Makkot 8a

וְהָאָמַר רַב יִצְחָק בְּרַבִּי יוֹסֵף אָמַר רַבִּי יוֹחָנָן: רַבִּי, וְרַבִּי יְהוּדָה בֶּן רוֹעֵץ, וּבֵית שַׁמַּאי, וְרַבִּי שִׁמְעוֹן, וְרַבִּי עֲקִיבָא, כּוּלְּהוּ סְבִירִי לְהוּ יֵשׁ אֵם לַמִּקְרָא! הַיְינוּ דְּקָאָמַר לְהוּ ״וְעוֹד״.

But doesn’t Rav Yitzḥak, son of Rabbi Yosef, say that Rabbi Yoḥanan says: Rabbi Yehuda HaNasi, and Rabbi Yehuda ben Roetz, and Beit Shammai, and Rabbi Shimon, and Rabbi Akiva all hold that the vocalization of the Torah is authoritative, not the manner in which it is written? How can Rav Ḥiyya bar Ashi ascribe Rabbi Yehuda HaNasi’s ruling to the contrary opinion? The Gemara answers: That is the reason that Rabbi Yehuda HaNasi said to the Rabbis: And furthermore. Rabbi Yehuda HaNasi said to them: If the tradition of the manner in which the verses in the Torah are written is authoritative, that supports my interpretation of the verse; if not, there is an additional proof.

אָמַר רַב פָּפָּא: מַאן דִּשְׁדָא פִּיסָּא לְדִיקְלָא וְאַתַּר תַּמְרֵי, וַאֲזוּל תַּמְרֵי וּקְטוּל, בָּאנוּ לְמַחְלוֹקֶת דְּרַבִּי וְרַבָּנַן. פְּשִׁיטָא! מַהוּ דְּתֵימָא, כְּכֹחַ כֹּחוֹ דָּמֵי, קָא מַשְׁמַע לַן.

Rav Pappa said: In the case of one who cast a clod of earth onto a palm tree, and he severed dates from the tree, and the dates went upon a person and killed him, we have arrived at the dispute between Rabbi Yehuda HaNasi and the Rabbis in a case where one was splitting wood and a wood chip flew through the air and killed a person. In that case, Rabbi Yehuda HaNasi deems him liable to be exiled, and the Rabbis deem him exempt from exile. The Gemara asks: Isn’t that obvious? The cases are identical. What novel element is Rav Pappa introducing? The Gemara answers: The parallel between the cases drawn by Rav Pappa is necessary. Lest you say that these severed dates were not propelled by the force of his action but are like an item propelled by a force generated by the force of his action, and even Rabbi Yehuda HaNasi would concede that in that case he is exempt from exile, Rav Pappa teaches us that the dates are considered to have been severed by the force of his action.

אֶלָּא כֹּחַ כֹּחוֹ לְרַבִּי הֵיכִי מַשְׁכַּחַתְּ לַהּ? כְּגוֹן דִּשְׁדָא פִּיסָּא וּמַחֲיֵהּ לְגִרְמָא, וַאֲזַל גִּרְמָא וּמַחֲיֵהּ לִכְבָאסָא וְאַתַּר תַּמְרֵי, וַאֲזוּל תַּמְרֵי וּקְטוּל.

The Gemara asks: But according to Rabbi Yehuda HaNasi, how can you find circumstances of a force generated by the force of his action where he would be exempt from exile? The Gemara answers: It can be found in a case where one cast a clod of earth and it struck a branch of the palm tree, and the branch, propelled by the clod, proceeded to strike a cluster of dates [ likhevasa ] and severed the dates from the branch they were on and the dates proceeded to kill a person.

מַתְנִי׳ הַזּוֹרֵק אֶבֶן לִרְשׁוּת הָרַבִּים וְהָרַג – הֲרֵי זֶה גּוֹלֶה. רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב אוֹמֵר: אִם מִכְּשֶׁיָּצָאתָה הָאֶבֶן מִיָּדוֹ הוֹצִיא הַלָּה אֶת רֹאשׁוֹ וְקִבְּלָהּ – הֲרֵי זֶה פָּטוּר.

