[72a - 38 lines; 72b - 37 lines]
1a)[line 2]תרטימר בשרTARTEIMAR BASAR- a measure of meat equal to the weight of 50 silver Zuz coins (a half-Maneh; approximately half a pound or 212.5 grams)
b)[line 2]חצי לוג יין האיטלקיCHATZI LOG YAYIN HA'ITALKI- a half-Log of fine Italian wine (approximately 5 ounces / 148 ml, 5.7 ounces / 169 ml, or 10.15 ounces / 300 ml, depending upon the differing Halachic opinions)
2)[line 5]מגמרMEGAMER- he will exhaust
3)[line 5]ומבקש למודוMEVAKESH LIMUDO- he will seek that to which he has become accustomed
4)[line 6]לפרשת דרכיםPERASHAS DERACHIM- a crossroads (where many people can be found)
5)[line 7]ומלסטם את הבריותMELASTIM ES HA'BERIYOS- he will [murder and] steal from people (see Insights)
6)[line 15]הבא במחתרתHA'BA B'MACHTERES - A Thief who Tunnels into a House
(a)One may save himself from another who is attempting to kill him by killing the would-be murderer first, assuming that this is the only way that he can save himself. This is expressed by Chazal as "ha'Ba l'Horgecha, Hashkem l'Horgo."
(b)This is taught in the Torah through the law of a Ba b'Machteres - one who tunnels into the house of another in order to steal his possessions. The owner is likely to be inside the house and discover him, and the thief cannot help but be aware that the owner will not take kindly to having his possessions stolen. We can therefore assume that the thief is willing to commit murder if necessary. It is therefore permitted for the homeowner or anyone else to kill a thief found tunneling the home of another (Shemos 22:1).
(c)If the thief clearly had no intention of murdering the homeowner, then he may not be killed. The classic example of such a case is that of a father found tunneling into the home of his son (ibid. 22:2; see Beraisa cited at the bottom of this Amud).
7)[line 16]החביתCHAVIS- a barrel (of wine)
8a)[line 16]יש לו דמיםYESH LO DAMIM- he has blood; i.e., one is forbidden to kill him (see below, entry #36)
b)[line 17]אין לו דמיםEIN LO DAMIM- he has no blood; i.e., one is permitted to kill him (see below, entry #36)
9)[line 17]פטורPATUR (KAM LEI BID'RABAH MINEI)
(a)Should one be liable to receive two punishments for a single action, whether they are both corporal or one corporal and one monetary, then he receives only the more severe punishment and is exempted from the less severe one. This is known as "Kam Lei bid'Rabah Minei" - "he remains with the greater of them." For example, one who stabs another to death will receive the death penalty, but will be exempt from paying for the shirt ruined by the stabbing.
(b)The Gemara (Kesuvos 31a) discusses the definition of a single action for the purposes of Kam Lei bid'Rabah Minei. According to one opinion, an entire series of actions that are necessary for the transgression of a sin constitute a single action with regard to Kam Lei bid'Rabah Minei.
(c)Although Beis Din cannot hold one responsible for damages, etc., when he receives a more severe punishment, he will be held responsible for them by the Heavenly court.
(d)There are a number of situations in which this rule may not apply:
1.Rebbi Meir is of the opinion that only a death penalty will absolve one from other punishments. One who is liable to receive Malkus (lashes) must pay in addition to receiving Malkus (Kesuvos 33b).
2.An unintentional sin does not result in a punishment. Whether the unexecuted punishment is enough to exempt one from payment is the subject of a Machlokes Amora'im. If the sin was one that would have warranted Malkus, Rebbi Yochanan rules that since the Malkus were not delivered, the sinner is not exempt from monetary liability. Reish Lakish maintains that the act was one that is punishable by Malkus and therefore exempts the sinner from payment even when the Malkus are not actually delivered. Rav Dimi understands that this same Machlokes applies in a case in which the undelivered punishment was the death penalty; Ravin maintains that in this case both Rebbi Yochanan and Reish Lakish agree that Kam Lei bid'Rabah Minei is applicable (Kesuvos 34b-35a).
3.In certain cases in which the payment is due to a person other than the victim, the sinner may be liable to pay even when his action is also punishable by the death penalty or Malkus.
(e)Since the Ba b'Machteres may have been killed at the time that he was tunneling into the house, he is exempt for damages incurred at that time. This is true even if he was not actually killed. This also applies even if the damages occurred at a later time (i.e., he successfully stole the barrel, and it broke on his way home). This is because the time that he incurred the liability to pay was when he stole it, and at that time he may have been killed.
