Bava Kamma 32

Bava Kamma 32

וְאִם עָמַד בַּעַל קוֹרָה – חַיָּיב. וְאִם אָמַר לְבַעַל חָבִית ״עֲמוֹד״ – פָּטוּר.

But if the owner of the cross beam stopped, causing the barrel to collide with the beam and break, the former is liable, since the latter had no way of anticipating that he would stop. And if he said to the owner of the barrel: Stop, he is exempt from liability for breaking the barrel.

הָיָה בַּעַל חָבִית רִאשׁוֹן וּבַעַל קוֹרָה אַחֲרוֹן; נִשְׁבְּרָה חָבִית בַּקּוֹרָה – חַיָּיב. וְאִם עָמַד בַּעַל חָבִית – פָּטוּר. וְאִם אָמַר לְבַעַל קוֹרָה: ״עֲמוֹד״ – חַיָּיב. וְכֵן זֶה בָּא בְּנֵרוֹ וְזֶה בְּפִשְׁתָּנוֹ.

Conversely, if the owner of the barrel was walking first and the owner of the cross beam last, and the barrel was broken by the cross beam, the owner of the cross beam is liable. But if owner of the barrel stopped, the owner of the cross beam is exempt from liability for breaking the barrel. And if he said to the owner of the cross beam: Stop, the owner of the cross beam is liable. And similarly, these halakhot apply in a case where this one came with his lamp and that one came with his flax, and the lamp set fire to the flax.

גְּמָ׳ בְּעָא מִינֵּיהּ רַבָּהּ בַּר נָתָן מֵרַב הוּנָא: הַמַּזִּיק אֶת אִשְׁתּוֹ בְּתַשְׁמִישׁ הַמִּטָּה, מַהוּ? כֵּיוָן דְּבִרְשׁוּת קָעָבֵיד – פָּטוּר, אוֹ דִילְמָא, אִיבְּעִי לֵיהּ לְעַיּוֹנֵי?

GEMARA: Rabba bar Natan asked Rav Huna: With regard to one who causes injury to his wife during sexual intercourse, what is the halakha? Is he liable to pay damages? Is it reasoned that since he is acting in a permitted manner he is exempt, or perhaps he should pay attention and be more careful?

אֲמַר לֵיהּ, תְּנֵיתוּהָ: שֶׁלָּזֶה רְשׁוּת לְהַלֵּךְ, וְלָזֶה רְשׁוּת לְהַלֵּךְ.

Rav Huna said to Rabba bar Natan: You learned this halakha in the mishna concerning one person walking with a cross beam and another with a barrel, which rules that the owner of the cross beam is exempt because this one had permission to walk and that one also had permission to walk. Similarly, since the husband has permission to engage in intercourse with his wife, if he injures her in the process he is exempt.

אָמַר רָבָא: קַל וָחוֹמֶר. וּמָה יַעַר – שֶׁזֶּה לִרְשׁוּתוֹ נִכְנָס וְזֶה לִרְשׁוּתוֹ נִכְנָס, נַעֲשָׂה כְּמִי שֶׁנִּכְנַס לִרְשׁוּת חֲבֵירוֹ – וְחַיָּיב; זֶה, שֶׁלִּרְשׁוּת חֲבֵירוֹ נִכְנַס, לֹא כׇּל שֶׁכֵּן?

Rava disagreed with Rav Huna’s opinion and said: The husband is liable due to an a fortiori inference from the halakha with regard to manslaughter, as it is stated in the Torah: “As when a man goes into the forest with his neighbor to chop wood…and the head slips off the helve, and finds his neighbor, and he dies; he shall flee to one of these cities and live” (Deuteronomy 19:5). And just as in the forest, where this person entered his domain and that person entered his domain, as it is the domain of the public, and nevertheless the one who kills unintentionally is considered like one who entered another’s domain and is therefore liable to be exiled to a city of refuge, then with regard to this husband, who actually enters another’s domain, all the more so is it not clear that he should be liable for the injury he causes her?

אֶלָּא הָא קָתָנֵי שֶׁלָּזֶה רְשׁוּת לְהַלֵּךְ וְלָזֶה רְשׁוּת לְהַלֵּךְ!

The Gemara raises an objection to Rava’s opinion: But what of this mishna, which teaches that the owner of the cross beam is exempt, as this one had permission to walk and that one had permission to walk, and Rav Huna inferred from here that the husband is likewise exempt.