MISHNA: One who threw a stone into the public domain and killed a person is exiled. Rabbi Eliezer ben Ya’akov says: If after the stone left his hand the other person placed his head out into the public domain and received a blow from the stone, he is exempt, as when he cast the stone into the public domain there was no one there.

זָרַק אֶת הָאֶבֶן לַחֲצֵרוֹ וְהָרַג, אִם יֵשׁ רְשׁוּת לַנִּיזָּק לִיכָּנֵס לְשָׁם – גּוֹלֶה, וְאִם לָאו – אֵינוֹ גּוֹלֶה, שֶׁנֶּאֱמַר: ״וַאֲשֶׁר יָבֹא אֶת רֵעֵהוּ בַיַּעַר״ – מָה הַיַּעַר רְשׁוּת לַנִּיזָּק וְלַמַּזִּיק לִיכָּנֵס לְשָׁם, אַף כֹּל רְשׁוּת לַנִּיזָּק וְלַמַּזִּיק לְהִכָּנֵס לְשָׁם. יָצָא חֲצַר בַּעַל הַבַּיִת, שֶׁאֵין רְשׁוּת לַנִּיזָּק וְלַמַּזִּיק לִיכָּנֵס לְשָׁם.

In the case of one who threw the stone into his courtyard and killed a person, if the victim had permission to enter into there, the murderer is exiled, but if not, he is not exiled, as it is stated with regard to the cities of refuge: “And as one who goes with his neighbor into the forest” (Deuteronomy 19:5), from which it is derived: Just as with regard to a forest, the victim and the assailant both have equal permission to enter there, so too, with regard to all places that the victim and the assailant have permission to enter there, the killer is liable. This serves to exclude the courtyard of the homeowner, where the victim and the assailant do not both have permission to enter there. Since the victim had no right to enter his courtyard, the unintentional murderer is exempt from exile.

אַבָּא שָׁאוּל אוֹמֵר: מָה חֲטָבַת עֵצִים רְשׁוּת, אַף כֹּל רְשׁוּת, יָצָא הָאָב הַמַּכֶּה אֶת בְּנוֹ, וְהָרַב הָרוֹדֶה אֶת תַּלְמִידוֹ, וּשְׁלִיחַ בֵּית דִּין.

Abba Shaul says: Another halakha can be derived from that verse: Just as the cutting of wood that is mentioned in the verse is optional, so too, all those liable to be exiled are examples of cases where the unintentional murderer was engaged in an activity that is optional. This serves to exclude a father who strikes his son, and a teacher who oppresses his student, and an agent of the court deputized to flog transgressors. If, in the course of performing the mitzva with which they are charged, they unintentionally murdered the son, the student, or the person being flogged, respectively, they are exempt.

גְּמָ׳ לִרְשׁוּת הָרַבִּים, מֵזִיד הוּא! אָמַר רַב שְׁמוּאֵל בַּר יִצְחָק: בְּסוֹתֵר אֶת כּוֹתְלוֹ. אִיבְּעִי לֵיהּ לְעַיּוֹנֵי! בְּסוֹתֵר אֶת כּוֹתְלוֹ בַּלַּיְלָה. בַּלַּיְלָה נָמֵי אִיבְּעִי לֵיהּ לְעַיּוֹנֵי!

GEMARA: The mishna teaches: One who threw a stone into the public domain and killed a person is exiled. The Gemara asks: If he threw the stone into the public domain, why is he exiled? He is an intentional murderer. He knows that there are generally people in the public domain and is aware that he is likely to harm someone with the stone. Rav Shmuel bar Yitzḥak says: The reference in the mishna is not to one who threw a stone for no reason; rather, it is a case where one is demolishing his wall, and one of the stones struck a person. The Gemara counters: That too is intentional, as he should have examined the other side of the wall to determine if there was anyone there. The Gemara answers: It is a case where one is demolishing his wall at night, when passersby are scarce. The Gemara asks: At night too he is required to examine the other side of the wall to determine if there is anyone there, as although it is uncommon, people are apt to walk through a public domain at all hours.

