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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Yoma 85

YOMA 59-88 have been dedicated to the memory of the late Dr. Simcha Bekelnitzky (Simcha Gedalya ben Shraga Feibush) of Queens N.Y. by his wife and daughters. Well known in the community for his Chesed and Tzedakah, he will long be remembered.



(a) According to the Mishnah in Machshirin, a child that one finds in a town whose residents ...
  1. ... are mainly non-Jews - is considered a non-Jew.
  2. ... are mainly Jews - is considered a Jew..
  3. ... are half non-Jews, and half, Jews - is considered a Jew.
(b) Rav restricts the ruling in case 2. (where the majority of residents are Jews, and he is considered a Jew) to *saving his life* (if he is buried under a pile of rubble), but not to '*Yuchsin*' - meaning that if the child is a girl, a Kohen may not marry her. This is because Chazal were strict by marriage, requiring *two* majorities instead of the normal *one*.

(c) Shmuel too, says that this case (where there are a majority of Jews) speaks about saving his life - from which we can infer that by a case of Mechtzah al Mechtzah, and certainly when there are a majority of non-Jews, he will be considered a non-Jew. But did Shmuel not say earlier that when it comes to Safek Piku'ach Nefesh, we do not go after the majority (i.e. that we break Shabbos even when there is a majority of non-Jews?

(d) We establish that Shmuel refers to case 1., where there are a majority of non-Jewish residents, and where he is considered (not a *Jew*, but) a *non*-Jew.

(a) The Mishnah considers him a non-Jew - with regard to feeding him non-Kasher food.

(b) In the case where half the residents are non-Jews - the child may not be fed non-Kasher food.

(c) The case where there are a majority of Jews, and he is considered a Jew, speaks about returning his lost articles (which one is not obligated to do to non-Jews).

(d) 'Mechtzah al Mechtzah, Yisrael' - refers to damages, as we shall now explain.

(a) We just established the case of 'Mechtzah al Mechtzah, Yisrael' by a case of damages. This cannot refer to when the ox of a Jew gores his ox, and it is *he* who is claiming damages from the Jew - because in that case, we would inform him that, unless he proves that he is a Jew, he will not receive payment (because of the principle 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' - i.e. the money remains with the defendant, until the claimant can prove his claim).

(b) So it must be speaking in a case when *his* ox (a 'Tam' that has not yet gored three times) gores that of a Jew, and the Jew is now claiming *full* damages (which, if the child was a gentile, he would indeed be obligated to pay). However, unless the Jew can prove that the child is a non-Jew, he only needs to pay half-damages, like a Jew would - because of the same principle ('ha'Motzi me'Chaveiro, Alav ha'Re'ayah').

(a) Our Mishnah says that if they found the buried man alive, they continue to dig - even if it is only a matter of keeping him alive for a short period of time (however short).

(b) And we establish our Mishnah, which also says that if he was dead, they must stop digging, like Rebbi Yehudah ben Lakish - who says that one may carry a corpse from a fire, into a courtyard with an Eruv, despite the fact that a corpse is Muktzah, for fear that , if it would not be permitted, one may (out of respect for the dead person) come to extinguish the fire. He did not likewise, permit digging up the corpse (which is also an Isur de'Rabbanan) in our case.

(c) This is because, by leaving the Isur intact, there is no Isur d'Oraysa which one might come to transgress.

(a) Some say that, in order to establish whether, or not, the buried man is alive, one digs until his nose is uncovered, and checks his breathing - others say that one only digs as far as his heart, to check his heart-beat. They nevertheless agree that from the Pasuk "Kol Asher Nishmas Ru'ach Chayim be'Apav", that life and death are determined by his breathing (i.e. if his breathing has stopped, he is dead, and there is no longer any point in digging further to check his heart-beat). They argumrnt pertains to where they began digging from his feet, and reached the heart first - whether or not, the man might still be breathing even after the heart has stopped.

(b) If many people were buried in an accident, and the top layer of bodies are found to be dead - we do not assume that those underneath are dead too, but we are obligated to continue digging to check their situation independently.

