THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
1) INDIRECT MURDER
OPINIONS: Rava rules that when a person ties someone with rope and leaves
him in front of a lion who subsequently kills him, the person is not
sentenced to death by Beis Din as a murderer (Hashem will deal with him appr
opriately). The RAMBAM (Hilchos Rotze'ach 3:10) states that such a person
"is a murderer and the One who avenges blood will seek it from him."
Nevertheless, what is the reasoning behind Rava's ruling? Why is this man
not liable as a full-fledged murderer for his act?
(a) RASHI explains that the perpetrator was not fully responsible for the
death of his victim; even if the victim had not been tied up, he would not
have been able to save himself from the lion. Since he would have died
anyway, the one who tied him up is not considered to have committed an act
Rashi's explanation implies that if the victim would have been able to
escape had he not been tied up, then the one who tied him would be guilty of
The YAD RAMAH asks that this is contradicted by Rava's own ruling cited in
the previous line of the Gemara. Rava discusses a person who ties someone
down at a time -- and in place -- where the sun is not yet shining, knowing
that when the sun rises its heat will kill the person who is tied there.
Rava rules that the perpetrator cannot be executed by Beis Din, because at
the time of his act, there was nothing deadly about his act; the victim's
death did not occur until much later, as a result of the sun's heat.
According to Rashi's explanation, though, what difference is there between
the case involving the lion and the case involving the sun?
(b) The YAD RAMAH therefore explains that one can be executed by Beis Din
only when the perpetrator himself places the lethal force upon the victim
when the victim has no means of escape. When it is a lion, or the sun, that
killed the victim, the perpetrator cannot be executed by Beis Din for
This seems to be the way the Acharonim understand the Rambam. The Rambam
(ibid.) records the other ruling of Rava, in which Rava states that a person
who overturns a barrel onto another person, causing him to suffocate to
death, is not punishable by Beis Din. However, the Rambam also rules that if
a person builds a structure around someone else, preventing oxygen from
reaching him and thereby killing him, he is considered a murderer and can be
executed by Beis Din. The KESEF MISHNAH asks that these two rulings clearly
seem to contradict each other. The Kesef Mishnah answers that when someone
is building such a structure, even before the last brick is placed there is
very little air left. Sealing off the last bit actively creates the lethal
atmosphere which will kill that person. In contrast, the second after a
barrel is placed over the person, there is still decent air inside which
only gradually turns virulent. This is not a direct act of murder and
therefore Beis Din cannot punish the perpetrator.
(c) Alternatively, the Yad Ramah explains that a lion is not always hungry
and will not always eat. Hence, by tying someone up and placing him in front
of a lion, it is not certain that the lion will touch the person. The same
applies to a dog or a snake; if someone forces his dog or snake to attack a
helpless person, it is not definite that the animal will attack, and thus
the perpetrator is not liable for murder if the animal does kill. Rava would
agree that if a person forcibly places someone in an area where there are
deadly mosquitoes, and he is bitten to death by the mosquitoes, the
perpetrator is Chayav Misah as a murderer.
According to this explanation, the perpetrator is Chayav because mosquitoes
are always hungry. Moreover, the RAN explains, if someone would see that the
lion is ready to attack the person and is going to eat him, he is considered
a murderer for tying him up and having him killed. This apparently would
also be true if someone starves a lion before tying up his victim. (Y.
2) THROWING A BALL TO KILL SOMEONE
OPINIONS: Rava states that if a person throws a rock at a wall, causing the
rock to bounce off and kill someone, the perpetrator is guilty of murder.
The Gemara cites two teachings which reflect this ruling. Both teachings
involve throwing a ball against a wall to make it bounce off in the manner
of a game that children play, as RASHI explains. Rashi explains that one
person hurls the ball with as much force as he can so that it bounces off
the wall and goes as far as possible. The thrower then runs away from the
person retrieving the ball, who must then try to hit the thrower with the
ball. It appears from Rashi that the rules of the game limit the movement of
the players once the ball has been retrieved. The thrower must stop running
away, and the retriever may not move from his place, but rather he must try
to hit the thrower with the ball from where he is standing. This is why the
thrower wants the ball to go as far away as possible, so that he will be
farther away from his opponent's throw (see ARUCH LA'NER).
The first teaching cited by the Gemara ("Tana Tuna") explains that when the
person who threw the ball against the wall intended to kill the other player
by the force of the ricochet, then he is guilty of murder. If the thrower
did not intend to kill his opponent (but he killed him by accident), he must
go to an Ir Miklat (Galus) like any other person who kills unintentionally.
