Parshat Mishpatim: A minor financial arrangement


By Rabbi Avi Billet

Issue of Feb. 20, 2009 / 26 Shevat 5769

In the Jewish life that we live, it is fair to say that we put a lot of stock in the teachings of the rabbis of old. Without their teachings and expositions, Judaism as we know it might look very different.

This is not a bad thing. Two Torahs were given at Sinai, written and oral, and the rabbis took their time figuring out the nuances of the written through the generational transmission of the oral.

One form of commandment, familiar to Jewish insiders, is the rubric of “halakha l’Moshe MiSinai” –– laws commanded to Moses at Sinai –– which share their own category. The most common that we deal with include the laws surrounding how tefillin, mezuzahs and Torahs are put together, and how shechitah (ritual slaughter) is correctly performed.

One of the stranger laws (to our modern palate) is that “a girl child under the age of three’s relations is not considered to be viable.” (See Rambam’s introduction to the Mishneh for a more comprehensive list).

A website that is very antagonistic to Rabbinic Judaism jumps on this latter law (please contact me for the website – no need to give them free publicity) and accuses the rabbis of all sorts of disgusting behavior to ‘figure out this law.’ Granted, when people have a negative agenda, they can assume what they want.

It is most likely that the rabbis recorded this as a “halakha l’Moshe MiSinai” firstly because of a transmission of mesorah (oral tradition), and secondly because they were responding to the question of what is the status of a three-year-old girl in case of the most horrible circumstance, or in case of some accident. What are the ramifications of her future status vis a vis perhaps marrying a kohen one day, or how would her ketubah (marriage contract) be affected in any union?

Which leads us to our parsha.

21:7-11 records the mitzvah of “amah ivriyah” –– the Jewish maidservant.

“When a man sells his daughter as a maidservant, she shall not leave as other male-servants leave. If she is distasteful in the eyes of her master to whom she has been delegated, he may redeem her, but he cannot sell her to a non-Jew. If he gives her to his son (as a wife), he should do for her like the law of all girls. And if he takes another (wife? maidservant?), he should not diminish her food, clothing, and “onah.” If he does not do any of these three, she goes free and he does not get any money in refund [from her father.]”

What is going on here?

Firstly, this commandment only applies in a time when yovel (Jubilee) is observed (Sefer HaChinukh #43).

It is a sad tale when a parent is so destitute that the only source of income he can muster is through selling his daughter as a maidservant for a limited period of time, either six years, or when yovel comes, or if she reaches puberty.

How old is she through this process? The Talmud (Kiddushin 16a-b) speaks of her, and the commentaries all make it quite clear that the girl in question is a minor. As a matter of fact, if she is meant to work for six years –– and her servitude would end with the onset of puberty, which is considered to be about age 12 –– presumably she is beginning her time as a maid somewhere between ages 4 and 6.

What is the nature of her relationship with her master or his son? What is “onah”?

Rashi says “onah” refers to marital relations. I readily admit that I do not understand Rashi. Are we to assume that her “servitude” is partially paid for in her becoming a wife to the master or to his son?

Rashbam says “onah” refers to her living quarters, also known as “shelter.” This makes sense. “He shall not diminish her food, clothing and shelter.” (Chizkuni agrees; Ibn Ezra mentions this approach as well)

The Shakh focuses on the word in other contexts, and explains how “onah” comes from a word that means cycle, or regularity. He says “onah” refers to the master’s obligation (or his son’s obligation) to study Torah regularly, and to daven regularly, as in Shema and Shemoneh Esrei (the Amidah), from which the girl will benefit.

Is there a marriage in this equation? Possibly. Does the master take the girl in to make her his wife? It seems unlikely. While there are discussions in Jewish law of “kiddushei ketanah” (betrothing minors) it is not meant to go beyond the theoretical discussion into practical marriage unions. The marriage discussion (as opposed to betrothal) never begins until the girl is no longer considered a minor.

No matter what the reality or the reason, the commandments in this segment are not on the father to sell his daughter, but on the master as to how he is to treat her.

This means that the community must do its part to help a person avoid such destitution, either through helping with employment, through loans, or through handouts (if there is no alternative) to prevent the daughters of Israel from being used in such financial arrangements.

Avi Billet welcomes your comments and thoughts at avbillet at