(c) The Tana Kama says that a baby is formed from the head; according to Aba Shaul, from the navel (since Hashem created everything from the middle).

(d) Aba Shaul nevertheless agrees that it is the *breathing* which determines whether a person is alive or dead - from the Pasuk that we just quoted ("Kol Asher Nishmas Ru'ach Chayim be'Apav").

(a) A group of Tana'im were asked for the source of the Halachah that saving human life (even be'Safek) has precedence over Shabbos. Rebbi Yishmael learnt it from the Pasuk "Im ba'Machteres Yimatzei ha'Ganav ... ". - If one is permitted to kill (a sin which defiles the land and causes the Shechinah to depart) when it is a case of Safek Piku'ach Nefesh (because the thief *might* kill the owner), he argues, then one should certainly be permitted to break the Shabbos for that.

(b) Rebbi Akiva inferred it from the Pasuk (also in Mishpatim) "me'Im Mizbechi Tikachenu Lamus", 'me'Im Mizbechi, ve'Lo me'Al Mizbechi' - in conjunction with a statement of Rebbi Yochanan - 'Lo Shanu Ela le'Hamis ... '. Rebbi Yochanan is saying - that the inference (that one only takes the murdered man to die from *in front of* the Mizbe'ach - i.e. if he is a Kohen about to perform the Avodah), but not from *on* the Mizbe'ach (if he is actually performing it), to *kill* the murderer, but not when it is to *save* a man from the death-sentence (i.e. when we need him to come and give witness in defence of a man who is about to be sentenced to death). In that case, we will even call him from *on* the Mizbe'ach to come and testify.

(c) If we will even interrupt the *Avodah* (which over-rides Shabbos) to call a witness (whose testimony is not guaranteed to be of any value), to save someone's life, says Rebbi Akiva, then we should certainly break the *Shabbos* in order to do so.




1. Rebbi Elazar learns that human life has precedence over Shabbos, from the Mitzvah of Milah - because if one may break Shabbos to rectify *one* limb (over which one will eventually become Chayav Kares, if one does not), then one may certainly do so to rectify the *entire body*.
2. Rebbi Yossi b'Rebbi Yehudah learns it from the Pasuk "*Ach* es Shabsosai Tishmoru" - because "Ach" always comes to exclude (in this case to teach us that there are cases where one is not obligated to observe Shabbos).
3. Rebbi Yonasan ben Yosef from "Ki Kodesh Hi Lachem" - which informs us that *Shabbos* is handed over to *us* (to observe), and not *us* to *it* (to die).
4. Rebbi Shimon ben Menasyah from "ve'Shamru B'nei Yisrael es ha'Shabbos" - from which we learn that one should break one Shabbos to enable the person who will otherwise die, to keep many Shabbasos (See Shabbos 151b)..
(b) The best proof of all is that of Shmuel - who learns it from the Pasuk ini Acharei-Mos "va'Chai Bahem" - 've'Lo she'Yamus Bahem'.

(c) Rava disproves ...

1. ... the proof from 'Machteres' on the grounds that it is not a case of *Safek* Piku'ach Nefesh, as we thought, but *Vaday* - since no thief expects the owner to stand idly by and watch, whilst he cleans him out. He knows that the owner will take steps to defend his property, and so he comes prepared to fight back, and even to kill in self-defense, if need be.
2. ... the fact that we take a Kohen off the Mizbe'ach to testify in order to save someone's life - because there too, before calling him from off the Mizbe'ach, two Talmidei-Chachamim will check that his testimony is authentic and valuable, in which case, it is no longer a case of Safek Piku'ach Nefesh, but Vaday.
3. ... all the other cases - on the grounds that all of them are speaking in a case of Vaday Piku'ach Nefesh, and not Safek.
(d) Shmu'el's Derashah (from "va'Chai Bahem") is the only one which covers *Safek* Piku'ach Nefesh too - because the Pasuk implies that the Mitzvos must be a source of life at all costs, whether one keeps them, or breaks them.
8) When Ravina said that one sharp peppercorn is better than a basket-full of pumpkins - he meant that sometimes (as in this case) the words of an Amora (Shmuel) outweigh those of all the Tana'im (listed above).


