ח - מצוות פדיון שבויים: אין מבריחין את השבויים
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Shareנשלים את הדיון על המקרים בהם יש הגבלות על פדיון השבויים ונדון באיסור על הברחת שבויים - מה הטעמים לאיסור והאם המשמעות היא שאסור לשבוי לברוח בעצמו?
מַתְנִי׳ ...וְאֵין מַבְרִיחִין אֶת הַשְּׁבוּיִין, מִפְּנֵי תִּיקּוּן הָעוֹלָם. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: מִפְּנֵי תַּקָּנַת הַשְּׁבוּיִין. גְּמָ׳... וְאֵין מַבְרִיחִין אֶת הַשְּׁבוּיִין מִפְּנֵי תִּיקּוּן הָעוֹלָם. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: מִפְּנֵי תַּקָּנַת שְׁבוּיִין: מַאי בֵּינַיְיהוּ? אִיכָּא בֵּינַיְיהוּ, דְּלֵיכָּא אֶלָּא חַד.
The Gemara says: And as for Rav Anan, who could not determine in which case the money of the sale is returned, the baraita was not known to him, so he was not able to use it in order to resolve his dilemma. And if Rav Anan would attempt to resolve his dilemma from the statement of Shmuel, who said that the sale does not take effect at all, this should mean that the money used in the sale is returned, and it is possible to say: From where can you assume that it is not sold, and therefore the money is returned? Perhaps it is not sold and the money is considered to be a gift, just as it is according to the opinion of Shmuel in the case of one who betroths his sister. As it was stated with regard to one who betroths his sister, Rav said: The money he gave for the betrothal is returned, since the betrothal does not take effect; and Shmuel said: This money is a gift, meaning that he wished to give a gift to his sister and he did so in this manner. Therefore, Rav Anan remained uncertain as to when Shmuel required the money to be returned. With regard to the halakha that if one sells his slave to a Jew outside of Eretz Yisrael it is the purchaser who loses his money, Abaye said to Rav Yosef: What did you see to cause you to say that we apply the penalty to the purchaser, in that he is required to emancipate the slave and loses his money; we should apply the penalty to the seller, and he should be required to return the money. Rav Yosef answered Abaye with a parable and said to him: It is not the mouse that steals, but the hole that steals. In other words, a mouse cannot steal anything unless he has a hole for hiding the stolen items. Here too, the slave would not have been sold without the help of the purchaser. The Gemara questions this logic: But if not for the mouse, from where would the hole have the stolen item; since they both contribute to the prohibited act, each of them is deserving of being penalized. Rav Yosef responded to him: It stands to reason that anywhere that the forbidden item, i.e., the slave, is, in this case, with the purchaser, there we should penalize. § The Gemara relates: There was a certain slave who fled from his master from outside of Eretz Yisrael to Eretz Yisrael. His master followed him to Eretz Yisrael and came before Rabbi Ami. Rabbi Ami said to the master: We will write a promissory note for his value for you, and you should write a bill of manumission for him. And if you do not do this, I will remove him from you entirely, since he does not have to return to outside of Eretz Yisrael, based on the statement of Rabbi Aḥai, son of Rabbi Yoshiya. As it is taught in a baraita: The verse states with regard to the residents of the Land of Canaan: “They shall not dwell in your land lest they make you to sin against Me, for you will serve their gods; for they will be a snare to you” (Exodus 23:33). One might have thought that the verse is also speaking of a gentile who accepted upon himself not to engage in idol worship, and is teaching that such a gentile may not dwell in Eretz Yisrael as well; therefore the verse states: “You shall not deliver to his master a slave who escaped to you from his master” (Deuteronomy 23:16). The baraita understands that the verse is speaking in metaphoric terms about a gentile who has come to Eretz Yisrael, escaping his idolatrous past. The baraita continues: What is this gentile’s remedy? “He shall dwell with you in your midst” (Deuteronomy 23:17). This teaches that as long as he accepts upon himself not to engage in idol worship, he may remain in Eretz Yisrael. And the explanation of the verse in the baraita is difficult for Rabbi Yoshiya: This expression employed in the verse: “From his master,” is imprecise if it is speaking about a gentile who abandons idol worship, as it should have stated: From his father, as a father is a more apt metaphor for the religion in which one was raised. Rather, Rabbi Yoshiya explains differently and says: The verse is speaking of one who sells his slave to a Jew who lives outside of Eretz Yisrael, and the continuation of the verse: “He shall dwell with you,” means that he does not go to his new master outside of Eretz Yisrael, but is emancipated and remains in Eretz Yisrael. And the explanation of Rabbi Yoshiya is difficult for Rabbi Aḥai, son of Rabbi Yoshiya: If it is referring to a slave who is sold to one outside of Eretz Yisrael, then this expression: “Who escaped to you,” is not accurate, as he is leaving from Eretz Yisrael, not escaping to Eretz Yisrael. According to Rabbi Yoshiya’s explanation, it should have stated: Who escaped from you. Rather, Rabbi Aḥai, son of Rabbi Yoshiya, said: The verse is speaking