Arakhin 7a

מִכְּלָל דְּתַנָּא קַמָּא סָבַר: נִיתַּן לַחֲזָרַת עֲמִידַת בֵּית דִּין?!

The Gemara asks: If so, can one conclude by inference that the first tanna holds that one who is being taken to be executed can be brought back to stand before the court for judgment? This is clearly erroneous, as the court is not permitted to delay his execution.

אָמַר רַב יוֹסֵף: בְּמִלְוָה עַל פֶּה גּוֹבֶה מִן הַיּוֹרְשִׁין קָמִיפַּלְגִי, תַּנָּא קַמָּא סָבַר: מִלְוָה עַל פֶּה גּוֹבֶה מִן הַיּוֹרְשִׁין, וְרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר סָבַר: אֵינוֹ גּוֹבֶה מִן הַיּוֹרְשִׁין.

Rav Yosef says: Everyone agrees that his execution may not be delayed. Rather, they disagree as to whether or not one who is owed money from a loan by oral agreement can collect from the heirs. The first tanna holds that one who is owed money from a loan by oral agreement can collect from the heirs, and therefore the injured party can collect from the heirs after the execution. But Rabbi Shimon ben Elazar holds that one who is owed money from a loan by oral agreement cannot collect from the heirs, and therefore the heirs are exempt from payment for the injury.

רַבָּה אָמַר: דְּכוּלֵּי עָלְמָא מִלְוָה עַל פֶּה אֵינוֹ גּוֹבֶה מִן הַיּוֹרְשִׁין, וְהָכָא בְּמִלְוָה הַכְּתוּבָה בַּתּוֹרָה כִּכְתוּבָה בִּשְׁטָר קָמִיפַּלְגִי, תַּנָּא קַמָּא סָבַר: כִּכְתוּבָה בִּשְׁטָר דָּמְיָא, וְרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר סָבַר: לָאו כִּכְתוּבָה בִּשְׁטָר דָּמְיָא.

Rabba said: Actually, everyone agrees that one who is owed money from a loan by oral agreement cannot collect from the heirs; and here the tanna’im disagree with regard to whether a loan that is written in the Torah, e.g., one’s obligation to pay if he causes damage, is considered as though it is written in a document. The first tanna holds that a loan that is written in the Torah is considered as though it is written in a document, and may be collected from the heirs. And Rabbi Shimon ben Elazar holds that it is not considered as though it is written in a document, and therefore it may not be collected.

מֵיתִיבִי: הַחוֹפֵר בּוֹר בִּרְשׁוּת הָרַבִּים, וְנָפַל עָלָיו שׁוֹר וַהֲרָגוֹ — פָּטוּר, וְלֹא עוֹד, אֶלָּא שֶׁאִם מֵת הַשּׁוֹר — יוֹרְשֵׁי בַּעַל הַבּוֹר חַיָּיבִין לְשַׁלֵּם דְּמֵי שׁוֹר לִבְעָלָיו!

The Gemara raises an objection against the opinion that one cannot collect a loan that is written in the Torah from the heirs, from a baraita ( Tosefta , Bava Kamma 6:2): If one was digging a pit in the public thoroughfare, and an ox fell on the digger of the pit and killed him, the owner of the ox is exempt from paying damages, as the digger of the pit should not have dug the pit. Moreover, if the ox died as a result of the fall, the heirs of the owner of the pit are liable to pay the value of the ox to its owner. This shows that an obligation that is written in the Torah, such as compensation for damage, is collected from heirs.

אָמַר רַבִּי אִילָא אָמַר רַב: כְּשֶׁעָמַד בַּדִּין, וְהָא ״הֲרָגוֹ״ קָתָנֵי! אָמַר רַב אַדָּא בַּר אַהֲבָה: כְּשֶׁעֲשָׂאוֹ טְרֵיפָה.

Rabbi Ila said that Rav said: The baraita is dealing with a case where the digger of the pit stood trial for the damage before he died, and once judgment is rendered by a court the resulting financial obligation is comparable to a written loan, not one that is written in the Torah. The Gemara raises an objection: But it is taught in the baraita that the ox killed him. Rav Adda bar Ahava said: The baraita does not mean that the ox literally killed him, rather, that it rendered him as one who has a wound that will cause him to die within twelve months [ tereifa ], and there was enough time before his death to sentence him to pay damages.

