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Bava Basra, 50
BAVA BASRA 50 (27 Iyar) - Dedicated by Gitle Bekelnitzky in honor of the
Yahrzeit of her father, Zev ben Ephraim v'Chaya Krause
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1) EXEMPTING A PERSON FROM A "CHIYUV MISAH" IN A CASE OF A DOUBT
QUESTIONS: The Gemara says that according to Rebbi Yosi, when the owner of
an Eved sells his Eved to another master with the condition that the Eved
will continue to work for him for thirty days, the law of "Yom O Yomayim"
applies to both masters, and thus both masters are exempt from Misah if
either one hits the Eved and he dies from his wound after one full day. The
Gemara says that Rebbi Yosi's reason for exempting both masters is because
he holds that is a doubt whether or not a Kinyan Peros (the rights to the
Eved's service) is like a Kinyan ha'Guf (the ownership of the actual body of
the Eved). Consequently, we cannot determine who the true owner of the Eved
is who should be exempt because of "Yom O Yomayim." Due to this doubt, we
apply the rule "Safek Nefashos l'Hakel" and exempt both masters from Misah.
The RASHBAM explains that the principle of "Safek Nefashos l'Hakel" is
learned from the verse, "v'Hitzilu ha'Edah" -- "and the congregation shall
save" (Bamidbar 35:25), which teaches that Beis Din is obligated to try to
exempt a person from a Chiyuv Misah and not to kill him (Sanhedrin 32b).
This is also the way RASHI explains in Kesuvos (15a) and Bava Kama (44b).
The Gemara there discusses a case in which a person throws a stone into a
group of ten people, half of whom are Jews and half are Nochrim. Even if the
stone kills one of them, the one who threw it is exempt because of "Safek
Nefashos l'Hakel." Rashi explains that we are lenient in a case of a Chiyuv
Misah because of the verse, "v'Hitzilu ha'Edah."
Rashi's source seems to be the Gemara in Pesachim (12a) in which Rebbi
Yehudah says that when two witnesses attempt to have a person put to death,
and one of the witnesses says that the event occurred in the third hour of
the day and the other witness says that it occurred in the fifth hour of the
day, their testimony is accepted. The Gemara explains that it is possible
that the event occurred halfway through the *fourth* hour, and a person is
not so careful to clarify the exact time of an event by more than half an
hour. The witness who says that the event happened in the third hour means
that it happened in the *end* of the third hour (which is the beginning of
the fourth hour), and he is off by just half an hour. The witness who says
that the event happened in the fifth hour means that it happened in the
*beginning* of the fifth hour (which is the end of the fourth hour), and he,
too, is making a mistake of only half an hour. The Gemara asks how can we
accept such testimony in order to put a person to death? We have not
clarified what the true intentions of the witnesses were, and thus we are in
doubt about what they actually meant to say. We cannot put a person to death
out of doubt, because "Safek Nefashos l'Hakel!" The Gemara there adds, "and
the verse says, "v'Hitzilu ha'Edah."
There are a number of questions on the explanation of Rashi and the Rashbam.
(a) Logically, why should it be necessary for Rashi to suggest that the
verse is needed to exempt a person from a Chiyuv Misah? If there is a Safek
if someone should be put to death or not, we certainly should not kill him
mi'Safek, just like we do not do any act in order to fulfill a Safek Chiyuv
when we might be doing an Isur. For example, if a person has a garment which
has a Safek whether it needs Tzitzis or not, and there is linen in the
garment, it is clear that one does *not* put Tzitzis on the garment, because
when there is a Safek Mitzvah (Tzitzis), one certainly does not do a Vadai
Isur (Sha'atnez) in order to fulfill the Safek Mitzvah. Similarly, even if
it might be that this person is supposed to be killed, how can we kill him
out of Safek if, by doing so, we definitely will be doing an act of
Retzichah by killing him? The Safek Mitzvah to put him to death cannot
override the Isur of killing (when there is no Chiyuv)! (KOVETZ SHI'URIM)
(b) There are a number of sources that prove that a person is not punished
when there is a Safek regarding his Chiyuv. That is, besides the logical
reason (as written above), we find that in Dinei Mamonos, monetary matters,
if there is a Safek whether a person is Chayav, Beis Din exempts him.