of a slave who escaped from outside of Eretz Yisrael to Eretz Yisrael, which indicates that in such a case he may dwell there and is not returned to his master. Based on this statement of Rabbi Aḥai, son of Rabbi Yoshiya, Rabbi Ami told the master that the slave will in any case be emancipated. It is taught in another baraita: The verse states: “You shall not deliver to his master a slave” (Deuteronomy 23:16); Rabbi Yehuda HaNasi says: The verse is speaking of one who acquires a slave in order to emancipate him. The court may not deliver him to this master, because he is not his slave and he may not treat him as such. The Gemara asks: What are the circumstances of this case? Rav Naḥman bar Yitzḥak said: For example, when he wrote to the slave like this: When I will purchase you, you are hereby acquired to yourself from now. The new master does not take possession of the slave, as he is emancipated immediately upon being purchased. The Gemara relates that Rav Ḥisda’s slave escaped to Bei Kutai, a place where Samaritans lived. He sent a request to the residents of that place: Return him to me. They sent a response to him: The verse states: “You shall not deliver to his master a slave,” so we will not return this slave to you. He sent a response to them: The verse also states with regard to lost items: “And you shall restore it to him…and so you shall do for his donkey and so you shall do for his garment and so you shall do for anything your brother has lost” (Deuteronomy 22:2–3). They sent a response to him again: But isn’t it written: “You shall not deliver to his master a slave”? Rav Ḥisda sent a response to them: That verse is referring to a slave who escaped from outside of Eretz Yisrael to Eretz Yisrael, and in accordance with the explanation of Rabbi Aḥai, son of Rabbi Yoshiya, and my slave escaped from one location outside of Eretz Yisrael to another location outside of Eretz Yisrael. The Gemara asks: And what is different about this case that led him to send a response to them specifically in accordance with the explanation of Rabbi Aḥai, son of Rabbi Yoshiya, and not in accordance with any other interpretation of the verse? The Gemara answers: Because that is how the Samaritans would understand the verse. Samaritans did not generally accept the explanations of the Sages, and this explanation accords with the straightforward reading of the verse, while the other explanations do not. The Gemara relates that Abaye lost a donkey among the Samaritans in Bei Kutai. He sent a request to them: Send it to me. They sent a response to him: Send a distinguishing mark and we will return it to you. He sent the following distinguishing mark to them: That its belly is white. They sent a response to him: If not for the fact that you are Naḥmani, meaning that we know that you are a trustworthy man, we would not send it to you. Is that to say that bellies of all donkeys aren’t white? Therefore, it is not a true distinguishing mark. MISHNA: The captives are not redeemed for more than their actual monetary value, for the betterment of the world; and one may not aid the captives in their attempt to escape from their captors for the betterment of the world, so that kidnappers will not be more restrictive with their captives to prevent them from escaping. Rabban Shimon ben Gamliel says: For the betterment of the captives, so that kidnappers will not avenge the escape of the captives by treating other captives with cruelty. GEMARA: A dilemma was raised before the Sages: With regard to this expression: For the betterment of the world, is it due to the financial pressure of the community? Is the concern that the increase in price will lead to the community assuming financial pressures it will not be able to manage? Or perhaps it is because the result of this will be that they will not seize and bring additional captives, as they will see that it is not worthwhile for them to take Jews captive? The Gemara suggests: Come and hear an answer based on the fact that Levi bar Darga redeemed his daughter who was taken captive with thirteen thousand gold dinars. This indicates that private citizens may pay excessive sums to redeem a captive if they so choose. Therefore, it must be that the reason for the ordinance was to avoid an excessive burden being placed upon the community. If the ordinance was instituted to remove the incentive for kidnappers to capture Jews, a private citizen would also not be permitted to pay an excessive sum. Abaye said: And who told us that he acted in accordance with the wishes of the Sages? Perhaps he acted against the wishes of the Sages, and this anecdote cannot serve as a proof. The mishna taught: And one may not aid the captives in their attempt to escape from their captors, for the betterment of the world. Rabban Shimon ben Gamliel says: For the betterment of the captives. The Gemara asks: What is the difference between the two reasons given? The Gemara answers: There is a difference between them when there is only one captive. If this ordinance was instituted for the benefit of the other captives, so that the kidnappers should not avenge a captive’s escape by treating the others with cruelty, then if there is only one captive to begin with, one may help him to escape. If it was instituted so that kidnappers in general will