Sanhedrin 85

ורבי שמעון האמר כל מלאכה שאינה צריכה לגופה פטור עליה

and doesn’t Rabbi Shimon say: With regard to one who performs any prohibited labor that is not necessary for its own sake, it is labor for which he is exempt? In this case, causing the wound was inadvertent and was not his objective when performing the action.

בעו מיניה מרב ששת בן מהו שיעשה שליח לאביו להכותו ולקללו

§ The Sages raised a dilemma before Rav Sheshet: What is the halakha with regard to whether a son may be designated an agent of the court in order to flog his father or to curse him if the court sentenced him to ostracism?

אמר להו ואחר מי התירו אלא כבוד שמים עדיף הכא נמי כבוד שמים עדיף

Rav Sheshet said to them: And did the Torah render it permitted to flog or curse another who is not his father? The Torah prohibited such actions. Rather, the reason that an agent of the court may flog or curse the one found liable is that the honor of Heaven takes precedence over the honor due to another. Here too, a son may serve as an agent of the court because the honor of Heaven takes precedence over the honor due to his father.

מיתיבי ומה מי שמצוה להכותו מצוה שלא להכותו מי שאינו מצוה להכותו אינו דין שמצוה שלא להכותו

The Gemara raises an objection from a baraita: And just as with regard to one who is commanded to strike him there is a mitzva not to strike him under other circumstances, with regard to one who is not commanded to strike him is it not right that there is a mitzva not to strike him?

מאי לאו אידי ואידי במקום מצוה הא בבנו הא באחר

The Gemara explains the baraita: What, is it not that both this first clause of the statement of the baraita and that latter clause of the statement of the baraita are referring to a situation where striking another is a mitzva, e.g., where the other is liable to receive lashes. The distinction between them is that this latter clause, which is referring to one who is not commanded to strike him, is concerning a case where the agent is his son and is therefore prohibited from striking his father even in that capacity, while that first clause, which is referring to one who is commanded to strike him, is concerning a case where the agent is another individual and not his son. This indicates that it is prohibited for a son to flog his father as an agent of the court.

לא אידי ואידי לא שנא בנו ולא שנא אחר ולא קשיא כאן במקום מצוה כאן שלא במקום מצוה

The Gemara answers: No, in both this clause and that clause it is no different if the agent is his son and it is no different if the agent is another. And it is not difficult to distinguish between the clauses: Here, in the first clause, the reference is to a situation where striking another is a mitzva, as he is an agent of the court; there, in the latter clause, the reference is not to a situation where striking another is a mitzva.

והכי קתני ומה במקום מצוה שמצוה להכותו מצוה שלא להכותו שלא במקום מצוה שאינו מצוה להכותו אינו דין שמצוה שלא להכותו

And accordingly, this is what the baraita is teaching: And just as in a situation where striking another is a mitzva, where the agent of the court is commanded to strike him, there is a mitzva not to strike him even one lash beyond the number determined by the court, as it is written: “Forty lashes shall he strike him, he shall not exceed, lest if he shall exceed to strike him” (Deuteronomy 25:3), accordingly, in a situation where striking another is not a mitzva, where one is not commanded to strike him, is it not right that there is a mitzva not to strike him? The general prohibition against striking another in any situation is derived from this verse.

תא שמע היוצא ליהרג ובא בנו והכהו וקיללו חייב בא אחר והכהו וקיללו פטור והוינן בה מאי שנא בנו ומאי שנא אחר ואמר רב חסדא במסרבין בו לצאת ואינו יוצא

The Gemara suggests: Come and hear a proof from a baraita: In the case of one who emerges from the court condemned to be executed and his son came and struck him or cursed him, the son is liable to be executed for striking or cursing his father. If another came and struck him or cursed him, he is exempt. And we discussed it as follows: What is different about the case where his son strikes or curses him that he is liable, and what is different about the case where another strikes or curses him that he is exempt? And Rav Ḥisda says: The baraita is referring to a case where they are imploring the condemned man to emerge from the court to be executed but he is not emerging. Therefore, it is necessary to employ force. Apparently, even under those circumstances, where the use of force is sanctioned by the court, it is prohibited for the son to strike his father.

