Tanach · Rishonim on Tanach · Ramban · Torah

Ramban on Exodus 21:16/רמב"ן על שמות כ״א:ט״ז

אוְנִמְצָא בְיָדוֹ שֶׁרָאוּהוּ עֵדִים שֶׁגְּנָבוֹ וּמְכָרוֹ וְנִמְצָא בְּיָדוֹ קֹדֶם הַמְּכִירָה. לְשׁוֹן רַשִׁ"י (רש"י על שמות כ"א:ט"ז). וְלֹא הֲבִינוֹתִי זֶה, אִם לְלַמֵּד שֶׁיִּרְאוּהוּ עֵדִים בְּיָדוֹ קֹדֶם הַמְּכִירָה, וְכִי תַּעֲלֶה עַל דַּעְתְּךָ שֶׁיְּהֵא זֶה נֶהֱרָג עָלָיו עַד שֶׁיִּרְאוּהוּ עֵדִים שֶׁגָּנַב וּמָכַר, וְדַי בַּמֶּה שֶׁאָמַר וְגוֹנֵב אִישׁ וּמְכָרוֹ, וְהַמְּצִיאָה בְּיָדוֹ אֵינֶנָּה רְאָיָה גְּמוּרָה. אֲבָל הַכָּתוּב הַזֶּה בָּא לְלַמֵּד עַל מַה שֶׁשָּׁנִינוּ (סנהדרין פה:) הַגּוֹנֵב נֶפֶשׁ אֵינוֹ חַיָּב עַד שֶׁיַּכְנִיסֶנּוּ לִרְשׁוּתוֹ, וְאָמַר בַּבָּרַיְתָא גְּנָבוֹ וְלֹא מְכָרוֹ, מְכָרוֹ וַעֲדַיִן הוּא בִּרְשׁוּתוֹ פָּטוּר. וְהָעִנְיָן לְלַמֵּד שֶׁדִּינוֹ כְּדִין שְׁאָר הַגַּנָּבִים בְּמָמוֹן, שֶׁאִם טָבַח וּמָכַר בִּרְשׁוּת הַבְּעָלִים פָּטוּר, וְאִם הִגְבִּיהוֹ אוֹ שֶׁהוֹצִיאוֹ מֵרְשׁוּת הַבְּעָלִים חַיָּב (ב"ק עט.). וְכֵן זֶה צָרִיךְ שֶׁיָּבִיא זֶה הַנִּגְנָב לִרְשׁוּתוֹ, וְכֵן אִם הִגְבִּיהַּ הַנַּעַר עַל כְּתֵפוֹ וּמְכָרוֹ לְאַחֵר חַיָּב הוּא, דְּהָא קָרֵינָא בֵהּ וְנִמְצָא בְיָדוֹ, וְלֹא תְּהֵא חֲצֵרוֹ קוֹנָה לוֹ יוֹתֵר מִיָּדוֹ:
וְכֵן מַה שֶׁאָמַר מְכָרוֹ וַעֲדַיִן הוּא בִּרְשׁוּתוֹ, שֶׁלֹּא הוֹצִיאוֹ הַלּוֹקֵחַ מֵרְשׁוּתוֹ כְּלָל וְאע"פ שֶׁנָּתַן בּוֹ מָעוֹת, כִּי שֶׁלֹּא הוֹצִיאוֹ מִשָּׁם פָּטוּר: וְלֹא יָדַעְתִּי אִם לוֹמַר שֶׁצָּרִיךְ קִנְיָן כְּמִשְׁפַּט הַקְּנִיּוֹת שֶׁיִּמְשְׁכֶנּוּ מֵרְשׁוּת הַמּוֹכֵר לְסִמְטָא אוֹ עַד שֶׁיַּגְבִּיהֶנּוּ, אוֹ הִיא גְּזֵרַת הַכָּתוּב בְּנֶפֶשׁ לוֹמַר שֶׁאֲפִלּוּ נִגְמַר הַמֶּכֶר בֵּינֵיהֶן וְקָנָה בְּהַגְבָּהָה אוֹ בִּמְשִׁיכָה בְּחָצֵר שֶׁל שְׁנֵיהֶם יִהְיֶה פָּטוּר עַד שֶׁיֵּצֵא מֵרְשׁוּתוֹ לִרְשׁוּת הַלּוֹקֵחַ, וְכֵן נִרְאֶה. וְרַשִׁ"י פֵּרֵשׁ שָׁם בְּפֵרוּשָׁיו בַּגְּמָרָא (סנהדרין פה:) וַעֲדַיִן הוּא בִּרְשׁוּתוֹ שֶׁל נִגְנָב עַצְמוֹ וּפָטוּר, מִפְּנֵי שֶׁאֵין כָּאן גְּנֵבָה כְּלָל. וְאִם כֵּן לֹא נִתְחַדֵּשׁ כָּאן דָּבָר שֶׁלֹּא כְּמִשְׁפַּט גַּנָּבֵי מָמוֹן:
וְעַל כָּל עִנְיָן, שִׁעוּר הַכָּתוּב, וְגוֹנֵב אִישׁ וְנִמְצָא בְּיָדוֹ וּמְכָרוֹ מוֹת יוּמָת. וְיִתָּכֵן שֶׁהָיָה עוֹד כְּסִדְרוֹ, וְנִמְצָא בְיָדוֹ שֶׁל לוֹקֵחַ, שֶׁאִם גָּנַב אֶת הַנֶּפֶשׁ וֶהֱבִיאוֹ לְבֵיתוֹ וְהֵבִיא שָׁם הַלּוֹקֵחַ וּמְכָרוֹ לוֹ וְלֹא הוֹצִיאוֹ הַלּוֹקֵחַ מִשָּׁם, אֵינוֹ חַיָּב, שֶׁלֹּא נִגְמַר הַמֶּכֶר בֵּינֵיהֶן, אוֹ אֲפִלּוּ כְּשֶׁנִּגְמַר הַמֶּכֶר יִפָּטֵר, כְּמוֹ שֶׁכָּתַבְתִּי:

