ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Sanhedrin 72
SANHEDRIN 72 (17 Kislev)- Today's learning is dedicated in loving memory of
Professor Dr. Eugene (Mordechai ben Aharon) Heimler, on his 12th yahrzeit,
by his beloved wife, Miriam Bracha. May the Zechus of the Torah being
learned around the world be an Iluy for his Neshamah.
(a) Rebbi Yossi Hagelili in a Beraisa echoes our Mishnah, which ascribes the
harsh judgment of the ben Sorer u'Moreh to his future actions and not to his
past ones. This statement is based on the fact - that (if not for what it
will lead to) the Torah would be unlikely to punish a boy merely for eating
some meat and drinking some wine.
(b) The Torah is afraid - that the boy will become addicted to these
luxuries, with the result that, when he has spent all his father's money, he
will look further afield for funds to indulge further, and will take to
(c) He also praises the death of Resha'im and laments their tranquillity,
but laments the death of Tzadikim and praises their tranquillity - which is
good for them and the world, because it enables them to learn Torah and
perform Mitzvos (which is to everybody's advantage).
(a) Besides a ben Sorer u'Moreh - a Ba be'Machteres (someone who breaks into
a fellow-Jew's house in order to steal) is judged according to his future
actions, and not according to his past ones.
(b) When the Tana of our Mishnah rules with regard to a 'Ba be'Machteres'
who breaks vessels in the course of his break-in ...
1. ... 'Im Yesh Lo Damim, Chayav' - he is referring to a son breaking-in on
his father (as we will see shortly).
(c) This latter ruling applies even if the Ganav is not sentenced to death -
based on the principle 'Chayvei Miysos Shogegin, Ein Meshalmin' (Someone who
commits a Chiyuv Miysah, but without warning, is Patur from paying for any
damage that was caused simultaneously).
2. ... 'Im Ein Lo Damim, Patur' - he is referring to any other case.
(a) The Chazakah Rava relies on as the basis for the Din of 'Ba
be'Machteres' - that Reuven will not stand idly by as Shimon steals his
money, and what's more, Shimon knows this full well, and he therefore
anticipates that should Reuven catch him as he is breaking in, he will kill
him (rather than get caught).
(b) 'Ein Lo Damim' therefore means - that the Ganav has no value (it is as
if he is dead, based on the following principle).
(c) The Torah permits the owner to kill the Ganav - because of the principle
'ha'Ba le'Hargecha, Hashkeim le'Hargo' ('Kill the person who comes to kill
you, before *he* kills *you*').
(d) Rav permits a Ba be'Machteres to retain vessels that he took in the
course of the break-in - on the basis of the S'vara 'be'Damim Kaninhu' (he
acquired them with his life).
(a) Rava initially believed that Rav only exempted the Ba be'Machteres from
paying, if he broke the vessels, but not from returning them if he took
them - because, he thought, Rav's reason for exempting him is because of
'Kam Leih bi'de'Rabah Mineih' (Beis-Din only give a person the more
stringent of two punishments), but that is no reason to permit him to keep
an article which belongs to somebody else.
(b) He changed his mind however - due to the Din in the Seifa 'Yesh Lo
Damim', where, if he took vessels and an O'nes happened, he is Chayav, a
proof that he acquires them (otherwise he would be Patur), which he now
applies also to the Reisha, by 'Ein Lo Damim' (even if the vessels are
available). And when he said 've'ha'Elokim Amar Rav!' he meant - that he was
willing to swear that Rav said that.
(c) He disagreed with Rav however - by drawing a distinction between the
Chiyuv O'nes, where the Torah placed the object in his Reshus in order to be
Chayav (just like a Sho'el) on the one hand, and actually acquiring the
article to keep, which the Torah did not place in his Reshus on the other.
(d) We attempt to extrapolate from our Mishnah 'Ba be'Machteres ve'Shiber es
ha'Keilim, Ein Lo Damim, Patur' - that had he taken the vessels, he would be
Chayav, a Kashya on Rav.
(a) We attempt to answer this Kashya - by pointing out that the Tana
requires 'Shiber es ha'Keilim' per se to teach us that 'Yesh Lo Damim' is
Chayav even then (and not for its inference).
