YHE-HALAK: TOPICS IN HALAKHA

 

 

Shiur #04:  Clarifications Regarding the Laws

Governing the Ransoming of Captives (Part II)

 

Rav Yehuda Shaviv *

 

 

I.              "More than their value"

 

In the previous shiur, I discussed the Mishna's statement: "We do not ransom captives for more than their value," and noted the disagreement among the various poskim regarding this issue.

 

The Radbaz was presented with a simple question relating to this law, which for some reason was not raised by the Gemara: How do we measure a captive's "value," up to which he may be ransomed?

 

I was asked to clarify my position regarding that which is stated in the Mishna: "We do not ransom captives for more than their value," whether their value is determined according to the value of a slave sold in the market, or according to the value of non-Jewish captives? (Responsa Radbaz, I:40)

 

            That is to say, is the value of a Jewish captive determined according to the price of a slave or according to the sum generally paid for captives, which presumably is higher than the sum paid for a slave?

 

            We saw in the previous shiur that the Gemara proposed two possible reasons why "we do not ransom captives for more than their value": In order not to impose "an excessive burden on the community" or "so as not to encourage the taking of more prisoners." There is room to argue that according to the latter reason, if the price that we are willing to pay is less than the accepted price for the ransom of captives – this will not encourage the taking of more prisoners. Indeed, this was the Radbaz's answer to the person who asked the question. According to the Radbaz, the rabbinic enactment was meant to ensure that the price paid for Jewish captives would not be more than the accepted price for captives in the world.[1]

 

            This, however, stands in contrast to the position of many Rishonim, first and foremost among them Rashi:

 

Not more than her value – for which she is fit to be sold at the market. (Ketubot 52b, s.v. trei)

 

            The Ritva also emphasizes:

 

"For their value" – that is to say, the value of their bodies.

 

            In contrast, the wording of the Rambam inclines toward the Radbaz:

 

We do not obligate the husband to ransom his wife for more than her value, but rather for what she is worth like other captives. (Hilkhot Ishut 14:19)

 

Does this disagreement still apply today?

 

            It seems that the measures proposed by the Radbaz and the Rambam can serve as criteria for the ransoming of captives in our time as well, for even today people are taken captive and then ransomed all across the world. It is, therefore, possible to calculate the accepted price for ransoming captives. On the other hand, according to the majority of Rishonim, there is no way to determine today the "value" of a captive, for slave markets have already disappeared from the world.

 

            The Maharam, who was aware of this difficulty, explicitly writes:

 

Even though in our country male and female slaves are not sold in the marketplace, nevertheless, since we do not find in the words of any of the later authorities any mention that in our time the law should be different from the law of the Gemara, presumably even in our time it is necessary to evaluate how much a person would sell for at a market where male and female slaves are sold, e.g., in the land of Yishma'el… Everything is in accordance with the time and the circumstances. (Responsum no. 66)

 

            It is possible, however, that the disagreement about how to value a captive is irrelevant in our time. In the past, when slave markets were accepted, the fate of most unredeemed captives was to be sold into slavery. Therefore, there is a disagreement whether we should pay a ransom on the basis of the captive's market value or allow the captor to extort the redeemers for more than market value. Today, however, when there is no slave market, there is no alternative but to assess the captive's value in accordance with the accepted value of captives throughout the world.

 

            Another method of calculating a captive's value was adopted by the Meiri:

 

Not as a slave sold at a slave market, as many understand, but rather in accordance with their circumstances and dignity, as we explained in the fourth chapter of Gittin. (Ketubot 2b)

 

            According to this, the size of the ransom that may be paid is relative to a person's prestige and status.

 

            According to the Meiri, a simple answer may be proposed for the question raised by the Rishonim that was brought in the first part of study. The Gemara in Gittin 58 relates:

 

It once happened that Rabbi Yehoshua the son of Chananya went to the big city of Rome. They told him: There is a child in the prison with beautiful eyes and an attractive appearance. He went and stood at the entrance of the prison…. He said: I am sure that he will be a teacher in Israel. By the Divine service, I will not move from here until I have ransomed him for any sum of money that they set for him. They said: He did not move from there until he ransomed him for a great deal of money. And little time passed before he became a teacher in Israel.

 

            The Rishonim ask how could Rabbi Yehoshua have ransomed him for such a large sum given the decree that captives must not be ransomed for more than their value? If the Meiri's approach is correct, it can be argued that the child was not ransomed for more than his value, for the value of a person who is fit to be a great teacher in Israel is exceedingly great, and no sum would be too much to pay for his ransom.[2]

 

II.            Mortal Danger

 

I already raised the question in the previous shiur whether or not the rabbinic enactment applies even when the captive is in mortal danger. I suggested that the answer to this question depends on the rationale underlying the enactment: The argument of "an excessive burden on the community" would be set aside in a case of mortal danger, but the argument of "so as not to encourage the taking of more prisoners" would be even stronger in such a case, because if we are quick to pay exaggerated ransoms when the life of the captive is in danger, it will only encourage future kidnappers to threaten the lives of their captives in the event that they are not ransomed. Now, let us expand the discussion further.

