Be Killed Rather Than Transgress Theft (Column 291)

With God's help

To take a break from the latest coronavirus storms, I decided to devote a column to Torah study. Not homily and not aggadah, but Torah study (I could not resist a jab).

I thought I would use this opportunity to examine Rashi's view in Bava Kamma, according to which there is an obligation to be killed rather than transgress theft. This approach seems very problematic, and it is commonly assumed that all halakhic decisors disagree with him on this point. I will show below that this is not so. Moreover, the passage in Ketubot implies that there is such a view, except that it is not accepted as Jewish law, and this would seemingly be further evidence against Rashi. On that too I will show below that the opposite is true. The passage in Ketubot is strong evidence for Rashi's view.

The Talmudic passage in Bava Kamma

The Talmud in Bava Kamma 60b presents a collection of interpretations that lie somewhere between aggadah and Jewish law. In the course of that discussion it addresses the rule of saving oneself at the expense of another person's property:

And David longed and said, “Who will give me water to drink from the well of Bethlehem that is by the gate?” And the three warriors broke through the Philistine camp and drew water from the well of Bethlehem that is by the gate [etc.]. What was he asking them?…

Despite the plain meaning of the verses, the Talmud interprets them as though this were a legal question that David sent through the mighty men to the Sanhedrin (they were sent to bring water from the elders sitting at the gate of Bethlehem, that is, the Sanhedrin, and as is well known, 'water' means Torah).

Later in the passage, several proposals are raised as to what the question was and what answer was received. Among them, Rav Huna offers the following interpretation:

Rav Huna said: The stacks of barley belonged to Jews, and Philistines were hiding in them, and he asked: What is the law regarding saving oneself with another person's property? They sent him the reply: It is forbidden to save oneself with another person's property. But you are a king, and a king may breach [property] in order to make a way for himself, and no one may protest against him.

Rav Huna says that there were stacks of barley belonging to Jews there, and the Philistines were hiding in them. The question concerned the laws of saving oneself at the expense of another person's property: may one burn those stacks in order to save oneself from the Philistines? The Talmud's conclusion is that a person may not save himself at the expense of another person's property, apart from a king, who has special powers and rights.

The dispute among the medieval authorities

Tosafot, s.v. What is the law, ad loc., interpreted the question as follows:

What is the law regarding saving oneself with another person's property? — The question was whether he is obligated to pay when he saved himself because of a life-threatening danger.

Tosafot departs sharply from the plain sense of the Talmud. For Tosafot, the discussion is not about the very permission to cause damage, but about the obligation to pay. It seems that Tosafot was unwilling to accept an interpretation according to which the question actually concerned the permission to save oneself at the expense of another person's property, since theft is not one of the three cardinal sins for which one must surrender one's life (other medieval authorities state this consideration explicitly). It was obvious to Tosafot that even an ordinary person, not just a king, may damage property in order to save his life. Therefore Tosafot explains that the question was whether he must pay, not whether he may do this in the first place.

Tosafot's view implies that, as a matter of Jewish law, it is certainly permitted for any person to save himself at the expense of another person's property. David had a doubt only regarding payment, and the law is that one must pay (unless he is a king). The same emerges from the Ra'avad cited in the Shitah Mekubbetzet to Bava Kamma 117b.

Rashba writes similarly in his novellae there:

What is the law regarding saving oneself with another person's property? Tosafot explain that the question was whether he is obligated to pay; and it seems that to them it was obvious that he may save himself with the intention to pay, even without the owner's knowledge.

It should be noted that the proposal of Tosafot and Rashba also suffers from a difficulty in the Talmud. Beyond the linguistic difficulty in the passage, which on its face deals with the very permission to cause damage and not with the duty to pay, their interpretation implies that David had at least one side of the question, though it is not accepted as Jewish law, according to which one who saves himself at the expense of another person's property need not even pay. That is implausible. Why should the other person bear the loss rather than the one who was saved?

Later in the passage, the Talmud discusses how to interpret "And he saved her" regarding the plot of the field. It explains that the mighty men saved the barley from being burned because they brought the ruling that forbade burning it. David apparently was stringent with himself despite being a king. Here Rashi explains as follows:

And he saved her — so that they would not burn her, since it is forbidden to save oneself through another person's property.

