Perhaps the most famous kidnapping in history is that of Yosef by his brothers, as told in Parashas Vayeishev. Yosef was subsequently sold to an Egypt-bound group of Ishmaelites, which ultimately led to the descent of the entire family to Egypt, from which emerged the Jewish nation.
In the present article we will discuss a halacha related to kidnapping and to captives: the payment of ransom in exchange for freeing the captive. Harsh conditions of exile have led to a wealth of halachic literature related to the subject of paying ransom money, whether to vagabond bandits or sometimes even to kings and local rulers.
Ransom money is not unknown even today and is even commonplace in some areas of the world. A more familiar form of kidnapping, certainly for those living in Israel, is terror groups, making political demands—often the release of terrorists—in exchange for releasing captives.
An instinctive belief is that no price is too high in exchange for a captive’s life and freedom. But is this true? Is there a maximum, past which ransom should not be paid? Are there exceptions to the rule? And how are non-monetary ransom demands evaluated? These questions, among others, are discussed below.
Paying More than a Captive’s Value
The Rambam (Matmos Aniim 8:10, based on the Gemara in Bava Basra 8b) states in the context of charity donations: “There is no greater mitzvah (i.e. use of charity funds) than redeeming captives.” Based on its special importance, redemption of captives is the first priority for allocating charity funds. Echoing the Rambam, the Shulchan Aruch (Yoreh De’ah 252:1) likewise states: “No mitzvah is as great as redeeming captives.”
The Gemara (Bava Basra 8b) highlights the plight of the captive in the hands of his captors. The latter can torture him, pass him through great suffering, and even kill him. He is entirely at their mercy. The Shulchan Aruch (Yoreh De’ah 252:3) thus writes that one who can redeem a captive yet fails to do so is considered to be murdering at each moment.
Nevertheless, the Mishnah (Gittin 45a) teaches that captives should not be redeemed for any price: “Captives are not redeemed for more than their value.”
The reason for this is discussed by the Gemara, which mentions two possible reasons, without deciding which of them is the true reason. One reason is that it is too weighty a burden on the community. According to this reason, Rashi writes that a private individual is permitted to redeem his own family or loved ones, even for great sums of money.
Another suggested reason is that payment of large ransoms encourages captors to continue in their evil ways, taking further captives to make money. Based on this rationale, a private individual may not pay exorbitant sums for the release of his family, since this encourages kidnappings and places the community at risk.
What is a Person’s Value?
What is a person’s value?
In days of old a person’s value could be established by reference to the slave market. Shut Maharam Lublin (no. 15) thus writes that it is prohibited to ransom a person for more than his value on the local slave market. In the absence of a local slave market, value can be ascertained by comparison to a slave market elsewhere.
Today, however, in the complete absence of slave markets, the question of how to estimate a value becomes problematic. Addressing the question of why it is customary to ransom captives for more than their value without discerning between elderly or young, the Radvaz (vol. 1, no. 40) explains that a person’s value is determined according to the norm for ransoming captives.
In other words, Jewish captives should not be ransomed for a higher sum than equivalent non-Jewish captives. The Radvaz concludes by mentioning that Jews are generally willing to spend far more than non-Jews on ransoming their captives, and he greatly praises this quality—even though halacha dictates that only the standard sum should be offered.
The yardstick given by the Radvaz seems difficult to implement today: demands for ransom payments are scarce, and there are certainly no official statistics to go by. Because of this difficulty, Rav Shaul Israeli (Shut Chavas Binyanim, shaar 2, no. 15) ruled that any sum of money is today considered more than the value of a captive. In his opinion, one should not pay any ransom money whatsoever to procure a captive’s freedom.
This opinion is extreme among halachic authorities. The general approach of Poskim seems to be that each case should be judged on its specific merits (see further below). Though it remains inherently vague, the basic yardstick is that one should not pay more than non-Jews would pay for the freedom of non-Jewish captives.
Exceptions to the Rule
Rishonim mention several exceptions to the rule of not overpaying ransom money. Based on a Gemara that obligates a husband to ransom his wife (on the first occasion she is taken captive) even for a great sum of money, Tosafos (Gittin 45a) explains that a person’s wife is considered his own self. Concerning one’s own self, there is no limitation on the amount of ransom one may pay.
Tosafos also cite an anecdote mentioned in the Gemara (Gittin 58a) describing how one of the Tanaim ransomed a child who had demonstrated great abilities, paying a very high sum. According to one explanation offered by Tosafos, the reason for this was because of the child’s great potential. Indeed, the child grew up to be the great Rabbi Yishmael ben Elisha. As the Ramban writes, money is a replaceable commodity, but Torah scholars are irreplaceable. When it comes to Torah scholars, any sum of money is legitimate to procure their release.
According to another explanation of Tosafos, it was permitted to ransom the child for a great sum because at the time of the Destruction the problem of encouraging kidnapping became irrelevant: things could get no worse than they already were.
Elsewhere, Tosafos (Gittin 58a) present another explanation, writing that it is permitted to pay an exorbitant ransom when there is an imminent danger to the captive’s life. The Ramban there disagrees with this explanation, claiming that all cases of captivity involve an inherent danger to the captive’s life, while ransoming for exorbitant sums remains prohibited. Yet, as we will see below, several halachic authorities adopt the explanation given by Tosafos.
Some Rishonim, including Rambam and the Shulchan Aruch (Yoreh De’ah 252:4), rule like the explanation of the Gemara that the rationale behind the prohibition against paying exorbitant ransoms is concern for encouraging captors to continue their ways. The Ran explains that even though the Gemara does not decide the correct explanation, proof can be adduced from a different Gemara to decide the matter. The Shulchan Aruch also notes the exceptions cited above: A person is permitted to redeem himself for large sums, and it is likewise permitted to redeem a Torah scholar, or somebody we believe is destined to become a Torah scholar, for sums beyond his value.
