Retain a non-Jewish servant
Verse: לעלם בהם תעבדו
Command: Retain a non-Jewish servant.
Vayikra 25:46
Type: Positive
SMG Mitzva # 87
Cross-Ref: {link}
SMG
It is a positive Mitzva to work a ‘Cana’anite’ Servant forever, as it says in the verse[i] לעלם בהם תעבדו. The servant can acquire himself to freedom with
- money,
- a Bill of Emancipation,
- or by losing [at least] the tip of a limb (if the master were to abuse him).
How does he acquire himself using money; for example, if someone were to give the master money and tell him ‘This money is given on condition that the servant goes free’. Once the master accepts the money, the servant is free. Similarly, if someone were to give the servant money conditional on the master having no ownership over that money or [if the money was given on condition], according to Rav Sheshes and Rabbi Eliezer,[ii] [α] that the servant use this money to use the money to become free – then, if the master wants to accept the money, the servant goes free, but if the master does not want to accept, then the money is not acquired – since it was only[1] given on condition that he goes free. In the Yerushalmi [β] we learned that a servant cannot receive a present from his master for himself. But he can receive a present from someone else for someone else, or from someone else for his master.
How does one [free his servant] by document; one writes on paper or on earthenware, ‘you are free’ or ‘you belong to yourself’ and he provides this bill [of emancipation] to the servant in front of two (2) witnesses. Alternatively, if [he had] witnesses sign the document, it can be given to the servant privately and [the servant] is freed – since his Bill of Emancipation and his hand ‘come simultaneously’.[2]
How does one [free his servant] with the [loss] of the tips of limbs; one who intentionally strikes his servant and one of the twenty-four (24)[3] limbs which do not grow back was damaged [to the point where it was severed] the servant goes free. [Nevertheless] he [also] requires[4] a Bill of Emancipation since the Halaĉa follows Rabbi Akiva[iii] when arguing with his colleagues – and the Halaĉa does not follow the deciding [Halaĉic opinions] who state that with regard to losing a tooth or an eye, that the servant need not [receive a Bill of Emancipation] since the Halaĉa is only set according to the deciding opinions in the Mishna, not in the Beraissa[5], as we learnt in the Gemara.[iv] This is also how Rav Alfas ruled. If so, why does the Torah specify teeth and eyes. To teach you that just like teeth and eyes which when damaged the maiming is visible and does not grow back – so too the rule is set for any limb which maiming is visible[6] and does not grow back. However, one who castrates his servant, or cut his tongue, that does not render the servant free according to the sages[v] since they are not exposed blemishes. The same applies to one who knocks out a baby tooth, since a replacement tooth will grow back, the servant is not freed thereby.
The only servants who are freed with the loss of the head of a limb are those who circumcised and immersed [in a Mikva] since they are included in the obligations of the Mitzvos[7]. However, a servant who remains gentile, is not freed by being maimed.
These are the limbs which do not grow back and the maiming of their tips results in freedom:
- The twenty (20) tips of the fingers and toes
- The two (2) tips of the ears
- The tip of the nose
- The tip of the penis
- The two (2) tips of a woman’s[8] breasts.
If the servant’s eye was blinded and was removed, he goes free since he is now missing a limb. The provision of freedom as a result is only in the case where the damaging action was done intentionally, as the verse[vi] says ושחתה –[9] the master must intentionally act. These Halaĉos we’ve mentioned are found in the Gemara[vii].
In the Gemara[viii] we’ve concluded that there are six (6) ways in which the Bill of Emancipation is similar to the Bill of Divorce – but in every other respect, they [the bills of emancipation] are like any other document. They are:
- A Bill prepared in gentile court is not kosher.
- A Cuthi[10] may sign [without rendering it invalid].
- They need to be written for the purpose of the person named.
- They may not be written on material still attached to the ground[11].
- The witnesses must sign in the presence of each other.
- They [the Bill of Emancipation and the Bill of Divorce] are equal in the requirements for ‘taking them and bringing them’.
[the SMG now elaborates a bit]
1) All documents which arise from non-Jewish courts are kosher with the exception of a Bill of Divorce and a Bill of Emancipation.
2) Any document which has the signature of even a single Cuthi witness [γ] is invalid, except for Bills of Divorce and Bills of Emancipation which are Kosher with one Jewish witness and one Cuthi witness, so long as the Cuthi is accepted as someone who can be trusted in this matter. These days, the Cuthians have lost their practices, and they are completely like gentiles – as noted in the Yerushalmi[ix] regarding the Samaritans of Ceasaria who:
came to Rabbi Avahu and asked him why the Jews were no longer buying their wine [the Jews stopped buying the wine as it had become non-Kosher in those days being considered יין נסך.] He answered them that this was because they were ‘ruining their deeds’. [They were no longer the good people as they had been when they were treated as peers to the religious Jews.]
