YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
*********************************************************

YHE-HALAKHA: TOPICS IN HALAKHA

The htm version of this shiur is available for easy printing at: http://vbm-torah.org/archive/halak65/13halak.htm

SHIUR #13: "For to me the children of Israel are Servants"

By Rav Binyamin Tabory

	In Parashat Mishpatim, the Torah records the principal laws taught to the Jewish people following the giving of the Torah. The discussion opens with the laws relating to a Hebrew slave. The Ramban asks why it is that that the Torah begins its exposition of the law with the laws governing a Hebrew slave. He answers that these laws contain many exceedingly important principles, first and foremost, remembering the exodus from Egypt. In Egypt, the Israelites were a nation of slaves, and it falls upon us to remember our bondage and the redemption therefrom, and approach the laws of the Hebrew slave with that awareness.

	In light of the aforementioned biblical passage and the principles contained therein, there arises an interesting question: Is a person permitted to voluntarily sell himself into any type of servitude?

Different levels of servitude

	We know that a Hebrew slave receives his freedom after serving his master for six years. In the event that the slave does not wish to be set free after the six years of servitude are concluded, he must go through a ceremonial rite involving the piercing of his ear, after which he remains a slave until the Jubilee year. What is the reason for piercing his ear? Rashi explains in Shemot 21:6 as follows:

What is the reason that the ear had to be pierced rather than any other limb of the [slave's] body? Rabban Yochanan ben Zakkai said: That ear which heard on Mount Sinai (Shemot 20:13): "You shall not steal" and yet its owner went and stole [and was therefore sold as a slave], let it be pierced.

Rashi understands the piercing of the slave's ear as a punishment for the act of theft that led to his being sold into slavery. This explanation raises a difficulty, for surely that theft took place six years prior to the piercing. Why then should we punish him only now, after the slave has expressed his intention to remain in his current situation of servitude? The explanation seems to be that a person who steals deserves to be punished with the loss of his freedom. If the slave declares at the end of his six years of servitude that he likes being a slave, it retroactively becomes clear that for him the denial of his freedom was not a punishment. He must, therefore, receive another punishment, the piercing of his ear.

	This explanation is satisfactory with respect to a slave who was sold into slavery by the court when he did not have the means to make restitution for his theft. However, even a person who sold himself into slavery because of his poverty, if he refuses to be set free at the end of six years, must undergo the piercing ceremony. Why is the ear of such a slave pierced? Rashi continues with the following:

In the case of one who sold himself [from poverty], the reason is: That ear which heard on Mount Sinai what I said: "For to Me the children of Israel are servants" (Vayikra 25:55), and yet its owner went and procured for himself another master - let it be pierced.

This explanation leads to a question similar to the one raised above: Surely this slave waived his freedom at the beginning of his period of servitude, and not at the end of the six year term of slavery. Why, then, should we pierce his ear now? Apparently, the reason is that servitude of more than six years constitutes a more severe problem than servitude of less than six years.

	This idea touches upon the question that is central to our discussion: If indeed there are different levels of servitude, are there conditions under which a person is permitted to sell himself into slavery or some other type of servitude?

One who sells himself into slavery

	The Rambam rules in Hilkhot Avadim 1:1:

What is the case of one who voluntarily sells himself into servitude? It is the case of an Israelite to whom Scripture gives permission to sell himself if he becomes exceedingly poor, as it is said: "And if your brother that dwells by you be grown poor and he be sold unto you" (Vayikra 25:39). One is not permitted to sell himself into servitude and lay the money away or buy merchandise or vessels with it or give it to a creditor. He can sell himself only if he needs the money for food and only after he has nothing left in his house, not even a garment.

The Rambam rules that one may not sell himself into slavery unless he has reached a level of poverty that he needs money for food. A person who is burdened with debts, but has sufficient resources so that he is not going hungry, is forbidden to sell himself into slavery.

Why can't a person sell himself into slavery? The main reason seems to be that a person is not regarded as owning his body. Is it conceivable, for example, that a person should be permitted to cut off his hand and give it to another person? Similarly, according to Pesikta de-Rav Kahana, the source for the prohibition of suicide is the verse, "You shall not murder." This means that there is no essential difference between one who kills another person and one who kills himself. All these laws follow from the fact that a person is not master of his own body, for his body belongs to God. For this reason he is forbidden to cause himself bodily injury or commit suicide.

From a purely legal perspective, then, how can a person ever sell himself into slavery, when his body does not belong to him? The Rambam implies that logically speaking, it should not be possible for a person to sell himself as a slave, but the Torah decreed that this is indeed possible (Vayikra 25:39):

And if your brother that dwells by you be grown poor and he be sold unto you, you shall not compel him to serve as a bondsman.

The Torah teaches here that a person who has reached the point that he is hungry for food, is permitted to sell himself into slavery.

A person who sells himself into slavery when such a sale is forbidden

	What then is the law regarding a person who sold himself into slavery when he was forbidden to do so? Is the sale valid in such a case, or perhaps not?