This teaching shows that someone who can aim his ricochet with precision is
considered the same as someone who throws a lethal object directly at his
The second teaching cited by the Gemara ("Tani Rav Tachlifa bar Ma'arava")
states that when the victim was within four Amos of the wall when he was
killed, the thrower is *not* guilty. When the victim was farther than four
Amos from the wall, the thrower is guilty. What is this teaching referring
to -- to one who killed on purpose (and might be guilty of murder), or to
one who killed by accident (and might be Chayav Galus?
(a) Rashi cites an explanation that says that this teaching is referring to
the thrower being guilty of *intentional* murder.
TOSFOS, however, strongly rejects this explanation, because if the thrower
was warned not to kill his opponent, and the thrower exclaimed that he will
proceed to do so despite the consequences that he will face, then what
difference does it make whether the victim was within four Amos or not? The
thrower is a murderer!
(b) Tosfos therefore concurs with the first explanation that Rashi gives. He
explains that this Gemara is similar to the Gemara in Bava Kama (26b). The
Gemara there states that if a person intended to throw an object two Amos
and it traveled four Amos (or vice versa) and the object killed someone, the
throw is *not* Chayav Galus. Similarly, in the case of our Gemara, we assume
that the thrower wanted the ball to go farther than four Amos from the wall,
since that is normally how the game is played. Therefore, if the ball fell
within four Amos and killed someone, then the thrower does not go to Galus
because the act that he intended to do was not accomplished.
Tosfos questions the ruling of the Gemara in Bava Kama. The Gemara there
derives its rule from a verse in Shemos (21:13). The Gemara in Makos (7b)
learns from a similar verse in Bamidbar (35:22) that someone who planned to
throw an object to one side but accidentally threw it to a different side
and thereby killed someone with the object does *not* go to Galus. The rule
in the case in Makos is more obvious than the rule in Bava Kama, because in
the case in Makos the thrower had no intention whatsoever that the object
should be thrown in the direction of the victim. Why, then, does the Gemara
not learn this more basic exception from the earlier verse in Shemos? It
should use the first verse to teach the more basic exception, and then use
the second verse to teach the less obvious exception!
Tosfos points out that there is another explanation of the Gemara in Bava
Kama, cited by Rashi there, that states that the Gemara means that the
thrower *does* go to Galus, and the Gemara there is excluding the thrower
only from being called an intentional killer (and the Gemara is teaching
that he is not considered like someone who throws an object to the wrong
side; see MAHARSHA). RABEINU TAM also rules like this. Tosfos says that if
one accepts this opinion, then he indeed must learn that our Gemara is
dealing with intentional killing, because one who killed unintentionally in
the manner described by the Gemara (i.e. by throwing the ball *less* than
four Amos and killing the victim) *would* go to Galus.
According to this approach (which is how Rabeinu Tam learns our Gemara), how
do we answer Tosfos' question that this person should be considered a
murderer whether the ball struck the victim inside or outside of four Amos?
The RAN agrees with the explanation of Rabeinu Tam and answers this
question. He asks that if Tosfos is correct, then the question of Tosfos can
also be asked on the Mishnah later (78b). The Mishnah says that when a
person intended to kill an animal and instead killed a man (and he had been
warned not to kill the man), he is exempt from the punishment of Misah since
he had no intention to kill the man. How can we say that he had no intention
to kill the man if he received Hasra'ah not to kill the man, and he accepted
The Ran explains that it must be that in both the case of the Mishnah later
(78b) and the case of our Gemara, witnesses warned a person not to throw an
object in a certain manner as it might kill a person standing there if it
goes out of control, and the thrower said that he was going to throw it
anyway. In our case, the witnesses told the thrower, "Do not to try to make
the ball bounce off the wall, even though you intend that it bounce more
than four Amos away from the wall, because there is a person standing within
four Amos who might be killed if your aim is off." The thrower said that he
was going to throw the ball anyway. Nevertheless, he is not a murderer,
because it is known that the nature of the game is to make the ball bounce
farther, and thus he did not intend for the ball to bounce within four Amos.
The same applies to the case of the person who intended to kill an animal
but killed a person instead. This also seems to be the intention of Rashi
The ARUCH LA'NER gives another answer for this opinion. Since it is normal
to make the ball bounce more than four Amos from the wall, and the ball will
only kill if it falls less than four Amos from the wall, the warning that
was given is only a "Hasra'as Safek," a warning given when it is not clear
that the action will lead to a punishment in Beis Din. This Gemara is
following the opinion which maintains that such a Hasra'ah is not considered
a valid Hasra'ah. (Y. Montrose)