With God's help

Tzohar – 5765

(A discussion of monetary law in the Kovno Ghetto)

A few days ago, I was made aware of an issue that arose in the Sabbath supplements of the newspaper Yated Ne’eman, concerning halakhic rulings with respect to monetary matters in a catastrophic situation.[1] The matter is staggering, both because of the historical situation and because the discussion touches on the roots of human life, monetary law, and the service of God generally; therefore clarifying it is of great importance. My prayer is that we should never need to apply these rulings.

May these words be a memorial candle for the souls of the martyrs of the Kovno Ghetto, may God avenge their blood, foremost among them the eminent sage, author of Dvar Avraham (=DVA), whose soul departed in purity in the ghetto (Sunday, 23 Adar I 5703).

A. The Rulings of the Dvar Avraham and Rabbi S. F. Gibraltar: A General Description

The beginning of the matter lies in an article in the Parashat Bechukotai 5763 supplement, where Rabbi Yitzhak Elchanan Gibraltar (the author's name became clear only in subsequent issues), who had been a child in the Kovno Ghetto, tells of the case of the Jews of Yanova. The Lithuanian partisans murdered all the Jews of Yanova except for about three hundred and fifty who remained alive. The rabbi of Yanova, Rabbi Nachum Ginzburg, author of Mekor Barukh, came to the Kovno Ghetto, which itself was in a dreadful state, and brought the partisans' demand to receive one hundred thousand marks as ransom for the lives of the remaining Jews of Yanova. In addition, after they were redeemed, they would join the Kovno Ghetto itself, which would itself reduce the chances of survival of those already there.

The leadership of the Judenrat refused, on understandable grounds: mortal danger to those who would give, the rule against redeeming captives for more than their value, and other risks, as discussed there. In contrast, the eminent author of the DVA, the rabbi of Kovno, ruled that there was an obligation to give the money. One must understand that money there meant life, literally. There was terrible hunger and mortal danger at every moment. The author of the DVA compared this to the passage in Bava Metzia 62a, where Rabbi Akiva and Ben Petora disagree:

Two people were walking on the road, and one of them had a flask of water. If both drink, both die; if only one drinks, he reaches inhabited land. Ben Petora expounded: Better that both drink and die than that one should witness the death of his fellow. Until Rabbi Akiva came and taught: "And your brother shall live with you"—your life takes precedence over the life of your fellow. Two people were walking on the road, and one of them had a flask of water. If both drink, both die; if only one drinks, he reaches inhabited land. Ben Petora expounded: Better that both drink and die than that one should witness the death of his fellow. Until Rabbi Akiva came and taught, And your brother shall live with you – your life takes precedence over the life of your fellow.

In the case of Yanova, the money was likened to the flask of water, and therefore, according to the accepted ruling that follows Rabbi Akiva, apparently the money should not be given. Nevertheless, the author of the DVA held that here we are dealing with lives sustained at every moment entirely by manifest miracles, and in any case the Holy One, blessed be He, saves them only through miracles. In such a situation, the money should be handed over (see the final chapter below for details).

It should be noted that the God-fearing Jews of Kovno gave over their pennies, acquired through the last exertions of their lives, in order to save the Jews of Yanova. One must read the description to understand what this entailed. The writer suggests that perhaps it was by this merit that they themselves were saved. Those Jews joined the Kovno Ghetto (apart from their rabbi, who was murdered by those same partisans immediately after collecting the money, may God avenge his blood), and some of them survived, remained alive, and even came to the Land of Israel.

This episode is brought here as background for the continuation of the discussion. In the Nitzavim-Vayelekh 5763 supplement, the same author describes a discussion concerning the law of the property of those murdered in the ghetto. Most of the public regarded the property of the murdered as ownerless, like something swept away by the sea (zuto shel yam), even if the murdered had heirs outside the ghetto. If they had heirs inside the ghetto, the custom was to give it to them. By contrast, Rabbi Mordechai Pogromansky refused to use a coat from that property, even at the price of risking death from cold. The public's attitude is understandable, for there is no greater case of zuto shel yam than a situation in which the Nazis ordered the property to be collected and inventoried, while forbidding anyone to touch it, on pain of death.

The author's father, Rabbi Shraga Feivel Gibraltar (of whom the great scholars of Kovno testified that he was the greatest Torah scholar in Kovno, see there; and, as I understood from the end of the Parashat Pinchas issue—see below—he later served as a rabbi in Italy), related differently to the property. In his view, the very concept of 'private property' lapsed in the ghetto. No one had ownership of money, even money that had belonged to him before the war. The article offers a general rationale for this approach, including several formulations that are not necessarily identical:

1. A Jew in the ghetto, whom any Lithuanian child was permitted—and even commanded—to kill at any moment, was a 'gavra katila' (a person already regarded as dead), and the dead do not own property. Life in such a state is unlike that of a person being led to the gallows, for such a person can still direct how his property is to be distributed, and there is also some chance that the king may mitigate his sentence.
2. For ownership of property to exist, there must be at least a minimal form of life. If life itself is utterly without protection, there is no ownership of property, and the property too is ownerless.
3. It also appears in the Parashat Pinchas 5764 issue (not necessarily in this context) that one may not benefit from miracles—not only from the property that was saved, but even from life itself.

As emerges from his words (especially in the article on Parashat Nitzavim), Rabbi Gibraltar held that anyone could take another person's clothing or bread. The implication of this for the ruling in the Yanova case will be discussed below in the final chapter.