וְהָאָמַר רַב נַחְמָן, תָּנֵי חַגָּא: מֵת וּקְבָרוֹ! וְהִילְכְתָא דְּיָיתְבִי דַּיָּינֵי אַפּוּמָּא דְבֵירָא.

The Gemara raises an objection: But doesn’t Rav Naḥman say that Ḥagga teaches a slightly different version of the baraita , that if the digger of the pit died from the impact of the ox, and the ox effectively buried him in the ground at the bottom of the pit, his heirs have to pay damages to the owner of the ox? In this scenario, how could it be possible for the digger to stand trial? The Gemara answers: The halakha in the baraita , that the owner of the ox collects from the heirs of the digger, is dealing with a case where judges sat at the opening of the pit and rendered the digger liable to pay damages before he died.

תָּנוּ רַבָּנַן: הַיּוֹצֵא לֵיהָרֵג — מַזִּין עָלָיו מִדַּם חַטָּאתוֹ וּמִדַּם אֲשָׁמוֹ, חָטָא בְּאוֹתָהּ שָׁעָה — אֵין נִזְקָקִין לוֹ. מַאי טַעְמָא? אָמַר רַב יוֹסֵף: מִפְּנֵי שֶׁאֵין מְעַנִּין אֶת דִּינוֹ.

§ The Sages taught another baraita on the same topic: With regard to one taken to be executed, they sprinkle for his sake on the altar from the blood of his sin offering and from the blood of his guilt offering, which he brought earlier. But if he sinned at that time, obligating him to bring a sin offering or a guilt offering, the court does not attend to his obligation, and his execution is not delayed so that he can sacrifice the offering. The Gemara asks: What is the reason for this? Rav Yosef said: It is because the court may not afflict him by forcing him to wait for his judgment, his execution, until the offering is sacrificed.

אֲמַר לֵיהּ אַבָּיֵי: אִי הָכִי, אֲפִילּוּ רֵישָׁא נָמֵי! כְּגוֹן שֶׁהָיָה זִבְחוֹ זָבוּחַ בְּאוֹתָהּ שָׁעָה.

Abaye said to Rav Yosef: If so, if the offering is not sacrificed in order to avoid afflicting the sentenced by delaying his execution, then this should apply even in the first clause as well, where he had already brought the offering. Why does the court delay his execution until the blood is sprinkled? Rav Yosef answered: The first clause is referring to a case where his offering was already slaughtered at that time, and all that remained to be done was the sprinkling of the blood. Delaying the execution for such a short time is not a problem.

אֲבָל אֵין זִבְחוֹ זָבוּחַ, מַאי? לָא? אַדְּתָנֵי ״חָטָא בְּאוֹתָהּ שָׁעָה אֵין נִזְקָקִין לוֹ״, לִיפְלוֹג וְלִיתְנֵי בְּדִידַהּ: בַּמֶּה דְּבָרִים אֲמוּרִים — שֶׁהָיָה זֶבַח זָבוּחַ בְּאוֹתָהּ שָׁעָה, אֲבָל אֵין זֶבַח זָבוּחַ — לֹא!

The Gemara asks: But then in a case where he set aside his offering but it was not yet slaughtered, what is the halakha ? Is it true that they do not delay his execution in order to sacrifice the offering? If so, instead of teaching a new case and stating: But if he sinned at that time and thereby became obligated to sacrifice a sin offering or a guilt offering, the court does not attend to his obligation, let the baraita distinguish and teach a distinction within the case of where he already brought the offering itself: In what case is this statement, that the blood is sprinkled, said? When his offering was already slaughtered at that time. But if his offering was not yet slaughtered, his execution is not delayed.

הָכִי נָמֵי קָאָמַר: בַּמֶּה דְּבָרִים אֲמוּרִים — שֶׁהָיָה זֶבַח זָבוּחַ בְּאוֹתָהּ שָׁעָה, אֲבָל אֵין זֶבַח זָבוּחַ — נַעֲשָׂה כְּמִי שֶׁחָטָא בְּאוֹתָהּ שָׁעָה, וְאֵין נִזְקָקִין לוֹ.

The Gemara answers: That is indeed what he is saying: In what case is this statement said? When his offering was already slaughtered at that time. But if his offering was not yet slaughtered, it is considered as though he sinned at that time, and therefore the court does not attend to his obligation.