הָתָם – תַּרְוַיְיהוּ כַּהֲדָדֵי נִינְהוּ; הָכָא – אִיהוּ קָעָבֵיד מַעֲשֶׂה.

The Gemara answers: The two cases are different. There, in the case in the mishna, both sides were similarly walking, and the one who caused the damage is therefore exempt due to his right to walk there. By contrast, here, the husband is the only active participant in the intercourse. Therefore, since he is the one performing an action, he is liable even though he is acting with permission.

וְהִיא לָא?! וְהָכְתִיב: ״וְנִכְרְתוּ הַנְּפָשׁוֹת הָעֹשֹׂת מִקֶּרֶב עַמָּם״!

The Gemara asks: And is she not considered an active participant? But isn’t it written with regard to forbidden sexual intercourse: “Even the souls that do them shall be cut off from among their people” (Leviticus 18:29), indicating that both the man and woman are considered to be performing an action?

הֲנָאָה – לְתַרְוַיְיהוּ אִית לְהוּ, אִיהוּ מַעֲשֶׂה הוּא דְּקָעָבֵיד.

The Gemara answers: The verse is referring to the fact that they both have pleasure from the act. The woman’s pleasure is tantamount to active transgression, and she is therefore punished if she participates willfully. But with regard to a wife’s injury, he is the one who is considered to be performing an action, and he is therefore liable.

הָיָה בַּעַל קוֹרָה רִאשׁוֹן כּוּ׳. אָמַר רֵישׁ לָקִישׁ: שְׁתֵּי פָּרוֹת בִּרְשׁוּת הָרַבִּים, אַחַת רְבוּצָה וְאַחַת מְהַלֶּכֶת; בָּעֲטָה מְהַלֶּכֶת בָּרְבוּצָה – פְּטוּרָה. בָּעֲטָה רְבוּצָה בַּמְּהַלֶּכֶת – חַיֶּיבֶת.

§ The mishna teaches: In a case where the owner of the cross beam was walking first and the owner of the barrel was walking behind him, if the barrel was broken by the cross beam, the owner of the cross beam is exempt. Reish Lakish says: If two cows were in the public domain, one of them prone and one walking, and the cow that was walking kicked the cow that was prone, its owner is exempt. If the prone cow kicked the cow that was walking, its owner is liable to pay.

לֵימָא מְסַיַּיע לֵיהּ: הָיָה בַּעַל קוֹרָה רִאשׁוֹן וּבַעַל חָבִית אַחֲרוֹן, נִשְׁבְּרָה הֶחָבִית בַּקוֹרָה – פָּטוּר. וְאִם עָמַד בַּעַל קוֹרָה – חַיָּיב. וְהָא הָכָא, דְּכִרְבוּצָה בַּמְּהַלֶּכֶת דָּמֵי, וְקָתָנֵי חַיָּיב.

Let us say that the mishna supports this statement, as it states: If the owner of the cross beam was first and the owner of the barrel was last, and the barrel was broken by the cross beam, he is exempt. But if the owner of the cross beam stopped, the owner of the cross beam is liable. The Gemara explains the proof: But here, it is clear that it is like a case where the prone cow kicked the cow that was walking, since the one carrying the barrel was walking and the one carrying the cross beam stopped in the public domain, causing damage to the former. And the mishna teaches in this case that the owner of the cross beam is liable.

וְתִסְבְּרָא?! הָא סַיֹּיעֵי בָּעֲיָא; לָא מִסָּתְיָיא דְּלָא מְסַיְּיעִי, אֶלָּא מִקְשָׁה נָמֵי קַשְׁיָא! טַעְמָא דְּבָעֲטָה, הָא הוּזְּקָה מִמֵּילָא – פָּטוּר; וְהָא מַתְנִיתִין דְּמִמֵּילָא, וְקָתָנֵי חַיָּיב.

The Gemara responds: And how can you understand that reasoning? You wanted to support the statement of Reish Lakish from the mishna. Not only does it not support Reish Lakish; it even raises a difficulty to his opinion. The reason Reish Lakish stated that the owner of the prone cow is liable is that it kicked the walking cow; but if the walking cow was damaged because by itself it collided with the prone cow, he would be exempt. But the mishna discusses a case where the one carrying the barrel ran into the cross beam by himself, without the one carrying the cross beam actively hitting it, and it teaches that the owner of the cross beam is nevertheless liable.

