Bava Kamma 32b (לב:) — the Talmud in English

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Rav Shimi of Nehardea said:

Indeed, if the court officer intentionally added one strap and the condemned man died, he is liable, and the Mishna exempted him when

he erred in the count,

as he was unwitting in that matter.

A handbreadth,

Rava kicked

him with his sandal—

Rav Shimi’s—

and

said to him: Is it so

that you think that

he,

the court officer, counts the lashes, and if he errs in the count and kills him, he is liable to exile?

But was it not taught in a beraita: The greatest of the judges reads

“If you do not observe to perform. And the Lord will make your plagues extraordinary”?

And the second counts

the number of lashes appropriate for him,

and the third says: Strike him!

It is thus clear that the court officer who administers the lashes cannot err in counting them, since the judge tells him when to strike and when to stop. Therefore, when the Mishna says, “He added one strap for him,” it is speaking of a case in which he added it on his own. But why should he be liable to exile? He is unwitting, though close to being intentional.

Rather, Rav Shimi of Nehardea said:

Actually, if he added one strap on his own and the condemned man died, he does not go into exile, because he is unwitting, though close to being intentional. And the Mishna is speaking of a case in which

the judge himself erred—

the judge who told him, “Strike,” added one strap beyond the number to which they had assessed that the condemned man could be subjected, and in such a case the court officer goes into exile. The Gemara raises another difficulty against Rava, who exempts one who is unwitting though close to being intentional from exile.

The objection was raised: One who throws a stone

from his domain

into the public domain and kills

a person who was walking in the public domain

must go into exile.

But here,

the throwing of the stone into the public domain

is a case of one who is unwitting, though close to being intentional,

since

he should have taken into consideration

the possibility

for he should have realized

that people are commonly present in the public domain,

and they could be harmed by him;

and

even so

it teaches: He must go into exile.

This proves that even one who is unwitting, though close to being intentional, achieves atonement through exile, and it is not in accordance with Rava.

The Gemara answers:

Rav Shmuel bar Yitzḥak said:

Actually, one who unwittingly kills a person while being close to intentional does not go into exile, in accordance with Rava. And the Mishna’s statement that one who throws a stone goes into exile is not referring to one who actually threw a stone into the public domain. Rather, it is referring to

one who demolishes his wall,

and, while he was occupied with demolishing the wall, a stone was thrown into the public domain without his intention, struck a person, and killed him,

as he was unwitting with regard to the killing.

The Gemara objects: Even one who demolishes his wall adjacent to the public domain is close to being intentional, since

he should have inspected

and taken care

not to allow a stone to be thrown from the wall into the public domain!

The Gemara answers: The tanna is speaking of

one who demolishes

his wall

at night,

when many people are not present and he is not required to take such great care. Therefore, if he kills someone, he is unwitting and goes into exile.

The Gemara again objects:

Even at night he should have inspected first,

as perhaps there were people in the street; since he did not take proper care, he is unwitting, though close to being intentional.

Rather, the Gemara answers: The case is not one who demolishes his wall adjacent to the public domain. Rather, it is

one who demolishes

his wall during the day, into a refuse heap,

a place where people relieve themselves.

The Gemara inquires:

This refuse heap

that you mentioned,

what are its circumstances?

Where was the refuse heap located?

If

it was a refuse heap

where

people were commonly

present

to relieve themselves, then the one who demolished his wall for that purpose

is intentional,

like one who throws a stone into the public domain, and he cannot be made liable to exile.

And if many people were not commonly present,

and even individuals were not ordinarily there, then he should not be liable to exile for another reason, since

he is an unavoidable victim of circumstances,

and one who kills a person under such circumstances is exempt from exile.

