YHE-HALAKHA: TOPICS IN HALAKHA

 

 

Clarifications Regarding The Laws

Governing The Ransoming Of Captives

 

Rav Yehuda Shaviv *

 

 

            The issue of Israeli soldiers being held prisoners by our enemies has remained high on the national agenda for many years. Deep concern for the welfare of captives held in non-Jewish hands is characteristic of the Jewish tradition, and finds expression in various halakhot which we shall attempt to clarify below.

 

            First and foremost, it should be remembered and mentioned that the status of "captive" in Jewish law is not limited to a soldier who falls into enemy hands during a time of war. Rather, it applies to any Jew seized by non-Jews in whose power it is to do with him as they please. It is for this reason that all the Jews still living today in Syria and Iraq can justly be regarded as captives in the halakhic sense of the term.

 

I.              The Importance Of The Mitzva

 

The mitzva of ransoming captives is a great mitzva, and one is even permitted to sell a Torah scroll to fulfill it (Bava Batra 8a, and Tosafot, ad loc., s.v. pidyon). Why so? Rabba bar Mari explains:

 

Rava asked Rabba bar Mari: Whence is derived the maxim of the Rabbis that the ransoming of captives is a great mitzva? He replied: From the verse: "And it shall come to pass when they say unto you, Whither shall we go forth, then you shall tell them, Thus says the Lord, Such as are for death, to death, and such as are for the sword, to the sword, and such as are for famine, to the famine, and such as are for captivity, to captivity." And [commenting on this] Rabbi Yochanan said: Each punishment mentioned in this verse is more severe than the one before. The sword is worse than death… Famine is harder than the sword… Captivity is harder than all, because it includes the sufferings of all. [Rashi: For he is in the hands of non-Jews who can do with him as they please, whether for death, for the sword, or for famine.]

 

            Owing to the great importance of the mitzva, it touches upon a number of positive and negative mitzvot:

 

The ransoming of captives takes precedence over supporting the poor or clothing them. There is no greater mitzva than ransoming captives for the problems of the captive include being hungry, thirsty, unclothed, and they are in danger of their lives. Ignoring the need to ransom captives goes against these Torah laws: "Do not harden your heart or shut your hand against your needy fellow" (Devarim 15:7); "Do not stand idly by while your neighbor’s blood is shed" (Vayikra 19:16). And misses out on the following mitzvot: "You must surely open your hand to him" (Devarim 15:8); "Love your neighbor as yourself" (Vayikra 19:18); "Rescue those who are drawn to death" (Mishlei 24:11) and there is no mitzva greater than the ransoming of captives." (Rambam, Hilkhot Matnot Aniyim 8:10)

 

            Clearly, then, the Jewish community is obligated to do whatever it can do to redeem Jewish captives from their captivity. It is at this point, however, that Halakha comes and adds qualifications.

 

II.            We Do Not Ransom Captives For More Than Their Value

 

The Mishna states:

 

We do not ransom captives for more than their value, in the public interest [mipenei tikkun ha-olam, literally: "for the repair of the world"]; and we do not help captives escape, in the public interest. Rabban Shimon ben Gamliel says: In the interest of the captives. (Gittin 4:6)

 

            The reason given – owing to the public interest – suggests that were it not for this factor, it would have been appropriate to give whatever is necessary for the ransom of captives. We must, however, understand the mishna's qualification: Does the mishna mean to say that one is not permitted to ransom for more than their value, or that one is not obligated to do so, but if one so desires, this is permissible? The answer to this question seems to depend on the two understandings of the rationale underlying this law appearing in the Gemara:

 

The question was raised: This public interest, is it [so as not to impose] an excessive burden on the community or so as not to encourage the taking of more [prisoners]? [Rashi: An excessive burden on the community – we must not burden the community and impoverish it for the sake of these captives; or perhaps so that the non-Jews not risk their lives to take more captives because they can sell them at a high price]. Come and hear: Levi bar Darga ransomed his daughter for thirteen thousand dinars of gold [= a sum that is certainly greater than her value]! Abaye said: But are you sure that he acted with the consent of the Sages? Perhaps he acted against the will of the Sages. (Gittin 45a)