רב ששת מוקי לה בשאין מסרבין בו לצאת

The Gemara rejects this proof: Rav Sheshet interprets this baraita as referring to a case where they are not imploring him to emerge from the court for his execution. It is referring to a case where the condemned man is proceeding willingly, and it is not an agent of the court but someone else who strikes and curses him at his own initiative.

אי הכי אחר נמי אחר גברא קטילא הוא

The Gemara challenges: If so, even another who strikes one who is condemned to death should be liable, as it is prohibited to strike or curse another. The Gemara responds: If another does so he is exempt, since the legal status of the one condemned to death is that of a dead man. Therefore, one is not liable for striking or humiliating him.

והאמר רב ששת ביישו ישן ומת חייב הכא במאי עסקינן בשהכהו הכאה שאין בה שוה פרוטה

The Gemara asks: But doesn’t Rav Sheshet himself say: If one humiliates another who is sleeping and the individual never awakens and dies, the one who humiliated him is liable to compensate his heirs for that humiliation? Apparently, even if the status of the condemned is that of a dead person, the one who cursed him should be liable to compensate his heirs. The Gemara answers: With what are we dealing here in the baraita? We are dealing with a case where he struck him with a blow that does not have sufficient force to cause damage worth one peruta, in which case no compensation is paid.

והאמר רבי אמי אמר רבי יוחנן הכהו הכאה שאין בה שוה פרוטה לוקה מאי פטור דקאמר פטור מממון

The Gemara asks: But doesn’t Rabbi Ami say that Rabbi Yoḥanan says: In a case where one struck another with a blow that does not have sufficient force to cause damage worth one peruta, he is flogged for violating the prohibition: “He shall not exceed”? Why does the baraita exempt another entirely? The Gemara explains: What is the meaning of the term exempt that is stated in this baraita? It means that he is exempt from monetary restitution, but he is liable to receive lashes.

מכלל דבנו חייב בממון אלא בדינו הכא נמי בדינו

The Gemara asks: If the clause of the baraita that discusses a case where another individual strikes or curses him and states that he is exempt only from payment of restitution, one may conclude by inference that the clause of the baraita that discusses his son states that he is liable to pay monetary restitution. That is certainly not the case. Rather, the clause of the baraita that discusses his son states that he is liable to be punished in accordance with his appropriate sentence; here too, the clause of the baraita that discusses another individual states that he is exempt from punishment in accordance with his appropriate sentence. The question remains: Why is another exempt from receiving lashes in a case where he struck him with a blow that does not have sufficient force to cause damage worth one peruta?

אלא אחר היינו טעמא דפטור דאמר קרא ונשיא בעמך לא תאר בעושה מעשה עמך

The Gemara answers: Rather, this is the reason that another is exempt: As the verse states: “Nor curse a ruler of your people” (Exodus 22:27), from which it is inferred that this prohibition applies only with regard to one who performs an action of “your people,” i.e., an action befitting a Jew. There is no prohibition against cursing one whose actions are inconsistent with the conduct appropriate for a Jew.

התינח קללה הכאה מנלן דמקשינן הכאה לקללה

The Gemara asks: This explanation works out well with regard to cursing, as that is the prohibition mentioned in that verse. From where do we derive that the halakha is the same with regard to striking? The Gemara answers: We derive that the halakha is the same for both, as we liken striking to cursing based on the juxtaposition between the verses that address the cases of one who strikes his father (Exodus 21:15) and one who curses his father (Exodus 21:17).