 

The Mishna in Gittin states:

 

One who sells himself and his son to gentiles – we do not ransom him, but we ransom his children after the death of their father. (46b)

 

            And the Gemara relates:

 

There was a certain man who sold himself to the Ludae (who supplied people for gladiatorial contests). He came before Rav Ami and said to him: Ransom me. He replied: We have learned in the Mishna: One who sells himself and his children to gentiles – we do not ransom him, but we ransom his children because of moral corruption. And all the more so here where there is mortal danger.

 

            That is to say, in a case where the life of a person who sold himself to an idolater is in danger, we ignore the rabbinic enactment not to ransom him (according to the Rambam's understanding). Perhaps, then, regarding the enactment not to ransom a captive for more than his value, a similar distinction should be made between the case in which the captive's life is in danger and the case in which no such danger exists. Indeed, the Tosafot (58a, s.v. kol) distinguish between the various cases, and in that way they explain Rabbi Yehoshua's act of ransoming a child for more than his value.

 

            This distinction constitutes the Tosafot's first answer. Tosafot, however, bring another answer:

 

Alternatively, because he was especially great in his wisdom.

 

            According to this answer, there are no limits on the ransom that may be paid for the redemption of a Torah scholar. From the fact that we are dealing with a different answer, the Tzemach Tzedek concluded that according to this answer, a captive must not be ransomed for more than his value even when his life is in possible danger.[3] According to the Meiri as well, the answer that in a case of mortal danger there is no limit to the amount that may be paid for a ransom is only one of several possible answers.

 

            The Rambam, on the other hand, rejects this distinction altogether. According to him, since the Gemara in Bava Batra (cited in the first part of this study) asserts that captivity is worse than death, the implication is that unless specified otherwise, the captivity discussed by the Gemara is captivity that involves mortal danger, and it was regarding such captivity that the enactment was made. The Rambam's wording also implies that no distinction should be made between a captive who is in mortal danger and a captive whose life is not in peril, for he asserts at the beginning that a captive "is in mortal danger" (8:10), and later he cites the enactment of our mishna (Ibid. 12) without any qualifications. Thus, he implies that the enactment applies to all captives.

 

            In the first part of this study, I argued that the Rishonim disagree about which rationale underlying the enactment was accepted as law: According to the Rambam and the Ramban, the reason for the enactment is "so as not to encourage the taking of more captives." According to the Tosafot, on the other hand, the reason for the enactment is so as not to impose an excessive burden on the community. It is possible, therefore, to argue that the two disagreements depend upon each other. According to the Rambam and the Ramban, there is no distinction between a captive who is in danger and a captive who is not, for regarding the argument, "so as not to encourage the taking of more captives," there is no distinction between the two cases. According to the Tosafot, on the other hand, there is definitely room to distinguish between the various cases, for danger to life sets aside the concern regarding the excessive burden to be placed on the community.

 

            This correspondence between the two disagreements is, however, not complete, for there are Rishonim who explicitly rule that the rationale underlying the enactment is the excessive burden imposed on the community, but nevertheless fail to distinguish between a captive who is in mortal danger and a captive who is not (e.g., the Ran and the Rosh). In order to explain the position of these Rishonim, we must expand upon the clash between mortal danger and an excessive burden imposed on the community.

 

III.           PUBLIC EXPENSE versus INDIVIDUAL DANGER

 

The Gemara in Bava Kama 80a relates:

 

Our Rabbis taught: There was once a certain pious person whose heart suffered, and the doctors consulted said that there was no remedy for him unless he suckled warm milk every morning. A goat was therefore brought to him and fastened to the legs of the bed, and he suckled from it every morning. After some days his colleagues came to visit him, but as soon as they noticed the goat fastened to the legs of the bed they turned back and said: An armed robber is in the house of this man, how can we come in to [see] him? They thereupon sat down and inquired into his conduct, but they did not find any fault in him except this sin about the goat. He also at the time of his death proclaimed: I know that no sin can be imputed to me save that of the goat, when I transgressed against the words of my colleagues.

 

The pious man in this story violated the rabbinic enactment that established that "one may not raise small livestock in Eretz Israel" (ibid. 79b). It is not clear, however, why his fellow sages turned away from him; surely he only violated the enactment in order to save a life, a consideration that sets aside all the prohibitions in the Torah, and all the more so rabbinic enactments.

 

In the wake of this difficulty, the Meiri (ad loc.) reaches a novel conclusion:

 

Even though we say that in the case of saving a life, all prohibitions are permitted in order to cure oneself with them, regarding something which is forbidden owing to an enactment and because of concern about damage caused to another person (and the prohibition against raising small livestock such as sheep and goats was enacted because these animals tend to destroy pasture land beyond repair) – it is fitting that one be exceedingly stringent about it.