(b) In fact though, he is a Mazik, whom we already know is Chayav to pay.
Neither will it do to answer that he broke the vessels inadvertently -
because that too, is obvious (based in the principle 'Adam Mu'ad le'Olam').
(c) The significance of the final word 'Kashya' is - that it is not a total
refutation (as opposed to 'Tiyuvta', which would be), and we could establish
the Mishnah as we explained according to Rav, even though it would be a
(a) The Beraisa rules that someone who steals a purse on Shabbos, assuming
that he ...
1. ... picked it up and carried it into the street - is Chayav to return it,
since he acquired it before desecrating the Shabbos.
(b) This Beraisa poses a Kashya on Rava - in whose opinion, one does not
acquire a stolen object as long as it is available.
2. ... drags it out into the street without actually picking it up - is
Patur from returning it, since the Kinyan and the Chilul Shabbos come
(c) To reconcile Rava with the Beraisa, we establish it - when the Ganav
then threw the purse into the River.
(d) Despite Rava's opinion, that Ba be'Machteres does not acquire the
vessels that he steals, he refused to accept the rams that a Ba be'Machteres
had stolen from him, when he came to return them - because Rav had said
(a) The problem the Beraisa has with the Pasuk "Ein Lo Damim, Im Zarchah
ha'Shemesh Alav" - is that the sun shines on everyone, not just on the
(b) The Tana resolves this problem - by explaining the Pasuk metaphorically:
'If it is as clear as the shining sun that he wants to kill you, kill him;
but if you have doubts, don't.
(c) Another Beraisa explains the Pasuk "Im Zarchah ha'Shemesh Alav, Yesh Lo
Damim" to mean - 'If it is as clear as the shining sun that he will not kill
you, then don't kill him, but if not, then kill him.
(d) To resolve the apparent discrepancy between them, we establish the first
Beraisa - by a father breaking in on his son, where, unless there is a clear
indication that he intends to kill him, the son may not kill him (because we
take for granted that a father will under no circumstances kill his son).
Whereas the second Beraisa speaks by a son breaking in on his father (and
certainly by someone else), whom we assume, is prepared to kill if he is
caught, unless there is a clear indication to the contrary.
(a) Rav declared that he would kill anybody who broke into his house via a
tunnel except for Rav Chanina bar Shilo - because he claimed, the latter
loved him like a father loves a son (and would therefore not kill him under
(b) The reason cannot have been because he was a Tzadik - because that is
not a title one would give to a person who breaks into houses and steals.
(c) The Beraisa finds it necessary to teach us that even on Shabbos ...
1. ... "Ein Lo Damim" applies - because we might have thought that he is no
different than Harugei Beis-Din (people who are sentenced to death at the
hand of Beis-Din), who cannot be put to death on Shabbos (as we learned in
'Echad Diynei Mamonos').
(d) What prompts the Tana to make this D'rashah - is the fact that the Torah
writes "Damim" in the plural.
2. ... "Yesh Lo Damim" applies (not to teach us that one may not kill him on
Shabbos, which is obvious, says Rav Sheishes, but) - to teach us that if a
wall caved in on him, one may (even must) remove the bricks to try and save
(a) The Beraisa learns from ...
1. ... "ve'Hukah"- that anyone who discovers him digging may kill him.
(b) In spite of the fact that the Ba ba'Mechteares has nothing to fear from
a third party, who, he knows, is not as concerned about the robbery as the
owner, nevertheless, anyone is allowed to kill him - on the grounds that he
is a Rodef (threatening someone's life), whom anybody is permitted to kill.
2. ... "u'Meis" - that if one cannot kill him by beating him, then one may
kill in any way possible.
(c) We might learn that one should be permitted to kill a Ba be'Machteres,
from a murderer (who has already killed), in which case we would not require
an independant Pasuk.
(d) We cannot however, learn from him - since based on the fact that the
same is written in connection with a Go'el ha'Dam, we apply the principle
'Sh'nei Kesuvim ha'Ba'im ke'Echad Ein Melamdin' (we cannot learn from two
Pesukim that come to teach us the same thing).