However, according to this, it is apparently difficult to understand what appears in his name in the aforesaid Parashat Pinchas issue: that if there were relatives in the ghetto itself, no one had permission to take the property. Clearly, that was the custom there, but it is not clear how this fits with the conception that there was no ownership there at all. It is clear from his words that this is not a confiscation of property as a temporary communal enactment for the hour (by the principle that a court may declare property ownerless, or the like). Another formulation also appears there: 'According to his halakhic approach, all ownership of property in the ghetto lapsed except for what was in one's hand.' Again we see that the annulment is rooted in the law itself, and that it applies only to what is not in one's possession.[2]

And in the Parashat Pinchas issue there appears another consideration of Rabbi Gibraltar: if someone stole money from another, it was as though he had murdered him, for there the money was the very life itself (which is the assumption underlying the parable of the two walking in the desert). This implies that what is in Reuven's possession, Shimon may not take from him—not by the law of theft, but by the law of murder. Perhaps this also explains the above distinction between what is in one's hand and what is not, and this will be clarified below at the beginning of the next chapter.

It is worth noting that Rabbi Gibraltar the father applied his conception even after the war. When people came to him who had owed him money from before the war, he refused to accept payment from them, arguing that in the ghetto there had been an annulment of ownership of property, and all obligations to him had lapsed. Gifts, he would accept only from the Master of the Universe…

It should be noted that these articles are not halakhic essays. The points arise in the course of a historical description, and therefore the legal rationales are not sufficiently clear and sharpened. In the Parashat Ha'azinu supplement (early 5764, issue 2), a letter was published discussing the halakhic points and rejecting the ruling outright. Rabbi Gibraltar the son, in his response in the Parashat Pinchas issue, writes that one who was not there cannot examine and judge these halakhic arguments. There are halakhic intuitions that cannot be explained to one who did not himself experience that situation. Personal experience creates immediate feelings about the demands of Jewish law in the situation under discussion, especially in a condition so incomprehensible and exceptional. One who does not understand and feel what a state of 'gavra katila' is, and what relationship and reliance a person has regarding his property and his very life in such a state, cannot judge.

Therefore, it seems to me that these rulings should be regarded as a kind of testimony, not as an ordinary halakhic ruling. As stated, only one who experienced these things can rule about them. This is Torah that was learned—and even fulfilled—under duress. Therefore, although the claim that one cannot judge is correct (and one must read the description to understand just how correct), we are still not exempt from trying to understand this unique testimony concerning that part of Torah that was given only to them, and to learn it from them. Therefore it should not be surprising that we scrutinize their words here beyond what is normally done with the words of another contemporary sage ruling in an ordinary situation. In the course of the discussion, the errors of the author of that letter will also become clear, with all due respect, for he discussed these matters as though they had been said in the ordinary human condition, and they were not.

As stated, the discussion touches the foundations of monetary law in Jewish law, and therefore quite a number of points will arise here, each of which requires clarification and analysis in its own right. There is no room for that here, and therefore I shall be very brief in the discussion (and sometimes only refer to sources), and certainly it is not for me to decide all these matters. My aim here is only to propose the main lines and foundations of the matter as I understand them in my limited way; those greater than I will come and decide.

B. Possible Understandings of Rabbi S. F. Gibraltar's Ruling

Let us begin by noting that the narrator himself says (see Parashat Pinchas) that there is no clear source in the Talmud and the halakhic decisors for his father's view; rather, while immersed in that terrible situation, he felt by sheer reasoning that this was correct. If so, it will be difficult for us to ground his words in a simple halakhic foundation. On the other hand, even a halakhic premise that is subject to dispute would not provide an adequate basis for so sweeping a ruling. Therefore, it seems that we must seek a novel line of reasoning in whose light the law emerges straightforwardly. In this chapter we shall propose several ordinary halakhic possibilities, as analytic probes of that 'testimony,' and see that they do not reflect his intention. In the next chapter we shall suggest the novel reasoning that, in my humble opinion, underlies his words.

First we shall try to explain the distinction between property in a person's hand and property not in his hand. As we suggested above, his intention is probably not to distinguish within the law of property, for ownership of all property lapsed in such a situation; rather, it is a distinction in the law of life and death.

It may be that this distinction is based on the conception that a person's property is a peripheral circle of the person himself (with all your might—that is, property). I have discussed this at length elsewhere, and referred there to proofs of it, and this is not the place to elaborate.[3]

Accordingly, the distinction between property in one's hand and property not in one's hand is not a distinction in the laws of ownership at all. The distinction is between money in one's hand, which serves him (or can serve him) to save his life, and money not in his hand, which is therefore not useful to him. The money in his hand is part of himself, and therefore taking it, in such a state, is in Rabbi Gibraltar's view tantamount to murder. Money not in his hand is not considered part of him, and therefore regarding it only the laws of theft would be relevant—but those do not exist here.[4]

It may be that even if there is no general conception of property as part of the owner's body, still, since property in his hand in such a situation can serve him to save his life, it is like a limb on which the soul depends. Therefore only in such a situation, according to all opinions, it is considered part of himself. Consequently, one who takes it is like a murderer.

According to this, the distinction between heirs who are in the ghetto and others is likewise rooted in this distinction. At first glance this seems difficult, for in Jewish law there is no ownerlessness with respect to only part of the world (as is well known regarding declaring property ownerless for the poor and not for the rich; see Jerusalem Talmud Peah 6:1, Maimonides, Nedarim 2:15, and Encyclopedia Talmudit, entry 'Hefker,' section 6). According to our suggestion, one may say that heirs inside the ghetto itself are like part of him, and they too can be saved by means of that money; therefore with respect to them as well, that money is like a limb on which the soul depends. This is not a matter of monetary ownerlessness, but of defining the body being saved, of which the money is the limb.