מַתְנִיתִין – דִּפְסַקָה לְאוֹרְחָא כְּשִׁלְדָּא; הָכָא – כְּגוֹן דִּרְבַעָה בְּחַד גִּיסָא, אִיבְּעִי לַהּ לְסַגּוֹיֵי בְּאִידַּךְ גִּיסָא.

The Gemara explains: The mishna is referring to a case where the cross beam blocked the entire width of the road like a carcass. Since the one carrying the barrel could not avoid it, the one carrying the cross beam is liable although he did not actively break the barrel. By contrast, here, Reish Lakish’s statement is referring to a case where the cow was lying down on one side of the public domain, and the other cow should have walked on the other, unobstructed side. Therefore, if the damage is caused only as a result of their collision, the owner of the prone cow is exempt.

אֶלָּא סֵיפָא דְּמַתְנִיתִין מְסַיַּיע לֵיהּ לְרֵישׁ לָקִישׁ – דְּקָתָנֵי: הָיָה בַּעַל חָבִית רִאשׁוֹן וּבַעַל קוֹרָה אַחֲרוֹן, נִשְׁבְּרָה חָבִית בַּקּוֹרָה – חַיָּיב. וְאִם עָמַד בַּעַל חָבִית – פָּטוּר. וְהָא הָכָא, דְּכִמְהַלֶּכֶת בָּרְבוּצָה דָּמֵי, וְקָתָנֵי פָּטוּר.

The Gemara suggests: Rather, it is the latter clause of the mishna that supports Reish Lakish’s statement, as it teaches: Conversely, if the owner of the barrel was walking first and the owner of the cross beam last, and the barrel was broken by the cross beam, the owner of the cross beam is liable. But if the owner of the barrel stopped, the owner of the cross beam is exempt from liability for breaking the barrel. But here, it is clear that it is like a case where the walking cow kicked the prone cow. And the mishna teaches that the owner of the cross beam is exempt, lending support to Reish Lakish’s ruling.

מַתְנִיתִין – דְּכִי אוֹרְחֵיהּ קָא מְסַגֵּי; הָכָא – אָמְרָה לַהּ: נְהִי דְּאִית לִךְ רְשׁוּת לְסַגּוֹיֵי עֲלַי, לְבַעוֹטֵי בִּי לֵית לִךְ רְשׁוּתָא.

The Gemara rejects this suggestion: The mishna exempts the one carrying the cross beam because he was walking in his normal manner when he hit the barrel. Here, perhaps the owner of the prone cow can say to the owner of the walking cow: Although you have permission to walk over me, i.e., for your cow to walk over my cow, you have no permission to kick me, i.e., for your cow to kick my cow.

מַתְנִי׳ שְׁנַיִם שֶׁהָיוּ מְהַלְּכִין בִּרְשׁוּת הָרַבִּים, אֶחָד רָץ וְאֶחָד מְהַלֵּךְ, אוֹ שֶׁהָיוּ שְׁנֵיהֶם רָצִין, וְהִזִּיקוּ זֶה אֶת זֶה – שְׁנֵיהֶם פְּטוּרִין.

MISHNA: With regard to two people who were walking in the public domain, or one who was running and another one who was walking, or who were both running, and they damaged one another, both of them are exempt.

גְּמָ׳ מַתְנִיתִין דְּלָא כְּאִיסִי בֶּן יְהוּדָה. דְּתַנְיָא, אִיסִי בֶּן יְהוּדָה אוֹמֵר: רָץ – חַיָּיב, מִפְּנֵי שֶׁהוּא מְשׁוּנֶּה. וּמוֹדֶה אִיסִי בְּעֶרֶב שַׁבָּת בֵּין הַשְּׁמָשׁוֹת שֶׁהוּא פָּטוּר, מִפְּנֵי שֶׁרָץ בִּרְשׁוּת.

GEMARA: The Gemara comments: The mishna is not in accordance with the opinion of Isi ben Yehuda. As it is taught in a baraita: Isi ben Yehuda says that one who runs in the public domain and causes damage is liable to pay for any damage he causes because his behavior is unusual in the public domain. And Isi concedes with regard to one who runs and causes damage at twilight on the eve of Shabbat that he is exempt, because he is running with permission.