After which point it became permissible to lend them interest bearing loans.
3) With regard to a Bill of Divorce, the verse[x] says וכתב לה – meaning the bill must be written specifically for her. And with regard to a Bill of Emancipation, the verse[xi] says או חפשה לא נתן לה. [the same emphasis is derived from the word לה, that her freedom (by means of a document) must be ‘for her’.]
4) With regard to the Bill of Divorce, the Torah says וכתב, followed later by the statement ונתן which implies, the only thing that needs to be done after writing it is giving it. This excludes writing it on any material still connected to the ground which would have to be harvested. [see discussion on positive Mitzva 50]. And with regard to a Bill of Emancipation, the Torah says לא נתן לה – which means the only thing remaining is giving her the document.
5) And, as explained in the laws of divorce, witnesses may only sign in front of each other. [see positive Mitzva 50]
6) How are they treated the same with regard to ‘taking them and bringing them’ – one who brings a Bill of Emancipation in the land of Israel, does not have to testify that it was written and signed in his presence. Outside the land of Israel, if the witnesses are not available to authenticate the document, and the messenger says ‘it was written and signed in front of me’ then that in itself authenticates it. If thereafter the master comes and raises an objection, we do not pay attention to him – just like with bills of divorce. And just like the woman herself can bring her own bill of divorce and need not have it authenticated – since the document is being produced from her own hand – so to a [former] servant who is producing his own Bill of Emancipation need not have it authenticated.[12]
The Bill of Emancipation must have content which describes the severance of the relationship with the master, and [the content] must not allow for the master to have any rights [associated] with the servant. Therefore, if [the master] writes in the Bill of Emancipation, ‘you and my possessions belong to yourself, except in this location’ or ‘except for a specific garment’ that doesn’t sever [the relationship] and the bill is nullified – and the servant is not freed, nor does he acquire any of the possessions. The same applies in any other similar situation.[13]
In the Gemara[xii] Rabbi Yehoshua ben Levi said, one who sells his servant to a gentile, the servant is freed, and we force the [former] master [the seller] to go back [to the gentile] and pay the gentile off – even up to ten times (10x)[14] the amount of the sale price. And then the [former master] writes a Bill of Emancipation and the servant is free. If the gentile [buyer] does not want to sell the servant back – even at such exorbitant prices, we do not force[15] the [former master] do come up with more money than that.
We also learnt there one who sells his servant from within the land of Israel, to a master outside the land of Israel, the servant automatically goes free, and we force the [would be new] master to write a Bill of Emancipation, and he has lost his money [meaning he can’t claim a refund from the one who sold him the servant]. Why was this penalty instituted only against the buyer – since had he not completed the purchase, the servant would not have been sent outside of the land of Israel.
We’ve stated elsewhere in Gemara[xiii] when one who acquires a servant from non-Jews under a regular transaction, and the acquired servant does not wish to undergo circumcision and accept upon himself the Mitzvos, we deal[16] with him for twelve (12) months, and if he still doesn’t want to, the Jewish master sells him back to non-Jews outside of Israel.[17] If, however, the Jewish master and the non-Jewish slave agreed between themselves, prior to the sale, that he would be bought by the Jewish master on condition that he be allowed to remain a non-Jewish slave to the Jewish master, then that condition is accepted, and he may remain a non-Jewish slave for as long as he wishes. This was also the case when Rav Ami sent the question about a slave who circumcised and immersed for the purposes of becoming a non-Jewish servant, who thereafter [rejected his previous commitments, and] fell back into his non-Jewish ways [the Gemara provides that he ran away to join a foreign legion], and his master is thus unable to expel him either under Jewish law or under non-Jewish law [which allow such slaves to join the army with a don’t-ask-don’t-tell policy] – in such a case, the Jewish master is permitted to accept payment for him from the army, and record the transfer in the non-Jewish courts [δ] [not because he has the right to sell the slave, but because] such payment is money that is saved from their hands.
Shmuel says[xiv] one who renders his servant ownerless, the servant goes free[18] and does not require a Bill of Emancipation. Rabbi Yoĉanan though nevertheless required a Bill of Emancipation be written, and we follow the Halaĉa like Rabbi Yoĉanan when arguing with Shmuel. And we’ve concluded in the Gemara that one who buys a servant from a non-Jew which servant jumps in unilaterally in front of the master [ε] and immerses for the sake of becoming free, he is freed thereby. But if he immersed outside the presence of the master, he must specify in advance as to why he is immersing [in order to be freed]. Therefore, [to ensure the servant remains a servant after immersing,] the master must push him under the water [ζ], and after coming out of the water, the master must give him something and instruct him to ‘bring this to my house’. [Which symbolic acts reinforce to everyone that the servant has not chosen to be free.]
