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Bava Basra, 50

BAVA BASRA 50 (27 Iyar) - Dedicated by Gitle Bekelnitzky in honor of the Yahrzeit of her father, Zev ben Ephraim v'Chaya Krause


QUESTIONS: The Gemara says that according to Rebbi Yosi, when the owner of an Eved sells his Eved to another master with the condition that the Eved will continue to work for him for thirty days, the law of "Yom O Yomayim" applies to both masters, and thus both masters are exempt from Misah if either one hits the Eved and he dies from his wound after one full day. The Gemara says that Rebbi Yosi's reason for exempting both masters is because he holds that is a doubt whether or not a Kinyan Peros (the rights to the Eved's service) is like a Kinyan ha'Guf (the ownership of the actual body of the Eved). Consequently, we cannot determine who the true owner of the Eved is who should be exempt because of "Yom O Yomayim." Due to this doubt, we apply the rule "Safek Nefashos l'Hakel" and exempt both masters from Misah.

The RASHBAM explains that the principle of "Safek Nefashos l'Hakel" is learned from the verse, "v'Hitzilu ha'Edah" -- "and the congregation shall save" (Bamidbar 35:25), which teaches that Beis Din is obligated to try to exempt a person from a Chiyuv Misah and not to kill him (Sanhedrin 32b). This is also the way RASHI explains in Kesuvos (15a) and Bava Kama (44b). The Gemara there discusses a case in which a person throws a stone into a group of ten people, half of whom are Jews and half are Nochrim. Even if the stone kills one of them, the one who threw it is exempt because of "Safek Nefashos l'Hakel." Rashi explains that we are lenient in a case of a Chiyuv Misah because of the verse, "v'Hitzilu ha'Edah."

Rashi's source seems to be the Gemara in Pesachim (12a) in which Rebbi Yehudah says that when two witnesses attempt to have a person put to death, and one of the witnesses says that the event occurred in the third hour of the day and the other witness says that it occurred in the fifth hour of the day, their testimony is accepted. The Gemara explains that it is possible that the event occurred halfway through the *fourth* hour, and a person is not so careful to clarify the exact time of an event by more than half an hour. The witness who says that the event happened in the third hour means that it happened in the *end* of the third hour (which is the beginning of the fourth hour), and he is off by just half an hour. The witness who says that the event happened in the fifth hour means that it happened in the *beginning* of the fifth hour (which is the end of the fourth hour), and he, too, is making a mistake of only half an hour. The Gemara asks how can we accept such testimony in order to put a person to death? We have not clarified what the true intentions of the witnesses were, and thus we are in doubt about what they actually meant to say. We cannot put a person to death out of doubt, because "Safek Nefashos l'Hakel!" The Gemara there adds, "and the verse says, "v'Hitzilu ha'Edah."

There are a number of questions on the explanation of Rashi and the Rashbam.

(a) Logically, why should it be necessary for Rashi to suggest that the verse is needed to exempt a person from a Chiyuv Misah? If there is a Safek if someone should be put to death or not, we certainly should not kill him mi'Safek, just like we do not do any act in order to fulfill a Safek Chiyuv when we might be doing an Isur. For example, if a person has a garment which has a Safek whether it needs Tzitzis or not, and there is linen in the garment, it is clear that one does *not* put Tzitzis on the garment, because when there is a Safek Mitzvah (Tzitzis), one certainly does not do a Vadai Isur (Sha'atnez) in order to fulfill the Safek Mitzvah. Similarly, even if it might be that this person is supposed to be killed, how can we kill him out of Safek if, by doing so, we definitely will be doing an act of Retzichah by killing him? The Safek Mitzvah to put him to death cannot override the Isur of killing (when there is no Chiyuv)! (KOVETZ SHI'URIM)

(b) There are a number of sources that prove that a person is not punished when there is a Safek regarding his Chiyuv. That is, besides the logical reason (as written above), we find that in Dinei Mamonos, monetary matters, if there is a Safek whether a person is Chayav, Beis Din exempts him. Certainly, then, when a there is a Safek whether or not a person is Chayav Misah or Chayav Malkus, Beis Din cannot punished him. Beis Din cannot execute a punishment mi'Safek! Why, then, do Rashi and the Rashbam find it necessary to cite the verse of "v'Hitzilu ha'Edah," which applies only to a Chiyuv Misah, when we find that there is a general rule that Beis Din never acts on a Safek? (TOSFOS DH Safek Nefashos l'Hakel)

The case of the Gemara in Pesachim (loc. cit.) is not comparable to the case of our Gemara with regard to these two questions. The Gemara there is discussing a situation in which we have sufficient testimony to kill the defendant, and the Gemara is asking, first, why is that considered sufficient testimony -- perhaps the two witnesses do not mean what we think they mean. The Gemara then adds that even if we have no reason to assume that the witnesses do not mean what we think they mean (because we should not assume that witnesses are liars if there is no reason to do so), we still should not accept their testimony as long as we possibly can find a way to prove that they are liars by asking them further questions that might cause them to contradict each other. This principle is learned from "v'Hitzilu ha'Edah" which teaches that Beis Din should make every effort, in cases of Dinei Nefashos, to try to acquit the defendant of the death penalty.

