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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Sanhedrin 78



(a) According to the Tana Kama of the Beraisa, if ten men with ten sticks beat someone to death, they are all Patur (from Miysas Beis-Din). Rebbi Yehudah ben Beseira however, says - 'Chayav'.

(b) Rebbi Yochanan quotes the source as the Pasuk "ve'Ish ki Yakeh *Kol Nefesh* Adam", which the Rabbanan interpret to mean 'the entire person', and Rebbi Yehudah ben Beseira - 'Kol de'Hu Nefesh (even a little bit of the person).

(c) 'Rava Amar ha'Kol Modim ... '. Both Tana'im concede that he is ...

1. ... Patur - if he kills a Tereifah.
2. ... Chayav - if he kills a Goses (bi'Yedei Shamayim [a man who is dying a natural death]).
(a) The difference between our case and ...
1. ... that of a Tereifah is - that a Tereifah has a recognizable symptom of death, which a man who has been beaten to the point of death does not have.
2. ... that of a Goses is - that a Goses did not become ill through an act, whereas a man who has been beaten did.
(b) The Chachamim prefer to compare our case to a Tereifah than to a Goses - because, unlike a Goses, he did not become wounded naturally, but through an act.

(c) Whereas Rebbi Yehudah ben Beseira prefers to compare it to a Goses bi'Yedei Shamayim rather than to a Tereifah - because unlike a Tereifah, our case did not already have a recognizable symptom of death.

(a) The Beraisa quoted by the Beraisa expert in front of Rav Sheishes obligated Reuven who killed Shimon after Levi had beaten him in a way that could not kill him. The problem with the Beraisa is - that this ruling is obvious and does not require a Beraisa to teach it to us.

(b) So we amend it to read (instead of 'Ein Bo K'dei Le'hamis') - 'Yesh Bo K'dei Le'hamis'.

(c) We have already learned that someone who kills a Tereifah is Patur. Rava also exempts a Tereifah who kills if witnesses are called to testify against him, on the grounds - that based on the fact that one is Patur for killing a Tereifah), should the witnesses become Eidim Zomemin, they will be Patur, too, and we have a principle 'Eidus she'I Atah Yachol Le'hazimah Lo Sh'mah Eidus'.

(d) He declares him Chayav though, if he killed in the presence of Beis-Din (thereby eliminating the need for witnesses) - because of the Pasuk in Re'ei "u'Vi'arta ha'Ra mi'Kirbecha".

(a) Rava issues the same set of rulings with regard to a Tereifah who raped another man. He rules however - that someone who rapes a Tereifah is Chayav.

(b) Rava is coming to teach us in this latter ruling - that although we consider a Tereifah a Meis in certain regards, he is not considered a Meis in this regard ...

(c) ... because this particular sin depends on the Hana'ah, which the rapist derives from a Tereifah just like from any other person (unlike Meshamesh Meis, where the flesh of the dead person is cold, and from whom he therefore derives no pleasure).

(a) Rava then exempts witnesses who testify against a Tereifah (as we explained earlier), but declares Chayav, witnesses who are themselves a Tereifah. Rav Ashi - exempts the latter too, because, since the first witnesses cannot become Zomemin, the second witnesses cannot become Zomemei Zomemin either.

(b) Rava disagrees with Rav Ashi (whose logic is irrefutable) - because he says, since Eidim Zomemin itself is a Chidush, we do not carry its Din beyond the first set of witnesses ('Ein Bo Ela Chidusho').

(c) Rava declares a Tereifah ox which killed a person, Chayav, and he then goes on to learn from the Pasuk "ha'Shor Yisakel ve'Gam Be'alav Yumas" - that if an ox belonging to a person who is a Tereifah kills someone he is Patur.

(d) Rav Ashi disagrees with Rava's first ruling - because he argues (based on the same Hekesh) since the owner would have been Patur had he been a Tereifah, the ox is Patur, too.

(a) We learned in our Mishnah the Machlokes between Rebbi Yehudah, who obligates Reuven who holds a snake against Shimon's body as the snake bites him, whilst the Rabbanan declare him Patur. Rav Acha bar Ya'akov explains that, according to ...
1. ... Rebbi Yehudah - the snake's venom, which is situated between its teeth, emerges automatically, and Reuven is therefore Chayav as if he had pierced Shimon with a sword.
2. ... the Chachamim - it is the snake that spits out the venom at will, in which case Reuven's action is only a G'rama.
(b) Consequently - Rebbi Yehudah will exempt the snake from the death-sentence, whereas the Chachamim will declare it Chayav.

(c) The Chachamim sentence the snake to death, in spite of the fact that the Torah only talks about "Shor"- because "Shor" is La'av Davka, as we learned in Bava Kama (''Shor'' ''Shor'' mi'Shabbos), and extends to all species of animals.

(a) In a case where Reuven struck Shimon with a stone or with his fist, if after Beis-Din assessed that he would die, he first took a turn for the better, and then died, the Tana Kama - declares him Chayav.

(b) Rebbi Nechemyah holds - that he is Patur.

(c) "al Mish'anto" means - that he regains his former health.

(d) What prompts Rebbi Nechemyah to learn his Din from the Pasuk "Im Yakum ve'Hishalech ba'Chutz al Mish'anto ve'Nikah ha'Makeh" is - the fact that it is otherwise impossible to explain the Pasuk literally, because why should Reuven be Chayav if Shimon recovers? Consequently, the Pasuk must be speaking when the recovery is only temporary, as Rebbi Nechemyah explains.

(e) The Rabbanan learn from "ve'Nikah ha'Makeh" - that in the interim, Reuven is jailed, and that when Shimon recovers, he is set free.




