HA'ANAKAH


HA'ANAKAH (Heb. הַעֲנָקָה), the gratuity which the master was enjoined to pay his Hebrew bound servant when the latter was set free. This institution is the source, in Jewish law, of the laws of severance pay, i.e., payment of compensation to employees on their dismissal. The term ha'anakah has been interpreted as deriving from the word anak (עֲנָק) in the sense of an ornament (around the neck, Prov. 1:9), i.e., that the bondsman must be "ornamented" with the gratuity, or in the sense of "loading on his neck" (Rashi and Ibn Ezra to Deut. 15:14).

Scriptural References

The duty of ha'anakah is enjoined in the Bible as both a negative and a positive precept – "when thou lettest him go free from thee, thou shalt not let him go empty," and "thou shalt furnish him liberally out of thy flock, and out of thy threshing floor, and out of thy winepress of that wherewith the Lord thy God hath blessed thee" (Deut. 15:13, 14) – and in this twofold manner has been included in the enumeration of the precepts (Maim., Sefer ha-Mitzvot, pos. comm. 196 and neg. comm. 233; Semag, lavin 178 and asayin 84; Sefer ha-Hinnukh, nos. 450, 484). The duty of ha'anakah arose upon completion of the six-year period of service (Deut. 15:12) and the grant was to be made out of the things with which the master's house had been blessed by virtue of the bondsman's service (Deut. 15:14; Kid. 17b; see statement of Eleazar b. Azariah). The duty of ha'anakah was enjoined as a reminder of the bondage in Egypt and exodus to freedom (Deut. 15:15), when the Israelites were "furnished" with property of their Egyptian masters (Sif. Deut. 120; Rashi and Rashbam, ad loc.). The institution of ha'anakah, unique to Jewish law as opposed to other ancient legal systems, was rooted in the special attitude toward a Hebrew bondsman, whose position was compared to that of a worker hired for a fixed term: "… for to the double of the hire of a hireling hath he served thee six years" (Deut. 15:18).

The Right to the Gratuity

It was laid down that the servant became entitled to the gratuity upon expiry of his term of service, or termination thereof on account of the Jubilee or his master's death, but not for reasons attributable to the servant himself, as, for example, when he gained his freedom by "deduction from the purchase price" (i.e., by refunding his master part of the price paid for himself, pro rata to the uncompleted term of his service): "You shall furnish to whomever you set free, but not to anyone who sets himself free" (Sif. Deut. 119; Kid. 16b). For this reason, the gratuity right was forfeited by a runaway, notwithstanding intervention of the Jubilee. In the opinion of R. Meir, one who was freed by deduction from the purchase price remained entitled to the gratuity since it took place with the master's approval (Kid. 16b); on the other hand, some of the tannaim denied the gratuity right to one who was set free on account of his master's death (TJ, Kid. 1:2, 59c).

In the Midrash Halakhah the gratuity right was extended both to the one sold into bondage through the court on account of his theft (Ex. 22:2) and to one who sold himself into bondage on account of utter poverty (Lev. 25:39), nor were these cases distinguished in the Mishnah (see Ḥ. Albeck, Shishah Sidrei Mishnah, Seder Nashim, 409f.). In a baraita disputing opinions were expressed on this matter, some scholars holding that only one sold into bondage through the court and not one selling himself was entitled to gratuity, with R. Eliezer (Kid. 14b) holding that both were entitled thereto; this dispute was carried over into the codes (Yad, Avadim, 3:12; Tos. Kid. 15a, S.V. idakh; and commentaries). One of the grounds for the view that one who sold himself into bondage was not entitled to the gratuity was that in doing so voluntarily, he transgressed the prohibition, "For unto Me the children of Israel are servants; they are My servants" (Lev. 25:55) "and not the servants of servants" (Kid. 22b; Yam shel Shelomo, Kid. 1:22).

Substance of the Gratuity Right

In tannaitic times the gratuity was looked upon as a personal right of the freed servant which was not transferable on death (Sif. Deut. 119), but the amoraim held it to be part of his remuneration and therefore transmissible "… just as the wages of a hired servant belong to his heirs, so here too…" (Kid. 15a; cf. also the version of Elijah Gaon, loc. cit. and see Minḥat Ḥinnukh no. 482). Contrary to the principle of "R. Nathan's Lien" (see *Shi'buda de-Rabbi Natan) with regard to the general right to recover a claim from a third party indebted to the debtor, the gratuity right was not attachable by the servant's creditor (Kid. 15a–16b) and, according to the majority of the posekim, the creditor could not recover his debt from the amount of the gratuity – not even when the servant was already released and in possession of the gratuity payment (Maim. comm. to Kid. 1:2; cf. Nov. Penei Yehoshu'a Kid., final collection).

