Shabbat Parashat Behar Bechukotai| 5770
Hemdat HaDaf Hayomi: Kidnapping (85b)Rav Ofer Livnat
This week in the Daf Hayomi, the Gemara (85b) begins to deal with the issue of kidnapping. The Gemara (86a) interprets the eighth commandment of the Ten Commandments, "do not steal," as referring to kidnapping. Later on, in Parshat Mishpatim (Shemot 21, 16), the Torah specifies further: "If one steals a man and sells him, and he is found in his hands, he shall be put to death." In Devarim (24, 7) the Torah again addresses this issue. From these verses we see that the death penalty is issued for kidnapping, and the Gemara learns most of the Halachot pertaining to this issue from these verses.
One of the questions the commentators raise is why kidnapping is defined as gneiva (stealing). Regarding stealing money or other belongings, we find two different terms used by the Torah (Vayikra 19, 11-13): gneiva and gzeila. The difference between them is in the method the thief uses to illicitly take something. The gazlan uses strength, taking the property from the rightful owner by force. The ganav, on the other hand, uses stealth as his means, and takes from the owner without being seen. See Hemdat Hadaf Hayomi on parshat Vayakhel Pekudei (Baba Kama 77-83) where we deal at length with this issue.
Thus, it would seem that, for kidnapping, the term gzeila would be more appropriate, as each person is the owner of himself, and the kidnapper overpowers him. Why then does the Torah use the term gneiva for kidnapping?
This question was posed before Rav Betzalel Ashkenazi (author of the Shita Mekubetzet) in his Responsa (response 39). In his response, he further clarifies the distinction between gneiva and gzeila. As mentioned, the definition of gzeila as opposed to gneiva, is in regards to the interaction with the owner of the object, for by gzeila the object is taken forcefully from the owner, while, by gneiva, the owner is not initially aware of the act of theft. Thus, although by kidnapping the person is aware that he is being kidnapped, he is not considered to be the owner, rather he is the object that is being stolen. Who is considered to be the owner? The relatives of the person kidnapped. Rav Ashkenazi derives this from the language of the verse in Devarim (24, 7), which Chazal interpret to mean one who steals a person from his relatives. He brings several proofs to this idea. Thus, he claims that kidnapping may be done both in a form of gzeila and in a form of gneiva. If one kidnaps without the relatives seeing, it is gneiva, and if one forces the victim away from the hands of the family, it is gzeila. Therefore, he reasons, since in the Torah and in Halacha we see only the term gneiva used, the death penalty will be incurred only if the kidnapping took place in a gneiva manner. The logic behind this distinction, he explains, is that when one kidnaps in front of the relatives, they know whom to chase after to free their relative. However, when one kidnaps without the family seeing, the relatives have no way to find the victim, and it is considered to be a much more serious offense.
Rav Perla, in his commentary to Rasag’s Sefer Hamitzvoth (Lo Ta'aseh 91) strongly disagrees with Rav Ashkenazi and claims that in no way can the family be defined as owners of a person. Rather, he claims, each person owns himself. If so, why doesn’t the Torah define kidnapping as gzeila? He answers that the most common kidnapping is of little children. Since in a kidnapping of a small child there is no real confrontation between the kidnapper and the child being kidnapped, the term gneiva is more appropriate. Thus, while the kidnapping of an adult would be considered gzeila, the Torah chose to use the term gneiva since that is the more common form of kidnapping. However, the Halacha is that both for the kidnapping of a child and an adult the death penalty is issued and thus there is no ramification to this distinction.
Next week in the Hemdat Hadaf Hayomi, after B"H we will have learned in the Daf Yomi more of the conditions required for one to be liable for kidnapping, we will attempt to suggest another explanation based on these Halachot.
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This week’s Hemdat Yamim is dedicated in loving memory of
R' Meir ben