10)[line 17]חזקה אין אדם מעמיד עצמו על ממונוCHAZAKAH EIN ADAM MA'AMID ATZMO AL MAMONO- it may be assumed that one will not hold himself back from [an attempt to save] his possessions
11a)[line 18]והאי מימר אמרHAI MEIMAR AMAR- that [thief] certainly said [to himself]
b)[line 18]אי אזילנא, קאי לאפאיIY AZILNA, KA'I L'APA'I- if I go, he will stand against me
c)[line 18]ולא שביק ליV'LO SHAVIK LI- and he will not allow me [to steal what belongs to him]
12)[line 19]קטילנא ליהKATILNA LEI- I will kill him
13)[line 20]פטורPATUR- he is exempt [from returning them even if they are extant]
14)[line 20]בדמים קננהוB'DAMIM KANINHU- he has acquired them through his [exposure to the possibility of] death (see above, entry #9)
15)[line 21]דליתנהוD'LEISNEHU- since they are no longer [extant, and the thief would therefore be required to make restitution - from which he is exempted due to Kam Lei bid'Rabah Minei]
16)[line 21]אבל נטל, לאAVAL NATAL, LO- but if he took them [and they are still extant], then [he is] not [exempt, since the vessels do not belong to him]
17)[line 22]והא-לקים!VEHA'EL-KIM!- this is an oath, signifying the depth of feeling with which a statement is expressed
18)[line 22]ונאנסוNE'ENSU- they were destroyed due to circumstances beyond his control
19)[line 23]ברשותיה קיימיBI'RESHUSEI KAIMI- they were in the possession of [the thief from the time that he stole them, for he should not be obligated to pay for the item of another if he did not damage it]
20)[line 23]ולא היאV'LO HI- and it is not so. These are the words of Rabah, who is disagreeing with Rav.
21)[line 23]כי אוקמינא רחמנא ברשותיה, לענין אונסיןKI OKMINA RACHMANA BI'RESHUSEI, L'INYAN ONSIN- when the Torah placed it in his possession, it was [only] for the purpose of [being liable in the case of] an Ones
22)[line 24]מקנאMIKNA- acquisition
23)[line 24]ברשותיה דמרייהו קיימיBI'RESHUSEI D'MARAIHU KAIMI- it remains in the possession of the [original] owner
24)[line 24]מידי דהוה אשואלMIDI D'HAVAH A'SHO'EL- similar to a borrower [who does not own the item that he borrows, but is nonetheless responsible to pay for it should an Ones occur]
25)[line 29]אדם מועד לעולםADAM MU'AD L'OLAM- a person who damages has the status of one who regularly does so (see Background to Bava Kama 2:28) [and therefore must pay in full]
26)[line 30]קשיאKASHYA- it is a question [on the opinion of Rav, but not a disproof (Teyuvta), since it is not impossible for our Mishnah to teach that which has been already taught by the Mishnah in Bava Kama]
27)[line 30]כיסKIS- a money purse
28)[line 31]נתחייב בגניבהNISCHAYEV B'GENEIVAH- he became liable for theft [when he picked up the purse with intention to steal it]
29)[line 31]איסור שבתISUR SHABBOS (HOTZA'AH)
(a)One may not transfer objects from one domain to another (Hotza'ah) on Shabbos; this is the last of the thirty-nine Avos Melachos (categories of acts of creative labor) of Shabbos. There are four designations of domains for the purposes of Hotza'ah:
1.RESHUS HA'RABIM (a public domain) is defined as a thoroughfare that is sixteen Amos wide and open at both ends, or an open plaza that can hold many people. According to some Rishonim, 600,000 people must pass through daily for the area to be considered a Reshus ha'Rabim (see Insights to Shabbos 6b).
2.RESHUS HA'YACHID (a private domain) is an area at least four Tefachim square that is enclosed by a partition ten Tefachim high on at least three sides. A raised area ten Tefachim tall and four Tefachim square has the status of a Reshus ha'Yachid as well. Reshus ha'Rabim and Reshus ha'Yachid are the only Reshuyos recognized by the Torah.
3.KARMELIS is the Rabbinic term given to certain areas that share characteristics with both a Reshus ha'Yachid and a Reshus ha'Rabim. Examples include the sea, a desert, and a four-Tefach-square area in Reshus ha'Rabim that is not ten Tefachim tall.
4.MEKOM PETUR refers to areas that do not fall into any of the above categories. Examples include a doorstep smaller than four Tefachim square, an area in Reshus ha'Rabim less than four square Tefachim that is not ten Tefachim tall, and the airspace above ten Tefachim in a Reshus ha'Rabim (See Shabbos, Charts #1-2).
