פּירוש אויף שמות 21:2

כי תקנה עבד עברי IF THOU BUYEST AN עבד עברי — This means a servant who is a Hebrew. Or perhaps this is not so, but it means a servant of a Hebrew (one who had been the servant of a Hebrew), i. e. a Canaanitish servant whom thou hast bought from an Israelite, and it is with regard to him that Scripture states “six years he shall serve”! — And if you ask, how I will then explain the commandment, (Leviticus 25:46) “and you shall leave them (the Canaanitish servants) as an inheritance for your children [and they shall serve you forever]”? then I reply, that this refers to the case of a Canaanitish servant who has been bought from a heathen; but if such a servant has been bought from an Israelite he shall go free at the end of six years! — This explanation that our text refers to a Canaanite servant will not hold, for Scripture states, (Deuteronomy 15:12) “and if thy brother an Hebrew man be sold unto thee [and serve thee six years, then in the seventh year thou shalt let him go free from thee]” — the Torah says, as it were, by using the two terms העברי and אחיך: I tell you this (that the servant shall go free in the seventh year) only with regard to thy brother! Consequently Leviticus 25:46 has to be applied to any Canaanite servant, whether bought from a Hebrew or from a heathen and עבד עברי in our text can only denote עבד שהוא עברי. (Mekhilta)

כי תקנה עבד עברי, “If you acquire a Jewish slave, etc.;” the reason why the Torah commences its list of social laws with this particular law is that the Israelites had recently been redeemed from slavery themselves, so that they had good reason to understand how important it is not to treat one of their own as they had been treated in Egypt. Even if an Israelite had committed a crime for which he had been sold, the maximum length of time he was allowed to have his freedom to choose his employer restricted was six years. Even during these six years, his master, who did not own him bodily even then, was not allowed to force him to perform menial tasks. כי תקנה, “when you purchased etc.” Rashi explains that the “slave” the Torah speaks about was not purchased at a public auction, but was acquired as a servant from a duly elected Jewish Court whose task it also is to ensure that a thief’s victim is compensated by his victim. If he cannot do so from his own means he is “sold,” i.e. his labour is sold for a maximum of six years, his victim being paid the wages that this servant would earn during the next six years if he had not been “sold,” and is given by the court to his victim. [This editor has rounded out the picture based on the Talmud, for the benefit of readers totally unfamiliar with this subject.] There was some discussion in the Mechilta if our verse deals with an Israelite who had fallen on hard times and accumulated debts that he could not repay and who “sold himself,” (based on Leviticus 25,39). According to that view an Israelite “sold” by the court would not automatically be able to terminate his employment after 6 years maximum. This view is in apparent contrast with what the Torah wrote in Deuteronomy. According to Leviticus 25,46, gentile slaves who are owned bodily by Jews may be inherited by their children. The words ונמכר לך, “and he has been sold to you,” refer to an Israelite “sold” by the court. The Torah continues by decreeing that such a “slave” must not be required to perform menial tasks for his “master.” Clearly, this rule does not apply to gentile slaves whose bodies are owned by their Israelite masters. Deuteronomy 15,12 makes it quite clear that the law of releasing a slave after 6 years applies only to Jews who have been sold by the court. The passive form of yimacher, is absolutely clear. The Mechilta does not disagree, but derives the rule from a different type of exegesis. The author there (Rabbi Yishmael) uses a method known as gezeyrah shaveh. [I have slightly abbreviated our author’s presentation of this subject. Ed.] שש שנים יעבוד, “he is to serve for six years.” The number “6” in this verse is viewed also as an allegorical reference to six empires that at one time or another will enslave the Jewish people. They are: “Egypt, Ashur, Babylon, the Medes, the Greeks, and the Romans, (descendants of Edom). According to this interpretation, after the collapse of the Roman Empire the Jewish people, [as a whole, Ed.] will not again experience enslavement. This is based on the end of the verse: “and in the seventh year he will be released unconditionally.”

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.]