אָמַר רַבִּי יוֹחָנָן: הֲלָכָה כְּאִיסִי בֶּן יְהוּדָה. וּמִי אָמַר רַבִּי יוֹחָנָן הָכִי? וְהָאָמַר רַבִּי יוֹחָנָן: הֲלָכָה כִּסְתַם מִשְׁנָה, וּתְנַן: אֶחָד רָץ וְאֶחָד מְהַלֵּךְ, אוֹ שֶׁהָיוּ שְׁנֵיהֶם רָצִין – פְּטוּרִין!

Rabbi Yoḥanan says: The halakha is in accordance with the opinion of Isi ben Yehuda. The Gemara asks: And did Rabbi Yoḥanan actually say this, that if one runs and causes damage he is liable? But doesn’t Rabbi Yoḥanan say, as a principle, that the halakha is in accordance with an unattributed mishna? And we learned in this mishna that if one was running and the other one was walking, or if they were both running, they are exempt.

מַתְנִיתִין בְּעֶרֶב שַׁבָּת בֵּין הַשְּׁמָשׁוֹת.

The Gemara answers: The mishna, which exempts one who was running, is referring to twilight on the eve of Shabbat, when people are permitted to run in the public domain.

מִמַּאי? מִדְּקָתָנֵי: אוֹ שֶׁהָיוּ שְׁנֵיהֶם רָצִין – פְּטוּרִין. הָא תּוּ לְמָה לִי? הַשְׁתָּא אֶחָד רָץ וְאֶחָד מְהַלֵּךְ – פָּטוּר, שְׁנֵיהֶם רָצִין מִיבַּעְיָא? אֶלָּא הָכִי קָאָמַר: אֶחָד רָץ וְאֶחָד מְהַלֵּךְ – פָּטוּר. בַּמֶּה דְּבָרִים אֲמוּרִים – בְּעֶרֶב שַׁבָּת בֵּין הַשְּׁמָשׁוֹת, אֲבָל בַּחוֹל – אֶחָד רָץ וְאֶחָד מְהַלֵּךְ, חַיָּיב. שְׁנֵיהֶם רָצִין – אֲפִילּוּ בַּחוֹל פְּטוּרִין.

The Gemara explains: From where is it inferred that the mishna is referring to twilight on the eve of Shabbat? It is inferred from the fact that it teaches: Or who were both running, they are exempt. Why do I need this case as well? Now that the mishna teaches that if one was running and the other one was walking, the one running is exempt, is it necessary to state that he is exempt when both of them were running? Rather, this is what the mishna is saying: If one was running and the other one was walking, he is exempt. In what case is this statement said? It is said with regard to twilight on the eve of Shabbat, when running in the public domain is permitted. But on a weekday, if one was running and the other one was walking, the one who was running is liable. If both were running, even on a weekday, they are exempt. This emendation explains the need to mention the case where both were running.

אָמַר מָר: וּמוֹדֶה אִיסִי בְּעֶרֶב שַׁבָּת בֵּין הַשְּׁמָשׁוֹת שֶׁהוּא פָּטוּר, מִפְּנֵי שֶׁרָץ בִּרְשׁוּת. בְּעֶרֶב שַׁבָּת מַאי בִּרְשׁוּת אִיכָּא?

The Master said above: And Isi concedes with regard to one who runs and causes damage at twilight on the eve of Shabbat that he is exempt, because he is running with permission. The Gemara asks: What is the reason that running at twilight on the eve of Shabbat is considered to be with permission?

כִּדְרַבִּי חֲנִינָא – דְּאָמַר רַבִּי חֲנִינָא:

The Gemara answers: It is like that which Rabbi Ḥanina would say, as Rabbi Ḥanina would say at twilight on the eve of Shabbat:

״בּוֹאוּ וְנֵצֵא לִקְרַאת כַּלָּה מַלְכְּתָא״. וְאָמְרִי לַהּ: ״לִקְרַאת שַׁבָּת – כַּלָּה מַלְכְּתָא״. רַבִּי יַנַּאי מִתְעַטֵּף וְקָאֵי, וְאָמַר: ״בּוֹאִי כַלָּה, בּוֹאִי כַלָּה״.

Come and let us go out to greet the bride, the queen. And some say that this is what he would say: Come and let us go out to greet Shabbat, the bride, the queen. Rabbi Yannai would wrap himself in his tallit and stand at the eve of Shabbat at twilight, saying: Come, bride; come, bride. Similarly, it is appropriate for one to run out in honor of Shabbat.

