Commentaire sur L’Exode 21:3

אם בגפו יבא IF HE CAME IN BY HIMSELF — This means that he was unmarried — as the Targum renders it אם בלחודוהי, if he came in “alone”. The term בגפו is the same as גף) בכנפו being synonymous with כנף wing, skirt) i. e. he came in only just as he was, alone, merely wrapped in his garment: so that בגפו, “in his skirt”, means “in the skirt of his garment”.

THEN HIS WIFE SHALL GO OUT WITH HIM. Rashi commented: “But who brought her in, that Scripture need say that she shall go out with him? But [by saying this], Scripture tells us that he who acquires a Hebrew servant is obliged to provide for the food of his wife and children.” This is a Midrash of the Sages.³⁴Mechilta on the Verse here. Now [even though the children are not mentioned in this verse, but only his wife,] the Rabbis have included the children together with the wife in this duty of the master, on the basis of what is written further on, Then he shall go out from thee, he and his children with him.³⁵Leviticus 25:41.
I am not clear on this law as to whether the earnings of the woman and children belong to the master during the time he is supporting them. It appears to me that the master takes the place of the husband [in this respect]. For the Torah had compassion on the wife and children, whose lives are hanging in suspense,³⁶See Deuteronomy 28:66. and who expect [to be supported from] the husband’s earnings, since now that he is sold as a servant, they are in danger of being lost in their misery. Therefore the Torah commanded the master who is now entitled to the servant’s labor, to act towards them as he [the servant] would. If so, the master only has to assume the responsibilities of the husband, [and no more]; thus he is entitled to their labor as is the husband, and in return he must feed and support them. This is the meaning of the expression, then his wife shall go out with him, since the servant’s wife was together with him as a handmaid to his master, for the labor of both of them belongs to him, in return for which he is obliged to give them food. Thus the only difference between husband and wife is that the wife has a right to go away as she pleases, [and is not bound to work for her husband’s master if she does not want to be supported by him, whilst the husband, who is the servant, is bound to the master]. Similarly, the master’s obligation to support the children is limited to the time that the father is responsible for them, namely when they are minors, or as long as is customary to feed them, as Rashi explained in Tractate Kiddushin.³⁷Kiddushin 22a. See my Hebrew commentary p. 413. All this is out of G-d’s compassion for them [the wife and children], and for the servant as well so that he should not die in his anguish, in the knowledge that whilst he is toiling in a strange house, his children and wife are neglected. Now even though he is not obliged by law of the Torah to support them, as has been explained in the Talmud, Tractate Kethuboth,³⁸Kethuboth 49 a-b. but since it is the normal way of life for a man to support his wife and small children, G-d in His mercies commanded the buyer [of the servant] to act to them as a merciful father. The meaning of the Sages in speaking of banav [literally: “his sons”] is both sons and daughters.
I have seen written in the Mechilta:³⁴Mechilta on the Verse here. “I might think that the master is obliged to support the betrothed [of the servant] and the childless widow of his brother who is waiting for him to marry or reject her? Scripture therefore says, his wife, thus excluding the brother’s childless widow who is waiting for him, since she is not yet his wife. With him, this excludes the betrothed who, [even though she is his wife], is not yet with him.” This Mechilta is a proof to the law which I have stated, for since it is not customary for the betrothed and the childless brother’s widow to be supported by the man [in this case the servant], therefore the Torah did not impose their support upon the master either. And even if the brother-in-law or the bridegroom became liable by law at a certain time known in the Talmud³⁹According to a first [i.e., an older] Mishnah, if after such time as the law allows for the preparation of the wedding, the bridegroom postponed it, he is liable to support her, and she may eat from his goods, so that if she is an Israelite’s daughter and betrothed to a priest, she may eat terumah (the heave-offering) as if she was already his wife. A later Mishnah though, ruled that a woman may not eat heave-offering until she has entered the bride-chamber (Kethuboth 57 b). to support them, that obligation was in the nature of other debts they may have, and therefore the master did not become liable to support them.
Again I have found in another Mechilta of Rabbi Shimon:⁴⁰In Hoffman’s edition, p. 120. — See Vol. I, p. 603, Note 245, for explanation of the term “another.” “If he be married then his wife shall go out with him. Just as the master is obliged to feed the servant, so he is obliged to feed his wife and children. Still I might say: if the servant had a wife and children before he was bought, then his master is obliged to feed them, because he bought him on that condition, but if he had a wife and children only after he was bought I might think that his master is not obliged to feed them. Scripture therefore says, if he be married⁴¹Literally: “if he be the husband of a wife, then his wife shall go out with him.” The word “wife” is thus mentioned twice, once to indicate etc. (see text). etc. There are thus two wives mentioned here, one referring to a wife that he had before his master bought him, and the other referring to a wife he had after he was bought. I might think that even if he had just a betrothed wife, or a childless brother’s widow who is waiting for him, whom the servant himself is not obliged to feed, that nonetheless his master is obliged to support them, and proof for that argument I might find in the fact that the husband himself is not obliged [by law of the Torah, as explained above] to feed his own wife and children, and yet, the master of the servant is obliged to feed the wife and children of his servant; Scripture therefore says, then his wife shall go out with him — that wife who is with him, the master is obliged to feed, but he is not bound to feed a wife who is not with him. I might think that even if the servant’s wife was one with whom it is not correct for him to continue living — such as a widow married to a High Priest, or a divorcee or profaned woman married to a common priest⁴²See Leviticus 21:7;14. — [that the master is bound to feed her]; Scripture therefore says, then his wife shall go out with him — one that is fit to live with him, but not this one etc. I might think that even if he married without the master’s knowledge [the master is obliged to feed her]; Scripture therefore says, if ‘he’ be married — just as ‘he’ was acquired with the master’s knowledge, so his wife [whom the master must support] means one taken with the master’s knowledge. I might think that the earnings of his sons and daughters belong to the master, and it is logical that it be so: for if we see in the case of a Canaanite bondman, whose master is not bound to feed him, that nonetheless the earnings of his sons and daughters belong to the master, then surely it is logical that in the case of a Hebrew servant, whose master is obliged to feed him, that the earnings of his sons and daughters should belong to his master! Scripture therefore says: he (if ‘he’ be married) — it is he whose earnings belong to his master, but not those of his sons and daughters. Then his wife shall go out with him — do not separate him from his wife; do not separate him from his children.” Thus far the language of this Beraitha.⁴³See Seder Bo, Note 209.
Yet I continue to say⁴⁴In spite of the fact that this Beraitha apparently contradicts what Ramban said above — namely, that during the time of the Hebrew servant’s servitude the earnings of his wife and minor children belong to his master, since he is obliged to feed them, whereas here the Beraitha seems to be saying the opposite — “Yet I continue to say” writes Ramban, “as I have written above etc.” as I have written above, that if the servant’s wife and children want to be supported by the master, that he may take their earnings, and this Beraitha quoted above intends only to tell us that they are not his by absolute right, as is the law of the Canaanite bondman, or as is the law of the Hebrew servant himself, [who must of necessity work for their master], but they [the wife and children of the Hebrew servant] can say to him: “We will not be fed by you, and we will not work for you.” What is new in this Beraitha is that if the servant married without the consent of his master, he is not bound to feed the wife or her children, for since it is within the power of his master to give him a Canaanite bondmaid, he is not obliged to feed this Israelite woman. The Rabbis further interpreted the word imo (with him) to teach us that you are not to separate him from his wife and children, which means to say that the master cannot tell him: “Be together with the handmaid I gave you and sleep with her at night, and not with the Israelite wife,” but the servant has the right to choose for himself.

