Clarifications Regarding The Laws Governing The Ransoming Of Captives (1)
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 neighbors 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
* This article was published in Alon Shevut 24. It was edited by
[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.
This website is constantly being improved. We would appreciate hearing from you. Questions and comments on the classes are welcome, as is help in tagging, categorizing, and creating brief summaries of the classes. Thank you for being part of the Torat Har Etzion community!