 

            If the rationale underlying the law is the burden that must not be imposed upon the community, then it stands to reason that the community is merely not obligated to ransom at more than the captive's value, but if they wish to do so, it is permissible. But if the reason is not to encourage the taking of captives, the concern is that paying more than the captive's value will lead to the taking of more captives. According to this rationale, a community should be forbidden to ransom captives for more than their value even if they wish to do so.[1]

 

            Another practical difference between the two understandings follows from the words of the Tosafot, who have difficulty understanding why Rabbi Yehoshua ben Chananya ransomed child for much more than his value (see Gittin 58a). They explain:

 

At the time of the destruction of the Temple, the reason that they should not be encouraged to take more captives does not apply.

 

            That is to say, there are situations or periods in which there is no concern that paying an excessive ransom will encourage the taking of more captives, and then the only factor is the concern about overburdening the community. We can easily imagine such a situation, with respect to prisoners taken during war. In such a case, there is no concern that the number of prisoners taken will increase owing to the ransom that is paid. On the contrary, there is room to argue that paying a high ransom will convince the enemy that it pays for them to take our soldiers as prisoners rather than to kill them, and they will also try to keep them alive while they are in captivity. On the other hand, in the case of a plane hijacking or the like, where the terrorists' entire goal is to take prisoners in order to extort the payment of a high price, there is added weight to the argument that we must do nothing to encourage the taking of more captives in the future.

 

III.        The Positions Of The Rishonim

 

The Gemara does not resolve the question regarding the rationale underlying the mishna's ruling, and therefore the Rishonim try to decide the matter based on a passage in Ketubot 52a:

 

[If] she was taken captive and they were demanding from him up to ten times her value, the first time, he ransoms [her]. From then on, [if] he wishes, he ransoms [her], [and if] he wishes, he does not ransom [her]. Rabban Shimon ben Gamliel says: We do not ransom captives for more than their value, in the public interest.

 

            It should be noted that we are dealing here with the case of an individual who ransoms his wife for more than her value, just like the case from which the Gemara in Gittin tried to prove that the rationale underlying the law is so as not to impose an excessive burden upon the community. Indeed, the Tosafot (Gittin 45a) seized upon the words of the anonymous first Tanna in order to raise an objection against the rationale of not encouraging the taking of more captives. In contrast, the Ramban proves from the fact that Rabban Shimon ben Gamliel invokes the rationale of "in the public interest" even in the case of a husband who comes to ransom his wife, that the interest in question is not the excessive burden placed on the community, but rather so as not to encourage the taking of more captives. According to him, it is only according to this rationale that there is no difference between the community and an individual. In light of the words of the Ramban, it is possible to suggest that this is precisely the issue in dispute between the anonymous first Tanna of the mishna and Rabban Shimon ben Gamliel: the anonymous first Tanna maintains that the rationale underlying the law is so as not to impose an excessive burden on the community, and therefore an individual is obligated to ransom his wife even for more than her value, whereas Rabban Shimon ben Gamliel maintains that the rationale is so as not to encourage the taking of more captives, and therefore the law applies to individuals as well.

 

            In any event, the Rishonim reject the comparison between the passage in Gittin and the passage in Ketubot. From their explanation for this rejection, we see that there is a fundamental disagreement between the Tosafot and the rest of the Rishonim.

 

            The Tosafot explain that the problem in Gittin cannot be resolved from the Gemara in Ketubot, because the anonymous first Tanna's position that a husband is obligated to ransom his wife for even more than her value is a special law based on the fact that "a man's wife is like himself." According to them, the Gemara's discussion in Gittin is not related to a person who comes to ransom himself or his wife, and therefore the problem regarding the ransom of an ordinary captive remains unresolved.