not act restrictively with their captives, it would be prohibited in this case as well. § The Gemara relates that Rav Naḥman’s daughters would stir a boiling pot with their bare hands, and people thought that the heat did not harm them due to their righteousness. Rav Ilish had a difficulty with a verse, as it is written: “A man one of a thousand I have found, and a woman among all those have I not found” (Ecclesiastes 7:28). Aren’t there Rav Naḥman’s daughters, who were exceptionally righteous? These words caused them to be taken captive, due to the evil eye, and Rav Ilish was also taken captive with them. One day a certain man was sitting with him in captivity who knew the language of birds. A raven came and called to Rav Ilish. Rav Ilish said to the man: What is the raven saying? He said to him that it is saying: Ilish, escape; Ilish, escape. Rav Ilish said: It is a lying raven, and I do not rely on it. In the meantime, a dove came and was calling out. Rav Ilish said to the man: What is it saying? He said to him that the dove said: Ilish, escape; Ilish, escape. Ilish said: The Congregation of Israel is compared to a dove; I conclude from the dove’s words that a miracle will happen for me, and I can attempt to escape. Rav Ilish said: Before I leave, I will go and I will see Rav Naḥman’s daughters. If they remained steadfast in their faith and are acting appropriately, then I will take them with me and I will return them to their home. He said: Women tell all of their secret matters to each other in the bathroom, so he went there to eavesdrop on them. He heard them saying: These captors are now our husbands, and the men of Neharde’a to whom we are married are our husbands. We should tell our captors to distance us from here so that our husbands should not come to this area and hear that we are here, and redeem us, and take us home. They preferred to remain with their captors. Upon hearing this Rav Ilish arose and escaped. He and that man who knew the language of the birds came to a river crossing. A miracle happened for him and he crossed the river on a ferry, and the captors found that man and killed him. When Rav Naḥman’s daughters were returned and they came back from their captivity, Rav Ilish said: They would stir the pot with witchcraft, and that is why they were not burned by the boiling pot, but it was not due to their righteousness. MISHNA: And Torah scrolls, phylacteries, or mezuzot are not purchased from the gentiles when they acquire these objects, if they request more than their actual monetary value, for the betterment of the world, so as not to cause an increase in the theft of sacred Jewish ritual objects in order to sell them for large sums of money. GEMARA: Rav Budya said to Rav Ashi that one could infer the following from the mishna: It is for more than their actual monetary value that one may not purchase them; however, for their precise value, one may purchase them. Can one learn from the mishna that with regard to a Torah scroll that is found in the possession of a gentile, one can read from it after obtaining it from the gentile, and there is no concern that perhaps the gentile wrote it and it is unfit? Rav Ashi answered: Perhaps this does not mean that the Torah scroll is purchased in order to read from it, but rather in order to inter it and not to use it; however, it is nevertheless purchased so that it will not be desecrated by the gentiles. Rav Naḥman says: We have a tradition that a Torah scroll that was written by a heretic should be burned; a Torah scroll written by a gentile should be interred; a Torah scroll found in the possession of a heretic, and it is not clear who wrote it, should be interred. With regard to a Torah scroll found in the possession of a gentile, some say it should be interred and some say that one may read from it. The Gemara asks: With regard to a Torah scroll that was written by a gentile, it is taught in one baraita: It should be burned, and it is taught in another baraita: It should be interred, and it is taught in another baraita: One may read from it. There is a three-fold contradiction concerning the halakha of a Torah scroll written by a gentile. The Gemara explains: This is not difficult: That which is taught in a baraita, that it should be burned, is the opinion of Rabbi Eliezer, who says: The unspecified intentions of a gentile are for idol worship, and therefore everything he wrote is assumed to be written for the sake of idolatrous worship and must be burned. And that which is taught in a baraita, which said that it should be interred, is the opinion of this tanna, as Rav Hamnuna, son of Rava of Pashronya, taught: A Torah scroll, phylacteries, or mezuzot that were written by a heretic or an informer, a gentile or a slave, a woman or a minor, or a Samaritan or a Jewish apostate, are unfit, as it is stated: “And you shall bind them as a sign on your hand…and you shall write them on the doorposts of your house” (Deuteronomy 6:8–9). From this juxtaposition, one can derive the following: Anyone who is included in the mitzva of binding the phylacteries, i.e., one who is both obligated and performs the mitzva, is included in the class of people who may write Torah scrolls, phylacteries, and mezuzot; but anyone who is not included in the mitzva of binding is not included in