Makos 7b

אונס          שוגג קרוב לאונס       שוגג      שוגג קרוב למזיד      מזיד

1. General introduction.

The obligation to run into the ‘orei miklot’, when causing an accidental death is only when it is a ‘Shogeg’-  (center of the speedometer).

What is the meaning of  Shogeg?

Unintentional 

On the other hand if it purely accidental then it is closer to   אונס and again,  it is not a true Shogeig and there in no need to run to ‘orei Miklo’t.

See more on this below.

neg·li·gence

negləjəns / noun

failure to take proper care in doing something.

“some of these accidents are due to negligence”

2. We discussed the ‘action’ that caused the death. The Torah uses examples of actions:  upwards motion – (potur) or downward motion  – (chayev). It does not talk about any other method.

Obviously, any action that causes death is considered a Shogeg. Such as a straight movement- shooting with a gun or drowning. Also no movement at all such as poisoning  the victim (accidentally).

How to reconcile the Torah’s limited motions (upwards (potur)  or downward (chayev)) versus the other methods is a tough topic which we touched upon.

3. Our Mishna:

כל שבדרך ירידתו גולה

ושלא בדרך ירידתו אינו גולה

Whoever killed inadvertently while he was engaged in a downward motion is exiled;

But if he killed while he was engaged in a motion that was not downward, he is not exiled.

Most Rishonim explain that there is no logic to this. It is a Gezeiras Hakasuv.

The Rambam however applies some logic to this:

“When a person was lifting a barrel with a pulley to bring it up to a roof, and the the rope broke, causing it to fall on a colleague, or a person was climbing up a ladder and fell on a colleague and killed him, the person who caused the death is not liable to be exiled. This is considered to be something beyond his control. For this is not something that is likely to happen, but is rather an extraordinary occurrence.

If, by contrast, a person was lowering a barrel with a rope and it fell on a colleague and killed him, or he was descending on a ladder and fell on a colleague, or he was shining with a polisher and it fell on a colleague and killed him, the person responsible should be exiled.

This is derived from Numbers 35:23, which states: “And it fell upon him, and he died,” implying that the article must descend in an ordinary manner. “An object that descends frequently causes damage. Indeed, it is likely that this will happen, for the nature of a heavy object is to descend downward speedily. Therefore, if the person did not hurry and act appropriately and properly while the object descended, he is responsible and should be exiled. The same applies in other analogous situations.”. 

We discussed this logical explanation and perhaps why others reject it.

4. Moshe Rosenfeld has this insightful comment:

So when pulling a rope up (or climbing up), it is less likely to tear or break, (“peleh hu”) as opposed to lowering a rope where it apparently is more likely to tear.

Doesn’t it make more logical sense to say that as you pull a rope from above, you are exerting more force on the rope and it is therefore more likely to tear, than when lowering the rope?

Furthermore, at the end of 12:

 שהרי דרך נפילה מצוי ברוב העתים להזיק ודבר קרוב הוא להיות. שהרי טבע הכבד לירד למטה במהרה

 So at first glance, it seems the Rambam is saying that heavier items fall faster.

This brings to mind the well-established theory that heavier items do not fall faster (see the famous experiment by Galileo (1590) at the tower of Pisa, [which may have never actually happened, but doesn’t make much difference] http://en.wikipedia.org/wiki/Galileo’s_Leaning_Tower_of_Pisa_experiment), this theory was ultimately clarified by Einstein’s general theory of relativity, (1916) and is more or less ​still regarded as fact today.

(Getting into the nitty gritty, based on the science referenced above – a heavier stone and a lighter-weight stone dropped from the same height would hit the ground at the same time, because they both have the same rate of acceleration, however, the gravity exerts a stronger force on the heavier stone. Perhaps that is what the Rambam meant by teva hakoveid…b’meheira; heavy items fall fast (because they have more force of gravity). I don’t know.

Shuv matzasi a different understanding of what the Rambam meant:

http://www.ybm.org.il/hebrew/LessonArticle.aspx?item=3484

if you have time to read it, he also sees more stress on the rope on the way up:

 נמצא שהרגע בו המתיחות היא הגבוהה ביותר זה רגע העלייה של החבית ולכן דרך עלייה זוהי הדרך בה הסיכוי שיקרע החבל הוא הגבוה ביותר. כיוון שבדרך עלייה הסיכוי שיקרע החבל הוא הגבוה ביותר

 רבא סובר שעלינו לבדוק את מידת הזהירות הנדרשת מאדם המעלה חבית לעומת מידת הזהירות הנדרשת מאדם שמורידה. כאשר אדם מעלה חבית הוא מתנגד לכח המשיכה ואם יעזוב את החבית היא תיפול, לכן אם הוא לא רוצה לעשות עבודה כפולה הוא ימשוך את החבל בלי להרפות אפילו לרגע. אולם בשעת הורדה יכול המוריד להרשות לעצמו להרפות מהחבל שתרד החבית בכח המשיכה ונמצא שיש יותר סיכוי שתרד החבית בלי שליטתו.