A Jew who had sex with a Cana’anite maid servant, even if it was his own maid servant [and therefore the child is his biologically], the child is a Cana’anite [Servant] for all purposes. Similarly, an Israeli gentile or a gentile who is from a vassal state, or a regular gentile – [any of these] may sell themselves to a Jew as a servant and is treated as a Cana’anite Servant in all matters. He may also sell his children, male and female, as it says in the verse[xv] מהם תקנו וממשפחתם אשר עמהם וגו’ [19] each of these are like a Cana’anite Servant in all matters[20].
We learnt[21] in the Gemara[xvi] one of the gentiles who had sex with one of our Cana’anite Maid Servants, the child is a Cana’anite Servant, as the verse[xvii] [included them] in stating אשר הולידו בארצכם. However, one of our [Cana’anite] Servants who had sex with a [free] gentile, the child is not a servant or slave [at all]. Reish Lakish said[xviii] a gentile, who acquires another gentile for servitude [η] [what we call in modern vernacular – an employee] has not acquired the body of the servant, but only the product of his work. [#] Nevertheless, if he [the gentile employer] sold his employee to a Jewish master, the Jewish master does acquire the body of the servant [so long as the servant does not immerse to convert or become a עבד כנעני].[22]
One is permitted to require the Cana’anite Servant to work excessively, nevertheless, it is an attribute of piety to be merciful and not increase the workload on a servant. One may not abuse the servant, neither physically nor verbally, nor embarrass him. The Torah provided him [to the master] for servitude and not for embarrassment. One must speak with him pleasantly even during times of stress and listen to his complaints. As Iyov stated in the verse[xix] אם אמאס משפט עבדי ואמתי, ברבם עמדי… הלא בבטן עשני עשהו ויכוננו ברחם אחד. The original[23] sages would provide the servant from each and every dish that they [themselves] would eat as was stated in the Gemara.[xx] One gives preference to feeding their animals and servants over setting a meal for themselves, [θ] as it says in the verse[xxi] כעיני עבדים אל יד אדוניהם כעיני שפחה אל יד גברתה.[24] And we’ve learnt in the Yerushalmi[xxii] Rabbi Yochanan ate קופר and gave some to his servant. He drank wine and gave some to his servant. He referred to his servant based on the verse הלא בבטן עשני עשהו etc. קופר means meat.[25]
Rav Yehuda said[xxiii] ‘anyone who frees his servant violates a positive Mitzva’ – we’ve already[xxiv] explained that one is permitted to free him for the purpose of a Mitzva, and in fact we find with Rabbi Elazar who went to the Shul and found there were insufficient people for a Minyan, so he freed his servant to have him make up the missing individual. The same applies for a maidservant whom people are treating freely (promiscuously) we force the master to free her and remove the risk and hazard from our people.[26]
[1] According to Rav Sheshes and Rabbi Eliezer, the money was given conditionally so that the slave goes free. If the condition is not met, then the money is not given.
[2] See the Amuday Shlomo
The SMG is preempting the answer to the question, how is possible for the servant to acquire the physical Bill of Emancipation, since everything that comes to the servant’s hand belongs to the master. As noted further and previously when a person gives the servant money to free himself, this doesn’t mean that the servant can’t acquire anything [because if it did mean that then anything given to the servant would still belong to the giver – which is ludicrous. How would the servant go shopping of the master?], instead it means that as he acquires it, the ownership is then transferred to his master. In this case, since the acquisition of the Bill of Emancipation contains the provision of self-ownership, the ownership doesn’t continue to be passed on to the master, but rather provides the servant [former] with ownership of his own hands as well – which then retain ownership of the Bill of Emancipation.
[3] As noted in the listing provided below, a maid servant has twenty-five (25) limbs, since the tip of the penis is excluded, but is replaced with the tips of her two (2) breasts. I haven’t come across the following but presumably the woman’s clitoris, and perhaps even the hood, would be equivalent to a man’s penis [and possibly the breaking of the hymen as well], the severance of which would entitle the woman to freedom.
[4] Unclear from the SMG if this requirement is procedural in nature so that the servant can prove that he is a free man, or if it required to set the servant free. Presumably the SMG is of the opinion that it is only procedural since the SMG previously notes there are three (3) methods to set a servant free – and if after being maimed he was not free unless and until he received the Bill of Emancipation, then that would mean there are only two ways to free him. Granted maiming allows the servant to require he get the Bill of Emancipation, but that would mean maiming is a trigger and cause for the writing of the Bill of Emancipation, not a means by which he is freed.