(a) Yom Kipur and death atone - provided one has done Teshuvah.

(b) A Korban Chatas and a Korban Asham atone too - only together with Teshuvah. If the person was not sorry though, he would not bring the Korban!

(c) According to our Mishnah ...

1. ... Teshuvah alone atones for Mitzvos Asei and Mitzvos Lo Sa'aseh - and it is only sins that are in one of the categories of Misah, that require Yom Kipur (after Teshuvah).
2. ... Yom Kipur will not atone for sins between man and man.
(d) Rebbi Elazar ben Azaryah learns this latter Halachah from the Pasuk in Acharei-Mos "mi'Kol Chatoseichem *Lifnei Hashem* Titharu" that Yom Kipur onlt cleanses sins that one performed against Hashem, but not those that effect one's fellow-man.
(a) The Mishnah rules, with regard to someone who says ...
  1. ... 'Echta ve'Ashuv, Echta ve'Ashuv' - that Hashem will not allow him to do Teshuvah.
  2. ... 'Echta, ve'Yom ha'Kipurim Mechaper' - that Yom Kipur will not atone for him.
(b) Rebbi Akiva learns from the Pasuk ...
1. ... "ve'Zarakti Aleichem Mayim Tehorim u'Tehartem" - that (provided we have done Teshuvah), Hashem Himself will purify us (with the ashes of the Parah Adumah - see Agados Maharsha) from our sins.
2. ... "Mikveh Yisrael Hashem" - that Hashem purifies us in the same way as a Mikvah purifies those who are impure.
(a) The Gemara thinks that Asham Taluy ought to be mentioned in our Mishnah together with Chatas and Asham Vaday - because the Torah writes "Kaparah" by it, too.

(b) We answer that an Asham Taluy, unlike an Asham Vaday, does not atone completely - meaning that it only tides over the sinner from punishment until he ascertains that he sinned, at which point he is obligated to bring the appropriate Chatas.

(c) Alternatively, answers the Gemara, the Asham Taluy is not the sole Kaparah - Yom Kipur too, atones for anyone who is Chayav an Asham Taluy (i.e. once Yom Kipur has passed, he is no longer obligated to bring it (which is not the case by the other two Korbanos).

(a) According to Rebbi, Yom Kipur atones even without Teshuvah - except for someone who denies Hashem (Porek Ol), Darshens the Torah however it suits him or negates the B'ris Milah.

(b) Rebbi might agree with our Mishnah, which only says that Teshuvah alone needs Yom Kipur. It does not say that Yom Kipur needs Teshuvah.

(a) If Teshuvah atones for Mitzvos Lo Sa'aseh, it is obvious that it will atone for Mitzvos Asei as well (and, having informed us that it atones for Mitzvos Lo Sa'aseh, the Tana would not have needed to add that it also atones for Mitzvos Asei. Rav Yehudah therefore amends 'Al Asei ve'Al Lo Sa'aseh' to 'Al Asei ve'Al La'av ha'Nitak la'Asei' (to teach us in the latter case, that, even after perorming the Asei, one still needs to do Teshuvah for having transgressed the Lo Sa'aseh).

(b) Rav Yehudah will explain the Beraisa 'Eilu Hein Kalos: Asei ve'Lo Sa'aseh, Chutz mi'Lo Sisa' - to mean 'Lo Sisa' (as an example of regular Mitzvos Lo Sa'aseh, which do not carry the death sentence) and the same will apply therefore, to all Mitzvos Lo Sa'aseh that are in this category.

(c) the Tana of the Beraisa learns from ...

1. ... "Lo Yenakeh" - that Teshuvah is not sufficient to atone for the La'av of Lo Sisa.
2. ... "es Shemo" - that this stringency is confined to the La'av of Lo Sisa, but that Teshuvah alone will suffice for all other regular La'avin.
(d) Rav Yehudah agrees that *this* Tana does indeed hold that Teshuvah alone atones for any regular La'av.
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