Parshas Vayeshev - Kidnapping Yosef

In this weeks sedrah we learn about the brothers kidnapping Yosef and selling him. It seems (see piyut of asarah harugei malchus – Yom Kippur Mussaf) that the brothers were חייב מיתה for doing this; as the possuk says in Mishpatim:
וְגֹנֵב אִישׁ וּמְכָרוֹ וְנִמְצָא בְיָדוֹ מוֹת יוּמָת
“If someone kidnaps a man and sells him and he is found in his hand then the kidnapper will die.”

There is a discussion in the rishonim what the words וְנִמְצָא בְיָדוֹ mean:

Rashi asks, if the captive is sold then how can he still be in the hand of the kidnapper? Rashi explains that the possuk means that the captive was in the hand of the kidnapper before he sold him;
ונמצא בידו - כבר קודם מכירה
“He was in his hand - before he sold him.”

The Ramban asks that, according to Rashi, these words do not tell you anything? Of course you need עדים that the kidnapper held the captive before selling him otherwise you could not execute the kidnapper?

ולא הבינותי זה - אם ללמד שיראוהו עדים בידו קודם המכירה, וכי תעלה על דעתך שיהא זה נהרג עליו עד שיראוהו עדים שגנב ומכר? ודי במה שאמר וגונב איש ומכרו

“I do not understand Rashi – if the possuk is coming to tell you that the עדים have to see him in the possession of the kidnapper before the sale, could you possibly think that the kidnapper would be killed without עדים seeing that he first stole and only then sold the captive? Even if the possuk would only say that the kidnapper sold the captive we would know that we need עדים to testify that the kidnapper first stole and then sold him?”

The Ramban explains that the possuk is telling you that when the kidnapper kidnaps the victim, he has to first being the captive into his רשות, and then, once he sells him, he has to transfer him to the רשות of the buyer. According to the Ramban the possuk means that the captive is found in the hand of the buyer after he has bought him and taken him from the רשות of the kidnapper.

The Maggid Mishna in Rambam, hilchos genevah, Perek 9, halacha 3 explains that the Rambam holds like Rashi, that there is no requirement for the kidnapper to transfer the captive out of his רשות, as long as he sells him he is חייב מיתה – even if the captive is still in his courtyard.

The question then is - how does the Rambam explain the possuk?

The Ohr Someyach is mechadesh that the חיוב מיתה for kidnapping is different to all other חייבי מיתות בית דין. Normally, once the person has been over the issur, he is חייב מיתה and there is nothing he can do to stop this. Even if he does teshuvah, he is still חייב מיתה. However, says the Ohr Someach, in the case of kidnapping if the kidnapper frees the captive before עדים come to beis din, he is not חייב מיתה.

The Ohr Someach learns this from Rashi in bava Kamma 68b who says (ד״ה והרי חזרה קרן לבעלים):

וכפל לא מחייב אלא כשנמצאת ביד גנב שבאו עדים כדכתיב אם המצא תמצא בידו

“A ganav is only chayav kephel if the stolen object was in the possession of the ganav when the עדים came, as the possuk says אם המצא תמצא בידו – ‘if the stolen object is found in his hand’.”

The Ohr Someach explains that because the chiyuv for kidnapping is a chiyuv for stealing, the same halachos that apply to a ganav also apply to a kidnapper. Just as a ganav is only chayav if he is still in possession of the stolen object when the עדים come, so too a kidnapper is only חייב מיתה if he (or the purchaser) is still in possession of the captive when עדים come.

With this chiddush, the Ohr Someach transalates the possuk in correct chronological order:
וְגֹנֵב אִישׁ וּמְכָרוֹ וְנִמְצָא בְיָדוֹ מוֹת יוּמָת
“If someone kidnaps a man and sells him, and the captive is found in his hand – then the kidnapper should die.”

The possuk is not talking about what happened at the time of the sale, rather the possuk means that the kidnapper is only chayav if the captive is still in the possession of the purchaser when עדים come.

When the brothers went down to Mitzraim, they went with the intention of freeing Yosef. The medrash relates that they told Yosef that the reason that they went into Mitzraim through separate gates was so that they could find Yosef and redeem him. It comes out according to the Ohr Someach that had they done so not only would they have been done a mitzva by restoring Yosef to Yaakov but they would also not have been חייב מיתה and the asarah harugei malchus would not have been killed.


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