Arakhin 7aערכין ז׳ א
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7aז׳ א

מכלל דתנא קמא סבר ניתן לחזרת עמידת ב"ד

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.

א"ר יוסף במלוה על פה גובה מן היורשין קמיפלגי תנא קמא סבר מלוה על פה גובה מן היורשין ור"ש בן אלעזר סבר אינו גובה מן היורשין

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.

רבה אמר דכ"ע מלוה על פה אינו גובה מן היורשין והכא במלוה הכתובה בתורה ככתובה בשטר קמיפלגי תנא קמא סבר ככתובה בשטר דמיא ור' שמעון בן אלעזר סבר לאו ככתובה בשטר דמיא

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.

מיתיבי החופר בור ברשות הרבים ונפל עליו שור והרגו פטור ולא עוד אלא שאם מת השור יורשי בעל הבור חייבין לשלם דמי שור לבעליו

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.

א"ר אילא אמר רב כשעמד בדין והא הרגו קתני אמר רב אדא בר אהבה כשעשאו טריפה

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.

והאמר רב נחמן תני חגא מת וקברו והילכתא דייתבי דייני אפומא דבירא

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.

תנו רבנן היוצא ליהרג מזין עליו מדם חטאתו ומדם אשמו חטא באותה שעה אין נזקקין לו מאי טעמא א"ר יוסף מפני שאין מענין את דינו

§ 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.

א"ל אביי אי הכי אפילו רישא נמי כגון שהיה זבחו זבוח באותה שעה

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.

אבל אין זבחו זבוח מאי לא אדתני חטא באותה שעה אין נזקקין לו ליפלוג וליתני בדידה בד"א בשהיה זבח זבוח באותה שעה אבל אין זבח זבוח לא

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.

ה"נ קאמר בד"א שהיה זבח זבוח באותה שעה אבל אין זבח זבוח נעשה כמי שחטא באותה שעה ואין נזקקין לו:

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.

מתני׳ האשה שיצאה ליהרג אין ממתינין לה עד שתלד האשה שישבה על המשבר ממתינין לה עד שתלד האשה שנהרגה נהנין בשערה בהמה שנהרגה אסורה בהנאה:

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.

גמ׳ פשיטא גופה היא איצטריך ס"ד אמינא הואיל וכתיב (שמות כא, כב) כאשר ישית עליו בעל האשה ממונא דבעל הוא ולא ליפסדיה מיניה קמ"ל

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.

ואימא ה"נ אמר רבי אבהו אמר רבי יוחנן אמר קרא (דברים כב, כב) ומתו גם שניהם לרבות את הוולד

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.

והאי מיבעי ליה עד שיהו שניהן שוין דברי רבי יאשיה כי קאמרת מגם:

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.”

ישבה על המשבר וכו': מ"ט כיון דעקר גופא אחרינא הוא:

§ 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.

אמר רב יהודה אמר שמואל האשה היוצאה ליהרג מכין אותה כנגד בית הריון כדי שימות הוולד תחילה כדי שלא תבא לידי ניוול למימרא דהיא קדמה ומתה ברישא והא קיימא לן דוולד מיית ברישא

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.

דתנן תינוק בן יומו נוחל ומנחיל ואמר רב ששת נוחל בנכסי האם להנחיל לאחין מן האב

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.

דווקא בן יום אחד אבל עובר לא דהוא מיית ברישא ואין הבן יורש את אמו בקבר להנחיל לאחין מן האב

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.

הני מילי לגבי מיתה איידי דוולד זוטרא חיותיה עיילא טיפה דמלאך המות ומחתך להו לסימנין אבל נהרגה היא מתה ברישא

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.

והא הוה עובדא ופרכיס עד תלת פרכוסי מידי דהוי אזנב הלטאה דמפרכסת

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.

א"ר נחמן אמר שמואל האשה שישבה על המשבר ומתה בשבת מביאין סכין ומקרעים את כריסה ומוציאין את הוולד פשיטא מאי עביד

§ 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?