Hilchos Choshen Mishpat
Volume III : Number 4
Lottery For life
What are the Halachos regarding lotteries done to determine who should
live and who should die? Are the results of such lotteries binding on all
participants? Was the drawing that was done with Yonah HaNavi (Yonah 1:7)
by the sailors on his boat, to determine who should be cast off to calm
the storm, done according to the Torah?
- A. If two people are in a life-threatening situation, and a doctor,
rescue worker or lifeguard (or anyone else) is only able to save one of
them, he is permitted to make this decision based on a lottery.
B. If terrorists have taken hostages and are demanding that one of the
hostages be given over to them to be killed, and the rest will be set
free, the hostages are not permitted to hand one person over, even if
they will all die as a result of this. This is forbidden even if the
hostages made a lottery many times to decide who should be given over,
and it always came out to indicate the same person. The person selected
is not bound by the results of the lottery, even if he obligated himself
with a Kinyan (formal Halachic commitment) to abide by the results.
C. The lottery drawn in the incident in Yonah that resulted in his being
cast into the ocean was actually binding according to the laws of the
Torah, as we will explain below. However, a person should not compare
this incident to any other life-threatening situation in any way. (1)
The Halachic basis of a lottery is explained in the Gemara in Bava
Basra (106b). It states there that since each entrant receives the
benefit of the fact that the other entrants obligate themselves to be
bound by the results, even if it is to their detriment, he is willing
to commit himself to the outcome. In other words, for a lottery to be
Halachically effective, each party must be Mochel (forgive) his own
property rights to the possession of the other entrants, in the event
that he loses. It follows that this only applies to things that a
person is capable of giving up his rights in according to Halacha,
such as ownership rights in a property or item, or even an appointment
in an organization or government that he may be entitled to. These may
be disbursed with a lottery, based on the above rationale.
However, a person has no rights to his body and soul, and is Biblically
forbidden to commit suicide (Beraishis 9:5). Therefore, he can not
"forgive his life". In the situation discussed in Answer B, since the
person is not deserving of death according to the Torah, the lottery
obviously can not obligate an innocent person to die. Even if he accepted
on himself to be bound by the results, his soul is not his to "forgive".
Volunteering to be the one to die is Halachically equivalent of offering
that someone else die, and therefore the Halacha is as stated in the
Talmud Yerushalmi (Terumos, end of Perek 8), and the Rambam (Hilchos
Yesodei HaTorah 5:5), that they must all die rather than give over one of
the members of the group to the terrorists.
If the terrorists are demanding a specific person, not to be determined
by lottery, this is discussed in the Shulchan Oruch (Yoreh De'ah 157:1),
and in the commentary of the Ta"z there (1). In this case there are
opinions that the requested person may be given over, since ultimately he
will die anyway, and refraining from doing so will merely extend his life
for a few hours (Chayei Sha'ah) at the expense of the other's lives. In
our case, where the person to be given over is to be determined by the
group, all agree that the group, or even the victim, have no right to
make such a determination, and must be ready to give up their own lives
rather than give an innocent person over to certain death.
We do find in the Torah a number of instances where lotteries were cast
to determine who should die. We find this regarding Achan (Yehoshua 7:8),
and regarding Yehonason the son of Shaul HaMelech (Shmuel I 14:42).
However, we may not learn anything from these instances. First of all,
both of those lotteries were done with direct divine participation,
through use of the Urim V'Tumim. The only way that they realized that
there was something wrong was because Hashem would no longer respond to
them through the Urim V'Tumim, thus indicating that they must take steps
to rout out the sins that had occurred in their midst! Additionally, the
Rambam (Hilchos Sanhedrin 18:6) states that Yehoshua never would have put
Achan to death, if he himself had not confessed to his sin. Although we
usually will not punish someone who confesses to his sin without
witnesses testifying, the Rambam there explains that in the case of Achan
there was a Hora'as Sha'ah (temporary ruling) to do so. Similarly,
regarding Yehonason, the lottery conducted by Shaul HaMelech was to
determine who had transgressed the ban on eating that Shaul had made, but
it was Yehonason's confession that actually incriminated him. Had
Yehonason never confessed, Shaul HaMelech would never have been able to
sentence him to death based on the results of the lottery. There too, it
was Hora'as Sha'ah to kill someone based on their own confession, as
stated in the Kenesses HaGedolah (Choshen Mishpat 173:3)
Regarding the case of Yonah, we have an entirely different set of
circumstances. The punishment for a Navi (prophet) who refuses to divulge
a prophecy given by Hashem to instruct others (Kovesh Nevuaso) is "death
in the hands of Heaven" (Misa B'Yedei Shomayim), as is stated in the
Gemara in Sanhedrin (89a), and in the Rambam (Hilchos Yesodei HaTorah
9:3). Yonah was fully aware that he deserved to die. Once the storm
started, Yonah knew that this was Hashem's way of carrying out his death
sentence, as is explained in Pirka D'Rabbi Eliezer (Perek 10), and in the
commentary of the Rada"l there. Proof of this was from the fact that the
storm only affected the boat that he was on, other passing boats were
totally unaffected by the storm. Additionally, when the sailors lowered
Yonah into the water up to his neck the waters became peaceful, and when
the pulled him back into the boat they became tempestuous again. This
clearly indicated to all that there was something miraculous going on
here, a change in the natural order commanded by Hashem. Therefore, he
was cast into the ocean by the sailors based on this realization and
confession of Yonah that he was so deserving, and not based on the
results of the lottery.
In the case discussed in Answer A, when a rescue worker makes a lottery
to determine who to save, he is not doing so to figure out who should
die, rather to do the opposite, to determine which victim to save. The
other victim is not being actively killed, rather is being left up to the
mercy of Hashem in a passive manner. Therefore, this is a valid way to
determine who should be saved.
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
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