Sanhedrin 72a — the Talmud in English

Gemara:

It was taught: Rabbi Yosei the Galilean says: Is it because

this one ate a tartimar of meat and drank half a log of Italian wine that the Torah said he should go out to the court to be stoned?!

Rather, the Torah reached the ultimate understanding of the way of the stubborn and rebellious son.

For ultimately, after finishing

consuming

his father's property, and seeking his accustomed measure

of what he was accustomed to in meat and wine,

and not finding it, he goes out to the crossroads and robs people.

The Torah said: Let him die innocent, and let him not die guilty!

For the death of the wicked -

is beneficial for them and beneficial for the world. And for the righteous -

it is bad for them and bad for the world.

Sleep and wine for the wicked -

are beneficial for them and beneficial for the world; for the righteous -

they are bad for them and bad for the world.

Quiet for the wicked -

is bad for them and bad for the world, and for the righteous -

it is beneficial for them and beneficial for the world.

Scattering for the wicked -

is beneficial for them and beneficial for the world, and for the righteous -

it is bad for them and bad for the world.

Mishna:

After we learned that the stubborn and rebellious son is judged on account of his ultimate end, the Mishna comes to teach us that also one who comes through a tunnel is judged on account of his ultimate end.

It is stated in the Torah (Exodus 21:22): “When a man steals an ox or a sheep ... If the thief is found in a tunnel and he is struck and dies, there is no blood-guilt for him; if the sun has risen over him, there is blood-guilt for him.”

And Rashi explained:

“If in a tunnel”: When he was breaking into the house.

“There is no blood-guilt for him”: This is not murder; he is considered dead from the outset. Here the Torah taught you: “If one comes to kill you, rise early to kill him.” And this one comes to kill him, for he knows that a person does not restrain himself and see his property being taken in his presence and remain silent. Therefore, he comes with this intention: that if the owner of the property stands against him, he will kill him.

“If the sun has risen over him”: This is only a sort of analogy. If it is clear to you that he is at peace with you, like this sun, which is peace in the world, so it is clear to you that he does not come to kill, even if the owner of the property should stand against him—for example, a father who breaks into his son's house to steal property. It is known that a father's mercy is upon his son, and he does not come on account of matters involving life and death.

“There is blood-guilt for him”: He is considered as alive, and it is murder if the householder kills him.

One who comes through a tunnel is judged on account of his ultimate end.

The law of one who comes through a tunnel, which is a law involving capital matters, has consequences for monetary laws.

It is established for us that “those liable for death do not pay money,” because of “he is placed before the greater [penalty]”; that is, since he is punished with the more severe punishment of death, he is not punished with the lesser punishment of money. And when liability for death and liability for payment come together, he is exempt from payment.

And this principle applies even when “in practice” they do not kill him—for example, in a place where they do not kill him because he was not forewarned. Nevertheless, he is exempt from monetary payments.

And it is not only in a case where the “court” kills him that monetary payments are not extracted from him; even one who “comes through a tunnel,” whose death is not imposed upon the “court,” is likewise subject to the rule “he is placed before the greater [penalty].”

And likewise, “one who comes through a tunnel,” even though the householder did not kill him and he escaped, if he broke a barrel or the like, he is exempt from paying.

When do these words apply? When “there is no blood-guilt for him,” meaning that the householder was indeed permitted to kill him. But if “there is blood-guilt for him,” such as a father breaking into his son's house, where the son is not permitted to kill him, as explained, he is liable for payment.

And this is what the Torah wrote: “If the sun has risen over him, there is blood-guilt for him—he shall surely pay.”

If one came through a tunnel and broke a barrel -

if there is blood-guilt for him -

he is liable

for payment for the barrel; -

if there is no blood-guilt for him -

he is exempt.

Gemara:

Rava said: What is the reason for the tunnel case,

why did the Torah permit the householder to kill the thief? After all, ostensibly, he came only on account of property?

The explanation is: He does not come only on account of property. Rather,

there is a presumption

that there is a rationale here, that

a person does not restrain

himself on account of his property;

the householder who sees another person taking his property does not stand opposite him and remain silent,

and this

thief knows this. Therefore,

he says to himself

he thinks in his heart:

“If I go

when I go to steal—

he stands before me,

he will rise against me,

and he will not let me

and will not allow me to carry out the theft.

And if he stands

if he stands against me,

I will kill him.”

And every thief also prepares himself to kill—

And the Torah said:

“There is no blood-guilt for him”—

“If one comes to kill you, rise early

go ahead of him

to kill him!”

We learned in our Mishna: If one came through a tunnel and broke a barrel ... if there is no blood-guilt for him, he is exempt.

It follows that if he “broke” the barrel upon entering, he is exempt. The Gemara discusses whether, if he “took” vessels, he must return them.

Rav said: One who comes through a tunnel,

he broke into the house,

and took vessels and left—

is exempt

from returning them, even though they still exist.

