Avadim - Chapter 8

This penalty was imposed because the slave has already become - to a certain extent - part of the Jewish people. If he were sold to a gentile, we fear that he would cease Jewish practice entirely.

For it is the bill of release that formalizes his change in status.

Any payment of more or less than the worth involved is considered a fine.

I.e., a court composed of judges who possess the unique semichah (ordination) passed down from one Sage to another from the time of Moses onward. Only a court made up of such judges may preside over cases involving fines (Chapter 5, Halachah 17, Hilchot Sanhedrin 2:5). There are no judges who possess such semichah in the present age.
In his Kessef Mishneh, Rav Yosef Karo quotes the opinion of Rabbenu Asher, who maintains that these laws should be applied in the present age as well. For this is not a fine in the legal sense of the term, but rather a measure imposed to uphold the observance of the Torah. Nevertheless, in his Shulchan Aruch (Yoreh De’ah 267:80), he quotes the Rambam’s ruling.
The commentaries have noted that in Hilchot Shabbat 20:3, the Rambam states that a person is not permitted to sell a large animal to a gentile, and if he does, he is fined and required to repurchase it even at ten times its price. There, however, he does not mention the requirement for expert judges.

I.e., to buy him back from the gentiles. For the obligation is incumbent only on the master who committed the transgression by selling him to the gentiles. If the slave flees from the gentile, however, the heir is obligated to give him a bill of release.

Our Sages feared that the Jew would not be able to pay the gentile and considered this designation as equivalent to selling the slave to him.
The Shulchan Aruch does not mention this law. The Ramah (Yoreh De’ah 267:80) mentions it, but states that for the slave to be freed, the borrower must give the gentile the slave when he designates him as collateral. If he does not give him the slave, the slave is not freed until he defaults on the loan.

For the slave never becomes the property of the gentile.

Without the Jew designating the slave as collateral.

Hence, there is no reason to penalize the owner.

This represents the Rambam’s interpretation of Gittin 44b. Rashi, Tosafot, and the Ramah (Yoreh De’ah 267:80) offer a slightly different interpretation.

Although the seller is afraid that the king’s servants will harm him – and thus, there is a certain parallel to the law stated in the previous halachah – he is nevertheless judged stringently, because he could have given them other property instead of the slave.

After which time, he would revert to the ownership of the Jew.

I.e., although the slave becomes the property of the purchaser, the purchaser agrees not to require him to work. For he purchased him only to marry a maid-servant and breed slaves for him. In such an arrangement, the slave would not be forced to work on Sabbaths and festivals.

I.e., the purchaser agrees to the stipulation that the slave be allowed to perform the mitzvot.

Gittin 44a raises these questions and does not resolve them.

The Ra’avad and the Tur differ with this ruling and maintain that the slave is not allowed to keep his master’s property. The Ramah quotes both opinions without stating which one he favors.

A gentile who has formally accepted the observance of the seven universal laws commanded to Noah and his descendants. He is called a ger toshav, “resident alien,” because he - in contrast to an idolatrous gentile - is allowed to live in Eretz Yisrael. See Hilchot Avodat Kochavim 10:6.

See Chapter 6, Halachah 6. The Kessef Mishneh explains that this is referring to the kutim in the era after it was decreed that they be considered gentiles. According to this view, we do not know what the ruling would be in the era before that decree.

For in all these instances, the new master may be a hindrance to the slave’s Torah observance.

As explained in the previous halachah.

Even if the purchaser did not pay the money before he discovered that he would have to free the slave, he is required to suffer the loss and not the seller. He must pay the money and release the slave (Siftei Cohen 267:110).
The Shulchan Aruch (Yoreh De’ah 267:82) states that this law applies even when the new master states: “I do not want to take him to the diaspora. I will have him work for me in Eretz Yisrael.” For we fear that the master will ultimately convince the slave to go the diaspora with him (Siftei Cohen 267:111).

Thus, as a measure of deference to the cherished position Eretz Yisrael is granted (see also Hilchot Melachim, Chapter 5), our Sages granted the slave his freedom. Note the Ramah (Yoreh De’ah 267:82), who states that these laws apply even in the present age.

Which, as Hilchot Terumah, Chapter 1, explains, is considered to be Eretz Yisrael with regard to certain laws.

Which is on the border between Eretz Yisrael and the diaspora, half in Eretz Yisrael and half in the diaspora.

This refers to slaves that are nichsei tzon barzel. Different laws apply with regard to slaves that are nichsei m’log. See Hilchot Ishut 16:1 with regard to the distinction between the two terms.

And he is returning to the diaspora.

And in the event of divorce or the husband’s death, we assume that she will return to her family in Eretz Yisrael.
Because this question is unresolved, the status quo is maintained, and the slaves are not granted their freedom (Siftei Cohen 267:111).

Since the slave voluntarily left Eretz Yisrael, he cannot claim his freedom afterwards, asserting his love for the land.

For the slave never consented to leave Eretz Yisrael.

The Siftei Cohen 267:112 writes that in this instance, the purchaser should not lose the money he paid, because unlike the instance mentioned in Halachah 6, it was the seller who caused the slave to go to the diaspora, not the purchaser.