 And then at the end: 

 שהרי טבע הכבד לירד למטה במהרה והואיל ולא זירז עצמו ותיקן מעשיו יפה בשעת ירידה יגלה.” הרמב”ם לא נימק את סיבת החיוב של המוריד בכך שהיה לו לחשוב שיקרע החבל, אלא הטעם שנתן הוא שמאחר ודרך הכבד לירד במהרה צריך המוריד להפנות תשומת לב יתרה ולתקן מעשיו יפה. ואמנם יכולנו לחשוב שהמוריד הוא כפושע מאחר ועליו לשים לב, אך הרמב”ם מדייק ואומר שכל אשמתו היא שלא “זירז עצמו ותיקן מעשיו יפה”, כלומר שעליו לעשות מעבר למה שרגילים העולם להיזהר, זו דרישתה של התורה, ומי שלא נהג כך ציוותה התורה שיגלה.

Thank you Moshe.

5.  We discussed the concept of “Omer Mutar” – someone who does a certain action believing that it is permitted.

In our Gemara we have a Machlokes if someone killed someone thinking that it is permitted. (don’t try this defense in court….)

Rava holds that it is close to being deliberate – the left side of the speedometer.

Abaye holds it is close to being an accident – the right side of the speedometer.

We explained that although Abaye and Rava agree that killer who although murdered does not go into exile, there is a practical difference between their views. If the exemption from exile is due to the act’s being close to deliberate, the killer is still subject to the vengeance of the goel hadam.    If however, the exclusion from exile is because the death was completely accidental or close to that, the killer is not subject to the goel hadam vengeance.

The bottom line is that both Rava and Abaye’s are of the opinion that being  ignorant does not constitute the definition of Shogeg.

Tosfos comments that there is a difference between murder and other sins. Regarding prohibitions (other than murder; for example Shabbos) believing that it is permitted, his act is indeed classified as an “Inadvertent” (Shogeg) one.

But if one committed murder under the belief that it is permitted, his crime is not regarded as “Inadvertent” and cannot receive atonement by going to Galus. Tosofos learns this from the fact that the Torah mentions the word “inadvertent” twice  when discussing murder. Thus, not knowing the prohibition of murder cannot  be considred a true Shogeg.

Some mentioned in the shiur that in modern society a defendant claiming that “I was not aware that killing is prohibited” is basically pleading insanity….

Umesaimim beTOV!

Ksiva Vachasima tova.

Shiur 9/10/14

Makos 7a. (2)

1- The opinion of Rabbi Akiva and Rabbi Tarfon is that “had we been  present in the times of the Sanhedrin, we would have surely invalidated any sentence for execution”.

They would propose that ‘perhaps the murder victim was for all practical purposes already technically “dead” due to a wound (such as a hole in his throat)’.  By bringing up this ‘possibility’ in Beis Din, a verdict to execute a murderer would never occur.

We mentioned the famous question by Rabbeinu Tam based on Meseches Chulin where there is a discussion as to the source that ‘the Torah instructs to rule based on “majority”’.

Obviously the simple source is the fact that the Torah states that in a case of different opinions within the Sanhedrin it needs to follow the majority of votes.

But the Gemara is looking for a source on “statistical majority”, e.g. “most cars are purchased to drive and not for scrap”.

Many suggestions of proof are offered. One is a case similar to Rabbi Akiva’s and Rabbi Tarfon’s reasoning to invalidate all capital punishments.

Namely – how can the Torah state that a murderer is to be put to death when there is a (slight) chance that his victim was about to die anyway due to a hole in his throat? One must conclude that the Torah is of the opinion that we must follow statistics and can assume (even if it leads to putting someone to death) that most people do not have holes in their throats!

Therefore asks Rabbeinu Tam, how could this suggestion (that perhaps the victim was a treifa prior to being killed) invalidate the verdict?

See Tosfos for his answer.

2- The Gemara in Chulin continues that perhaps we can perform an autopsy to determine if indeed the victim was healthy prior to his murder. The Gemara asks that autopsies are prohibited and replies that to perform a needless autopsy is indeed prohibited but this may save the alleged murderer’s life!

Saving a life outweighs everything.

We discussed the 18th century story where doctors performed an autopsy on a Jewish patient to determine the cause of his death. Despite the specific Halachik prohibition on autopsies, this particular Rabbi allowed it basing himself on this Gemara- that ‘savings lives’ (pikuach nefesh)  overrules everything- even autopsies.

He then wrote to the famous Rabbi of Prague, Reb Yechezkel Landau asking his opinion. The response in the letter penned by Reb Yechezkel and published in his famous magnum opus “Noda BiYehuda”, is the basis for all the resulting discussions to date pertaining to autopsies.

He writes that, true, even a ‘sofek’ pikuach nefesh  stands above all (but 3 Mitzvos) and if there was indeed a ‘patient right in front of us’ that would benefit from this particular autopsy then not only would it be permitted – it would me mandatory to go ahead and do it.

