Hilchos Choshen Mishpat

Volume III : Number 4

Lottery For life

Question:

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?

Answer:

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)

Sources:

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 and approval.

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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 presence of all parties involved!