Rashi, in his commentary on Ketubot 110b, the source for this halachah, interprets the passage as referring to a Hebrew servant. The majority of commentaries, however, share the Rambam’s view that the passage refers even to a Canaanite slave.

If the master cannot find a prospective purchaser in Eretz Yisrael, he should free the slave and have a promissory note composed for his worth (Tur, Yoreh De’ah 267).

And must, instead, sell the slave to someone in Eretz Yisrael or free him.

See Hilchot Melachim, Chapter 5, where the Rambam explains that the special prominence granted to Eretz Yisrael applies in the present age as well, despite the fact that the majority of the mitzvot whose observance is dependent on the sanctity of the land do not apply in the present age.

Even in Eretz Yisrael he should not be put into slavery.

Sefer HaMitzvot (Negative Commandment 254) and Sefer HaChinuch (Mitzvah 568) consider this to be one of the 613 mitzvot of the Torah.
According to the Rambam, the verse is speaking about a Canaanite slave who fled to Eretz Yisrael against his Jewish master’s will. Onkelos in his translation of the Torah (Deuteronomy 23:16), however, interprets the verse as referring to a gentile slave belonging to a gentile master who fled to Eretz Yisrael.
The Tur (Yoreh De’ah 267) follows the understanding of Onkelos. Thus though he agrees that there is a Rabbinic prohibition against requiring a Canaanite slave who fled to Eretz Yisrael to return to his master in the diaspora, there is no Scriptural prohibition involved.
This difference of opinion also relates to the status of the Canaanite slave. According to the Rambam, he is a righteous gentile and has the rights of a freed slave immediately. According to the Tur, he may be sold by his master to another Jew in Eretz Yisrael. At the very least, the master must compose a bill of release before the slave is considered a free man.

I.e., as explained in Hilchot Mechirah 14:16, in addition to the prohibition against abusing other Jews, there is a special prohibition against abusing converts. The rationale for this commandment is that, because of his past, a convert feels humble when compared to a native-born Israelite. This ex-slave, however, feels more humble than a convert, because he did not convert as a free man.

Sefer HaMitzvot (Negative Commandment 255) and Sefer HaChinuch (Mitzvah 569) consider this to be one of the 613 mitzvot of the Torah.

Hilchot Mechirah 14:16-17 states:
Similarly, if [a person] oppresses [a convert] and takes unfair financial advantage of him, he transgresses three negative prohibitions: “A person should not abuse his colleague,” “One man should not take unfair advantage of his brother,” and “Do not oppress him.”
Why does a person transgress the prohibition against verbal abuse when he takes unfair financial advantage [of a convert], and the prohibition against taking unfair financial advantage if he verbally abuses him? Because the Torah uses the word ona’ah with regard to both these prohibitions, without being more specific, and repeats these two prohibitions with regard to a convert explicitly: “Do not abuse” and “Do not oppress him.”

The Rambam mentions this concept both in Hilchot Milah 1:6 and Hilchot Issurei 14:9, and there he does not mention the possibility of selling the slave to the diaspora.

Commenting on this law, the Ramah (Yoreh De’ah 267:4) states that in his time, it was forbidden for gentiles to convert to Judaism. Hence, when purchasing a slave in his time, it was considered as if the slave refused to accept the mitzvot.

In the sources cited in note 40, the Rambam mentions that the slave must agree to adhere to the seven universal laws commanded to Noah and his descendants.

For the prohibitions against selling a slave in such situations apply only to a slave who has been circumcised, immersed in the mikveh and accepted the mitzvot incumbent on slaves.

When quoting this law, the Tur and the Shulchan Aruch (Yoreh De’ah 267:81) mention that we are speaking about a situation in which the slave cannot be redeemed either. In clarification, the Turei Zahav 267:50 states the intent is not that the master is required to pay the full value of the slave, but rather if it is possible to redeem him for a minimal amount, he is required to do so.

I.e., since there is no way that that the master will be able to retrieve the slave – and the slave voluntary abandoned the Jewish people - there is no prohibition against receiving the money from the gentiles. On the contrary, not to accept the money would be making a sacrifice for no purpose.

Once property is declared ownerless, it becomes the possession of the person who seeks to acquire it. In this instance, the slave is considered to be in possession of his physical person. Hence, he is the first to acquire it. [According to this explanation, this law applies only with regard to a slave who is past majority and not to a minor, for a minor does not have the capacity to acquire himself (Kin’at Eliyahu, based on Hilchot Zechiyah 2:17).]

For the bill of release completes the slave’s transition of status and grants him permission to marry a Jewish woman.

By despairing of the return of the slave, the master renounces his ownership of him. Therefore, the slave is considered ownerless and acquires his freedom, as stated in the previous halachah.

It is desirable to redeem the slave, for since he has accepted some mitzvot, he is already different from other gentiles.

Since the slave’s owner has already despaired of his return, he is free to be acquired by others.

