Siman 252

The Rambam wrote in the eighth chapter, law 10: Redeeming captives takes precedence over sustaining the poor and clothing them. There is no mitzvah as great as redeeming captives. For the captive is included among the hungry, the thirsty, and the naked, and stands in mortal danger. One who turns his eyes away from his redemption—behold, he violates "You shall not harden your heart nor shut your hand," and "You shall not stand idly by the blood of your neighbor," and "He shall not rule over him with rigor in your sight." And he has nullified the mitzvah of "You shall surely open your hand to him," and the mitzvah of "And your brother shall live with you," "And you shall love your neighbor as yourself," and "Deliver those who are drawn toward death," and many such things. There is no mitzvah as great as redeeming captives. Thus far his words. And all of this was in ancient times, and also now in the far reaches of the deserts in Asia and Africa, where marauders fall upon wayfarers and take them into captivity until they are redeemed for much money, as is known from the caravans traveling in the Arabian desert.

He further wrote: The people of a city who collected money for the building of a beit knesset, and a matter of a mitzvah came before them—they may expend the money for it. If they bought stones and beams—they may not sell them for a matter of a mitzvah. Except for the redemption of captives; even though they brought the stones and squared them, and the beams and planed them, and prepared everything for the building—they may sell everything for the redemption of captives only. But if they built and finished—they may not sell the beit knesset, but rather they shall collect for their redemption from the community. Thus far his words. And it is not because the mitzvah of a beit knesset is greater than the mitzvah of the redemption of captives, for certainly there is nothing greater than the redemption of captives. Rather, the reason in the Gemara (Bava Batra 3b) is that a person's dwelling is not sold, see there. That is to say: just as a person does not sell the dwelling in which he lives even for the greatest need, for it is impossible without a dwelling, so too the dwelling of the beit knesset, which is the dwelling of the collective of Israel for Torah and for prayer, is no less than his own dwelling. And just as a person exerts himself with all his might so as not to sell his dwelling, and will toil to find another solution for what is needed, so too they are obligated to exert themselves to make a new collection from the community. This is not the case as long as it has not been built—they do not exert themselves in this, but rather sell immediately in order to redeem them quickly. But if it is impossible at all to make a collection—it is obvious that they sell even the beit knesset, and they remove it even to secular use in order to redeem the souls.

And it appears to me that for this reason the Rambam, of blessed memory, was precise to say that they should collect for their ransom from the community. And it is difficult: what is he teaching us? Rather, for if not so, I would have said that for this reason they should not sell the beit knesset, because the mitzvah of a beit knesset is greater than the redemption of captives, which is not so. Rather, this is what he says: that they are obligated to exert effort to collect their ransom from the community, even though it is possible that through this they will delay their redemption slightly, for the reason that a person does not sell his dwelling (and so it appears to me from the words of the Shach, subsection 1, see there). And know that it is not specifically a beit knesset, for the same law applies to a beit midrash—its law in this is like a beit knesset (Bach).

And one should not ask: Since the redemption of captives is greater than all other mitzvot, if so, why did they say in Megillah (Megillah 27b) that one may not sell a sefer Torah except to study Torah or to marry a woman, and they did not also say for the redemption of captives? For perhaps it is an obvious matter (Tosafot Bava Batra 8b). And certainly it is so. And also the Rambam in the tenth chapter of Sefer Torah, who wrote: One may not sell a sefer Torah except for two things: to study Torah and to marry a woman, etc. — he also employed the wording of the Shas as is his way. But there is no doubt regarding this. Furthermore: there it refers to an individual, and certainly he is not obligated to sell a sefer Torah for the redemption of captives which pertains to the community. And even all of his money he is not obligated to give, but rather they shall collect from the community. And each one shall give a donation according to his value, for if not so, when the redemption of captives occurs, we would say to the wealthy man "give all your money." And all the more so that he does not sell his sefer Torah, and likewise anything that is his. And if it is for his own redemption of captives — it is obvious that he would sell it of his own accord, for even to his creditor he must pay with a sefer Torah if he has no money, as I wrote in Choshen Mishpat siman 97, and all the more so for the redemption of captives. Therefore, it is not relevant to include the redemption of captives there. (And the Gaon Rabbi Baruch Frankel wished to infer from the wording of the Rambam contrary to the words of the Tosafot, see there. And it is not so, for according to what I have written, this is no inference at all. And also from the words of the Shach and the Taz subsection 1 it is explained so, see there that he rules like the Tosafot. And examine and you will find it simple.)

