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Makos, 11

MAKOS 11-15 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


HALACHAH: The Mishnah states that the mother of the Kohen Gadol would bring gifts of food and clothing to the accidental killers in the Arei Miklat. She did so in order to persuade the accidental killers from praying that her son should die (since the accidental killers are released from the Arei Miklat when the Kohen Gadol dies). The Gemara derives from here that if the killers *would* pray that the Kohen Gadol die, then the Kohen Gadol indeed would be in danger of dying. The Gemara explains that such a prayer would not be considered a "Kilelas Chinam," a curse uttered in vain which cannot be effective, because the Kohen Gadol does carry some responsibility for the accidental killing, since he should have prayed more for the well-being of the people of his generation.

This Gemara implies that a curse is effective even when a very subtle offense was committed. When does a curse take effect?

ANSWER: The Gemara in Bava Basra (153a) records an incident in which a woman approached Rava with a question. The woman, while she was a Shechiv Mera, gave her property away as a gift to someone by writing in a Shtar that she was giving her property "from life and in death." She then recovered from her illness and wanted to retract the gift. Rava, consistent with his opinion in such a case, ruled that the gift is considered to have been like a normal gift of a healthy person and it took effect already while the woman was still a Shechiv Mera, because she wrote "from life" in the Shtar, and thus the woman may not retract the gift. The woman harassed him about his ruling. In order to get her to stop harassing him, Rava told his scribe to write a Shtar for her declaring that she was entitled to retract her gift, but he instructed the scribe to add in the Shtar words from a Mishnah in Bava Metzia (75b) that would make it clear to any knowledgeable person who might read the Shtar that the Shtar was written only to get rid of the bothersome woman. The woman understood his intentions and cursed him that his boat should drown. The students of Rava soaked his clothes in water in order to cause the curse to be fulfilled in a harmless way. Nevertheless, the Gemara relates, Rava's boat still sank at sea. Why was the woman's curse effective if Rava did nothing wrong?

The NIMUKEI YOSEF and RITVA there explain that there indeed was something that Rava did wrong that allowed the curse to take effect. Rava's opinion in this matter (a Shtar of a gift of a Shechiv Mera in which the words "from life and in death" are written) was a minority opinion that was not accepted as the Halachah (as the Gemara earlier in Bava Basra states). Rava, therefore, should not have ruled in accordance with his own opinion when that opinion was overruled. As a result of ruling incorrectly, the principle that "an unintentional mistake in one's learning is equivalent to an intentional transgression" -- "Shigegas Talmud Olah Zadon" (Bava Metzia 33b) applied. Even though it was a mistake on the part of Rava, it sufficed to allow the woman's curse to take effect. (See Insights to Bava Basra 153:1 for another reason why the curse was able to take effect.)

This is the basis for the efficacy of the prayer of the accidental killer mentioned in our Gemara. For even such a small offense as not Davening enough for his constituents, the Kohen Gadol was vulnerable to the effectiveness of a curse.

We also find this concept in Bava Metzia (75b), where the Gemara says that someone who lends money without witnesses causes a curse to fall upon himself. RASHI there explains that when he makes his claim in court, everyone will curse him that he caused a man to sin by giving him room to deny his claim (by not having witnesses). The lender is certainly not a thief -- on the contrary, he is a generous man who did a favor by lending money and he is now merely trying to get his own money back!

Nevertheless, the curse can be effective because there is reason (even though the reason is minimal) for it to take effect. (Y. Montrose)

QUESTION: The Gemara relates that when David ha'Melech was digging the Shisin at the place where the Mizbe'ach would be built, he inadvertently removed a potsherd that was covering the hole of the waters of the deep. The water came up and threatened to drown the world. David ha'Melech asked whether it was permitted for him to write the name of Hashem on the potsherd and to throw it back into the water in order to stop the deluge, and -- after cursing anyone who knew the ruling but would not reveal it to him -- Achitofel told him that it was permitted to write the name of Hashem on the potsherd and throw it into the water, even though Hashem's name would be erased by the water.

What was David's question? It was certainly permitted to write the name of Hashem and cause it to be erased, because it was a situation of mortal danger, and Piku'ach Nefesh overrides almost all Isurim (except for Avodah Zarah, Giluy Arayos, and Shefichus Damim)!