(a) We suggest that Rebbi Nechemyah learns the concept of interim jail from the Mekoshesh. The Rabbanan decline to learn it from there however - since there, Moshe knew for sure that the defendant was Chayav Miysah, whilst we are discussing someone whose guilt is as yet unknown.

(b) Rebbi Nechemyah agrees with that argument - which is why he retracts and learns it from a different source ...

(c) ... from the Megadef (who was in jail at the same time as the Mekoshesh).

(d) The Rabbanan disagree with that source - on the grounds that, seeing as Moshe was not commanded to place the Megadef in jail, if we did not have another Pasuk, we would consider that as a a 'Hora'as Sha'ah' (a momentary ruling issued by Moshe for that time only).

(a) The Beraisa knows that the Mekoshesh was definitely Chayav Miysah - from the Pasuk in Vayakheil "Mechalelehah Mos Yamus".

(b) Even though his exact punishment was not known, the Hasra'ah was nevertheless valid (and it was later possible for Beis-Din to sentence him to death) - because this Tana holds like the Rabbanan later, who do not require the type of death to be specified.

(c) The Tana extrapolates from the fact that the Torah writes ...

1. ... by the Mekoshesh "Ki Lo Forash Mah Ye'aseh Lo" - that they knew his basic Chiyuv, only not the details.
2. ... by the Megadef "Li'ferosh Lahem al-Pi Hashem" - that they did not even know his basic Chiyuv either.
(d) Rebbi Nechemyah learns the above D'rashah from the extra words "Im Yakum ve'His'halech ba'Chutz" (as we explained). From the extra Pasuk "ve'Lo Yamus", he learns - that if Shimon recuperates, Reuven is Patur from Miysah (but Chayav Mamon) even though he left Beis-Din Chayav (though it is not clear why this would require a Pasuk [see Toras Chayim]).
(a) The Rabbanan learn Amduhu le'Miysah ve'Chayah from "ve'Lo Yamus ve'Nafal le'Mishkav". From "ve'Nikah ha'Makeh", they learn - that until now, he must have been in jail (Chovshin Oso).

(b) The problem according to them is - why the Torah needs to add "Im Yakum ve'His'halech ba'Chutz"?

(c) Finally, the Rabbanan learn 'Chovshin Oso' from "ve'Nikah ha'Makeh" (as they learned earlier), and 'Amduhu le'Miysah ... ', from "Im Yakum ... " - whereas from "ve'Lo Yamus" they learn - 'Amduhu le'Chayim, u'Meis' (since "ve'Lo Yamus" actually describes the Umdena).

(d) Rebbi Nechemyah maintains - that 'Amduhu le'Chayim' does not require a Pasuk, since he left Beis-Din Patur, and we know that he is Patur from the Pasuk in Mishpatim "ve'Tzadik Al Taharog".

(a) In a Beraisa in a case where Beis-Din initially assessed Shimon le'Miysah, and eventually he did indeed die, but not before he had improved and even gone outside, at which point they had assessed him le'Chayim - Rebbi Nechemyah goes after the second Omed, and exempts Reuven from Miysah.

(b) The Rabbanan say 'Ein Omed Achar Omed' - by which they mean - that the second Umdena (which is acceptable as long as he recovers) is not considered 'Yatza mi'Beis-Din Zakai' (to exempt him completely, whatever transpires). Consequently, should Simon subsequently die, Reuven is Chayav (as predicted by the first Umdena).

(c) A second Beraisa rules ...

1. ... 'Amduhu le'Miysah - Omdin Oso le'Chayim'.
2. ... 'Amduhu le'Chayim' - Ein Omdin Oso le'Miysah' (because 'Yatza mi'Beis-Din Patur).
(d) The Tana then rules that, in a case where after the second Omed Le'hakel (le'Mamon), he deteriorated and died - he will be Chayav to pay the Yorshin Nezek and Tza'ar, like Rebbi Nechemyah.

(e) We assess his value - from the time of the stroke (even though at that stage, he was assessed le'Miysah), and not from the time of the second assessment (even though that is the time when he was assessed le'Chayim).

(a) Our Mishnah rules that someone who intended to kill an animal but missed and hit a person, a Nochri, and hit a Yisrael, or a Nefel and hit a regular person is Patur.

(b) Even assuming that he was duly warned that he might kill the live Yisrael, he is Patur - because it is a Hasra'as Safek, (seeing as he might miss [see also Rashash).

(c) The Tana also rules that in a case where Reuven aimed to strike Shimon on his side with a stone say, that was not large enough to kill him at that spot, but was large enough to kill him on his heart, which is where he struck him - he is Patur.

(d) In the reverse case, where he aimed to strike him on the heart, with a stone that was large enough to kill him on the heart, but would not normally have killed him had he struck him on his side, and where he missed and struck him on his side, and by a fluke, he died - he is Patur, too.

(a) In a case where Reuven meant to strike ...
1. ... a Gadol with a stone that could not have killed him, but missed and struck a Katan instead, who was small enough for the stone to kill and who did indeed die - he is Patur.
2. ... a Katan with a stone that could have killed him, but missed and struck a Gadol instead, who was too big for the stone to kill, but by a fluke, he died - he is also Patur.
(b) Finally, the Tana rules that if someone meant to hit ...
1. ... Shimon on his side with a stone that was sufficiently large to kill him there, but struck him on his heart and killed him- he is Chayav.
2. ... a Gadol with a stone that was sufficiently large to kill him, but missed and struck a Katan and killed him- he is Chayav, too.
(c) Rebbi Shimon argues with the Tana Kama - inasmuch as he holds that even someone who means to kill Reuven and misses, and kills Shimon, is Patur, even if they are both Gedolim.

(d) To avoid Hasra'as Safek the Tana Kama requires - a. that one intends to deliver a stroke that will render him Chayav, and b. that he does so.

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