Certainly, then, when a there is a Safek whether or not a person is Chayav
Misah or Chayav Malkus, Beis Din cannot punished him. Beis Din cannot
execute a punishment mi'Safek! Why, then, do Rashi and the Rashbam find it
necessary to cite the verse of "v'Hitzilu ha'Edah," which applies only to a
Chiyuv Misah, when we find that there is a general rule that Beis Din never
acts on a Safek? (TOSFOS DH Safek Nefashos l'Hakel)
The case of the Gemara in Pesachim (loc. cit.) is not comparable to the case
of our Gemara with regard to these two questions. The Gemara there is
discussing a situation in which we have sufficient testimony to kill the
defendant, and the Gemara is asking, first, why is that considered
sufficient testimony -- perhaps the two witnesses do not mean what we think
they mean. The Gemara then adds that even if we have no reason to assume
that the witnesses do not mean what we think they mean (because we should
not assume that witnesses are liars if there is no reason to do so), we
still should not accept their testimony as long as we possibly can find a
way to prove that they are liars by asking them further questions that might
cause them to contradict each other. This principle is learned from
"v'Hitzilu ha'Edah" which teaches that Beis Din should make every effort, in
cases of Dinei Nefashos, to try to acquit the defendant of the death
penalty.
(c) If it is true that the person who killed would be Chayav Misah out of
doubt, and the only reason he is exempt is because of the verse "v'Hitzilu
ha'Edah," then why will a person who does a Safek Aveirah which is Chayav
*Malkus* be exempt? We find in many Mishnayos that if a person does a Safek
Isur d'Oraisa he cannot be punished with Malkus ("Patur Aval Asur"). The
reason he is exempt is not because of "v'Hitzilu ha'Edah," because that
verse applies only to Dinei Nefashos, cases which are judged with 23 Dayanim
(as we learn from that verse). A case if a Chiyuv Malkus, on the other hand,
can be judged with three Dayanim, according to the Chachamim in Sanhedrin
(2a), and yet we find no dispute about a person who does an act of a Safek
Chiyuv Malkus being exempt from Malkus. Such a person is certainly exempt,
even though the verse of "v'Hitzilu ha'Edah" does not apply! It should be
evident, therefore, that there is another factor exempting a person from
Malkus in a case of a Safek, and, likewise, that factor should exempt a
person from a Chiyuv Misah in a case of a Safek!
ANSWERS:
(a) With regard to our question based on logic (how can Beis Din kill
someone if it is not certain that he is Chayav Misah, when there is an Isur
of Retzichah? Beis Din should avoid the Isur of Retzichah instead of killing
a person mi'Safek), the answer is that if Beis Din rules that a person is
Chayav Misah, then there is no Isur against killing him; Beis Din can decide
whether a person is Chayav Misah, Chayav Malkus, or not Chayav at all. It is
in Beis Din's ability to make the ruling that a person is Chayav Misah or
Chayav Malkus. Once Beis Din makes the ruling, then whether or not the
person actually committed the Aveirah, Beis Din has ruled and the person is
Chayav. The person can be punished and there is no Isur of Lo Tirtzach (not
to kill) or Lo Yosif (not to give Malkus when undeserved), because Beis Din
has ruled that the person must be punished. Hence, there is no Isur of
killing a person opposing the Mitzvah of giving the punishment to the
person. (See AYELES HA'SHACHAR)
(b) That still does not answer, though, *why* Beis Din should rule that a
person is Chayav Misah in a case of a Safek. In the case of Dinei Mamonos,
as Tosfos says, we see that Beis Din does not rule in the case of a Safek.
To the contrary, we see that when Beis Din has a Safek if someone is
obligated to pay or not (even in the case of a Kenas), Beis Din does *not*
obligate him to pay. Why, then, in the case of Dinei Nefashos should Beis
Din punish the person in a case of a Safek?
RAV YOSEF ENGEL (Beis ha'Otzar, Erech Aluf-Yud, #55) and the KOVETZ SHI'URIM
suggest an answer that answers both this question and the previous question.