He saved the barley so that they would not burn it. That is, he applied the rule that a person may not save himself at the expense of another person's property in its plain sense. It is quite clear that Rashi understood the discussion in the passage as addressing the very permission to save oneself at the expense of another person's property, and not the obligation to pay, as Tosafot and Rashba suggest. Many medieval and later authorities indeed inferred this from him.

According to Rashi, the conclusion is that a person indeed may not save himself at the expense of another person's property. In other words: one must be killed rather than transgress the prohibition of theft. The obvious question, of course, is how this was not counted among the three cardinal sins. Moreover, each of those three has a source teaching that danger to life does not override it. Where do we find such a source regarding theft? How did the Sanhedrin know to answer David with this legal ruling?

An interpretive note

We have seen two possible ways to interpret the Talmud. According to Tosafot, we face a problem with the language of the passage, and also a conceptual problem regarding the possibility that the rescued person would not be required to compensate the owner of the property he used. According to Rashi, by contrast, we face a conceptual problem: how can it be forbidden for a person to save himself at the expense of another person's property, when this is not one of the three cardinal sins?

One may say that there is a dilemma here between a linguistic difficulty and a logical difficulty. In yeshivot it is customary to say that it is preferable to force the language rather than the reasoning. Indeed, in the book Menukhat Ahavah vol. 1, ch. 3 (p. 64), he cites in the name of the Beit Yosef (Yoreh De'ah, toward the end of sec. 228), who wrote:

And even though the plain meaning of the wording supports the Rivash's interpretation, since the matter does not fit with his interpretation, it is preferable to press the language somewhat and align it with the substance; and the language of the Jerusalem Talmud is sometimes unusual, all the more so in a simple matter where it relies on the reader's understanding.

Of course, this is not an absolute rule. It depends on how strained the language is and how clear the reasoning is. This parallels the dilemma in legal interpretation whether to follow the literal reading or the purposive reading. That dilemma may also underlie the dispute between Rashi and Tosafot and the other medieval authorities.

It is therefore no surprise that among halakhic decisors it is commonly said that Rashi's view is unique, since the conceptual difficulty is indeed severe and seemingly decisive. How can one say that there is a rule of 'be killed rather than transgress' regarding theft? Questions about the language of the Talmud or about understanding the initial assumption are more marginal. I once heard in the name of Rabbi Lichtenstein that he said this view in Rashi originated with a mistaken student, because Rashi could not possibly have written such a thing. But in my opinion that is simply not accurate. There are other medieval authorities who move in this direction.

Rashba's view

In a responsum, vol. 4 no. 17, Rashba was asked about his interpretation cited above:

You asked: regarding what I wrote in the chapter HaKones Tzon LaDir on that discussion there—“What is the law regarding saving oneself with another person's property?”—for I wrote there in the name of Tosafot that the question was whether he is obligated to pay. And I wrote further that it appears obvious to them that he may do so on condition of repayment, even without the owner's knowledge.

But you ask: if so, why did they send him the reply: “It is forbidden”? They should have sent him: “It is permitted to save oneself on condition of payment”! Moreover, they explicitly said there that even though he pays, he is called wicked.

The questioner raises two difficulties: 1. Why was the Sanhedrin's answer that it is forbidden? They should have said that it is permitted on condition of paying. 2. Later in the passage it is stated explicitly that someone who saves himself on condition of paying is called wicked. If so, it is unreasonable that Rav Huna's interpretation would be proposing the same reading as the interpretation that follows it in the passage.

Rashba answers him there as follows:

Response: What I wrote seems to me obvious, and I am close to saying that I should not have needed to write it at all, because of its very obviousness. For nothing stands before the preservation of life except those three that are enumerated.

Consider for yourself: if someone was in the desert and dying of thirst, and he found his fellow's flask of water, should he die rather than drink, even on condition of repayment? And how can such a person be called a robber, when the owner is obligated to give it to him for free and keep him alive? Ben Petura even expounded in tractate Bava Metzia: If two were traveling on the road and one of them had a flask of water—if both drink, they die; if one drinks, he reaches civilization—better that both should drink and die, rather than one see the death of his fellow. Rabbi Akiva disagreed only because it is written: “and your brother shall live with you” — your life takes precedence over your fellow's life. But where his own life is not at stake, he is obligated. If so, what theft is there here, that one should say of it: even though he pays for what he stole, he is wicked? Rather, certainly, that one may save himself on condition of repayment is obvious.