(a) The Tana learns from the Pasuk "ve'Im ba'Machteres Yimatzei ha'Ganav ...
" that 'Gago, Chatzero ve'Karfifo' is also Chayav - from the word
"ha'Ganav", which is superfluous (because the Torah could have written
(b) 'Gago, Chatzero ve'Karfifo' means - that the Ganav used a ladder to
climb on to the roof, or walked into the Chatzer or the enclosure through an
open door (see also Rashash). And they differ from Ba be'Machteres -
inasmuch as they require a warning before one may kill them.
(c) The Torah nevertheless presents the case of Machteres - because it is
(d) The second Lashon makes a distinction between Machteres and someone who
breaks in through an open door. The difference between them will be - in a
case where the Ganav was not warned - in which case Ba be'Machteres is
Chayav, but another Ganav, who gained entry easily, is not (because there is
no indication that he is prepared to kill, since having entered easily, he
will also exit easily and run away). See also the fore-mentioned Rashash.
(e) One warns a Ganav who enters through an open door - by informing him
through two witnesses, that if he persists, he will be killed, and only if
he does then persist, may one actually kill him.
(a) Rav Huna rules - that one is permitted (even obligated) to kill a Katan
who is chasing a Katan (or even a Gadol) with the intention of killing him.
(b) A Katan is not subject to warning - but neither is a Rodef.
(c) The Beraisa rules that if a woman is dying due to a difficult childbirth
1. ... before he is born - one may kill the 'fetus' to save the mother,
because he is a Rodef.
(d) Rav Chisda queried Rav Huna from there. Rav Huna replied that the case
there was different - inasmuch as the baby was doing nothing, and that
consequently, it was 'from Heaven' that she was being chased.
2. ... once the baby's head has emerged from the womb - one can do nothing,
on account of the principle 'Ein Dochin Nefesh Mipnei Nefesh' (One may not
kill one [innocent] person to save another).
(a) In view of the principle 'Ein Dochin Nefesh Mipnei Nefesh', the episode
in Shmuel, where a woman killed Sheva ben Bichri and tossed his head down to
Yo'av (who was besieging the town) to save the other people, is different-
either because Sheva ben Bichri was destined to die anyway, even in the
event that Yo'av would capture the town (because he was the man whose blood
Yo'av was after), or because he was a Mored be'Malchus (guilty of treason),
and was therefore Chayav Miysah anyway.
(b) The Beraisa rules that if Levi sees Reuven chasing Shimon, and Levi
wants to kill Reuven to save Shimon - he does not need to warn him
intrinsically, (only in case he is a Shogeg and will desist once he becomes
aware of what he is doing). This is evident from the fact that one may kill
him even though he does not respond.
(c) He warns him that Shimon is a Yisrael and a ben B'ris (not a Rasha), and
quotes the Pasuk in No'ach "Shofech Dam ha'Adam, ba'Adam Damo Yishafech"
(see Maharatz Chiyos).
(d) Rav Chisda (who maintains that a Rodef must be warned) establishes the
author of the Beraisa as Rebbi Yossi b'Rebbi Yehudah, who maintains that a
Chaver does not need Hasra'ah (which, in his opinion, is normally only
necessary to ascertain that the sin is being performed on purpose).
Consequently the Beraisa must be speaking about an Am ha'Aretz, who needs to
be warned for the above reason (Kabalas Hasra'ah is anyway not necessary,
according to Rebbi Yossi b'Rebbi Yehudah).
(e) The Chachamim however, hold - that Hasra'ah together with Kabalas
Hasra'ah are intrinsically necessary, and without them, the sinner cannot be
killed (even a Rodef).
(a) Another Beraisa, in a case where Levi warns Reuven who is chasing Shimon
not to kill him - permits Levi to kill Reuven only if he replies 'al-M'nas
Kein Ani Oseh', but not if he doesn't.
(b) Rav Huna explains - that he personally (does not hold like that Beraisa,
but) follows the opinion of the Tana (discussed earlier), who does not
require Hasra'ah by a Rodef.