A Holocaust Survivor Who Saved Himself With His Brother's Money

Rav Y.Y. Frankel

Reprinted with permission from "Crossroads: Halacha and the Modern World, Vol. I," Published by Zomet Institute (Alon Shvut-Gush Etzion, Israel)

Contents

1. The Case
2. The Liability of an Informer
3. Mortal Danger
4. The Decision

A

The following case was brought before the Rabbinical court of Tel Aviv.

Two brothers, B. and H., were in Warsaw during the Nazi occupation. Each one, independently of the other, secreted away a large sum of money, to remain hidden until after the war. Each one knew of the hiding place of the other. One day, under pressure from the S.S., H. revealed the hiding place of his brother in order to save himself. B. is suing H. to restore the total sum involved, because he could have saved himself by revealing his own hiding place. Since he did not do so, it is a case of one who saves himself by means of someone else's property, and he is therefore liable.

H. admits revealing the hiding place of B. to the S.S.. However, he claims that they were looking specifically for the money of B., which they knew about through an informer. They knew nothing of the money of H., and therefore he is not responsible for B.'s loss.

The first step in deciding this case is to examine the validity of the plea of duress in cases of informing.

B

The Rambam states (Hilchot Chovel, 8,1-4):

"One who delivers (by informing) his fellow's property to an extortioner is liable for the loss.... This is true if he informed voluntarily. However, if a non-Jew or a Jewish extortioner forces him to show (the place of the money), he is not liable.... If the king forced the informer to reveal the wine or grain stores or money of his fellow who has run away, and he did so, he is not liable, for had he not done so, (the king) would have had him beaten or killed. If he physically handed over the money he is responsible in any event, even though he was forced to do so by the king."

This ruling is quoted in the Shulchan Aruch (ChM 388,3). The Sma comments (n. 12) that from the use of the term "not liable", we can infer that it is not permissible to inform even under duress, but if one does, there is no monetary liability. The Taz disagrees, pointing out that the Rambam writes that he is under the threat of death. There is no question that danger to life suspends the prohibition involved in informing. The Taz adds that it makes no difference that he could have delivered his own money instead. Were that a valid argument, then he should also be held liable, since there was no necessity to deliver the other's money. The reason that it is not a valid argument is that there is no obligation with respect to his own money, since the extortioner did not mention it.

On the statement of the Rambam that if he physically handed over the money he is responsible, the Raavad comments, "The Gaon differs on this point, and he is correct, as all laws are suspended by mortal danger, and he does not have to die for the sake of his fellow's property." The point of the comment is not clear. If he is trying to prove that even in the case where the informer physically delivered the money he should not have to pay, this does not follow from the rule that mortal danger suspends all laws. It is indeed permissible to deliver the money, but nonetheless the informer may be liable to pay. The Tosefet Yom HaKippurim (Yom. 82b) explains that the Raavad understood the Rambam as forbidding the delivery of the money, as the Sma understood, and the Raavad is disagreeing with that contention. The Even HaAzel (ad. Loc.) explains that the disagreement of the Rambam and the Raavad is whether mortal danger abolishes prohibitions (hutra) or only suspends them (dchuya), which is a point of controversy between them in other places as well.¹

C

This explanation is not sufficient, however, to explain the Rambam according to the Sma's interpretation. Even if mortal danger only suspends prohibitions, they are nonetheless suspended; there is no question whatsoever that he should deliver the money in order to save his life. The correct explanation is as follows. The Rambam contends that the informer is actually obligated to deliver his own money, thereby saving his life without transgressing a prohibition. The Taz asked that if this were so, he should be liable to pay in the case where he delivered his fellow's money instead of his own. The answer is that the Taz is correct that since the extortioner did not mention his money, but only that of the other, there is no obligation to substitute his own. This is true as far as the monetary liability is concerned. But from the standpoint of permissability, he should attempt to evade transgressing. This is because the prohibition is merely suspended, but not abolished, as explained above. The difference between suspension and abolishment is precisely the need to attempt to avoid the transgression.

This distinction between a case where the other's money is the direct cause of the mortal danger and the usual case of saving oneself through someone else's property can be derived from a ruling of the Rambam himself in Hilchot Yesodei HaTorah (5,4-6).

"If one is obligated to die rather than transgress, and he transgresses instead, he has desecrated the name (of God)... Even so, since the transgression was done under duress, he is not flogged and certainly not executed, even if he murdered under duress. For only one who has transgressed willingly is flogged or executed, even in a case of idolatry The rules applicable to duress apply equally to sickness. How so? One who is sick and near death... his treatment may utilize every prohibition in the Torah, except for idolatry, sexual offences, and murder. Even in a case of (mortal) danger it is forbidden to be cured through one of these. If he did (use one of these) the court shall punish him as he deserves."

The question is why is the transgressor not punished in the case of duress, while in the case of sickness he is. (cf. Yad HaMelech) On the basis of what was said above, the answer is clear. In the case of duress, the idolatry, sexual offence, or murder are themselves the direct cause of the mortal danger, and therefore there is no punishment. In the case of sickness, the transgressions are not the cause of the danger, but only the means of escaping danger. Therefore, the transgression is not considered to have been performed under duress.

According to the Shach (ChM 388, n.24), it follows that the Raavad agrees to this distinction. The Shach explains the opinion of the Gaon, quoted approvingly by the Raavad, that one who saves himself through another's property is not liable to pay, on the basis of this distinction. The distinction is also found in the Even HaAzel (op. cit.), who also refers to the Rambam in Hilchot Yesodei HaTorah. A similar distinction is advanced by R. Shlomo Luria (Yam Shel Shlomo, BK, ch.10, 52) to explain why a pursued person who damages property while saving his life has to pay. (cf. ibid. 46, at length). Upon examining the literature, I found a number of precedents for the comparison of the case of the informer to the laws of duress and sickness with regard to the three cardinal sins. See Responsa Oneg Yom Tov, 13; Responsa Aidut Beyehosef, 5,13; Or Sameach, Hilchot Yesodei HaTorah, op. cit.; Avodat Hamelech, ibid. The comparison is found even earlier in the Minchat Chinuch (296), who bases himself on a passage in the Hafla'ah (Ket. 20b).

We therefore find that both the Rambam and the Raavad agree to the distinction between a case where the money is the cause of the danger and one where the money is a means of saving oneself from danger. The Raavad considers this argument sufficient to free him from liability even in a case where he physically delivered the money under duress, while the Rambam restricts its applicability to the case where he only showed the money's location. This controversy is based on whether mortal danger suspends or abolishes prohibitions. The prior question of whether one ought to substitute one's own money is also dependant on this point.

D

Based on these principles, the court decided as follows: There is a discrepancy of fact between the versions of the two sides. Were the facts as described by the plaintiff B. to be correct, there would exist a prima facie case for his claim against his brother, since he claims that it was not specifically his money which caused the danger. H. chose to deliver his brother's money of his own accord.

H., however, denies this version and claims that he was forced to deliver specifically B.'s money. Since he admits that he saved himself through his brother's money, it is proper to require him to take an oath to the truth of his version. On the other hand, he could have denied the entire story, as there are no witnesses, and this adds to his credibility.

Therefore, we obligated H. to pay an appropriate share of the amount secreted away, in place of the oath, taking into account that he did save his life by means of this money, and also managed to recover his own property at the end of the war.

The verdict was accepted willingly by both sides.

Footnotes

1. The difference between hutra and dchuya is that in the latter case one is obligated to try and avoid the necessity of committing the transgression. - trans.