The alternative to the presumed position of the SMG is that the Torah clearly states לחפשי ישלחנו when talking about maiming – which implies that he must engage in the process of sending the servant free, not that he is automatically free. A mild proof for this is the similarity in terminology to the bill of divorce, where the Torah describes the husband sending the wife away – and yet is still required to write a bill of divorce.
[5] Meaning, in editing the Mishna, Rabbi Yehuda Hanassi took care to follow rules on how the format the Mishna, one of which was that when noting various opinions, the Halaĉa would follow the deciding opinion. The Beraissas though were not formulated with the same consistency because they were not widely disseminated.
[6] Presumably, the Gemara doesn’t actually mean ‘visible’, since servants and maid servants do not typically walk around naked that one would see them missing the tips of their penises or breasts. Instead, it must mean that the damage is on the exterior of the body. This of course calls into question teeth which are somewhat on the interior of the body. Accordingly, we need to adjust our understanding of what the Gemara means by ‘visible’ to mean something which could be seen when examining the body from the exterior.
[7] And it is the Torah that provides the emancipation of a servant who was physically maimed. A non-Jewish slave, or a servant who has not yet (during the twelve (12) months the Jewish master is allowed to keep him before being required to send him off) agreed to undergo the conversion process though is not subject to those Mitzvos and therefore doesn’t receive the benefit thereof.
[8] Even though the male also has nipples, and with the right circumstances / hormones can also produce milk [there’s a well-known Midrash that Mordechai nursed his niece Ester when her parents passed away] (see also Galactorrhea in the adolescent by R.D. Rohn 1984) the loss of such is not considered maiming since those are generally not of use to the person and thus would not be considered damage.
[9] The term שחת was first used in the Torah [Beraishis 6:11-13] describing the destructive intentions of Hashem before the flood. Therefore, this term means intentional destruction as set by the precedent of the actions Hashem took in making the flood and destroying his creations.
[10] Who were the Cuthians? See Appendix I for a discussion on the various peoples who assimilated into the Jewish people.
[11] For example, on the bark of tree when still attached to the tree.
[12] This statement is probably the strongest evidence against those who would compare the vile practice of slavery to the Jewish laws of servitude. Under Jewish law, a [former] servant need not authenticate his bill of divorce! Compared to the historical practice – at least among Americans – of recapturing freed slaves and dragging them back to their southern masters. Not only does our Torah forbid this but doesn’t even require the servant to authenticate his Bill of Emancipation. And we don’t listen to a former master who makes claims to the contrary.
[13] There’s a famous story of a wealthy man who had one son, but that son lived overseas or was otherwise not able to be present when the wealthy man was dying. So, before dying, the wealthy many wrote a will inclusive of a Bill of Emancipation. The note provided the entire estate to belong to the servant who was also to be freed by means of this will / Bill of Emancipation. But the wealthy man added only one stipulation, that when the son came back home, he would be allowed to take anything he wanted from his father’s possessions as a heirloom.
After he passed away, the servant took over the estate and zealously worked hard at maintaining it and even growing the wealth he now owned.
Time went by, and the son was notified of his father’s passing. He went back home to deal with the estate, and upon arriving there was shocked to learn everything belonged to the servant, leaving him penniless. Feeling bad for him, the servant told him of the stipulation and invited the son to take anything he wanted.
Distraught and not knowing what to do, the son went to the local Rabbi and asked for his advice. The Rabbi happily told him that all was well, and that his father had done what needed to be done in order to protect the estate from the servant who would otherwise have been tempted to steal everything and run away. All the son needed to do was to go back and take ownership of the servant himself, and the entire estate would revert to the ownership of the son, since ‘whatever the servant acquires, the master acquires’.
The same applies in the case brought by the SMG, when gifting the items to the servant, ‘with the exception of’ it is not that the document is invalid. Rather the servant does acquire everything given to him – but since he is a servant, everything he acquires belongs to the master. The effect of course is that the servant hasn’t acquired anything.
[14] There is a discussion in the Gemara if the ten times is an exact calculation or just an exaggeration meant to indicate that one is required to spend exorbitant amounts to redeem the servant sold wrongfully. The Gemara compares this to a similar statement by Reish Lakish in which an animal is the one being sold. With regards to both statements, it is unclear if the amount stated by those sages was ten times or one hundred times. Accordingly, the SMG is taking the lesser opinion since the Gemara itself wasn’t clear both what the actual statement by Rabbi Yehoshua ben Levi was and whether that statement was meant to serve as an exact limit or an expression indicating a lot.
[15] Since if the gentile refuses to sell even at a markup of 1000% then the gentile is not engaging in commerce but is instead holding the servant hostage. And we have a rule that when hostages are taken, we do not pay ransom more than reasonable since doing so would only encourage more kidnapping.