מַתְנִי׳ הַמְבַקֵּעַ בִּרְשׁוּת הָרַבִּים – וְהִזִּיק בִּרְשׁוּת הַיָּחִיד; בִּרְשׁוּת הַיָּחִיד – וְהִזִּיק בִּרְשׁוּת הָרַבִּים; בִּרְשׁוּת הַיָּחִיד – וְהִזִּיק בִּרְשׁוּת הַיָּחִיד אַחֵר, חַיָּיב.

MISHNA: With regard to one who was chopping wood in the public domain and a chip flew off and caused damage in the private property of another person, or one who was chopping wood in his private property and caused damage in the public domain, or one who was chopping wood in his private property and caused damage in the private property of another, in all these cases he is liable.

גְּמָ׳ וּצְרִיכָא; דְּאִי תְּנָא: הַמְבַקֵּעַ בִּרְשׁוּת הַיָּחִיד וְהִזִּיק בִּרְשׁוּת הָרַבִּים – מִשּׁוּם דִּשְׁכִיחִי רַבִּים; אֲבָל מֵרְשׁוּת הָרַבִּים לִרְשׁוּת הַיָּחִיד, דְּלָא שְׁכִיחִי רַבִּים – אֵימָא לָא.

GEMARA: The Gemara comments: And it is necessary for the mishna to teach that he is liable in all these cases because in each one there is a novel element. As if it had taught only the case of one who was chopping wood in his private property and caused damage in the public domain, it might have been reasoned that he is liable, despite the fact that he was working in his private property, because it is common for the multitudes to be there. But if a chip flew from the public domain to another person’s private property, where it is not common for the multitudes to be, one might say that he is not liable. Therefore, it is necessary to teach this case as well.

וְאִי תְּנָא: מֵרְשׁוּת הָרַבִּים לִרְשׁוּת הַיָּחִיד – מִשּׁוּם דְּמֵעִיקָּרָא שֶׁלֹּא בִּרְשׁוּת עָבֵיד; אֲבָל מֵרְשׁוּת הַיָּחִיד לִרְשׁוּת הָרַבִּים, דְּבִרְשׁוּת עָבֵיד – אֵימָא לָא.

And conversely, if it had taught that he is liable where the chip flew from the public domain to another’s private property, it might have been reasoned that he is liable because at the outset he was acting without permission by chopping wood in the public domain. But if it flew from his private property to the public domain, since he was acting with permission by chopping wood in his private property, one might say that he is not liable. Therefore, it is necessary to teach both cases.

וְאִי תְּנָא הָנָךְ תַּרְתֵּי – הָא מִשּׁוּם דִּשְׁכִיחִי רַבִּים, וְהָא מִשּׁוּם דְּשֶׁלֹּא בִּרְשׁוּת; אֲבָל מֵרְשׁוּת הַיָּחִיד לִרְשׁוּת הַיָּחִיד אַחֵר – דְּלָא שְׁכִיחִי רַבִּים, וּמֵעִיקָּרָא בִּרְשׁוּת – אֵימָא לָא; צְרִיכָא.

And if the mishna had taught only that he is liable in these two cases, it might have been reasoned that in this case, where the damage was caused in the public domain, he is liable because it is common for the multitudes to be there, and in that case, where he was chopping in the public domain, he is liable because he was acting without permission. But in the last case, where the chip flew from his private property to another’s private property, where neither of the above reasons applies, as it is not common for the multitudes to be in the place where the damage was caused and he was acting with permission at the outset, one might say he is not liable. Therefore, it is necessary for the mishna to teach all these cases.

תָּנוּ רַבָּנַן: הַנִּכְנָס לַחֲנוּתוֹ שֶׁל נַגָּר שֶׁלֹּא בִּרְשׁוּת, וְנִתְּזָה בְּקַעַת וְטָפְחָה עַל פָּנָיו, וָמֵת – פָּטוּר. וְאִם נִכְנַס בִּרְשׁוּת – חַיָּיב.

§ The Sages taught (Tosefta 6:25): With regard to one who entered the workshop of a carpenter without the latter’s permission, and a chip of wood flew off and hit him in the face and he died, the carpenter is exempt. But if he entered the shop with permission, the carpenter is liable.