אי הכי בנו נמי כדאמר רב פינחס בשעשה תשובה הכי נמי בשעשה תשובה

The Gemara challenges: If so, and the prohibition does not apply to one whose actions are inconsistent with the conduct appropriate for a Jew, his son too should be exempt if he strikes or curses his father whose conduct is inappropriate. The Gemara explains: As Rav Pineḥas says in another context that the reference is to a case where the one in question repented, so too, the baraita is referring to a case where the condemned man repented. Although he is being taken to his execution, because he repented he is considered as one who performs actions “of your people,” and his son is liable for striking or cursing him.

אי הכי אחר נמי אמר רב מרי בעמך במקוים שבעמך

The Gemara challenges: If so, and the baraita is referring to one who repented, another should be rendered liable as well. Rav Mari says: One derives from the expression “of your people” that the prohibition applies only to one enduring among your people, not to one whose execution is imminent.

אי הכי בנו נמי

The Gemara challenges: If so, his son should be exempt as well, since his father’s execution is imminent.

מידי דהוה לאחר מיתה

The Gemara answers: The halakha here is just as it is after the death of his father, and the son is liable for cursing his father even after his death. Therefore, he is also liable when his father’s death is imminent.

מאי הוה עלה אמר רבה בר רב הונא וכן תנא דבי רבי ישמעאל לכל אין הבן נעשה שליח לאביו להכותו ולקללו חוץ ממסית שהרי אמרה תורה ׳ולא תחמל ולא תכסה עליו׳

Despite several attempts to cite proof contradicting his opinion, there is no conclusive refutation of the statement of Rav Sheshet that a son may serve as an agent of the court to punish his father. The Gemara asks: What halakhic conclusion was reached about this matter? Rabba bar Rav Huna says, and likewise the school of Rabbi Yishmael taught: With regard to all cases a son is not designated as an agent to strike his father or to curse him, except in a case where his father incites others to worship idols, as the Torah states: “Neither shall you spare, nor shall you conceal him” (Deuteronomy 13:9).

מתני׳ המכה אביו ואמו אינו חייב עד שיעשה בהן חבורה זה חומר במקלל מבמכה שהמקלל לאחר מיתה חייב והמכה לאחר מיתה פטור

MISHNA: One who strikes his father or his mother is not liable to be executed unless he wounds one of them. This is a stringency with regard to one who curses his father that is more severe than the halakha with regard to one who strikes his father, as one who curses his father or his mother after his or her death is liable, but one who strikes one of them after his or her death is exempt, as he did not cause a wound.

גמ׳ תנו רבנן ׳אביו ואמו קלל׳ לאחר מיתה שיכול הואיל וחייב במכה וחייב במקלל מה מכה אינו חייב אלא מחיים אף המקלל אינו חייב אלא מחיים

GEMARA: The Sages taught in a baraita that it is written: “For any man who curses his father and his mother shall be put to death, he has cursed his father and his mother; his blood shall be upon him who curses his father and his mother shall die; he has cursed his father and his mother; his blood shall be upon him” (Leviticus 20:9). This is referring to one who curses his parents even after their death, as one might have thought: Since one is liable for striking and one is liable for cursing, just as one who strikes is liable only when his father or mother are alive, so too, one who curses is liable only when they are alive.

ועוד קל וחומר ומה מכה שעשה בו שלא ׳בעמך׳ כ׳בעמך׳ לא חייב בו לאחר מיתה מקלל שלא עשה בו שלא ׳בעמך׳ כ׳בעמך׳ אינו דין שלא חייב בו לאחר מיתה

Furthermore, one may draw an a fortiori inference: If, with regard to one who strikes another, where the Torah deemed the status of striking one who performs actions not of your people, i.e., a sinner, like that of striking one who performs actions that are of your people, yet the Torah did not deem him liable for striking another after death, then with regard to one who curses, where the Torah deemed the status of cursing one who performs actions not of your people like that of cursing one who performs actions that are of your people, is it not right that the Torah did not deem him liable for cursing another after their death?

תלמוד לומר ׳אביו ואמו קלל׳ לאחר מיתה

Therefore, the verse states the extraneous phrase: “He has cursed his father and his mother,” to include even one who curses his father or mother after that parent’s death.

