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Makos, 12

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


OPINIONS: Mar Zutra bar Tuvya states in the name of Rav that when an accidental killer steps out of the boundary of the Ir Miklat before his trial, the Go'el ha'Dam may not kill him. He derives from the verse that the Go'el ha'Dam may not kill the accidental killer until the killer is brought before the court (according to the RITVA, this means that the Go'el ha'Dam may not kill the accidental killer until the court warns the killer that if he exits the Ir Miklat, the Go'el ha'Dam will have the right to kill him). If the Go'el ha'Dam kills him before he is brought before the court, then the Go'el ha'Dam is punished as a murderer. Earlier (10b), Rav Huna states that when an accidental killer flees to an Ir Miklat and the Go'el ha'Dam kills him before he gets there, the Go'el ha'Dam is *not* punished by Beis Din as a murderer. Is Mar Zutra bar Tuvya arguing with Rav Huna?
(a) The RE'AH and RABEINU MEIR HA'LEVI, cited by the RITVA, maintain that Mar Zutra and Rav Huna are arguing. Rav Huna says that if the Go'el ha'Dam kills the accidental killer on the way to an Ir Miklat, he is not killed by Beis Din. It follows that, according to Rav Huna, the same applies if the Go'el ha'Dam kills the accidental killer when he steps outside of the Ir Miklat. Rav Huna's opinion is that of Rebbi Yosi and Rebbi Akiva, and the Halachah therefore follows his opinion.

(b) The RITVA argues that the two statements are not exclusive. Rav Huna might agree that once a killer has reached the Ir Miklat and now is considered a permanent resident of that city, it is forbidden to kill him even if he steps outside of the city limits. (Consequently, it is possible that Rav Huna is *not* following the view of Rebbi Akiva and Rebbi Yosi. They say only that the Go'el ha'Dam is not punished when he kills the killer who negligently strays outside of the city limits. Perhaps they do *not* condone the Go'el ha'Dam killing the accidental killer before he even has a chance to get to the Ir Miklat.) Moreover, if Rav Huna's view is arguing with this Tana, then the Gemara should have mentioned this earlier when it asked questions on Rav Huna's opinion; the Gemara should have answered these questions by saying that his opinion is the opinion of other Tana'im! This omission proves that they do not necessarily have the same opinion.

(RASHI seems to be making a similar distinction between the case of Rav Huna and that of Mar Zutra. Rashi adds that Rav Huna's case is "on the road on the way [to an Ir Miklat]." The HAGAHOS HA'BACH (10b) points out that Rashi adds "on the way [to an Ir Miklat]" in order to show that this is not similar to the case later where the killer steps out of his city when he is not "on the way.")

The ARUCH LA'NER and SI'ACH YITZCHAK assert that the RAMBAM understands the Gemara like the Re'ah (in (a) above). The Rambam (Hilchos Rotze'ach 5:10) rules that if the Go'el ha'Dam kills the accidental killer at *any time* after the accidental killing, he is innocent. The KESEF MISHNEH gives many reasons why the Rambam chose not to rule like Rav, who maintains that the Go'el ha'Dam is punished if he kills before the trial. One reason is the fact that, in our case, Rav follows the opinion of Rebbi Eliezer, who is from the school of Beis Shamai (and whom the Halachah does not follow).

The Aruch la'Ner and Si'ach Yitzchak explain that the Rambam learns like the Re'ah, that Mar Zutra in the name of Rav is arguing with Rav Huna. He rules like Rav Huna, since he was a later Amora than Rav. (The Kesef Mishneh does not give this answer, presumably because he learns the Gemara like Rashi and the Ritva, and maintains that Mar Zutra in the name of Rav is not arguing with Rav Huna.)

(c) RABEINU CHANANEL seems to have taken a third approach to this Sugya. According to Rabeinu Chananel, both the Mishnah and Rav in the Gemara are discussing a Go'el ha'Dam's right to kill an accidental killer *before* the court has decided that he is guilty of killing b'Shogeg. The Mishnah earlier (9b) teaches that even before the case is brought before the court, the killer must flee to an Ir Miklat. Rebbi Akiva and Rebbi Yosi permit the Go'el ha'Dam to kill the killer even though no court decision has yet been rendered. Rebbi Eliezer argues that until the court decides that the person has killed b'Shogeg, the Go'el ha'Dam has no right to kill the killer. According to this explanation, it is clear that even Rebbi Eliezer agrees that the Go'el ha'Dam may kill the killer after it has been ruled that he killed b'Shogeg. That is the case in which Rav Huna earlier ruled that the Go'el ha'Dam is exempt for killing the killer.


OPINIONS: The Mishnah discusses where a Levi goes if he kills accidentally. The problem is that all of the Arei Miklat belong to the Levi'im; they are the cities that were designated for the Levi'im. How, then, is it possible for one to be in "Galus," in exile, while in his hometown? The Mishnah explains that a Levi who kills accidentally must go from one Ir Miklat to another Ir Miklat. The Gemara cites a Beraisa which states that a Levi who stays in his own city is also protected from the Go'el ha'Dam.

How are we to reconcile the statement of the Beraisa with our Mishnah?

(a) TOSFOS (here and in Zevachim 117a) and RASHI (Zevachim 117a) explain as follows. A Levi who killed accidentally has two options -- he can go to another city, where he will be free to roam anywhere within the city limits, or he can stay in his own city and move to another neighborhood in his city. If he chooses the second option of staying in his own city, though, his movement in the city will be limited. How limited will he be? The ME'IRI cites two opinions. According to one opinion, he will be confined to a single neighborhood within the city (as TOSFOS and TOSFOS SHANTZ here imply). According to another opinion, he will be able to roam around the entire city *except* for his original neighborhood (as Tosfos in Zevachim implies; see also ARUCH LA'NER here).

Accordingly, our Mishnah is expressing one option, while the Beraisa is expressing another option.

(b) Tosfos in Zevachim and the RITVA here answer that l'Chatchilah a Levi should flee to a different city. However, b'Di'eved if he flees to his own city, he will be protected there.

The SHEYAREI KORBAN (Yerushalmi Makos 2:6) asks how can there be a ruling of "l'Chatchilah" and "b'Di'eved" with regard to such a matter? The killer is seeking refuge from a Go'el ha'Dam by fleeing to the Ir Miklat. He will be putting his life in danger by going to another city, and he certainly should be permitted to remain where he is l'Chatchilah in order to save his life and avoid putting his life in danger!

Perhaps Tosfos means that if the killer wants a greater Kaparah, he should go to another city despite the risk to his life instead of remaining in his own city.

(c) The RAMBAM (Hilchos Rotze'ach 7:5) and ME'IRI have a different understanding of the Mishnah and Gemara here. The Rambam apparently learns that when the Beraisa says that the Levi is protected when he stays in his own town, this refers only to when he killed outside of his hometown. However, when he killed in the confines of his own town, then he must fulfill the words of the Mishnah and flee to another city to seek refuge. His home city no longer protects him. (Y. Montrose)

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