מַאי חַיָּיב? אָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: חַיָּיב בְּאַרְבָּעָה דְּבָרִים. וּפָטוּר מִגָּלוּת,

The Gemara asks: What does the baraita mean when it rules that the carpenter is liable? Rabbi Yosei bar Ḥanina says: If the other person was injured, he is liable to pay four types of indemnity that one who injures another must pay. These are: Cost of the damage, pain, medical costs, and loss of livelihood. But if the one who entered was killed, he is exempt from exile.

לְפִי שֶׁאֵין דּוֹמֶה לְיַעַר. יַעַר – זֶה לִרְשׁוּתוֹ נִכְנָס, וְזֶה לִרְשׁוּתוֹ נִכְנָס; זֶה – לִרְשׁוּת חֲבֵירוֹ נִכְנַס.

The Gemara explains that he is exempt because this case is not similar to the case of a forest, which is the archetypal case stated in the Torah requiring one who kills unintentionally to be exiled, as it is written: “As when a man goes into the forest with his neighbor to chop wood, and his hand fetches a stroke with the axe to cut down the tree, and the head slips off the helve, and finds his neighbor, and he dies” (Deuteronomy 19:5). This is because in the case of the forest, both this one entered his domain and that one entered his domain, as anyone may use the public domain, whereas in this case, the victim entered another’s property. Therefore, the carpenter is not exiled.

אָמַר רָבָא: קַל וָחוֹמֶר; וּמָה יַעַר – זֶה לְדַעְתּוֹ נִכְנָס וְזֶה לְדַעְתּוֹ נִכְנָס, נַעֲשָׂה כְּמִי שֶׁנִּכְנַס לְדַעַת חֲבֵירוֹ – וְגוֹלֶה; זֶה – שֶׁלְּדַעַת חֲבֵירוֹ נִכְנָס, לֹא כׇּל שֶׁכֵּן?!

Rava said: On the contrary; it can be inferred a fortiori that he is exiled. And if in the case of the forest, where this one entered of his own accord and that one entered of his own accord, neither asking for the other’s permission, nevertheless the victim is considered like one who entered with the other’s consent and therefore the one who kills unintentionally is exiled, all the more so is it not clear that in this case, where the victim entered another’s workshop with his consent, the carpenter should be exiled?

אֶלָּא אָמַר רָבָא: מַאי פָּטוּר מִגָּלוּת? דְּלָא סַגִּי לֵיהּ בְּגָלוּת. וְהַיְינוּ טַעְמָא דְּרַבִּי יוֹסֵי בַּר חֲנִינָא, מִשּׁוּם דְּהָוֵי לֵיהּ שׁוֹגֵג קָרוֹב לְמֵזִיד.

Rather, Rava said: What is the reason he is exempt from exile? As exile is not sufficient for him, and this is the reason of Rabbi Yosei bar Ḥanina, who exempts him from exile: Because it is an unintentional killing that is approaching intentional manslaughter. The purpose of exile is to atone for one who kills another completely unintentionally; if he was exceedingly negligent, exile is not sufficient to atone for him.

מֵתִיב רָבָא: הוֹסִיף לוֹ רְצוּעָה אַחַת, וָמֵת – הֲרֵי זֶה גּוֹלֶה עַל יָדוֹ. וְהָא הָכָא דְּשׁוֹגֵג קָרוֹב לְמֵזִיד הוּא, דְּאִיבְּעִי אַסּוֹקֵי אַדַּעְתֵּיהּ דְּמַיְיתֵי אִינָשֵׁי בַּחֲדָא רְצוּעָה, וְקָתָנֵי: הֲרֵי זֶה גּוֹלֶה! אָמַר רַב שִׁימִי מִנְּהַרְדְּעָא: דְּטָעֵי בְּמִנְיָנָא.

Rava raises an objection to his own explanation from a mishna: If one is sentenced to be flogged in court and the doctors assessed that he would be able to endure only a certain number of lashes, but the one administering the lashes added one lash to his punishment and he died, the agent of the court is exiled on account of him (Makkot 22b). But here, it is clear that it is a case of an unintentional killing that is approaching intentional manslaughter, as it should have entered his mind that people can die by one additional lash. And the tanna teaches that the agent of the court is exiled. Rav Shimi of Neharde’a said in response: It is a case where he erred in the counting, which is not considered approaching intentional manslaughter.