(b)According to Torah law, Hotza'ah involves one of the following:
1.HOTZA'AH - the transferal of objects from a Reshus ha'Yachid to a Reshus ha'Rabim;
2.HACHNASAH - the transferal of objects from a Reshus ha'Rabim to a Reshus ha'Yachid;
3.MA'AVIR ARBA AMOS BI'RESHUS HA'RABIM - carrying an object from one place in a Reshus ha'Rabim to another over a distance of at least four Amos;
4.MOSHIT - transferring an object from one Reshus ha'Yachid to another through a Reshus ha'Rabim (see Mishnah, Shabbos 96a).
(c)The Rabanan decreed that a Karmelis be treated stringently as both a Reshus ha'Rabim and a Reshus ha'Yachid since one may confuse it with either of these two domains. Transferring from a Mekom Petur to one of the other three Reshuyos is permitted (as the name implies), provided that one does not intend to use the Mekom Petur as a way-station to transfer objects from Reshus ha'Yachid to a Reshus ha'Rabim through it (or vice versa).
(d)When the thief discussed in the Beraisa cited by our Gemara carried the purse into a Reshus ha'Rabim from the Reshus ha'Yachid in which it had been, he becomes liable to receive Sekilah. Even if this penalty is not carried out, it has the ability to render any monetary obligation incurred at the same time unable to be collected in Beis Din.
30)[line 31]היה מגרר ויוצאHAYAH MEGARER V'YOTZEI - if he was dragging [the purse] as he went out
31) [line 32] פטור PATUR - he is exempt [since he acquired the purse at the same time that he incurred the punishment of Sekilah]. The thief acquired the purse at the moment that it left the private domain in which it had been since it fell out of the domain into his other hand (see Kesuvos 31b). This Beraisa poses a question on the opinion of Rava, since it implies that even if the purse is extant, the thief need not return it due to Kam Lei bid'Rabah Minei.
32) [line 32] דשדנהו בנהרא SHADINHU B'NAHARA - [the case is one in which the thief] threw it into a river [and it is therefore no longer extant]
33)[line 33]דיכריDICHREI- rams
34)[line 33]אהדרינהו ניהליהAHADRINHU NIHALEI- [those who stole them] returned them to him
35)[line 34]הואיל ונפק מפומיה דרבHO'IL V'NAFIK MI'PUMEI D'RAV- since [a ruling that thieves are exempt from repayment in such a situation] left the mouth of Rav
36)[line 34]"[אִם בַּמַּחְתֶּרֶת יִמָּצֵא הַגַּנָּב וְהֻכָּה וָמֵת,] אֵין לוֹ דָּמִים. אִם זָרְחָה הַשֶּׁמֶשׁ עָלָיו [דָּמִים לוֹ...]""[IM BA'MACHTERES YIMATZEI HA'GANAV V'HUKAH VA'MES,] EIN LO DAMIM. IM ZARCHAH HA'SHEMESH ALAV [DAMIM LO...]"- "[If the thief is found in a tunnel and he is hit and dies,] it is as if he has no blood. If the sun shines upon him [then it is as if he has blood...]" (Shemos 22:1-2). In this context, if a thief "has blood" then one is responsible for his death. This Beraisa considers the words at the end of the first verse to modify the words at the beginning of the next verse.
37)[last line]קשיא סתמא אסתמאKASHYA SETAMA A'SETAMA- the implications [of the first Beraisa, namely, that one should not kill a thief unless he is sure that he does intend to kill him] contradict the implications [of the second Beraisa, namely, that one should kill a thief unless he is sure that he does not intend to kill him]
72b----------------------------------------72b
38a)[line 1]כאן באב על הבןKAN B'AV AL HA'BEN- here [when the first Beraisa implies that one should not kill a thief unless he is sure that he intends to kill him] it refers to a father [who tunnels] into [the house of] his son
b)[line 1]כאן בבן על האבKAN B'BEN AL HA'AV- here [when the second Beraisa implies that one should kill a thief unless he is sure that he does not intend to kill him] it refers to a son [who tunnels] into [the house of] his father
39)[line 5]דקים לי בגוויהKIM LI B'GAVEI- I am certain regarding him
40)[line 6]דמים לוDAMIM LO - see above, entry #36. The word "Damim" is plural, and therefore implies that one may not kill this type of thief in either of two different circumstances.