אם בגפו יבא, If he enters the service as a single man, etc. Our sages in Kidushin 20 conclude from this wording that if the Jewish slave enters his period of slavery while unattached, his master is not allowed to asssign a Gentile slave-woman to cohabit with him. The legislation permitting this applies only if said slave is already married. I believe the reason they came to this conclusion is that the sages were bothered by an anomaly in the text. The Torah appears to repeat itself when it says that if the slave entered service married he shall leave in that state. Seeing the Torah had already said that if he entered service unmarried he will leave unmarried, this implies that if he had been married previously he could leave with his wife. Why did the Torah have to spell this out? You will find that the sages scrutinised the verse and said that the words "and his wife will leave" are quite inappropriate. His wife, after all, had never become a slave! Why does she need the Torah's permission to leave? The sages therefore interpreted these words to mean that while the slave was in the service of his master the master had to provide also for the needs of the slave's wife. Once the slave leaves, this obligation is at an end. If the Torah had meant that the slave-woman the master had assigned to the slave could leave with him, this would contradict the clear statement in verse four that any wife and children born by such a woman during these years will most certainly not be released with their husband/father. What then did the Torah mean when it said that the slave's wife may leave together with him? The sages therefore arrived at the conclusion that only a married slave may be assigned a slave-woman to cohabit with. Clearly the statement was intended to provide an additional halachah. The word בגפו means "if he has no Jewish wife." We know this because when the Torah speaks of a man married to a Jewish wife the man is called בעל אשה. The words בגפו יצא mean he is to leave unmarried, as single as he entered the service of his master. One may also understand this as a comparison to when he entered, i.e. "just as he entered service without wife and children, neither the kind that could depart with him nor the kind that had to remain behind with his master, he leaves as he came." If he had a wife but no children at the time he entered the service of his master, the latter cannot assign a Gentile slave-woman to him either as we would consider him as having entered service בגפו, alone. The same applies even more so if the slave had been the father of children at the time he entered the service of the master although he had not had a wife at that time.