the class of people who may write sacred texts. This baraita equates the halakha of a Torah scroll written by a gentile to the halakha of Torah scrolls written by these other types of people, which are interred. And concerning that which is taught in a baraita, i.e., that one may read from it, that baraita is in accordance with the opinion of this following tanna, as it is taught in a baraita (Tosefta, Avoda Zara 3:6): One may purchase Torah scrolls from gentiles in any location, provided that they are written in accordance with their halakhot. And there was an incident involving a gentile in Tzaidan who would write Torah scrolls, and Rabban Shimon ben Gamliel permitted the Jews to purchase the Torah scrolls from him. The Gemara asks: And does Rabban Shimon ben Gamliel require that the preparation of the parchment of Torah scrolls, phylacteries, and mezuzot be for their sake, i.e., for the sake of their use in a mitzva, but he does not require that the writing be for their sake? The Gemara quotes the source that Rabban Shimon ben Gamliel requires that the parchment be prepared for their sake: As it is taught in a baraita: If one took phylacteries and coated them with gold or patched them with the skin of a non-kosher animal, then they are unfit. However, if one patched them with the skin of a kosher animal, then they are fit, and this is so even though he did not prepare them, i.e., the skin, for their sake, i.e., for the sake of their use in a mitzva. Rabban Shimon ben Gamliel says: Even if he patched them with the skin of a kosher animal they are unfit, until he prepares them for their sake. Being that he holds that the parchment needs to be prepared for their sake, their actual writing should certainly be done for their sake. Rabba bar Shmuel says: That incident in Tzaidan involved a convert who returned to his previous corrupt ways [suro] by reverting to living like a gentile. He nevertheless remains a Jew. The Gemara asks: If he returned to his previous corrupt ways all the more so should the Torah scroll be rendered unfit, as he is a heretic. Once he learns the Jewish faith and abandons it, he is considered a heretic. Rav Ashi says: This means that he returned to his previous corrupt ways due to fear, and not because he rejected the Jewish faith. He ceased acting like a Jew out of fear of reprisal. Since he is a Jew, it is permitted for him to read from the Torah scrolls that he writes. § The Gemara clarifies the halakha from the mishna that one may not purchase sacred items from a gentile for more than their actual value. The Sages taught: One may increase payment beyond their value up to a terapa’ik. The Gemara asks: What is a terapa’ik? Rav Sheshet said: It is an istera, worth one half of a dinar. The Gemara relates: There was a certain Arab merchant woman [taya’ata] who brought a sack [ḥayeta] of phylacteries in front of Abaye. He said to her: Would you give me each pair for a date? She became full of anger, and took the phylacteries and threw them into the river because Abaye offered her such a small amount in exchange for them. Abaye said in remorse: I should not have denigrated the phylacteries so much in her presence, but rather, I should have offered to pay her their actual value. MISHNA: A man who divorces his wife due to her bad reputation, i.e., he heard that she had committed adultery, may not remarry her, even if it becomes clear that she did not in fact commit adultery. Similarly, if one divorces his wife due to a vow that she took, and he could not live with her under the conditions of her vow, he may not remarry her. Rabbi Yehuda says: If he divorces her due to any vow that the public was aware of, he may not remarry her, but if he divorces her due to a vow that the public was not aware of, he may remarry her. The mishna continues: Rabbi Meir says: If he divorces her due to any vow that requires investigation and dissolution by a halakhic authority, he may not remarry her, but if he divorces her due to a vow that does not require investigation and dissolution by a halakhic authority, and is dissolved even without that, he may remarry her. Rabbi Elazar said: They prohibited him from remarrying her in this case, where she stated a vow that requires dissolution by a halakhic authority, only due to that case, where she stated a vow that does not require dissolution by a halakhic authority. Rabbi Yosei, son of Rabbi Yehuda, said: There was an incident in Tzaidan involving one man who said to his wife: It is konam, i.e., it is forbidden like an offering, if I do not divorce you, and he divorced her; and the Sages permitted him to remarry her for the betterment of the world. GEMARA: Rav Yosef bar Minyumi says that Rav Naḥman says: And the halakha stated in the mishna, which says that in certain cases a man who divorces his wife may not remarry her, is only applicable when he said to her explicitly: I am removing you from the house due to your bad reputation,
שנינו במשנה: ואין מבריחין את השבויין מפני תיקון העולם. רבן שמעון בן גמליאל אומר: מפני תקנת שבויין. ושואלים: מאי בינייהו [מה ההבדל ביניהם] אם זה או זה הטעם? ומשיבים: איכא בינייהו [יש ביניהם הבדל], דליכא [שאין] אלא חד [שבוי אחד], שאם הטעם מפני תקנת שבויים אין אנו חוששים שהרי אין שבוי אחר שינקמו בו, אבל מפני תיקון העולם שלא יתאכזרו להבא לשבויים אין מבריחים אותו.