 

A similar argument can be put forward regarding our passage: Since the enactment that we may not ransom captives for more than their value was instituted because of concern about the financial loss of the community (according to the Rishonim cited above) – this concern may even override the obligation to save a life.

 

The matter, however, still requires explanation: How did the Sages decide that communal loss is more important than human life? Perhaps we can make use of the argument raised by the Maggid Mishneh in Hilkhot Shabbat (10:17) to explain the Rambam's ruling that one is permitted to kill creeping creatures that cause damage on Shabbat even if they do not pose a mortal danger, "because damage caused to many people is regarded like mortal danger." Taking this one step further, it can be argued that an excessive financial burden imposed on the community is also regarded as "damage caused to many people," and thus it is treated like mortal danger. It goes without saying that mortal danger to the community sets aside mortal danger to an individual captive!

 

To summarize: According to most Rishonim (the Rambam, the Ramban, the Ran and the Rosh), the enactment not to ransom captives for more than their value applies even when the captives' lives are in danger. On the other hand, according to the Tosafot and the Meiri, it is possible that the enactment does not apply when the captives are in mortal danger, and that it is permissible to ransom them at any price.

 

IV.          The views of the Acharonim

 

While, as we have seen, most of the Rishonim maintain that we do not ransom captives for more than their value even if the captives are in mortal danger. Amongst Acharonim, however, there consensus is that captives in mortal danger must be ransomed even for more than their value. We shall now present a general outline of these positions.

 

Some of these Acharonim argue that since the rationale underlying the enactment is to prevent the imposition of an excessive burden on the community, when the captives’ lives are in danger, this rationale has no weight (as was argued above according to the Tosafot). Other Acharonim add that when the community refrains from ransoming a captive whose life is in danger, it violates the Torah prohibition, "You shall not stand aside when mischief befalls your neighbor," and a person is commanded to spend all of his assets in order not to violate a Torah prohibition.

 

This last argument is rejected by the Pitchei Teshuva (252:4), who maintains that the obligation to spend all of one's money in order to avoid violating a prohibition is limited to prohibitions involving acts of commission. The prohibition, "You shall not stand aside when mischief befalls your neighbor," however, is a prohibition constituted by a passive omission (see also Marcheshet I:43 and Sedei Chemed V:74 who strongly disagree). In addition, there is the famous position of the Vilna Gaon (Yoreh De'a 157:5) that the obligation to spend all of one's money in order to avoid violating a prohibition is limited to the prohibition of idol worship.

 

V. Summary

 

            As for prisoners taken captive in our time, it seems that we should consider two additional factors that were not discussed by the Rishonim or Acharonim.

 

1)            Impact on the morale and fighting spirit of soldiers during war. It can be argued that a soldier who knows that all possible steps will be taken to free him from captivity will be stronger, both physically and emotionally, while fighting and during the period of his captivity. This is not the case when he knows that fiscal limits will be imposed on the ransom to be paid for his release. "Why" – the soldier will ask himself – "should I risk my life and put aside all utilitarian and economic considerations, when the state will not respond in kind?" Moreover, a captured soldier who thinks that financial considerations are preventing his release might not find the strength to withstand being tortured, but rather he will decide to commit suicide. Such things have indeed happened in the past.

 

2)            The desecration of God's name. When a soldier is taken captive as a member of the Israel Defense Forces and not as a private citizen, it is possible that the failure to ransom him will cause a desecration of God's name.

 

It is possible then that captured soldiers should be ransomed for all the money in the world. This might not apply, however, when the captors demand as ransom something that in the future might endanger others (the release of terrorists, the return of conquered territory, or the like). Here, the concern about "encouraging the taking of more captives" arises in a new form – a danger posed to others in the future, even if not the danger of additional kidnappings.

 

It should be noted that a number of points relevant to our discussion must still be clarified:

 

1)             Upon whom does the obligation of ransoming captives fall?

 

2)            Is there an order of priority regarding the ransoming of captives?

 

3)            What is the nature of the special law of ransoming a Torah scholar?

 

4)            It is permissible to go out to war in order to seek the release of a captured soldier?

 

God willing, I will return to these issues with the hope that our conclusions will have no practical applications, but solely in the context of "study, and receive a reward."

 

(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.

[1] Of course, according to the rationale of "excessive burden on the community," we cannot answer the question, because even the value of a slave might be considered an "excessive burden on the community."

[2] I later saw that the Tiferet Yisrael on Gittin resolves the difficulty in this manner.

[3] Responsa Tzemach Tzedek, no. 28 in note. The Sedeh Chemed (Ma'arekhet 1, kelalim, no. 129) questions this conclusion, and argues that the Tosafot mean that even if no mortal danger was involved, Rabbi Yehoshua's conduct can be explained, but the second answer does not reject the first. Nevertheless, the wording of the Tosafot supports the Tzemach Tzedek's understanding, for the term "iy nami" is used, which usually implies that the second answer rejects the first one.

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