41) [line 12] לפקח עליו את הגל L'FAKE'ACH ALAV ES HA'GAL - to clear rubble from upon him [on Shabbos]. If anyone other than a father (or the equivalent) begins to tunnel into the house of another, he has the status of a Rodef - one who is pursuing another with intent to kill him. Since this status allows anyone to kill him in order to save the Nirdaf (pursued), it would be forbidden to profane Shabbos in order to save his life.
42) [line 13] "והוכה"... "ומת" "V'HUKAH"... "VA'MES" - see above, entry #36
43)[line 15]אחר לאACHER LO- another [whom the Ba b'Machteres has no intention of killing] may not [kill him]
44)[line 15]דרודף הואRODEF HU- he is pursuing another with intent to kill him
45)[line 17]במיתה האמורה בוMISAH HA'AMURAH BO- the death-penalty specified for murder, namely, Sayif (see 52b and Background to 67:7:a:3)
46)[line 18]רשאיRASHAI- permitted
47)[line 19]וניגמר מיניה?NIGMAR MINEI?- why do we not learn [that one may kill a Ba b'Machteres through any available means] from [that which others may kill a Rodef]? This would be possible through a Binyan Av (see below, entry #49)
48)[line 20]וגואל הדםGO'EL HA'DAM - The Avenging of a Murder
(a)One who commits murder unintentionally is exiled to either one of the six Arei Miklat (cities of refuge) or one of the forty-two cities of the Leviyim. He may not leave the city for any reason until the death of the Kohen Gadol who held the office at the time of his exile.
(b)Should the unintentional murderer leave the city of refuge, the closest relative of his victim - the Go'el ha'Dam - may avenge the death of his relative and kill the murderer (Bamidbar 35:21). If there is no one to act as the Go'el ha'Dam, Beis Din appoints someone to act in his stead (45b).
49)[line 20]וכל שני כתובין הבאין כאחד אין מלמדיןKOL SHNEI KESUVIM HA'BA'IM K'ECHAD EIN MELAMDIN - We may Not Derive Halachos from Two Verses that Teach the Same Halachah
(a)In a Beraisa found in the introduction to the Sifra (the Halachic Midrash on Vayikra), Rebbi Yishmael lists the thirteen methodologies employed by Chazal when determining Halachah from the verses of the Torah. One of them is "Binyan Av." A Binyan Av - literally "building through a father" - refers to the establishment of a certain law in one area of the Torah, and then applying it to other comparable circumstances.
(b)If the Torah goes out of its way to establish an identical law in two different areas of Halachah, however, then this law may not be applied in other areas. If we were meant to do so, then the Torah would have established the law once, leaving us to apply it as applicable through a Binyan Av. That which the Torah specified the law twice implies that it is meant to apply only in the instances where the Torah specifies it.
(c)Some Tana'im maintain that the same Halachah expressed twice does not imply that we should not learn from them that it should not apply elsewhere. Such reasoning is appropriate only when the same Halachah is stated in a minimum of three places (Sheloshah Kesuvim ha'Ba'im k'Echad Ein Melamdin).
50a)[line 21]גגוGAGO- [if the thief entered] his roof [by climbing a ladder]
b)[line 21]חצירוCHATZEIRO- [if the thief entered] his courtyard [by walking through the gate]
c)[line 21]וקרפיפוKARPIFO - [if the thief entered] his enclosed storage area (usually located outside of the settlement) [by walking through the gate]
51) [line 24] מחתרתו זו היא התראתו MACHTARTO ZO HI HASRA'ASO - his tunneling constitutes his warning. Since the thief went to such great lengths to break and enter, we can assume that he is willing to kill, and therefore needs no Hasra'ah (see below, entry #53) before he is killed. A thief who climbs a ladder or enters through a door, however, may plan to simply leave if there is any trouble, and one is therefore forbidden from killing him unless he has been properly warned.
52) [line 25] קטן הרודף KATAN HA'RODEF - a minor who is pursuing [another minor] with intent to kill. Some explain that Rashi does not mean that the case is only one in which the Katan is pursuing another Katan; see PERSIHAH to Choshen Mishpat 425:4 and SHU"T SHO'EL U'MESHIV fourth edition volume II Siman 50.
53)[line 26]התראהHASRA'AH - Warning One who is About to Sin
(a)Should one transgress a negative commandment for which the punishment is the death penalty or Malkus (lashes), he does not receive this punishment unless his action was observed by at least two valid witnesses and he had received a proper Hasra'ah (warning). The warning must identify the action by name, categorize it as a sin, and specify the specific punishment to which the offender will be liable.
(b)The Chachamim rule that Hasra'ah need not be administered by the witnesses themselves; if any bystander warns the sinner than he is liable to be punished in Beis Din. Rebbi Yosi maintains that only the witnesses themselves may administer Hasra'ah (Makos 6b).
