Makkot 7b (ז:) — the Talmud in English

Or if

he was ascending a ladder, and he fell upon him and killed him—

he does not go into exile.

This is the general rule:

Anyone who, while descending,

kills unintentionally,

goes into exile.

And

anyone who kills

not in the manner of his descent

does not go into exile.

And the wording of Maimonides [there] is: The way of “ascent” is not something close to occurring most of the time; rather, it is like a wonder, and he is like one who acted under compulsion.

The Gemara derives this law from the wording of the verse.

Gemara:

We raise a discussion concerning it:

From where are these matters

—that one who kills unintentionally goes into exile only if he killed by way of descent [falling], whereas if he killed by way of ascent he is exempt from exile?

And we answer:

Shmuel said: The verse states [Numbers 35] “

and it falls upon him, and he dies”—

the verse teaches that he does not go into exile

until it falls

upon him by

way of falling.

The Sages taught: “

Unintentionally”—

excluding one who acts intentionally,

who does not go into exile, since exile does not atone for intentional murder. “

Without knowledge”—

excluding one who intended.

We raise a discussion concerning it: Why did we need to exclude

one who acts intentionally

from the phrase “unintentionally”?

But

it is obvious

that one who acts intentionally does not go into exile, since

he is liable for execution,

as the court is required to put him to death!

And we explain:

Rabba said: Say that “unintentionally” comes to exclude

“

excluding one who” “

believes it is permitted.”

This is the meaning of the exclusion: Specifically, if he killed unintentionally, he goes into exile. But if he intended to kill him, yet thought it was permitted to kill him, he does not go into exile, since he is like one who acted intentionally.

Abaye said

to Rabba:

If

your words are correct—that the beraita intends to exclude from exile one who believes it is permitted—how do we understand the teaching “unintentionally, excluding one who acts intentionally”? Is not “

one who believes it is permitted”

under compulsion!

His exemption is not because he is close to an intentional killer.

He said to him

Rabba said to Abaye: I explain the exclusion in the beraita as follows, according to my position:

for I say: The “

one who believes it is permitted”

is close to an intentional killer!

For he should have studied and learned that this matter is prohibited, but he did not learn.

For he performed the act intentionally, and his inadvertence consists only of not knowing that his act was prohibited. This is not considered complete inadvertence, since had he studied, he would have known that the matter was prohibited; therefore, even when he errs, he is considered like one who acted intentionally.

The Gemara now discusses the second exclusion in the beraita: “

Without knowledge”—

excluding one who intended.

We raise a discussion concerning it:

One who intended—

but

is it not obvious

that he does not go into exile, since

he is liable for execution,

and why did the verse need to exclude him from exile?

Rabba said:

The intention of the beraita is that the verse comes to exclude:

excluding one who intended to kill an animal

but killed a person.

Or he intended to kill

a gentile, but killed an Israelite.

Or he intended

to

kill

a stillborn,

for whose killing one is not liable,

but killed a viable person.

F

or although he intended to kill someone, he is exempt for killing him; since he intended to perform an act of killing, he does not go into exile, because he is not

d

comparable to one who acted in complete inadvertence and goes into exile, as one who acted in complete inadvertence did not intend to kill.

The Sages taught:

This is how the passage concerning one who kills unintentionally is to be expounded: The Torah said [Numbers 35:22]: “And if suddenly, without enmity, he pushed him; or he cast upon him any object, without lying in wait.”

“If suddenly”—

the verse comes to exclude:

excluding

a case in which the killer emerged from an alley and turned to exit

around a corner,

at the corner of the street, with his knife in his hand, while the victim was walking toward him in the public domain.

If the victim was killed by the impact of the knife in his hand, he does not go into exile for killing him.

Since the victim, who was walking in the street, could see the killer emerging from the alley, and realized that the killer emerging around the corner could not see him, while he himself could protect himself from the knife, the killer is considered close to acting under compulsion.

“Without enmity”—

the verse comes to exclude:

excluding an enemy

who does not go into exile, since he is presumed to have acted intentionally [see the explanation of this below, 9b].

“He pushed him”—

that he pushed him with his body

without intention, and for this he goes into exile.

“Or he cast upon him”—

the verse comes

to include

that one is liable even for

a descent undertaken for the purpose of ascent.

