THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) AN AGENT OF BEIS DIN WHO KILLS ACCIDENTALLY
OPINIONS: In the Mishnah, Aba Shaul states that the verse (Devarim 19:5)
mentions that the accidental murderer went into the forest to cut down trees
in order to teach that the law of Galus for accidental murder applies only
to a case in which the killer was not obligated to be in the situation which
he was in at the time of the killing (such as two people who voluntarily
went into a forest to chop wood). If, on the other hand, the killer was
obligated by the Torah to be in that situation, then he is not required to
go to Galus if he accidentally kills. Examples of this exemption include a
father who was required to reprimand his son, a teacher who was required to
reprimand his student (and, while hitting his son or student, he
accidentally killed him), and a Shali'ach (agent) of Beis Din who
accidentally killed someone.
Under what circumstances is a Shali'ach of Beis Din exempt from Galus for
(a) RASHI learns that the Shali'ach of Beis Din is exempt from Galus when he
was required to administer Malkus to a person who transgressed a negative
commandment, and in the middle of giving the lashes, the transgressor died.
Although Beis Din always estimates how many lashes the person can endure
without dying (as described in the Mishnah later, 22a-b), in this case the
transgressor was unable to endure the estimated amount and he died while
receiving the amount of lashes that Beis Din thought he could tolerate. The
messenger of Beis Din is not obligated to go to Galus, since he was merely
carrying out the verdict of Beis Din. This is also the opinion of the RITVA
and the RAMBAN (according to one explanation).
(b) The ME'IRI refutes this explanation of our Mishnah. If the case is as
Rashi explains, then it is obvious that the Shali'ach of Beis Din does not
have to go to Galus. The MA'ASEH ROK'EACH, ARUCH LA'NER, and others point
out that the Mishnah later (22b) explicitly states that a Shali'ach who
kills while administering a punishment of lashes is exempt from Galus.
According to Rashi, why does the Mishnah here repeat this law? The Me'iri
explains, therefore, that the case must be one in which a Shali'ach of Beis
Din is beating someone who refuses to obey the summons of Beis Din. If the
Shali'ach accidentally kills the recalcitrant litigant, he is exempt from
Galus. This is also the opinion of the RAMBAM (Hilchos Rotze'ach 5:6).
(c) The MIRKEVES HA'MISHNAH and GUR ARYEH answer that Rashi does not mean to
say what we understood him to be saying. Rather, Rashi means to say that the
case is when the Shali'ach, on his own accord, added more lashes than the
number required by Beis Din. Even though he was *not* acting in accordance
with the directive of Beis Din, he is still exempt from Galus. The Mishnah
later (22b) is discussing a Shali'ach of Beis Din who thought he was
administering the proper amount of lashes but was mistaken in his count.
These Acharonim explain that this is why Rashi writes specifically that the
Shali'ach was administering "*forty* lashes;" Rashi is indicating that the
Shali'ach gave one more than the maximum number of thirty-nine lashes.
(The Mirkeves ha'Mishneh and Gur Aryeh point out that this is also the
opinion of the RA'AVAD (Hilchos Rotze'ach ibid.). However, many Acharonim
(SHOSHANIM L'DAVID, TORAH TEMIMAH, and others) maintain that the word "more"
in the Ra'avad is a mistake, and that the Ra'avad actually understands the
Gemara like the Ritva. This word is also missing from the Costa edition of
This explanation in Rashi, however, is difficult to understand. If the
Shali'ach gave extra lashes to the transgressor without permission of Beis
Din, then he should be considered a murderer, and if he accidentally killed,
then he should go to Galus! The ARUCH LA'NER explains that the only way to
understand that the Shali'ach is exempt from Galus is by saying that the
Shali'ach, in such a case, is *worse* than an accidental murderer and is
considered like on who is "Karov l'Mezid" (close to intentional) and that is
why he does not go to Galus. (The Aruch la'Ner learns that this is the view
of the Ra'avad.) Our Mishnah, though, lists this Shali'ach together with the
cases of a father and a teacher who definitely are less culpable than an
accidental murderer, and thus the case of a Shali'ach of Beis Din must be
The CHASAM SOFER (Teshuvos OC #177), explaining the Ra'avad, says that the
case in our Mishnah is when the Shali'ach was mistaken with regard to the
number of lashes he was supposed to administer. He is therefore considered
*less* culpable than an accidental killer, since he was involved in the
Mitzvah of fulfilling the verdict of Beis Din.
