Makkot

Did not R. Isaac b. Joseph report R. Johanan to have said that Rabbi, R. Judah b. Ro'ez, the School of Shammai, R. Simeon and R. Akiba all maintained that the Mikra is determinant [in exposition]?1 — [Just so;] but that is why he also enforces his contention with his [additional argument], ‘Moreover...’ R. Papa observed that if one flung a clod at a palm, thereby knocking off some palm-fruit, which in falling killed somebody,2 then we have an instance which will aptly illustrate the controversy between Rabbi and the Rabbis.3 [What is the point of this observation?] Is it not obvious? — [Not quite so obvious, as] you might argue that the falling fruit that killed was [according to Rabbi] but a secondary force4 [entailing no banishment]; therefore R. Papa's statement makes it clear that it is not so [according to Rabbi]. But, what would be a secondary force according to Rabbi's interpretation? — For instance, if he flung a clod and struck a stem which precipitated a cluster of fruit, and the fruit then dropped and killed somebody. MISHNAH. IF A MAN THREW A STONE INTO THE PUBLIC DOMAIN AND KILLED A PERSON, HE GOES INTO BANISHMENT; R. ELIEZER B. JACOB SAYS THAT IF AFTER THE STONE HAD LEFT HIS HAND ANOTHER PERSON PUT OUT HIS HEAD AND CAUGHT IT,5 THE THROWER IS EXEMPT [FROM BANISHMENT]. IF A MAN THREW A STONE INTO HIS [OWN] COURT AND KILLED A PERSON, THEN, IF THE VICTIM HAD A RIGHT OF ENTRY THERE, THE THROWER GOES INTO BANISHMENT,6 AND IF NOT, HE DOES NOT GO INTO BANISHMENT, BECAUSE IT IS WRITTEN: AS WHEN A MAN GOETH INTO THE WOOD WITH HIS NEIGHBOUR TO HEW WOOD . . .7 WHAT IS [THE NATURE OF] THE WOOD [REFERRED TO]? IT IS A DOMAIN ACCESSIBLE TO THE VICTIM AS TO THE SLAYER;8 EVEN THE SAME [LAW] OBTAINS IN EVERY DOMAIN WHICH IS [EQUALLY] ACCESSIBLE TO THE VICTIM AND TO THE SLAYER; OUTSIDE [THIS LAW] IS THE COURT OF THE HOUSEHOLDER WHERE THE VICTIM HAS NO RIGHT OF ENTRY. ABBA SAUL SAYS: WHAT IS [THE NATURE OF] THIS HEWING OF WOOD [REFERRED TO]? IT IS AN OPTIONAL ACT; [EVEN THE SAME OBTAINS IN ALL VOLUNTARY ACTS];9 OUTSIDE [THIS LAW] IS THE FATHER BEATING HIS SON, OR THE MASTER STRIKING HIS PUPIL, OR THE COMMISSIONER OF THE COURT10 [ADMINISTERING THE LASH]. GEMARA . . . A STONE INTO THE PUBLIC DOMAIN — he is a deliberate offender?11 — Said R. Samuel b. Isaac: It happened while he was demolishing a [defective] wall.12 Even then, he should be circumspect? — He was demolishing it at night. At night, too, ought he not to be circumspect? — He was clearing the debris on to a rubbish-heap. On to a rubbish-heap! Under what circumstances? If the public pass there often, he is guilty of negligence; and if the public do not pass there often, he is the victim of mischance!13 — Said R. Papa: No! We must explain the Mishnah by an instance where the debris is thrown on to a rubbish-heap to which people resort for convenience at night-time, but not during the day; yet occasionally, someone comes and squats there. In such a case, the thrower is not guilty of negligence, because the place is not resorted to for convenience during daytime; nor is he [merely] a victim of mischance, because, occasionally, someone comes and squats there.14 R. ELIEZER B. JACOB SAYS THAT IF AFTER THE STONE HAD LEFT HIS HAND etc. Our Rabbis taught: The text, and if he [or it] found15 [his neighbour. . . he shall flee], precludes a case where the victim put himself in the way. On this text it was that R. Eliezer b. Jacob based his statement: IF AFTER THE STONE HAD LEFT HIS HAND ANOTHER PERSON PUT OUT HIS HEAD AND CAUGHT IT, THE THROWER IS EXEMPT [FROM BANISHMENT]. Is that to say that u-maza means, finding something there already ab initio?16 If so, contrast therewith that other exposition of the same form of the word in the text. [It is taught:] and he found [sufficiency to redeem it],17 which excludes other means [that were] available heretofore, that is, that he is not allowed to sell a remote property to redeem therewith one more proximate, or to sell an inferior property to redeem a fair property? — Said Raba: The expressions must each be taken in its context. There, the expression, ‘and he found sufficiency [to redeem it]’ must be taken with its context, ‘and his own hand attained [and found sufficiency to redeem it]’. Now, what is the meaning of [the phrase] ‘and his own hand attained’? [It means], what he has attained but now,’ so must [its concomitant], ‘and found [sufficiency]’ be taken in the same sense- ‘but now.’ Here, too, the expression must be taken in its proper context: ‘and if he [or it] found’ must be understood in the same sense as its concomitant, ‘the wood’; what is the case of ‘the wood’? — it was there ab initio,’ so must we take ‘and if he [or it] found’ to imply that he found his victim who was there ab initio [and not suddenly coming forward later]. ABBA SAUL SAYS, WHAT IS THE NATURE OF THIS HEWING OF WOOD etc.?18 One of the [senior] scholars said to Raba: What ground is there for Abba Saul's assumption that the hewing of wood referred to was [essentially] an optional task; it might as well be a hewing of wood [as a religious act] for building a Sukkah,19 or cutting faggots for the altar,20 and accordingly, one might infer that the Divine Law ordained that the slayer shall nevertheless go into banishment? — Said Raba to him: Supposing he found some hewn wood [he would not have to hew any] and hewing would not then be any part of the prescribed command; nor can it, for the same reason, even in the first instance, be taken as part of the prescribed command.21 Rabina, thereupon, referred him back [to the Mishnah], OUTSIDE [THIS LAW] IS THE FATHER BEATING HIS SON, OR THE MASTER STRIKING HIS PUPIL OR THE COMMISSIONER OF THE COURT ADMINISTERING THE LASH. Here, also [he argued], where the son [or pupil] is already learned, it is no longer obligatory [on the father or master] to [teach and] strike? It should therefore not be considered even in the first instance part of a prescribed command?22 — Although the son is already taught [replied Raba], it is still obligatory on the father to chasten, because it is written, Correct thy son and he will give thee rest, yea he will give delight to thy soul.23 Reconsidering it, however, Raba said: What I told you was not a correct reply; because, re-examining the text, when24 ‘a man goeth into the wood with his neighbour,’I say its import is [clearly] that of an optional act; that is, if he wishes to go there he goes, and if he does not wish, he does not go there. Now, therefore, if [as you suggested] the context ‘to hew wood’ is to be applicable [also] to an obligatory act of hewing, could he sufficiently meet his obligation without going into the forest? R. Adda b. Ahaba then asked of Raba: Does then the [conditional] particle asher-when-always imply an optional action? If so, considering the text, but when25 a man be unclean and shall not purify himself26 [that soul shall be cut off from among Israel]27 — will you likewise explain it as referring only to [a case] where if he wishes he defiles himself [by touching a corpse], and if he does not care to defile himself, he need not; but in the case of an obligatory corpse28 where the finder could not but defile himself [but must needs give it burial], would he indeed [on entering the Temple during defilement] be exempt [from the penalty?]That is quite different [replied Raba], because there, the text distinctly emphasises legitimate deduction, or otherwise, from the possibility of an alternative vocalization of a word, e.g. ohgca fortnight, as ohgca seventy (days); ,bre horns of, as ,bre horn of;vtrh shall be seen (appear) as vtrh shall see, etc. dates, areca, sago and cocoa-nut. The fruits usually cluster closely together, and when precipitated from a great height can easily kill a person. takes the clod as the axe, and the falling fruit as the flying chip which kills, entailing banishment. protection by exile. Scripture. banishment, and the ruling of the Mishnah as it stands is surprising. iron slipping) caught his neighbour. (it) shall have found’. before the next Jubilee, by paying a price proportionate to the number of years the stranger might have enjoyed it up to the Jubilee, when the property would automatically revert to the owner. This anticipatory redemption could not be enforced by using moneys that were available at the time of sale, or borrowed money, or by part-redemption, or the proceeds of the sale of inferior or remote-lying property. Such means would show that the vendor did not sell out of poverty, and the purchaser's rights must not be disturbed. V. Commentaries on Mish. ‘Ar. IX, 2; Talm. ‘Ar. 30b. hewing, as the wood might be purchased ready cut. Acting in the discharge of a religious obligation (mizwah) is considered, in case of a resulting accident, an extenuating circumstance: the desire to do a religious act counterbalances the element of slight negligence. Cf. B.K. 30a; 32a. himself, to attend to the burial, unless another was there to act for him.