בְּסוֹתֵר אֶת כּוֹתְלוֹ לְאַשְׁפָּה. הַאי אַשְׁפָּה הֵיכִי דָמֵי? אִי שְׁכִיחִי בַּהּ רַבִּים – פּוֹשֵׁעַ הוּא, אִי לָא שְׁכִיחִי בַּהּ רַבִּים – אָנוּס הוּא!

The Gemara answers: The reference in the mishna is to a case where one demolishes his wall into a scrap heap, where there is no reasonable expectation to find anyone there, as it is located out of the way. The Gemara asks: What are the circumstances of this scrap heap? If it is frequented by the multitudes because it is utilized as a bathroom, he is negligent; if it is not frequented by the multitudes, although it is a public domain in the sense that it is not private property, he is a victim of circumstances beyond his control, as there was no reason to consider the possibility that someone was there.

אָמַר רַב פָּפָּא: לָא צְרִיכָא אֶלָּא לְאַשְׁפָּה הָעֲשׂוּיָה לִיפָּנוֹת בָּהּ בַּלַּיְלָה, וְאֵין עֲשׂוּיָה לִיפָּנוֹת בָּהּ בַּיּוֹם, וְאִיכָּא דְּמִקְּרֵי וְיָתֵיב. פּוֹשֵׁעַ לָא הָוֵי – דְּהָא אֵינָהּ עֲשׂוּיָה לִיפָּנוֹת בָּהּ בַּיּוֹם, אוֹנֶס נָמֵי לָא הָוֵי, דְּהָא אִיכָּא דְּמִקְּרֵי וְיָתֵיב.

Rav Pappa said: It is necessary to state this halakha only in the case of a scrap heap that is utilized for people to defecate there at night but is not utilized for people to defecate there during the day, but it happens on occasion that one will sit there and defecate during the day. One who demolishes his wall into the scrap heap during the day is neither negligent, as the scrap heap is not utilized for people to defecate there during the day, nor is he a victim of circumstances beyond his control, as it happens on occasion that one will sit there and defecate during the day, which he should have considered. Therefore, his status is that of an unintentional murderer who is liable to be exiled.

רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב אוֹמֵר וְכוּ׳. תָּנוּ רַבָּנַן: ״וּמָצָא״ – פְּרָט לְמַמְצִיא אֶת עַצְמוֹ. מִכָּאן אָמַר רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב: אִם מִשֶּׁיָּצָתָה הָאֶבֶן מִיָּדוֹ הוֹצִיא הַלָּה אֶת רֹאשׁוֹ וְקִבְּלָהּ, פָּטוּר.

§ The mishna teaches that Rabbi Eliezer ben Ya’akov says: If after the stone left his hand the other person placed his head out into the public domain and received a blow from the stone, he is exempt. The Gemara cites a related baraita . The Sages taught that it is written: “And the blade displaces from the wood and finds his neighbor and he dies” (Deuteronomy 19:5), from which it is inferred: “And finds”; this serves to exclude one who presents himself and is thereby killed by the stone. From here Rabbi Eliezer ben Ya’akov says: If after the stone left his hand the other person placed his head out into the public domain and received a blow from the stone, the murderer is exempt.

לְמֵימְרָא דְּ״מָצָא״ מֵעִיקָּרָא מַשְׁמַע? וּרְמִינְהִי: ״וּמָצָא״ – פְּרָט לְמָצוּי, שֶׁלֹּא יִמְכּוֹר בְּרָחוֹק וְיִגְאוֹל בְּקָרוֹב, בְּרָעָה וְיִגְאוֹל בְּיָפָה!