Based on this, we may explain that the Mishnah later (22b) is necessary to
teach that the Shali'ach is exempt in a different case. In a case where the
Shali'ach thought that the number of lashes that he was supposed to give was
much higher, we can understand that he trusts Beis Din's estimate and he
proceeds to give additional lashes despite the fact that the recipient of
the lashes appears to be extremely ill. Consequently, he was giving the
Malkus in fulfillment of the directives of Beis Din and he does not go to
Galus if he kills accidentally. In contrast, in a case where the Shali'ach
sees that the transgressor is on the verge of death, we might have thought
that he should ask Beis Din to reassess the transgressor's condition before
giving the last few lashes. If he does not ask Beis Din to reassess his
condition, perhaps he is considered an accidental murderer and should go to
Galus. The Mishnah (on 22b) therefore teaches that the Shali'ach in that
case is also exempt from Galus, as his intention was only to fulfill the
command of Beis Din. (Y. Montrose)
2) A FATHER WHO ACCIDENTALLY KILLS HIS SON
QUESTION: The Mishnah here states that a father goes to Galus if he
accidentally kills his son. The Gemara asks that this seems to contradict
the previous Mishnah (8a) that states that a father is exempt from Galus if
he accidentally kills his son, since he has a Mitzvah to discipline his son.
How are these two statements to be reconciled? The Gemara answers that
although a father is obligated to teach his son a trade (and to reprimand
him if his son is not listening or behaving properly), if he accidentally
kills his son while teaching him a *second* trade, then he must go to Galus.
Why does the Gemara have to find such an odd case to reconcile the two
statements of the Mishnah?
(a) The Gemara should answer simply that our Mishnah is referring to a
situation in which the father is not educating the son at the time that he
kills him, and therefore there is no reason to exempt him from Galus!
(b) Alternatively, the Gemara should answer that our Mishnah is referring to
an *adult* son. We know that a father has no obligation of Chinuch once his
son reaches the age of twenty-two or twenty-four (see Kidushin 30a). In
addition, the Gemara in Mo'ed Katan (17a) states that a father who hits his
adult son transgresses the prohibition of "Lifnei Ever Lo Siten Michshol,"
because he tempts his son to transgress the Torah prohibition of hitting
one's father. Why does our Gemara not say that the Mishnah here is referring
to an adult son? (ARUCH LA'NER, SI'ACH YITZCHAK, and others)
(a) TOSFOS explains that the Gemara understands that the Mishnah here is
stating a blanket law which applies even when the father accidentally kills
his son when hitting him for educational purposes. The previous Mishnah (8a)
says that even when the father was *intentionally* hitting his child, he
does not have to go to Galus because he was engaged in the Mitzvah of trying
to educate his son (albeit too harshly). This reason does not seem to apply
in a case where the son was walking in the forest without the father's
knowledge and the head of the father's ax flew off and killed the son. The
Gemara, therefore, is unsure as to exactly when our Mishnah maintains that
the father is exempt from Galus.
(b) The SHULCHAN HA'MELECH (Hilchos De'os 6:10) answers that a father is
allowed to hit his adult son, provided that it is done in order to teach him
Torah and Mitzvos. The SEDEI CHEMED proves this from the Gemara in Sanhedrin
(70b) which states that Bas Sheva, the mother of Shlomo ha'Melech, rebuked
Shlomo for his actions. It relates that she tied him to a pillar and
oppressed him. Although the CHIDA (in one explanation) says that she was
only threatening to beat him, the Midrash Tanchuma says openly that she beat
him with a stick. We see from there that a parent is allowed to beat his or
her adult child for the sake of guiding him in Torah and Mitzvos. Since it
is permitted, a parent who accidentally kills his child in such a case is
exempt from Galus. Therefore, this could not have been the case of our
The LEV SHOME'A argues that a parent is never allowed to hit a grown child.
The reason the Gemara does not give this case as an answer is because of the
wording of the Mishnah. The Mishnah makes a blanket statement, implying that
sons of all ages are included in the law.
He brings support from the words of RASHI in Kidushin (30a) that a father
may not hit his grown son even for the sake of directing him towards Torah
and Mitzvos. Rashi explains that the Gemara there is referring to a father
who hits his son for the sake of rebuking him, and nevertheless it is
prohibited since the grown son might rebel as a result.
The Si'ach Yitzchak also maintains that it is forbidden for a father to hit
his grown child. He says that it is for this very reason that the Gemara
does not explain that the Mishnah here is referring to a father who hits and
accidentally kills his adult son. By hitting his grown son, he transgresses
an Isur, and thus he is not entitled to go to Galus (like one who is "Karov
l'Mezid"). (Y. Montrose)