Whoever kidnaps another person transgresses a negative commandment, as Exodus 20:13 states: "Do not steal." This verse is stated in the Ten Commandments and serves as a warning against kidnapping. Similarly, a person who sells a kidnapped person violates a negative commandment, for this is included in the adjuration, Leviticus 25:42: "Do not sell him in the manner a servant is sold." These two transgressions are not punished by lashing, because they involve capital punishment, as Deuteronomy 24:7 states: "When a person is found stealing one of his brethren... that thief shall die." He is to be executed by strangulation.
A kidnapper is not liable for capital punishment unless he kidnaps a Jewish person, brings him into the kidnapper's own domain, makes use of him, and then sells him to others, as Deuteronomy, ibid. states: "And he makes use of him, and sells him." Even if he makes use of his services for a minor matter, not worth a p'rutah - e.g., he leaned on him or used him as a shield, even if the abducted person was asleep at that time - the kidnapper is considered to have made use of him.
⛓️ Kidnapping Is Capital
Kidnapping violates a Torah prohibition and incurs the death penalty — but only if the kidnapper takes a Jewish person into his domain, makes use of him, and sells him. All three conditions must be met. Kidnapping a gentile or a Canaanite servant does not carry capital punishment, nor does kidnapping without use or sale.
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Partial Conditions — When Capital Penalty Does Not Apply
If the kidnapper kidnapped a person, made use of him, and sold him without taking the abducted person from his own domain and bringing him into the kidnapper's domain, he is not liable for capital punishment. Similarly, he is not liable for capital punishment if he kidnapped him, brought him into the kidnapper's domain, made use of him, and did not sell him, or sold him before he made use of him. Similarly, if the kidnapper made use of the abducted person, but sold him to one of the abducted person's relatives - e.g., he sold him to his father or his brother - he is not liable for capital punishment. For the above verse mentions "stealing... of his brethren." Implied is that the abducted person must be separated from his brothers and relatives through this sale. Similarly, if the kidnapper kidnapped the abducted person, made use of him, and sold him - all of this while the abducted person was sleeping, the kidnapper is not liable for capital punishment.
Similarly, if he kidnapped a pregnant woman and sold only her offspring - i.e., he made an agreement with the purchaser that he retained possession of the woman, and the purchaser is entitled only to her offspring, he is not liable.
The following individuals are not liable for capital punishment: a person who kidnaps his son or a brother who is below majority, a guardian who kidnaps the orphans who are in his trust, a house-owner who kidnaps one of the members of his household, and a teacher who kidnaps one of the students studying under him. This applies even if the kidnapper makes use of and sells the abducted person. This is derived from the exegesis of Exodus 21:16: "And he is found in his hand." This excludes those who are constantly found in their hand.
📋 Three Conditions Required
If the kidnapper sold the person without first making use of him, or sold only the offspring of a kidnapped pregnant woman without selling the mother, capital punishment does not apply. A parent who kidnaps his own child or an adult child who kidnaps a parent is also exempt from capital punishment, though the act remains prohibited. Both male and female kidnappers are equally liable when all conditions are met.
A kidnapper - either a male or a female - is liable for capital punishment regardless of whether he kidnaps an adult or a one-day-old infant - provided the pregnancy was full-term - and regardless of whether the abducted person was male or female. This is implied by the above verse, which mentions "kidnapping a soul." It makes no difference if one kidnaps a native-born Israelite, a convert or a freed Canaanite servant, for the above verse states: "one of his brethren." And the above are "our brothers," related by the bond of the Torah and its mitzvot. One is not, however, liable for capital punishment for kidnapping a Canaanite servant or a servant who has been freed only partially.
When a person breaks into a home - whether at night or during the day - license is granted to kill him. If either the homeowner or another person kills him, they are not liable. The license to kill him applies both on the Sabbath and during the week; one may kill in any possible manner. This is all implied by Exodus 22:1, which literally reads: "He has no blood."
The license mentioned above applies to a thief caught breaking in or one caught on a person's roof, courtyard or enclosed area, whether during the day or during the night. Why does the Torah mention "breaking in," because it is the general practice for thieves to break in at night.
🔓 Breaking In
A person who breaks into a home — by day or night — may be killed by the homeowner. The rationale: the burglar knows the homeowner may resist and has effectively forfeited his life by deciding to proceed anyway. A thief caught on a roof, courtyard, or enclosure is also subject to this rule. The license applies only to the act of breaking in — not after the thief has fled.
Why did the Torah permit the blood of such a thief to be shed, although he is only attempting to steal money? Because it is an accepted presumption that if the house-owner arises and attempts to prevent the thief from stealing, the thief will slay him. And thus the thief entering his colleague's house to steal is in effect a pursuer seeking to kill his colleague. Therefore, he should be killed, whether he is an adult or a minor, or a man or a woman.
If it is clear to the house-owner that the thief who breaks in will not kill him and instead is only seeking financial gain, it is forbidden to kill the thief. If the house-owner kills him, the house-owner is consi- dered to be a murderer. This is alluded to by Exodus 22:2, which states: "If the sun shines upon him..." - i.e., if it is as clear to you as the sun that he is at peace with you, do not kill him. Therefore, a father who breaks into his son's home should not be killed. But a son who breaks into his father's home may be killed.
Different rules apply with regard to a thief who stole and departed, or one who did not steal, but was caught leaving the tunnel through which he entered the home. Since he turned his back on the house and is no longer intent on killing its owner, he may not be slain. Similarly, if he is surrounded by other people, or by witnesses, he may not be killed, even if he is still located within the domain which he broke into. Needless to say, if he is brought to the court he may not be killed.
Similarly, a person who breaks into a garden, a field, a pen or a corral may not be killed, for the prevailing presumption is that he came merely to steal money, for generally the owners are not found in such places.
Whenever license is not granted to kill a thief, we should remove stones from an avalanche that fell upon him on the Sabbath. If he destroyed utensils while inside the house, he is liable for the damages. When, however, license is granted to kill a person, and he broke utensils while in the home, he is not liable for the damages, as explained above. This concludes "The Laws of Theft" with God's help.
⛔ When Killing Is Forbidden
If the homeowner knows with certainty the burglar will not harm him — e.g., it is clearly his own father — he may not kill him. Once the thief has stolen and departed, the license to kill expires; pursuing and killing a fleeing thief is murder. Breaking into a garden or field does not grant killing rights, as no life-threat is implied. Stones from a collapse that trap a burglar must be removed to save his life.
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🎓 Key Principles
Chapter 9
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Kidnapping Requires Three Acts Capital punishment for kidnapping requires the abductor to take, use, and sell a Jewish person — any one of these conditions missing and the death penalty does not apply.
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The Burglar Forfeits His Right to Life Torah permits killing a burglar not because he is evil, but because by breaking in he has implicitly accepted that the homeowner may kill him in self-defense.
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License Ends When Threat Ends The permission to kill a burglar is limited to the act of breaking in — once the thief flees with stolen property, the danger has passed and killing becomes murder.
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Even a Burglar's Life Has Value Torah law requires removing rubble to save a trapped burglar's life — the license to kill is narrow and context-specific, not a general devaluation of the thief's humanity.