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27.08.2019 11:18    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  devarim  parasha  reeh  

 

The subject of the Hebrew slave comes up in several places in Scripture.[1] The discussion in this week's reading is devoted to another right of the slave, the right to severance pay, in Hebrew din ha`anakah, so called after the verse, "you shall certainly give him" (ha`anek ta`anik lo).  The biblical law states (Deut. 15:12-15):

If a fellow Hebrew, man or woman, is sold to you, he shall serve you six years, and in the seventh year you shall set him free.  When you set him free, do not let him go empty-handed:  You shall certainly give him a severance gift out of the flock, threshing floor, and vat, with which the Lord your G‑d has blessed you.  Bear in mind that you were slaves in the land of Egypt and the Lord your G‑d redeemed you; therefore I enjoin this commandment upon you today.

Maimonides counts this law as comprising two commandments.  One is a negative injunction—"do not let him go empty-handed"—that we not set the slave free without giving him something.[2] The other is a positive commandment—when the slave goes free, one must give him or her of what the master possesses.[3] In some reckoning of the commandments, another negative injunction is identified here, namely, "When you do set him free, do not feel aggrieved" (v. 18).[4]

In Maimonides' view, the pairing of the commandments as they appear in the Torah puts din ha`anakah, or the law of entitlement to a grant, in the category of lav ha-nitak le-aseh, or a negative injunction whose violation is set right by performing a positive commandment.  As Maimonides put it:  "Whoever sends away his servant or maid-servant empty-handed transgresses a negative commandment, as Deuteronomy 15:13 states: 'Do not let him go empty-handed.' The verse also made provision for this to be remedied with a positive commandment, as Deuteronomy 15:14 states: 'You shall certainly give him a severance gift.'"[5]

Of course, the right to a severance gift ostensibly contradicts the view that wages are paid for the work that a worker actually performs; for this is not the case with ha`anakah, since the worker has already been paid his wages for his efforts.  Hence, Sifre explains the idea behind the commandment, which has nothing to do with the work done by the worker.  We are commanded:  "'Bear in mind that you were slaves in the land of Egypt,' and just as I gifted you and doubled your portion, so you too shall gift him and double for him.  Just as in Egypt I gave you generously, so you too shall give him generously."[6]

The Aharonim disagree about this commandment.  Rabbi Judah ben Samuel Rozanes, in his work on Maimonides, Mishneh la-Melekh, believes that the requirement of a severance gift is part of the bondsman's wages.[7] Rabbi Yehoshua Falk Cohen, in Sefer Me'irat Einayim (SME) on the Shulhan Arukh, holds that a severance grant falls under the law of gifts.[8] In contrast, Rabbi Shabtai ha-Cohen, in Siftei Cohen (Shakh) on the Shulhan Arukh believes that "ha`anakah comes under the laws of tzedakah."[9]

This deliberation leads to another:  can the master be forced to pay severance pay, if he refuses to do so?  According to Mishneh la-Melekh, he is to be forced to uphold the commandment and give a severance grant.[10] Rabbi Samuel Rozovsky (1913-1979, head of the Ponevezh Yeshiva) refines what is said in Mishneh la-Melekh, that coercion is applied only at the moment the master releases his slave, but if he has already released him, the master cannot be compelled to pay.[11]

The obligation is to pay at the time that the slave is set free,[12] and Rabbi Rozovsky stands on the point that commandment of ha`anakah is to be performed at the precise moment that the slave is set free, "and it clearly follows that the negative injunction is violated immediately at the moment of emancipation."[13] As against this approach, Rabbi Pinhas ha-Levy Ish-Horowitz writes in Sefer Ha-Mikneh:  "We have not found that the Bet Din is admonished to coerce the master and extract the grant from him, and the reason is apparently because the reward is stipulated alongside the command—the Lord your G‑d will bless you in all you do—so the Bet Din is not admonished in this regard."[14]

Regarding the validity of the commandment of ha`anakah and its application, Sefer ha-Hinukh says, "It was practiced with regard to males and females in the time of the Temple, for the laws pertaining to the Hebrew slave apply only when the Jubilee year is observed."[15]

Now we must ask how this commandment is relevant to our times.  After all, the institution of slavery in its biblical form has been abrogated.  The answer is that we derive from it the cornerstone for granting severance pay to a worker who has been laid off.[16]

How can a Hebrew slave be compared to a laborer in our day,[17] and how does one get from the law of ha`anakah to severance pay?  After all, "We have no explicit law establishing the obligation to pay severance pay."[18] This should be answered by citing Sefer Ha-Hinukh, where we are instructed that despite the fact that the law of ha`anakah pertained in the era when the Sabbatical and Jubilee years were observed, "nevertheless even in our times a wise person should understand the implications.  Whoever hires an individual who works for him a long or even a short time should pay the worker severance pay out of that with which the Lord has blessed the employer when the worker leaves his job."[19] To understand how Sefer Ha-Hinukh arrives at this conclusion, we must trace the rationale that he seeks to show us at the root of the commandment of ha`anakah:

So that we acquire in our being lofty, refined and admirable traits, and with this excellence and refinement of our being, that we merit beneficence; for the good Lord desires to be beneficent to His people, and our pride and glory is that we deal mercifully with whomever has served us and that we give him of what is ours by way of kindness, aside from what we stipulated with him to give him as his wages; and this is a rational matter and needs no more lengthy exposition.[20]

This conclusion was also reached by Justice Zilberg in one of the rulings handed down in the early years of the State of Israel, before the law of severance pay was enacted.  He told us, "It is well known that the notion of such severance pay originates in the duty of ha`anakah in the Torah."[21]

The Sephardic Chief Rabbi, Ben-Zion Meir Hai Uzziel found another source justifying severance pay.  According to him, the origin of this duty lies in the verse from Proverbs, "So follow the way of the good and keep to the paths of the just" (Prov. 2:20), as he tells us:

Even though there is no substantiation in the Torah, nor in the writings of the Rabbis, to back up the payment of laborers or clerical workers hired for an amount of time, nevertheless there is place for such a law and to make severance pay legally binding:  "So follow the way of the good and keep to the paths of the just," for the Rabbis deduced from this verse that the employer must remunerate his workers (Bava Metzia 83a)…and this gives judges the authority to take money from the employer and remunerate the workers in any instance that they see the verse applies, "So follow the way of the good and keep to the paths of the just," as they see fit, having a clear awareness of the circumstances of the employer and the worker, the reason the employer laid off his workers and the reason the worker terminated his work; and according to all these circumstances it is permissible, and incumbent upon the judges to find in favor of taking money from the employer to the credit of the worker, in regard of whom the Torah cautions, "pay him his wages on the same day."[22]

From the texts assembled here it follows:  the present-day obligation of severance pay, aside from stemming from the laws of the State and its legislation,[23] also draws on the biblical law of ha`anakah—the same law by which a slave, upon finishing his term of indenture, is to be given a grant to serve him in the period of readjustment to life as a free person.  The Aharonim, with their deep insight, found that the law of ha`anakah should rightfully be applied not only to the slave, but also in the case of the laborer.

Translated by Rachel Rowen

 
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