Stealing To Save Someone's Life
Stealing To Save Someone's Life
by Charles J. Harary, Esq.
Mr. Harary is associated with the law firm of Davis, Polk & Wardwell
To what extent can a person go to save a life? Can he steal? Can he destroy the property of another? If so, what is he liable for? Must he compensate the owner of the property? Consider the following famous scenarios:
1. "A" is stranded in a remote area by an unexpected blizzard. He breaks into an unoccupied cabin and waits for three days until the storm abates and he may safely leave. During that time, the backpacker consumes the food stocks in the cabin and breaks up his unknown benefactor's furniture, burning it in the fireplace to keep warm.1
2. "H," a diabetic, loses his insulin in an automobile accident. Before "H" lapses into a coma, he rushes to the house of "C," another diabetic. "C" is not at home, but somehow "H" manages to get into her house. After first assuring himself that he has left "C" enough insulin for her own daily dosage, "H" takes the insulin he needs to survive.2
I.THE APPROACH OF JEWISH LAW
A. Saving one’s own life
God, through the words of the Torah, places utmost importance on the value of life. In Vayikra, the verse states: "ushmartem et chukotay ve’et mishpatai asher ya’ase otam ha’adam, vechai bahem, ani hashem."3 You shall observe my decrees and my laws that each man shall carry out and by which he shall live, I am God. This verse teaches us that the commandments were not meant to take precedence over human life. If the observance or the performance of a Torah law would create a risk to a human life, then preservation of that life should take precedence over the observance of that Torah law.
The Gemara in Sanhedrin4 rules on the basis of this verse that if someone is offered the ultimatum to violate one of the prohibitions in the Torah or be killed, that person has the duty to violate that law and save his life. This rule applies to all the prohibitions in the Torah with three exceptions. The three exceptions are the prohibitions of idol worship, illicit sexual relations and murder. Although the Torah specifically says "vechai bahem," if a person would be given the ultimatum to violate one of these three transgressions or be killed, he must refuse to violate the prohibition and sacrifice his own life.
The same Gemara in Sanhedrin,5 describes a case where a person being pursued destroys the property of another in effort to save his own life. Rava rules that if the property belongs to the pursuer, then the pursued is exempt from compensating the damage. However, if the person being pursued destroys the property belonging to a third party, he is liable for the damage. We see from this Gemara that it is permissible to destroy another’s property to save your own life, provided that you compensate the owner of the property.
It seems from the pasuk "vechai bahem" and from the Gemara in Sanhedrin that only the three major transgressions take precedence over saving one’s life; all other laws may be violated for pikuach nefesh. Since stealing or destroying property is not one of the three exceptions to the rule of "vechai bahem," it would seem obvious that one should steal and destroy property rather than die. The Raavad in fact rules this way.6
Despite the seeming clarity, there are sources that indicate that one may not steal even if it is for pikuach nefesh. The Binyon Tzion, Rav Yaakov Ettlinger, brings two sources that show authorities of the opinion that it is forbidden for a person to steal even if his life depends on it.7
The first source is a Gemara in Bava Kamma8 that relates a story from Sefer Shmuel about King David.9 King David was fighting the Philistines when he became very thirsty. He said "if only someone could give me water to drink from the well of Bethlehem which is in the city of the gate." Upon hearing this, three of David’s men broke through the gate and retrieved water. Before drinking, David sent a question to the Sanhedrin, asking permission to drink the water, to which they responded in the negative. The Gemara understands the passage to be speaking of David’s wish for halachic guidance. The "mayim" being referred to was not physical water but the waters of torah. According to R’ Huna, the question David was asking was whether he was permitted to destroy the property of another for pikuach nefesh. David and his army were in the middle of a barley field where the Philistines were hiding. He wanted to torch the field so that the Philistines would retreat and thereby avoid an ambush on his army. The problem was that the barley field belonged to another Jew. David inquired if he could save himself and his army by sacrificing the property of another. The Gemara states that the Sanhedrin sent him back a ruling that it was forbidden to destroy the property of another to save his life, however since he is king, he has the power to do what he wants with the property of his people.10
From this Gemara a conflict arises between Rashi and Tosafos. Tosafos maintains that David was not asking the Sanhedrin if property destruction was permitted to save a life, because that was obviously permitted. David was aware of the rule that when there is a possible danger to life, one may transgress any sin in order to escape the danger, with the exceptions of idolatry, forbidden relations and murder.11 Thus, one is clearly allowed to destroy someone else’s property in order to remove a threat to life. David’s question was whether he was liable to compensate the owner if he burnt the field. The Sanhedrin responded that it was forbidden to burn the property without compensating the owner. Tosafos further explains that the reason this rule is stated in the gemara in terms of a prohibition (It is prohibited for a person to save himself…) is to imply a caveat where there is another way to save oneself that does not entail the destruction of another’s property, one is indeed prohibited from destroying that property.12
The Rosh13 agrees with Tosafos and states that the Gemara never contemplated whether it was forbidden to save the life of the Jewish army at the expense of someone else’s crops. Such a ruling was obvious since nothing stands in the way of pikuach nefesh except the three cardinal sins. David was inquiring about compensation to which the Sanhedrin responded was obligatory.