אם בגפו יבא בגפו יצא. The Torah first mentions the subject in general terms, then proceeding to details. For instance, if the servant was unmarried at the time the court sold him, or even if his master has given him a wife while he was in his employ, he leaves without his wife seeing that the woman given to him as a wife remains in the house of the master, her employer. Having said this, the Torah continues to explain how this works אם בעל אשה הוא, if he was already married, his wife (who will also be a charge on his master) will leave with him when he is released from this involuntary contract after 6 years. However, if his master had provided him with a wife during the period of his forced employ, the wife in question remains with her master. The “wife” the master had assigned to his Jewish servant was a gentile servant maid whose body belongs to her master.

אם בגפו יבא, “if he enters service as a single individual,” a reference to his body גוף being unattached. Marriage can be perceived as the reuniting of two bodies separated at the time the first woman was separated from the body of the first man, Adam. Alternately, it means that this person did not own anything but his body, hence he was sold into service for his debts.

If he came by himself. The term בגפו is the same as בכנפו . [Rashi knows this] because the Targum translates the word כנף as גפא .

V. 3.גף von גפף, der Körper (verwandt mit גב, von גבב, der Rücken). Wenn er nur mit seiner Person und in keiner Beziehung zu einer Frau eingetreten, so kann ihm auch während der Dienstzeit keine solche Beziehung, wie sie V. 4 statuiert, von dem Herrn gegeben werden. Indem es aber heißt: "wenn er mit seiner Person allein eintritt", so ist damit schon der Fall angedeutet, dass er, wenn verheiratet, mit der Frau eintrete. Noch mehr liegt dies in dem: ויצאה אשתו עמו, es muss also, wenn er verheiratet ist, die Frau mit ihm eingetreten sein. Nun kann aber das Verhältnis durchaus kein Dienstverhältnis sein, in welches die Frau mit ihm zum Herrn eingetreten wäre. Selbst, wie bereits bemerkt, für den eigenen Diebstahl wird kein Frauenzimmer verkauft, geschweige dass die Frau in keiner Weise für das Vergehen des Mannes irgendwie zu büßen hätte. Vielmehr, lehrt die Halacha, wird die Frau nicht vom Manne getrennt und hat während der Dienstzeit, wo der Mann nicht für Frau und Kinder sorgen kann, der Herr die Frau und Kinder mit zu ernähren, und nur in so fern ist der Eintritt und Austritt der Frau zu verstehen (רמב׳׳ם .(מכילתא und רמב׳׳ן differieren über die Frage, ob der Herr während der ihm obliegenden Alimentationspflicht nicht dagegen, wie sonst der Mann, ein Anrecht an den Erwerb der Frau habe. רמב׳׳ם verneint dies. Nach רמב׳׳ן tritt er aber mit Übernahme der Pflicht in dieser Beziehung auch in die Rechte des Mannes. — Auch der ledig Eingetretene kann sich, mit Erlaubnis des Herrn, während der Dienstzeit verheiraten und liegt dann ebenfalls dem Herrn die Ernährung der Frau ob.

ויצאה אשתו עמו, “his wife will leave that master’s employment with him (at the same time). Rashi asks correctly, granted that we have been told that his wife leaves with him, but where did we hear that this applies to his children? As an answer he cites the Talmud, tractate Kiddushin folio 22, that we learn from this verse that the master of the servant of which the Torah speaks here is obligated to look after the servant’s wife’s and family’s needs, if he had such when he was sold to him. Whereas it is clear that the master has to look after such a servants’ wife, it does not appear clear from the text that he is also obligated to look after the children of such a servant. We need to find a nuance in the text that would support this contention. Our author therefore suggests that this can be found in Leviticus 25,41, where the subject is someone who was forced to sell his labour as he had fallen on hard times, debts, etc; the Torah there states that the “master” must release both him and his family in the Jubilee year, showing that there is an unnecessary word. The word שכיר appears both in Leviticus and that same word appears again in Deut. 15,18. The scholars that do not accept this g’zeyrah shaveh as something that is traditional, but simply consider (Talmud Kiddushin there) the phrasing of the verse as sufficient.