 

            In contrast, the Ramban, the Rashba and the Nimukei Yosef maintain that the anonymous first Tanna in Ketubot disagrees with the ruling that "we do not ransom captives for more than their value." Therefore, the passage in Gittin, which assumes this law, follows the view of Rabban Shimon ben Gamliel, and therefore we should accept the rationale that he proposes, "in  the interest of the captives" – that is to say, so as not to encourage the taking of more captives. You might ask: if so, why doesn't the Gemara decide the issue in Gittin based on the words of Rabban Shimon ben Gamliel in Ketubot? The most reasonable answer is that there are places where the Gemara does not resolve a question that it raises, even though there are other passages elsewhere in the Talmud that could solve the problem.[2]

 

            Two conclusions rise from the words of most of the Rishonim (as opposed to the Tosafot):

 

1)       The anonymous first Tanna of the mishna in Ketubot rejects the argument of "the public interest," arguing that we are obligated (or at least permitted) to ransom captives for more than their value.

 

2)       The rationale underlying the mishna in Gittin which states that we do not ransom captives for more than their value is so as not to encourage the taking of captives.

 

Support for these conclusions may be brought from the words of the Yerushalmi cited by the Rashba and the Nimukei Yosef (not found in the standard editions of the Yerushalmi) which explicitly state that the rationale for the law is so as not to encourage the taking of captives.

 

In the wake of the aforementioned disagreement, we find that the Rishonim disagree about how to rule on the matter in dispute in Ketubot. Rabbenu Chananel and the Rif rule in accordance with Rabban Shimon ben Gamliel, apparently because they understand that the anonymous mishna in Gittin follows his position. It is clear from here that they understand that the rationale underlying the law is so as not to encourage the taking of more captives. The Geonim and the Rama, on the other hand, rule in accordance with the anonymous first Tanna, on the assumption that this is the majority opinion. According to them, the rationale underlying the law according to Rabban Shimon ben Gamliel remains unclear.

 

Following his usual practice of ruling in accordance with the view of the Rif, the Rambam maintains that the rationale is so as not to encourage the taking of captives:

 

We do not ransom captives for more than their value, in the public interest, so that the enemy not chase after them to take them captive. (Hilkhot Matnot Aniyim 8:12)

 

            We may summarize by saying that Rabbenu Chananel, the Rif, the Rambam, the Ramban, the Rashba and the Nemukei Yosef conclude that the rationale is so as not to encourage the taking of captives, whereas the Geonim, the Rama, the Rosh and the Tosafot do not decide the issue.

 

            It is possible to argue, however, that despite the fact that Rabban Shimon ben Gamliel invokes the argument of the public interest to forbid an individual to ransom his wife for more than her value, there is still room for the argument of not imposing an excessive burden upon the community. The Ran explains that those who instituted the law considered not only the excessive burden placed on the community, but also the excessive burden placed on the individual, and therefore the same rationale applies to the individual as well. According to this explanation, even according to the position of most of the Rishonim, we cannot determine the rationale underlying the law according to Rabban Shimon ben Gamliel. How then did Rabbenu Chananel and the Rif decide that the mishna in Ketubot must follow the rationale of not encouraging the taking of captives, and therefore the law must be in accordance with Rabban Shimon ben Gamliel? The Ran explains that these Rishonim preferred to decide that we should not ransom captives at an overly dear price, because in a case of doubt, it is better to sit back and do nothing than to act, and not because the law has been decided according to Rabban Shimon ben Gamliel against the anonymous first Tanna. The Ran's understanding of the majority ruling is, however, unique.

 

IV.       The Normative Law

 

            The Tur (Even ha-Ezer 78) brings two opinions – that of the Rama and the Rosh that a husband is obligated to ransom his wife even for more than her value, and that of the Rambam and the Rif that he is only obligated to ransom her for her value. In Hilkhot Pidyon Shevuyim, however, he explains that the rationale underlying the law is so as not to encourage the taking of captives, without presenting a dissenting view. The Shulchan Arukh, consistent with the principle that he established for himself to rule in accordance with the majority opinion among the Rif, the Rambam and the Rosh, rules in Even ha-Ezer (78:2) in accordance with the Rif and the Rambam, and in Yoreh De'ah (252:4) he explains that the rationale underlying the law is so as not to encourage the taking of captives. The Rema in Even ha-Ezer, however, notes the dissenting opinion.