The Binyon Tzion states that Rashi disagrees with Tosafos’ understanding of the Gemara and maintains that the Gemara should be interpreted literally.14 King David asked whether he could burn the field to save his soldiers, which the Sanhedrin prohibited. According to Rashi, a person is not allowed to steal or damage another person’s property even under threat of death and even if one will repay the loss. Therefore it is Rashi’s opinion that one may not steal even if it is for pikuach nefesh.
The second source that the Binyon Tzion discusses is a Gemara in Kesubos,15 that describes a scenario where a witness is given the ultimate to sign a false note, which will award money to an undeserving party, or be killed. Rav Chisda says that Rav Meir rules that in such a case one should allow himself to be killed rather than sign the note since signing the false note would be stealing. Rava disagrees with the view of Rav Chisda and rules that the witness may sign the note since nothing stands in the way of mortal danger other than the three cardinal sins, which stealing is not a part of. The Rambam states that Rav Chisda’s interpretation of Rav Meir is correct, and brings a Braisa Kitzonis (excluded beraisa) to show that R’Meir adds theft to the list of the cardinal sins holding that stealing is a form of killing. Additionally, the Shitta Mekubetzes in Kesubos16 quotes from the Rambam that the question of whether or not stealing should be the fourth of the cardinal sins may be a matter of dispute among the Tanaim.
In addition, there are sources that seem to imply that stealing is forbidden even for pikuach nefesh. Meseches Yoma17 records a story where a Tanna stole a loaf of bread from a farmer in order to save his life, and was rebuked for doing so. In Bava Kamma18 there is a case where the Rabbis objected to a person keeping in his possession an animal that grazed other people’s property, thereby stealing from others even though the animal was needed to save the owner’s life. The Yershalmi in Avoda Zara19 implies that stealing is equal to the three cardinal sins of Judaism. Forcing someone to steal is like forcing him to kill. Since one cannot kill to save a life, one cannot steal either. The Beraisa in Meseches Semachos20 compares one who steals to one who murders and worships idols; the Vilna Goan21 compares a thief to an adulterer and a violator of Shabbos. From these sources, we can see that although theft is not formally on the list of cardinal sins, there are authorities that believe that theft is similar enough to murder, adultery and idolatry that it is forbidden to transgress even at the expense for the sake of pikuach nefesh.
Despite these sources, the halacha follows the views that one can steal for pikuach nefesh, but only on the condition that the property be returned or the owner compensated for the property’s value.22 The Shulchan Aruch23 states that, except for idolatry, illicit relations and murder, a person is permitted to transgress all the sins in the Torah rather than be killed. Therefore, if a person’s life is in danger and he must steal to save himself, he can do so. However, he must have the specific intention to pay back the owner. The Rambam24 rules that if a person commands a Jew to transgress one of the commandments or be killed, he should transgress rather than be killed. He learns this rule from the pasuk "vechai bahem." Moreover, if a person is in this situation and chooses to die, he is guilty on his life.25 The Rambam applies the law to all commandments except idolatry, illicit relations and murder.26
In conclusion, the dominant view in Jewish law follows the Shulchan Aruch27 and the Rambam,28 which allows a person to steal or damage property of another to save his own life. Thus, one may break in to the house of another, or steal insulin if that was necessary to save his life. However, such a person must compensate the owner of the property.29
B. Saving the life of another
Saving the life of another Jew takes precedence over any monetary interest. The Torah commands, "lo ta’amod al dam re’echa," 30 "thou shall not stand idly by the blood of they neighbor." This verse obligates all Jews to be Good Samaritans by commanding them to rescue another Jew in distress. This obligation is so fundamental that a person must go to any extent necessary in order to save the life of a fellow Jew.31 Refusing to do so is considered a transgression.32 The mitzvah of saving another is so important, that the Rabbis enacted a law exempting the rescuer from punishment resulting from any tort committed in the course of the rescue. The basic law of torts in halacha is that man is always forewarned and hence liable for damages whether he acts inadvertently or willfully, under coercion or voluntarily.33
The exception is for a rescuer, for a rescuer is exempt from the damages he causes during his attempted rescue. According to the Rambam, if one chases after the pursuer in order to rescue the pursued, and he breaks objects belonging to the pursuer or to anyone else, he is exempt.34 The Rambam explains that this rule does not conform with the usual biblical law but is a special enactment by the Rabbis in order to prevent people from refraining to save others or being too careful during their rescue for fear of having to compensate for any damages done. In Bava Kamma,35 Rabba states that although this rule seems to be violating the usually strict tort law, one can justify this leniency for the public interest for if this rule would not exist, no one would put himself out to rescue another from the hands of the pursuer.