אם בגפו יבא, בגפו ילך, according to the plain meaning of the text the meaning is: “he will leave in the same condition as when he had begun his term of service.” The Torah proceeds to illustrate this by quoting examples of how his personal status might have changed during these six years. Even though his master might have given him a gentile slave to live with and to have children with, the “wife” and children remain the property of his master.

בגפו יצא HE SHALL GO OUT BY HIMSELF — This intimates that if he was unmarried originally (when he came in), his master is not allowed to give him against his will a Canaanitish handmaid with the object of raising slaves (Kiddushin 20a).

אם בעל אשה הוא, “if he was married at that time, etc.” if he was already married to a Jewish woman, his master may assign a non Jewish woman to be his mate. If, however, he had not been married yet, his master must not assign a non Jewish woman for him as a mate. The psychology underlying this legislation is that a normal person does not feel at ease with his fate unless he shares his life with the first woman who became his mate. If the first woman who became his mate is a gentile, he will most likely be so attached to her that even after his term of service he will not want to part from her although she is bound to her master for life. If the same servant had been married before his labour was sold for six years to the same employer, he is likely to yearn for his wife, and will not choose to remain with his master until the Jubilee year.

Wrapped in his garment, in the skirt of his garment. Since Rashi explained that בגפו means “the skirt of his garment,” which does not [directly] imply that he came single, thus Rashi explains that the verse indicates that he came with nothing but his garment, [which is an expression used to describe someone who is single].

I have seen that Rabbi Eliyahu Mizrachi feels that the reason for the legislation just mentioned is that otherwise the Torah should have written merely כן יצא instead of בגפו יצא. I do not agree with this. On the contrary, had the Torah written what Rabbi Mizrachi suggested as an alternative this would have reinforced the impression that the master could not give him a slave-woman and that he had to remain as single as when he entered the service. The truth is that the reason the Torah did not write כן יצא is because of other implications such an expression implies.

בגפו יצא, “he will leave alone.” According to Rashi, the line means that if this “slave” entered service while single, he will also leave while single. If he had been married before, his master can give him a gentile slave for the duration of his service. The reason is that if his master were to “give” him a gentile slave of his as a “wife,” and he would have children with her, he might grow so fond of her and her children, that at the end of the six years he would choose to remain with his master rather than to rejoin his Jewish wife. The chances of this happening to married man, is more remote. He presumably longs for his former family life, and he will leave as soon as is legally possible. His plea of preferring his gentile “family” under such circumstances is not acceptable by the Torah.

אם בעל אשה הוא IF HE BE MARRIED to an Israelite woman (Mekhilta d'Rabbi Yishmael 21:3:2),

ויצאה אשתו עמו, “his wife will leave together with him.” From this verse we deduce that the servant’s master had obligated himself to look after the needs of the servant’s wife and children. (not voluntarily, but this was part of the contract the Torah has in mind).

This teaches that if he was unmarried. . . [Rashi knows that this refers to a gentile handmaid] because otherwise, [if בגפו referred to his Jewish wife as in the beginning of the verse,] it should have said simply: בגפו יבא כן יצא (If he came by himself, so shall he go out.) Perforce, the second בגפו refers to a gentile handmaid, not to a Jewess. [And the first בגפו cannot refer to a gentile handmaid because it is written about a gentile handmaid (v. 4), “the woman and her children belong to her master,” whereas here it says, “his wife shall go out with him”]. Rashi uses the term מגיד (this teaches) because the law is only interpreted from the verse, and is not the verse’s simple meaning.