This doesn’t mean the seller is relieved from his obligation to free the servant, it only means the courts do not force him to come up with more money.
Furthermore, since the servant is freed by the act of being sold to a gentile, and the Bill of Emancipation is needed to formalize it only, he is now a full-fledged Jew, and the entire people of Israel are obligated to free him – as it says in the verse [Vayikra 25:48] אחרי נמכר גאולה תהיה לו, אחד מאחיו יגאלנו.
[16] Meaning the master has the right to try to verbally convince him to do so.
[17] The reason the master is allowed to do this is because the servant has not agreed to be bound by the laws of the Torah, accordingly, he is thus bound by his own laws, which allow him to be sold back into slavery to a non-Jew.
[18] Based on the term in the verse [Shemos 12:44] עבד איש – implying that in order to be a servant, one master have a human master. Therefore, when made ownerless, he has been rendered a non-servant, and thus doesn’t require a Bill of Emancipation, because there is no servitude to emancipate the servant from.
[19] Why doesn’t the SMG complete the verse? Perhaps because there is a difference between those born in Israel and those who are purchased outside of Israel.
[20] In matters of how they must be treated, and compensation for loss of limb, and ability to dictate their mating and the ability to keep their offspring born while in servitude when born to a maid provided by the master.
[21] When Ravin came from the land of Israel to Babylon, he stated the following rule in the name of Rabbi Yoĉanan: Gentile lineage follows the patriarchal line. Once converted [to Judaism], the lineage follows the more defective parent.
The source for the establishment of patriarchal lineage among gentiles is from the verse [Vayikra 25:45] וגם מבני התושבים הגרים עמכם מהם תקנו – which implies that there is a possibility to acquire someone descendent of the Cana’anites as a servant – as opposed to being required to kill them as per positive Mitzva 117 and negative Mitzva 225 – the implication is from the term התושבים, which is a term for a permanent resident. Indicating that the children are from parents who dwell there who are not Jewish and not Cana’anite. As to the assumption that this permanent resident is male and not female, perhaps we can make that determination from the statement by Pharaoh [Shemos 1:22] וכל הבת תחיון – which indicates that the Gentiles do not account for the lineage of the matriarchal line, and thus the women who dwelled in Cana’an may not have known who they were descendants of. This requires more thought.
[22] Which is how the obligation for the Jewish master to provide for the servant kicks in. Otherwise, the Jewish master could simply give the servant a salary and tell him to go deal with supporting himself.
[23] Original sages being Avuha bar Ihi and Minyamin bar Ihi. One of whom would give the servant from everything he ate, and one would only give the servant from every type of thing he ate. Eliyahu would visit one of them [the one who gave to his servant everything], but not the other.
There were two Ĉassidim, some say these were Rav Mari and Rav Pinĉas sons of Rav Ĉisda, one of whom would give the servants their food before the meal, and one who would do so after. The one who gave the servants before the meal would be visited by Eliyahu, but not the other.
[24] I remember, my grandfather who grew up somewhat on a farm told me, the verse in שמע says ונתתי עשב בשדך לבהמתך only after which the verse continues ואכלת ושבעת. He was instructed by his father to always feed the animals before eating breakfast himself.
[25] Our version of the Yerushalmi spells this as קופד, which Jastrow states is short for κοπάδιον which means herd in Greek. Thus, קופד would mean meat from the herd.
The SMG though seems to have had a different version of the Yerushalmi with the word קופר in use. Possibly a scrivener’s error in writing קופד. Jastrow states that קופר could be the same as קופד which modern Hebrew has adopted as a hedgehog, presumably from the Greek. However, it does not seem to be a Greek word, nor is it clear why Rabbi Yoĉanan would eat something that people translate as hedgehog. Κιπερ in Greek was transliterated and adopted by English as Kipper which is a type of fish. I guess this is why the SMG translates the word, since he do not know which language it’s derived from and was being clear that the meaning was meat, not fish.
[26] By freeing her, she is now an unattached free lady and hopefully will be imbued with more self-esteem to avoid being ensnared by attentions that she should otherwise have deemed unwanted. Previously because of her status as a maid servant, she may have felt too downtrodden to protest.
Again, the institution of a Jewish master is to provide the slave or maid servant with a living positive example. A master who fails to do so with his maid servant deserves to have the financial loss associated with being forced to free her, and he is forced to free her because by allowing her to be available to be treated promiscuously, he is not serving as the positive role model he should be and has failed to uphold his obligations as a master.