The Rashbam does not mean to say that we do not kill the master because of
"v'Hitzilu ha'Edah." Rather, he means that "v'Hitzilu ha'Edah" teaches that
when a person's guilt is in question, the verse exempts him from Misah with
certainty. (This is similar to the concept of "Safek Tum'ah b'Reshus
ha'Rabim Tahor" and "Safek Tum'ah b'Reshus ha'Yachid Tamei," which teaches
that the object of a questionable Tum'ah in Reshus ha'Yachid is Tamei not
merely mi'Safek, but it is Vadai Tamei (see Insights to Sotah 28:2).) What
difference does it make, though, whether a person is exempt from Misah
because of a Safek or because of a Vadai? They explain that one difference
would be with regard to the laws of a Shor ha'Niskal. The Mishnah in
Sanhedrin (2a) teaches that a Shor that killed is punished with death only
in a situation in which, had a person killed, the person would be punished
with death, based on such testimony. What would be the Halachah in a case of
a Shor ha'Niskal that is Safek Chayav Misah? If a person is exempt from
Misah in such a situation because his Chiyuv is a Safek, then the animal, in
such a situation, will be killed mi'Safek, because there is no law of
Piku'ach Nefesh to tell us not to kill the animal mi'Safek. If, on the other
hand, a person is exempt from Misah out of *certainty* when his Chiyuv is in
doubt, then the Shor ha'Niskal should also be exempt from Misah, just like a
person is exempt from Misah.
Why, though, does the Rashbam have to mention this Halachah in our Sugya?
RAV YAKOV KAMINETSKY zt'l (in EMES L'YAKOV) suggests that in the Beraisa,
Rebbi Yosi implies that the master who owns an Eved with Kinyan Peros is
exempt in *all* situations, even if he had another Eved which he owned with
a Kinyan ha'Guf (and not Kinyan Peros), and he hit both of his Avadim at the
same time. Had it not been for the Vadai exemption (learned from the verse
of "v'Hitzilu"), he would be Chayav Misah, because he definitely killed one
Eved that was his full Kinyan (even though we do not know which one it is;
see Rashi to Yevamos 101a, DH Chayav). However, Rav Yosef Engel proves that
this is not correct l'Halachah. First, the Gemara in Kerisus (24a) teaches
that when a Shor ha'Niskal is Safek Chayav Misah, it *is* killed. Second,
the Gemara in Sanhedrin (36b) teaches that the law of a Shor ha'Niskal is
similar to the law of the Chiyuv Misah of a person only with regard to the
requirement of being judged by a Beis Din of 23, and not with regard to the
Halachos learned from the verse of "v'Hitzilu ha'Edah." Third, the practical
difference that Rav Yakov Kaminetzky suggests is not clear, because, in that
case, the master has a Vadai Chiyuv Misah and not a Safek Chiyuv Misah, and
thus "v'Hitzilu ha'Edah" should not exempt him. Fourth, it is not clear why
Rashi should mention "v'Hitzilu ha'Edah" in the case of the person who
throws a stone into a group of people; why should Rashi need a Vadai
exemption in that case, when the exemption mi'Safek suffices? Finally, if
this explanation was correct, then the Rashbam and Rashi would have to have
a source for their words that there is a Vadai exemption, and yet we find no
such source.
Therefore, perhaps the answer might be as follows. In a case of Dinei
Nefashos, when Beis Din is not certain whether a person is Chayav, there is
no reason to take the money away from one person and give it to another
person. Why should the other person have more rights than the person who is
losing the money? Since we do not know what to do, Beis Din leaves the money
with the person who is holding it. In contrast, in cases of Dinei Nefashos
and Dinei Malkus, the punishment also serves as a *Kaparah*, an atonement,
for the person. Perhaps even when we are not certain whether the person is
obligated to receive the punishment, he should be given the punishment out
of doubt in order to attain Kaparah. Therefore, Beis Din should rule that he
is Chayav, thereby permitting us to give him the punishment. Indeed, we find
such a concept with regard to Kaparah regarding a person who has a Safek
whether he ate Terumah or not. He is Chayav to separate a Chomesh as
payment, because the Chomesh is a Kaparah (see Tosfos in Kesuvos 30b, DH
Zar). In our case, with regard to punishments, Rashi is learning that Beis
Din can punish a person out of doubt, and it is not like Dinei Mamonos. It
is not clear what Rashi's source for this is, but this nevertheless explains
the difference between Dinei Mamonos and Dinei Nefashos.
