The institution of Ama Ibri’a (the Jewish maidservant), which applied when the law of the Yobel (jubilee year) was binding, allows for a father who fell into financial straits to sell his young daughter as a maidservant. The Torah discusses the laws of the Ama Ibri’a in Parashat Mishpatim, where it commands that the master who purchases the girl is not allowed to then sell her to anybody else. In formulating this command, the Torah (Shemot 21:8) writes, “Le’am Nochri Lo Yimshol Le’mochrah” – that the master may not sell the maidservant to “a foreign nation.” At first glance, this means that the master is not permitted to sell the girl to a non-Jew, but may, if he so wishes, sell her to a fellow Jew. In truth, however, this is not the case. Targum Onkelos translates the phrase “Am Nochri” (“foreign nation”) in this verse as “Gebar Oharan” – “another man,” indicating that the master may not sell the maidservant to anyone.
The Sefer Ha’hinuch explains that the Torah uses the term “Le’am nochri” in this context because from the perspective of the maidservant, being sold to another Jew would be as difficult and distressing as being sold to a gentile. After all she has already endured – growing up in a poor family, and then being sold as a servant – being sold to somebody else would be devastating, as though being sold to a non-Jewish man.
The prohibition applies both to a maidservant and to a male Jewish servant. A master who purchased either a male or female servant is not allowed to sell him or her to somebody else.
The Sefer Ha’hinuch explains that this command is intended to teach us “to act with the quality of compassion, which is beloved before Him.” The master is to have compassion on this girl, who was forced by poverty to be sold as a servant, and not sell her a second time.
The Sefer Ha’hinuch writes, interestingly enough, that one who transgresses this prohibition and sells his male or female servant is not liable to Malkut. Even though active violations of Biblical prohibitions are normally punishable with Malkut, this prohibition marks an exception. Some explain that since this violation is committed by receiving money, which occurs passively, without actually performing an action, the violator is not liable to Malkut. Others explain that Malkut is not administered because the sale is ineffective. If the master tries to sell the servant, the Torah negates the transaction, and it does not take effect. Therefore, since, in the end, the master did not actually effect any change, as the sale is null and void from the outset, he is not liable to Malkut.
The Gemara establishes that although the master may not sell the girl to somebody else, the father may sell his daughter a second time. Meaning, if the girl is released before the completion of her term of service, and she is still a minor (and thus capable of being sold), the father may sell her a second time. However, if the father of a young girl accepted Kiddushin (betrothal money) on her behalf, and she thus became betrothed to a man, she cannot then be sold as a maidservant after being divorced or widowed. Once a girl has been married, she cannot then be sold as an Ama Ibri’a, even after she is divorced or widowed and returns to her father’s home.
The Gemara discusses the situation of an Ama Ibri’a to whom “Yi’ud” was done – meaning, the owner married her – and she is later widowed or divorced. If she is still a minor at the time she is widowed or divorced, can the father then sell her a second time? On the one hand, as we saw, the father is entitled to sell his daughter as a maidservant multiple times. But on the other hand, in this case, she had been married in the interim, albeit not directly by the father, so perhaps the father then loses the right to sell her.
The Gemara states that the Halacha in this situation depends on the debate among the Tanna’im regarding the mechanics of “Yi’ud.” In general, betrothal takes place through the transfer of money to the bride, or, in the case of a minor, to her father. When a master marries his maidservant, seemingly, no money has been transferred, thus giving rise to the question of how the betrothal takes effect. The Tanna’im disagreed as to how to answer this question. According to the majority view, the money paid by the master when he purchased the girl from the father retroactively becomes the Kiddushin money once he betroths the girl. Rabbi Yossi Ben Rabbi Yehuda, however, maintains that the master foregoes on some work owed to him by the maidservant, and it is through the value of this work, which the girl in a sense “receives,” that the betrothal takes effect. The Gemara explains that according to the majority view, it turns out that when “Yi’ud” occurs, the father receives Kiddushin money. Therefore, since a father who receives Kiddushin money for his daughter’s betrothal loses his rights to sell her as a maidservant henceforth, the father in this case, too, can no longer sell the girl. According to Rabbi Yossi, however, the father never received Kiddushin money; the girl was betrothed by being relieved of some of her responsibilities to the master. Therefore, if she is then widowed or divorced, the father still has the right to sell her a second time as a maidservant.
Many scholars noted that the Rambam appears to issue contradictory rulings in this regard. On the one hand, he follows the majority view, that when “Yi’ud” takes place, the money paid to the father for the purchase becomes the Kiddushin money. However, the Rambam also rules that if the master marries the girl and he then dies or divorces her, the father can sell her a second time – a view which the Gemara ascribes to Rabbi Yossi. The Rambam’s comments are very difficult to explain, and the later scholars discuss at length various possibilities to reconcile his comments with the aforementioned discussion in the Gemara.