Wednesday, February 14, 2007

definition of eved - part 1

The opening of our parsha deals with the laws of an eved, a jewish slave. There is one yesod of R’ Chaim Brisker that is crucial to understanding this whole sugya; I’m going to try to present it and hope things don’t get too technical. There are two ways a person can become a slave: 1) by selling himself into slavery; 2) by being found guilty of thievery and having no money to make restitution, in which case the court sells the person into slavery. The halachos that apply to these two cases are not necessarily the same – see Kiddushin 15. There is a fundamental machlokes between Rashi and the Ritva (kiddushin 15) as to whether the heter of a slave to marry a shifcha applies to these cases. According to Rashi, only in the case of a slave sold against his will does the master have a right to offer the slave a shifcha to be his wife and produce children who will remain indentured as slaves themselves. If someone sells himself into slavery, he may not take a shifcha as his wife. According to the Ritva, a slave who is sold against his will may be coerced by his master to take a shifcha as a wife; one who sells himself may if he desires marry a shifcha, but his master may not coerce such a union.

The gemara (Kiddushin 16) explains that it is not sufficient for the slave’s master to be moichel the debt of the slave in order to free him – a formal shtar shichrur, an emancipation document, must be presented to the slave. The gemara explains that slavery is more than a monetary debt that can simply be forgiven – it is a kinyan haguf. Just as a woman who is married requires a get to release her because the status of being married carries with it far more than financial obligations, the most obvious of which is the prohibition of a married woman to marry another man, so too the status of slave is more encompasing, effecting even who the slave may marry - only a slave but not a free man is permitted to marry a shifcha.

According to the Ritva who holds that every slave is permitted to marry a shifcha, the reason all slaves require a shtar shichrur is because all slaves have this kinyan haguf component defining their status. However, according to Rashi, only a slave sold against his will is permitted to marry a shifcha. One who sells himself into slavery has not made any change to his ritual status in terms of who he can or cannot marry. If so, why according to Rashi does such a slave need a shtar shichrur? Why isn’t that form of slavery simply a monetary debt, with no kinyan issur or kinyan haguf, which simple mechila could cancel? Stay tuned for more…

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