(c) If it is true that the person who killed would be Chayav Misah out of doubt, and the only reason he is exempt is because of the verse "v'Hitzilu ha'Edah," then why will a person who does a Safek Aveirah which is Chayav *Malkus* be exempt? We find in many Mishnayos that if a person does a Safek Isur d'Oraisa he cannot be punished with Malkus ("Patur Aval Asur"). The reason he is exempt is not because of "v'Hitzilu ha'Edah," because that verse applies only to Dinei Nefashos, cases which are judged with 23 Dayanim (as we learn from that verse). A case if a Chiyuv Malkus, on the other hand, can be judged with three Dayanim, according to the Chachamim in Sanhedrin (2a), and yet we find no dispute about a person who does an act of a Safek Chiyuv Malkus being exempt from Malkus. Such a person is certainly exempt, even though the verse of "v'Hitzilu ha'Edah" does not apply! It should be evident, therefore, that there is another factor exempting a person from Malkus in a case of a Safek, and, likewise, that factor should exempt a person from a Chiyuv Misah in a case of a Safek!

(a) With regard to our question based on logic (how can Beis Din kill someone if it is not certain that he is Chayav Misah, when there is an Isur of Retzichah? Beis Din should avoid the Isur of Retzichah instead of killing a person mi'Safek), the answer is that if Beis Din rules that a person is Chayav Misah, then there is no Isur against killing him; Beis Din can decide whether a person is Chayav Misah, Chayav Malkus, or not Chayav at all. It is in Beis Din's ability to make the ruling that a person is Chayav Misah or Chayav Malkus. Once Beis Din makes the ruling, then whether or not the person actually committed the Aveirah, Beis Din has ruled and the person is Chayav. The person can be punished and there is no Isur of Lo Tirtzach (not to kill) or Lo Yosif (not to give Malkus when undeserved), because Beis Din has ruled that the person must be punished. Hence, there is no Isur of killing a person opposing the Mitzvah of giving the punishment to the person. (See AYELES HA'SHACHAR)

(b) That still does not answer, though, *why* Beis Din should rule that a person is Chayav Misah in a case of a Safek. In the case of Dinei Mamonos, as Tosfos says, we see that Beis Din does not rule in the case of a Safek. To the contrary, we see that when Beis Din has a Safek if someone is obligated to pay or not (even in the case of a Kenas), Beis Din does *not* obligate him to pay. Why, then, in the case of Dinei Nefashos should Beis Din punish the person in a case of a Safek?

RAV YOSEF ENGEL (Beis ha'Otzar, Erech Aluf-Yud, #55) and the KOVETZ SHI'URIM suggest an answer that answers both this question and the previous question. The Rashbam does not mean to say that we do not kill the master because of "v'Hitzilu ha'Edah." Rather, he means that "v'Hitzilu ha'Edah" teaches that when a person's guilt is in question, the verse exempts him from Misah with certainty. (This is similar to the concept of "Safek Tum'ah b'Reshus ha'Rabim Tahor" and "Safek Tum'ah b'Reshus ha'Yachid Tamei," which teaches that the object of a questionable Tum'ah in Reshus ha'Yachid is Tamei not merely mi'Safek, but it is Vadai Tamei (see Insights to Sotah 28:2).) What difference does it make, though, whether a person is exempt from Misah because of a Safek or because of a Vadai? They explain that one difference would be with regard to the laws of a Shor ha'Niskal. The Mishnah in Sanhedrin (2a) teaches that a Shor that killed is punished with death only in a situation in which, had a person killed, the person would be punished with death, based on such testimony. What would be the Halachah in a case of a Shor ha'Niskal that is Safek Chayav Misah? If a person is exempt from Misah in such a situation because his Chiyuv is a Safek, then the animal, in such a situation, will be killed mi'Safek, because there is no law of Piku'ach Nefesh to tell us not to kill the animal mi'Safek. If, on the other hand, a person is exempt from Misah out of *certainty* when his Chiyuv is in doubt, then the Shor ha'Niskal should also be exempt from Misah, just like a person is exempt from Misah.

Why, though, does the Rashbam have to mention this Halachah in our Sugya? RAV YAKOV KAMINETSKY zt'l (in EMES L'YAKOV) suggests that in the Beraisa, Rebbi Yosi implies that the master who owns an Eved with Kinyan Peros is exempt in *all* situations, even if he had another Eved which he owned with a Kinyan ha'Guf (and not Kinyan Peros), and he hit both of his Avadim at the same time. Had it not been for the Vadai exemption (learned from the verse of "v'Hitzilu"), he would be Chayav Misah, because he definitely killed one Eved that was his full Kinyan (even though we do not know which one it is; see Rashi to Yevamos 101a, DH Chayav). However, Rav Yosef Engel proves that this is not correct l'Halachah. First, the Gemara in Kerisus (24a) teaches that when a Shor ha'Niskal is Safek Chayav Misah, it *is* killed. Second, the Gemara in Sanhedrin (36b) teaches that the law of a Shor ha'Niskal is similar to the law of the Chiyuv Misah of a person only with regard to the requirement of being judged by a Beis Din of 23, and not with regard to the Halachos learned from the verse of "v'Hitzilu ha'Edah." Third, the practical difference that Rav Yakov Kaminetzky suggests is not clear, because, in that case, the master has a Vadai Chiyuv Misah and not a Safek Chiyuv Misah, and thus "v'Hitzilu ha'Edah" should not exempt him. Fourth, it is not clear why Rashi should mention "v'Hitzilu ha'Edah" in the case of the person who throws a stone into a group of people; why should Rashi need a Vadai exemption in that case, when the exemption mi'Safek suffices? Finally, if this explanation was correct, then the Rashbam and Rashi would have to have a source for their words that there is a Vadai exemption, and yet we find no such source.