What is the reason? With the blood-money

with the price of his life,

he acquired them

he acquired them and they are his; that is, since he became liable for death through taking them, he is exempt from returning them, by the rule “he is placed before the greater [penalty].”

What happened to those vessels that he took? Are they still in the thief's possession, or were they meanwhile broken? The Gemara discusses this.

Rava said

[Rabba]:

Rav's statement is reasonable

that he is exempt

when he broke them

whether at the time of the theft, as in the law of the Mishna, or afterward,

for

they

are not present,

they do not exist.

And if he were liable, he would have had to pay from his own property.

And since at the time he took them he was liable for death, he is therefore exempt from paying, for one does not pay money in place of a liability for death.

But

if

he took

and they are in the thief's possession,

it is not

Rav's statement is reasonable.

Because the vessels belong to the householder, even though they are in the thief's possession, they are like a deposit in his possession. They always belonged to the householder, and now as well they are his; and when he returns them, it is not by the law of payment, but by returning the object to its owner.

Thus far these are Rava's words based on his reasoning. But Rava adds and says:

“And I swear”—

“to the Life [of the worlds]!”

an expression of an oath—

Rav said: Even if he took them,

and the vessels still exist, he need not return them.

And Rava explains Rav's reason, and his own reason for disagreeing with him.

When we wish to examine the matter, whether he must return the vessels or not, we have a simple “test.” It is this:

When he does have blood-guilt for him and is liable to return the vessels, what is the law if the vessels broke “by accident”? Is he liable to pay money in exchange for them, or is he exempt?

If he becomes liable, it follows that the law of a “guardian” does not apply to the vessels—

for a guardian is exempt in cases of accident. It follows that the thief acquired the vessels at the time of the theft and became liable for their monetary value, and the fact that the vessels were subsequently destroyed by accident is not the concern of the householder; the damage belongs to their present owner, who is the thief.

But if he is exempt in cases of accident, it follows that the vessels still belong to the householder even after the theft, just as they had always belonged to him. Therefore, if they were destroyed by accident, it is the householder's loss.

And indeed, the halakha is that when he has blood liability, he is liable for accidents -

and it is learned from this that the vessels passed into the thief’s domain from the time of the theft.

And Rav learned from this [according to Rava’s view] that when “he has no blood liability,” he too acquired the vessels and is not liable to return them. Rather, what is it that he must do? He must pay their value, and this certainly is unnecessary, because “he acquired them with money.”

For when he has blood liability and they were accidentally destroyed -

he is liable; evidently, they

of the thief

are present

the vessels are found -

here too,

when “he has no blood liability” -

they are present in his domain

they are his, and he is not liable to return them.

This is Rav’s reasoning. But Rava himself disagrees with this and holds that this “test” cannot exempt him from returning the vessels.

For this thief is not a bailee; rather, the Torah imposed upon him the law of a bailee. And what the Torah imposed upon him as the law of a bailee is to his detriment: just as when a bailee takes control of the property of another—that is, he uses it with the manner of a robber, without permission, while it is a deposit—he cannot exempt himself from payment if it is subsequently destroyed by accident, because at the moment he took control of it he acquired the deposit, and if it was accidentally destroyed, it was accidentally destroyed for the bailee; so too this thief cannot exempt himself, even if it was accidentally destroyed.

But to go so far on the basis of his liability for accidents as to say that the thief acquired the vessels—how can such a thing be possible? The Torah did not transfer the vessels to him so that they would be his, and certainly he is liable to return them—if they are intact—as it is stated: “And he shall restore the theft that he stole.”

And if you say [according to the Maharsha]: After all, he is liable for accidents; does this not indicate that the vessels are his? And what of it? After all, a borrower too is liable for accidents, and nevertheless he does not acquire the deposit, and is liable to return it if it was not accidentally destroyed. And just as “all the benefit is his” in the case of a borrower—that is, the deposit was given to him for the purpose of using it, and therefore he is liable even for accidents—so too this thief, “all the benefit is his,” and therefore he pays if it was accidentally destroyed.

And how could a robber be in a worse position than a borrower?!

That is not so

Rav’s reasoning is not correct.

For the Merciful One established him in his domain,

in what respect did the Torah say that the vessels are in the thief’s domain? Only

with regard to accidents

to make him liable for payment if they were accidentally destroyed,

but with regard to acquisition

with regard to “ownership” of the vessels, the Torah did not transfer ownership to him, for

they are present in their owner’s domain

they belong to the householder,

just as is the case with a borrower

and just as a borrower is liable for accidents, yet it never occurred to anyone that he acquires the deposit.

The Gemara proves from our Mishna not in accordance with Rav’s words.

We learned: One who entered through a tunnel and broke a barrel,

if

he has blood liability -

he is liable; if he has no blood liability -

he is exempt. -

It follows that

the reason is that he broke it,

and then

when he has no blood liability -

he is exempt; but

if

he took it -

he is not

he is not exempt, and he is liable to return it.