מַתְנִי׳ הָאִשָּׁה שֶׁיָּצְאָה לֵיהָרֵג, אֵין מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד. הָאִשָּׁה שֶׁיָּשְׁבָה עַל הַמַּשְׁבֵּר, מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד. הָאִשָּׁה שֶׁנֶּהֶרְגָה, נֶהֱנִין בִּשְׂעָרָהּ. בְּהֵמָה שֶׁנֶּהֶרְגָה, אֲסוּרָה בַּהֲנָאָה.

MISHNA: In the case of a pregnant woman who is taken by the court to be executed, the court does not wait to execute her until she gives birth. Rather, she is killed immediately. But with regard to a woman taken to be executed who sat on the travailing chair [ hamashber ] in the throes of labor, the court waits to execute her until she gives birth. In the case of a woman who was killed through court-imposed capital punishment, one may derive benefit from her hair. But in the case of an animal that was killed through court-imposed execution, e.g., for goring a person, deriving benefit from the animal is prohibited.

גְּמָ׳ פְּשִׁיטָא, גּוּפַהּ הִיא! אִיצְטְרִיךְ, סָלְקָא דַּעְתָּךְ אָמֵינָא: הוֹאִיל וּכְתִיב ״כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה״, מָמוֹנָא דְבַעַל הוּא, וְלָא לַיפְסְדֵיהּ מִינֵּיהּ, קָא מַשְׁמַע לַן.

GEMARA: Isn’t it obvious that the court executes the pregnant woman rather than waiting? After all, it is part of her body. The Gemara answers: It was necessary for the mishna to teach this, as it might enter your mind to say that since it is written: “And if men strive together, and hurt a woman with child, so that her offspring depart…he shall be fined, as the woman’s husband shall place upon him” (Exodus 21:22), the fetus is considered to be the property of the husband. If so, the court should wait until she gives birth before executing her, and not cause him to lose the fetus. Consequently, the mishna teaches us that the court does not take this factor into account.

וְאֵימָא הָכִי נָמֵי! אָמַר רַבִּי אֲבָהוּ אָמַר רַבִּי יוֹחָנָן: אָמַר קְרָא ״וּמֵתוּ גַּם שְׁנֵיהֶם״ — לְרַבּוֹת אֶת הַוָּולָד.

The Gemara asks: But why not say that indeed the court should delay her execution until she gives birth? Rabbi Abbahu says that Rabbi Yoḥanan says: The verse states: “If a man be found lying with a woman married to a husband, then they shall also both of them die, the man that lay with the woman, and the woman” (Deuteronomy 22:22). The amplifying term “both of them” serves to add her fetus, teaching that it dies together with her.

וְהַאי מִיבְּעֵי לֵיהּ, עַד שֶׁיְּהוּ שְׁנֵיהֶן שָׁוִין, דִּבְרֵי רַבִּי יֹאשִׁיָּה! כִּי קָאָמְרִינַן מִ״גַּם״.

The Gemara asks: But this phrase is required for the following halakha : Neither of the two adulterers mentioned in the verse is punished until both of them are equal, i.e., they have both reached majority. This is the statement of Rabbi Yoshiya. The Gemara answers: When you say that the child also dies, it is derived from the word “also,” whereas the halakha that they must be equal is learned from the term “both of them.”

יָשְׁבָה עַל הַמַּשְׁבֵּר וְכוּ׳. מַאי טַעְמָא? כֵּיוָן דְּעָקַר, גּוּפָא אַחֲרִינָא הוּא.

§ The mishna teaches: With regard to a woman taken to be executed who sat on the travailing chair in the throes of labor, the court waits to execute her until she gives birth. The Gemara asks: What is the reason for delaying the execution in this case? The Gemara answers: Once the fetus uproots from its place and begins to leave the woman’s body, it is considered an independent body and may not be killed together with the mother.

אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: הָאִשָּׁה הַיּוֹצְאָה לֵיהָרֵג, מַכִּין אוֹתָהּ כְּנֶגֶד בֵּית הֵרָיוֹן, כְּדֵי שֶׁיָּמוּת הַוָּולָד תְּחִילָּה, כְּדֵי שֶׁלֹּא תָּבֹא לִידֵי נִיוּוּל. לְמֵימְרָא דְּהִיא קָדְמָה וּמֵתָה בְּרֵישָׁא? וְהָא קַיְימָא לַן דְּוָולָד מָיֵית בְּרֵישָׁא!