To be sure, this is apparently difficult, for by this argument we tacitly assume a relation of inheritance; otherwise, why should these be different from all the other people in the ghetto? Perhaps one might say that there is a metaphysical relation between them and their relative, and this is what causes inheritance. The fact that they inherit their relative is itself based on a metaphysical bond between them. If so, that very bond causes the unique 'inheritance' we find here: his money, which is part of his body, can now save them, and therefore it becomes part of them.

Of course, all this is still far from a sharp definition, and here we have only pointed to a possible direction of thought that requires much further clarification and sharpening. Let us now move to suggestions concerning the essence of Rabbi Gibraltar's ruling, namely that ownership of property lapses in the state that prevailed in the ghetto.

1. The first, seemingly obvious, understanding of Rabbi Gibraltar's ruling regarding the annulment of ownership is based on the law of 'gavra katila,' and this is apparently explicit in his words. According to this, when a person is regarded as dead, he cannot be the owner of property. But this requires discussion from several angles.

First, the well-known view of Rabbi Shimon Shkop regarding ownership after death is relevant here. Likewise, in the law of transmission through inheritance we find understandings according to which the deceased remains the owner even after death.[5] In particular, here too, why should the Jew in the ghetto not be able to bequeath the money to his heirs, at least to those outside the ghetto—precisely those about whom he writes that they have no ownership of the property?

Further, one must discuss the case of a person being led to execution by a court, or due to rebellion, or a tereifah, all of whom are also called 'gavra katila.' The difficulty is that we do not find in any of these cases a rule that their property is expropriated. One could, however, distinguish between all those cases and ours, for here the property itself is also headed for destruction, whereas a person going out to be executed in the ordinary way can bequeath his property (and so Rabbi Gibraltar himself wrote, adding that with one going out to be executed perhaps there remains some small chance that the king will pardon him). But this already leads us to the next understanding; see below.

Further, one must discuss his refusal to accept payment of debts that had been owed him from before the war. Why did he think that he did not again acquire them after he 'returned to life'—that is, after the war? It would seem that this depends, at least at first glance, on the inquiry among later authorities regarding resurrection of the dead (and the dead whom Ezekiel revived, in the passage in Niddah 61b): whether a person must betroth his wife again, or acquire his property again. See below.

More generally, one must ask whether a person in the ghetto is indeed a 'gavra katila.' Here arise the questions raised by another of the martyrs of the Holocaust, Rabbi Elchanan Wasserman, may God avenge his blood, in the Ninth Fort in Kovno (the fortress where the Jews were executed), who was murdered by Lithuanians about a year before the establishment of the ghetto, and the matters described in the introduction to Kovetz Shiurim are well known. In part II of Kovetz Shiurim, siman 28, he cites the words of the author of Terumat HaDeshen, who discusses whether the wife of Elijah the Prophet would be permitted to marry others. Later authorities likewise discussed whether, when he returns to life, he would have to marry her again, and similar questions concerning resurrection of the dead.[6] At first glance, in our situation all these questions—which are usually regarded as laws for messianic times—acquire a practical character.

However, it is reasonable that in our case, according to all opinions, it would be forbidden to kill him or to marry his wife, just as with an ordinary person, and he would not need to betroth his wife anew. For it seems that Rabbi Gibraltar did not mean 'gavra katila' in the literal sense, and this is not the place to elaborate.[7]

In any event, it seems that none of this heals the difficulty in our case. First, this does not appear to be Rabbi Gibraltar's intention. Second, as we already noted, if the person is a 'gavra katila' but the property remains in its ordinary legal status, then the heirs should inherit the property in such a case. In fact, there would be room here for the opposite distinction from the one he himself made in practice regarding the property of those murdered: heirs inside the ghetto would also be considered dead, and therefore they would not inherit, whereas heirs outside the ghetto would. As stated, the determination that here the property too is regarded as lost—that is already the next understanding.

2. A second understanding of Rabbi Gibraltar's words concerns the property itself, this time by way of ye'ush—despairing of recovery. Yet it cannot mean despair of his money as such, for Rabbi Gibraltar refused to accept payment of prewar debts, regarding which he surely had not despaired.

Therefore, one may suggest that this is despair of life itself, which then radiates onto one's relation to property. At first glance, when a person despairs of his life—and even if not actually in a subjective sense, if this is a situation in which it would be appropriate, statistically and not in terms of faith, to despair—this resembles something swept away by the sea or by a river. In such a situation, it is reasonable that his property too should be regarded as ownerless. If so, perhaps his intention is that ownership lapses because of ye'ush.

However, if this is indeed Rabbi Gibraltar's intention, then what difference is there whether there are heirs in the ghetto itself or not? In the final analysis, he has no ownership of the property at all. Perhaps there is here despair only of passing the property on to heirs outside the ghetto, but not of the property still in his hand. It may be that this is also the basis of the distinction we saw above between money in his hand and money in the hands of others.

It should also be noted,[8] on the basis of Maimonides' well-known view (in chapters 6 and 11 of the laws of robbery, and unlike the Tur, Choshen Mishpat 259, and the Rosh), that even in a case of zuto shel yam the object is not ownerless. The reason it may be taken is only because of ye'ush.

Beyond this, one should note the dispute among the medieval authorities on whether ye'ush is effective with respect to a debt, as well as regarding ye'ush concerning something that remains in one's possession, and likewise regarding a deposit. See Encyclopedia Talmudit, entry 'Ye'ush,' section 2, notes 318–357, and further in section 3 there, notes 434 and onward. Therefore, it is unlikely that Rabbi Gibraltar would say as something straightforward that prior obligations to him lapsed because of ye'ush.

See further there in Encyclopedia Talmudit, notes 369–372, regarding a person's ye'ush from his own body, which is ineffective.[9]

According to all this, it seems that this was not Rabbi Gibraltar's intention, for he did not condition the law on someone saying that his property was ownerless, or at least on his despairing of recovery; and in particular, according to several decisors, ye'ush is ineffective with respect to debts. In general, his words do not suggest that this is what he meant.

