Комментарий о цитате к Шмот 22:2

כי תקנה עבד עברי, “if you acquire a Hebrew servant;” according to Rashi, the scenario described here is that a thief who did not have the means to compensate his victim for what he had stolen, has been “sold” (i.e. the value of his labour for six years) by the court which had convicted him. [A Jew’s body cannot be sold by any court. Ed.] The procedure has been described in Exodus 22,2. Alternately, the person described in the Torah here has fallen on hard times and has sold his labour for six years to a “master” in order to pay off his creditors. If he had been “sold” by the court he does not automatically leave his master’s employment at the conclusion of six years service. Thus far Rashi on above verse. The problem is what prompted Rashi to write that someone sold by the court does not automatically conclude his service at the end of six years? We have a verse in Deuteronomy 15,12, according to which if someone who is a Jew or Jewess, has been “sold” to you, his contract is valid for six years be he a male or a female. He is to be released at the end of that period, and his master is to provide him with a minimal stake to enable him to establish himself economically from that point. (verses 13-14 there) Clearly, that verse and its provisions do not apply to someone who had “sold” himself but had been “sold” by the court. Rashi there also comments that the person in question had been sold by someone other than himself. We must assume therefore that Rashi was explaining the commentary of the Mechilta, according to which the words: כי תקנה apply to the son or daughter of the original master, who had died during these years. The question is whether the contract can be inherited by the master’s children, or in the event that the master did not leave behind any children, whether whosoever inherits the master’s estate this includes the unexpired period of such a servant’s contract. In the event that such a servant had been “sold” by the court would the contract expire automatically with the death of the original purchaser? The wording in Deuteronomy, כי ימכר לך, “if he has been sold to you,” as is distinct from the wording in our verse where the master is described as actively acquiring the servant, i.e. כי תקנה, suggest that the two situations described are not identical. In Deuteronomy the period of service is spelled out as being six years, adding that in the seventh year such a servant has to be released unconditionally, whereas in Exodus, in our verse the Torah adds the same clause. In Deuteronomy the word (unnecessary) ועבדך, “he shall serve you” is added. This reference to “you” is absent in our verse here. In Leviticus 25,39, where the subject of an impoverished Israelite selling himself is first raised, the Torah does not speak of a term of 6 years but a period concluding with the Jubilee year, a year when all such forced sales of land or labour are automatically reversed. If such servants are not released until the Jubilee year, it stands to reason that they continue serving the son or daughter of their master if he passed away before the onset of the Jubilee year (once in 50 years). This means that the verse we are dealing with, commencing with the words: “when you acquire, etc.,” must apply to someone who had been sold by the court. If the Torah, in dealing with the acquisition of a Jewish servant, had only written the one verse on the subject in our portion, I might have thought that such a “servant” would have to continue serving upon the death of his master either his son or even his brother. To prevent us from misunderstanding this, the Torah had to write when speaking of a servant who had been sold by the court: כי ימכר לך אחיך, “when your brother has been sold to you,” and it had to add: ועבדך שש שנים, “and he has to serve you, (the purchaser) for six years.” This excludes any service to an heir of the purchaser. We therefore find that on the one hand the text implies something additional, and on the other hand it implies something less. The Rabbis therefore interpreted the addition as being the heir if he is a son or a daughter, but excluding the brother in the event the master did not leave behind a son or daughter in the event that the servant had been sold by the court. We find in the Talmud, tractate Kiddushin, folio 17 that the Talmud asks what forces us to include as heir the son, while at the same time excluding the heir when he is a brother, i.e. not a direct descendant. The answer given is that a son takes the place of his father when it comes to inheriting landed property or a maidservant whom the father may assign to his son to inherit as maidservant, (wife) when of age. (Compare Leviticus 27,20 and Talmud tractate Erchin folio 25.) [At this point our author refers to Rashi saying that the whole concept of the servant leaving his master’s forced employment is a chidush, something not derived from standard methods of interpreting the Torah’s laws, and he proceeds to suggest that it could be a g’zeyrah shaveh, an accepted method of interpretation. As I have not found in my editions of Rashi, any reference to his saying that there is a chidush, I’ll skip this. Ed.]

כי תקנה עבד עברי, the Torah speaks about a Jewish thief who did not have enough money to make restitution (compare Exodus 22,2, “if he is unable to make restitution he will be sold in settlement of what he stole.”) שש שנים יעבוד, this applies to the thief who was sold by the court. The case of someone who had to sell himself (his labour) is discussed by the Torah in Leviticus 25,39 under the heading of כי ימוך אחיך ומכר לך, “when your brother has fallen on economically hard times so that he had to sell himself to cover his debts, etc.” Concerning that situation the Torah adds that he goes free in the Jubilee year (verse 40 there) In our situation, the term he is sold for is 6 years. Some of our sages (Kidushin 14) hold that both situations are halachically similar based on a gezeyrah shavah, identical wording being used by the Torah in both examples, i.e. the word in question being the unnecessary word יעבוד in Leviticus 25,40.

‎כי תקנה IF THOU BUYEST [AN HEBREW SERVANT] — This means an Hebrew servant whom thou hast bought from the hand of the court which sold him for a theft which he had committed, as it is said, (Exodus 22:2) “if he (the thief) have nothing, then shall he be sold for his theft”. Or perhaps this is not so, but Scripture is referring to the case of one who sells himself as a servant on account of his destitution, whilst he who has been sold by the court for his theft shall not go free at the end of six years! This assumption it erroneous, for when Scripture states, (Leviticus 25:39, 40) “and if thy brother that dwelleth by thee be waxen poor, and he sells himself unto thee … [he shall serve thee unto the year of jubilee]”, it is plain that in this passage there is mentioned the case of one who sells himself on account of his destitution. How then must I explain כי תקנה in this verse? Obviously as referring to him who was sold by the court (Mekhilta).

כי ימכר לך IF [THY BROTHER …] BE SOLD UNTO THEE by others (not one that sells himself as a servant on account of his destitution, of which case Scripture deals in Leviticus 25:46 ff); Scripture is speaking of one whom the court has sold for a theft that he has committed. But has it not already been stated. (Exodus 21:2) “If thou buyest an Hebrew servant” and there, too, Scripture speaks of one whom the court has sold (as proved by Rashi in his comment on that verse; Mekhilta)?!. But the repetition was necessary because of two new points that are stated here: the one is that it is here written “or an Hebrew woman”, that she, too, like a man-servant, goes free at the end of six years of servitude — it does not mean a woman whom the court had sold, for a woman cannot be sold by the court on account of a theft committed by her, since it states, (Exodus 22:2) that the thief shall be sold “for his theft” which implies: he for his theft, but not she for her theft (Sotah 23b); — but what Scripture is speaking of here is of a woman under age whom her father has sold as a handmaid, and it teaches you here that if six years of servitude terminate before the time that she shows signs of incipient puberty she goes free. And further it mentions a new point here, viz., “thou shalt furnish him (or her) liberally” (cf. Rashi on Exodus 30:4).