טְפַח לֵיהּ רָבָא בְּסַנְדָּלֵיהּ, אֲמַר לֵיהּ: אַטּוּ הוּא מָנֵי?! וְהָתַנְיָא: גָּדוֹל שֶׁבְּדַיָּינִין קוֹרֵא, וְהַשֵּׁנִי מוֹנֶה, וְהַשְּׁלִישִׁי אוֹמֵר: ״הַכֵּהוּ״!

Rava slapped Rav Shimi on his sandal, a gesture of disparagement, and said to him: Is that to say that the one administering the lashes is the one who counts them? But isn’t it taught in a baraita that the eldest of the judges recites the verses that are read to a person while he receives lashes, and the second judge counts, and the third says to the one administering the lashes: Strike him? Accordingly, it is not the one administering the lashes who erred in counting.

אֶלָּא אָמַר רַב שִׁימִי מִנְּהַרְדְּעָא: דִּטְעָה דַּיָּינָא גּוּפֵיהּ.

Rather, Rav Shimi of Neharde’a said: It is a case where the judge himself erred in counting, and the one administering the lashes did not notice this error and meted out an extra lash, causing the person to die. It is therefore considered a completely unintentional killing. Consequently, he is exiled.

מֵיתִיבִי: הַזּוֹרֵק אֶת הָאֶבֶן לִרְשׁוּת הָרַבִּים, וְהָרַג – הֲרֵי זֶה גּוֹלֶה. וְהָא הָכָא, דְּשׁוֹגֵג קָרוֹב לְמֵזִיד הוּא – דְּאִיבְּעִי לֵיהּ אַסּוֹקֵי אַדַּעְתֵּיהּ דְּבִרְשׁוּת הָרַבִּים שְׁכִיחִי אִינָשֵׁי; וְקָתָנֵי: הֲרֵי זֶה גּוֹלֶה!

The Gemara raises an objection from another mishna: With regard to one who throws a stone into the public domain and kills someone, he is exiled. But here, it is clear that it is a case of an unintentional killing that is approaching intentional manslaughter, as it should have entered his mind that people are commonly found in the public domain. And the tanna teaches that he is exiled.

אָמַר רַב שְׁמוּאֵל בַּר יִצְחָק: בְּסוֹתֵר אֶת כּוֹתְלוֹ.

Rav Shmuel bar Yitzḥak said: It is not a case where one threw a stone into the public domain for no purpose, but rather where he demolishes his wall, which borders on the public domain, and stones fall into the public domain. Therefore, it is not considered to be approaching intentional manslaughter.

אִיבְּעִי לֵיהּ עַיּוֹנֵי! בְּסוֹתֵר בַּלַּיְלָה.

The Gemara questions this assertion: Nevertheless, he should have paid attention to see if there was anyone there, and therefore it should be considered an unintentional killing that approaches intentional manslaughter. The Gemara answers: It is a case where he demolishes the wall at night.

בַּלַּיְלָה נָמֵי אִיבְּעִי לֵיהּ עַיּוֹנֵי! בְּסוֹתֵר אֶת כּוֹתְלוֹ בַּיּוֹם – לְאַשְׁפָּה.

The Gemara asks: Even at night, he should also have paid attention to see if there was anyone there. The Gemara suggests an alternative interpretation: It is a case where he demolishes his wall during the day into a garbage dump, where people are not commonly found.

הַאי אַשְׁפָּה הֵיכִי דָמֵי? אִי דִּשְׁכִיחִי רַבִּים – מֵזִיד הוּא! וְאִי לָא שְׁכִיחִי רַבִּים – אָנוּס הוּא!

The Gemara asks: What are the circumstances of this garbage dump? If it is a garbage dump where the multitudes are commonly found, it is considered intentional manslaughter. And if the multitudes are not commonly found there, he should be considered not only one who kills unintentionally, but a victim of circumstances beyond his control, since he could not have anticipated that someone would be there. Therefore, he should be exempt from exile.

אָמַר רַב פָּפָּא: [לָא צְרִיכָא, אֶלָּא] בְּאַשְׁפָּה הָעֲשׂוּיָה לְהִפָּנוֹת בַּלַּיְלָה, וְאֵינָהּ עֲשׂוּיָה לְהִפָּנוֹת בַּיּוֹם, וְאִיכָּא דְּמִיקְּרֵי וְיָתֵיב; מֵזִיד לָא הָוֵי – דְּהָא אֵינָהּ עֲשׂוּיָה לְהִפָּנוֹת בַּיּוֹם, אָנוּס נָמֵי לָא הָוֵי – דְּהָא אִיכָּא דְּמִיקְּרֵי וְיָתֵיב.