[i] Vayikra 25:46
[ii] Gem. Kiddushin 23b
[iii] Gem. Kiddushin 24b
[iv] Tosefos אמר Gem. Shabbos 39b
[v] Gem. Kiddushin 25a
[vi] Shemos 21:26
[vii] Gem. Kiddushin 24-25
[viii] Gem. Gittin 10b and on
[ix] Yer. Avoda Zara 5:4
[x] Devarim 24:1
[xi] Vayikra 19:20
[xii] Gem. Gittin 44a
[xiii] Gem. Yevamos 48b
[xiv] Gem. Gittin 38a
[xv] Vayikra 25:45
[xvi] Gem. Kiddushin 67b
[xvii] Vayikra 25:45
[xviii] Gem. Gittin 37b
[xix] Iyov 31:13 & 15
[xx] Gem. Kesuvos 61a
[xxi] Tehillim 123:2
[xxii] Yer. Bava Kama 8:4
[xxiii] Gem. Gittin 38a
[xxiv] Gem. Beraĉos 47b
AMUDAY SHLOMO
[α] the argument between Rav Sheshes and Rabbi Eliezer relates to whom the Halaĉa follows that was previously quoted.
[β] this quote from the Yerushalmi that a servant cannot accept a gift from his master seems to be a mistake, it is obviously [incorrect since if that was the case] even though the servant’s hand is like the master’s hand – would that mean he can’t accept something on behalf of the Master. The opposite in fact is true, and therefore certainly he can accept something for himself.
And even though this was in fact brought in the notes by Maimonides, he must have been carried away. This is in face the language of the Yerushalmi: ‘Obviously a servant can accept a gift from a third party to a third party, and from a third party to his master, and from his master to himself – but as for a gift from a third party to himself, that is the subject of a debate between Rabbi Eliezer and the sages etc.’ [the quoted text continues as laid out] until ‘why do we need to [compare this] to the case of his master giving something to a third party. [Instead], just like the servant can acquire from a third party for his master, so too he can acquire from his master to someone else etc.’ This argument was not determined. Due to the pressures of time, this was written [as it was by the SMG], and this is a bit difficult.
[γ] The Gemara explains that since the Cuthi signed in front of a Jew and with regard to executing Bills of Divorce, the witnesses can only sign in the presence of one another, and therefore, since the [other kosher witness and everyone else present] gave the Bill of Divorce to the Cuthi to sign, that is proof that they considered the Cuthi ‘one-of-us’. This [rule that we can accept one of two signatures as being signed by a Cuthi] doesn’t apply to other documents since we are concerned perhaps there might have been space left [for the Cuthi signature] and the regular witness was coerced into signing and didn’t know that a Cuthi would be the one signing with him.
The Rambam and the SMG did not go into this at length because there is no practical difference according to the conclusion of our [the Babylonian] Gemara since the vote was taken and cast that Cuthians have been established as full fledged gentiles [and therefore their signatures are no longer valid on religious documents].
[δ] even though doing so makes it appear as if the sale was sustained.
[ε] we can’t state [the reason the servant is free] is because the master forgives the debt owed [and set him free], because the Gemara notes the servant did this ‘unilaterally’, and also, [if the reason the servant goes free is because the master forgives the debt and sets him free], then what difference does it make if the immersion was done in the presence of the master or not.
Seemingly, the reason [the servant goes free when he immerses to become a full-fledged Jew rather than a עבד כנעני] is because under Jewish law, Jewish servants are not owned by the master, the master only owns their work product – and when immersing, he [the servant who immersed to become Jewish] entered the category where he cannot be owned by the Jewish master – and therefore, the Jewish master only retains a financial claim against the would-have-been servant. This is a bit difficult.
[ζ] This is also how the Rashbam explained it – this was repeated above [in the prior note by the Maharshal] and explained well.
[η] Meaning, the gentile has acquired a gentile slave and therefore does not require a Bill of Emancipation.[1] Similarly if the gentile slave escapes and runs to the Jewish people to convert, he may marry a Jewish girl [and he is fully Jewish like any other convert].
[θ] Rashi’s statement that providing fodder to animals takes precedence [over feeding oneself] is repeated above[2] and is explained in the Gemara.
[1] Under Torah Law, how is a non-Jewish slave to be freed from a gentile master? Does he even have the right to free himself? Is there such a thing as slavery under Torah law for gentiles? I do not know the answer.
Although… Eliezer is identified as the servant of Avraham… but that was only after being given the first Mitzva – prior to that he is not identified as a servant, but as בן משק ביתי. Hagar too is identified as the maidservant of Sa’rye though, but perhaps that was more like a handmaiden, as she continued to be called a שפחה even after fathering a son with Avrom – and being married to him. Furthermore, she identifies Sa’rye as גברתי which is not the usual term for a master, normal called an אדון.
[2] Unclear where the Maharshal is referring to by stating ‘above’.