II.THE APPROACH OF U.S. LAW
Due to the unique aspect of this legal issue relating to whether one can steal or destroy property in order to save life, I included a broader view of different laws relating to this topic. This section will review (i) American case law; (ii) English case law; (iii) Admiralty law and (iv) the Restatements, in order to fully address this topic.
A. American Case Law
In discussing the justifiability of destroying property in order to save life, the starting point invariably begins with Vincent v. Lake Erie Transportation Co.,36 a case decided by the Supreme Court of Minnesota in 1910. In Vincent, plaintiff owned a wharf in which ships docked to unload cargo. Defendants owned a steamship that docked at plaintiffs’ wharf to unload.37 During the unloading process a storm developed which, by the time the unloading process was completed, was producing winds of fifty miles per hour.38 The storm continued to increase in intensity throughout the night.39 After defendants discharged all the cargo, plaintiff signaled for a tug to be cut loose from the dock. However, due to the severity of the storm, no tug could be obtained.40 In the course of keeping fast to the dock, the wind and waves struck the steamship with such force "that she was constantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500."41 Plaintiffs sued for the damage to the dock, and the court found in their favor. In the opinion, the court stated that although defendants were justified in not attempting to leave the dock during the storm,42 they were responsible to the dock owners to the extent of the injury inflicted.43 The court stated in dicta,
"theologians hold that a starving man, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligations would not be upon such a person to pay the value of the property so taken when he became able to do so. And so public necessity may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made."44
The dicta in Vincent supports the position that although the law allows a person to sacrifice the property of another to save his life, an issue not involved in Vincent,45 he must compensate the owner for such property compensation,46 even if one is not at fault in creating the life-threatening situation.47
Another major case dealing with this issue is Ploof v. Putnam.48 Ploof was decided by the Supreme Court of Vermont only two years prior to Vincent. In Ploof, defendant was the owner of a dock attached to an island. Plaintiffs, a husband, wife and two minor children, were sailing on the lake when a storm arose, placing them in great danger.49 Whereupon, "to save these from destruction or injury" plaintiffs were compelled to secure the boat to defendant's dock.50 After plaintiff secured the boat, defendant sent his servant to release plaintiffs’ boat that was driven upon the shore by the storm. As a result, plaintiffs’ boat was destroyed and the plaintiffs sustained injuries." 51 Plaintiffs sued defendant for trespass (i.e., battery) and trespass on the case (i.e., negligence).52 The court found for the plaintiff and held that a landowner cannot prevent someone from trespassing to save his life. The court places a duty on the landowner to fade away in such privileged and necessary conditions. The judge awarded plaintiff damages for losses suffered, and stated that a condition of that necessity justifies entries upon land and interferences with personal property that will otherwise be considered trespass.53 The court reasoned by analogy that since the law allows trespass to save chattels, then surely trespass to save human life is permissible. The court ruled that one may trespass onto the property or sacrifice the personal property of another to save the his life or the lives of his fellows.54
B. English Case Law
The primary case cited in Ploof was Mouse's Case,55 an English case decided in King's Bench in 1609. In Mouse's Case, the personal property of the plaintiff had been thrown overboard by a fellow passenger to lighten a barge that was in danger of sinking.56 The plaintiff subsequently brought an action in trespass against the passenger who had jettisoned his property.57 The court non-suited the plaintiff and declared that, "for the safety of the lives of passengers ... it is lawful for any passenger to cast the things out of the barge."58 The court added that the owners would have a remedy against the ferryman for overloading if they had overloaded the barge. However if "the danger accrued only by the act of God, as by tempest, no default being in the ferryman, everyone ought to bear his loss for the safeguard and life of a man."59
C. Admiralty Law
The principle that property may be destroyed to save human life is recognized in United States admiralty law as well. In modern times, if the circumstances involved in Mouse's Case had arisen within the admiralty jurisdiction,60 all of the cargo and the vessel itself would have been assessed a general average contribution to pay for the portion of the cargo that was jettisoned, but no contribution would have been assessed against those whose lives were saved.61
In summary, the very few cases addressing the issue have unanimously held that property may be destroyed when necessary to save human life. These cases have also held that no compensation is payable for having done so, if the person who destroys the property was not at fault in creating the life-threatening danger which necessitated the destruction of property. Nevertheless, the dicta in Vincent that required such compensation has affected the Restatement of Torts.