This is difficult for Rav, who holds that he is not liable to return them. And we answer:

The same law applies

the same law

even if he took it as well

he would be exempt,

and the reason that it taught: “he broke the barrel,”

is not in order to infer that if he took it he is liable, but rather

it teaches us

it comes to teach us another innovation

, that when “he has blood liability,” even though he also broke it, he is liable.

And we object:

It is obvious!

What innovation is there in this? After all, if he broke it,

he is a damager!

and it is obvious that he is liable.

And we answer:

This teaches us

the innovation that it comes to teach us is

even

if the thief broke it

unintentionally,

he is also liable.

And we object:

What does it teach us?

What innovation is there in this? Is it to teach us that

a person

who causes damage

is always forewarned

even if he caused damage unintentionally? There is no innovation in this, for -

we already learned it

It is an explicit Mishna in tractate Bava Kamma. We learned:

A person is always forewarned, whether

he caused damage

unintentionally or intentionally, accidentally or willingly,

and the Torah made a distinction between unintentional and intentional, and between accident and willingness, only with regard to the other laws of the Torah, whereas a person who causes damage is always liable.

And what is the innovation in this? Rather, why did the Mishna teach “he broke the vessels”? Was it not in order to infer: “But if he took it, he is liable to return it”? And this is difficult for Rav.

It is difficult

Indeed, our Mishna is difficult to reconcile according to Rav. [The Gemara did not say tiyuvta, whose meaning is a complete refutation, because Rav can reconcile it with difficulty, as we reconciled it. And the Mishna did not state explicitly: “If he took it, he is liable”].

The Gemara now objects to Rava’s words, who holds that if he took it, he is liable to return it.

Rav Beיבי bar Abaye raised an objection:

We learned in a beraita:

One who steals a purse

with coins inside it

on Shabbat -

he is liable

to return it, and there is no application here of the law of “he is liable for the greater punishment,” even though he is liable to stoning for violating Shabbat by taking the purse from a private domain into a public domain,

for he became liable for the return of the

the

theft

from the moment he lifted the purse in the owner’s domain, and this was

before he came to the prohibition of Shabbat

for which he becomes liable at the time he takes it from one domain to another. Therefore, the law of “he is liable for the greater punishment” does not apply here, because at the time of the theft he was not liable for death.

But if he did not acquire the theft through the acquisition of lifting, but through “pulling,” and he took it from the owner’s domain into the public domain—and how did he do this? He

was dragging

the purse

and exiting -

he is exempt

from payment,

for the prohibition of theft and the prohibition of stoning

for the violation of Shabbat

come at one and the same time

at the time of taking it from the owner’s domain into the public domain.

Thus, because of the liability for death, he is exempt from returning the purse and the coins, even if they still exist. This is difficult for Rava?

And we answer:

And the halakha is,

what the beraita taught, that he is exempt, refers—according to Rava’s view—to a case in which they no longer exist,

for he threw them into the river

he threw them into the river, and they were lost. But if they exist, indeed he must return them.

The Gemara relates an incident:

To

Rava, rams were stolen from him through a tunnel

thieves tunneled in by Rava and stole rams from him. In the end, the thieves

returned them to him

they returned them,

but he did not accept them

Rava did not wish to accept them, even though according to his own view they belonged to him, because the thieves had not acquired them, for

he said: Since it issued from Rav’s mouth

the matter had issued from Rav’s mouth, and according to his view the thieves had acquired them and did not need to return them.

The Torah said: “If the thief is found while tunneling ... he has no blood liability. If the sun has risen upon him ] he has blood liability.”

Two beraitot are brought below.

The tannaitic sage of the second beraita interprets the verses according to their plain meaning: “If the sun has risen over him—his blood is protected.” But the tannaitic sage of the first beraita expounds juxtaposition, connecting the two verses and interpreting them as follows: “His blood is not protected if the sun has risen over him.”

The Sages taught: “He has no blood liability if the sun has risen upon him,”

and it is difficult:

Does the sun rise upon him alone?!

Rather,

let us explain:

If the matter is as clear to you as the sun, that he has no peace with you

and has come to kill you—he has no blood liability;

kill him!

But if not,

that it is not clear to you as the sun, and you are uncertain about the matter,

do not kill him!

There is another beraita

we learned another beraita:

“If the sun has risen upon him, he has blood liability,”

and it is difficult:

Does the sun rise upon him alone?!

Rather,

let us explain it as follows:

If it is as clear to you as the sun that he has peace with you

and he is compassionate, and even if you stand against him he will not kill you—he has blood liability;

do not kill him!

But if not

and it is not clear to you as the sun, and you are uncertain about the matter -

kill him!

And we object:

They are difficult against one another.

The two beraitot contradict one another: the first said that when one is uncertain, do not kill him, whereas the second said that when one is uncertain, kill him?