Or HaChaim on Exodus 21:3/אור החיים על שמות כ״א:ג׳

1 אם בגפו יבא, If he enters the service as a single man, etc. Our sages in Kidushin 20 conclude from this wording that if the Jewish slave enters his period of slavery while unattached, his master is not allowed to asssign a Gentile slave-woman to cohabit with him. The legislation permitting this applies only if said slave is already married. I believe the reason they came to this conclusion is that the sages were bothered by an anomaly in the text. The Torah appears to repeat itself when it says that if the slave entered service married he shall leave in that state. Seeing the Torah had already said that if he entered service unmarried he will leave unmarried, this implies that if he had been married previously he could leave with his wife. Why did the Torah have to spell this out? You will find that the sages scrutinised the verse and said that the words "and his wife will leave" are quite inappropriate. His wife, after all, had never become a slave! Why does she need the Torah's permission to leave? The sages therefore interpreted these words to mean that while the slave was in the service of his master the master had to provide also for the needs of the slave's wife. Once the slave leaves, this obligation is at an end. If the Torah had meant that the slave-woman the master had assigned to the slave could leave with him, this would contradict the clear statement in verse four that any wife and children born by such a woman during these years will most certainly not be released with their husband/father. What then did the Torah mean when it said that the slave's wife may leave together with him? The sages therefore arrived at the conclusion that only a married slave may be assigned a slave-woman to cohabit with. Clearly the statement was intended to provide an additional halachah. The word בגפו means "if he has no Jewish wife." We know this because when the Torah speaks of a man married to a Jewish wife the man is called בעל אשה. The words בגפו יצא mean he is to leave unmarried, as single as he entered the service of his master. One may also understand this as a comparison to when he entered, i.e. "just as he entered service without wife and children, neither the kind that could depart with him nor the kind that had to remain behind with his master, he leaves as he came." If he had a wife but no children at the time he entered the service of his master, the latter cannot assign a Gentile slave-woman to him either as we would consider him as having entered service בגפו, alone. The same applies even more so if the slave had been the father of children at the time he entered the service of the master although he had not had a wife at that time.

2I have seen that Rabbi Eliyahu Mizrachi feels that the reason for the legislation just mentioned is that otherwise the Torah should have written merely כן יצא instead of בגפו יצא. I do not agree with this. On the contrary, had the Torah written what Rabbi Mizrachi suggested as an alternative this would have reinforced the impression that the master could not give him a slave-woman and that he had to remain as single as when he entered the service. The truth is that the reason the Torah did not write כן יצא is because of other implications such an expression implies.

3You may ask whence the sages derived the ruling in Kiddushin 20 that the master can assign to the slave a gentile slave-woman only if he entered his service while not only being married but also having children? It is, of course, true that the rulings are part of the oral Torah and not dependent on being spelled out in the written Torah. Nonetheless we may search for clues in the written Torah. Where are children mentioned in the Torah? The answer is that when a person is married without children he is to leave בגפו, in the same state as he entered the service seeing that if the master assigned a Gentile slave-woman to him and he had children by her the slave could no longer qualify under the heading as leaving בגפו, i.e. in the same state as he had entered his master's service. He entered the service without children whereas now he has children. Similarly, if at the time he entered the service he had children but no wife the master cannot assign a slave-woman to him as he would not then leave his service in the state he had entered it. He entered it being single and he would leave it being married, a state that cannot be described as "just as he was unmarried when he entered the service, so he has to be in the same state when he leaves." If the slave had a wife when he entered the service of his master but he did not have any children whereas by the time he leaves his master's service he has children by his Jewish wife, he may take these with him although one may describe his status as having changed seeing that when he entered service he was allowed to live with his wife. The Torah made everything dependent on his having a wife at the time he entered service as a slave, even if the children were born only later. From this it would follow that if the slave had entered his master's service while married to a Jewish woman and his wife had died, the master may then assign a slave- woman to him as the Torah was concerned only with the slave's status at the time he entered the master's service, i.e. בגפו יבא. If I did not have the words of the Talmud before me I would have derived that ruling from the words: "if he is the husband of a wife;" this wording suggests to me that in order for the master to have the right to assign a slave-woman to the husband he must have been married at that time.

4אם בעל אשה הוא, If the slave is a married man, etc. We have to accept the Mechilta Acharite de Rabbi Shimon who says that the wording implies that the master has to supply the needs of the wife only if she is an appropriate wife for the slave. Should the slave be married to a woman forbidden to him under Jewish law even if the marriage was legal under Jewish law, his master has no obligation towards her. This raises the question why the master is allowed to assign a woman who is forbidden to this slave as stated specifically both in the Talmud and in chapter 3 section 4 of Maimonides' Hilchot Avadim. Maimonides distinguishes between the right to live with such a woman and the master's obligation to provide for such a woman when she is not his slave. The words אם בעל אשה הוא therefore have to be interpreted as applicable only to the law mentioned in this verse, i.e. provision of a Gentile slave-woman as partner for such a slave.

5The Mechilta raises another aspect here in these words: "I might have thought the master will be obligated to provide for the needs of a woman merely betrothed to the slave, or to a woman who is the widow of his brother who died without children and who awaits the levirate union; the Torah speaks of אשתו to teach us that the betrothed, etc., is not included in the category of wife for whom the master has to care. On the other hand, if the slave was betrothed to a woman he is no longer characterised as בגפו, single, and the master is entitled to assign a slave-woman to him while he is in his service. According to the discussion in Kiddushin 20 the same applies if the slave had children from a wife who had died and in the meantime he had betrothed himself to another woman. He is then considered as fitting the definition of having both a wife and children so that the master can assign a slave-woman to him as marital partner.

6ויצאה אשתו עמו, his wife leaves together with him. The letter ו in front of the word יצאה is appropriate seeing the master had also been responsible for the wife's maintenance.