Sanhedrin 78b:3-7סנהדרין ע״ח ב:ג׳-ז׳
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78bע״ח ב

על משענתו ונקה המכה וכי תעלה על דעתך שזה מהלך בשוק וזה נהרג אלא זה שאמדוהו למיתה והקל ממה שהיה ולאחר כך הכביד ומת שהוא פטור

upon his staff, then he that struck him is absolved; only for his loss of livelihood shall he give and he shall heal him” (Exodus 21:19). The phrase: “Then he that struck him is absolved,” is superfluous; would it enter your mind to say that this individual whom he struck is walking in the marketplace, and that individual who struck him will be executed as a murderer? Rather, this is referring to a case where the doctors assessed his condition, saying that it would lead to death, and his condition eased somewhat from what it was and he walked in the marketplace, and thereafter his condition worsened and he died, and the verse is teaching that he is exempt.

ורבנן האי ונקה המכה מאי דרשי ביה מלמד שחובשין אותו

The Gemara asks: And as for the Rabbis who disagree with Rabbi Neḥemya and hold that he is liable in that case, what do they interpret from that phrase: “Then he that struck him is absolved”? The Gemara explains that according to the Rabbis, the verse teaches that they incarcerate him until the fate of the victim can be determined, and the phrase: “Then he that struck him is absolved,” means that he is freed from incarceration.

ורבי נחמיה חבישה מנא ליה יליף ממקושש

The Gemara asks: And as for Rabbi Neḥemya, from where does he derive the halakha of incarceration? The Gemara answers: He derives it from the incident of the wood gatherer in the wilderness with regard to whom it is written: “And they placed him under guard” (Numbers 15:34).

ורבנן נמי לילפי ממקושש מקושש בר קטלא הוא ומשה לא הוה ידע קטליה במאי לאפוקי האי דלא ידעינן אי בר קטלא הוא אי לאו בר קטלא הוא

The Gemara challenges: And the Rabbis too, let them derive the halakha of incarceration from the incident of the wood gatherer. The Gemara explains: With regard to the wood gatherer, he was incarcerated because it was known from the outset that he was liable to be killed, and Moses did not know with what form of capital punishment his death would be implemented. This is to the exclusion of this individual who struck another, with regard to whom we do not know if he is liable to be killed or if he is not liable to be killed. Therefore, one cannot derive the halakha in this case from the case of the wood gatherer.

ורבי נחמיה יליף ממגדף דלא הוה ידע אי בר קטלא הוא וחבשוהו

The Gemara asks: And Rabbi Neḥemya, from where does he derive the halakha? He too should not be able to derive the halakha from the case of the wood gatherer. The Gemara answers: Rabbi Neḥemya derives the halakha with regard to one who strikes another from the incident of the blasphemer (see Leviticus 24:12), where Moses did not know if he was liable to be killed, and he nevertheless imprisoned the blasphemer.

ורבנן מגדף הוראת שעה היתה

The Gemara asks: And the Rabbis, why don’t they derive the halakha from the incident of the blasphemer? The Gemara answers: The Rabbis hold that the case of the blasphemer was a provisional edict.

כדתניא יודע היה משה רבינו שהמקושש במיתה שנאמר (שמות לא, יד) מחלליה מות יומת אלא לא היה יודע באיזו מיתה נהרג שנאמר (במדבר טו, לד) כי לא פורש וגו' אבל מגדף לא נאמר בו אלא לפרש להם על פי ה' שלא היה משה יודע אם הוא בן מיתה כל עיקר אם לאו

The difference between the uncertainty in the case of the wood gatherer and the uncertainty in the case of the blasphemer is as it is taught in a baraita: Moses our teacher knew that the wood gatherer was liable to be sentenced to death, as it is stated: “And you shall observe the Shabbat as it is sacred to you; one who desecrates it shall be put to death” (Exodus 31:14). But he did not know with which death penalty he was to be killed, as it is stated: “And they placed him under guard, as it had not been declared what should be done to him” (Numbers 15:34). But concerning the blasphemer it is stated only: “And they placed him under guard that it might be declared to them according to the Lord” (Leviticus 24:12), as Moses did not know if the blasphemer was liable to be killed at all, or not.

בשלמא לרבי נחמיה היינו דכתיבי תרי אומדני חד אמדוהו למיתה וחיה וחד אמדוהו למיתה והקל ממה שהיה אלא לרבנן תרי אומדני למה לי

The Gemara asks: Granted, according to Rabbi Neḥemya, that is the reason that two assessments are written. It is written in one verse: “And if men quarrel and one strikes the other with a stone or with his fist, and he did not die but is bedridden” (Exodus 21:18), indicating that after the initial blow the victim is assessed to determine whether or not he is expected to die. In the following verse it is written: “If he rises and walks outside upon his staff, then he that struck him is absolved” (Exodus 21:19), indicating that there is an additional assessment to determine whether or not he fully recovers. One verse is where they assessed his condition, saying that it would lead to death, and he recovered fully; and one verse is where they assessed his condition, saying that it would lead to death, and his condition eased from what it was and he died thereafter. But according to the Rabbis, why do I need two assessments?