The duty of furnishing a gratuity was, according to the majority view of the scholars, independent of the measure of gain derived by the master from his servant's labor (Sif. ibid.; Kid. 17a/b and cf. contrary opinion of Eleazar b. Azariah), but all the scholars accepted that a minimum was payable (although disagreeing on the amount: Kid. 17a), together with an increment according to the measure with which the master has been "blessed," such increment being payable by the master with a "generous hand" (Sif. Deut., 119–20).

Two opposing views concerning the legal substance of the gratuity were expressed in the codes. According to some scholars it was not part of the servant's remuneration for his labor but derived from the institution of charity (Ẓedakah; Shakh. to ḤM 86:3) or of waiver and gift (Sema, ḤM, 86:2 and see Giddulei Terumah to Sefer ha-Terumot, 51:1:5); other posekim, following the halakhah of the amoraim concerning transmissibility at death, of the gratuity took the view that the gratuity was mainly to reward the servant for services rendered "beyond his wages" (Beit ha-Behirah, Kid. 15a) and therefore it had to be considered as part of his remuneration (Penei Yehoshu'a Kid. 16b; Mishneh la-Melekh, to Yad. ibid.).

Severance Pay

Adaptation of the gratuity institution to one of general compensation for employees upon dismissal was first mentioned toward the end of the 13th century, when it was stated that notwithstanding the abolition of Hebrew bound service, which was linked with observance of the Jubilee year, the employer still had to pay a gratuity to his departing worker regardless of the period of service (Sefer ha-Hinnukh, 450). Although this was phrased at that time as a moral obligation only, later scholars found it possible to recognize this duty of the employer as legally binding. In recent times this development has been acknowledged in the decisions of various scholars, and particularly in the judgments of the rabbinical courts in Israel, in three different ways:

(a) In accordance with the principle of the bound servant's gratuity, in pursuance of the statements in the Sefer ha-Hinnukh (ibid.), it was held that "… the intention of the Torah was to make it the employer's duty to be concerned about the worker's future so that the latter should not depart from his work empty-handed" (PDR, 3:286f.). Because Jewish law compared the position of a bound servant to that of a hired worker, it was concluded that the latter "certainly enjoys all the former's privileges… the more so since he does not transgress a prohibition" (i.e., that of selling himself into bondage – see above; resp. Maharam of Rothenburg, ed. Prague, no. 85: see also Yam ha-Gadol, no. 22).

(b) A different approach was adopted by Benzion *Ouziel (see his responsum quoted in Tehukat Avodah (see bibl.) 132f.). Holding that the law of the gratuity could not properly be relied upon to support the existence of a full legal duty to compensate an employee upon his dismissal, he preferred to base this duty on the scriptural admonition, "That thou mayest walk in the way of good men, and keep the paths of the righteous" (Prov. 2:20) in the same way as it was relied upon in the Talmud with reference to exempting the hired worker in certain circumstances from liability for damage negligently caused to his employer (BM 83a). Although conceding that this talmudic principle was a matter of equity (li-fenim mi-shurat ha-din) rather than binding law, R. Ouziel followed the opinion of numerous posekim that it was nevertheless enforceable by the court (Mordekhai BM 257; Sh. Ar., ḤM 12:2, and Rema in loc.; also Bah ḤM 12), and therefore decided that the court, "having due regard to the respective positions of the parties and reasons for the worker's dismissal or for his own departure," was empowered to order an employer to compensate his worker.

(c) Since it was not generally accepted that an obligation solely li-fenim mi-shurat ha-din is enforceable by the court, some scholars preferred to base the principle of severance pay on the Jewish legal source of custom (see *Minhag; PDR, 1:330f.). Thus the rabbinical courts, applying the rule that "custom overrides the law" has special reference to labor law (TJ, BM 7:1; 11b) and recognizing "the spread in our time of a usage to pay severance pay," have laid down that severance pay "is not a matter of grace but a claim under law" which is payable even if the employer be a charitable institution. In arriving at this decision the rabbinical courts incorporate also the principle of the gratuity, holding that particular significance attaches to custom in this instance, since "we find a basis for it in the Torah and halakhah," and since this custom is founded on the Torah, "the gratuity payable to the Hebrew bound servant is therefore fit and proper" (PDR, 1:330f., 3:286f.; 4:120).