One of the great authorities wrote that from the wording of the Rambam, who wrote: "But if they built it and finished it, they may not sell it, etc." – it implies that if they have not yet finished it, they may sell it (Taz, subsection 1). And certainly it is possible to say so according to what we have explained, that according to the essential law it is permitted to sell for the redemption of captives, except for the reason that one does not sell a person's dwelling. However, the essence of the inference seems not to be an inference, for if so, even "built it" alone would suffice, as this wording also implies they already built it, since he did not write "but if they are building it." Furthermore: if so, we should not have to say "hewed stones and planed beams," let it say "even though they are building it," which would be a greater novelty. Rather, it appears on the contrary that it comes to exclude, meaning: that as long as they are building it, it is called "finished it." For previously it was preparation for the building, and when they are building it is called that the building is finished, regarding this matter that they collect from the city and they shall not sell it. And it requires further study for the practical law. (See the Taz there who wondered at the wording of the Tur who forbids selling. And there is no prohibition in the wording of the Tur, but rather he wrote: "they shall not sell it." And such is the wording of the Shulchan Aruch, and this is like the wording of the Rambam. And see the Gra, subsection 3, and it requires further study. Examine and you will find it easy.)

Our teacher, the Rema, wrote: In any event, one who vows a sela for tzedakah—pidyon shevuyim is not included. And one may not redeem with this sela except with the consent of the people of the city, as below in siman 257, section 5. Thus far his words. And there, nothing of this is found. And it appears to me that the text should read "as below in siman 256, section 4," for there it is explained that the people of the city may change from one tzedakah to another tzedakah. And the intention of our teacher, the Rema: that even though within the category of pidyon shevuyim there is also tzedakah, as I have written that there is hunger and thirst in this, nevertheless, in the common language of people, it is not included in plain tzedakah. And some disagree with him, and they hold that it is included in tzedakah (Bach and Taz, siman 256, subsection 4). And some uphold his words (Shach, subsection 6), but it is not definitive (the Gra, subsection 4).

However, I do not know regarding the essence of the matter what our teacher, the Rema, is teaching us. For if we say that his intention is that when they set aside funds for pidyon shevuyim, one may only redeem with this sela with the consent of the people of the city, and if the people of the city do not wish to change its purpose or if they are not present, one does not redeem them—this is certainly not so. For since regarding pidyon shevuyim, every moment that one delays from redeeming, they are like those who shed blood (Beit Yosef), and if so, how is it possible to say that they should wait for the consent of the people of the city? And that which will be explained, that one may not change from one tzedakah to another tzedakah without the consent of the people of the city—this is certainly regarding other forms of tzedakah, excluding pidyon shevuyim. And so it is implied from the wording of the Rambam and the Tur, who wrote that they may change for pidyon shevuyim. And even though it could be said that their intention is with the consent of the people of the city, and such is the truth, nevertheless, it is obvious that even if they do not agree—one is not to obey them. And if so, for what purpose did he write this law?

And the source of the law is from the Maharik (root 7), and there it is a different matter: regarding Reuven and Shimon who entered into a partnership, and stipulated that for tzedakah they would both give equally, and afterward a certain case of redeeming captives arose. Reuven claimed that he does not need to give more than Shimon, according to the stipulation between them. And Shimon says that the stipulation was only regarding ordinary tzedakah to give to the poor, and not for redeeming captives. And the Maharik wrote that the law is with Shimon, for in the language of people, redeeming captives has its own name, and is not included in the category of tzedakah. And he concludes there that even if we were to say that it is included in the category of tzedakah, nevertheless, they certainly only intended for the customary and common tzedakah, and not for redeeming captives which is not common, see there. And in this matter it is certainly so, meaning that each one must give for this according to his means, and it is not included in ordinary tzedakah. But our teacher, the Rema, who applied this law to the matter that one may not redeem with this sela except with the consent of the townspeople—it is certainly difficult what the practical difference is in this, as I have written.

And it appears in my humble opinion that this is also the intention of our teacher, the Rema, and he was brief according to his holy custom, and this is the explanation: for example, if there was a need in the city for the poor and for other types of tzedakah, and also for pidyon shevuyim, and each of the city residents vowed for this and vowed one sela for tzedakah—pidyon shevuyim is not included. That is to say: and we compel him to give another donation for pidyon shevuyim. And he cannot say that his intention was also for pidyon shevuyim, because in the common language of people it is not so, for so the Maharik decided there. And that which he concluded there, that even if it is included in tzedakah, presumably they did not intend for this, he wrote this even according to the words of Reuven. But the main point he holds is that it is not included in tzedakah. And so he wrote there explicitly, see there. And that which our teacher, the Rema, concludes, that one may not redeem with this sela except with the consent of the city residents, this is the explanation: for certainly by law this sela belongs to other tzedakah, and for pidyon shevuyim he must give another. Unless the city residents know that this sela is sufficient for him, and he is not expected to give more, for then they can exempt him and give this sela for pidyon shevuyim. And he explains the reason as below etc., that is to say: for below it will be explained that the city residents are permitted to change from tzedakah to tzedakah, and all the more so they are permitted to change from tzedakah to pidyon shevuyim. Therefore, it is in their power to exempt him from giving more, and this sela shall be for pidyon shevuyim. And they are forced to do so because pidyon shevuyim takes precedence. (And with this, all that the Bach and the Taz questioned against him is settled well. Examine it and you will find it easy.)