3. Another understanding is that the property belonged to the Nazis by right of conquest in war. In truth, this apparently depends on the dispute among the medieval authorities whether conquest in war is itself an act of acquisition, or whether it merely leads to ye'ush. See, for example, Pri Moshe (Acquisitions), siman 23, and more. If it merely leads to ye'ush, then we face the same problems we saw in the previous explanation.

In any event, there is no doubt that this was not Rabbi Gibraltar's intention, for according to this it would be difficult to distinguish between cases where the heirs were in the ghetto and where they were outside it. Beyond that, this rule apparently should not apply to the property he had before the war, nor to all the property after the war, when he effectively 'reconquered' himself and his property from them again. See Shulchan Arukh, Choshen Mishpat 236. True, perhaps this depends on the dispute between the Babylonian and Jerusalem Talmuds regarding the master's ownership of assets acquired by a slave before he was sold,[10] and perhaps conquest is different.[11] In any case, it is obvious that this was not Rabbi Gibraltar's intention, for this is not a straightforward rule. Moreover, he did not write that the money belonged to the Nazis, but rather that it was like ownerless property, with no ownership at all.

4. Another understanding is that when a person is not master of himself, and in practice he cannot use the property as he wishes, and in fact anyone can take it from him, then he is not an owner of it at all. This assumes that ownership of property depends on the ability to use it.

This assumption requires broad discussion, and this is not the place. See my article 'What Is a Legal Effect?' in Tzohar 2, and Pri Moshe (Acquisitions), siman 2.[12]

But this too does not seem to have been Rabbi Gibraltar's intention, if only because it is not at all a simple rule, and there are apparently many disputes about it, see there. Moreover, even in the ghetto there were uses that could be made of money; it is only that at any moment someone might come and take it. In the next chapter we shall present what seems the proper explanation of his intention.

C. Annulment of Ownership, versus the Irrelevance of the Concept of 'Ownership'

From Rabbi Gibraltar's wording, it seems that his intention is far more sweeping. His claim is that when there is no normal life, ownership of property simply does not apply at all. In such a situation, the concept of 'ownership' is not relevant.

One must distinguish carefully between this possibility and all the previous ones. Earlier, we sought a rationale that would permit a certain person's personal property in a certain situation. Even possibilities 3–4 in the previous chapter spoke of permission concerning the property of a specific person in a specific situation, even if there were many such people in that same condition; the discussion concerned each one individually. Here, by contrast, the claim is that the concepts of ownership themselves do not exist in certain situations, and not merely that a given ownership has lapsed. The lapse of concrete ownerships is only a result of a situation in which the concepts of 'ownership' are not relevant. In situations like those of the ghetto, the concepts of ownership simply do not apply at all, and therefore concrete ownership of assets does not apply either.

This explanation can be understood in two different ways, and it is possible that both are correct. In my view, Rabbi Gibraltar's original intention seems closer to the first direction, but the second too may be true:

1. One may understand the claim as relating to the metaphysical concept of ownership. When a person is not regarded as a living person in the ordinary sense, even if he is not literally a 'gavra katila,' then the concepts of ownership do not apply to him. Note well: it is not that his ownership of his property lapses, as in the previous possibilities; rather, the concept of ownership cannot be attributed to him at all. He resembles—legally, of course—an animal, or more accurately a minor, whom it is forbidden to kill, but who is not a legal entity for purposes of acquisition. In such a state one cannot even pass his property on to his heirs, because his money lapses from him even though he has not died. In such a case there was no death, and therefore the law of inheritance does not arise either.

There is an assumption here that where there is no life in the accepted sense, the concepts of ownership do not apply. Of course one still has to try to define more precisely what the criteria are that distinguish life that constitutes legal personhood from life that does not. In any case, if there is such a legal definition, then a person in the ghetto is certainly a strong candidate to fall under it.

Yet there is certainly room to discuss why, after the Holocaust, when that same person returns to live like everyone else and to be a legal entity in every respect, the debts that existed before the Holocaust do not revive. It is not clear why Rabbi Gibraltar insisted that those debts lapsed irreversibly. Of course, one can raise arguments in both directions here, and the matter is not implausible, but this is not the place to elaborate.

2. One may also understand Rabbi Gibraltar's claim on the social plane, and not necessarily on the personal plane, as in the previous understanding. According to this direction, his claim is that in a situation in which anyone can take the life of, or steal money from, anyone among the inhabitants of the ghetto, there is no meaning at all to the concepts of ownership. Note well: here we do not hang this on the condition of each inhabitant of the ghetto taken separately, as in option 1 above, but on the overall social—or anti-social—situation that prevailed there.

A practical difference, for example, would be a convert who is being taken out to be killed by bandits. He has no heirs, and he is about to die unlawfully and unjustly. In such a case, according to the first direction, his property would be ownerless; but according to the present direction, certainly not, for the social condition is normal, and the problem is only his.[13] Let us explain this direction a bit further.

As is known, Rabbi Shimon Shkop, in Gate 5 of his book Sha'arei Yosher, proves that the Torah's laws of ownership are based on a legal layer that is general and human. Only after society defines the legal criteria for determining and applying ownership does the Torah come and apply to injury to ownership the prohibition of "do not steal" and the other monetary prohibitions.[14]

In light of this claim, Rabbi Gibraltar's words can be understood as follows: when a society conducts itself according to rules of fairness and decency, and establishes some laws for itself, those laws can serve as the legal background for the Torah's laws that depend on ownership, including "do not steal". But in a situation in which society is conducted in a corrupt manner, its legal system has no meaning. Certainly, even if they define something that they call 'law,' this has no significance. Just as, under Jewish law, there is no validity to a law of the state that is indecent—what some call a regime of robbery—and certainly not to the wicked Nazi law, which was a regime of murderers (the source is in Nachmanides' novellae to Bava Batra 55a, and many decisors cited and expanded it), so the Nazi law had no legal validity. Of course, legal scholars too have already pointed out that Nazi law had no legal validity whatsoever.