For example, he bent his body in order to raise his hand with force, and through lowering his body or hand he unintentionally killed a person. The verse teaches the novel point that he is liable to exile even though the act of descent was for the purpose of ascent, in order to raise his hand with force; nevertheless, since he killed by way of descent, he is liable to exile.

“Without lying in wait”—

excluding one who intended to throw a stone

in this direction, but it went in another direction and killed a person there. In such a case he is exempt from exile, because he is close to acting under compulsion.

And this is the meaning of the verse: only when the killer did not direct his throw toward a different side from the place at which he threw does he go into exile; but when he directed his throw toward the side opposite him, and the stone went to the opposite side, he does not go into exile.

The Torah further states in the portion of Mishpatim

Exodus 21:13

“But as for one who did not lie in wait”—

if the killer knew that the slain person was there, but intended to throw near him and not at him, and accidentally struck and killed him, he does not go into exile.

He is liable for exile only when he does not know that the slain person is present there, and intends to throw toward that place.

And the verse came to exclude:

except one who intended to throw

a stone a distance of

two

cubits,

but threw it four

cubits.

Since he directed his throw two cubits to his side, but the stone traveled four cubits, he is close to being an accident victim, having killed in a place he did not intend.

It is further stated in the portion of Shoftim

Deuteronomy 19:5, “And one who enters the forest with his fellow

to cut wood, and his hand swings the axe to cut the tree, and the axe-head slips from the wood and strikes his fellow, and he dies—he shall flee.” The verse came to teach:

Just as a forest

is a place into which there is

permission for both the injured party and the one causing the injury to enter, so too every

place in which one becomes liable to exile is when he killed him in a place into which there is

permission for both the injured party and the one causing the injury to enter.

This excludes a homeowner who kills accidentally in his own courtyard. If the murdered person entered it and the homeowner accidentally killed him, he does not go into exile.

Rabbi Abbahu asked Rabbi Yoḥanan: If one was climbing a ladder, and

the rung

beneath him slipped, fell, and killed

someone—what is the law?

The sides of the uncertainty are:

Is

in such a case

the manner

one of ascent,

since he was climbing a ladder, and we follow the act of the person who killed, in which case he is exempt from exile?

Or

perhaps it is the manner

of descent,

and he is liable to exile?

Perhaps we do not follow the person’s ascent or descent, but rather the manner in which the killing occurred. Since it occurred through the rung, which was pushed by the person climbing upon it and fell downward, the killing occurred in the “manner of descent.”

He said to him,

Rabbi Yoḥanan:

You have already touched upon

this uncertainty through what was already included above: that one is liable to exile even for a killing that occurred

during a descent that serves an ascent.

For the pushing of the rung occurred for the purpose of climbing the ladder.

Rabbi Abbahu raised an objection

to Rabbi Yoḥanan from our Mishna, which implies in its latter clause that in such a case of a descent serving an ascent, one is exempt.

As we learned:

This is the general principle:

1.

Anyone whose act is in the manner of descent—

goes into exile.

2.

One whose act is not in the manner of descent—

does not go into exile.

Rabbi Abbahu infers: The second principle, that anyone

whose act is not in the manner of descent

does not go into exile—

what does it come to include

?

Is it not

intended

to include such a case,

that although the act of killing occurred through the descent of the rung, since the killer was in the process of ascending, he is exempt from exile?

The Gemara rejects this: Our Mishna cannot provide proof concerning this matter, because conversely one may raise the following difficulty:

And according to your reasoning,

if the second principle came to exclude one who is ascending and whose rung slipped beneath him, then the first principle, “

Anyone whose act is in the manner of descent

goes into exile,”

what does it come to include?

What is it stating?

Rather,

it must be coming

to include a butcher,

as will be explained shortly.

If so, you can say that

here too,

the principle that one whose act is not in the manner of descent

comes to include a butcher.

It does not come to exempt one whose descent serves an ascent, for from the laws of the butcher explained below it will emerge that the principle “not in the manner of descent” comes to exempt even ascent serving descent, whereas “anyone whose act is in the manner of descent” comes to impose liability even for descent serving ascent.

The Gemara explains the law of the “butcher”:

As it was taught,

for this is what we learned:

A butcher who was chopping,

cutting the animal’s flesh and breaking its bones: In order to cut the animal’s flesh forcefully with the butcher’s cleaver, he must raise it from in front of him and draw it backward, until the cleaver first descends behind his back; then he raises it from behind and brings it down in front of him. With this force he cuts the flesh.

