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Kollel Iyun Hadaf, Jerusalem

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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.



(a) Rav Yehudah lists two mistakes that Yo'av made when he 'held on to the horns of the Mizbe'ach of Shiloh'. It cannot really have been next to the Mizbe'ach of Shiloh that he was standing - since Shiloh was destroyed in the days of Eli (many years earlier). In reality, he took hold of the horns of the Mizbe'ach that David built on a Bamah in front of the Aron.

(b) His two mistakes were firstly, that he held on to the 'horns' from below, whereas it is only the roof of the Mizbe'ach that is Kolet; and secondly, that it is only the Mizbe'ach in the Beis-Hamikdash that is Kolet, and not even that of Shiloh (let alone of a Bamah).

(c) The third mistake Abaye adds to the list is - that it is only a Kohen who is exempt from Misah, as long as he is performing the Avodah, but not a Zar.

(d) In similar vein, Resh Lakish lists the three mistakes that the Angel of Rome (Samael) will make when he runs to Batzrah to avoid the death-sentence for all the murders that he and his nation perpetrated against Yisrael; namely - that the name of the Ir Miklat is Betzer, and not Batzrah; that it is humans (and not angels) and Shogeg (and not Meizid) who can find refuge in an Ir Miklat and not Meizid.

(a) Rebbi Avahu extrapolates from the Pasuk "u'Migresheihem Yiheyu li'Vehemtam, ve'li'Rehusham *u'le'Chol Chayasam*" - that the Arei Miklat are for living purposes, to preclude burial, which is forbidden in an Ir Miklat.

(b) We reconcile this with our Mishnah, which Darshens "Shamah", 'Sham Tehei Kevuraso' - by confining the first D'rashah to the Levi'im who owned the cities, and the second one to the murderers, who have to be buried there, due to the Gezeiras ha'Kasuv.

(c) The Beraisa learns from the Pasuk "Veyashav Bah" - "Bah", 've'Lo bi'Techumah', that one is not permitted to live outside the town, even within the T'chum.

(d) We reconcile this with our Mishnah, which forbids the Go'el ha'Dam to kill the Rotze'ach, once he reaches the T'chum - 'Ka'an Lik'lot, Ka'an Ladur' (living there is one thing, being considered inside the town is another).

(a) The difference between 'Sadeh' and 'Migrash' is - that whereas the latter (which refers to land that has to be left uncultivated) incorporates the first thousand Amos outside the town, and the former, the second thousand Amos.

(b) The Beraisa - forbids transforming a Sadeh into a Migrash or vice-versa, or a Migrash into part of the Ir or vice-versa.

(c) We nevertheless need the D'rashah "Bah", 've'Lo bi'Techumah' - to forbid inhabiting it even underground (which would not encroach on the 'Migrash').

(a) According to Rebbi Yossi Hagelili, anyone is permitted to kill a Rotze'ach who leaves the Ir Miklat, only if the victim has no Go'el ha'Dam.

(b) He extrapolates from the Pasuk (in connection with the Rotze'ach leaving the Ir Miklat) "*Veratzach* Go'el ha'Dam es ha'Rotze'ach" - that it is a Mitzvah for him to kill the Rotze'ach. Otherwise, the Torah would have written - "*Im Ratzach* Go'el ha'Dam e ha'Rotze'ach" (because the Lashon "Ve'... " is sometimes a Lashon of Mitzvah and sometimes Reshus).

(c) Rebbi Akiva counters this on the grounds that had it been a Mitzvah, the Torah would have written "*Yirtzach* es ha'Rotze'ach" (which is a Lashon of Mitzvah exclusively).

(d) Mar Zutra bar Tuvya Amar Rav holds neither like Rebbi Yossi Hagelili nor like Rebbi Akiva. He maintains that a Go'el ha'Dam who kills the Rotze'ach should he leave the Ir Miklat - is Chayav Misah.

(a) Mar Zutra bar Tuvya Amar Rav actually holds like Rebbi Eliezer in a Beraisa, who learns from the Pasuk "ve'Lo Yamus ha'Rotze'ach ad Amdo Lifnei ha'Eidah la'Mishpat" - that a Rotze'ach is only sentenced to death by Beis-Din, and cannot be killed by the Go'el ha'Dam (even if he leaves the Ir Miklat).

(b) According to Rebbi Yossi Hagelili and Rebbi Akiva, the Pasuk comes to each us - that even if the Sanhedrin witnessed Reuven killing Shimon, they cannot put him to death by virtue of what they saw, but are obligated to go before another Beis-Din who will sentence him by their testimony.

(a) The Beraisa learns from the Pasuk (in connection with the Rotze'ach leaving the Ir Miklat) "Im Yatzo Yatza ha'Rotze'ach" - that even if he leaves the Ir Miklat be'Shogeg, the Go'el ha'Dam may (or should) kill him.

(b) To reconcile this with the Beraisa "be'Meizid Neherag, be'Shogeg Goleh", we establish the latter - according to those who hold 'Dibrah Torah ki'Leshon B'nei Adam' (in which case, we do not Darshen anything from the double Lashon of "Yatzo Yatzta").

(c) Abaye supports the second opinion - because it is not logical for the end of the murderer to be more stringent than the beginning (where Shogeg goes into Galus and is not killed).

(a) Initially, we connect the Machlokes whether a son can be a Go'el ha'Dam to avenge the blood of his brother, whom his father killed, with the Machlokes between Rebbi Yossi Hagelili and Rebbi Akiva - and Rebbi Yossi Hagelili, who holds that it is a Mitzvah, permits it (whilst Rebbi Akiva, who holds that it is Reshus, forbids it).