RASHI
Rashi on the basis verse notes two comments: that the עבד כנעני is to be held on to in order that they be bequeathed as part of one’s estate. This implies both that one shouldn’t free the עבד כנעני and also that one shouldn’t sell him. He and his descendants thereafter become, for all practical purposes’, permanent retainers to the Jewish household.
Rashi further notes that the prohibition against mistreating a servant is the same as the prohibition applicable to the leader of the Jewish people against mistreating the regular people and the prohibition applicable to a king against mistreating his staff – in that one may not work them excessively. [See negative Mitzva 174] This contradicts the statement by the SMG that one is technically allowed to work a servant excessively but should not do so out of piety.
Presumably Rashi derives the comparison from the words איש באחיו which is what he quotes when writing his comment. Since this is the second time the verse is referring to the topic of the sentence as a brother – ובאחיכם & באחיו – this must include additional people who could normally be excluded by the term אחיו, which is the עבד כנעני.
Discussion by SMS
[#] the Torah does not allow for the modern concept of slavery as practiced throughout the world today. The slave trade is an evil and abhorrent act whose practitioners practice kidnapping at the least in the acquiring of other human beings against their will – a practice which, under Torah law, is punishable by death.
The Torah version of servitude contains only three (3) possibilities:
- A Jew working off his debt to another.
- A Jew who finds himself in such dire financial straits that his only solution is to sell himself to another Jew who will provide for him. This also applies to a father who finds himself unable to sustain his daughter, he too can sell her to another Jew who will either marry her [conditional on her consent when becoming an adult] or support her until she reaches the age of majority.
- A non-Jew who wishes to convert to Judaism but does so by means of a quasi-apprenticeship whereby in exchange for providing the convert with every physical and spiritual need, the convert provides his master / sensei with the value of his daily labor – and, under certain circumstances, progeny to the extent there are any.
There is a fourth possibility which the Torah rejects as a type of servitude.
A person who wishes to work for someone else as opposed to being an entrepreneur or being self-employed. The employee is contracted only for that specific job, and the employer has no right to demand anything else from the employee.
Key
Etymology and Definitions of Defined Terms
- עבד כנעני – non-Jewish by birth servant who accepts upon himself to convert, but whose conversion process is suspended while he works as a servant to a Jewish master.
Why is a non-Jewish servant termed a ‘Cana’anite’ servant when presumably this nation is no longer extant. Even in the times of the original conquest of the land of Israel, an actual Cana’anite servant would hardly be likely (even assuming that all seven (7) local nations that occupied Israel were called by the general term of ‘Cana’anite’) because the Jews were commanded to eradicate those nations. And while that task was not completed in full, the chances that a non-Jew would continue to identify as a Cana’anite and still desire to convert to Judaism and become the עבד כנעני is remote. Certainly, the term convert [עבד גר] or gentile [עבד גוי] would be more applicable.
The name is not only associated with the original Cana’anite people descendant from Ĉam, it has also developed other meanings. We find several times the term כנען being used to refer to someone who was not from the Cana’anite nation. For instance, in expounding on the final verse[i] in Zeĉarya ולא יהיה כנעני עוד בבית ה’ צבא-ות ביום ההוא the Gemara[ii] notes the following possible meanings; merchant and poor person. That a Cana’anite is a poor person is derived by Rabbi Yirmiyah from the word itself: כנעני is a combination of כאן עני – here is a poor person. That a Cana’anite is a merchant is derived[1] as follows:
How do we know a merchant is called a כנעני. From the verse[iii] וירא שם יהודה בת איש כנעני – which obviously cannot be referring to an actual Cana’anite, because is it possible that after Avrohom warned Yitzĉok[2] [not to marry a Cana’anite][iv], and Yitzĉok warned the same to Yaakov[v], that Yehuda would go and marry a Cana’anite girl? Rather, Rabbi Shimon bel Lakish said, she was the daughter of a merchant, as it says in the verse[vi] כנען בידו מאזני מרמה לעשק אהב. Or an alternative verse[vii] אשר סחריה שרים כנעניה נכבדי ארץ.
If Yehuda did not marry the daughter of a Cana’anite but did marry the daughter of a local merchant (who lived in Cana’anite lands), who was this person, and why was he termed ‘the merchant’. The midrash answers this that she was the daughter of Shem, granddaughter of Noaĉ. Presumably he was called ‘the merchant’ because he was peddling knowledge and piety.