(c)The offender must then clearly state that he has understood and accepted the consequences of his action, and then sin immediately. Should he merely remain silent, nod his head, or even state, "I know," he is liable neither to the death penalty nor to Malkus mid'Oraisa. He is, however, subject to Malkus mid'Rabanan.
(d)One who is under the age of Bar or Bas Mitzvah cannot be considered to have received Hasra'ah, since he is Halachically considered to be lacking the maturity (Da'as) to fully comprehend the consequences of his sin.
54)[line 27]יצא ראשו, אין נוגעין בוYATZA ROSHO, EIN NOG'IN BO- if the head of [a fetus] has emerged [from its mother], we are forbidden to touch it. If the life of an expectant mother is endangered by the fetus that she is carrying, it is permitted to abort the fetus as long as its head has not emerged.
55)[line 27]רודף הוא!RODEF HU!- it is seeking to kill [its mother, and Hasra'ah it not necessary in order to kill a Rodef]!
56)[line 28]דמשמיא קא רדפי להMI'SHEMAYA KA RADFEI LAH- [the baby is not seeking to kill its mother; rather] from Heaven they are seeking to kill her [through the baby]
57a)[line 29]שישראל הואYISRAEL HU- he is a Jew [and it is forbidden to kill him]
b)[line 29]ובן ברית הואU'VEN BRIS HU- and he is a member of the covenant; i.e., he does not worship Avodah Zarah, in which case one would not be allowed to save his life by killing his pursuer (see TOSFOS DH Yisrael)
58a)[line 30]"שֹׁפֵךְ דַּם הָאָדָם, בָּאָדָם דָּמוֹ יִשָּׁפֵךְ...""SHOFECH DAM HA'ADAM, BA'ADAM DAMO YISHAFECH..." - "If one spills the blood of a man, through man shall his blood be spilled..." (Bereishis 9:6). The Beraisa interprets this verse as follows, "One who [is attempting to] spill the blood of a man, for [the sake of] that man [the intended victim], his [the pursuer's] blood shall be spilled...."
b) [line 30] אמרה תורה, הצל דמו של זה בדמו של זה AMRAH TORAH, "HATZEL DAMO SHEL ZEH B'DAMO SHEL ZEH" - the Torah [in this verse] says, "Save the blood of this one [who is pursued] with the blood of this one [who is attempting to kill him]." This does not constitute proper Hasra'ah, since the Beraisa does not require that the Rodef demonstrate that he is aware of and accepts the consequences of his actions. Rather, it is a attempt to scare the Rodef from further pursuit.
59)[line 31]חברCHAVER - One who is Meticulous in his Observance of Halachah
(a)One who has earned the title of "Chaver" is meticulous in at least the following four areas of Halachah:
1.He does not give Terumah or Ma'asros to an Am ha'Aretz (an unlearned Jew who may be lax in his Torah observance);
2.He does not prepare Taharos in the vicinity of an Am ha'Aretz;
3.He is careful not to keep even Chulin from becoming Tamei;
4.He is careful to separate Ma'aser from all produce that he eats, sells, or buys (Tosefta Demai 2:2-3).
The Gemara in Bechoros 30b explains exactly how one goes about accepting this distinguished status.
60) [line 32] שלא ניתנה התראה אלא להבחין בין שוגג למזיד SHE'LO NITNAH HASRA'AH ELA L'HAVCHIN BEIN SHOGEG L'MEZID - the only purpose of Hasra'ah is to distinguish between one who acts unintentionally and one who acts intentionally [and since a Chaver knows the Halachah, he is clearly acting intentionally with full awareness of the consequences of his actions even when he is not warned]. According to Rebbi Yosi b'Rebbi Yehudah, even one who requires Hasra'ah need not acknowledge that he realizes the consequences of his actions. Since he has heard the warning, the fact that he continues to attempt to sin clearly demonstrates that he is acting intentionally.
61) [line 35] על מנת כן אני עושה AL MENAS KEN ANI OSEH - I am acting in such a fashion with full understanding of the consequences [of my actions]
62)[line 35]קאי בתרי עיברי דנהראKA'I BI'TREI IVREI D'NAHARA- [the case is one in which the one administering the warning and the Rodef] were standing on two different sides of a river
63)[line 36]מאי איכא?MAI IKA?- what is there [for the observer to do]?
64)[line 36]דבעי איתויי לבי דינאBA'I ISUYEI L'VEI DINA- he must bring [the murderer] to Beis Din [where they will put him to death through Sayif]