D. The Restatements
There are a number of provisions in the Restatement of Torts, (1934)62 and the Restatement Second of Torts (1965)63 that seem to support the position that one may sacrifice personal property of another to save his own life but he must compensate the owners of the property afterward. In Section 197 of both the original Restatement and the Restatement Second, the Restatement takes the position that one is privileged to enter the land of another in order to prevent serious harm to the life, land or chattel of oneself or others.64 A person who enters under this privilege, however, must pay compensation for any damages.65
In Section 263, the Restatement deals with trespass and conversion of chattels. The Restatement limits the privilege to situations in which chattels were destroyed or used to save life or to avoid serious bodily harm66 and takes no position as to whether one is authorized to take a chattel over the objection of its owner.67 Section 263 of the Restatement (Second) not only extends the privilege to cover the destruction or use of chattels to save property, but also permits the taking of property even if its possessor objects. 68 The person destroying or using the property is, however, liable for any harm done.69 The reason given by the drafters of both the Restatement and the Restatement (Second) for recognizing a "privilege" to destroy or use others' chattels to save one's property is the same; to take from the possessor of the chattel "the privilege ... to use reasonable force to defend his exclusive possession."70 The Reporter's notes to the Restatement Second however admits that "there is scarcely any authority to support the principle stated in this Section, and it must rest largely upon the analogy to the corresponding privilege to interfere with the exclusive possession of land, stated in 197."71 There then follows a "see" citation72 to Mouse's Case that, as we have seen, held that no compensation is due when property is destroyed to save life.73 The Restatements fail to cite any cases in which compensation was actually awarded when property was destroyed in order to save life.
A case decided subsequent to the publication of the Restatement Second, however, does offer some support for the position taken by the two Restatements. In Ruiz v. Forman,74 a driver swerved to avoid an oncoming vehicle and entered the plaintiff's land, causing $270 worth of property damage.75 The jury found for the defendant but the trial court granted the plaintiff's motion for judgment notwithstanding the verdict.76 When the case reached the appellate court, the parties stipulated that the defendant had intentionally entered the plaintiff's land.77 If that were so, the court declared, the case would clearly come within the ambit of section 197 of the Restatement (Second) as a privileged entry onto the property of another.78 The "culpable or moral fault, if any, is said to be attributed to the actor's refusal to pay for the damage done in the course of serving his own interests rather than in what he did," while "the legal fault centers around the notion that there was an intentional invasion of a legally protected interest."79 These considerations "would afford a basis for a simple affirmance of the case."80 It is interesting that the only case that clearly echoes the Restatement Second, is one that cites the Restatement Second as its sole authority.
In conclusion, the issue is not whether a person can steal or destroy property to save his life or the life of others since it is accepted in American law that such an action is permissible. The issue is whether such a person must compensate the owner if he did not create the danger. There are few cases directly on point but the weight of such cases conflict with the position taken by sections 197 and 263 of the Restatements.81 These cases and the doctrines of admiralty law support the contention that when neither the actor nor those whose lives are saved are legally at fault for placing themselves in the perilous position from which they can only be saved by destroying the property of another, they bear no legal liability for destroying that property.
F.Saving the life of another
American law, unlike Jewish law, takes a different approach in rescuing others. American law places not duty on a person to save another in danger. Even if one attempts to go beyond the letter of the law and tries to save another in distress, he can be liable for damages caused, even if the person suing is the person he attempted saving.[ Since the law, however, generally permits a person to steal or destroy property to save oneself, it would be logical to assume the same would apply to saving others. On the issue of whether a rescuer would have to compensate the owner of the property. Francis Bohlen asserts that where others' lives, but not one's own, are at stake, property may be destroyed without any corresponding obligation to pay compensation.83 Robert Keeton generally supports the position taken by the Restatements but is skeptical about whether a person who destroys property to save the lives of others has any obligation to pay for the property.84
III.CONTRAST BETWEEN AMERICAN AND JEWISH LAW
American law is similar to Jewish law regarding the issue whether a person can steal or destroy property to save lives. Although the law does seem similar, American law is not as definite as Jewish law. The cases that have created the American legal precedent were cases where the act was approved by society. Trespassing onto land to save yourself during a storm, throwing baggage overboard to save the lives of others are examples of scenarios that the courts have faced in creating such precedent. One wonders what the law would be if the cases that came before the same courts involved situations where society did not agree with the action. Would the law be so forgiving if it involved a homeless person stealing to eat, or a person infected with AIDS stealing medication to live? The precedent, although clear, is weak. Future cases will probably be decided on a case by case basis, and the law will depend on the discretion, and the compassion, of the presiding judge. In contrast, the Jewish law is far more definite. Since Jewish law stems from God, deciphered through the words of the Torah, less discretion is given to presiding authorities. Therefore to a larger extent the issue has been resolved and no matter what the case will be, the law will stay far more constant that American law.
Published on March 13, 2003