It may be noted that R. Ouziel, in giving his above-mentioned decision (in 1945), specifically refrained from basing the severance pay obligation on custom – for the reason that such a usage was not yet sufficiently known and widespread. A mere 10 years later the court, seeking a basis for full legal recognition of the severance pay duty, had reason to find as follows: "Now that the custom has spread and become accepted in the whole country, and is common and practiced daily, it must be followed and the above-mentioned statements [of R. Ouziel] no longer apply." This is an illustration of great flexibility in recognizing the establishment of a custom.

In the years since the establishment of the State of Israel, the rabbinical courts have laid down a number of rules concerning the matter of severance pay, including the following provisions: compensation is to be paid at the customarily accepted rate, or if this be uncertain, as determined by the court (PDR, 1:332f.); it is payable also to a temporary employee – if he has worked for a period approximating two years (ibid.), and also to a part-time employee (4: 129), but an independent contractor is not entitled to severance pay (3:272). An innovation was the rule that the employer is obliged to provide his worker with one month's prior notice of dismissal, or a month's remuneration in lieu thereof. This was deduced by the analogy of the landlord's duty, in Jewish law, to provide the tenant with a month's notice of eviction, in order that the latter be not deprived of a roof over his head; a fortiori in the case of a worker, so that he be given an opportunity to find an alternative source of livelihood. (Sh. Ar., ḤM 312:5; PDR, 4:130 and 3:281–3, where disputing opinions are quoted on the aptness of the analogy.)

In the State of Israel

In Mandatory times the obligation of severance pay was upheld in numerous judgments of the Mishpat ha-Shalom ha-Ivri. This fact contributed toward entrenchment of the usage, which came to be recognized as legally binding in a decision of the Mandatory High Court (Cohen v. Capun, in: Palestine Law Reports 7 (1940), 80, 88) and until 1963, custom alone formed the legal basis for the payment of severance pay under the general law. Thus the Supreme Court of Israel, in considering the antiquity of the above custom, stated: "It is common cause that the principle of severance pay is rooted in the scriptural duty of ha'anakah" (PDR, 5:275; 17, pt. 2:1255). The lack of statutory guidance led to many difficulties in the application of the custom. In 1963 the Severance Pay Law was enacted by the Knesset, with emphasis on the fact that the fundamental idea of this law derived from traditional Jewish law. The following are some of the law's main provisions:

A person dismissed by his employer after having been continuously employed for one year or – in the case of a seasonal employee – for two seasons in two consecutive years, is entitled to severance pay at the rate of a month's wages per year of employment for a "salaried employee" and two week's wages per year for employment for a "wage earner" (i.e., one whose remuneration is paid on the basis of a lesser period than one month; secs. 1, 12); in certain circumstances the employee is entitled to severance pay following his own resignation, i.e., by reason of an appreciable deterioration of his conditions of employment, or on account of his or a member of his family's state of health, or the transfer of his residence (secs. 6–8, 11). The employee is also entitled to severance pay if his employment has ceased owing to the death of his employer, and for certain other reasons (sec. 4) and upon the employee's own death, severance pay is payable to his survivors (sec. 5). A person employed under a contract for a fixed period is entitled to severance pay at the end of the period, as if dismissed, unless the employer has offered to renew the contract (sec. 9). Severance pay is deemed to be wages payable in precedence to all other debts (sec. 27) and a composition and acknowledgment of discharge as to severance pay are invalid unless reduced to writing and expressly state that they relate to severance pay (sec. 29).

[Menachem Elon]

SEVERANCE PAY – SOCIAL OBLIGATION, NOT SALARY

The question of how to characterize severance pay – whether as a social right given to an employee who has been dismissed, irrespective of his salary, or as part of the salary – arose in the Israel Supreme Court in the case of Ben Moshe (CA 293/73, Ben Moshe v. Ben Moshe, 28(2) PD 29). In that case, the question arose in the context of divorce proceedings, regarding the scope of the husband's obligation to pay maintenance to the wife. The woman was entitled to receive a certain amount of money as severance pay from her employer. Classifying that severance pay as salary would result in it being regarded as money earned through her handiwork (ma'asei yadeha); consequently, her husband would be entitled to deduct the sum received as severance pay from his obligation to pay maintenance, inasmuch as her maintenance was offset by her income earned through her own handiwork (see *Maintenance). If, on the other hand, severance pay is classified as a social right unrelated to salary, it would not affect the husband's obligation to make maintenance payments.