1AND HE THAT STEALETH A MAN, AND SELLETH HIM, AND HE BE FOUND IN HIS HAND — “previously, before the sale.” This is Rashi’s language. But I have not understood it.¹¹⁹, it would appear that the fact that the witnesses saw him in his possession constitutes their proof that the holder stole him. On this, Ramban asked: could you possibly think that the thief be subject to death without the witnesses having seen the actual theft and the sale? Their having seen him in the thief’s possession is in fact no proof at all that he had stolen him (Nimukei Shmuel). If Rashi means that witnesses must have seen him [the stolen person] in the thief’s possession before he had sold him — could it even enter your mind that the thief be subject to the death penalty without witnesses having seen him stealing and also seeing him selling! It would therefore have been sufficient if Scripture were to say: “and he that stealeth a man and selleth him”. Further, his being found in the thief’s possession is no real proof that he stole him! Rather, this verse is the source for that which we have been taught in a Mishnah:¹²⁰ “He that steals a person is not liable to the punishment unless he brings him into his own possession,” and in a Beraitha the Rabbis have said:¹²⁰ “If he stole him but did not sell him, or if he sold him but he is still in his [the thief’s], possession, he is free [from the death penalty].” The meaning of this is to teach us that the law applying to the thief of a human being is [in one respect] similar to that of thieves of other, i.e., monetary, matters; namely, that if a thief killed or sold [an ox or a sheep] within the domain of the owner, he is free [from paying five oxen for an ox and four sheeps for a sheep],¹²¹ but if he lifted them up [thereby acquiring possession of them], or removed them from the domain of the owner, he is liable to pay. Similarly, this thief of a human being must first have brought the stolen person into his own domain [in order to be liable to death]. Likewise if he lifted the lad upon his shoulder, and sold him to another person, he is liable to the death penalty, because this too is called if he be found in his hand, since it is not logical that a man’s ground should have a greater power of taking possession of a thing for the owner, than his own hand has. In a similar way, that which the Rabbis said [in the Beraitha mentioned above]: “or if he sold him but he is still in his [the thief’s] possession etc.,” means that the buyer did not remove him at all from the thief’s domain, even though he paid him the money, and since he did not remove him from there, the thief is free [from the death penalty]. Now I do not know whether this is to say that [in order to make the thief of a human being liable to the death penalty] the buyer must perform a formal act of acquisition, as is the law in other transactions, that the buyer does not take ownership of the article until he draws it from the domain of the seller into a simta, [an alley adjoining an open place] or until he lifts it [even within the domain of the seller] — or it may be that it is a special Scriptural decree in the case of the sale of a stolen human being, that even if the sale has been finalized between them, and the buyer has taken ownership from the seller by lifting him or by drawing him along in ground which belongs to both of them, [in which case usually the act of drawing the purchased article is a valid act of acquisition even if not done in a simta], that the thief is nonetheless free from the death penalty until the stolen person goes out from his domain into the domain of the buyer. And so indeed it would appear to be [as the latter exposition].Now Rashi in his commentaries there in the Gemara¹²⁰ explained [the phrase of the Beraitha]: “if he sold him but he is still in his possession” as meaning “if he is still in the stolen person’s domain,¹²². in which case the thief is free from punishment because there has been no real theft at all.” But if so, nothing new has been established here which is unlike the ordinary law of theft in monetary matters!¹²³However, it may be, the words of the verse [to be interpreted properly, must be transposed as follows]: “and he that stealeth a man, and he be found in his hand, and he selleth him, he shall surely be put to death.” But it is still possible that the verse may be explained properly in the order it is written in. Thus: And he that stealeth a man, and selleth him, and he be found in the hand of the buyer [he — the thief — shall surely be put to death]; for if he stole a human being and brought him to his house, and then he brought the buyer there and sold him without the buyer taking him out from there, the thief is not liable, because the sale has not been completed between them, or even if the sale has been completed, he is still free of the death penalty, as I have written above.