Rav Yehuda says that Shmuel says: In the case of a pregnant woman who is taken by the court to be executed, one strikes her opposite the womb, i.e., on the abdomen, so that the fetus dies first and so that she not suffer disgrace as a result of publicly bleeding from labor. The Gemara asks: Is this to say that according to Shmuel if a pregnant woman dies, she dies first, before the fetus? It is clear that this is Shmuel’s assumption, as he mandates killing the fetus before the mother, lest the live fetus bring about the onset of labor as a reaction to the woman’s death. Were the fetus to perish first, before the woman, there would be no need for this. But this is difficult, as we maintain that the fetus dies first.

דִּתְנַן: תִּינוֹק בֶּן יוֹמוֹ נוֹחֵל וּמַנְחִיל, וְאָמַר רַב שֵׁשֶׁת: נוֹחֵל בְּנִכְסֵי הָאֵם לְהַנְחִיל לָאַחִין מִן הָאָב.

As we learned in a mishna ( Nidda 43b–44a): A baby boy, one day old, inherits the estate of his relatives who died on the day of his birth, and if he dies, he bequeaths that inheritance to his relatives. And Rav Sheshet says: This mishna is teaching that a day-old child inherits his mother’s property when she died after he was born, to bequeath it to his heirs who are not the mother’s heirs, e.g., to his paternal brothers.

דַּוְוקָא בֶּן יוֹם אֶחָד, אֲבָל עוּבָּר — לָא, דְּהוּא מָיֵית בְּרֵישָׁא, וְאֵין הַבֵּן יוֹרֵשׁ אֶת אִמּוֹ בְּקֶבֶר לְהַנְחִיל לָאַחִין מִן הָאָב!

The Gemara explains the difficulty: It is specifically in a case where the boy is one day old that he inherits and bequeaths, but a fetus who died while still in the womb does not inherit and bequeath. The reason is that we presume that the fetus died first, before its mother, and a son does not inherit through his mother while in the grave, in order to bequeath her property to his paternal brothers.

הָנֵי מִילֵּי לְגַבֵּי מִיתָה, אַיְּידֵי דְּוָולָד זוּטְרָא חַיּוּתֵיהּ, עָיְילָא טִיפָּה דְּמַלְאַךְ הַמָּוֶת וּמְחַתֵּךְ לְהוּ לְסִימָנִין, אֲבָל נֶהֶרְגָה — הִיא מֵתָה בְּרֵישָׁא.

The Gemara answers: This matter, i.e., the presumption that the fetus dies first, applies only in a case of natural death. In such a situation, since the fetus’s vitality is minimal, the Angel of Death’s drop of poison enters his body and cuts the two organs that must be severed in ritual slaughter, i.e., the windpipe and the gullet [ simanim ], thereby killing him before his mother. But in a case where the mother was killed, e.g., if she was executed, she dies first.

וְהָא הֲוָה עוֹבָדָא, וּפַרְכֵּיס עַד תְּלָת פִּרְכּוּסֵי! מִידֵּי דְּהָוֵי אַזְּנַב הַלְּטָאָה דִּמְפַרְכֶּסֶת.

The Gemara asks: Is it true that the fetus always dies first when the mother dies naturally? But there was an incident where the mother died naturally and the fetus made three spasmodic motions afterward. The Gemara answers: That is just as it is with the tail of the lizard, which jerks after being severed from the lizard; it is just a spasmodic motion, which does not indicate that it is still alive.

אָמַר רַב נַחְמָן אָמַר שְׁמוּאֵל: הָאִשָּׁה שֶׁיָּשְׁבָה עַל הַמַּשְׁבֵּר וּמֵתָה בְּשַׁבָּת, מְבִיאִין סַכִּין וּמְקָרְעִים אֶת כְּרֵיסָהּ, וּמוֹצִיאִין אֶת הַוָּולָד. פְּשִׁיטָא, מַאי עָבֵיד?

§ Rav Naḥman says that Shmuel says: In the case of a woman who sat on the travailing chair in the throes of labor, and died on Shabbat, one brings a knife, and tears open her abdomen, and removes the fetus, as it might still be alive, and it could be possible to save its life. The Gemara asks: But isn’t it obvious that this is permitted? After all, what is the person who cuts her abdomen doing?