Rather,

Rav Pappa said: [

It is necessary only]

in order to establish the beraita as a case of circumstances that are neither close to being unavoidable nor close to being intentional, it must be understood as referring to

a refuse heap

of such a kind

that is designated for relieving oneself

people relieve themselves there

at night, but is not designated

people do not ordinarily

relieve themselves there during the day

because of modesty

, and

occasionally

someone happens to come and sit there

to relieve himself during the day, and it happened that he demolished his wall during the day while a person was there.

In this case,

he is not intentional, for the place is not designated for relieving oneself during the day,

and it is not common for a person to pass there when the wall is being demolished.

Nor is he an unavoidable victim of circumstances, since someone occasionally comes and sits there;

one cannot call a person an unavoidable victim of circumstances when he demolishes his wall into a place where people are sometimes present.

One who kills in circumstances that are neither unavoidable nor intentional is called unwitting.

Rav Pappa, in the name of Rava, taught it

the statement of Rabbi Yosei bar Ḥanina

with regard to the first clause

of the beraita.

And this is what it is saying:

One who enters a carpenter’s shop without permission, and a piece of wood flies out and strikes him in the face and he dies, is exempt.

And concerning this

Rabbi Yosei bar Ḥanina said:

Although he entered without permission, if he was struck by the piece of wood, the carpenter

is liable for the four types of indemnity, and

when the tanna said “exempt,” he meant that he is

exempt from exile.

The Gemara explains:

The Gemara explains:

The one who taught it

the statement of Rabbi Yosei bar Ḥanina

with regard to the latter clause

which states, “One who enters with permission is liable,” said that Rabbi Yosei exempts him from exile. [And when it says “liable,” it means liable for the four types of indemnity.]

All the more so

does he hold that Rabbi Yosei would say this also

with regard to the first clause,

which states that if he entered without permission he is exempt—that he is exempt from exile.

And

if

the one who teaches it,

is Rav Pappa, who transmitted the statement of Rabbi Yosei,

with regard to the first clause,

in which it is stated that one who entered without permission is exempt, and Rabbi Yosei said that he is exempt from exile, then specifically in this case the carpenter is exempt from exile,

but with regard to the latter clause,

in which it is stated that one who entered with permission is liable,

since he entered with permission,

the carpenter

is liable to exile.

And the Gemara raises an objection:

But is he liable to exile?

Is it applicable to say that the carpenter is liable to exile for having unintentionally killed one who entered with permission?

But it was taught in a beraita:

A person

who entered a blacksmith’s shop, and sparks flew

by the agency of the blacksmith

and struck him in the face

of the person who entered the shop

, and he died,

the blacksmith

is exempt

from exile

. And even

if he

entered with permission,

he is exempt.

This proves that one who unintentionally kills is exempt from exile even when the person who entered had requested permission to enter, and this is contrary to Rabbi Yosei according to Rav Pappa.

The Gemara rejects this: In fact, if he killed one who entered with permission, he is liable to exile; and the reason it was stated with regard to the blacksmith that he is exempt is

that here we are dealing with a blacksmith’s apprentice,

the student of that blacksmith.

The Gemara wonders: Is it so that

a blacksmith’s apprentice is destined to be killed,

that his blood is considered permitted, such that the blacksmith is exempt for killing him?

The Gemara explains: The apprentice may come to be killed

when his master repeatedly urges

him,

to leave

his shop,

and he does not leave,

and his master kills him.

And

the Gemara again wonders: Is it so that

because his master repeatedly urges him to leave,

and he does not heed his words,

he is destined to be killed?

The Gemara answers: Since the blacksmith repeatedly urged his apprentice to leave,

thinking

that he had already

left,

he is therefore compelled and exempt from exile.

The Gemara raises an objection:

If so,

if the reasoning that one who repeatedly urges his apprentice to leave is considered compelled is indeed correct, why did the Gemara state that the beraita is dealing with a blacksmith’s apprentice? The same applies to any

other

person who requested permission and entered, and was subsequently asked by the homeowner to leave but did not leave, and a piece of wood or sparks struck him;

also

the owner should be exempt because he thought that he had already left.