חד אמדוהו למיתה וחיה וחד אמדוהו לחיים ומת

The Gemara answers: According to the Rabbis, one assessment is where they assessed his condition, saying that it would lead to death and he recovered fully, in which case the assailant is certainly not executed but pays compensation. And one assessment is where they assessed his condition, saying that it would lead to life and he died, in which case the assailant is also not executed but pays compensation.

ורבי נחמיה אמדוהו לחיים ומת לא צריך קרא שהרי יצא מבית דין זכאי

The Gemara asks: And Rabbi Neḥemya, from where does he derive these two halakhot? The Gemara answers: He holds that in the case where they assessed his condition, saying that it would lead to life, and he died, one does not need an explicit verse to exempt the assailant from execution, as he emerged from the court after the first hearing innocent when they predicted that the victim would live, and the court does not rescind its initial ruling and convict him.

תנו רבנן המכה את חבירו ואמדוהו למיתה וחיה פוטרין אותו אמדוהו למיתה והקל ממה שהיה אומדין אותו אומד שני לממון ואם לאחר כן הכביד ומת הלך אחר אומד האמצעי דברי רבי נחמיה וחכמים אומרים אין אומד אחר אומד

The Sages taught: In the case of one who strikes another and they assessed his condition, saying that it would lead to death, and he recovered fully, the court exempts the assailant. If they assessed his condition saying that it would lead to death and his condition eased from what it was, they assess the victim with a second assessment to determine the monetary restitution for damages. And if thereafter his medical condition worsened and he died, the halakha is: Follow the assessment that was assessed at the intermediate stage, which determined that the victim would live, and the assailant is not executed; this is the statement of Rabbi Neḥemya. And the Rabbis say: There is no assessment after assessment. The death of the victim proves that the assessment at the intermediate stage was erroneous, and the assailant is executed.

תניא אידך אמדוהו למיתה אומדין אותו לחיים לחיים אין אומדין אותו למיתה אמדוהו למיתה והקל ממה שהיה אומדין אותו אומד שני לממון ואם לאחר כן הכביד ומת משלם נזק וצער ליורשים

It is taught in another baraita: If they assessed his condition, saying that it would lead to death, and his condition improved, they assess his condition to determine whether it would lead to life. If they assessed his condition, saying that it would lead to life, and his condition deteriorated, they do not then assess his condition to determine whether it would lead to death, but the assailant is exempted based on the initial determination. If they assessed his condition, saying that it would lead to death, and his condition eased from what it was, they assess the victim with a second assessment to determine the monetary restitution for damages, as the assailant is certainly liable to pay restitution for the injury that he caused. And if thereafter his medical condition worsened and he died, the assailant pays restitution to the heirs for injury and suffering that he caused.

מאימתי משלם משעה שהכהו וסתמא כרבי נחמיה:

The Gemara asks: From when is the initial assessment of the value of the victim performed to determine the sum of the damages that the assailant pays? It is the assessment of his value from the moment that the assailant struck him. The Gemara notes: And this unattributed baraita is in accordance with the opinion of Rabbi Neḥemya, as according to the opinion of the Rabbis, he is liable to be executed even if there was a temporary improvement in his condition before he died.

מתני׳ נתכוין להרוג את הבהמה והרג את האדם לעובד כוכבים והרג את ישראל לנפלים והרג את בן קיימא פטור

MISHNA: If one intended to kill an animal, and he killed a person standing adjacent to it, or if he intended to kill a gentile, for whose murder he is not liable to be executed in court, and he killed a Jew, or if he intended to kill non-viable newborns, for whose murder one is not liable, and he killed a viable person, the assailant is exempt from execution, since his intent was to kill one for whose murder he is not liable.

נתכוין להכותו על מתניו ולא היה בה כדי להמיתו על מתניו והלכה לה על לבו והיה בה כדי להמיתו על לבו ומת פטור נתכוין להכותו על לבו

If one intended to strike another on his loins, and the blow was not powerful enough to kill him if it were to land on his loins, but instead the blow landed on his chest over the victim’s heart, and it was powerful enough to kill him when it landed on his chest over his heart, and the victim died as a result of the blow, the assailant is exempt from execution, as he did not intend to strike the victim a blow that would cause his death. If he intended to strike him on his chest over his heart