 

            It turns out then that it has been accepted as law that the reason that we do not ransom captives for more than their value is "so that the enemy not chase after them to take them captive," and therefore even the relatives of the captives are not permitted to ransom them for more than their value. The Bach, however, argues that relatives may enjoy the benefit of the doubt, since there is a view among the Rishonim that the issue was never resolved (see Ran, above), and the rationale might be so as not to impose an excessive burden upon the community. The Shakh (no. 4) concurs with the Bach on this point.

 

            Unfortunately, this type of "self-ransom" is a current problem, with relatives of very wealthy people being kidnapped and huge ransoms being demanded. No excessive burden is imposed upon the community, but paying these ransoms encourages additional kidnappings. According to the Tur and the Shulchan Arukh, the rich relatives are forbidden to concede to the extortion, whereas according to the Bach and the Shakh, they are permitted to pay the ransom. As for a husband and wife, the Tur maintains that a husband is permitted to ransom his wife for more than her value, whereas according to the Shulchan Arukh he is not permitted to do so.

 

V.        Paying The Ransom With The Captive's Own Money

 

            As for the captive himself, the Shulchan Arukh rules that he is permitted to ransom himself "at any price that he is willing to pay." The Shulchan Arukh learns this from the Tosafot in Gittin 45a that we saw above, according to whom it is clear that the law restricting the amount that may be paid to ransom captives does not apply to the captive himself. It should be noted, however, that some Rishonim explicitly write that even the captive is not permitted to ransom himself for more than his value. This follows from the words of the Nimukei Yosef:

 

For the public interest – the Gemara explains that we do not ransom a captive, even from the assets of the captive himself, for more than his value.

 

            It is possible that the Nimukei Yosef disagrees with the Tosafot regarding the principle that a husband is permitted to ransom his wife for more than her value because she is regarded "like himself," and if regarding a person's wife we rule in accordance with Rabban Shimon ben Gamliel, the same is true about the person himself.

 

            The Meiri records both positions:

 

We have already explained that we do not ransom captives for more than their value. This is not because of the excessive burden imposed upon the community, but rather the reason is so as not to encourage the taking of more captives. Therefore, even when a person ransoms himself with his own money, or when relatives ransom him, we do not allow him to ransom himself for more than his value… There are, however, those who disagree about one who ransoms himself, that we do not stop him from doing anything, but other relatives we do stop.

 

            It seems to me that the Shulchan Arukh was unaware of this disagreement (he makes no mention of it in his Bet Yosef), and therefore he issues the unqualified ruling that a person is permitted to ransom himself for more than his value.[3] It is possible, however, that even had he been familiar with the dissenting opinions, he would not have changed his ruling, for many Rishonim maintain that the rationale underlying the law is so as not to impose an excessive burden on the community, and therefore the law does not apply to the captive himself.

 

(Translated by David Strauss)

* This article was published in Alon Shevut 24. It was edited by Shaul Barth, but was not reviewed by Rav Shaviv. The second part of this article will appear in the near future.

[1] Rashi suggests a different practical difference between the two explanations: "The practical difference is: if he has a wealthy father or relative who is willing to ransom him for a lot of money and [payment of the ransom] will not fall upon the community." Why does Rashi not propose the simple practical difference that we have suggested? It is possible that Rashi is trying to adapt himself to the Gemara; since the Gemara tries to adduce proof from a wealthy father who ransomed his daughter, Rashi writes that there is a practical difference in the case of a wealthy father.

[2] The Ramban notes several examples of this phenomenon in his Milchamot Ha-Shem, Berakhot, chapter 3.

[3] This matter touches upon a general and fundamental question, can that manuscripts of the works of Rishonim that have come to light in recent years, but were not known to the Acharonim, impact upon the normative law as established by the Acharonim. See Encyclopedia Talmudit, vol. IX, pp. 344-345; and Rav. Sh. Z. Havlin's article in Ha-Ma'ayan, Tevet, 5728.

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