Komentarz do Wyjścia 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.

Who stole another person. The Re’m was puzzled by Rashi’s comment. For when it said (v. 12): “If one strikes a man,” Rashi did not expound the verse along the same lines as he did here. He should have said there: “Since it is said: ‘If a man strikes’ (Vayikra 24:17), I would know only [that this applies to] a man who struck. But a woman, or one whose gender is indistinguishable, or a hermaphrodite [who struck], how would we know [that this law applies]? Therefore the Torah says: ‘If one strikes a man.’” The Re’m on v. 12 explained Rashi’s exegesis there by saying that perhaps the interpretation was received by Chazal as an oral tradition. Another answer, which the Re’m offers, is that perhaps the Tanna there was not trying to explain all the laws that those verses teach us. He intended only to explain the seemingly extra verses. Thus he merely stated some of the laws, thereby showing the need for both verses: what this verse lacks, the other verse teaches.

V. 16. Wie im vorangehenden Vers die Persönlichkeit des Vaters oder der Mutter die partielle Tötung, d. i. Verwundung, in die Kategorie einer totalen Tötung erhebt und zu einem todeswürdigem Verbrechen macht, so lehrt hier das Gesetz, dass die Freiheit ein Gut ist, dessen Raub als sozialer Mord gegen jedermann ebenfalls mit dem Tode zu bestrafen ist. Der Menschenräuber ist aber nur dann dem gerichtlichen Tode verfallen, wenn נמצא בידו, und, wie Deuteron. 24, 7 hinzugefügt ist, והתעמר בו und dann ומכרו, d. h. wenn er dem Menschen alle Sachbehandlungen hat angedeihen lassen, ihn ganz als Sache behandelt hat. Dazu gehört: נמצא בידו, d. h. dass es durch Zeugen konstatiert ist שהכניסו ברשותו: dass er ihn in seinen Eigentumsraum gebracht, התעמר בו: d. h. השתמש בו, dass er sich seiner irgendwie selbst als Sklave bedient und dann ומכרו ihn verkauft hat (Sanhedrin 85 b).

וגונב איש, but if someone kidnaps a person, etc.” the reason why this scenario is written between the verses where striking a father a or cursing him is written, is because the penalty for striking a father or kidnapping a person is death by strangulation, while the penalty for cursing one’s father is by stoning (more severe). In Leviticus 20,9, the penalty for cursing is described both as מות יומת, “he is sure to be executed,” plus the additional words: דמיו בו, “his blood(guilt) is upon him.” Although we might have thought that cursing one’s parent should carry a lighter sentence than physically assaulting him, seeing it does not involve an act, whereas striking includes an act of violence, the Torah decreed a more severe penalty for the cursing of one’s parent, i.e. death by stoning. According to the Talmud in tractate Sanhedrin, folio 49, the reason why a severe type of death penalty is applied for cursing one’s parents, is that the Torah compares the parents as deserving a similar degree of honour as that shown to G–d, seeing that the parents brought you into this world. Cursing G–d is punishable by stoning as we know from the blasphemer in Leviticus 24,14. Seeing that it impossible to strike G–d, any comparison with striking a parent is inappropriate. Hence the death penalty for that sin is chenek, strangulation. Furthermore, when someone was guilty of cursing his parents after they had died he is still guilty of the same sin, whereas if the same person had struck his father after he had died the death penalty does not apply, as it was part of the penalties listed for causing injury (Compare Mechilta Mishpatim, section 5.). It is impossible to inflict an injury upon someone who is already dead. Our author asks that if one cannot inflict injury after death and therefore the death penalty by stoning is not applied, why is the same not true of someone who cursed G–d, seeing it is impossible to harm Him in any way? Perhaps the fact that the subject of cursing G–d, and the penalty for this appears next to the subject of the blasphemer in Leviticus chapter 24, makes my question irrelevant.

וגונב איש, “If one kidnaps another person, etc.” Why was this verse necessary? (it has been repeated in detail in Deuteronomy 24,7) If we had only had the verse in Deuteronomy, we would have thought that the penalty would apply only if we had witnesses to the kidnapping. We would not have known that witnesses to both the kidnapping and the subsequent selling of the victim were required in order for the death penalty to apply. Another thing these two laws have in common is that the death penalty is to be carried out by strangulation.