הניחא לרבי יונתן דמייתר ליה קרא אביו ואמו אלא לרבי יאשיה מאי איכא למימר

The Gemara asks: This works out well according to the opinion of Rabbi Yonatan, for whom the phrase “his father and his mother” is extraneous. But according to the opinion of Rabbi Yoshiya, who disagrees with him, what is there to say?

דתניא ׳איש איש׳ מה תלמוד לומר ׳איש איש׳ לרבות בת טומטום ואנדרוגינוס ׳אשר יקלל את אביו ואת אמו׳ אין לי אלא אביו ואמו אביו שלא אמו אמו שלא אביו מניין תלמוד לומר ׳אביו ואמו קלל׳ אביו קלל אמו קלל דברי רבי יאשיה

This is as it is taught in a baraita that it is written: “For any man [ish ish] who curses his father and his mother shall be put to death, he has cursed his father and his mother; his blood shall be upon him.” What is the meaning when the verse states redundantly: “Ish ish”? It serves to include not only a son, but also a daughter, one whose sexual organs are indeterminate [tumtum], and a hermaphrodite who curse their parent. When the verse states: “Who curses his father and his mother,” I have derived only liability for cursing both his father and his mother. From where is liability derived for one who cursed his father but who did not curse his mother, or one who cursed his mother but who did not curse his father? The verse states: “He has cursed his father and his mother,” from which it is derived that the halakha is as if the verse states: He cursed his father or he cursed his mother. This is the statement of Rabbi Yoshiya.

רבי יונתן אומר משמע שניהן כאחד ומשמע אחד ואחד בפני עצמו עד שיפרט לך הכתוב ׳יחדיו׳

Rabbi Yonatan says: In verses of this kind when two subjects are joined with a prefix of the letter vav, that prefix indicates the conjunction “and,” meaning both subjects together, and it also indicates the conjunction “or,” meaning each one by itself, unless the verse specifies with the word: “Together,” in which case the meaning is both together. Therefore, the phrase “he has cursed his father and his mother” is extraneous.

מנא ליה נפקא ליה מומקלל אביו ואמו מות יומת

Since according to the opinion of Rabbi Yoshiya, the phrase is not redundant, from where does he derive that one is liable for cursing his father after his death? The Gemara answers: He derives it from that which is written: “And one who curses his father or his mother shall be put to death” (Exodus 21:17).

ואידך ההוא מיבעי ליה לרבות בת טומטום ואנדרוגינוס

The Gemara asks: And the other tanna, Rabbi Yonatan, what does he derive from that verse? The Gemara answers: He requires the other verse to include a daughter, a tumtum, and a hermaphrodite in the prohibition against cursing a parent.

ותיפוק ליה מאיש איש דברה תורה כלשון בני אדם

The Gemara challenges: But let him derive that halakha from the redundant use of “ish ish,” as Rabbi Yoshiya does. The Gemara responds: Rabbi Yonatan holds that the Torah spoke in the language of people. The repetition of the term ish is merely a rhetorical flourish commonly employed in speech, and no additional halakhot can be derived from it.

וליתני חומר במכה מבמקלל שהמכה עשה בו שלא בעמך כבעמך מה שאין כן במקלל קסבר מקשינן הכאה לקללה

§ The Gemara asks with regard to the mishna: And let the tanna teach a second stringency in the mishna: This is a stringency with regard to one who strikes his father that is more severe than the halakha with regard to one who curses his father, that with regard to one who strikes a parent the Torah deemed the status of striking one who performs actions not of your people to be like that of striking one who performs actions of your people, which is not so with regard to one who curses a parent. The Gemara responds: The tanna of the mishna disagrees and holds that we liken striking to cursing based on the juxtaposition of the verses.

