Living by the Torah

In the book of Vayikra (18:5) we find the renowned Torah statement: “You shall observe my decrees and my laws that each man shall carry out and by which he shall live, I am Hashem.” This verse teaches us that if the observance of Torah law creates a threat to human life, then preservation of life takes precedence over the Torah law. This is the will of the Torah itself.

On the basis of the verse, the Gemara (Sanhedrin 74a) rules that if someone is offered the ultimatum to violate one of the prohibitions in the Torah or be killed, he should violate the law and save his life. However, based on a verse in Parashas Emor (22:32) which instructs: “I shall be sanctified amidst the Children of Israel,” the Gemara lists three exceptions to this rule.

These principles are codified by the Rambam (Yesodei Ha-Torah 5:1-4):

The entire house of Israel is commanded regarding the sanctification of Hashem’s great name, as the Torah states: ‘And I shall be sanctified amidst the Children of Israel.’ Also, they are warned against desecrating [His holy name], as [the above verse] states: ‘And they shall not desecrate My holy name.’

What is implied? If a non-Jew should arise and force a Jew to violate one of the Torah’s commandments or face death, he should violate the commandment rather than be killed, because the Torah states concerning the mitzvos: “…which a man will perform and live by them.

When does the above apply? To all mitzvos with the exception of the worship of other gods, forbidden sexual relations and murder. With regard to these three sins, if one is ordered: ‘Transgress one of them or be killed,’ one should sacrifice his life rather than transgress.”

It appears from this halachah that for all other obligations and prohibitions, including the prohibition of gezel (theft), a person must violate the Torah law rather than give up his life. Yet, as we will see in the present article, the question of stealing to save one’s own life, or to save somebody else’s life, is not so simple.

Stealing or Damaging to Save a Life

The above Gemara in Sanhedrin describes a case where a person who is being pursued destroys somebody else’s property in order to save his own life. Rava rules that if the property belongs to the pursuer (meaning, the person under attack can escape by damaging his assailant’s property) then the pursued is exempt from compensating him for the damage. However, if the property belongs to a third party, the pursued is liable for the damage.

This fits well with the principle noted above, whereby only the three major transgressions take precedence over saving one’s life. All other laws, including theft, may (and must) be violated for cases of PikuachNefesh. Since stealing or destroying property is not one of the three exceptions to the rule of “vechai bahem,” it seems clear that one should steal and destroy property rather than die (see Raavad Chovel U-Mazik 8:4).

Note that when somebody damages property to save another from death, the damager is exempt from liability. The Penei Yehoshua (Bava Kama 60b) explains that this exemption does not apply where a person causes damage to save himself. When saving others, the Sages enacted an exemption, to facilitate saving others. For saving the person himself, there is no need for such an enactment, because even if it will cost him money, a person will not refrain from saving himself.

When a Person Cannot Pay Back

What happens if a person knows he won’t be able to pay back the money: Can he damage another’s property in the knowledge that he won’t be able to pay for it? Shut Beis Yehudah (no. 47) writes that under these circumstances, it is forbidden to steal or damage. He rules that if a person is so poor that his life is endangered, it remains forbidden for him to steal to save his life, in the knowledge that he won’t pay it back.

However, the Shulchan Aruch Ha-Rav (Gezeilah 2) writes that it is enough that he should intend to pay back the theft or damage “whenever he will have the capacity to do so.” Moreover, Shut Maharam Schick (nos. 347-8) writes that even where a person is incapable of paying back, it is permitted to steal or damage if this is required to save a person’s life (see also Shut Iggros Moshe, Yoreh De’ah 1:214).

An interesting source for this matter is Rabbi EliyahuCohen’s (17-18th Century) Meil Tzedakah (no. 1702). He writes that a person should not consider it permitted to steal from a poor person under the assumption that the poor person himself stole the item, because “since he is poor, there is no sin in his act of theft, for it was done to restore his soul.”

A noteworthy point is that in cases where the mitzvah of “lo taamod al dam re’acha” applies, the owner might be obligated to surrender his property to save the life of a fellow Jew. This will be another reason that theft or damage will be permitted (based on Rashba, cited by the Shita Mekubetzes, Bava Kama 81).

King David‘s Dilemma

However, a number of sources indicate that one may not steal even to save a life. One important source is a Gemara in Bava Kama (60b) that relates a story about King David (see Shmuel II 23:11-17; Divrei Hayamim I 11:13-19).

King David was fighting the Philistines when he became very thirsty. He said, “If only someone could give me water to drink from the well of Bethlehem which is in the city of the gate.” Upon hearing this, three of King David’s men broke through the gate and retrieved water. Before drinking, King David sent a question to the Sanhedrin, asking permission to drink the water, to which they responded in the negative.

The Gemara interprets the passage to be speaking of King David’s wish for halachic guidance (though this involves a substantial departure from the simple meaning of the verse; see Radak, who finds difficulty in this interpretation). The “mayim” for which King David asked does not refer to physical water, but rather to waters of Torah.

According to R’ Huna, the question King David was asking was whether he was permitted to destroy another’s property for pikuach nefesh. David and his army were in the middle of a barley field where the Philistines were hiding. He wanted to torch the field so that the Philistines would retreat and thereby avoid an ambush on his army. The problem was that the barley field belonged to another Jew. David inquired if he could save himself and his army by destroying the property of another.

The Gemara states that the Sanhedrin ruled that it is forbidden in principle to destroy the property of another to save one’s life. However, since King David was the king, it was within his authority to appropriate the property of his people. The conclusion of the passage is that in spite of the permission he received, King David refrained from torching the field.

Permission to Torch or Obligation to Pay?

The question of precisely what King David was given permission involves a dispute among authorities. According to Tosafos, the question posed to the Sanhedrin was not if it is permitted to destroy property to save a life. It is obvious that this is permitted, because theft is not one of the three cardinal sins.