There is quite a lot to discuss in these remarks of Rashba, but let us focus on what concerns us. First, he explains that Tosafot's reading is conceptually obvious, since nothing stands in the way of danger to life. Second, he compares it to someone who finds water in the desert. For some reason it seems obvious to him that this is permitted, but on its face that is exactly the same case. It appears that he is simply assuming the conclusion. Therefore it seems that his intent is to argue that the owner of the water is obligated to give it to him in order to save him, under "Do not stand idly by your neighbor's blood" ('do not stand idly by your neighbor's blood'), and from this he concludes that it is obviously also permitted for him to take the water without permission. This is an interesting explanation of Tosafot's view, because it grounds the permission in the obligation imposed on the owner of the water to give it to him. From there he illustrates, though he does not prove, his conclusion that in David's case too there is no prohibition of theft at all. But if so, it follows from his words that had there been theft here, he would agree with Rashi. In other words, he too agrees that theft is not set aside in the face of danger to life; only in his view there is no theft here.

He now answers the question why they did not send back that it is permitted to damage on condition of paying:

And if so, why did they send him the reply: “Permitted on condition of payment”? If that was obvious to him and not in doubt at all, why send him that reply?

He explains that this was not in doubt for David at all. He did not ask whether it is permitted to save oneself on condition of paying, but whether one is obliged to pay. That is, of course, not really an answer, because they should have sent back that he is obligated to pay, not that it is permitted, which implies that he may save himself.

Therefore it seems that his intent is to say that David did not ask whether one must pay, but whether one may steal on condition of paying. To that they answered that it is permitted, and not that he is obligated to pay, because that was not what he asked. Again we see that, in Rashba's view, if this were theft it would be forbidden to do so even in a case of danger to life. Therefore his claim is that this is not theft because he acts on condition of paying. That is also why he must explain why this is not theft: because the owner was himself obligated to give it to him. He also notes, apparently following the aforementioned Ra'avad cited in the Shitah Mekubbetzet to Bava Kamma 117b, that this is true only if the act is done in the owner's presence, because only then is there an obligation upon him to hand over the property for my rescue. Otherwise his obligation is no greater than that of everyone else.

Later, Rashba also proves that stealing on condition of paying is certainly theft, from the third interpretation in that passage. If so, all of his remarks here apply only in a case of danger to life in which the owner is himself obligated to give him the property, and therefore if the endangered person takes the property on condition of paying, there is no theft here at all, not merely that it is permitted by virtue of danger to life. As a matter of Jewish law, Rashba rules like Tosafot that it is permitted to save oneself at the expense of another person's property, but his reasoning shows that at the principled level he actually follows Rashi, namely that theft is not set aside in the face of danger to life. Rashi is not alone.

As an aside, I will only note that on the substance of the matter Rashba's words are difficult. The fact that the owner of the barley was obligated to give it for my rescue does not mean that my taking it without permission is not theft. Is a poor person who forcibly takes charity from me not a thief because I ought to have given it to him? The obligation to give is a commandment incumbent on me, a rule that belongs to the Yoreh De'ah sphere, whereas the question of theft belongs categorically to the Choshen Mishpat sphere. Rashba seems to understand that a person's property is actually subordinated to saving the other person, and not merely that the owner has a halakhic duty to give it for his rescue. That is strained. The difficulty and strain in his reasoning only underscore how strongly Rashba felt the need to prove that there is no theft here, presumably because if there were theft, it would be forbidden, as Rashi holds.

The view of the Rosh, the Tur, and the Shulchan Arukh

The Rosh, there in Bava Kamma sec. 12, wrote:

The stacks belonged to Jews, and Philistines were hiding in them, and the question was whether it was permissible to burn them. But the question was not whether it was permitted to burn them in order to save Jewish lives, for it is obvious that nothing stands before the preservation of life except the three transgressions. Rather, the question was this: may he burn them with the intention of exempting himself from payment? And they answered him: It is forbidden to save oneself with another person's property with the intention of being exempt from payment; rather, let him save himself and then pay…

He too holds like Tosafot that the discussion concerned only payment. But within his words there is a formulation that seems slightly different. He makes the permission to take or to damage depend on proper intention. One may save oneself at the expense of another person's property only if it is done on condition of paying. If not, then there is no permission to do so. On its face, this means that there is not only a duty to pay if one took or damaged another person's property, but a duty that when he takes it from the outset, it be done on condition of paying.