Since his owner has already despaired of his return, he no longer has any claim to him. And since the person redeeming him was willing to free him, he is considered to be free.
This ruling follows the opinion of the Sages in Gittin 37b. The Ra’avad differs and cites the opinion of Rabban Gamliel. The Shulchan Aruch (Yoreh De’ah 267:67) quotes the Rambam’s view.

For the owner would have had to spend this money himself to redeem him.

Since the original owner did not despair of regaining the slave, the slave is not considered to have left his domain. The person who redeemed him is not entitled to payment, for since his intent was to free the slave, it is clear that he had no thought of receiving anything in return when he redeemed him.

I.e., he states that the creditor should take possession of the slave as repayment for the debt.

Leaving the creditor without payment for the debt.

For freeing the slave removes the lien of the debt. The debtor must, however, pay the debt, for by freeing the slave he prevented the creditor from receiving his due. See Hilchot Chovel UMazik 7:11 and Hilchot Malveh V’Loveh 18:6, where this subject is discussed.

Our translation is based on authentic manuscripts and early printings of the Mishneh Torah. The standard published text contains a slightly different version.

I.e., there is no legal obligation for the creditor to free the slave. Our Sages, nevertheless, compelled him to do so for the reason stated by the Rambam.

I.e., helps him in arranging for the wedding.

A slave is forbidden to marry a free woman. We assume that the master is not assisting his slave in performing a transgression, but instead had the intent to free him. It must, however, be emphasized that the passage is somewhat problematic, for until the slave receives the bill of release, he is not permitted to marry a free woman.

Wearing tefillin is a positive commandment whose observance is associated with a specific time. Hence, a slave is not obligated to wear them. Nevertheless, the fact that a master has his slave fulfill any mitzvah associated with time - even wearing the arm tefillin - is not enough to require him to free his slave. Instead, this is a special measure associated with the head tefillin, for they are a sign of the unique relation hip between God and the Jewish people. As Deuteronomy 28:10 states: “And all the nations of the world shall see that the name of God is called upon you,” and Berachot 6a states: “This refers to the head tefillin.”

Gittin 40a states that if a slave reads the Torah in the presence of his master, he is not free. The Rambam, however, makes a distinction between the slave’s reading on his own initiative and being asked to read by his master.

See Hilchot Nezirut 2:17-18, which speaks about a slave taking nazirite vows. The master must force the slave to partake of wine. If he nullifies the vow, the slave is considered to have been freed and must observe his nazirite vows.

The concept of nullification applies to a husband’s rights with regard to vows taken by his wife, or a father’s prerogative with regard to vows taken by his daughter. The fact that a master uses this wording with regard to a slave instead of simply compelling him to violate the vow, as is his privilege, shows that he grants the slave a certain measure of equality. That is interpreted as a sign that he has freed him.
The Ra’avad differs with the Rambam’s interpretation of Nazir 62b, the source for this halachah, and maintains that the slave is not freed by virtue of this statement. If, however, he is ever freed. he must observe his nazirite vow.

For the slave to be freed, the master must carry out an act that indicates his willingness to accept his freedom. The fact that he refrains from rebuking him is not sufficient.

Although Rabban Gamliel described his servant Tavi as a Torah scholar (Sukkah 20b), we do not find examples of Rabban Gamliel’s teaching him. Perhaps Tavi studied on his own initiative.

As reflected by the contrast to the following clause, this applies even if the slave does not specify this intent.

The slave’s willingness to enter the Jewish faith nullifies the lien of ownership his master has over him (Yevamot 46a). This is possible because unlike a Jew, a gentile does not own the physical person of his servants; he has dominion only over their labor. (See Chapter 9, Halachah 5.) The concept of owning the physical person of a slave applies only with regard to a Jewish master, and is established when the master converts the slave to that status. Thus, the lesser dominion that the gentile owner possessed and that he transferred to the Jewish owner can be abrogated by the slave’s taking the initiative of making a full conversion to the Jewish faith. See also Hilchot Issurei Bi’ah 13:11. Since the slave’s Jewish master never established his possession over him, a bill of release is not required (Siftei Cohen 267:18).
The Ramah (Yoreh De’ah 267:9) emphasizes that the slave who is granted his freedom must reimburse his master for the funds he spent in purchasing him.

This demonstrates that the slave enters the Jewish faith under the authority of his master.

The immersion of a male slave or convert should be preceded by circumcision. Nevertheless, if the order is reversed, the conversion is still valid.

See Hilchot Issurei Bi’ah 13:7, which states that a person can convert a gentile child by compulsion. When the child attains majority, however, he has the choice to affirm this conversion or reject it.

The Radbaz notes that the terms “convert” and “free man” apparently share the same meaning and therefore questions the Rambam’s intent. He suggests that possibly his intent was that a convert means a person whom he does not own as he does a Canaanite slave, but who is obligated to work for him, while a free man implies that the gentile has no further obligation to him.

The Kessef Mishneh notes that this law restates the principle stated in Halachah 19. Therefore, he suggests that the text be altered to read: “immersed themselves before he did” - i.e., before the convert immersed himself to complete his own conversion, his slaves immersed themselves.