ונמצא בידו implies that witnesses have seen him stealing and also saw him selling the person, and that he has been found in his possession before he had sold him (Mekhilta d'Rabbi Yishmael 21:16:3).

ומכרו ונמצא בידו, “and he sold him but the kidnapper is apprehended while still having the kidnapped person under his control.” According to Rashi the victim is found in the kidnapper’s possession before the sale. Nachmanides writes that if this were so the Torah would not have needed to bother to write the line ונמצא בידו, “the victim was still in the kidnapper’s control.” Seeing that we obviously have witnesses to the crime, the kidnapper had both kidnapped and sold the person concerned, he clearly was under his control. He therefore understands the meaning of the words ונמצא בידו to mean that the kidnapper has brought the kidnapped person into his private domain to mean that until the kidnapper had brought his victim into his private domain he is not liable to the penalty the Torah decrees. The rule is parallel to someone who has stolen and then slaughtered or sold the animal in question. His penalty of making 4 or 5 fold restitution is also applicable only if the stolen animal had first been transferred to the private domain of the thief.

And he was already in his (the thief’s) possession before he sold him. Rashi is excluding the case where the thief first sold him and only then stole him [i.e., took him out of his home]. Thus, the law of kidnapping resembles the law of other property theft — where the thief is exempt [from the law of paying four or five times the stolen animal’s value] if he slaughtered or sold the animal before removing it from the owner’s premises. And this is how the Ramban understands Rashi’s words on the Gemara (Sanhedrin 95b). (Nachalas Yaakov)

ונמצא בידו, “and he has been found in his possession;” another way of saying that the crime had been carried out in the presence of witnesses, or that there was so much circumstantial evidence as if it had been witnessed by living witnesses. [One cannot help thinking of coloured photographic evidence even showing the parties in motion. Ed.]

מות יומת HE SHALL SURELY BE PUT TO DEATH — by strangulation. Wherever the death-penalty is mentioned in Scripture without being precisely defined strangulation is intended (Mekhilta d'Rabbi Yishmael 21:16:4; Sanhedrin 84b). [It should be noted that Scripture interrupted the context by writing “Whosoever stealeth etc.” between the passages, “He that smiteth his father etc.” and “He that curseth his father etc.”, which passages ought on account of their contents to follow one after the other. I think that this gave rise to the difference of opinion found in Sanhedrin 85a where one Rabbi holds that we must put “smiting” on an equality with “cursing”, in spite of the text being interrupted by the verse וגונב, which, however, is placed between them only to teach that in some respects “smiting” and “cursing” have not the same law, — that after the death of the parents “cursing” them is punishable whilst “smiting” them is not; whilst another bolds that since the two verses have been disconnected “smiting” can by no means be put on an equality with, and have the same legal consequenses as, “cursing” (cf. Sanhedrin 85b)].

Wherever the Torah mentions an unspecified death. . . But above (v. 15), Rashi did not need to explain this. This is because the verse of “Whoever steals a man and sells him” interrupts between the verse of striking one’s father (v. 15) and that of cursing him (v. 17). And had it not interrupted, we would say that [the punishment for] striking is learned from [the punishment for] cursing. As Rashi explains, one who curses his father is stoned. Thus, one who strikes him would also be stoned. Therefore the Torah interrupts with “Whoever steals a man” [in order to teach us:] just as one who kidnaps is strangled, so too, is one who strikes his father strangled. And if you would ask: How do we know that one who kidnaps is strangled? The answer is as Rashi explains here: “Wherever the Torah mentions an unspecified death. . .” I found this [written].

מות יומת, “the kidnapper is to be executed.” The reason is that having sold his victim it is almost certain that the victim will be so abused that he will die prematurely. As to the question where was the law written before the penalty was recorded in the Torah, the reader is directed to the eight of the Ten Commandments in Exodus 20,13: לא תגנוב, “Do not steal!”

ונמצא בידו, “while he was in his power.” The word נמצא must be contrasted with מצוי. The former is a person over whom the kidnapper had no legal authority; the latter is someone such as a teacher who does have a certain legal authority over the victim. Such a kidnapper is not subject to the death penalty (Sanhedrin 86).