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Sanhedrin, 78


QUESTION: The Gemara quotes a Beraisa which discusses a case in which ten people hit a man with sticks until he died. The Rabanan rule that whether they hit the victim simultaneously or whether they hit him one after the other, none of them can be punished by Beis Din for murder. Rebbi Yehudah ben Beseira argues and rules that when they hit the victim one after the other, the last person to hit him before he died is considered to be a murderer, for it is he who, in practice, brought about the victim's death.

Rebbi Yochanan explains that both Tana'im derive their opposing opinions from the same word in the same verse (Vayikra 24:17), "v'Ish Ki Yakeh Kol Nefesh Adam " -- "when a man will kill any (Kol) person's soul." The Rabanan understand that "Kol" (literally "all") here means that a person is not considered a murderer until he kills "all" is innocent until he kills *all* of that person's soul by himself. Rebbi Yehudah ben Beseira explains that "Kol" means that if a person kills *any* part of the soul, he is a murderer, and, therefore, even though the nine people who hit the victim first weakened him considerably, the last bit of life in his soul was taken away by the tenth person who hit him, and thus that person is considered a murderer. (RASHI explains that according to Rebbi Yehudah ben Beseira, the first nine people who hit the victim are not guilty of murder because of the word "v'Ish" in the verse. This word teaches that only one person ("Ish") can be guilty of a single killing, and not two.)

TOSFOS (cited by the RAN) has difficulty with Rebbi Yochanan's explanation of the Machlokes. How can two Tana'im expound the same verse in two opposite ways? One Tana learns that the word "Kol" is inclusive, teaching that killing *any* part of a soul is considered murder, while the other Tana learns that the word "Kol" is exclusive, teaching that only when one kills *all* of the soul is he a murderer!


(a) TOSFOS answers that the argument is not based merely on the meaning of the word "Kol." The Tana'im are arguing about the meaning of another word in the verse -- "Nefesh." Does "Nefesh" imply the whole soul, or does it refer to even part of the soul?

The Rabanan maintain that "Nefesh" means even part of the soul. Hence, they understand that when the Torah adds the word "Kol," it is meant to teach that only when one kills *all* of the soul of another person is he considered a murderer. Rebbi Yehudah ben Beseira interprets "Nefesh" to mean a whole soul, and thus he must learn that the addition of the word "Kol" is meant to teach that even killing *part* of the soul makes a person into a murderer.

(b) The RAN says that it is not necessary to say that the Tana'im are arguing about the meaning of the word "Nefesh." Rather, he explains that we find that the word "Kol" indeed has two meanings. It can mean either *all* of something or *any part* of something. When the verse says "Kol Tzipor Tehorah Tochelu" (Devarim 14:11), it obviously means that we may eat *all* birds that are permitted, and not just some of them. This is also the meaning of the word when Hashem commands us to guard "Kol ha'Mitzvah" (Devarim 8:1, 11:22, 27:1). It means that we must guard *all* of the Mitzvos; it certainly does not mean that we must guard only some of the Mitzvos.

On the other hand, we also find verses such as, "Lo Sochal Kol To'evah" (Devarim 14:3), commanding us not to eat *any* abominable thing. In this verse, implication of "Kol" is that even a small bit of a non-kosher animal is forbidden, and not that it is forbidden only if one eats the entire animal. The same is true with the command, "Lo Sechayeh Kol Neshamah" (Devarim 20:16), the Mitzvah not to leave even a few people from the seven nations living in Eretz Yisrael. The argument in our Gemara is which "Kol" is intended by the verse regarding murder.

The ARUCH LA'NER takes issue with the Ran's translation. He explains that "Kol" always means all individual bodies that are pertinent. For example, "Lo Sechayeh Kol Neshamah" means not to leave alive all souls that are included in this decree. Likewise, "Kol To'evah" means not to eat all types of animals which are prohibited. Tosfos understands that Rebbi Yehudah ben Beseira's opinion seems to be more logical, since "Kol Nefesh" should mean all parts of the soul, including even one part. Therefore, Tosfos explains that the Machlokes involves the meaning of the word "Nefesh."

