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Makos, 13

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


OPINIONS: Rebbi Yehudah states in the Mishnah that "they would pay the Levi'im" when living in the Ir Miklat, since the cities of refuge belong to the Levi'im. Rebbi Meir says that "they would not pay." Who are "they" being discussed, and for what would they pay?
(a) RASHI explains that the normal residents of the city would pay money to the Levi'im, since the accidental killers who lived there would pay rent to the residents for their living quarters.

(b) TOSFOS disagrees and says that the killers would pay the regular taxes and property taxes to the Levi'im.

The AMTACHAS BINYAMIN poses possible proofs for each side. On one hand, the wording of the Mishnah seems to support the explanation of Rashi. The Mishnah throughout this Perek always refers to laws dealing with the killer in the singular (such as "a killer who was exiled to an Ir Miklat..."). Since the Mishnah here is expressed in the plural, it is more likely referring to another subject other than the killers, namely the *cities*. On the other hand, the wording that they would give payment "to the Levi'im" (i.e. the owners of the cities) instead of to "the owners of the houses" apparently supports Tosfos' understanding.

The ARUCH LA'NER explains that the argument between Rashi and Tosfos essentially is an argument whether or not accidental killers must pay rent. Paying rent is a more direct responsibility than having to pay taxes. In the Mishnah, Rebbi Yehudah states only that killers must pay rent. According to Rashi, this implies that they do not have to pay property taxes. According to Tosfos, even Rebbi Meir might agree that killers must pay rent, since the Mishnah discusses only whether or not they have to pay taxes.

The CHIDUSHEI REFA'EL learns Rashi's intention differently. He understands that according to Rebbi Yehudah, the cities around the Ir Miklat would invest in rental properties for killers who would be exiled there. Rebbi Yehudah states that these investors would pay the Levi'im for maintaining these properties, which is a roundabout way of saying that the killers paid rent. Obviously, the money from the rentals would go to these investors.

The SI'ACH YITZCHAK asks an interesting question on the explanation of Tosfos. The Gemara in Yoma (12a) says that the houses of Yerushalayim are not able to become Tamei with Tum'as Tzara'as, because they do are not really owned by anyone (according to the opinion that Yerushalayim was not divided among the Shevatim). This was demonstrated by the fact that houses were not rented out in Yerushalayim. If the people of Arei Miklat do not have to pay rent, then their houses also should not become Tamei with Tum'as Tzara'as!

The Si'ach Yitzchak answers that this is not really a question. Even though the houses could not be rented out to killers, they could be rented out to others who came to live there, and thus certainly they could become Tamei. (Y. Montrose)


QUESTION: Rebbi Akiva states that every prohibition that is punishable by Kares also carries with it the possibility for the punishment of lashes. This does not apply to prohibitions which are punishable with a death penalty, since those transgressors already receive death as a physical punishment. Rebbi Akiva explains that this is just and fair, since it is possible that the person who is Chayav Kares might *only* receive Malkus and not an additional punishment of Kares, because he might do Teshuvah and repent before he dies, in which case Hashem will not give him Kares.

RASHI (DH Rebbi Akiva) explains that Rebbi Akiva is saying that his statement does not contradict the verse which teaches that one cannot be punished with two punishments for one act. Rebbi Akiva's opinion is consistent with that rule, because a person can exempt himself from the punishment of Kares by doing Teshuvah, and thus he receives only Malkus.

However, there is another difficulty with the statement of Rebbi Akiva. We know that Hashem accepts a person's genuine Teshuvah and absolves him from punishment. Why, then, does Beis Din not do the same? Why does Beis Din still punish a penitent with Misah or with Malkus, if Hashem does not punish such a person? Just as Hashem forgives the person's obligation of Kares, Beis Din should absolve the Ba'al Teshuvah from Misah or Malkus!


(a) The NODA B'YEHUDAH (OC I:35) explains Rebbi Akiva's view based on an understanding of punishment at the hands of Beis Din. Hashem commanded Beis Din to punish evildoers in order for other people to see the severity of sin. The punishment serves as a strong deterrent for anyone who might be aspiring to rebel against the Torah or transgress the Mitzvos. The Torah obviously wants the death sentence carried out for this reason), because otherwise it would not state so often that these transgressors are killed. Accepting the repentance of a Ba'al Teshuvah and absolving him from punishment would result, practically, in no sinner ever being killed. There would no longer be a deterrent, and people would be lax in their observance of the Mitzvos. Therefore, the Torah could not permit such repentance to absolve the person from punishment at the hands of Beis Din. (For more about the deterrent element of punishment, see Insights to Sanhedrin 89a).

(b) The ARUCH HA'SHULCHAN HA'ASID (Sanhedrin 58:2), MA'AYAN HA'CHOCHMAH, and others write that, in truth, Beis Din *should* absolve a Ba'al Teshuvah from punishment. However, it is not always possible to know who has repented sincerely and who has not. Only Hashem truly knows the inner thoughts and motivations of a person, and thus only Hashem can absolve a person of a punishment because of the person's Teshuvah, and not Beis Din.

(c) The HA'ME'IR LA'OLAM takes a different approach to the concept of Teshuvah absolving a person from punishment at the hands of Hashem. He says that Teshuvah does not take away the person's death sentence. Rather it causes a large amount of Divine mercy to accumulate which prevents the person from being punished by Heaven. The person's guilt still remains; it is the overriding factor of Hashem's mercy that prevents the person from receiving the punishment he deserves. In contrast, when a person must be punished by Beis Din, there is no mercy that is aroused to protect him from Beis Din's punishment.

(d) An approach opposite to that of the Ha'Me'ir la'Olam is suggested by the ARUCH LA'NER and CHEMDAS YISRAEL. The Mishnah earlier (11b) discusses a case in which the Kohen Gadol dies before an accidental killer is sentenced to Galus by Beis Din. In such a case, when does the killer leave the Ir Miklat? The Mishnah states that he leaves 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 the Kohen Gadol should have prayed more that such calamities not occur to his people. The second Kohen Gadol, however, was not the Kohen Gadol when this killing happened, and thus he carried no responsibility for the people at the time of the killing! What, then, was he supposed to have done to prevent the killing, such that his death should now be an atonement for the killer? The Gemara answers that he should have prayed when he became Kohen Gadol that this person should be found innocent. This means 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 according to 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 implies that someone who did complete Teshuvah for a sin he committed would not be found guilty by Beis Din.

According to this explanation, when any person is put to death by Beis Din, it is a sign that that person was not a genuine Ba'al Teshuvah, for had he been a genuine Ba'al Teshuvah, Hashem would have caused his punishment to be diverted. (Indeed, it is rare that a person is so righteous as to be absolved from punishment in such a manner. In order for a person to receive a punishment of death at the hands of Beis Din, he must be warned before he does the act, and he must accept the warning by saying that he wants to do the act and that he knows that he will be punished by death for doing it.) (Y. Montrose)

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