[Avodah] Slavery

[Chana Luntz]

RMK writes:

> On 2/18/07, T613K at aol.com <T613K at aol.com> wrote:
> > ...  What he seems to own is not the eved but the
> > right to the eved's labor.
> 
> Is this correct halachically?  Is ownership of an eved 
> considered a kinyan haguf or kinyan peiros?  I believe that 
> at least for an eved k'naani, it is considered a kinyan haguf.
> 
> (Toby's point remains unchanged, that despite the particular 
> technical halachic categorization, the owner essentially only 
> has the right to the eved's work, not to do anything with him at all.)

In the case of an eved canani, you are talking about a kinyan haguf.  To
put us all on the same page, however, here is a copy of a post I did for
another list, setting out various key si'ifim in the Shulchan Aruch on
the subject:

"On the topic of an eved c'nani (as opposed to an eved ivri), I think it
might be helpful to bring down some of the sources on the subject, so
that at least people can see what the halacha is, rather than what they
understand the halacha to be from reading the Torah or various bits of
gemorra - for this reason I quote the Shulchan Aruch Yoreh Deah 267:

3: An eved who is acquired from a non Jew they say to him is it your
will that you enter into the category of an avdei Yisroel and be made
kosher or not, and if he wants, you make known to him the essence of the
religion, and a few of the easy and difficult mitzvos and punishment and
reward like you make known to a ger [convert] ...

4: One who acquires an adult eved from a non Jew and the eved does not
want to be circumcised it can be put off for 12 months, but more than
that it is forbidden to remain with him uncircumcised rather one must
return and sell him to a non Jew. [The Rema hold slightly differently,
if one makes a tannai that he will remain uncircumcised he can,
especially where it is forbidden by the general law to convert him, but
he remains in the status set out in 9 and 17 below, ie a complete non
Jew, not an eved c'nani].

5: If one circumcises his eved and tovels [immerses him in a mikvah] him
against his will l'shem avdus [for the sake of servitude] he hasn't done
anything. [Rema if he does so wish to be toyveled, and he carries out
all the mitzvas of an eved, the master can free him afterwards against
his will]

9: One who acquires an eved from a non Jew does not acquire the body of
him until he is toyveled l'shem avdus.  Therefore if before he toyvels
l'shem ben chorin [freedom] behold he is free. [discussion in the Rema
about monetary payment, and what happens if somebody suggests to the
eved that he toyvels l'shem ben chorin - the one who suggests is patur
from paying, but the eved has a debt on him to pay off the master his
value].

17 One who acquires a non Jewish eved from a Jew or a non Jew and also a
non Jew who sells himself to a Jew or sells his sons or daughters,
behold they are as an eved c'nani but that one which is acquired from a
non Jew his body is not acquired only the work of his hands ... and for
all of them all the time that they have not had tevilla l'shem avdus
they are a non Jew in all matters and after tovelling l'shem avdus he
is an eved and is chayav in mitvas like a woman and with this eved it is
permitted to work him harshly [b'farech] but even though the din [law]
is so from midus chassidus and darchei chachama [the ways of wisdom] he
should be a merciful master and should not make heavy the yoke on his
eved and not anguish him and shall feed him from all food and drink and
shall not shame him not with his hand and not with words and not
multiply for him yellings and anger rather speak with him calmly and
listen to his complaints. [There seems to be some discussion as to
whether the shaming with hands and/or words is midus chassidus or din
for which you need to pay - see  Nida 47a  where Shmuel paid his
maidservent 400 zuz for shaming her.  Tosfos explains that is to save
himself from punishment, because in terms of payment, he didn't owe her
since payment for shame goes to the master. The Beis Hillel seems to
learn from this that there is an obligation to apease]

26-36 deals with what kinds of injuries need to be inflicted before the
eved goes free - it is a detailed list, but includes the tips of his
fingers and his ears.

80: One who sells his eved to a non Jew or a ger toshav the eved goes
out to freedom ... 

84: An eved who says he wants to make aliya to Israel they force his
master to make aliya with him or to sell him to one who will make aliya.
If the master wants to go out of Israel he may not take out his eved
unless he wishes, and this is true in all times, even when Eretz Yisroel
is in the hands of non Jews.

85: An eved who flees from outside Israel to Israel you do not return
him to servitude and upon him it is said (Devarim 23:16) You shall not
deliver to his master.."

As you can see from the above, an it is definitely a kinyan haguf, but
there has to be a formal conversion to create this, with the eved
accepting upon himself to carry out the mitzvos that woman has (nb, this
is a machlokus rishonim, but it is clear from here that we posken that
this is required).

There is also an issue, which I have not adverted to above, as to how
the eved was originally acquired. Remember kidnapping is, according to
most, an violation of the shiva mitzvos benei noach - and comes in under
the heading of theft - so if this slave is being sold because he was
originally kidnapped you have stolen property issues.  This is not true
if eg the dina d'malchusa allows for a person to be sold as as slave, eg
for avoiding taxes but there needs as a starting point to be a
legitimate property right under dina d'malchusa (or din melech, or
whoever is the authority granting and establishing proprietry rights).
But even once there is, there are various other requirements, such as
the consent of the eved, an acceptance of mitzvos, mila and tevila in
order to create a bone fide eved c'nani.

Shavuah tov

Chana