Avadim - Chapter 5

The term Canaanite refers to any gentile slave. Perhaps the term is derived from the Biblical malediction (Genesis 9:5): “Cursed is Canaan; he shall be a slave to slaves.”
See Hilchot Issurei Bi’ah 14:9, which states that a Canaanite slave must accept the mitzvot that he is obligated to observe (all the negative commandments, and those positive commandments whose observance is not dependent on time). If he is not willing to accept those commandments, he must be sold to gentiles. He must also be immersed in the mikveh, and a male slave must be circumcised. When these steps are taken, “he has departed from the general category of gentiles, but has not yet entered the general category of Jews” (ibid. 12:11).

Significantly, here the Rambam does not mention hagbahah, lifting up the slave, although he does mention that means of acquisition in Hilchot Mechirah 2:2. See also the notes on that halachah.

See Halachot 4-17.
The Tur and the Ramah (Yoreh De’ah 267:26) maintain that a slave may also be granted his freedom through chalifin.

Thus, if the master calls to him and the slave comes, he acquires him. This does not apply with regard to a slave past the age of majority, for he is considered to be acting on his own volition and not on the impetus of the master.

See Hilchot Mechirah 2:1-4, which states:
1. A Canaanite slave is considered as landed property with regard to [the laws of] acquisition and can be acquired through [the transfer of] money and a deed of sale, or through chazakah.
2. What manifestation of ownership is [effective] in acquiring a slave? To make use of him as one makes use of a slave in the presence of his [previous] master.
3. If [the new owner] pushes [the slave] and brings him close to him, he acquires him. For a Canaanite slave can be acquired through meshichah in this manner. If, however, he called the slave and he came to him, or [the slave’s] previous owner told him to go to the purchaser, and he followed [those instructions], [the new owner] does not acquire him.
And Hilchot Mechirah 5:5 states:
Landed property, slaves, livestock and all other movable property can be acquired through [the kinyan referred to as] chalifin. The fundamental manner in which [such a transaction is effected is as follows]: The purchaser gives the seller any type of article and tells him: “Acquire this article for the courtyard,...” “... wine,...” “... animal,...” or “... slave that you sold me for this and this [amount of money].”

In this instance, the Rambam’s question is more than a stylistic introduction. There is a theoretical difficulty. A Canaanite slave does not have an independent financial capacity. Everything that he acquires belongs to his master. And thus it is impossible for him to possess money - or to be given money - that becomes his own property. Therefore, the money must be given to the master by another person or given to the slave specifically with this intent in mind. In this instance, the master does not acquire the money until he grants the slave his freedom. See Hilchot Zechiyah UMatanah 3:13-14.

It is taken for granted that a person would rather be free than serve as a slave.

This is a general principle applying with regard to all matters of financial law. (See also Hilchot Zechiyah UMatanah 4:2.)
See also the statements of the Lechem Mishneh, who states that if the slave protests and does not desire his freedom, he cannot be required to become free against his will. The Tur (Yoreh De’ah 267) differs and maintains that the slave can be freed again this will. Rabbenu Nissim, however, states that according to the Rambam and Rabbenu Yitzchak Alfasi, the slave must consent. See Siftei Cohen (Yoreh De’ah 267:43). From the ruling of the Shulchan Aruch (Yoreh De’ah 267:41), it would appear that he accepts the latter view.

I.e., in contrast to a Hebrew servant, a master is not obligated to free his Canaanite slave when he is offered the money for his redemption. Instead, the option is the master’s. If he desires to retain the slave he may, and if he desires to release him, he may.

In most instances, merchandise worth money serves the same purpose as money. The only exceptions are matters like the redemption of the firstborn or the redemption of produce from the second tithe, where the Torah explicitly states that silver is required.

The observance of the transfer by the witnesses makes the slave’s release effective. See the parallel in Hilchot Gerushin 1:15.