We can thus make the statement that to be called a Cana’anite, one must either be poor, or a merchant. We find similar conversions of assigning the appellation of a people to an unrelated person who still behaves the way the people did:
- The term Nazi initially referred to those of the ‘Aryan’ race, whose political goal was the supremacy of their people at the expense of all others. However, their brutal persecution and attempt at genocidal annihilation of the Jewish people has converted that term to a broad term used in reference to anyone whose natural antisemitism has poisoned the person to the brutality and viciousness of the people the term was originally coined for. Therefore, even an Arab who would have also been a target to be killed or otherwise suppressed by the actual Nazis can today be a Nazi simply by acting on his antisemitic nature with the same brutality and viciousness of the Nazi’s.
- The term Chinese has grown to be applied to the various ethnicities and peoples who were subsumed in the creation of the current country known as China. One of their main exports after coming into direct trading contact with the English was their fine porcelain to the point where the word itself – china – now can mean the country, the various peoples in that country, or fine ceramic dishes.
In the same way, the person כנען originally the son of Ĉam and grandson of Noaĉ, after being cursed to be a slave to his brothers[viii], his name became associated with the lower-class people (the poor), in addition to being the actual title of the peoples who were his descendants.
Israel itself, the land in which the Cana’anites were found, is located at the great crossroads of various trading routes from the east, as well as the ports from which goods from the east can be easily sent to Europe and North Africa by means of the Mediterranean. Thus, the term Cana’anite became associated with merchants.
The association of the term Cana’anite as having multiple meanings is also borne out from when Noaĉ cursed him. The term ויהי כנען עבד למו is repeated[ix] and Rashi notes different meanings each time.
The first time, Rashi notes that כנען will a people who will pay taxes and tribute to the people of Shem to whom G‑d will give the land of Israel. This is a financial curse. The second time Noaĉ curses him, Rashi states ‘even when the children of Shem will be exiled, the descendants of Cana’an will be sold [to the exilees] as slaves.’
The same question noted above applies to Rashi’s commentary – how is it that after being commanded to destroy the Cana’anites, there are still those who are not only sold as slaves to the descendants of Shem, when they are exilees and lack the power to enforce the commandment to destroy these people, but even while at the height of their power in the land of Israel, they still do not destroy the descendants of Cana’an, but keep them as tax paying vassals.
Perhaps this is one of the sources for why Yehoshua did not complete the conquest of Israel and truly enact the genocide of all the people that had originally lived there. [see positive Mitzva 117 and negative Mitzva 225] The destruction of the people of Cana’an can be physical or financial, by rendering them servants to the Jewish people, they undergo a partial conversion process whereby they are no longer Cana’anites but Jews in training so to speak.
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Based on all this, perhaps we can understand the term coined for a gentile who becomes a servant to a Jew as part of his conversion process. The term is meant as a gentle rebuke to the nascent Jew who has decided to become a servant to another person instead of being the servant of G‑d. Similar to the reason why a Jewish-born servant has his ear pierced if he decides to remain a servant past his six (6) year term [see discussion on positive Mitzva 83] – ‘the ear which heard at Mount Sinai[x] כי לי בני ישראל עבדים should be pierced’ Jews are not servant to any but G‑d Almighty, and decisions made counter that have painful consequences. Contrary to the verse לא תעשק את רעך, by his actions, the עבד כנעני declares he loves עשק like the verse[xi] הטוב לך כי תעשק כי תמאס יגיע כפיך. He despises the toil of his own hands and instead chooses to give everything he works for away to his master and throws all the responsibility onto the master. He turns to others and follows their advice, ואל עצת רשעים הופעת, instead of listening to the sages, who, like Hashem, are[xii] הופיע מהר פארן. By choosing a life of servitude to humans, they invoke[xiii] א-ל נקמות ה’, because when the number of servants increase, theft increases[xiv].
Which is why he is called an עבד כנעני.
[1] Rashi on the verse itself from Zeĉarya does not derive the meaning from the same place as the Gemara, instead he quotes the verse from Yeshaya כנעניה נכבדי ארץ, and also notes the opinion of Rabbi Yirmiya. But then on the verse itself where Yehuda marries בת שוע, Rashi renders the term ‘merchant’ in Aramaic without explanation. And on the verse in Yeshayahu, he notes both the verse from Hoshaya and Zecharya.
[2] Actually, he warned his servant Eliezer not to obtain a Cana’anite wife for Yitzĉok, but presumably that warning was known to Yitzĉok as well.
[i] Zeĉarya 14:21
[ii] Gem. Pesaĉim 50a
[iii] Beraishis 38:2
[iv] Beraishis 24:3
[v] Beraishis 28:1
[vi] Hoshaya 12:8
[vii] Yeshayahu 23:8
[viii] Beraishis 9:25-26
[ix] Beraishis 9:26-27
[x] Vayikra 25:55
[xi] Iyov 10:3
[xii] Devarim 33:2
[xiii] Tehillim 94:1
[xiv] Pirkei Avos 2:7