Rather, King David’s question was whether he would have to compensate the owner for burning the field. The Sanhedrin responded that it was forbidden to burn the property without compensating the owner. Although the Gemara states the law in terms of a prohibition, Tosafos explains that means to imply that where there is another way to save oneself from danger, it is indeed forbidden to destroy property (see Tur, Choshen Mishpat 359).

The Rosh (Sanhedrin 6:12) agrees with Tosafos, and states that the Gemara never contemplated whether it is forbidden to save the life of the Jewish army at the expense of someone’s crops. Such a ruling was obvious. The question concerned compensation.

Rashi’s Interpretation

Rashi, however, appears to imply that the Gemara should be interpreted literally. Rashi explains that the answer of the Sanhedrin was that it is forbidden to save oneself with somebody else’s money, and therefore the field must not be torched, in order to avert transgressing the prohibition (s.v. vayatzilem).

The simple understanding of Rashi is that the Gemara is not discussing compensation, but rather whether a person in a life-threatening situation can save himself with another’s property.

This is how the Binyan Zion (Rav Yaakov Ettlinger, nos. 167-170) understands Rashi. Rav Ettlinger explains, “The Torah only permitted the transgression of mitzvos for the purpose of saving a life, and not that which belongs to others.” Meaning, the principle whereby Pikuach Nefesh defers Torah law applies only to laws that are “between man and Hashem,” and not to those that are “between man and his fellow.”

The Chasam Sofer (Kesubos 19a) writes, along similar lines, that according to Rashi theft is included in the category of murder: A person’s possessions are also part of his being.

Based on this assertion, the Binyan Zion goes a step further and rules that it is not permitted to save one Jew by means of harvesting an organ from another Jew who recently passed away, because it is not permitted to save a life at the expense of the deceased’s shame (see no. 170).

However, it is possible that this is not the intention of Rashi. Rav Moshe Feinstein (op. cit.) writes in the strongest terms that Rashi cannot mean to say that theft is forbidden even in cases of Pikuach Nefesh. He suggests that perhaps the case was only a very distant possibility of danger to life, and prefers to leave Rashi uninterpreted, rather than to reach the conclusion of the Binyan Zion.

Perhaps in the case of King David the options were not to torch the fields or to die. Rather, other options were also available to David, such as encircling the fields with soldiers. The most convenient and efficient option, however, was to torch the fields, and the question was whether it was permitted to take this course of action, at the cost of the loss of another’s property (see Minchas Asher, Vayikra no. 50; see also Yad Rama, Sanhedrin 73a).

Rabbi Meir’s Opinion

An additional source for this matter, which is also raised by Shut Binyan Zion, is the Gemara in Kesubos (19a) concerning a case of false testimony: A witness is given an ultimatum: either sign a false note (which will award money to an undeserving party) or be killed.

In deciding the case, Rav Chisda cites Rabbi Meir that one should allow himself to be killed rather than sign the note, since signing the false note is stealing. Rava disagrees, and rules that the witness may sign the note, since nothing stands in the way of mortal danger other than the three cardinal sins, of which stealing is not one.

The Ramban cites an opinion that according to Rabbi Meir one must give away one’s life even to avoid theft. This is supported by a Braisa Chitzonis (a tannaic text that was not canonized in the Mishnah and other corpuses) stating explicitly that according to Rabbi Meir theft is on the list of the cardinal sins, holding that stealing is a form of killing.

We find a similar statement in the Yerushalmi (Shabbos 14:4), that theft is added to the three cardinal sins as cases for which one must give up one’s life.

The Ramban himself suggests that even according to Rav Chisda there is no obligation to give up one’s life to refrain from theft, but it is midas chassidus (pious) to do so.

Additional Sources

Additional sources appear to imply that stealing is forbidden even for pikuach nefesh.

The Gemara in Yoma (83b) records that a Tanna stole a loaf of bread from a farmer in order to save his life, and was rebuked for doing so.

In a similar vein, the Gemara in Bava Kama (80a) notes a case where the Sages objected to a person keeping in his possession a goat since goats graze on other people’s property, thereby stealing from others – this in spite of the fact that the goat was needed to save the owner’s life.

The Maharsha suggests that the case did not involve actual danger of death, which is why the Sages objected to the practice. The Meiri, however, implies that there was danger of death, and notes that “something that is forbidden by a rabbinic enactment, and on account of others’ loss, is more stringent.” This rationale is difficult to understand, bearing in mind a circumstance of Pikuach Nefesh.

Another source for the special status of theft is the Yershalmi (Avoda Zara 2:2), which implies that stealing is equal to the three cardinal sins. Forcing someone to steal is like forcing him to kill. Since one cannot kill to save a life, one cannot steal either.

The Bottom Halachic Line

In spite of these sources, the halachah follows the views that it is permitted to steal or damage in cases of pikuach nefesh. This must be done with the intention to compensate the owner (Choshen Mishpat 359:4; 380:3; see above for cases where this is not possible).

With the exception of idolatry, illicit relations and murder, the Shulchan Aruch (359:4) rules that a person is permitted to transgress all the sins in the Torah rather than be killed. This includes theft. Yet, damages must be compensated.

Therefore, if a person’s life is in danger and he must steal to save himself – for instance, stealing a life-saving medicine such as insulin, where one’s own stock got lost and there is no other way of obtaining the medicine – he can do so, if he doesn’t endanger the owner’s life.

Note that the position of halachah is similar to the position of Israeli Law, which notes an explicit exemption from criminal liability for somebody who acts to save his life, but there is no parallel exemption from tort litigation.

Under halachah there is an exemption for somebody seeking to save another’s life, but not for somebody saving his own life.

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