One can, of course, reject this inference and claim that it is merely a conventional turn of phrase, and that he means only that there is an obligation to pay, exactly like Tosafot. But when one looks at the Tur and the Shulchan Arukh, this point seems more unequivocal.

The Tur in Choshen Mishpat sec. 359, par. 4, writes:

And even if he is in mortal danger and comes to rob his fellow in order to save his own life, it is forbidden for him to rob unless it is with the intention to pay, for certainly nothing stands before the preservation of life; therefore he is permitted to take it and save his life, but he may take it only with the intention to pay.

This already seems a more precise formulation.

But the Shulchan Arukh in Choshen Mishpat sec. 359, par. 4, writes even more sharply:

Even if he is in mortal danger and needs to rob his fellow in order to save his life, he may take it only with the intention to pay back (see above, sec. 388, par. 3).

The formulation of the Tur and the Shulchan Arukh and, as now appears, also of the Rosh, differs from that of Tosafot. They do not write that it is permitted to save oneself and that there is an obligation to pay, as Tosafot holds. Rather, they write that it is permitted to save oneself only if this is done from the outset on condition of paying. In other words, the intention is a condition for the very permission to rescue oneself. If he saves himself without intending to pay, then he violated theft in the act of taking itself, and not merely by failing to return it later.

Either way, if his intention is not to pay, he is forbidden to damage or steal another person's property. Why? After all, we are dealing with theft in a situation of danger to life. It therefore seems that the Rosh and the Tur/Shulchan Arukh also agree in principle with Rashi, that there is no permission to violate the prohibition of theft even in a case of danger to life. The permission exists only if from the outset he intends to pay.

To sharpen the point, I will offer a practical ramification. If he took the property without intending to return it, and in the end he did return it, there is still a prohibition of theft because of the moment of taking, except that he repaired the prohibition by returning it, since theft is a prohibition remedied by a positive commandment. By contrast, according to Tosafot, and also Rashba, who on this point seems to be like Tosafot, it is permitted to save oneself regardless of one's intentions, and only afterward is there a duty to pay. The dispute concerns a situation in which he took without intending to pay and in the end paid anyway: did he commit a prohibition for which he must repent, or not? In the next column I will try to sharpen the issue of the importance of intention. Alternatively, if he stole or damaged the property intending to pay but in the end changed his mind and did not pay, one may discuss when he violated the prohibition of theft, when he took the property or when he decided not to return it. This is related to the passage about 'nullified' and 'not nullified,' and much more could be analyzed here. But perhaps one should discuss the case where in the end he was prevented by circumstances, for example he lost all his property, and therefore did not pay. According to Tosafot and Rashba, in such a case he violated a prohibition under duress. By contrast, according to the Rosh and the Tur/Shulchan Arukh, it seems that he did not violate any prohibition, because his intention was proper. His obligation to pay is not because of the prohibition of theft but as a Torah law that places the loss of saving himself upon him. Once he is prevented by circumstances, no prohibition remains at all.

Additional possibilities

We have seen in the view of the Rosh and the Tur/Shulchan Arukh that the permission to save oneself at the expense of another person's property depends on one's intention at the time of the act. What is the basis of this distinction? Three possibilities may be suggested:

• When one intends to pay, there is no theft here at all. When there is theft, there is no permission to violate it even in a case of danger to life. According to this, their view really is like Rashi's: the prohibition of theft is not set aside in the face of danger to life.
• The permission to steal is said only when danger to life is involved. But when there is a person who can pay and he takes without intending to pay, that is forbidden. According to this explanation, the prohibition is not because theft is not set aside in the face of danger to life, but because he is violating the prohibition of theft not in order to save himself, since he could save himself even without violating it, if he pays. By analogy, if someone eats pork in a life-threatening situation when he also has kosher meat and could save himself with that as well, this is forbidden. Why? Even though the prohibition of pork is set aside in the face of danger to life, eating pork here is not being done because of danger to life, since he can save himself without the prohibition. According to this, one cannot infer from here that their view is like Rashi's, because in principle the prohibition of theft is indeed set aside in the face of danger to life.
• If from the outset he does not intend to pay, the prohibition of theft was not permitted to him. When a person makes cynical use of Jewish law in order to profit financially, Jewish law freezes itself and does not protect him (see my article in Tehumin on killing a thief in defense of property). According to this explanation too, it does not seem to be like Rashi, since in principle the prohibition of theft is set aside in the face of danger to life.

