Talmidav Shel Aharon
30-5768: Mitzvah N-33
August 5, 2008
Negative Mitzvah 33 – This is a negative commandment: do not kidnap a living Jew.
Hafetz Hayim: For Scripture says, “You shall not steal.” (Ex. 20:13). The Sages of blessed memory learned (Talmud Sanhedrin 86a) that this is an admonition to one who would kidnap a living Jew. If he sells him into slavery he likewise violates a negative commandment, since that is covered by the injunction, “They shall not be sold as slaves” (Lev. 25:42) a kidnapper is not punishable by death until he steals away an Israelite, takes him into his domain and makes use of him, and sells him to others. If he sold the man to the father or brother of the one who was kidnapped, he would be free of punishment. It is in force everywhere and at all times for both men and women.
Once again, the Ten Commandments doesn’t say what we think it says. On the surface, when it says, “You shall not steal” we would think that it refers to the theft of someone’s “stuff” (chattels as it is called in the legal literature). But stealing property is covered by the law in Leviticus 19:11. The Rabbis also noted that the prohibition against stealing is found between the laws of murder and adultery, both capital crimes. Stealing property did not seem to fit, so they interpreted this law to be a ban on kidnapping.
There are two other places where this law is mentioned. Exodus 21:16 and Deut. 24:7 and there are some discrepancies between them. Exodus refers to the kidnapping of all people but Deut. seems to limit the law to kidnapping Jews. It reconcile the many differences between these two verses, the sages limited the charge of Kidnapping to those who abduct, detain, enslave and sell a human being. Without all four parts, a kidnapper could not be put to death. The crime may be reprehensible, but not a capital offence. This is the reason that the sale of the man to his father or brother would not make him guilty of any offence. The brother or father would be buying the man, not for slavery, but to redeem him from captivity. (Redeeming from captivity would be a positive mitzvahfor the family.)
Without all four elements, there could be no punishment for the kidnapper at all since any one element missing, would make the act incomplete and not a “real kidnapping.”
The Hafetz Hayim seems to limit this law to Jews but my sources informed me that it applies to all human beings. Kidnapping and the sale of those people into slavery is forbidden for all people.