Simple logic would seem to dictate that the sale is not valid. The Minchat Chinukh in mitzva 52 understands that according to the Rambam, the sale is not valid (though it should be noted that the Rambam does not deal explicitly with a person who sold himself into slavery when such a sale was forbidden). The Acharonim note, however, that there is a Tosefta that appears to imply just the opposite (Arakhin 5:3):

A person is not permitted to sell himself and put [the money] in his money-bag or use the money to purchase an animal, utensils, or slaves, or to raise small cattle, or even to do business, unless he has become impoverished. But if he sold [himself], the sale is valid.

	What is the Tosefta's reason for saying that the sale is valid? Perhaps, had the Torah not said that in certain situations a person can sell himself into slavery, the sale would not be valid. But after the Torah said that such a sale can be executed, two new laws are implied: First, when a person sells himself into slavery, the sale is valid; and second, such a sale is forbidden, unless it is executed under certain specified conditions. Therefore, if a person sells himself into slavery when these conditions are not met, he violates a prohibition, but legally speaking, the sale is valid.[1]

The Rationale for the Prohibition

	Why is a person forbidden to sell himself into slavery? One possible explanation is that man's spiritual status diminishes when he is sold into slavery, and one is forbidden to lower his spiritual status. The fact that a Hebrew slave is permitted to marry a Canaanite maidservant teaches that his spiritual status is indeed diminished.

	The Gemara, however, seems to state explicitly that a person who sells himself into slavery is not permitted to marry a Canaanite maidservant (Kiddushin 14b):

If he sells himself, his master is not entitled to give him a Canaanite maidservant [as a wife]. If he was sold by the court, his master is entitled to give him a Canaanite maidservant [as a wife].

The Ritva, however, notes with respect to a person who sold himself into slavery, that while his master is not entitled to give him a Canaanite woman as a wife, he himself is permitted to marry her. This teaches us that the slave's spiritual status has declined. Further proof of his diminished spiritual status may be adduced from the fact that he requires a writ of emancipation in order to go free.

	According to the other Rishonim, who disagree with Ritva and maintain that a person who sells himself into slavery is not permitted to marry a Canaanite maidservant, we can point to additional ramifications of his diminished spiritual status. The Kesef Mishneh (Hilkhot Issurei Mizbe'ach 4:3) writes that a Hebrew slave is not obligated in all of the mitzvot. Though the Mishneh Lemelekh questions whether there is a source for the Kesef Mishneh's position, if we except what he says, then it is clear that a slave's spiritual status is diminished.

	Even if the slave's spiritual status is equal to that of an ordinary freeman, we may suggest another reason why a person may not sell himself into slavery. The Torah states that man is given to the exclusive control of God, and he may not subject himself to anyone else, including another master: "They are My servants - and not servants to servants."[2]

	According to this rationale, a question may be raised as to the law applying to a person who wishes to sell himself into slavery in order to be better able to fulfill mitzvot. It is possible that the prohibition to sell oneself applies only when a person sells himself for some material need, but for a spiritual objective it may be permitted. This question was raised by the Minchat Chinukh, who tries to resolve it on the basis of various different talmudic passages.

A person who sells himself for more than six years

	Let us return to the question which we raised at the beginning of our lecture, regarding a person who wishes to remain a slave even after he has concluded his six years of servitude. If we follow the Minchat Chinukh, who maintains that if a person sells himself when the sale is forbidden the sale is invalid - it is clear that a person who wishes to remain a slave for more than six years does not violate any prohibition: If the sale is permissible, then there is no prohibition whatsoever, and if the sale is forbidden, then his agreement to sell lacks legal force, in which case nothing forbidden has been done. Why, then, do we pierce his ear, when he has not violated any prohibition?

It is possible that a person's proclamation that he does not wish to go free, which testifies that he has no interest in his liberty, is itself a sin, for which his ear is pierced.

If we do not accept the Minchat Chinukh's premise - but instead we say that if a person sold himself into slavery when such a sale is forbidden, the sale is nevertheless valid - it stands to reason that if a person was a slave for six years, and still wishes to continue to be a slave - his transgression becomes more severe, and therefore his ear is pierced.

A person who hires himself out as a worker or contractor

	We have seen, then, that a person is forbidden to sell himself into slavery. Is he permitted to hire himself out as a worker or contractor?

	Let us first clarify the difference between a worker (po'el) and a contractor (kablan). The simple distinction between the two is that the worker receives his wages according to the hours that he puts into the work, whereas the contractor receives his pay according to the work done, regardless of the amount of time it took him to complete the task.

	It would seem that there is no problem whatsoever for a person to hire himself out as a contractor, for a contractor does not subjugate himself in any way to his employer. The employer has no control over the way the contractor uses his time; he pays him only for the completed work, and not for the amount of time the contractor invested in it.

Regarding a person who hires himself out as a worker, the main source is a Tosafot in Bava Metzia 10a. The Gemara there states:

Surely Rav said: A worker may retract even in the middle of the day?... As it is written: "For to Me the children of Israel are servants" - they are My servants, and not servants to servants.