Note that until now I argued that the Rosh's view is exactly that of the Tur/Shulchan Arukh, but now we can see that there may be a difference between them. In the Tur and in the Rosh, who was of course his father, they explicitly write that the reason for the rule is that nothing stands in the way of danger to life. But we have seen that apparently they hold in principle like Rashi, that theft does stand in the way of danger to life, since if one takes without intending to pay, he is forbidden to take. It therefore seems that the intent of the Tur and the Rosh is that if we are dealing with a poor person, then he would be permitted to take even though already at the time of taking he knows that he cannot pay. But if we are dealing with a wealthy person, there is no permission to take. Why? It seems that they accept explanation 2 or 3 above. If so, the Tur and the Rosh do not really follow Rashi.

By contrast, in the Shulchan Arukh it is not clear whether this is his intent, because he does not cite the reason that nothing stands in the way of danger to life. In his case, there is room to understand that even a poor person is forbidden to take in order to save himself if he cannot pay, as Rashi holds.

Summary: five views

Accordingly, there are five views regarding the law of saving oneself at the expense of another person's property:

1. Rashi – forbidden.
2. Rashba – in principle like Rashi, and therefore when the owner is not present there is no permission to violate theft. Only the obligation incumbent on the owner, which removes the prohibition of theft, justifies damage or theft for the sake of rescue.
3. Tosafot – permitted, but one must pay.
4. Rosh and Tur – permitted, provided that when he takes it he intends to pay. If he is poor, he may take even without intending to pay.
5. Shulchan Arukh – permitted only when this is done on condition of paying. Even a poor person would be forbidden to take, because he cannot pay.

If so, Rashi's view is not as unusual as is commonly thought. There are several medieval authorities in whom one can discern a similar principled conception, even if not in the final practical ruling. What remains difficult for all of them is the fundamental problem, which as we have seen is twofold: 1. We have found only three cardinal sins that are not set aside in the face of danger to life. 2. Even if we explain that theft is included among them, the source for this is unclear, whereas each of the other three has a source.

The responsa of 'Binyan Zion'

In the responsa Binyan Zion, he deals at length with the status of commandments between one person and another, and with the question whether danger to life overrides them. The discussion extends across seven different responsa, 167-173, and among other things, the distinction I made here between Rashi and Rashba on the one hand, and the Rosh, the Tur, and the Shulchan Arukh on the other, who permit rescue only if one intends from the outset to pay, appears there in sec. 170, showing that Rashi has allies at the principled level.

His claim there is general: prohibitions between one person and another are not set aside in the face of danger to life. Among other things, he cites Tosafot in Sotah, who infer from the Talmud there that one is obligated to surrender his life rather than embarrass his fellow publicly: It is preferable for a person to throw himself into a fiery furnace rather than publicly humiliate his fellow..[1] At first glance this is puzzling. Is the commandment of charity also obligatory even in a situation of danger to life? It is quite clear conceptually, and all of his examples prove it, that he does not mean all commandments and prohibitions between one person and another, but injury to another person's rights. It is forbidden to infringe any right of another person, property or body or honor and the like, even in a situation of danger to life. But the fulfillment of a commandment or avoidance of a prohibition between one person and another that is not connected to another person's rights, what I called in my article on rights and duties in Jewish law and on Choshen Mishpat, 'Yoreh De'ah prohibitions,' certainly does not obligate us to surrender our lives.

Explaining the matter: back to Rashi and his school

In several places, see for example my article Midah Tovah on the portions Acharei Mot-Kedoshim and Chukat 5767, printed in the book La'asot Mitzvotecha, as well as the aforementioned article on rights and duties in Jewish law, I explained this as a 'territorial consideration.' The basic claim is that a person cannot enter the territory of his fellow and make decisions there, even if those decisions are justified in themselves. Thus, for example, I cannot take an organ from another person even if I am in a life-threatening situation, and even if the prohibition I would thereby violate is the prohibition against wounding and not murder, which would seemingly be set aside in the face of danger to life. There I brought many examples of this point, and I tied it to the well-known remarks of Rabbi Shimon Shkop in Sha'arei Yosher from the beginning of Gate 5 and throughout, regarding 'the jurisprudence of law.' Thus he writes there in ch. 1, sec. 4:

And the explanation of this matter, in my humble opinion, is based on a general premise: all the laws of civil justice, the monetary laws governing one person and another, are not like the other commandments of the Torah. For with all the commandments, what the Torah commanded us in positive and negative form—the primary obligation is for us to fulfill God's command. But in monetary law this is not so, for before the commandment of God to pay or to return can take effect upon us, there must first exist a legal obligation. For even if the robber is a minor, who is not subject to the commandments, nevertheless the religious court is obligated to rescue the victim from his oppressor by compelling the minor to return the stolen object to its owner. Another fundamental principle here is that when we adjudicate regarding a person's right or ownership in some object or monetary lien, we are not discussing at all the observance of some commandment; rather, it is a question of factual legal reality—who owns the item, and who, according to the law, is entitled to possess it.