By contrast, the Yam Shel Shlomo (Gittin, chap. 4, no. 66) rules like the other reason in the Gemara, namely that the rationale behind the prohibition is the strain on the community. He thus explains the custom of a number of communities to pay disproportionate ransoms, reasoning that a community (but not individuals) has a right to ignore and overlook the strain and difficulty of raising the funds.
He adds that in circumstances that present immediate danger to the captive’s life, it is permitted and even obligatory to ransom a captive even for disproportionate sums. Significantly, he also adds (no. 72) that this is the accepted custom.
Based on his outlook on the issue, the Yam Shel Shomo questions the legendary behavior of Maharam of Rothenburg, who refused to allow his community to ransom him from captivity, and ultimately died in the hands of his captors. His status as a leading Torah scholar should surely have been reason enough to permit his ransoming, even at a great expense. In addition, the captivity endangered his life, and this should also have been a reason to allow for his ransoming, even for disproportionate sums.
Finally, however, he justifies the action of Maharam, explaining that he did not allow himself to be ransomed since this would encourage the future kidnapping of other Torah leaders, so that ultimately the communities would lack the means to redeem them. This would lead to a possible calamity for Torah Judaism. To avert the potential disaster Maharam refused to be ransomed. Yam Shel Shlomo writes that the self-sacrifice of Maharam prevented similar acts of kidnapping from taking place.
The ransom demanded by terror organizations today, as the State of Israel knows well, is not financial but rather human. The demand to free terrorists from Israeli prisons introduces a new, hitherto unexplored element into the question of redeeming captives. Is it permitted to free dangerous prisoners, who, experience shows, are likely to return to their murderous practices, for the sake of releasing Jewish captives?
One possible approach to this question is to view it as entering a state of potential danger for the sake of alleviating an immediate danger to a captive’s life. Halachic authorities dispute the question of saving somebody’s life at the expense of placing oneself in a state of potential danger. Some authorities (Hagaos Maimonios, Rotzeach 1:15) maintain that one is obligated to do so, while others (Sema, no. 426) state that one is not obligated in this. Indeed, the Radvaz (vol. 3, no. 627) goes so far as to label such a rescue as an act of folly.
Freeing terrorists seems to fit the category of exchanging a definite danger for a potential danger, which would invoke the dispute of authorities mentioned above.
Gilyon Maharsha (Yoreh De’ah 157) issues an explicit ruling on a similar question, stating that “if somebody is taken captive, and it is known that if he is redeemed, another will be taken in his stead, it is forbidden to redeem him… however, if there is a doubt whether the other will be taken captive, we do not abandon the definite captive because of the doubt.” In other words, we should not refrain from redeeming somebody in certain danger because of a potential danger in the future. However, it can be argued that one may not exchange a present danger to one person for a great danger to a very large group, which the release of an arch-terrorist could bring about.
The ruling whereby a possible danger for the future does not defer a certain danger at the present is also given by Rabbi Ovadya Yosef (Yabia Omer, vol. 10, no. 6)—the teshuva relates to the Entebbe raid of 1976, and touches directly on the question of releasing terrorists in exchange for a captive’s freedom.
Freeing Terrorists: Too High a Price?
An additional approach to the question of freeing terrorists is by comparison with the halacha whereby one may not pay too high a price for redeeming captives. Is the freeing of terrorists too high a price? Would this fall under the prohibition of paying a ransom that encourages more kidnappings?
Addressing this issue, we find an interesting ruling in the writings of Rabbi Shaul Israeli (Shut Chavas Binyanim, ibid.). In his opinion, “Soldiers that are sent to military service by the State for the defense of the people do so under an unwritten yet obvious agreement that the State will do all in its powers (within reason) to redeem them in case they fall into captivity. […] This is an obligation that the State accepts upon itself in exchange for military service, and therefore, it is considered as though the State is redeeming itself, and the restriction of paying more than the captive’s value does not apply.”
According to Rabbi Israeli, the redemption of soldiers from captivity is comparable to a person’s redemption of himself or of his wife. As we saw above, such cases are not bound by the restriction of too high a price. In this light, Rabbi Israeli rules that the State must be ready to release terrorists for the sake of returning captured soldiers: no price is too great.
Yet there is room to question the comparison between a person’s redemption of his own self (which Chazal did not wish to restrain) and the redemption of a single person by the entire community—and in this case by the entire country.
Rabbi Ovadyah Yosef (ibid.) relies on a different approach in tackling the question of “At what price?” He quotes several authorities who rule that in cases where a captive’s life is in tangible danger it is permitted to redeem him at any price. As noted above this is the opinion of Tosafos and the Yam Shel Shlomo (though as noted above, he ultimately justifies the action of Maharam even though his life was in danger), to which Rabbi Yosef adds several additional Poskim (see also Pischei Teshuvah 252:4). Based on this principle, he concludes that it is permitted to release terrorists for the sake of redeeming Jewish captives, whose presence in the claws of a terrorist organization is certainly an imminent danger to their lives.
It is important to note that it will sometimes be necessary to consider additional factors in weighing the difficult decision of releasing prisoners for the sake of redeeming captives. These can include public morale, army motivation, the nature of the terrorists and the dangers they pose, and other factors that depend on each case and circumstance.
May these difficult halachos become obsolete, and may we see the final redemption speedily and in our days.