לימא הני תנאי כהני תנאי דתני חדא כותי אתה מצווה על הכאתו ואי אתה מצווה על קללתו ותניא אידך אי אתה מצווה לא על קללתו ולא על הכאתו

The Gemara suggests: Let us say that the opinions of these following tanna’im are parallel to the opinions of those following tanna’im, as it is taught in one baraita: With regard to a Samaritan, you are commanded to refrain from striking him, but you are not commanded to refrain from cursing him. And it is taught in another baraita: You are commanded neither to refrain from cursing him nor to refrain from striking him.

סברוה דכולי עלמא כותים גירי אמת הן מאי לאו בהא קמיפלגי דמר סבר מקשינן הכאה לקללה ומר סבר לא מקשינן הכאה לקללה

It is assumed that everyone, i.e., the tanna of each baraita, agrees that Samaritans are true converts. Since their conversion was sincere, their status is that of a Jew who sinned. Based on that assumption, the Gemara suggests: What, is it not that they disagree about this: That one Sage, the tanna of the second baraita, holds that we liken striking to cursing and the halakha is the same with regard to both, and therefore it is neither prohibited to strike a Samaritan, nor is it prohibited to curse him; and one Sage, the tanna of the first baraita, holds that we do not liken striking to cursing, and there is no prohibition against cursing a sinner, but there is a prohibition against striking him?

לא דכולי עלמא לא מקשינן הכאה לקללה והכא בהא קמיפלגי מר סבר כותים גירי אמת הן ומר סבר כותים גירי אריות הן

The Gemara rejects the parallel between the two tannaitic disputes. No, everyone, i.e., the tanna’im in each baraita, agrees that we do not liken striking to cursing, and here they disagree about this: One Sage, the tanna of the first baraita, holds that Samaritans are true converts and their status is that of a Jew who sinned. Therefore, there is no prohibition against cursing him, but there is a prohibition against striking him. And one Sage, the tanna of the second baraita, holds that Samaritans are converts who converted under duress due to the threat of lions (see II Kings, chapter 17) and their conversion was never valid. Therefore, their legal status is that of a gentile and it is neither prohibited to strike a Samaritan nor to curse him.

אי הכי היינו דקתני עלה ושורו כישראל אלא שמע מינה בהיקישא פליגי שמע מינה

The Gemara asks: If so, is that consistent with that which is taught with regard to the second baraita: And in terms of damage caused to his ox his status is like that of a Jew? Apparently, even the tanna of the second baraita holds that the conversion of the Samaritans was sincere. Rather, learn from it that the two tanna’im disagree with regard to the juxtaposition of the two prohibitions, as initially suggested; their dispute is not with regard to the status of a Samaritan. The Gemara affirms: Conclude from it that this is the crux of their dispute.

מתני׳ הגונב נפש מישראל אינו חייב עד שיכניסנו לרשותו רבי יהודה אומר עד שיכניסנו לרשותו וישתמש בו שנאמר והתעמר בו ומכרו הגונב את בנו רבי ישמעאל בנו של רבי יוחנן בן ברוקה מחייב וחכמים פוטרין גנב מי שחציו עבד וחציו בן חורין רבי יהודה מחייב וחכמים פוטרין

MISHNA: One who abducts a Jewish person is not liable to be executed unless he brings the abductee into his domain. Rabbi Yehuda says: He is not liable unless he brings him into his domain and exploits him, as it is stated: “If a man shall be found abducting a person of his brethren from the children of Israel, and he exploited him and sold him, then that abductor shall die” (Deuteronomy 24:7). The phrase “exploited him” indicates using him for labor. With regard to one who abducts his own son and sells him, Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, deems him liable, and the Rabbis deem him exempt. If one abducted one who is a half-slave half-freeman, i.e., a Canaanite slave who belonged to two owners and was emancipated by one of them, Rabbi Yehuda deems him liable, and the Rabbis deem him exempt.