Unlike ordinary halakhic prohibitions that the Torah establishes, the prohibition of "You shall not steal" is based on the legal right of the other person to his property, and that right is based on legal reasoning that precedes the Torah. The other person's right to his property does not arise from the prohibition of "You shall not steal"; on the contrary, the prohibition against theft exists because of the right.

In short, my claim is that in the types of prohibitions at issue here, such as the prohibition against damaging, stealing from, or humiliating another person, what is involved is an infringement of his right and not merely my own prohibition. Because he has a right to honor and a proprietary right over his property, I am forbidden to infringe that right, even if this is necessary to save my life. The reason is that the decision what to do with his rights, such as his property, is entrusted exclusively to the right-holder. If he refuses to give me money to save my life, he may be wicked and the Holy One, blessed be He, will call him to account, but I may not take it. Just as if I do not want to give charity to a poor person, he cannot take my money from me even though I am commanded to give it to him.

This is apparently the reason why, according to Rashi, one may not violate the prohibition of theft or damage another person's property in order to save life. The other person's property is his territory, and only he can make decisions about it. I, even under the most justified circumstances, cannot enter his domain and make decisions there in his place.

Incidentally, in Rashba's responsum cited above we saw that his remarks are puzzling, because he infers from the other person's obligation to give from his property in order to save me, which is a Yoreh De'ah obligation, the conclusion that this property is not really his and I may take it, which is a Choshen Mishpat offense. But his need to make that leap stems precisely from the fact that he is unwilling to accept that one may steal from another person in order to save my life. His Yoreh De'ah obligation does not justify theft, but only a situation in which the Torah itself deprives him of his property, so that he no longer has a right to it.

Resolving the difficulties in Rashi's view

From here we can also resolve the two difficulties I presented above regarding Rashi and his school: 1. How can there be a rule of 'be killed rather than transgress' for additional offenses beyond the three cardinal sins? And on the other hand, if there is such an additional offense, why is it not counted among the three? 2. From where is this learned?

The answer to question 1 is that there is no halakhic prohibition here that resists danger to life. The prohibition of "You shall not steal" is indeed set aside in the face of danger to life and is not one of the three cardinal sins. But even without that prohibition, there remains upon me a legal prohibition, in Rabbi Shimon Shkop's terminology, against stealing or damaging my fellow's property. Therefore, in a situation of danger to life, the prohibition itself may no longer apply, but it is still forbidden for me to take or damage my fellow's property. The basis of this prohibition is that my fellow has a right to his property, and my danger to life does not override his right, but only my duties. Where my duty derives from the right of another person, in my article on rights I explained this through Hohfeld's table, there is no way to permit this in a case of danger to life. The prohibition of "You shall not steal" is set aside, but the right of the other person remains fully in force even in such a case. Why should his right be set aside because my life is in danger? I repeat that if he refuses to give me the money for my rescue, he is probably not acting lawfully, and perhaps will one day have to answer before the Holy One, blessed be He. But the decision is still his and not mine, just as in the case of the commandment of charity mentioned above. According to Rashi, there are indeed only three cardinal sins that, because of their severity, are not set aside in the face of danger to life. "You shall not steal" is not one of them, and therefore there is no difficulty as to why it is not counted among them.

This also makes the answer to question 2 clear. This principle does not require a source from the biblical text. We are not dealing here with a halakhic category or a detail within the laws of "You shall not steal". As Rabbi Shimon Shkop explains in the passage cited above, this is a meta-legal intuition that precedes Jewish law. The laws of property are the framework within which halakhic discourse takes place, but that framework precedes Jewish law and is not contingent upon it.

As an aside, I will say that this is also the reason that the Talmud in Bava Kamma says that a king is an exception in this matter, "A king may breach a fence". The king is the legislator, that is, the bearer of legal authority. He is the one who determines the rights of the subjects, and therefore he has the right and the authority to infringe those rights.