The Gemara asks: Is that to say that the term “and finds” indicates an item that was there initially, prior to the incident in question? And the Gemara raises a contradiction from that which is written with regard to one who seeks to redeem an ancestral field that he sold: “And he acquires the means and finds sufficient funds for his redemption” (Leviticus 25:26). The term “and finds” serves to exclude one who, in order to accrue funds to redeem his field, sells a field that was found in his possession when he originally sold the field. It means that he may not sell land that he owns in a distant place and redeem land that he owns in a proximate place, or sell a low-quality tract of land and redeem with the funds accrued from that sale high-quality land. One may not exploit his right to redeem his land for his own advantage. This baraita indicates that the term “and finds” indicates an item that was not there at the time but presents itself later.

אָמַר רָבָא: הָכָא מֵעִנְיָינֵיהּ דִּקְרָא וְהָתָם מֵעִנְיָינֵיהּ דִּקְרָא. הָתָם מֵעִנְיָינֵיהּ דִּקְרָא, ״וּמָצָא״ דּוּמְיָא דִּ״וְהִשִּׂיגָה יָדוֹ״, מָה ״הִשִּׂיגָה יָדוֹ״ מֵהַשְׁתָּא, אַף ״מָצָא״ נָמֵי מֵהַשְׁתָּא. הָכָא מֵעִנְיָינֵיהּ דִּקְרָא, ״וּמָצָא״ דּוּמְיָא דְּיַעַר, מָה יַעַר מִידֵּי דְּאִיתֵיהּ מֵעִיקָּרָא, אַף ״וּמָצָא״ נָמֵי מִידֵּי דְּאִיתֵיהּ מֵעִיקָּרָא.

Rava said: This is not difficult, as here, with regard to exile, the term is interpreted in keeping with the context of the verse, and there, with regard to the redemption of land, the term is interpreted in keeping with the context of the verse. There, the term is interpreted in keeping with the context of the verse. The term “and finds” is similar to the phrase that precedes it: “And he acquires the means.” Just as the meaning of the phrase “he acquires the means” is that he acquires the means from now, as had he possessed the means beforehand he would not have sold his ancestral field at all, so too, the meaning of the term “and finds” is also that he finds sufficient funds from now and no earlier. Here, with regard to exile, the term is interpreted in keeping with the context of the verse, as the term “and finds” is similar to a forest: Just as a forest is an entity that is there initially, so too, the term “and finds” also is referring to an entity that is there initially.

הַזּוֹרֵק אֶת הָאֶבֶן וְכוּ׳. אֲמַר לֵיהּ הָהוּא מֵרַבָּנַן לְרָבָא: מִמַּאי דְּמַחֲטָבַת עֵצִים דִּרְשׁוּת? דִּלְמָא מֵחֲטָבַת עֵצִים דְּסוּכָּה, וּמֵחֲטָבַת עֵצִים דְּמַעֲרָכָה, וַאֲפִילּוּ הָכִי אָמַר רַחֲמָנָא לִיגְלֵי! אֲמַר לֵיהּ כֵּיוָן דְּאִם מָצָא חָטוּב אֵינוֹ חוֹטֵב, לָאו מִצְוָה, הַשְׁתָּא נָמֵי – לָאו מִצְוָה.

§ The mishna teaches: One who throws a stone, etc. Abba Shaul derives from the verse: “And as when one goes with his neighbor into the forest” (Deuteronomy 19:5): Just as the cutting of wood mentioned in the verse is optional, so too, all those liable to be exiled are in cases where the unintentional murderer was engaged in an activity that is optional. One of the Sages said to Rava: From where do you know that the derivation is from the cutting of wood for a purpose that is optional? Perhaps the derivation is from the cutting of wood for the purpose of building a sukka or from cutting wood for the arrangement of wood on the altar, both of which are obligatory, since they are mitzvot, and even so the Merciful One states: Let him be exiled. Rava said to him: Since if one found wood already cut he does not cut other wood, as in that case it is not a mitzva to cut, now, when there is no wood cut as well, although he is cutting wood to facilitate fulfillment of a mitzva, the act of cutting the wood itself is not a mitzva.