Rav Pappa said: This halakha is necessary only in the case of a garbage dump where people are given to relieve themselves at night and are not given to relieve themselves during the day, as it is near the public domain. But there are those who chance by and sit there for this purpose even during the day. On the one hand, he is not one who kills intentionally, as people are not given to relieve themselves there during the day. On the other hand, he is not a victim of circumstances beyond his control either, as there are those who chance by and sit there. Therefore, he is considered one who kills unintentionally and is liable to be exiled.

רַב פָּפָּא מִשְּׁמֵיהּ דְּרָבָא מַתְנִי לַהּ אַרֵישָׁא: הַנִּכְנָס לַחֲנוּתוֹ שֶׁל נַגָּר שֶׁלֹּא בִּרְשׁוּת, וְנִתְּזָה לוֹ בְּקַעַת וְטָפְחָה לוֹ עַל פָּנָיו, וָמֵת – פָּטוּר. אָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: חַיָּיב בְּאַרְבָּעָה דְּבָרִים, וּפָטוּר מִגָּלוּת.

Rav Pappa taught in the name of Rava that this aforementioned statement of Rabbi Yosei bar Ḥanina is in reference not to the latter clause of the baraita but is in reference to the first clause: With regard to one who enters the workshop of a carpenter without permission, and a chip of wood flies off and strikes him in the face and he dies, the carpenter is exempt. In reference to this clause Rabbi Yosei bar Ḥanina says: If the one who entered was merely injured, the carpenter is liable to pay four types of indemnity. But if the one who entered was killed, he is exempt from exile.

מַאן דְּמַתְנֵי לַהּ אַסֵּיפָא – כׇּל שֶׁכֵּן אַרֵישָׁא; וּמַאן דְּמַתְנֵי לַהּ אַרֵישָׁא – אֲבָל אַסֵּיפָא, כֵּיוָן דְּבִרְשׁוּת – חַיָּיב גָּלוּת.

The Gemara comments: With regard to the one who teaches this statement in reference to the last clause of the baraita, where one enters with permission, all the more so would he teach it in reference to the first clause, where one enters without permission. But the one who teaches this statement in reference to the first clause teaches it only in reference to that clause. But in the case of the last clause, since he entered with permission the carpenter is liable to go into exile.

וּמִי חַיָּיב גָּלוּת? וְהָתַנְיָא: הַנִּכְנָס לַחֲנוּתוֹ שֶׁל נַפָּח, וְנִתְּזוּ נִיצוֹצוֹת וְטָפְחוּ לוֹ עַל פָּנָיו וָמֵת – פָּטוּר, וַאֲפִילּוּ נִכְנַס בִּרְשׁוּת!

The Gemara asks: But is he liable to go into exile when the victim had permission to enter? But isn’t it taught in a baraita that with regard to one who enters the workshop of a welder, and sparks [nitzotzot] fly off and strike him in his face and he dies, the welder is exempt, and this is the halakha even if the victim entered with permission?

הָכָא בְּמַאי עָסְקִינַן – בִּשְׁוַלְיָא דְנַפָּחֵי. שְׁוַלְיָא דְנַפָּחֵי לְמִקְטְלֵאּ קָאֵי? כְּשֶׁרַבּוֹ מְסַרְהֵב בּוֹ לָצֵאת, וְאֵינוֹ יוֹצֵא.

The Gemara answers: With what are we dealing here, in this baraita? We are dealing with the welder’s apprentice who enters his workshop. The Gemara asks: Does the welder’s apprentice stand to be killed, i.e., is it permitted to kill him? The Gemara answers: It is a case where his mentor is urging him to leave, and he does not leave.

וּמִשּׁוּם דְּרַבּוֹ מְסַרְהֵב בּוֹ לָצֵאת – לְמִיקְטְלֵיהּ קָאֵי?! כְּסָבוּר יָצָא. אִי הָכִי, אַחֵר נָמֵי!

The Gemara asks: And because his mentor is urging him to leave, does he stand to be killed? The welder should be careful until his apprentice leaves. The Gemara answers: The welder thought that he had already left when the accident happened. The Gemara asks: If so, why establish that the baraita refers specifically to an apprentice? The welder would be exempt if it were any other person also.