Q&A: Conquest Acquisition
Conquest Acquisition
Question
Hello Rabbi,
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How are you?
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A short question: regarding acquisition by conquest, the Devar Avraham discusses whether this is an acquisition in its own right or only something that enables acquisition. If it is an acquisition in its own right, can the moment of conquest be defined?
I understand conquest as basically a result: after the conquered party has surrendered or been eliminated, then the place is considered conquered.
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I think this is related to the question of the role of the individual soldier in a conquest. If it is a result, then it is the conquest of the army 94the collective 94and there is really no place for the individual. That may affect whether an individual soldier can take spoils (connected to the war against Midian).
Answer
Regarding acquisition by conquest, this is a very vague topic, and its source is unclear, although people cite the verses about Sihon.
Many have discussed the nature of this acquisition. See, for example, here: a0https://etzion.org.il/he/talmud/seder-nashim/massekhet-gittin/%D7%A7%D7%A0%D7%99%D7%99%D7%9F-%D7%9B%D7%99%D7%91%D7%95%D7%A9
and much more.
There are several ways to understand this acquisition. Some understood it as an independent acquisition. But some understood that what happens here is despair on the part of the conquered party, and then it is an acquisition through despair (Rashi and Tosafot Rid on Gittin 37). True, this is despair alone, and therefore they added that even according to these views, conquest itself still carries weight as an acquisition. But in the straightforward reading, it seems from these medieval authorities (Rishonim) that this is despair alone, and here it does acquire ownership (perhaps because it is complete and irreversible despair). Seemingly, there is room to understand it like commercial custom, since in the world it is accepted that a conqueror acquires the spoils he has conquered, and Jewish law also recognizes this.
The definition of the moment of conquest depends on the explanation. If it depends on despair, then the moment is when the conquered party despairs. The definition follows the view of the conquered party, not an objective state of affairs. If it is a full-fledged acquisition, then presumably it is when the conquest is recognized and final and the battle is over. If it is commercial custom, then it depends on international law in that period (it seems to me that today international law does not recognize this at all).
But regarding your question about an individual soldier, there is an explicit Talmudic passage in Gittin 38 that applies wartime conquest to the acquisition of a slave, and that is certainly an acquisition by a private individual. So it is clear that this acquisition is not only for the public but also for private individuals. In addition, I do not think this is related to the above questions, because it is possible that after the general military conquest has ended, each soldier then acquires his own spoils.
Discussion on Answer
What you quoted from the Rashba is like my commercial-custom explanation.
But the agreement of the nations can also mean that a soldier may take spoils within the framework of war. As I wrote, there is no necessary connection between the basis for acquisition by conquest and the question of spoils for the individual soldier. It could even be an agreement of the king with his soldiers that part of their pay is the spoils they take. That used to be accepted in the past. True, this is given to them by the king’s authority, and you can view it as though everything is his and they acquire from his table, but practically speaking each one can take spoils.
Good evening, thank you very much.
The Rashba says that conquest is the king’s law, basically a convention among the nations, like the convention that war may be waged.
As for the individual soldier, I do see a connection, because if this is conquest, then the army/nation conquered, so everything is automatically theirs. Now it can authorize its soldiers to take from the spoils, but essentially everything belongs to the army. As opposed to a case where they are not coming to conquer 94then there is room for individual acquisition, as in some of the opinions regarding the war against Midian. Incidentally, Rashi writes there that they were not suspected of stealing the spoils, implying theft from the nation. From some commentators it emerges that they brought everything to Moses, and afterward 94the movable property was given to them, while the captives were divided.
In other words, when the state does not come to conquer (like Gaza, for example), then one could say that the individual soldier acquires what he finds (presumably the owners have despaired, if they are still alive). But when it comes to conquer, everything belongs to it, including the movable property.