גמ׳ ותנא קמא לא בעי עימור אמר רבי אחא בריה דרבא עימור פחות משוה פרוטה איכא בינייהו

GEMARA: The Gemara asks: And does the first tanna not require exploitation as a condition for liability? The Torah states it explicitly in the verse in Deuteronomy. Rabbi Aḥa, son of Rava, says: The difference between them is in a case of exploitation worth less than the value of one peruta. The first tanna holds that one is liable for any exploitation and there is no minimum value in order to establish liability. Rabbi Yehuda holds that one is liable only if one derives benefit equal to at least one peruta from his exploitation.

בעי רבי ירמיה גנבו ומכרו ישן מהו מכר אשה לעוברה מהו יש דרך עימור בכך או אין דרך עימור בכך

Rabbi Yirmeya raises a dilemma: If one abducted another and sold him while he was asleep, what is the halakha? If one abducted and sold a pregnant woman solely for benefit from her fetus, what is the halakha? Is that a manner of exploitation for which one is liable to be executed or is that not a manner of exploitation for which one is liable to be executed?

ותיפוק ליה דליכא עימור כלל לא צריכא ישן דזגא עליה אשה דאוקמא באפי זיקא דרך עימור בכך או אין דרך עימור בכך מאי תיקו

The Gemara asks with regard to the dilemmas raised by Rabbi Yirmeya: But let him derive that the abductor is not liable, as there is no exploitation at all of a sleeping individual or a fetus. The Gemara answers: No, it is necessary to raise the dilemma only with regard to the sleeping individual in a case where one reclines on him, and with regard to the pregnant woman where one stands her in the face of the wind to protect himself from the wind. In those cases, is that a manner of exploitation for which one is liable to be executed or is that not a manner of exploitation for which one is liable to be executed? What is the halakha? The Gemara concludes: The dilemma shall stand [teiku] unresolved.

תנו רבנן ׳כי ימצא איש גנב נפש מאחיו׳ אין לי אלא איש שגנב אשה מניין תלמוד לומר ׳וגנב איש׳

The Sages taught in a baraita that it is written: “If a man shall be found abducting a person of his brethren from the children of Israel, and he exploited him and sold him, then that abductor shall die” (Deuteronomy 24:7). I have derived only that a man who abducted another is liable. From where is it derived that a woman who abducts another is liable as well? It is derived from the verse that states: And one who abducts a man, and sells him, if he be found in his hand, he shall be put to death” (Exodus 21:16), where the sex of the abductor is not specified.

אין לי אלא איש שגנב בין אשה ובין איש ואשה שגנבה איש אשה שגנבה אשה מניין תלמוד לומר ׳ומת הגנב ההוא׳ מכל מקום

I have derived only that a man who abducted another, whether a man or a woman, is liable, as it is written: “If a man shall be found abducting a person”; the abductor is male but the sex of the abductee is not specified. And I derived that a woman who abducted a man is liable, as it is written: “And one who abducts a man”; the sex of the abductor is not specified but the abductee is male. From where is it derived that a woman who abducted a woman is liable as well? It is derived from the verse that states: “Then that abductor shall die” (Deuteronomy 24:7); the abductor shall die in any case, regardless of the sex of the one who was abducted.

תניא אידך ׳כי ימצא איש גנב נפש מאחיו׳ אחד הגונב את האיש ואחד הגונב את האשה ואחד גר ואחד עבד משוחרר וקטן חייב גנבו ולא מכרו מכרו ועדיין ישנו ברשותו פטור מכרו לאביו או לאחיו או לאחד מן הקרובים חייב הגונב את העבדים פטור

It is taught in another baraita that it is written: “If a man is found abducting a person of his brethren,” from which it is derived that whether he abducts a man, or whether he abducts a woman, or whether he abducts a convert, or whether he abducts an emancipated slave or a minor, he is liable. If he abducted another but did not sell him, or if he sold him but he remains in his domain, the abductor is exempt. If he sold him to the father of the abductee, or to his brother, or to one of his other relatives, the abductor is liable. One who abducts slaves is exempt.