The signature of the witnesses on the document validates it and effects the release. See Ibid.:16 and notes.
This is the Rambam’s view. Tosafot maintain that the signature of the witnesses on the deed of release does not, in and of itself, validate the document. Nevertheless, if we see that a deed of release is signed by witnesses, we assume that it was transferred to the slave in an acceptable manner. See Shulchan Aruch (Yoreh De’ah 267:44), which quotes both opinions without indicating which is favored.

Since the slave does not possess an independent financial capacity, one might think that he is not capable of taking possession of the deed of release. Hence, the Rambam provides these words of explanation.

The Ra’avad differs with the Rambam and maintains that if a kinyan chalifin is performed, a slave is released. The Ra’avad’s assertions are based on Gittin 39b. The Rambam interprets that passage differently, however, and according to his interpretation, chalifin is not effective. See Kessef Mishneh.

Although the master’s verbal statement is not sufficient to grant the slave freedom in and of itself, once that statement is made we compel the master to free the servant, as the Rambam states in Chapter 8, Halachah 17.

This is the expression that is used in a bill of divorce. Nevertheless, it is appropriate only in that context and not with regard to the release of a Canaanite maid-servant (Kiddushin 6b).

As indicated in Halachah 13, the master need not have the intent of harming the slave. Nevertheless, he must have the intent to strike him, as stated in Halachah 11. Note also the sources cited by the Siftei Cohen, Yoreh De’ah 267:46.

See Exodus 21:26-27.

And on the basis of this extrapolation, require a slave to be freed when he is caused to lose any of the other 24 limbs.

Castration violates a negative commandment of the Torah. (See Hilchot Issurei Bi’ah 16:10-11.) Similarly, cutting out a slave’s tongue is an act of cruelty that is improper, as indicated by Chapter 9, Halachah 8. Nevertheless, if the master does perform such an act the slave is not freed.
The Shulchan Aruch (Yoreh De’ah 267:28, based on the ruling of Rabbenu Asher) states that if the servant’s testicles are cut off from his body entirely, he should be freed. If, however, the testicles remain in their sac, he accepts the Rambam’s ruling.

As required of a slave purchased by a Jew. See Hilchot Issurei Bi’ah 14:9, 12:11.

The positive mitzvot whose observance is not dependent on time, and all of the negative commandments - i.e., all the mitzvot in which women are obligated.

As the Rambam writes in Hilchot Issurei Bi’ah 14:9, a Jew may own a gentile slave for up to 12 months while the slave considers the acceptance of the religious obligations incumbent upon him. If, at the end of that period, the slave does not desire to accept those obligations, the Jew must sell him to a gentile. He may not maintain possession for a longer time.

The Rambam’s ruling indicates that the freeing of a slave because of the loss of the tips of his limbs or organs is a measure of consideration shown to a slave who has – at least to a limited degree – joined the Jewish people. Otherwise, since a slave is the property of his master, the master is not penalized for causing such an injury.

Rashi, Kiddushin 25a, states that a man’s nipples do not project outward significantly enough to be considered as the tip of an organ. He makes these statements with regard to the laws of tzara’at. There are, however, commentaries which explain that the same rationale applies in this instance. Others explain that a man’s nipples – in contrast to a woman’s – are not at all functional.

See also Hilchot Tum’at Meit 2:7, which considers such a finger to be one of a person’s limbs.

Note the contrast to Halachah 9.

Tosafot, Bava Kama 98a ask why the servant is released because of such a loss, for the loss is not necessarily evident in the slave’s body. They offer two answers: a) the loss is evident in the slave’s functioning, b) our Sages did not require that the loss be evident, but rather that a loss take place in a limb that is evident.

I.e., the master did not strike the slave’s eye directly, but instead struck another portion of his head that caused his eye – or ear – to lose its function. Rashi, Kiddushin 24b, offers a different interpretation of the passage on which this law is based, and it is Rashi’s interpretation that is quoted by Shulchan Aruch (Yoreh De’ah 267:35).

For the blemish is not comprehensive enough to warrant the slave’s being released.

For it is as if the eye or the tooth had already been removed.