What the Gemara means to say is that were the worker unable to retract, i.e., quit, he would be considered a slave, and in that case a person would be forbidden to hire himself out as a worker. He is granted the right to quit in the middle of his work, in order to remove him from the category of slave and place him in the category of worker.

Tosafot (ad loc., s.v. ki li benei yisrael avadim) note:

It seems to me that a person is nevertheless permitted to hire himself out. For only the Hebrew slave - who cannot quit and does not go free before the end of his term without a writ of emancipation - only he violates [the prohibition of] "They are My servants."

Tosafot prove that a worker does not subjugate himself to his employer from the fact that he does not require a writ of emancipation in order to go free. This implies, they argue, that a person is permitted to sell himself as a worker.

	Tosafot Rosh add another element:

Even though this reason implies that a person is forbidden to sell himself as a Hebrew slave, as it follows [from the passage] in Kiddushin, he is, nevertheless, permitted to hire himself out [as a worker], because a sale is different, for [regarding a Hebrew slave] his body is acquired, and he requires a writ of emancipation.

The Tosafot Rosh add another point: In the case of a Hebrew slave - his body is acquired by his master. According to this understanding, it is possible that according to the opinion of the Ra'avad, that the body of a worker is to a certain extent acquired by his employer, a person should be forbidden to  hire himself out as a worker.

	The Shulchan Arukh and the Rema (Choshen Mishpat 333:3) rule as follows:

If a worker started to work, and then quit in the middle of the day, he is permitted to quit. Even if he already received his wages, and he is unable to return the money to his employer, he is permitted to quit, and the money [he received] is a debt. As it is stated: "For to Me the children of Israel are servants" - and not servants to servants.
Rema: And for this reason a worker - even a teacher or a scribe - is forbidden to hire himself out to work permanently in his employer's house for three years.

The Rema adds that a person is forbidden to hire himself out as a worker for three years. From where did he get "three years"?

	A Hebrew slave works for six years, and about him it is stated: "For he has been worth double a hired servant for you" (Devarim 15:18). This implies that a slave is double a hired servant, working twice as much as a hired worker. Therefore, if a slave works six years, then a worker works three years. This explanation fits in well if we assume that a worker is like a slave, the only difference between them being the duration of the servitude. According to the Tosafot, however, we saw that there is a fundamental difference between a worker and a slave: a worker's body is not acquired by his employer and he does not require a writ of emancipation. What then is the reasoning behind the law of three years?

It stands to reason that the problem of slavery is the very subjugation to another person. A worker may not be considered "subjugated" to another person, but when the hire is for an extended period of time - more than three years - it can certainly be regarded as a certain kind of servitude.

the status of a Hebrew slave

	As we have seen, the reason for the severe ruling regarding a Hebrew slave is the fact that his body is acquired. Does the body of the slave really belong to its master? Surely the master cannot sell his slave to another person; thus, the slave's body does not belong to his master. Similarly, the Hebrew slave of a kohen is not permitted to eat teruma, as opposed to the Canaanite slave of a kohen who is regarded as something "bought with money" (Vayikra 22:11) and, therefore, permitted to eat of teruma.

What then is the status of a Hebrew slave? According to Halakha, the slave must be given the same comforts enjoyed by his master. As it says: "For it is good for him by You." This obligation extends to the point that the Tosafot in tractate Kiddushin write that if the master has only one pillow, he must give it to the slave, for he may not sleep with the pillow if the slave lacks the same. The Gemara in Kiddushin (20a) states:      

From here they said: Whoever purchases a Hebrew slave, it is as if he purchased a master for himself.

The status of a slave, from the perspective of the Tannaim, is better than that of a worker, who receives his wages in accordance with the contractual agreement into which he had entered, regardless of the economic situation of the employer. But even though the conditions of a Hebrew slave are far better than those of a worker - the critical point regarding the prohibition to sell oneself into slavery is personal freedom. What a person eats or how he lives makes little difference; the asset most crucial to a person is his feeling of freedom. It is with respect to this feeling of freedom that it was said: "For to Me the children of Israel are My servants" - My servants and not servants to servants.

FOOTNOTES:

[1] One might have thought that the sale should not be valid because of the principle, "Whatever the Torah forbids, if one did it, it has no validity." This principle, however, does not apply when the legal change in status could take effect under specified conditions. And here the person could declare all of his assets ownerless, and thus turn himself into a pauper, in which case the sale would be valid.

[2] Rabbi Meir Simcha of Dvinsk, in his Meshekh Chokhma, offers a homiletical interpretation of the story of Yosef and his brothers based on this idea. Following their father's death, the brothers approached Yosef and said to him: "Behold, we are your servants" (Bereishit 50:18). Yosef answered them: "Fear not, for am I in the place of God"? (v. 19). Yosef tells them that even if wished to do so, he cannot acquire them as slaves, for they are all subject to God alone. 

(Translated by David Strauss)