As we saw above, according to Rabbi Shimon Shkop, where there is no legal layer functioning in the background, there are no concepts of ownership. The conclusion that in the conditions of life in the ghetto there were no concepts of ownership now follows naturally.

Still, it seems that there is a major novelty here, a significant step beyond Rabbi Shimon Shkop's own words. The main claim in this explanation is that the Torah's laws of ownership do not depend on an abstract legal system, but on the system actually practiced in a given place. Therefore, in a place where no legal system is actually practiced, even if the proper rules according to which such a system ought to function are known, the Torah's laws of ownership will not apply.

It seems that this depends on an apparent contradiction in Rabbi Shimon Shkop's words at the beginning of Gate 5, and we shall note it briefly. Beyond the proofs from the Talmud and the decisors that he adduces throughout the gate, at the beginning of Gate 5 (at the opening of chapter 1, and in chapter 2, s.v. 'and it seems to me'), Rabbi Shimon Shkop offers two main theoretical reasons for his claim, and his language there is as follows:

Just as the categories of acquisitions and the laws of ownership over assets are legal matters even without the prohibition of "do not steal," as we explained above, for it is impossible under any circumstances to say that the reason we attribute an object to Reuven is because Shimon is warned by the Torah not to steal it from him. Rather, the matter is the opposite: the prohibition of theft comes only after the matter has been determined by the legal rules defining the boundaries of ownership.…

And although at first glance this is astonishing—what compulsion or obligation can there be upon a person to do something without the Torah's command and warning? But when we examine the matter carefully, it can be understood. For even the obligation and compulsion to serve God and fulfill His will, may He be blessed, is itself an obligation and compulsion according to the judgment of reason and understanding; likewise, monetary obligation and subordination are legal obligations incurred through the modes of acquisition.…

Two central reasons emerge from these words of Rabbi Shimon Shkop:

1. The prohibition of "do not steal" is a prohibition against violating ownership. But for that prohibition to have meaning, we must first define the concepts of ownership themselves. Only after these concepts are defined can we say that one who violates them also transgresses the prohibition of "do not steal" in addition to the legal prohibition.[15] Rabbi Shimon Shkop rejects outright the possibility that the contours of ownership were given together with the prohibition of "do not steal", both on the basis of halakhic proofs and on logical grounds. We do not find such a definition anywhere; everything is determined by the reasoning of the sages, who estimate it in accordance with legal fairness.
2. The force of the obligation to obey the legal system exists even without a command. Rabbi Shimon Shkop's reason is that even the force of the obligation to serve God in general is not derived from a command, for the duty to keep any system cannot itself be a detail within that same system.[16]

The first of these two reasons could suffice with a theoretical legal system. That is, even if there is no legal system actually practiced, the prohibition of "do not steal" could still be defined on the basis of some theoretical legal system, one defined by considerations of universal legal reason. But the second reason, according to which there is an obligation to obey that legal system, does not plausibly exist without a system that is actually practiced. Does the theoretical legal system bind on the legal plane even in the ghetto? In the turbulent, cruel, and animal-like life that prevailed there, a legal system has no meaning, and there is no obligation to behave in accordance with it. If so, then at the very least it follows that even if there exists a theoretical universal legal system, in the conditions of life in the ghetto there is no legal system that binds us. Therefore there is strong reason to say that the Torah's rules of ownership likewise would not apply in such a state.

To sharpen the point, let us mention one implication of this understanding. According to this proposal, in a place where the law of the state is actually practiced with respect to monetary law, that law itself will determine the contours of ownership even for purposes of the Torah's laws of ownership.

That is, it is not the theoretical legal system that stands in the background of the prohibition of "do not steal", but the real and actual legal system that is actually practiced—provided, of course, that it satisfies basic standards of fairness. This itself requires clarification, and probably depends on various disputes, and this is not the place to elaborate.[17]

D. Two Further Implications

1. One may ask whether the rule whatever a slave acquires, his master acquires can be explained according to this principle. On our account, one may say that the slave is not a legal entity and is not part of society (harm done by him is problematic; see Bava Kamma 4a, and Maimonides, Sale 30:2), and therefore the concepts of ownership are not relevant with respect to him. According to this, it follows that the fact that a slave has no ownership does not stem from the ownership being his master's. On the contrary: because the slave is not master of his own life and therefore is not a legal entity, the concept of ownership is irrelevant regarding him, and consequently his master acquires whatever is in his possession (for he himself is considered the master's domain, and therefore he acquires on the master's behalf). According to this, one must discuss the case of a gift given on condition that the master have no rights in it, which according to our approach would seem impossible. See Amrei Moshe, siman 25, and Novellae of Rabbi Shmuel to Kiddushin, siman 8, section 5, and this is not the place to elaborate.

Of course, all this is only according to explanation 1 above, where the problem lies in the condition of the individual person, who is alive but is not a legal entity. But according to explanation 2, we require a generally defective social condition, and that does not exist in the case of a slave. And of course, even if both of the above explanations are correct simultaneously, one could still say as much.

2. One must also discuss the rule in all areas of Torah law that require ownership, and also in laws that require monetary value. For example: the law of the four species on the first day, where they must be yours; the rule of one's animal's Sabbath rest, which is incumbent on the owner; betrothal by money, where he must give her something of monetary value from his own property; and more.