The Aruch la'Ner further proves Tosfos' opinion from the words of the Toras Kohanim. The Toras Kohanim derives from the verse of "Kol Nefesh" that even someone who kills a minor is deemed a murderer. This is obviously learned from the word "Kol." We know there is a rule that we may learn only one law from each word. According to the Toras Kohanim, how can we use the word "Kol" again in our Gemara to teach an additional law? According to Tosfos, this is not a problem, because the primary source for both opinions in our Gemara is not from the word "Kol," but from the word "Nefesh." (Y. Montrose)


OPINIONS: The Beraisa states that Moshe Rabeinu knew that Tzelofchad -- who had intentionally desecrated Shabbos (Bamidbar 16:32), deserved the death penalty, but he was uncertain as to the particular death that Tzelofchad deserved. What exactly was Moshe Rabeinu's doubt?
(a) The MOSHAV ZEKENIM and the CHIZKUNI comment that Moshe Rabeinu certainly knew the verse that states that one who desecrates Shabbos "shall be put to death" -- "Mos Yumas" (Shemos 31:14), and he knew that whenever the verse says "Mos Yumas" without specifying what form of death, the death penalty implied by that wording is Chenek, as the Gemara earlier (52b) teaches. However, he thought that perhaps there is a Gezeirah Shavah from the verse that teaches the punishment for someone who worships idols (Vayikra 18:21) to Shabbos, through the common word "Chilul." This Gezeirah Shavah would teach that one who desecrates Shabbos receives the same punishment as one who serves Avodah Zarah, which is punished with Sekilah.

(b) Similarly, TOSFOS states that the doubt of Moshe Rabeinu was that perhaps the act of Shabbos desecration should be punished with Sekilah, not because of the Gezeirah Shavah from Avodah Zarah, but because Shabbos desecration itself is a form of Avodah Zarah. One who desecrates Shabbos is also denying that Hashem created the world (and implying that other forces created it). Consequently, he should be punished with Sekilah just like one who serves Avodah Zarah.

REBBI AKIVA EIGER questions the logic of Tosfos. The Torah, in the same Parshah, teaches that a person who desecrates Shabbos receives the same punishment that Tzelofchad received -- Sekilah. According to Moshe's logic, though, perhaps only *public* desecration of Shabbos is tantamount to Avodah Zarah and deserves Sekilah. Perhaps one who desecrates Shabbos in *private* does not receive Sekilah, but rather Chenek!

The MARGOLIYOS HA'YAM and PARDES YOSEF answer this question. They cite many sources that state that to be called "public," an event does not need to take place in front of many people. Even if many people will find out about it later, this, too, is called a "public" act (for example, see MAHARIK (#160), TASHBATZ (1:158), PRI MEGADIM YD 2:17). Therefore, every person who desecrates Shabbos who will be put to death will have had at least two witnesses and twenty-three judges who know that the Shabbos was desecrated. This makes every act of Shabbos desecration for which the violator is killed a public act.

The Pardes Yosef offers an additional answer based on the question of the SIFSEI TZADIK. The Sifsei Tzadik asks why did Hashem, in His response to Moshe's inquiry about what punishment to give Tzelofchad, tell Moshe, "Mos Yumas ha'Ish, Ragom Oso va'Avanim" -- "The man shall be put to death, stone him with stones..." (Bamidbar 16:36). Moshe knew the verse that says "Mos Yumas" with regard to one who desecrates Shabbos. Why, then, did Hashem repeat that he should be put to death?

The Pardes Yosef answers that Hashem was explaining to Moshe that although the punishment for Tzelofchad is the same as the one that Moshe thought he deserved (Sekilah), the *reason* for that punishment is not the same as Moshe's logic for it. Since Moshe's logic would have limited the punishment of Sekilah to one who desecrates Shabbos in public, Hashem told Moshe that one who desecrates Shabbos is punished with Sekilah regardless of whether it is done in public or in private. Hashem told Moshe that when He said that the Shabbos desecrater "shall be put to death" (Shemos 31:14), which includes both public and private acts of Chilul Shabbos, He meant that this should be done through Sekilah. This answers Rebbi Akiva Eiger's question. Hashem's answer revealed something which we indeed would not have known from Moshe's question alone. (See KLI CHEMDAH, Parshas Pinchas, for an additional answer.) (Y. Montrose)

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