(b) We query this however, from a statement by Rabah bar Rav Huna and Tana de'Bei Rebbi Yishmael, who say - that, with he sole exception of where the father is a Meisis, a son may never be appointed to punish his father (not to administer Malkos and not to curse him).

(c) When, to reconcile the two Beraisos, we conclude "Ha bi'Veno, Ha be'Ben B'no'' - we mean that certainly Rabah bar Rav Huna is right (and a son may not be a Go'el ha'Dam to kill his father), and the Beraisa which permits his son to be a Go'el ha'Dam against 'his father', is talking about the son of the murdered man (not his brother, as we thought), killing his (the murdered man's) father (who is own grandfather).

(a) Our Mishnah rules that if the murderer is standing ...
1. ... inside the town, on the trunk, but when most of the branches are growing outside the walls - the Go'el ha'Dam may kill him, since the tree goes after the branches.
2. ... outside the town on the trunk, but when most of the branches are growing inside - he may not, for the same reason.
(b) The Beraisa rules that if a tree is growing within the walls of Yerushalayim but the branches protrude outside or vice-versa, then we disregard both the branches and the trunk. If he is within the walls he may eat Ma'aser Sheini, and if he is not, he may not.

(c) Initially we resolve this apparent discrepancy by differentiating between Ma'aser and Arei Miklat - simply because whereas Ma'aser is determined by the wall ("Lif'nei Hashem Elokecha Tochlenu"), Ir Miklat is determined by residence ("Ki be'Ir Miklato Yeishev", and the branches are obviously more inhabitable than the trunk).

(a) The Mishnah in Ma'asros says 'be'Arei Miklat Halach Achar ha'Nof - bi'Yerushalayim Halach Achar ha'Nof' (clearly making no distinction between Ma'aser and Ir Miklat in this regard).

(b) We answer the S'tirah in Ma'aser by establishing the Beraisa like Rebbi Yehudah, who says that one may eat Ma'aser Sheini in Yerushalayim ...

1. ... in a cave on the outskirts of Yerushalayim - provided the entrance to the cave is inside.
2. ... on the trunk of a tree that is outside Yerushalayim if the branches are inside (but not vice-versa)
(c) The author of our Mishnah is then Rebbi Yehudah (who does not differentiate between Ma'aser and Ir Miklat).

(d) The Rabbanan (who do not differentiate either) go neither according to the branches nor according to the trunk, but according to whether the person concerned in inside the wall or outside (even regarding Ir Miklat too).




(a) We query our current explanation by asking that perhaps Rebbi Yehudah only says his Din (without reservation) by Ma'aser, because it goes 'le'Chumra both ways, but not by Arei Miklat, which goes le'Chumra one way but le'Kula, the other - because he is not sure himself whether we go after the branches or not (so he follows the branches wherever it is le'Chumra).

(b) The Chumra by Ma'aser in the case where the owner is standing on the trunk, which is ...

1. ... outside, whereas the branches are inside, would be - that he would no longer be able to redeem the Ma'aser (as if he was in Yerushalayim).
2. ... inside and the branches are outside - he would not be permitted to eat it (as if he was outside).
(c) The case that would then cause a problem with regard to Ir Miklat is - where the murderer is standing on the trunk inside the town, whereas the branches are outside, permitting the Go'el ha'Dam to kill the Rotze'ach (a Kula), even though technically, he is standing inside the Ir Miklat.
(a) Rabah upholds the query. The basis of the Tana'im's dispute therefore pertains to a case where the murderer is perched on the branches outside the walls, where Rebbi Yehudah permits the Go'el ha'Dam to climb up the trunk which is inside the town, in order to get to the murderer, whereas the Rabbanan forbid even that.

(b) And even the Rabbanan will concede in a similar case where the murderer is also perched in the branches outside the walls, that the Go'el ha'Dam would be permitted to kill him from afar with arrows or stones - because they too agree, that the branches do not go after the trunk.

(a) Rav Ashi disagrees with the entire Sugya. He amends the Lashon of our Mishnah 'ha'Kol Holech Achar ha'Nof' to - 'ha'Kol Holech Af Achar ha'Nof', implying that we certainly go after the trunk (but that we will even go after the branches le'Chumra).

(b) The implication refers to - where the murderer is standing on the trunk inside the town, in which case, we certainly do not go after the branches that are growing outside the wall (permitting the Go'el ha'Dam to kill him, as we thought until now).

(c) We go after the trunk in a case - where the murderer is perched in the branches outside the walls, and the trunk is inside (in which case the Go'el ha'Dam is certainly not permitted to kill the murderer according to Rav Ashi.

(d) The author of our Mishnah is still - Rebbi Yehudah, who is the one to go after the branches (at least, le'Chumra).

(a) If a murderer kills someone be'Shogeg in an Ir Miklat - he must run to another district in that town.

(b) If the murderer is a ben Levi - then Lechatchilah, he must run to another Ir Miklat.

(c) The Beraisa learns from the Pasuk ...

1. ... "ve'Samti *Lecha* Makom" - that Moshe would perform the Mitzvah (of setting up some Arei Miklat still) in his lifetime.
2. ... "Asher Yanus Shamah" - that the Din of Arei Miklat applied in the desert, and someone who murdered be'Shogeg would have to run to the Machaneh Leviyah.
(d) If a ben Levi ran to another district in his own town (like a Yisrael) - Bedieved it was Kolet him (see Tosfos DH 'Pilcho').

(e) Rav Acha B'rei de'Rav Ika learns from the Pasuk "Ki be'Ir Miklato Yeishev" - that a Yisrael who already killed once runs to another district in the same town (Lechatchilah, and a resident ben Levi, Bedieved).

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