You may ask whence the sages derived the ruling in Kiddushin 20 that the master can assign to the slave a gentile slave-woman only if he entered his service while not only being married but also having children? It is, of course, true that the rulings are part of the oral Torah and not dependent on being spelled out in the written Torah. Nonetheless we may search for clues in the written Torah. Where are children mentioned in the Torah? The answer is that when a person is married without children he is to leave בגפו, in the same state as he entered the service seeing that if the master assigned a Gentile slave-woman to him and he had children by her the slave could no longer qualify under the heading as leaving בגפו, i.e. in the same state as he had entered his master's service. He entered the service without children whereas now he has children. Similarly, if at the time he entered the service he had children but no wife the master cannot assign a slave-woman to him as he would not then leave his service in the state he had entered it. He entered it being single and he would leave it being married, a state that cannot be described as "just as he was unmarried when he entered the service, so he has to be in the same state when he leaves." If the slave had a wife when he entered the service of his master but he did not have any children whereas by the time he leaves his master's service he has children by his Jewish wife, he may take these with him although one may describe his status as having changed seeing that when he entered service he was allowed to live with his wife. The Torah made everything dependent on his having a wife at the time he entered service as a slave, even if the children were born only later. From this it would follow that if the slave had entered his master's service while married to a Jewish woman and his wife had died, the master may then assign a slave- woman to him as the Torah was concerned only with the slave's status at the time he entered the master's service, i.e. בגפו יבא. If I did not have the words of the Talmud before me I would have derived that ruling from the words: "if he is the husband of a wife;" this wording suggests to me that in order for the master to have the right to assign a slave-woman to the husband he must have been married at that time.

ואם בעל אשה, “but if he was married, to a Jewish wife“ at the time the court had ‘sold’ him,” his wife will leave with him; the wording means that he had consummated the marriage before being sold, not that he was only engaged, or that he was betrothed to the widow of a brother who had died without ever having had children. On this verse Rashi explains that the purchaser of a Jewish “slave,” is legally obligated to assume responsibility for said “slave’s” wife and children if any. Although nothing of that kind is written here, seeing that the Torah only writes that “he will leave with his wife,” Rashi deduced it from a verse in Leviticus 25,41: ויצא מעמך הוא ובניו עמו, “he together with his children will leave.” In that verse no mention is made of his wife. We combine both verses in order to get the true meaning of the Torah.

ויצאה אשתו עמו then HIS WIFE SHALL GO OUT WITH HIM — But who brought her in (into the state of service) that the text has to state she shall go out? But by saying this Scripture intimates that he who acquires a Hebrew servant is bound to provide his wife and children also with food (Mekhilta d'Rabbi Yishmael 21:3:3; Kiddushin 22a).

To a Jewish woman. [Rashi knows this] because it says afterwards, “His wife shall go out with him.” But if it is a gentile handmaiden, it says (v. 4), “The woman and her children belong to her master.” Re’m based his explanation on the Mechilta, that “If he [was] married” relates back to בגפו יבא , i.e., his Jewish wife, rather than to the adjacent בגפו יצא , i.e., the gentile handmaiden.

אם בעל אשה הוא, If the slave is a married man, etc. We have to accept the Mechilta Acharite de Rabbi Shimon who says that the wording implies that the master has to supply the needs of the wife only if she is an appropriate wife for the slave. Should the slave be married to a woman forbidden to him under Jewish law even if the marriage was legal under Jewish law, his master has no obligation towards her. This raises the question why the master is allowed to assign a woman who is forbidden to this slave as stated specifically both in the Talmud and in chapter 3 section 4 of Maimonides' Hilchot Avadim. Maimonides distinguishes between the right to live with such a woman and the master's obligation to provide for such a woman when she is not his slave. The words אם בעל אשה הוא therefore have to be interpreted as applicable only to the law mentioned in this verse, i.e. provision of a Gentile slave-woman as partner for such a slave.

He. . . becomes obligated to support his (the slave’s) wife and children. Although here the verse teaches only about supporting the wife, a later verse (Vayikra 25:41) says, “And he shall go out from you, he and his sons.” But here Rashi mentions the support of children only in connection with the support of the wife (Re’m), and it is speaking of children who are minors. In Maseches Kiddushin 22a it is explained why the Torah needs to mention that he is obligated to support both his wife and his children.

The Mechilta raises another aspect here in these words: "I might have thought the master will be obligated to provide for the needs of a woman merely betrothed to the slave, or to a woman who is the widow of his brother who died without children and who awaits the levirate union; the Torah speaks of אשתו to teach us that the betrothed, etc., is not included in the category of wife for whom the master has to care. On the other hand, if the slave was betrothed to a woman he is no longer characterised as בגפו, single, and the master is entitled to assign a slave-woman to him while he is in his service. According to the discussion in Kiddushin 20 the same applies if the slave had children from a wife who had died and in the meantime he had betrothed himself to another woman. He is then considered as fitting the definition of having both a wife and children so that the master can assign a slave-woman to him as marital partner.

ויצאה אשתו עמו, his wife leaves together with him. The letter ו in front of the word יצאה is appropriate seeing the master had also been responsible for the wife's maintenance.