However, it may be necessary to ask whether the requirement is that they be yours, or perhaps only that they not be someone else's. It may be that the annulment of the concept of ownership differs in this respect from the annulment of ownerships themselves. In a state where the very concept is annulled, just as it is not correct to say that the four species are 'his,' so too it is not correct to say that the four species are 'not his.' The concepts 'his' and 'not his' simply do not exist in such a state. This too still requires careful study.

Someone pointed out to me ('Orva Parach,' mentioned above) that a similar example appears in the introduction of the Chazon Ish to the chapter HaZahav (Choshen Mishpat 16:2). We find that the Torah sets the value of various payments according to the currency current in the country. If so, what are people to do in a place where money has no value at all—for example, a place where commerce is conducted only by barter? How are Torah laws to be fulfilled there, such as the five sela'im for redeeming the firstborn, or the minimum coin-value required for a monetary acquisition, and so forth?

See there, where the Chazon Ish resolves the question in several ways, and it appears that at least according to one of them, if there is no accepted currency then indeed all those laws are inoperative.

E. Money as a 'Flask'

In conclusion, let us note what emerges from our proposals regarding the comparison of the situation to the law of two people walking in the desert with a flask of water.

As stated, the author of the DVA opened his words with a comparison between the case of Yanova and the case of two people walking in the desert with a flask of water, yet ruled opposite to Rabbi Akiva: the 'flask' is to be handed over to save the Jews of Yanova. As we have seen, Rabbi Gibraltar held that the 'flask' (= the money) belonged to neither of the two. Of course, that does not mean that it belonged to the Jews of Yanova, but only that there was no ownership of it at all.

One should note that the question here was whether there was an obligation to hand it over, or whether this was permitted at all—not whether the Jews of Yanova were permitted to take it from the Jews of Kovno. Therefore, it may be that the halakhic determination that the money is ownerless helps only insofar as it renders it permitted to give it, though of course not obligatory. For if the flask belongs to Reuven, he may not give it to Shimon, because his own life takes precedence.[18] In other words, there is no rationale here for an obligation to give the money, but there is a possible basis for permitting it.

However, as we have seen, Rabbi Gibraltar held that money in a person's own hand, though not owned by him, is like his very body—a limb on which the soul depends. If so, even if a person has no ownership of the money, it would still seem forbidden for him to give it away. At first glance, a person may not lose his own life in order to save the life of another.

According to the testimony of his son (Parashat Nitzavim), Rabbi Gibraltar understood the ruling of the DVA itself in exactly this way—unlike Rabbi Pogromansky, who was careful not to benefit even from the property of those murdered. His words are as follows:

Yet then came the ruling of the sage of the generation, our master Rabbi Avraham Duber Shapira, of saintly blessed memory (= the DVA): true, there is no monetary ownership in the ghetto and everything is ownerless, but there is another law: "do not stand idly by your neighbor's blood"—terrible and awesome. If you can save life at the risk of your own life and remain alive, you must endanger your life and save.

At first glance, one might understand the ruling on a purely halakhic plane (this is how the above-mentioned letter writer understood it in the Parashat Ha'azinu issue), and not as Rabbi Gibraltar did. Either because this is a case of uncertainty versus certainty, and according to those views that permit a person to place himself in possible danger in order to save his fellow; or because one may say that where both Jews are in possible mortal danger from a third party—not from thirst, but from the Nazis and Lithuanians—there is no rule that one's own life takes precedence, for the lives will probably not be saved even if he keeps the flask for himself.

However, from the language of the article it appears clearly that Rabbi Gibraltar understood that the ruling was based on an extension of the second direction: the need to be worthy of miracles, for only they would save the Jews of the ghetto from death in such a condition, and without that, it would not help them even if they kept the money in their hands.

In this connection, it is fitting to mention several other rulings of the author of the DVA, similar in their intensity (Parashat Bechukotai issue): he forbade legumes to everyone in the ghetto even amid cold and hunger unto death, and forbade eating horse meat only to yeshiva students—as self-sacrifice on behalf of the rest of the community—even when their lives were in danger. In his view, the community had to display self-sacrifice in order to merit miracles, and only those miracles would save them in their condition. The wording of the author of Dvar Avraham was: 'From the place where the exemption ends, there begins self-sacrifice.' So he said, but he warned: 'not to destroy life,' and a hairsbreadth separates the two.

As is known, the DVA himself decided, even while ill, not to join his son in America, but to return to his community in Kovno. He was also the only person in the ghetto who did not remove his beard, and he was even prepared to be killed over that. See his son's introduction to volume III of Dvar Avraham.

If our words are correct, then their meaning is that in a situation in which one lives under a tangible threat of death, the ordinary halakhic rules are suspended. Not only does the concept of ownership lapse, but many other rules as well.[19] By way of illustration, let us imagine a case in which a community is literally living inside a fire—the 'town is burning.' The fire is raging and burning them every day and at every moment. Even if there is some chance of being saved, does one in such a state discuss ownership of money at all? Are rules of precedence valid inside the fire?

As background only, let us recall the distinction in Tosafot, s.v. 'zarak,' Bava Kamma 17b,[20] who distinguished between a vessel that is already on its way to the ground, which is already a broken vessel, and a case where one shoots an arrow at the vessel.[21] The Jews in the ghetto are like an infant cast from the rooftop—with only a slight chance of rescue, through utterly miraculous means, and a greater chance that another will come and receive him with a sword even before that. During his fall downward, when the force of destruction is already within him and threatens to consume him, does he calculate the laws of money and precedence? Here the considerations are only what one must do in order to merit a miracle.[22] In my view, this is the essence of what emerges from the 'testimony' of the author of the DVA, according to Rabbi Gibraltar's interpretation.