The objection from the passage in Ketubot[2]

I mentioned at the beginning of this column that some objected to Rashi from the passage in Ketubot 19a. The Talmud there presents a tannaitic dispute between Rabbi Meir and the Sages regarding witnesses who signed a document and then come and testify that they signed falsely under threat to their lives. Rabbi Meir claims that they are not believed, and the Sages hold that they are. The Talmud there discusses what the point of the dispute is:

Rav Chisda said: Rabbi Meir holds that witnesses who were told, “Sign falsely or be killed,” should be killed rather than sign falsely.

Rabbi Meir does not accept their testimony because they are rendering themselves wicked. Why are they wicked? If they were threatened that they would be killed, should they not have been permitted to sign falsely? The document is a loan document, and the issue is injury to another person's property. The Talmud explains that the witnesses are forbidden to do so even under threat to life. And what do the Sages hold? They obviously disagree with him, since in their view the witnesses were permitted to sign falsely under threat to their lives, because theft is not subject to 'be killed rather than transgress.' If so, we have found here in the Talmud an actual dispute on this very question, and as a matter of Jewish law everyone rules like the Sages, that is, that a person may harm another person's property in order to save his life. This would therefore seem difficult for Rashi and his school as described above.

Moreover, later on the Talmud itself raises precisely this difficulty, and on the basis of it rejects this explanation of the dispute:

Rava said to him: Now, had they come before us to seek counsel, we would say to them: Go sign and do not be killed, for the master said: Nothing stands before the preservation of life except idolatry, forbidden sexual relations, and bloodshed alone. Now that they have signed, should we say to them: Why did you sign?!

Rava argues against this explanation of Rabbi Meir's view: it cannot be that if the witnesses had come to ask us whether they were permitted to sign falsely, we would have told them to go sign and not be killed, since nothing stands in the way of danger to life except idolatry, forbidden sexual relations, and bloodshed alone, but now that they come and testify that this is what they did, we say to them: why did you sign? On that basis the Talmud concludes that the explanation of the tannaitic dispute is different, concerning whether one who admits to the document he wrote must validate it.

In any case, the Talmud here is unwilling to accept the view that theft is not set aside in the face of danger to life, even in Rabbi Meir's view. The difficulty for Rashi, of course, is greatly intensified here. We see here that his conception is so unacceptable that the Talmud will not explain it even in a position not accepted as Jewish law. Despite the difficulty of explaining Rabbi Meir's view, the Talmud takes it as entirely obvious that even Rabbi Meir agrees that Rashi is mistaken, and therefore another explanation must be sought, one that is indeed presented later in the passage.

And indeed, the medieval authorities here refused to accept such a conception even in Rabbi Meir's view, and therefore they offered various resolutions. For example, some wrote that even Rabbi Meir agrees that one need not surrender his life over money; this is merely an act of piety, except that a person does not render himself into someone who is not pious. This is, of course, very strained. Thus Nachmanides writes here:

As for that which Rav Chisda said, “Rabbi Meir holds regarding witnesses who were told…” — this is what he means: even though we maintain that nothing stands before the preservation of life except idolatry, forbidden sexual relations, and bloodshed, nevertheless the proper law is that they should allow themselves to be killed rather than sign falsely, and this is a measure of piety; and if they did not do so, they render themselves wicked, and Rabbi Meir holds that even in such a case a person does not render himself one who is not pious. Rava objected: since you admit that nothing stands before the preservation of life except idolatry, forbidden sexual relations, and bloodshed, and if they came before us we would instruct them to sign, then if they signed on their own initiative, how can you classify them as wicked so that we would say that a person does not render himself wicked, seeing that had they come for instruction we would rule to them from the outset that they should testify and not be killed?

However, later in his remarks here, Nachmanides cites an external baraita that states that Rabbi Meir does indeed hold like Rashi:

And there are those who say that Rav Chisda said: Rabbi Meir holds that by law as well they must be killed rather than sign falsely, for it was found in an external baraita: Three things do not yield before the preservation of life, and these are idolatry, forbidden sexual relations, and bloodshed; Rabbi Meir says: theft as well. But Rava said: We certainly hold that nothing stands before the preservation of life except these three alone. Perhaps they came before a court that held in accordance with the Rabbis, and that is what they ruled to them. But this is not so.

