According to the Torah, a thief must pay back the value of what they stole, and if they don’t have the money, they are sold into slavery. The money given to the court for their sale is then used to pay back the cost of the theft.
In the system laid out in the Torah, enslavement is not always an inherited condition. As we’ve been discussing, a man can sell himself or his dependents into slavery. But Exodus 22 tells us that a court can also sell a free person into slavery when he owes money he does not have.
The rabbis of the Talmud know the biblical system. And today’s daf offers us two attempts to limit at least some of the court’s ability to sell this penniless thief into slavery.
The sages taught: If he stole one thousand and he is worth five hundred, he is sold and sold again. If he stole five hundred and he is worth one thousand, he is not sold at all.
The rabbis here insist that the thief is only sold if his purchase price on the slave market would be equal to or less than what he owes his victim. (The Talmud doesn’t explain how he could be sold twice over, and frustratingly, neither do the medieval commentators). If his purchase price would be more than what he owes, the court has no right to sell him at all. Next we encounter another opinion that limits the scope of the court’s power even further.
Rabbi Eliezer says: If he stole equal to his sale value, he is sold; and if not, he is not sold.
According to Rabbi Eliezer, the court can only sell this thief into slavery if the thief’s purchase price on the slave market is exactly equal to the cost of what he stole, presumably down to the perutah. And that seems like a pretty unlikely scenario. What do the other rabbis of the Talmud think about this possibility?
Rava said: In this Rabbi Eliezer triumphed over the rabbis, as what is different where the property he stole is worth five hundred and he is worth one thousand that he is not sold?
The Merciful One states that he is sold in his entirety, and not part of him. So too The Merciful One states that he is sold for his theft, and he is not sold for part of his theft.
In this case, we find that Rabbi Eliezer’s minority opinion triumphs over the majority opinion of the rabbis, the logic being that a thief is sold in his entirety for the whole of his theft. He can’t be partially sold or sold to reimburse part of this theft. Hence, he should only be sold if what he sold precisely matches his value as a slave.
If we read between the lines, we see real rabbinic discomfort with a court being able to sell a person into slavery for theft. This discomfort is particularly striking when we remember that they are talking not about foreign courts, but about rabbinic courts tasked with interpreting and applying biblical law. And it is even more striking when we see that they are not disputing whether the man actually is a thief. So the move that they are making is a bold one: The man is a thief, convicted by a legitimate rabbinic court, and yet it is extremely unlikely that the court could ever impose the punishment the Torah prescribes in this case.
This reading is creative, but its severe limitation of biblical law was also troubling to at least one medieval commentator, Tosafot Rid, Rabbi Yeshayah d’Trani. Tosafot Rid limits the scope of Rabbi Eliezer’s position. He writes, “Rabbi Eliezer did not disagree with [the rabbis about] the possibility of selling [the thief] once [but only with the possibility of selling him twice], as if he had, it would never be possible to have a Hebrew enslaved person sold for his theft.” He insists that Rabbi Eliezer’s position aligns, at least in spirit, with the Torah’s own legislation on this topic.
And yet we can also approach this topic from the exact opposite perspective – perhaps the rabbinic impossibility of this kind of sale is exactly the point, both for Rabbi Eliezer and for the rabbis who follow him.
Read all of Kiddushin 18 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 31st, 2023. If you are interested in receiving the newsletter, sign up here.