As stated, the members of the community obeyed their rabbi's instruction (Parashat Bechukotai issue: 'Whatever the eminent rabbi of Kovno said was for us the Holy of Holies'). It should be noted that according to his son's testimony, in a similar case that occurred about a year later, Rabbi Gibraltar took all his savings—15,000 marks, amassed with blood, sweat, and tears, in hunger and cold and constant deprivation—and gave them for this purpose, remaining with nothing.

These are the words of testimony. And here our inquiries and examinations end—carried out by a single individual (with the help of the anonymous 'Orva Parach') who is no expert, neither fully learned nor fully incisive, yet I saw no flaw in the matter. May the lips of the holy ones continue to speak—some from the grave and some who became ash and were scattered in every direction—and may their merit protect us and all Israel, amen.

At the close of the month in which joy is diminished,

and as we approach the turning of the month of mercy and forgiveness,

here in the holy city of Yeruham.

[1] The subject arose on a unique internet forum called 'Stop Here, We Think,' raised there by an interesting Jew whose hands are full both in learning and in creativity, and who calls himself 'Orva Parach.' I must thank my friend, whose identity I do not know, for the referral and for an interesting exchange that we conducted. May his keyboard continue to speak in his home when words of Torah are said here in his name.

Continuing the aura of mystery, I also thank another friend, who wishes to remain anonymous, who placed his 'archive' at my disposal. I hope that my brief 'bibliographical research' has indeed unearthed the relevant sources. I should note that Rabbi Y. E. Gibraltar is about to publish a book on Lithuanian Jewry until the Holocaust, and perhaps further relevant details will be added there.

[2] There also appears there, in a later passage, some uncertainty as to whether there is a difference between an obligation created by a loan, which lapsed, and a deposit. It is not clear from the wording whether the doubt is whether, beyond the letter of the law, one should return the deposit to the depositor even though he is no longer its owner, or rather whether a deposit too is considered as being in his hand, and therefore remains under his ownership by the law itself.

[3] See my article 'What Is a Legal Effect?', Tzohar 2. Also, in much greater detail, my article 'On Liability for Compensation for Damage Caused by One's Property,' in the collection Mishpetei Yisrael – Laws of Damages, Shlomo Grintz (ed.), Machon Mishpetei Yisrael, Petah Tikva 5763. The subject will also be discussed in two notes in the third volume of the trilogy Two Carts and a Balloon, which, with God's help, will appear soon.

[4] It should be noted that in the Talmudic passage in Bava Metzia mentioned above, the formulation is that one of them has the flask 'in his hand,' not that it is 'his,' and this requires study.

[5] On transmission through inheritance, see for example Pri Moshe (Acquisitions), siman 43, section 6. There is much room for further dialectical analysis there and in his words, and this is not the place to elaborate.

Rabbi Shimon Shkop discusses this in several places in his 'System of Acquisitions,' mainly in chapters 4 and 7 there, in light of the passage of 'after you,' and in light of the distinction between 'give' and 'grant' in the Rif and Rashi at the beginning of Gittin. See also Ketzot HaChoshen siman 188, section 2, regarding what he proved from there, and more generally.

A source for the assumption that there is ownership in the grave may be brought from the Rema at the end of siman 210, in the name of a responsum of the Rashba (part I, siman 375), who wrote that one may transfer money to a dead person in a matter that concerns his honor or burial. See there in the Gra, who brought a source from Sanhedrin 48a concerning surplus funds designated for the deceased; in fact, this already appears in the responsum itself.

[6] See, for example, the Commentary on the Mishnah to Sanhedrin 10:1, where he wrote that at the resurrection a person will return and live with his relatives; Sefer Ha-Ikkarim, Essay Four, chapter 30; Rav Pe'alim (by the author of Ben Ish Hai), vol. II, in the section 'Sod Yesharim,' siman 2; Tzitz Eliezer, vol. 16, siman 24, and vol. 18, siman 79.

I also later saw, regarding a husband's obligation to bury his wife, that the decisors wrote that if she was disinterred, he must bury her again even a thousand times, for she remains his wife until the resurrection of the dead. See Tashbetz, part II, siman 111, and Pitchei Teshuvah, Even HaEzer 89:1. In truth, in the law of marriage this depends on whether there is marriage after death, and it would appear that Tosafot in Yevamot disputes Tosafot in Bava Batra on this point, as do Maimonides and Nachmanides. See Kli Chemdah, beginning of Parashat Emor, section 2, and Parashat Vayigash, final section 1, where he discusses this at length.

[7] It may be that the marital-status discussion depends on whether death itself permits remarriage, or rather whether the dead simply have no marital bond—for here the person is dead, yet there was no particular event of death. Rabbi Elchanan Wasserman discusses this there, and much more could be said, but this is not the place. In any event, regarding property it is clear that only the second possibility exists—that the dead have no ownership, not that death itself strips ownership away—and therefore the possibility remains.

[8] See Encyclopedia Talmudit, entry 'Hefker,' around notes 26–30.

[9] It is interesting that the author of Dvar Avraham himself discusses this, in volume I, published before the Holocaust, siman 11, section 4.

[10] See Ketzot HaChoshen siman 249, section 2, and Milu'ei Choshen there, note 110.

[11] There is also room to connect this to the passage about conveying property to one who is not yet in the world, such as a fetus, but that may be rejected, and this is not the place to elaborate.

[12] It should be noted that the law of ownership concerning items from which benefit is forbidden is not necessarily a proof, for the prohibition of benefit belongs to Yoreh De'ah, whereas we are discussing rights, which belong to Choshen Mishpat. However, according to the view that there is no ownership of items from which benefit is forbidden, then in a situation where a person has no monetary right of use, all the more so he has no ownership.