But this is, of course, highly strained. If that is Rabbi Meir's view, then what is the Talmud's objection to his position from the laws of danger to life? That is precisely what Rabbi Meir rejects. In our Talmud it is clear that Rabbi Meir was understood differently, and as a matter of Jewish law, according to all opinions, Rashi's conception is not accepted.

Further difficulties with the Talmud's line of argument

Yet the Talmud's line of argument is difficult in its own right. If they proposed here that Rabbi Meir holds there are four cardinal offenses, what is the difficulty raised against that? The Talmud objects that according to Rabbi Meir there are four such offenses. Indeed, that is what he holds. What is the problem? Moreover, even the wording of the Talmud's question is very puzzling. It does not ask how Rabbi Meir can hold that one must be killed rather than transgress theft. Rather, it assumes that in his view there is certainly no such rule. It asks only: if so, why, when the witnesses testify that they signed under threat, do we not accept their testimony? In other words, the Talmud assumes from the outset that Rabbi Meir did not say there are four cardinal offenses. It is obvious to it that the witnesses were permitted to sign. It is only claiming that when they testify that this is what they did, their testimony is not accepted because they render themselves wicked. But that is a very strange opinion. At least at the stage of the initial assumption, the Talmud clearly proposed that Rabbi Meir recognizes four cardinal offenses. At most, one could have rejected that by saying it is implausible because we have a tradition that there are only three.

One can add yet another difficulty to Rashi's view. As I explained his position, even he does not hold that there are four cardinal offenses. "You shall not steal" is set aside in the face of danger to life. What remains forbidden, to steal or damage even in a life-threatening situation, is only because the right of the other person is not set aside. There is no offense here of special severity, but rather a territorial principle. Therefore it is not counted among the three cardinal offenses. So what exactly was difficult for the Talmud about this explanation of Rabbi Meir's position? It is true that there are only three cardinal offenses, and that does not contradict this view.

Resolving Rashi's view

On closer examination, this passage not only does not contradict Rashi and his school, but actually provides strong evidence for them. It seems that according to his view, the course of the passage should be explained as follows.

At first, the assumption was that Rabbi Meir holds that theft is not set aside in the face of danger to life, exactly as Rashi and his school hold is the law. But then Rava objected: here the witnesses are being asked to sign, not to steal. His intention is to say that the theft is carried out by the lender, who forged the document and threatened the witnesses so that they would sign. In such a case, where the threatened person is not himself stealing but someone else is, he is not obligated to sacrifice his life in order to prevent another person's theft. That is precisely what Rava objected to in this proposed explanation of Rabbi Meir's view: even if theft is not set aside in the face of danger to life, here they are being asked to sign, not to steal. This is exactly the wording of his objection. It is directed not toward the very permission to sign, but toward the claim that they are wicked. Earlier I wondered about the wording of the objection, but now it is perfectly clear: the Talmud takes it as obvious that it is forbidden to steal even in a case of danger to life, but how can it be that when they testify that they merely signed falsely and did not steal, they are rendering themselves wicked? In such a situation it is permitted even actually to sign, and therefore when they testify, they are certainly not rendering themselves wicked.

Therefore, in the conclusion, the Talmud rejects that proposal and offers a different interpretation. But if we ask what the law is as a matter of Jewish law, whether it is permitted to steal under threat to life, the answer is no. Is it permitted to sign falsely on a document under threat? The answer is of course yes, because here I am not the one stealing; someone else is. And I am not obligated to surrender my life when that would only prevent another person's transgression.

It seems to me that this is the most spacious way to read the passage, and what emerges from it as Jewish law is exactly Rashi's view and that of his school. Moreover, I claim that this principle is agreed to even by the Sages who disagree with Rabbi Meir, and that it is not the point under discussion. The rule that theft is not set aside in the face of danger to life is accepted by all sides. According to this explanation, which is ultimately rejected, the dispute concerns only whether it is permitted to sign falsely in order to save oneself. In the conclusion this is rejected, because it is clear that this must be permitted even according to Rabbi Meir.

[1] Tosafot's remarks are, of course, extremely puzzling. In the plain sense, the Talmud is citing an aggadic saying and not laying down a legal ruling. Beyond that, even the rationale that humiliation is an adjunct of murder, because the blood drains from the face, as the Talmud explains there later, is quite puzzling, but this is not the place to elaborate.

[2] On this issue, one may consult my Ketubot lectures, recording, and also a file that will be uploaded later, lecture 15.