For ultimately, the slave will be able to use that hand.

In his Kessef Mishneh, Rav Yosef Karo raises a question on this ruling, based on Halachah 4, which states that a person who castrates a slave is not required to free him. What, he asks, is the difference between the two instances? In both cases the master prevents the servant from using the organ in question. He offers two resolutions, both of them somewhat forced, but in his Shulchan Aruch (Yoreh De’ah 267:30), he quotes the Rambam’s ruling verbatim.

Significantly, Kiddushin 24b uses a different proof-text. The proof-text stated by the Rambam is, however, quoted in the Mechilta of Rabbi Shimon bar Yochai.

As evident from Halachah 13, the master need not have the intent to damage the slave; he must, however, have the intent to strike him.
As will be mentioned in the notes on Halachah 13, the Rambam’s ruling is based on his interpretation of Bava Kama 26b and Kiddushin 24b. Tosafot and the Tur have a different interpretation of this passage, on which basis they rule that the slave is freed even if the master does not intend to injure him. The Shulchan Aruch (Yoreh De’ah 267:36) quote the Rambam’s ruling. but the Siftei Cohen 267:46 mentions the other views.

I.e., the fetus after it is born. The mother is certainly not granted her freedom.

Kiddushin 24b cites this instance as an example of the principle mentioned in the previous halachah, that one must intend to strike the servant for him to be freed.

The commentaries note that the concept mentioned in Halachah 11 and the instance mentioned in this halachah are considered by Bava Kama 26b as representing opposing views. Hence, the commentaries question how the Rambam could accept both perspectives as law.
The Kessef Mishneh explains that from Kiddushin 24b (which quotes the instance mentioned in Halachah 12), one can conclude that a distinction must be made between an instance where the master had the intent of touching the slave and erred and damaged his eye, and an instance where he had no intent of touching him at all.

In this instance, although the master’s intent was for the slave’s benefit, he did intend to remove the slave’s eye. In the first instance, by contrast, the removal of the eye was a mistake.

I.e., the slave deserves his freedom because of the loss of his tooth. Therefore, he deserves payment for the damages to his eye.
The Ra’avad questions the Rambam’s ruling, based on the Rambam’s own statements (Hilchot Chovel Umazik 4:11):
For this reason, if an owner knocks out one of his slave’s teeth and then blinds his eye, he must free him because of his tooth, but he is not required to pay him because of the eye. If, however, the servant seizes the assessment [that would be due him], it is not expropriated from him.
The ruling in Hilchot Chovel UMazik is based on the concept that Bava Kama 74a questions whether or not causing the slave the injury is considered as freeing him and thus granting him an independent financial capacity or whether he must be given a bill of release to attain that capacity.
Since there is a doubt whether or not the slave possesses such a capacity, the owner is not required to pay him the damages, for until the slave receives that capacity all moneys due him belong to his master, and his master is never obligated to pay him anything. On the other hand, if the servant seizes the money due him, it is possible that the money is rightfully his, for he may already have attained his independent financial capacity. Therefore, he is not required to return it.
Based on the above explanation, the Kessef Mishneh explains that in our halachah, the Rambam is speaking about an instance where the second injury was made after the master wrote the bill of release. Alternatively, his intent is that if the servant does in fact seize the money, it should not be taken from him.

I.e., he blinds his eye and then knocks out his tooth or causes him to lose the tips of any other limbs or organs. If, however, he blinds both eyes, knocks out two teeth or causes him to lose two other tips of limbs and organs, simultaneously, he is not liable (Mechilta, Exodus 21:27).

For example, the slave had been jointly owned by two masters and one freed him, and one did not. See Chapter 7, Halachah 2.

The Radbaz notes that Chapter 7, Halachah 7, states that the master of a slave who is half free is compelled to free him. ln such an instance, however the freed slave is obligated to reimburse the master for half his value. If the slave would be released because of the loss of the tips of his limbs or organs, by contrast, he would not be under any obligation to his former master.