But in order first to raise it from in front of him to behind him, he must first lower it in front of him, and then raise it forcefully backward; from behind him he again raises it forcefully from in front of him and brings it down upon the flesh in front of him.

If, during his work, the blade slipped and accidentally killed someone—

four beraitot of tanna’im were stated concerning the matter: 1.

a.

One beraita teaches:

If he killed while the cleaver was

in front of him, he is liable.

But if he killed while the cleaver was

behind him, he is exempt. 2.

b.

And another beraita teaches: If it was behind him, he is liable; if it was in front of him, he is exempt. 3.

c.

And another beraita teaches: Whether it was in front of him or behind him, he is liable. 4.

d.

And another beraita teaches: Whether it was in front of him or behind him, he is exempt.

There is no difficulty—

The Gemara explains that there is no contradiction among the four laws taught by the four tanna’im. Rather, every act of descent creates liability, and every act of ascent creates exemption.

The matter depends, however, on the place at which the blade slipped from the cleaver. 1.

a.

Here,

the first beraita, which teaches that when it is in front of him he is liable and when it is behind him he is exempt, is speaking

of a descent in front of him and an ascent behind him.

If he lowered the cleaver in front of him in order to raise it forcefully, and raised it forcefully backward, the beraita distinguishes as follows: If he killed while lowering it in front of him, he is liable, since he killed in the manner of descent.

But if he killed during its forceful ascent [in order to draw it backward], he is exempt. 2.

b.

Here,

the second beraita, which teaches that when it is behind him he is liable and when it is in front of him he is exempt, is speaking

of an ascent in front of him and a descent behind him.

If he killed when he lowered the cleaver behind him, he is liable to exile, since that is an act of descent. But once he reached the stage at which he again raises the cleaver in order to bring it back in front of him, if he then accidentally killed, he is exempt, because he killed in the manner of ascent. 3.

c.

Here,

the third beraita, which teaches that whether it is in front of him or behind him he is liable, is speaking

of a descent in front of him and behind him,

and he is liable for both. 4.

d.

Here,

the fourth beraita, which teaches that whether it is in front of him or behind him he is exempt, is speaking

of an ascent in front of him and behind him.

The Gemara now returns to Rabbi Abbahu’s question: What is the law when a person is climbing a ladder, the rung slips from beneath him, falls downward, and kills a person? Is this considered an act of ascent or an act of descent?

Let us say that this is subject to a dispute between tanna’im:

Can we say that the law in this question is stated as a dispute between tanna’im?

As it was taught:

If one was climbing a ladder and a rung slipped from beneath him—

One beraita teaches: He is liable.

And another beraita teaches:

He is exempt.

What, is it not

the case that

they disagree about this,

the two tanna’im in the two beraitot:

One master,

the tanna who imposes liability,

holds

that it is the manner

of descent,

and therefore he is liable.

And the other master,

the tanna who exempts,

holds

that it is the manner

of ascent,

and therefore he is exempt.

It is thus proven that tanna’im disputed both sides of Rabbi Abbahu’s uncertainty.

And we reject this:

No,

in the case where the rung fell and killed someone—the case about which Rabbi Abbahu was uncertain—everyone agrees that he is certainly exempt from exile, since

everyone

holds that it is the manner

of ascent.

There is no difficulty

with the tanna in the beraita who imposes liability for exile, because that beraita is not discussing the law of exile.

Rather,

here,

the tanna who imposes liability is speaking

concerning

the laws of

damages,

for one is liable for them whether he caused the damage inadvertently or intentionally. In the obligation for damages, there is no distinction between the manner of descent and the manner of ascent.

Whereas

here,

the tanna who exempts is speaking

concerning the obligation of

exile

for

one who accidentally killed a person, since with regard to liability for exile there is a distinction between the manner of ascent and the manner of descent.

Alternatively,

one may say that both beraitot are indeed discussing exile, in the case of a ladder rung that fell and killed someone.

And

both this and that—

the two beraitot are discussing

the law of

exile.

There is no difficulty

as to how the tanna can impose liability when he killed while ascending, which is an act of ascent—

because the beraitot discuss two different circumstances:

This

beraita, the one that imposes liability, is speaking of a case

where it was worm-eaten,

and consequently it bends when one steps on it; this is therefore an act of descent.

