Miketz | Is It Permissible to Sell Oneself as an Eved Ivri?

          After Yosef accused his brothers of stealing his cup, they protested their innocence and explained that they had returned the money which was found in their pouches.  How, then, would such honest people steal the cup?  Assured of their innocence, they said that if the cup were to be found, the guilty one should be given the death penalty and the rest of the brothers would become slaves.  Yosef answered that indeed the one who is guilty would become a slave and the others would be absolved of guilt. 

Rashi explains that Yosef implied that, although their verdict was just, he would be more lenient than necessary.  The Ramban points out that the brothers' offer obviously implied that there should be a distinction between the actual thief and his brothers.  Presumably, even if one did steal it, the others knew nothing about it.  Why, then, did they all offer to be slaves if the cup were to be found in the possession of one of them?  The Ramban answers that they imposed a fine upon themselves, which was subsequently waived by Yosef.  (See Bereishit 44:7-11, and Rashi and Ramban ad loc.)

          Is a Jew allowed to become a slave either to another Jew or to a non-Jew?  The Torah says (Vayikra 25:42), "Bnei Yisrael are my slaves whom I took out of Egypt; they are not to be sold as slaves."  The Torat Kohanim (ad loc.) says that, "My deed of ownership preceded any sale; they were redeemed from Egypt with the stipulation that they cannot be sold as slaves."  Another interpretation is then offered: "They are not to be sold on an auction block."  There would seem to be a major difference between the two explanations.  According to the first interpretation, Jews may not be sold at all, while the second explanation implies that they may be sold but it must be done in a dignified manner.

          If a Jew stole and has no means to repay his theft, the court (Beit Din) may sell him as a slave (Shemot 22:3).  The Rambam (Hilkhot Avadim 1:3) says that the Beit Din may sell this thief only to a Jew.  However, if one transgressed and sold himself to a non-Jew, the sale is valid, as it says in the Torah explicitly, "or to the stock of a stranger's family" (Vayikra 25:47).  The Minchat Chinukh points out (Mitzva 42) that the Rambam mentioned that the sale is valid only in the case of one selling himself to a non-Jew.  This implies that the Beit Din has the legal right only to sell a thief to a Jew.  After all, the Beit Din does not own another Jew; they may sell only in strict accordance with judical procedure.  Hence, any deviation from the letter of the law would nullify the sale.

          However, there is another type of slave: one who sold himself as a slave.  The Rambam (Hilkhot Avadim 1:1) says, "The eved Ivri (Hebrew slave) referred to in the Torah is a Jew who was sold against his will or one who sold himself voluntarily."  He adds, "If a Jew became totally impoverished, the Torah gave him permission to sell himself."  Why does he need the Torah's permission? Why would there be a prohibition against selling oneself? 

According to the first explanation of the Torat Kohanim, since we are slaves to God himself, we have no ownership of our body, which cannot be sold.  We belong to God, whose deed preceded any sale.  On the other hand, according to the second explanation, why can a Jew not sell himself if he does so in a dignified manner?  Perhaps the prohibition would stem from the fact that by selling oneself, there is an automatic loss of certain mitzvot. 

Rav Yosef Caro (Kesef Mishneh, Hilkhot Isurei Mizbeiach 5:10) states clearly that an eved Ivri is relieved of certain mitzvot.  Although the Mishneh La-melekh and others found this statement puzzling and did not know to which mitzvot he was referring, there may be a number of explanations.  The Rishonim (Kiddushin 14b) discuss whether or not he is allowed to marry a non-Jewish slave.  (One who is sold by the Beit Din is certainly permitted to do so.)  Moreover, in the Talmud Yerushalmi (Berakhot 3:1) it stays that an eved is not required to say Shema.  Presumably, he cannot accept the total yoke of Heaven if he is enslaved to another human being.

          What would happen if one transgressed and sold himself without the permission of the Torah?  If we assume that a Jew is automatically enslaved to God, then even ex post facto, the sale would be invalidated.  This is indeed the position of the Minchat Chinukh (ibid.). However, if the prohibition of selling oneself is due to the reduction of mitzvot caused by the sale, it can be argued that the sale should be valid once performed.  In fact, the Tosefta (Arakhin 5:3) states explicitly that although one may sell himself only if he is indigent, anyone who sold himself under any condition is legally sold.

          The Sefer Ha-Makneh (Kiddushin 14b) disputed this ruling for a different reason.  There is a general ruling of Rava (Temura 4b) that any action which is taken against the Torah's wishes is invalid.  If so, then even if the prohibition is due to the reduction of mitzvot, the sale would be null and void.  However, Professor E. Shochetman ("Ma'ase Ha-Ba Ba-Aveira," Jerusalem: Mossad Ha-Rav Kook, 1981, p.55) has questioned whether this principle applies to sales as well.

          We therefore see that the Beit Din may not sell a Jew to a non-Jew, and one can sell himself only to a Jew and only if his is impoverished.  If he sold himself under any other conditions, the Tosefta says the sale is valid, although the Minchat Chinukh and the Sefer Ha-Makneh disagree.

          Interestingly, after the death of Yaakov, the brothers were nervous that now Yosef would repay them for their treatment of him.  They again offered to become his slaves (Bereishit 50:18). Yosef rejected their offer and said that he is not God.  One may explain somewhat homiletically that Yosef's answer is that we are all slaves to God.  Yosef could not own them, as he is not in the place of God.