Commento su Esodo 21:16

וגנב איש ומכרו AND HE THAT STEALETH A MAN, AND SELLETH HIM, [AND HE BE PREVIOUSLY FOUND IN HIS HAND, HE SHALL SURELY BE PUT TO DEATH] — Why is this statement made (how does the particular form of words used here tell us some point of law which is not contained in another text bearing upon the same subject)? Since it is said, (Deuteronomy 24:7) “If a man be found stealing any of his brethren … [then that thief shall die]”, I might say that I have here only the law that a man who stole a person is punishable with death. Whence, however, do I know that this is also the case if a woman or a person whose sex is not distinguishable or a hermaphrodite (טומטום ואנדרונינוס) has stolen a person? Scripture therefore states here: “Whosoever stealeth a man and selleth him”. — And again, since Scripture states here: “He that stealeth a man [shall be put to death]”, I might say that I have here only the law that if one steals a man he is punishable with death. Whence do I know that this is also the case if he has stolen a woman? Therefore Scripture states, (Deuteronomy 24:7) “[If a man be found] stealing any person [he shall be put to death]”. Consequently both verses are necessary: what the one omits the other tells us (Mekhilta d'Rabbi Yishmael 21:16:2; Sanhedrin 85b).

AND HE THAT STEALETH A MAN, AND SELLETH HIM, AND HE BE FOUND IN HIS HAND — “previously, before the sale.” This is Rashi’s language. But I have not understood it.¹¹⁹Ramban argues that since Rashi made his comment upon the phrase: and he be found in his hand, it would appear that the fact that the witnesses saw him in his possession constitutes their proof that the holder stole him. On this, Ramban asked: could you possibly think that the thief be subject to death without the witnesses having seen the actual theft and the sale? Their having seen him in the thief’s possession is in fact no proof at all that he had stolen him (Nimukei Shmuel). If Rashi means that witnesses must have seen him [the stolen person] in the thief’s possession before he had sold him — could it even enter your mind that the thief be subject to the death penalty without witnesses having seen him stealing and also seeing him selling! It would therefore have been sufficient if Scripture were to say: “and he that stealeth a man and selleth him”. Further, his being found in the thief’s possession is no real proof that he stole him! Rather, this verse is the source for that which we have been taught in a Mishnah:¹²⁰Sanhedrin 85b. “He that steals a person is not liable to the punishment unless he brings him into his own possession,” and in a Beraitha the Rabbis have said:¹²⁰Sanhedrin 85b. “If he stole him but did not sell him, or if he sold him but he is still in his [the thief’s], possession, he is free [from the death penalty].” The meaning of this is to teach us that the law applying to the thief of a human being is [in one respect] similar to that of thieves of other, i.e., monetary, matters; namely, that if a thief killed or sold [an ox or a sheep] within the domain of the owner, he is free [from paying five oxen for an ox and four sheeps for a sheep],¹²¹Further, Verse 37. but if he lifted them up [thereby acquiring possession of them], or removed them from the domain of the owner, he is liable to pay. Similarly, this thief of a human being must first have brought the stolen person into his own domain [in order to be liable to death]. Likewise if he lifted the lad upon his shoulder, and sold him to another person, he is liable to the death penalty, because this too is called if he be found in his hand, since it is not logical that a man’s ground should have a greater power of taking possession of a thing for the owner, than his own hand has. In a similar way, that which the Rabbis said [in the Beraitha mentioned above]: “or if he sold him but he is still in his [the thief’s] possession etc.,” means that the buyer did not remove him at all from the thief’s domain, even though he paid him the money, and since he did not remove him from there, the thief is free [from the death penalty]. Now I do not know whether this is to say that [in order to make the thief of a human being liable to the death penalty] the buyer must perform a formal act of acquisition, as is the law in other transactions, that the buyer does not take ownership of the article until he draws it from the domain of the seller into a simta, [an alley adjoining an open place] or until he lifts it [even within the domain of the seller] — or it may be that it is a special Scriptural decree in the case of the sale of a stolen human being, that even if the sale has been finalized between them, and the buyer has taken ownership from the seller by lifting him or by drawing him along in ground which belongs to both of them, [in which case usually the act of drawing the purchased article is a valid act of acquisition even if not done in a simta], that the thief is nonetheless free from the death penalty until the stolen person goes out from his domain into the domain of the buyer. And so indeed it would appear to be [as the latter exposition].
Now Rashi in his commentaries there in the Gemara¹²⁰Sanhedrin 85b. explained [the phrase of the Beraitha]: “if he sold him but he is still in his possession” as meaning “if he is still in the stolen person’s domain,¹²²Not as we have explained it heretofore, according to Ramban, that the reference is to the thief’s domain. in which case the thief is free from punishment because there has been no real theft at all.” But if so, nothing new has been established here which is unlike the ordinary law of theft in monetary matters!¹²³But according to Ramban, as explained above, there is a new law established here: even if the thief brought the stolen person to his domain, and the buyer came there and the sale was completely finalized, [by the buyer lifting him, or drawing him into ground which belongs to both], the thief is nevertheless free from the death penalty as long as the buyer did not remove him from the seller’s domain. In the case of theft of an ox or sheep under such circumstances, the thief would be liable to pay five oxen for an ox and four sheep for a sheep.
However, it may be, the words of the verse [to be interpreted properly, must be transposed as follows]: “and he that stealeth a man, and he be found in his hand, and he selleth him, he shall surely be put to death.” But it is still possible that the verse may be explained properly in the order it is written in. Thus: And he that stealeth a man, and selleth him, and he be found in the hand of the buyer [he — the thief — shall surely be put to death]; for if he stole a human being and brought him to his house, and then he brought the buyer there and sold him without the buyer taking him out from there, the thief is not liable, because the sale has not been completed between them, or even if the sale has been completed, he is still free of the death penalty, as I have written above.

וגונב איש ומכרו, “and he who kidnaps a person and sells him, etc.” The Torah inserts this verse (subject) between the verse dealing with murder, and the one dealing with physically assaulting one’s parents, or cursing them. Some commentators feel that the point of the sequence is to list two crimes both of which are punishable by strangulation of the sinner together. Cursing parents, on the other hand, is punishable by the guilty party being stoned to death, a more painful and demeaning manner of execution. This commentary does not seem very convincing to me, as if that were the reason the Torah adopted this sequence, the verse dealing with kidnapping should have preceded that of describing parents being assaulted. In that way the verses dealing with improper behaviour against parents could have remained part of the same sequence, and the two crimes for which the punishment is strangulation could also have been written sequentially. Rabbeinu Saadyah gaon explains that seeing most victims of kidnapping are small children, who as a result of being sold, will be raised far from their parents’ homes, not even able to recognize their parents, the chances that at sometime during their lives they will curse or physically assault a parent, not even being aware that the person they cursed was a parent, the kidnapper deserves the penalty which otherwise would be applicable to the victim of the kidnapping had he done what he did deliberately. This is why the Torah chose this apparently obscure sequence. The penalty for a son who curses his father without laying a hand on him is more severe than the penalty for physically assaulting one’s parent, because this offense is more commonplace than the one of actually raising a hand against a parent. In order to act as a deterrent, the Torah imposed a harsher penalty. It is also possible that the reason why the penalty for cursing one’s parents is harsher than for striking them, is that cursing involves using the holy name of the Lord for such a nefarious crime. [Halachically, “cursing” means to curse someone in the name of G’d, to try and call down G’d’s anger against the person one curses. Ed.] He who curses parents has committed two major sins simultaneously.