The Court (Justice Kister) examined the one-time grant of severance pay by analogy to the laws of ha'anakah paid to a Jewish slave under Jewish law, in accordance with the aforementioned explanation of Sefer ha-Ḥinukh, (§482), on the basis of which he drew his conclusion regarding the nature of severance pay. Rambam rules that ha'anakah is given to the slave himself and not to his creditor (Yad, Avad. 3.15; p. 33 of the decision). Me'irat Einayim stresses that, unlike salary, which may be subject to a lien, ha'anakah is not subject to lien because "ha'anakah is not given to the Jewish slave under the rubric of a debt, but rather under the rubric of waiver and gift, according to the principles of amnesty" (Me'irat Einayim, Sh. Ar, ḤM, 86.2), while the Shakh rules that "it is known that ha'anakah is derived from the laws of ẓedakah (alms) (Shakh, ad loc., 3; p.34 of decision).

This was the basis for the Court's conclusion that severance pay is in the order of a social obligation imposed on the employer who fired his employee and is not a component of the employee's salary. (The Court noted that the term "laws of ẓedakah" does not imply that this is a purely moral obligation that cannot be imposed through coercion, inasmuch as the term ẓedakah derives from the same root as Ẓedek (justice) and there are cases in which the giving of Ẓedakah may be legally coerced. The term "laws of Ẓedakah" should therefore be imputed the same meaning as the modern term "social obligations," which are also imposed by coercion). Accordingly, severance pay is not viewed as the wife's "handiwork" and should not be offset against the maintenance payments (decision, supra, pp. 33–35).

The Jerusalem Rabbinical Court (File 51/569, 18 PDR 346) dealt with a similar case, in which the provisions of a divorce agreement compelled the husband to pay his wife a specified percentage of his salary. The husband was fired from his job, and the question was whether his severance payment should be regarded as salary, in which case the husband would be obligated to pay his wife part of it pursuant to the agreement, or whether it should be regarded as a grant that is not regarded as salary. The minority opinion (Rav Kilav) was that, as law of the state requires severance payment, the employment contract between the employee and the employer was concluded in reliance upon the existence of this obligation, and therefore it should be viewed as part of the salary. On the other hand, if the employee and employer had agreed upon severance pay in excess of the statutorily mandated sum prior to the employee's dismissal, then the balance in excess of the statutory requirement should be viewed as a grant that is not part of the salary.

However, the majority opinion (Rabbi S. Fisher) was that severance pay is to be regarded as additional payment for years of service, similar to manager's insurance, and therefore should not be regarded as part of the salary but rather as a separate grant. Nonetheless, the majority concurred that severance pay not be regarded as "ha'anakah" within the meaning of that term in Jewish law, but rather as money paid by force of custom.

For a further discussion of the obligation to pay severance pay as a matter of the custom of the State and not as an obligation derived from the law of ha-anaka, see the opinion of the High Rabbinical Court in Case 59/734, PDR 21 188.

THE LEGAL POSITION IN THE STATE OF ISRAEL

As stated, the Rabbinical Court held that there are halakhic grounds for the duty of giving advance notice prior to an employee's dismissal or, alternatively, to provide compensation for dismissing an employee without prior notice (19/2535, 3 PDR 272; 4 PDR 126). In 2001, the Prior Notice of Dismissal or Resignation Law 2001, was enacted. This law establishes the employer's duty to give an employee prior notice of his/her impending dismissal within a certain prescribed period of time, as well as the employee's duty to give his employer prior notice a certain period of time prior to resigning. The law also provides that an employer dismissing an employee without prior notice is required to pay the employee an amount equivalent to his regular salary for the period of time prescribed, and that an employee who resigned without prior notice must pay his employer a penalty for the period during which the notice was not given.

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

H. Baker, Legal System of Israel (1968), 189–94; M. Wager and P. Dickstein, Piẓẓuyei Pitturin (1940); S.B. Bar-Adon, Dinei Avodah (1942), 51–63; M. Finding, Tehukat ha-Avodah (1945), 49f., 132f.; ET, 9 (1959), 673–87; Sh. Warhaftig, Dinei Avodah ba-Mishpat ha-Ivri, 2 (1969), 643–53, 1090–1100; M. Elon, in: ILR, 4 (1969), 87–89. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:140, 749f., 754, 765; 3:1367f, 1422, 1533; ibid, Jewish Law (1994), 1:158; 2:924, 929, 942; 4:1631, 1694, 1823; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), 1 (1986), 84–85; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Ashkenaz, Ẓarefatve-Italyah (legal digest) (1997), 55; B. Lifshitz, Oved ve-KablanBein Kinyan le-vein Hithayyevut (1993).


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