Therefore, perhaps the answer might be as follows. In a case of Dinei Nefashos, when Beis Din is not certain whether a person is Chayav, there is no reason to take the money away from one person and give it to another person. Why should the other person have more rights than the person who is losing the money? Since we do not know what to do, Beis Din leaves the money with the person who is holding it. In contrast, in cases of Dinei Nefashos and Dinei Malkus, the punishment also serves as a *Kaparah*, an atonement, for the person. Perhaps even when we are not certain whether the person is obligated to receive the punishment, he should be given the punishment out of doubt in order to attain Kaparah. Therefore, Beis Din should rule that he is Chayav, thereby permitting us to give him the punishment. Indeed, we find such a concept with regard to Kaparah regarding a person who has a Safek whether he ate Terumah or not. He is Chayav to separate a Chomesh as payment, because the Chomesh is a Kaparah (see Tosfos in Kesuvos 30b, DH Zar). In our case, with regard to punishments, Rashi is learning that Beis Din can punish a person out of doubt, and it is not like Dinei Mamonos. It is not clear what Rashi's source for this is, but this nevertheless explains the difference between Dinei Mamonos and Dinei Nefashos.

It should be noted that we are not discussing a person who might not have committed a crime. If there is a question whether or not the person did an Aveirah which obligates him to be punished with Misah, it is clear that we do not punish him out of doubt, because perhaps he did not sin and he needs no Kaparah. In our Sugya, the master who killed the Eved certainly did an Aveirah of Retzichah (as the Rashbam writes on 50a, DH Mipnei). Similarly, in the Gemara in Kesuvos, when a person throws a stone into a group of people in which there are five Jews and five Nochrim and the stone kills a Jew, the person has definitely committed a sin, since he knew that his action could result in the death of a Jew (as Tosfos there explains, the Gemara is following the opinion that Hasra'as Safek is a valid Hasra'ah).

(c) Rashi himself seems to have been bothered by the question of why a person is exempt from Malkus in cases of Safek. Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, proper warning from witnesses, since his Hasra'ah was a Hasra'as Safek (Rashi in Yevamos 99b, DH Ein Sofgin; see also Rashi in Yevamos 101a DH Chayav; Chulin 23b, DH Ela d'Rebbi Yehudah; Chulin 80a, DH Tayish ha'Ba Al ha'Tzeviyah; Chulin 86a, DH she'Eino Sofeg). When Rashi uses the term "Hasra'as Safek" in these places, he is not referring to the Machlokes Amora'im in Makos (15b) regarding whether Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos is referring to a situation in which it will become clear later whether the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, since we do not expect it to become clear later whether or not the Aveirah was transgressed, everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was a Vadai Aveirah. (In cases of a Safek Aveirah, we are certain that the transgressor did something wrong, since he knew that he was doing a Safek Aveirah, and therefore he would have been punished had it not been for the fact that it was a Hasra'as Safek, just like the case of the person who threw a stone into a group of people, half of whom were Jews and half were Nochrim.) Rashi's source might be the Gemara in Sanhedrin (89b) which says that a person who is eating dates and people tell him not to eat them because they might be Asur (see ME'IRI) cannot be given Malkus because nobody can give him a proper Hasra'ah. The Gemara should have said that he cannot be punished because nobody knows that he sinned! Instead, the Gemara says that he is not punished because nobody can give him Hasra'ah, implying that one who does a Safek Aveirah does not receive Malkus because it is lacking Hasra'ah.

If Rashi maintains that a person is exempt from Malkus because it is a Hasra'as Safek, then why would that not suffice to exempt a person from Misah as well? A person needs Hasra'ah in order to be Chayav Misah, and thus Rashi should have exempted cases of Safek Nefashos because of the lack of Hasra'ah!

The answer is that in our Sugya, the person definitely did an Aveirah of Retzichah, for even if he is the true master of the Eved, it is prohibited for him to kill the Eved. The only question is whether the person is exempted from punishment for his transgression because of the law of "Yom O Yomayim." Therefore, the Hasra'ah that is given to him is a Hasra'as Vadai. In the Sugya in Kesuvos, there is also a Hasra'as Vadai, because when the stone does kill a Jew, we know for certain that an Aveirah of Retzichah was committed (and the Gemara holds that an Aveirah which will only become known after the act is done can obligate a person to be punished, as Tosfos there writes). (M. Kornfeld)


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