And with all the greatness of the mitzvah of pidyon shevuyim, nevertheless, the sages taught in the Mishnah (Gittin 45a) that we do not redeem captives for more than their value, for the sake of the betterment of the world. And there is an inquiry in the Gemara: What is this "betterment of the world"? Is it because of the financial burden on the community, and according to this, if he has a wealthy relative and does not need to cast the redemption upon the community—it is permitted (Rashi) to increase the redemption? Or is the reason so that they should not be incentivized to bring more, for when the captors see that they increase their redemption—they will risk their lives to steal many souls from us. And according to this, even if he does not need the community—it is forbidden to increase the redemption; except for a person for himself, or for his wife who is like his own body, he may increase the redemption (Tosafot and the Rosh). But for another, even for his son—it is forbidden. And the inquiry was not resolved. And the Rambam in the eighth chapter wrote the second reason, so that they should not risk themselves to steal. And so too in the Tur and Shulchan Aruch section 4, see there. And even regarding his wife, he ruled in the fourth chapter of Ishut that he does not redeem her for more than her value, and see what I have written in Even HaEzer siman 78. But the Tur ruled that his wife is like his own body. And so too a talmid chacham, or even if he is still a minor and is recognizable by the sharpness of his intellect that he will be a talmid chacham—we redeem him for a high price. And there are those who wrote that also for his relatives he may redeem for a high price. And now in these countries, all of this is not applicable.

And similarly, one does not help captives escape, to remove them from the captors without ransom, for the sake of the repair of the world, so that the enemies do not increase the burden upon the rest of the captives and increase their guarding. Rather, one redeems them for their value. And the measure of their value we do not know how much it is. And when there is a danger to life, some say that one redeems them for more than their value, and some hesitate. (See Pitchei Teshuva that some say thus and some say thus regarding the measure of their value. Some say that one assesses like a slave, and some say like the star-worshippers who are redeemed from their hand. And because there is nothing clear regarding this, and in our countries all this is not common, therefore we will not elaborate on this.)

We further say there in Gittin (Gittin 46b) that one who sells himself and his sons to gentiles to be their slaves, or if they borrowed money from them and they took them for their debt, the first and second time—we redeem him. And the third time—we do not redeem him, but we redeem the sons after the death of their father, so that they do not assimilate among the gentiles. And during the lifetime of their father there is no concern, for he watches them (Rashi). Therefore, if they are not together with the father—we redeem them immediately (Shach, subsection 6). And if they seek to kill him—we redeem him immediately, even after he was sold to them several times, and certainly his sons. However, if he is a transgressor out of spite—we do not redeem him, and we only redeem the sons.

If a man and a woman were taken captive – the woman precedes for redemption so that they do not defile her. And if they are suspected of male sodomy – the man precedes. And so too if they stand in mortal danger, or if both are drowning in a river – the man precedes. And a slave who was taken captive, since he immersed for the sake of slavery and accepted upon himself mitzvot – they redeem him like an Israelite who was taken captive. And if he and his father and his teacher are in captivity – he precedes his teacher, and his teacher precedes his father. And if his father is a talmid chacham – his father precedes, even though his teacher is greater than him and is his primary teacher, nevertheless his father precedes. And if his mother is in captivity – she precedes everyone, even against himself. And if there is mortal danger – his life precedes (ibid. subsection 10). And if he and his wife are in captivity – his wife precedes him; beit din descend to his properties and redeem her. And even if he stands and screams "do not redeem her from my properties!" – they do not listen to him. And so too one who was taken captive and has properties, and does not want to redeem himself – they redeem him from his properties against his will. And so too a father is obligated to redeem the son, when the father has and the son does not have. And so too any other relative – they compel him to redeem his relative, and the closer relative precedes. And they cannot cast them upon the community if only he is wealthy. And everything is according to the sight of the eyes of the beit din.

Our teacher, the Rema, wrote at the end of this siman (Shulchan Aruch Yoreh Deah 252): One who redeems his fellow from captivity—he is obligated to pay him back if he has the means to pay. And we do not say that he is merely one who chases a lion away from his fellow's property, and he must pay him immediately, and he cannot say "I will follow you to a beit din." And if he has a claim against him afterward—he may sue him in a beit din, for without this, no man would redeem his fellow. Thus far his words. That is to say: even though according to the law he could say "Who requested this of your hand?". And it is not similar to one who descends into the field of his fellow without permission and sows it, where he is obligated to pay him as I wrote in Choshen Mishpat siman 375, for there he performed a benefit for him. But here he saved him from harm, and he is one who chases away a lion and is exempt, and nevertheless, because of the enactment, he is obligated to pay him immediately. And he cannot even say to him to go with him to a beit din, but rather he shall pay him and afterward sue him in a beit din if he has a claim against him. Therefore, he collects even from minor orphans if he redeemed them, and he does not wait until they grow up. And all this is because of the enactment (Shach subsection 13), and he only needs to pay according to his value.