The problem, Reb Yechezkel writes, is that there was/is no ‘patient right in front of us’. Autopsies for the study of science are not considered a ‘sofek’ pikuach nefesh.

We spoke about the situation today where one can travel across the globe within hours.

Are all sick people technically a ‘patient right in front of us’?

Should autopsies to be permitted today?

There is a lot more to this.

Stay healthy. Say Lechaim.

3- We spoke about Reb Yakov Weil, known as the Mahariv. He writes about a tragic case of a person that sent his messengers on an errand and unfortunately the messenger was killed on the way. The sender asked Reb Yaakov if he needs to go to ‘golus’. Surely it does not mean “orei miklot’ which do not exist today. The question was about going into ‘golus’ as a penitence/teshuva – kapora.

His opinion was that the sender does indeed need kapora and he should go to ‘golus’.

This is brought down in the Mogen Avrohom end of Laws of Rosh Hashanah, http://beta.hebrewbooks.org/tursa.aspx?a=oc_x2965

Many others argue on his ruling, including the ‘original’ Tzemach Tzedek.  (Not the 3rd Rebbe.)

Who is the original and who is the latter Tzemach Tzedek?

See here. http://he.wikipedia.org/wiki/%D7%9E%D7%A0%D7%97%D7%9D_%D7%9E%D7%A0%D7%93%D7%9C_%D7%A7%D7%A8%D7%95%D7%9B%D7%9E%D7%9C

In English http://en.wikipedia.org/wiki/Menachem_Mendel_Krochmal

His name was also Reb Menachem Mendel.  Family name was Krochmal. He named his Sefer Tzemach Tzedek since the numerical value of his name is the same as Tzemach Tzedek.

In Halocho seforim he is referred to as “the old Tzemach Tzedek”. As opposed to the Rebbe the Tzemach Tzedek who is referred to as the “new Tzemach Tzedek”.

Thanks to Eli Chitrik

Makos 7a

1. In regard to the discussion of whether or not a guarantor on a loan can be a witness on the loan which he guaranteed – if he is considered to have a conflict of interest or not; we mentioned a famous argument ​among the Rishonim. Namely the Ra’vad, the Raza”h and the Ramban.

​ ​The Ri”f (See here in English Hebrew) was considered the foremost Posek of his generation and it was inconceivable for a time anyone to argue with his way of learning.

That all changed until the Raza”h, R Zerachiah halevi, (See here in English Hebrew) wrote his book The Maor

(Maor Hakotton on Berachos and Seder Moed, and Maor Hagodal on Seder Nashim and Nizikin. He is commonly known as the Baal Hamoer) which is basically a book of objections, consistently raising issues to the way the Rif decides Halocho.

This book cause a major uproar in the Jewish world, some even say that he was forced to leave the city of which he was a Rav at the time.

In order to defend the Rif, the Ramba”n wrote a Sefer called Milcahmos Hashem “The war of Hashem” in which he defends the Rif from the objections of the Rza”h. Just a quick read through the Mlichamos and you will notice one of the sharpest use of language in Rabbinic literature.

2. The Misnah mentioned that R Akiva and R’ Tarfon say “If we were in the time of the Sanhedrin we would have never put anyone to death” this is because they would ask so many questions (more of this next week) that it would be impossible to conclude with a conviction.

R’ Shimon Ben Gamliel objected to this logic saying that it negates the deterrence factor.

We mentioned that  R’ Akiva and R’ Tarfon were indeed in the times and members of the Sanhedrin. What they meant was if they were in the times that the Sanhedrin were still applying the death penalty. As we learned in Sanhedrin they stopped putting people to death 40 years before the Churban Bayis.

On a more humorous note we mentioned that  R’ Akiva and R Tarfon were academics and perhaps had more of a ‘liberal’ view. Therefore they were of the opinion that the death penalty was unnecessary.

R’ Shimon Ben Gamliel, is of the opinion that if we were to follow R Akiva and R’ Tarfon’s of not applying the death sentence it would increase the murder rate.  Why?  Being the Nasie Hador (the president) he was the one who was responsible for ‘keeping the order in town’. Society needs rules and regulation. He thus had more of a conservative view. The death penalty, even if rarely used, was needed for the purpose of maintaining a cohesive and law abiding society.

3. The Gemara states that there is a difference between the commandment for setting up courts in E”Y and in all other places. In E”Y you establish courts in every single province and in every city. However outside of E”Y  you only need to establish courts in every province but not in every city.

Reb Yaakov Emdin (The Yavetz) notes something very funny. From this Gemara comes out that the ​Jews living outside of  E”Y are worse than Goyim which need to set up a בית דין in every city and the Jews need to set up only in every province. Comes out the Goyim have more Chiyuvim?!

(He does note that the Ramaba”m had a different Girsa which would explain this distinction)

​ Conversely this can also be seen as a Ma’le that the Jews need less courts because there is less crime in their areas

More on this next week.