| Maidservants, Mother Birds and the Importance of Mesorah | Rabbi Dovid Abenson The Lakewood Scoop – thelakewoodscoop.com

I received the following question from a teenage girl:

How could the Torah command a father to sell his daughter into slavery?

She was referring to the verse in Parshas Mishpatim (Shemos 21:7) which states:

Now if a man sells his daughter as a maidservant, she shall not go free as the slaves go free.

She asked: isnt this cruel? How could the Torah tell a man to sell his daughter with the purpose of the master to marry her. Its disgusting for a 9-year-old girl to get married. This is forced marriage.

I think it is important to address this question. There are many places where the Torah appears to conflict with our modern moral sensibilities. It is vital for all of us, especially parents and educators to understand how to address such questions head-on without dismissing them. When students feel their questions are brushed aside or given only perfunctory answers they feel that maybe the Torah doesnt have all the answers and will start to look elsewhere.

A second reason to address this question is that it shows the supreme importance of not taking the written Torah out of context. It can only be fully understood with the help of the Torah she bal peh, the oral Torah, as we shall demonstrate.

The first question we need to address is whether the pasuk is actually referring to a , a positive commandment to sell a daughter. This would seem to hang on how we are to interpret the word (ki). Sometimes when a pasuk begins with ki the Torah is meaning if this happens to you then you will have a mitzvah, suggesting a positive commandment.

For example in Parshas Ki Teitzei (Devarim 22:6-7) we read about the mitzvah of Shiluach Hakan, sending away the mother bird from the nest. The text reads:

| | :If a birds nest chances before you on the road, on any tree or on the ground, [it contains] fledglings or eggs and the mother is sitting upon the fledglings or the eggs, you shall not take the mother upon the young

:

You shall send away the mother bird, [and then] you may take the young for yourself, in order that it should be good for you, and you should lengthen your days.

The promise of the reward of longevity would seem to suggest that this is a positive commandment. In that case, ki does not mean just if you happen upon the nest, and the mother is there and you actually want the eggs or the chicks, you could do it, but rather that there is merit in seeking out opportunities for this mitzvah. ( Aruch Hashulchan 292:1, Birchei Yosef 292:8 quoting the Arizal. Rav Shmuel Kamenetsky (Am Hatorah Journal 5:7, pg 12) recommends trying to perform the mitzvah at least once. See, however, Responsa Chasam Sofer O.C. 100 and Responsa Torah Lishmah 27710. See Responsa Minchas)

Can we apply the same logic to the pasuk regarding selling a daughter as a slave? There is no explicit promise of reward, but the initial ki remains the same, potentially indicating a positive mitzvah.

To resolve this question it is necessary to examine our Oral tradition. We do not derive Torah law from logic alone, nor from looking only at the text of the written law. Unlike the ancient Sadducees, Karaites, or the reform Jews, we do not attempt to derive our religious practices solely from the Written Torah. We have Mesorah, an unbroken chain of tradition passed down together with the written law to Moshe at har Sinai and transmitted by sages from generation to generation until today. The Torah She bal peh comprises the Mishnah and the Talmud. The Mishnah was compiled between 200220 CE by Rabbi Yehudah Hanasi. The Gemara is a series of running commentaries and debates concerning the Mishnah. Together, the Mishnah with its relevant Gemaras forms the Talmud.

Even though the Oral Torah was ultimately written down, due to the existential threat of dispersion facing the Jewish civilization following the destruction of the Second Temple in 70 CE, it was written in such as way that it is virtually impossible to understand it without learning it together with a teacher himself steeped in the oral tradition. The belief that at least portions of the Oral Torah were transmitted orally from God to Moshe on Har Sinai during the Exodus from Egypt is a fundamental tenet of faith for religious Jews. Indeed it forms one of the Rambams Thirteen Principles of Faith, the Ani Maamin recited daily after Shacharis. Many passages of the Torah and the details of laws central to Jewish life are almost incomprehensible without the oral tradition that explains them. They were clearly never meant to be separated, but always learned together.

So let us examine how the oral law explains the pasuk about the father who sells his daughter as a slave. Both the Rambams Sefer HaMitzvos and the Sefer HaChinuch compilations of Jewish laws derived from the conclusions of the Talmud and the earlier Torah Law Codes show that there is no positive commandment at all for one to sell his so daughter even though it states . The positive mitzvah is only for the man who buys her as a (maidservant)

In the Rambams Sefer HaMitzvos, Mitzvah 233 is the mitzvah of (liyod ama ivriya) the designation of a Hebrew slave woman. If a Jewish man has acquired a slave woman, he has to marry her or give him as a wife to his son. This mitzvah is derived from the pasuk (Shemos 21:8) that if she is bad in the eyes of her master, who designated her for himself, he must let her be redeemed. Rashi shows, based on a Chazal (Bechoros 19a), that this verse hints at the fact of a commandment of designation (marrying her or marrying her off) that precedes the commandment of redemption.

The Rambam goes on to explain that this mitzvah actually shows Gods mercy on the poor girl who is sold, and on her father who needed to sell her. In Biblical times, as until very recently, there was no such thing as a girl who could be financially independent. Girls were supported by their fathers or older brothers until they could be married off and supported by a husband. If a father was so poor that he was unable to support his daughter any longer, it was considered a chesed for another family to buy her: that is, a man would give the father money and in exchange, take the girl in as a member of his household. She would receive work, food, and lodging. Better than redemption is for the master of the house to marry her himself or give her to his son to be married, for this would bring joy to the girl.

The Rambam (Mishneh Torah Chapter 4:2 about slaves) explains that a father may only sell his daughter into servitude if he has become so poor that he has nothing left: not land, movables, or even clothing. Even then, as soon as he is able financially, he should be compelled to buy her back to avoid further disgrace to the family. If the father has fled or died or had no means to buy her back, she must serve until she goes free.

Later the Rambam says he cannot force a marriage against the girls will. She has to be in agreement with the arrangement.

So we see there is no mitzvah to sell a daughter. Rather this is a provision made for a girl whose father was forced to sell her rather than starve to death. What may seem a barbaric practice from the written text alone turns out to be a remarkably compassionate approach when we look at the Mesorah.

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| Maidservants, Mother Birds and the Importance of Mesorah | Rabbi Dovid Abenson The Lakewood Scoop - thelakewoodscoop.com