The Kessef Mishneh explains that although Bava Kama 90a mentions the opinions of many Sages of the Mishnah who differ with this ruling, since the Sages of the Gemara debate concerning it, we assume that it is accepted as law.

The term nichsei tzon barzel refers to property that a woman brought to the home, for which the husband accepts a fixed responsibility. They are evaluated at the beginning of the marriage and in the event of his death or divorce, his estate or he must pay the value determined to his wife. Thus, such property does not belong to the woman any longer. See Hilchot Ishut 16:1.

For he is their sole owner.

For he is no longer their owner.

The term nichsei m’log refers to property that a woman brought to the home, for which the husband accepts no responsibility. He is allowed to use this in an ordinary way. In the event of the husband’s death or divorce, the woman receives the property back in whatever state it is in. If it is damaged or destroyed the husband is not liable. See Hilchot Ishut, ibid.

And not their bodies. Ownership of an object’s use does not define a person as their owner. (See Hilchot Bechorot 4:6.) Moreover, even if he were considered their owner, the ownership would be joint, together with his wife, in which case the law mentioned in the previous halachah would apply.

For her husband has the right to use them.

I.e., both in Eretz Yisrael and in the Diaspora.

I.e., its practice is not, as is the observance of certain other commandments including the laws governing a Hebrew servant, limited to the time when the Temple exists or the Jubilee year is practiced.

This refers to the semichah, the ordination of judges that extends back to Moses our teacher, as described in Hilchot Sanhedrin, Chapter 4.
On the basis of this statement, the commentaries have raised question with regard to the Rambam’s previous statement that this law is practiced “in every time.” For the type of Rabbinical ordination we are speaking about was nullified in the era following the composition of the Mishnah. The commentaries explain that as mentioned in Hilchot Sanhedrin 4:11, the practice of semichah can be renewed even in the Diaspora, under certain conditions.
The Kessef Mishneh offers a different interpretation, explaining that the intent is not that in the present era, the release of slaves because of an injury is not practiced. This is not so, for in the present era (see Hilchot Sanhedrin 5:17), if a person to whom a fine is owed seizes what is due him, he is allowed to maintain possession. Thus, in this instance, since the servant is in possession of his own physical person, he is granted his release.
Thus, the Kessef Mishneh continues, the intent is that in the era when there were judges with semichah, if a person admitting injuring his slave before witnesses testified, he would not be liable, for a person is not liable to pay a fine unless witnesses testify to his guilt before he admits it in court, as the Rambam states in Hilchot Nizkei Mammon 2:8. In the present era, since there are no judges with semichah, this law does not apply.
The Radbaz accepts the first part of the Kessef Mishneh’s reasoning and notes that the second portion is accepted by the Ramban. It cannot, however, be used as an explanation of the Rambam’s position. For in Hilchot Sanhedrin 5:18, he states that an admission made in a court today is considered binding.

The Rambam defines a fine (k’nas) as any case in which a person pays more or less than the value of the damage or injury he caused (Hilchot Nizkei Mammon 2:8). Since the injury he caused the slave is not worth the slave’s entire value, this case falls into this category.

Our translation follows the version of the Mishneh Torah found in authentic manuscripts and early printings, and it is the version followed by the Kessef Mishneh. The standard printed text of the Mishneh Torah states “admits to him.”

I.e., the master is not liable to bring a guilt offering if he takes an oath that he did not injure his servant, and then it is discovered that he did injure him (Kessef Mishneh).
The rationale is that a person is liable to bring a guilt offering only when his admission would have obligated him to pay money. In this instance, a person who admits the obligation is not liable to pay. Hence, he would not be liable to bring a sacrifice.
Alternatively, the intent is that abstractly, according to Scriptural Law, the master is not liable to free the servant (Kessef Mishneh). According to this interpretation, the text found in the standard printed versions of the Mishneh Torah, “the master admits,” is preferable – i.e., because of his admission, he is not liable (Kin’at Eliyahu).

Chapter 1, Halachah 4.