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Kollel Iyun Hadaf, Jerusalem

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Sanhedrin 79

SANHEDRIN 79 (24 Kislev) - Dedicated by R. Ginsberg of Queens, NY, l'Iluy Nishmas his father, Arnold (Aharon Yehudah ben Reb Nasan) Ginsberg, for his 19th Yahrzeit.



(a) We refute the suggestion that Rebbi Shimon ('Afilu Niskaven La'harog es Zeh ... Patur') refers to the Seifa 'Niskaven Le'hakos es ha'Gadol ... Chayav' on the grounds - that if that were so, then the Mishnah should have just said 'Rebbi Shimon Poter'.

(b) So we establish him on the Reisha - 'Niskaven La'harog es ha'Beheimah ve'Harag es ha'Adam ... Patur', from which we can infer 'Ha Niskaven La'harog es ha'Adam ve'Harag es ha'Adam, Chayav. Rebbi Shimon Omer ... Patur'.

(c) The Mishnah waits until here to express Rebbi Shimon's opinion - because had he said it at the end of the Reisha, we would have thought that he also refers to all the cases, even to 'Niskaven al Masnav, ve'Halchah Lo al Libo', which of course, he does not.

(a) When we ask 'le'Chad Minaihu Mai', we mean to ask - what the Din will be according to Rebbi Shimon, if he declares that he doesn't mind whether he kills Reuven or Shimon, whether that is considered Miskaven or not, seeing as on the one hand, he did intend to kill the person that he killed, but on the other, he would not have minded had he killed the other one.

(b) We also ask - what the Din will be if he aimed at one specific person, thinking that it was Reuven, but it turned out to be Shimon, since on the one hand, he did aim at the person whom he hit, but on the other, it was a matter of mistaken identity.

(c) To resolve the She'eilos, we cite a statement of Rebbi Shimon, who specifically says in a Beraisa - 'Ad she'Yomar li'Peloni Ani Miskaven', precluding both of the above cases.

(a) Rebbi Shimon learns from the Pasuk "*ve'Arav Lo* ve'Kam Alav" - 'ad she'Yiskaven Lo' (like we just explained).

(b) The Rabbanan learn from there 'P'rat le'Zarak Even le'Gav' (to preclude someone who throws a stone into a group of people and kills one of them). They cannot be referring to a case where someone tosses a stone into a group comprising ...

1. ... nine Nochrim and one Yisre'elim - because he would be Patur anyway, since there are a majority of Kutim.
2. ... five Nochrim and five Yisre'elim - because then we would apply the principle 'Safek Nefashos Le'hakel' (we always go to the lenient side in matters concerning life and death).
(c) So they must be referring - to a group of nine Yisre'elim and one Kuti, where he would normally be Chayav, because there are Rov Yisre'elim.

(d) The principle we learn from the Pasuk is - that when the Miy'ut is fixed (Kavu'a), as it is here (one known Kuti among the group), then it has the Din of Mechtzah al Mechtzah, and the murderer is not sentenced to death.

(a) We already discussed in 'ben Sorer u'Moreh' the Parshah in Mishpatim of two fighting men, one of whom strike a woman. When Rebbi Elazar, commenting on the Pasuk "ve'Im Ason Yiheyeh ... " states 'be'Mitzvos she'be'Miysah ha'Kasuv Medaber', he means - that the Pasuk speaks when the man actually intended to kill his friend (turning this into a classical case of 'Niskaven La'harog es Zeh ve'Harag es Zeh').

(b) The Rabbanan now interpret the conclusion of the Pasuk "ve'Nasata Nefesh Tachas Nafesh" - literally.

(c) Rebbi Shimon will interpret the Pasuk like Rebbi, who learns in a Beraisa from the 'Gezeirah-Shavah' "Nesinah" ("ve'Nasata Nefesh ... ") "Nesinah" ("Lo Yiheyeh Ason", in the same Parshah, in the case where the woman is not killed) - that just as in the latter case, "ve'Nasan" means monetary payment, so too in the former (when she *is*), because 'Niskaven La'harog es Zeh ve'Harag es Zeh, Patur'.




