָיו, אֶל-הָאֱלֹהִים, וְהִגִּישׁוֹ אֶל-הַדֶּלֶת, אוֹ אֶל-הַמְּזוּזָה; וְרָצַע אֲדֹנָיו אֶת-אָזְנוֹ בַּמַּרְצֵעַ, וַעֲבָדוֹ לְעֹלָם

אֶל-הָאֱלֹהִים -- some modern scholars understand this, particularly with the definite article, as house-gods -- stored by the door -- and a carry-over from pre-monotheistic law. I would understand this as bringing in law into the picture to witness and certify this. Whether this means Hashem as Urim veTumim or Navi as early source for law, and by extension judges, or whether this word Elohim can mean judges (there is a big discussion about this), or whether it means something else, it does not matter to me. This is a method of granting legal force, legitimacy, and permanance to the proceedings -- to notarize it.

וְהִגִּישׁוֹ אֶל-הַדֶּלֶת -- as he now will be attached to the household.

וְרָצַע אֲדֹנָיו אֶת-אָזְנוֹ בַּמַּרְצֵעַ -- this is not necessarily a means of dissuading him, or a means of punishment for not listening to ki Li benei Yisrael avadim. Rather, this is a physical slave-mark, denoting his change in status and making him recognizable as such to others.

וַעֲבָדוֹ לְעֹלָם -- from the perspective of the local sugya, forever. This is good, because he gets to stay permanantly with his family.

Now, this may intersect with non-local sugyas, such as in Vayikra 25, where a slave goes out at Yovel. One may answer that these different sugyas are contradictory; or that that sugya was discussing a regular eved ivri but not an eved nirtza; or that leOlam means "for a time." Thus, Ibn Ezra:
ועבדו לעלם -
ידענו כי מלת לעולם בלשון הקודש הוא זמן. כמו: כבר היה לעולמים. זמנים.
וישב שם עד עולם,
עד זמן שיהיה גדול.
וכן: ועבדו לעולם - לזמנו של יובל, שאין זמן מועדי ישראל ארוך ממנו ויציאת חירות כאילו עולם מתחדש, או יהיה פירש שישוב לזמנו הראשון שהיה חפשי
See Rashbam:
לעולם -
לפי הפשט:

כל ימי חייו, כמו שנאמר בשמואל: וישב שם עד עולם.
I would maintain more along the lines of Shadal:
ועבדו לעולם : כמשמעו, אלא שאח"כ נאמרה פרשת היובל ופסלה במקצת מה שנאמר קודם לכן, ע' למעלה ב' ג
I would put it this way. He does serve forever, rather than a fixed time such as six years. Assuming that somehow Yovel were canceled, he would continue to serve. But then this other law comes in and imposes other rules on top of it. Each speaks "as if" the other laws don't exist, but they apply in cascading layers.

Yovel is not a concern, and is not discussed, in this local sugya. The idea is that he gets to stay permanantly with his family, and it is no longer the fixed six-year period.

But then, what happens at Yovel, given the convergence of these laws? He must abandon his family then, if they are not going free!

1 comment:

Anonymous said...

acc to tos in gitin 35 that eved evri isnt talui in mikdash, those avadim that were bsof bayit rishon lchora would be avadim leolam since yovel was then knocked out, ayin sham haitiv

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