Whereas

this

beraita, the one that exempts, is speaking of a case

where it was not worm-eaten.

Since the killer was ascending, this is an act of ascent, and he does not go into exile.

Alternatively,

it may be said that

both this and that

beraitot are speaking of a case

where it was not worm-eaten.

There is no difficulty

as to why he goes into exile—for this is an act of ascent—because the beraitot discuss two different circumstances:

This,

the one that exempts, is speaking of a rung that

was firmly secured

in the socket, and there was no descent.

Whereas

this,

the one that imposes liability, is speaking of a rung that

was not firmly secured,

and therefore involved descent, and he goes into exile.

Mishna:

The Torah states in the portion of Shoftim: “And one who enters the forest with his fellow to cut wood, and his hand swings the axe to cut the tree, and the axe-head slips from the wood and strikes his fellow, and he dies—he shall flee.” The Sages and Rabbi disputed the interpretation of the case for which the Torah made one liable to exile, as will be explained in our Mishna:

If

the axe-head slipped from its handle,

and fell,

and killed

a person —

Rabbi says: He does not go into exile,

because the Torah did not speak of such a case, but of another case, as follows.

And the Sages say: He goes into exile.

This is the case concerning which it is stated: “And the axe-head slips from the wood.”

But if a splinter flew

from the splitting wood,

and the splinter, which flew a great distance, killed a person—

Rabbi says: He goes into exile,

for the verse speaks of a case such as this.

And the Sages say: He does not go into exile,

since this is considered the force of his force, and not his direct force, and the Torah did not obligate exile in such a case.

Gemara:

Rabbi said to the Sages:

How do you interpret the wording of the verse specifically as referring to the iron blade flying off its handle?

And was it stated

“and the iron flew off from its wood,”

which would mean that the iron fell off its wooden handle?

But was it stated only

“and the iron flew off”

“from the wood.”

This proves my position: The iron caused a splinter to fly off the wood, and it was the splinter of wood that flew off that killed the victim; and for this the Torah obligated him to go into exile!

Furthermore,

Rabbi brought proof for his statement:

The word “wood” is stated below,

“and the iron flew off from the wood,”

and the word “wood” is stated above,

“and his hand swung back with the ax to cut the wood”; and the two instances are derived from one another:

Just as with regard to the wood stated above,

“to cut the wood,” its meaning is that the accidental killer came to cut

from the wood being split,

so too, with regard to the wood stated below,

“and the iron flew off from the wood,” its explanation is that the iron caused a splinter to fly

from the wood being split,

and it was the splinter of wood that flew from the wood being split that killed the victim, and not the iron; and for this, the one who caused the splinter to fly from the wood goes into exile.

Rav Hiyya bar Ashi said that Rav said: And both of them,

Rabbi and the Rabbis,

expounded a single verse,

rather, they did not expound it in two different ways: It is written,

“and the iron flew off from the wood.”

Rabbi holds

that the written form is authoritative.

That is, when we come to expound the words of the verse, we must expound them according to the way their spelling was transmitted to Moses at Sinai, and not according to the way we pronounce them.

The word “venishal” can be read with a hiriq beneath the letter nun, in which case we read it as “venishal habarzel,” and it can also be read with a kamatz beneath the letter nun, in which case we read “venashal habarzel.”

When we read “venashal habarzel,” if we do not take into consideration the manner of pronunciation that was transmitted to us, but only the tradition of the word as it is written, we should read it as though it were vocalized with a hiriq and not with a kamatz. For in order to read it with a kamatz, it is necessary to add a syllable that is not written in it, as though it were written “venaashal.”

But if we read the word according to its written form, it is as though

“venishal”

with a hiriq

is the written form.

For when we read “venishal,” there is no need to add a syllable that is not written.

The meaning of “venishal” is that the iron caused something to fly off the wood and propelled it at the victim.

And the Rabbis hold that even in expounding the verse

the pronunciation is authoritative,

and the written word is expounded according to the meaning of the word as it is pronounced; and here

and we expound the word according to its meaning when read. Here,

we read “venashal,”

and its meaning is that the iron flew off its wood. And we raise an objection:

But

does

Rabbi hold that the written form is authoritative?