It should be noted that we are not discussing a person who might not have
committed a crime. If there is a question whether or not the person did an
Aveirah which obligates him to be punished with Misah, it is clear that we
do not punish him out of doubt, because perhaps he did not sin and he needs
no Kaparah. In our Sugya, the master who killed the Eved certainly did an
Aveirah of Retzichah (as the Rashbam writes on 50a, DH Mipnei). Similarly,
in the Gemara in Kesuvos, when a person throws a stone into a group of
people in which there are five Jews and five Nochrim and the stone kills a
Jew, the person has definitely committed a sin, since he knew that his
action could result in the death of a Jew (as Tosfos there explains, the
Gemara is following the opinion that Hasra'as Safek is a valid Hasra'ah).
(c) Rashi himself seems to have been bothered by the question of why a
person is exempt from Malkus in cases of Safek. Rashi writes in numerous
places that if a person commits a Safek Aveirah, he is exempt from Malkus
because he lacks Hasra'ah, proper warning from witnesses, since his Hasra'ah
was a Hasra'as Safek (Rashi in Yevamos 99b, DH Ein Sofgin; see also Rashi in
Yevamos 101a DH Chayav; Chulin 23b, DH Ela d'Rebbi Yehudah; Chulin 80a, DH
Tayish ha'Ba Al ha'Tzeviyah; Chulin 86a, DH she'Eino Sofeg). When Rashi uses
the term "Hasra'as Safek" in these places, he is not referring to the
Machlokes Amora'im in Makos (15b) regarding whether Hasra'as Safek is a
valid Hasra'ah. The Gemara in Makos is referring to a situation in which it
will become clear later whether the Aveirah was transgressed. In contrast,
in the case of a Safek Aveirah, since we do not expect it to become clear
later whether or not the Aveirah was transgressed, everyone agrees that the
Hasra'ah is lacking, since the transgressor was not warned that what he was
doing was a Vadai Aveirah. (In cases of a Safek Aveirah, we are certain that
the transgressor did something wrong, since he knew that he was doing a
Safek Aveirah, and therefore he would have been punished had it not been for
the fact that it was a Hasra'as Safek, just like the case of the person who
threw a stone into a group of people, half of whom were Jews and half were
Nochrim.) Rashi's source might be the Gemara in Sanhedrin (89b) which says
that a person who is eating dates and people tell him not to eat them
because they might be Asur (see ME'IRI) cannot be given Malkus because
nobody can give him a proper Hasra'ah. The Gemara should have said that he
cannot be punished because nobody knows that he sinned! Instead, the Gemara
says that he is not punished because nobody can give him Hasra'ah, implying
that one who does a Safek Aveirah does not receive Malkus because it is
lacking Hasra'ah.
If Rashi maintains that a person is exempt from Malkus because it is a
Hasra'as Safek, then why would that not suffice to exempt a person from
Misah as well? A person needs Hasra'ah in order to be Chayav Misah, and thus
Rashi should have exempted cases of Safek Nefashos because of the lack of
Hasra'ah!
The answer is that in our Sugya, the person definitely did an Aveirah of
Retzichah, for even if he is the true master of the Eved, it is prohibited
for him to kill the Eved. The only question is whether the person is
exempted from punishment for his transgression because of the law of "Yom O
Yomayim." Therefore, the Hasra'ah that is given to him is a Hasra'as Vadai.
In the Sugya in Kesuvos, there is also a Hasra'as Vadai, because when the
stone does kill a Jew, we know for certain that an Aveirah of Retzichah was
committed (and the Gemara holds that an Aveirah which will only become known
after the act is done can obligate a person to be punished, as Tosfos there
writes). (M. Kornfeld)
50b
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