המשנה אומרת שאין להבריח את השבויים המצויים בשבי, אלא שחייבים לשלם על פדיונם. לדעת תנא קמא הטעם הוא "מפני תיקון העולם". ברמב"ם מבואר מהי מפני תיקון העולם:
וְאֵין מַבְרִיחִין אֶת הַשְּׁבוּיִים מִפְּנֵי תִּקּוּן הָעוֹלָם שֶׁלֹּא יִהְיוּ הָאוֹיְבִים מַכְבִּידִין עֲלֵיהֶן אֶת הָעל וּמַרְבִּים בִּשְׁמִירָתָן:
(12) We do not redeem captives for more than their worth35I.e., they are evaluated like servants sold at a slave market (Meiri, Gittin 45a). for the benefit of the world at large, i.e., so that enemies will not pursue people to hold them captive.36Gittin, loc. cit. gives two reasons:
a) Were lawless men to know that they could receive exorbitant prices for the redemption of captives, they would be encouraged to kidnap them frequently.
b) this would be very taxing for the community.
The Rambam follows the latter view. Hence, even family members who would be willing to pay the extra expense are forbidden to do so (Radbaz). When quoting this law, the Shulchan Aruch (Yoreh De'ah 252:4) states that if the captive is a Torah scholar, an exception can be made and he may be redeemed for more than his worth. We do not assist captives in escaping, for the benefit of the world at large, i.e., so that enemies will not oppress captives seriously and be very strict when guarding them.37I.e., if captives were wont to be helped to escape, kidnappers would become very strict and harsh when guarding other captives in the future.
אך לדעת רשב"ג הטעם הוא "מפני תקנת שבויין". כלומר שזה עלול לפגוע בשבויים הנוספים הנמצאים בשבי - שאם יבריחו שבוי אחד ייתכן שייענו את האחרים.
ההבדל יהיה במקרה שיש רק שבוי אחד: לדעת תנא קמא עדיין יהיה אסור להבריח אותו למקרה שפעם הבאה יחזיקו את השבוי בתנאים קשים יותר כדי שיהיה קשה יותר להבריחו. אבל לדעת רשב"ג אם יש רק שבוי אחד אין סכנה שיענו שבויים אחרים בגלל שהשבוי האחד ברח.
ההבדל יהיה במקרה שיש רק שבוי אחד: לדעת תנא קמא עדיין יהיה אסור להבריח אותו למקרה שפעם הבאה יחזיקו את השבוי בתנאים קשים יותר כדי שיהיה קשה יותר להבריחו. אבל לדעת רשב"ג אם יש רק שבוי אחד אין סכנה שיענו שבויים אחרים בגלל שהשבוי האחד ברח.
כדי לבחון את משמעות הדין הזה יש לשאול - האם שבוי שרוצה לברוח בעצמו רשאי לעשות כן?
וכן הא דק"ל אין מבריחין את השבוים מחשש הכבדת עול האחרים ומ"מ פשוט דכל יחיד שיכול לברוח בורח ואין לו לחוש על אחרים.
בדף הזה השלמנו את הדיון על המקרים בהם יש הגבלות על פדיון השבויים. בדף הבא נראה האם הגבלות אלו קיימים גם בימינו.