(a) HA'GAON RAV Y. S. ELYASHIV (in HE'AROS B'MASECHES SUKAH) cites the RAMBAN (in Sanhedrin 73a) who rules that not only do the three Isurim of Avodah Zarah, Giluy Arayos, and Shefichus Damim override Piku'ach Nefesh ("Yehareg v'Al Ya'avor"), but also any *branch* ("Abizraihu") of those Isurim overrides Piku'ach Nefesh. Erasing the name of Hashem might have involved transgressing a subcategory of Avodah Zarah, and therefore David ha'Melech waited until he had received a Halachic ruling that it was permitted.

(b) The ARUCH LA'NER (Sukah 53a) answers that David was concerned that his action might involve a *Chilul Hashem,* and Chilul Hashem does *not* override Piku'ach Nefesh. Achitofel answered that we see from the laws of Sotah that erasing Hashem's name is not considered a Chilul Hashem.

(c) However, in his commentary to Makos, he explains the Gemara differently. The Gemara cannot mean that the whole world was in danger of being destroyed. Hashem had already promised to Noach that He would never bring such a flood upon the world again. Since Eretz Yisrael is higher than the lands surrounding it, the imminent danger must have been to a nearby country to where the water coming from the depths would flow, and not to Eretz Yisrael. Even though there was no danger to the Jews, the general surrounding areas would be in a state of unrest. David was uncertain if this situation warranted the erasing of Hashem's name. Achitofel understood from Sotah that if Hashem allowed this erasure for bringing peace between a man and wife, then He would also allow it for bringing peace between many people in the areas surrounding Eretz Yisrael.

(d) RAV SHLOMO KLUGER (in TUV TA'AM V'DA'AS), the KLI CHEMDAH, and others answer that David ha'Melech's dilemma was because of the nature of the way that erasing Hashem's name would save lives. Although it is obvious that prohibitions are suspended when there is a question of life and death, this might not be true if the act of the prohibition will save lives only in a supernatural way. This seems to be the view of the RAMBAM (Perush ha'Mishnayos to Yoma 8:6). Therefore, David did not know what to do until Achitofel taught him that it is permitted, as derived from the laws of Sotah.

(e) HA'GAON RAV Y. S. ELYASHIV further suggests that the water posed no actual mortal threat to the world. Rather, the rising water was threatening to disrupt the normal lifestyle and routine of the world. The situation did not involve Piku'ach Nefesh, and therefore David ha'Melech waited until he had received a Halachic ruling from his teacher.


QUESTION: The Mishnah states that if a person accidentally kills, and the present Kohen Gadol dies before the killer is sentenced to Galus by Beis Din, then the killer leave the Ir Miklat when the next Kohen Gadol dies.

The Gemara asks that we learned earlier that the Kohen Gadol's death is an atonement for the accidental killers, since he should have prayed more to ensure that such calamities not occur to the people of his generation. The second Kohen Gadol, however, was not the Kohen Gadol when this killing occurred. Since he was not responsible for the people at the time of the killing, why is his death an atonement for the killings? Why is he held partially responsible if there was nothing he could have done to prevent the killings? The Gemara answers that he should have prayed -- when he was appointed as the Kohen Gadol -- that this accidental killer be found innocent.

What does this mean? If the person indeed killed accidentally, then why should he Daven that the judges of the Sanhedrin find him innocent and exempt him from Galus? How can he pray that Sanhedrin err in their judgement of the killer? If the killer is guilty, then he should be judged accordingly!


(a) The ARUCH LA'NER and CHEMDAS YISRAEL suggest a novel idea. They explain that the Kohen Gadol should have asked for Heavenly mercy in order that the killer's sin be forgiven. Once the sin would have been forgiven by Hashem -- thereby causing the perpetrator not to have to go to Galus in the judgement of Hashem, Hashem would then sway the hearts of the judges to declare him innocent as well (since he no longer needs atonement). The court's judgement would not be in error, but rather it would be what the person genuinely deserves according to the Divine plan.

(This approach implies that a sinner who did complete Teshuvah for his sin would not be found guilty by Beis Din, which is a problematic implication. See further discussion on the matter in Insights to Makos 13b.)

(b) The IYUN YAKOV answers that the Gemara in Sanhedrin (17a) teaches that when all of the members of Sanhedrin agree unanimously that a person is guilty in a case of capital punishment, he is automatically exonerated from punishment (see Insights to Sanhedrin 17:2 for the reasoning behind this law). If the Kohen Gadol intervenes by praying to Hashem and causing the sin to be forgiven, then this will cause the Beis Din to unanimously rule that the defendant is *guilty*. In this way, Beis Din will not be making a mistake regarding the judgement, and the defendant will be exempt from receiving a punishment that he no longer deserves. (Y. Montrose)

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