[13] I added the condition that he is being taken out to be killed unlawfully and unjustly, for otherwise we would also have to say, even according to the first explanation, that the property of a dying convert with no heirs is ownerless.

The aforementioned 'Orva Parach' asked me about the slave of Rabbi Yehuda Hendua (Kiddushin 22b, near the end), who was a convert with no heirs and who was dying. According to my argument, the slave should apparently have gone free, or have been acquired by Mar Zutra, automatically, even without any act of acquisition. But according to the condition we have now added, there is no difficulty, for he was dying at the hand of Heaven, not being taken out to be killed unlawfully. In such a case he still has legal status, and his property is not ownerless, even according to the first explanation above. The reason is that in a normal situation he can give his slave away as a gift, even if he has no heirs, and therefore he has a relation and legal rights with respect to him. And perhaps there is also some chance that he will recover, similar to Rabbi Gibraltar's aforementioned remark regarding one who is going out to die. But in our case this is impossible: one cannot give a gift or bequeath, for the entire situation is out of control and does not allow it.

[14] For a detailed discussion, though not entirely precise, see Avi Sagi's article, 'The Religious Command and the Legal System — A Chapter in the Halakhic Thought of Rabbi Shimon Shkop,' Daat 35, 1995, pp. 99–114.

[15] It emerges clearly from his words that the legal plane is not only definitional of ownership, as a background to the prohibition of "do not steal", but also carries independent normative significance. One who violates it transgresses, beyond the halakhic prohibition of "do not steal", also a legal prohibition. One implication of this point appears in my article 'The Problem of the Relationship between the Individual and the Collective and the “Defensive Shield” Dilemma,' Tzohar 14, Spring 5763. There I pointed out that Rashi's view in Bava Kamma 60b—that a person may not save himself with his fellow's property and then pay for it—is necessarily based on such a conception. See there, at the beginning of chapter 3, where I noted that although all the medieval authorities disagree with Rashi on this point, their words too clearly imply a similar principled conception.

[16] These matters are also well known in philosophy of law, where many have pointed out that the duty to obey the law cannot itself be included within the law, for who says that one must obey that very law? See, for example, Haim Gans's book Obedience and Disobedience, Hakibbutz Hameuchad, Tel Aviv, 1996 (see the beginning of chapter 1, p. 21). See also the third book of the trilogy Two Carts and a Balloon, which, with God's help, will appear soon.

[17] And my friend 'Orva Parach,' mentioned above, raised an objection to my argument from the Talmud. Rabbi Shimon Shkop's words are based on the Talmud's question (Bava Kamma 46b): Why do I need a verse? It is a matter of reasoning: whoever is in pain should go to the physician. According to my argument, the Talmud could have offered an interpretation that the verse is needed for a case in which no legal order is actually functioning. This can be answered easily in several ways.

First, several medieval authorities wrote that even according to the conclusion, we still derive the rule from the verse; so it is in the Jerusalem Talmud there. See also Rashi to Gittin 48b near the end of the page, and Penei Yehoshua there. Further, commentators wrote that when the claimant argues with certainty (see Ravid HaZahav on Exodus 24:14, s.v. 'yigash aleihem'), or when the claimant has a majority presumption, according to Samuel, a verse is required. See the novellae of the Raavad there, and Beit Ne’eman, room 12, letter 1. According to Sumchus, in any event the matter is difficult, for there they disagree even on pure reasoning. See Sefer HaMafte'ach to Bava Kamma, Frankel edition, there, and this is not the place to expand.

[18] This is my assumption here, and so too it emerges from the straightforward sense of the Talmud, that in such a case there is a prohibition on giving the other person to drink. However, according to the view of Tosafot, who disagrees with Maimonides and holds that one may allow oneself to be killed rather than violate other prohibitions, apart from the three cardinal ones, it seems straightforward that here too it would be permitted.

[19] According to this, the questions from the previous chapter lose some of their significance.

[20] Something similar appears in Nachmanides at the end of the treatise Dina de-Garmi, where he distinguished between a case in which the damaging force had already begun its action and a case of mere indirect causation.

[21] However, as is well known, Ketzot HaChoshen, siman 390, section 1, thought that the Rosh disagreed with Tosafot on this point. That is not necessary, however, and the matter is long discussed.

[22] Even here, however, one should note the dispute among the decisors whether one may avail oneself of a miracle—though that is not relevant here—or pray for a miracle. See Igrot Moshe, Orach Chayim, vol. II, siman 111. And especially whether one may commit a transgression in order to be saved by means of a miracle. See Birkei Yosef, Yoreh De'ah 155:2–3. I vaguely recall that they brought proof for permission from the fact that King David saved the world from the flooding of the subterranean channels by erasing the Divine Name. I later saw this indeed in Otzar Mefarshei HaTalmud, Makkot 11a, though this may be rejected in light of the dispute among the commentators there as to whether there was any prohibition involved at all.

I also vaguely recall a story involving the author of Heshek Shlomo, who sternly forbade traveling on the Sabbath to the Belz Rebbe so that he would pray for a dangerously ill person, or give him an amulet. I did not find the source. See HaElef Lekha Shlomo, Orach Chayim, siman 118. Perhaps one could distinguish that in our case the 'transgression' is that of endangering oneself in order to save another.

More likely, however, in a situation of an infant cast from a rooftop, we are no longer dealing with an ordinary case. The prohibition of committing a transgression in order to be saved by a miracle applies when the world continues in its ordinary course, and only some individual person is in danger. But here many of the Torah's laws are stripped away, and the mode of conduct is fundamentally different. This subject too would require much further elaboration, and this is not the place.