Vol 19.20 - Re'eh 4              Spanish French Audio  Video

Page153   Page154   Page155   Page156   Page157  

Summary:
 
Severance/parting gift (haanaka) to a worker according to Rambam , in today's times

(5738 Likutei Sichos vol. 19, XIX  p. 153ff.)

Synopsis:

You should give him many gifts from your flock, your threshing floor, or from your wine vat, or you should give him from whatever G‑d, your G‑d, has blessed you with.

-- Devarim 15:14

To whom is one obligated to give severance gifts? (v. 14)

Talmud: "When a slave who sold himself into slavery goes free, he is not given severance gifts. But when a slave who was sold by the courts goes free, he is given severance gifts."

Rabbi Elazar says: "Both of them are given severance gifts."

What is the rationale of the first opinion, that a slave who sells himself is not given severance gifts? The Torah states, "If one of your brethren...is sold to you by the courts...when you send him away... you should give him..." (v. 12-14). This suggest that you should give only to "him" (who was sold by the courts), and not to one who sells himself.

The other opinion (Rabbi Elazar) interprets the word "him" as meaning "him and not his heirs" (Kidushin 14b-15a).

Rambam: One who sells himself is not given severance gifts. One who is sold by the courts is given severance gifts (Laws of Slaves 3:12).

When is the mitzvah of giving severance gifts in force?

Sefer Hachinuch: Only in Temple times, because the laws of Hebrew slaves are only practiced when the Jubilee year is observed. Nevertheless, even today, "Let the wise man hear and increase in learning" (Proverbs 1:5)—if one hires a Jewish person who serves for a long period of time, or even a short period, he should be given gifts when he leaves him (Mitzvah 482).

Minchas Chinuch: Sefer Hachinuch argues that, even today, a person should give severance gifts to one's employees out of a sense of decency. However, according to the first view in the Talmud, severance gifts are surely not given for reasons of decency, since decency would dictate that all of a person's staff should be given severance gifts, and the first view of the Talmud is selective in who should receive the gifts.

Since Rambam rules in favor of the first opinion in the Talmud (that the gifts are given selectively), it turns out that, according to Rambam, there is no basis to give severance gifts today.

However, in the final analysis, this is somewhat difficult to accept, since the Sefer Hachinuch rarely deviates from a ruling of Rambam without stating so explicitly.

Are severance gifts a type of earnings?

Pnei Yehoshua: Yes (Kidushin 16b, s.v. ve'iy iysa).

Shach: No. The gifts are a form of charity (Choshen Mishpat 86:3).

Severance Gifts in the Current Era (v. 14)

According to the first opinion in the Talmud, severance gifts are not given to a person who sells himself into slavery. The legal dynamics of this ruling could be understood in one of two ways:

1. Logic dictates that there is no necessity to give severance gifts. The Torah prescribes that severance gifts should be given only to a slave sold by the courts. A person who sells himself into slavery is therefore not eligible for severance gifts; or 
    
2. In principle, all slaves should receive severance gifts, but the Torah made a specific exception in the case of the person who sells himself into slavery, and disqualified him from receiving them.

A practical difference between these two approaches (to this first opinion in the Talmud) is whether the concept of severance gifts of slaves in the Temple era could act as a moral basis on which to recommend severance gifts today:

According to the first approach ('a'), the Torah only teaches us one isolated case that is eligible for severance gifts (that of a slave sold by the courts). Thus, we have no basis on which to extend the principle to other cases. However, according to the second approach ('b'), the concept of severance pay applies in principle to all cases (and it is only that the Torah made a special exception in the case of the slave who sells himself). Consequently, it could be argued that the principle is relevant today too.

Rambam rules in accordance with the first opinion of the Talmud. Therefore, if we can ascertain whether Rambam adopted approach 'a' or approach 'b,' we could clarify whether Rambam would concur with the view (of Sefer Hachinuch) that severance gifts are given even today.

The Legal Basis of Severance Gifts

The legal basis on which severance gifts are granted could be understood in one of two ways:

1. It is a type of earnings awarded to the worker as a bonus on his departure (as Pnei Yehoshua writes), over and above what he earned; or
    
2. The severance gifts are given as a charitable donation (as Shach rules) and a display of kindness.

It could be argued that these two views are commensurate with the two approaches ('a' and 'b') above:

Approach 'a' understands that, in principle, nobody deserves to be given severance gifts. This corresponds to view '1,' that the gifts are given as a type of earnings, since a person cannot be said to deserve earnings after he has already been fully paid for his work. The Torah therefore teaches us, as an exception, that a slave sold by the courts is given gifts.

On the other hand, approach 'b' maintains that, on the contrary, everybody really deserves severance gifts. This corresponds to view '2', that severance gifts are a type of charity, and charity should be given to everyone. It is only that the Torah made a special exclusion in the case of a person who sells himself into slavery.

In his Sefer Hamitzvos, Rambam codifies the precept of severance gifts (not among the laws of slavery, but rather,) immediately adjacent to the mitzvah of giving charity (commands 195 & 196; prohibitions 222 & 223), which suggests that Rambam perceived severance gifts as a type of charity.

Thus, Rambam would have sympathized with approach 'b' (that, being a type of charity, everybody deserves severance gifts) which means that—according to the above logic—the precept of severance gifts is a model which can be extended, by the dictates of decency, to apply to all employees even today.

( Adapted by Chaim Miller; From the teachings of the Lubavitcher Rebbe)

Translation:

Links:
https://www.chabad.org/parshah/article_cdo/aid/704638/jewish/Severance-Gifts.htm