(a) Tana de'Bei Chizkiyah does not differentiate between a Shogeg and Meizid, Miskaven and Eino Miskaven and Derech Yeridah ve'Derech Aliyah (whether the culprit dealt an upward stroke or a downward one), with regard to someone who killed ...
1. ... an animal - in which case, he is always Chayav to pay.
2. ... a person - in which case, he is always Patur from paying.
(b) His source for this latter ruling is - the Hekesh 'Makeh Adam to Makeh Beheimah' (which are written in the same Pasuk).

(c) We learn from the Pasuk "Petza Tachas Patza" - that someone who damages somebody else's property even be'Shogeg, is Chayav to pay.

(d) The significance of 'Derech Yeridah ve'Derech Aliyah' is that we *do* find such a distinction with regard to the 'Chiyuv Galus' if someone killed be'Shogeg (where he is Patur if he dealt an upward stroke).

(a) We cannot interpret 'Miskaven and Eino Miskaven' literally - because then it would be the same as 'Shogeg ke'Meizid'.

(b) What it therefore means is - 'she'Ein Miskaven la'Zeh Ela la'Zeh' (the case in our Mishnah currently under discussion).

(c) We know that Tana de'Bei Chizkiyah is speaking even in a case where the culprit does not actually receive Miysah - because otherwise, it would not need a Pasuk (since it would then be synonymous with 'Kam Leih bi'de'Rabah Mineih').

(d) Tana de'Bei Chizkiyah argues with ...

1. ... Rebbi (and Rebbi Shimon) in that, according to the latter, Niskaven La'harog es Zeh is Chayav Mamon, and according to ...
2. ... the Rabbanan, even Miysah - whereas Tana de'Bei Chizkiyah exempts him completely.
(a) According to the Tana Kama of our Mishnah, if a Rotze'ach got mixed up in a group of other people, they are all Patur. Rebbi Yehudah holds - 'Konsin Osan le'Kipah', which entails placing them all in a room and feeding them barley, until their stomachs split.

(b) If the same happened to a group of Chayvei Miysos, they would all receive the most lenient of the deaths that are due. Niskalin who got mixed up with Nisrafin receive ...

1. ... Sekilah, according to Rebbi Shimon.
2. ... Sereifah, according to the Chachamim.
(c) Rebbi Shimon proves that Sereifah is more stringent from the fact that a bas Kohen receives Sereifah. The Chachamim counter that argument however - with the argument that if Sereifah was more stringent, why does the Torah sentence a Megadef and an Oved Avodah-Zarah to Sekilah?

(d) Rebbi Shimon says 'Sekilah', even if the majority of the group are Nisrafin.

(a) When our Mishnah speaks about a Rotze'ach who got mixed up in a group of other people - 'other people' cannot be taken literally - because why should innocent people be sent to the Kipah?

(b) Rebbi Avahu Amar Shmuel therefore establishes it by - a Rotze'ach whose Din has been started but who has not yet been sentenced, who got mixed up in a group of murderers who have.

(c) And the basis of the Machlokes between Rebbi Yehudah and the Rabbanan according to him is - whether the Din of a criminal can be completed when he is not present (or unidentifiable [Rebbi Yehudah]) or not (the Rabbanan) exempt them all even from 'Kipah', whereas Rebbi Yehudah sentences them all to Kipah?

(a) Resh Lakish maintains that if our Mishnah was talking about people, both Tana'im would agree that they would all be Patur - in keeping with the Pasuk "ve'Hitzilu ha'Eidah".

(b) Their Machlokes according to him is about (not people, but) - animals who got mixed up in the same way, and they argue over whether an ox can be sentenced not in its presence, as we just explained.

(c) Rava asks however, from Rebbi Yossi in a Beraisa, who says 'Afilu Aba Chalafta Beinehen' - querying both of the above opinions, since Aba Chalafta was neither a sentenced murderer, nor an animal.

(d) Aba Chalafta was - the father of Rebbi Yossi.

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