אֵיתִיבֵיהּ רָבִינָא לְרָבָא: יָצָא הָאָב הַמַּכֶּה אֶת בְּנוֹ, וְהָרַב הָרוֹדֶה אֶת תַּלְמִידוֹ, וּשְׁלִיחַ בֵּית דִּין. לֵימָא: כֵּיוָן דְּאִילּוּ גְּמִיר לָאו מִצְוָה, הַשְׁתָּא נָמֵי, לָאו מִצְוָה! הָתָם אַף עַל גַּב דִּגְמִיר מִצְוָה, דִּכְתִיב: ״יַסֵּר בִּנְךָ וִינִיחֶךָ וְיִתֵּן מַעֲדַנִּים לְנַפְשֶׁךָ״.

Ravina raised an objection to the opinion of Rava from a clause of the mishna that states that the example of the forest serves to exclude a father who strikes his son, and a teacher who oppresses his student, and an agent of the court. Let us say with regard to a father who strikes his son: Since if the son was learned, it is not a mitzva to strike him, now, in a case where the son is not learned and the father strikes him to facilitate his education too, it is not a mitzva, and therefore he should be exiled. Rava replied: There, even though the son is learned, it is a mitzva to strike him from time to time, as it is written: “Chastise your son, and he will give you rest; and he will give delight to your soul” (Proverbs 29:17).

הֲדַר אָמַר רָבָא: לָאו מִילְּתָא הִיא דַּאֲמַרִי. ״וַאֲשֶׁר יָבֹא אֶת רֵעֵהוּ בַיַּעַר״, מָה יַעַר דְּאִי בָּעֵי עָיֵיל וְאִי בָּעֵי לָא עָיֵיל, וְאִי סָלְקָא דַעְתָּךְ מִצְוָה, מִי סַגִּיא דְּלָא עָיֵיל?

Rava then said: That which I said is nothing, as there is a different proof that the verse is not referring to cutting wood in fulfillment of a mitzva. It is written: “And as when one [ ve’asher ] goes with his neighbor into the forest.” Based on the term asher , which indicates that the entering into the forest may or may not occur, what is the nature of the forest mentioned in the verse? It is a place where if one wants to, he enters the forest, and if one wants to, he does not enter. And if it enters your mind that the verse is referring to one who cuts wood to fulfill a mitzva, would it suffice if he did not enter the forest? He must enter the forest to fulfill the mitzva.

אֲמַר לֵיהּ רַב אַדָּא בַּר אַהֲבָה לְרָבָא: כֹּל הֵיכָא דִּכְתִיב ״אֲשֶׁר״, דְּאִי בָּעֵי הוּא? אֶלָּא מֵעַתָּה ״וְאִישׁ אֲשֶׁר יִטְמָא וְלֹא יִתְחַטָּא״ – אִי בָּעֵי מִיטַּמֵּא אִי בָּעֵי לָא מִיטַּמֵּא. מֵת מִצְוָה, דְּלָא סַגִּי דְּלָא מִיטַּמֵּא, הָכִי נָמֵי דְּפָטוּר?

Rav Adda bar Ahava said to Rava: Is it so that wherever the term asher is written in the Torah it is a case where if he wants to he does so, and it is not referring to a mitzva or an obligation? If that is so, that which is written: “And a man who [ asher ] becomes impure and does not purify himself, and that soul shall be excised…as he has impurified the Sanctuary of God” (Numbers 19:20), can be referring only to a case where if he wants to he becomes impure, and if he wants to, he does not become impure. But in the case of a corpse with no one to bury it [ met mitzva ], where it would not suffice for him not to become impure in the process of burying it, would you say: So too, he is exempt from the punishment of karet if he enters the Temple in a state of impurity?

שָׁאנֵי הָתָם, דְּאָמַר קְרָא:

Rava replied: There it is different, as the verse states with regard to one impure with impurity imparted by a corpse: