Sanhedrin 72b (עב:) — the Talmud in English

And we answer:

This is not difficult!

Here

the first one is speaking

of a father

who comes through a tunnel

against his son,

for certainly a father has compassion for his son, and he would not kill him even if the son were to stand against him. Therefore, when in doubt—do not kill him, unless it is as clear to you as daylight that your father is cruel toward you and hates you.

Here

the second one is speaking

of a son

who comes through a tunnel

against his father,

and all the more so in the case of other people who are thieves, who do not have the same compassion that a father has for his son. Therefore, when in doubt—kill him, for certainly he has come intending to kill if the homeowner stands against him. This is so unless it is as clear to you as daylight that he is compassionate toward you, like a father’s compassion toward his son.

Rav said: Anyone

who

comes against me

who comes against me

through a tunnel, I shall kill him,

I shall kill him lawfully, as one who comes through a tunnel,

except

other than

Rav Ḥanina bar Shela.

What is the reason? If you say

if we say:

because he is righteous

and does not come to kill—what kind of righteous person is he?

He has come through a tunnel

to steal? And if he was known to be righteous, perhaps he has since abandoned his righteousness.

Rather, because I am certain about him,

I know him,

that he has compassion for me like a father’s compassion for his son.

The Sages taught:

It is stated in the Torah:

“He has blood”

the plural expression, and we derive:

both on a weekday and on Shabbat—

it is forbidden for the son to kill his father who comes through a tunnel, for he did not come intending to kill.

And it is further stated:

“He has no blood”

in the plural expression, and we derive:

both on a weekday and on Shabbat,

kill him!

The Gemara explains the beraita:

Granted,

the latter clause that we learned:

“He has no blood, both on a weekday and on Shabbat,” is necessary

it was necessary to teach this, and there is a novel point in it, because

it might enter your mind

you might think

to say:

:

just as

we compare him

to those executed by the court

to one whom the court executes for committing an offense punishable by one of the four court-imposed death penalties,

for on Shabbat we do not kill him,

as he is not executed on Shabbat, as we learned in Tractate Sanhedrin, chapter “One Who Is Judged in Monetary Cases,” and derived from the verse: “You shall not kindle a fire in any of your settlements on the day of Shabbat”—

And if it might enter your mind to say that one who comes through a tunnel is likewise not killed on Shabbat,

it teaches us

the tanna of the beraita teaches us that this is not so; rather, he is killed even on Shabbat, since he has come with matters involving danger to life, and Shabbat is overridden for the sake of saving a life —

rather,

there is a difficulty: What does the tanna of the beraita teach us by deriving:

“He has blood, both on a weekday and on Shabbat,”

If the Torah had written it in the singular, without specification, we would have derived that it refers to an ordinary weekday. If so,

now that on a weekday we do not kill him,

if he is not killed even on a weekday, does

on Shabbat require a verse?!

Is it necessary to teach us that he is not killed?!

And we answer:

Rav Sheshet said:

Indeed,

it was not necessary

for the beraita to teach that he is not killed on Shabbat, as this is obvious;

rather,

the beraita comes to teach another law: If, while he was tunneling, a mound of stones fell upon him, and he is in danger beneath it, it is permitted

to clear the mound from upon him

and rescue him from there, even though this entails desecrating Shabbat; this is the novel point of the beraita.

This law applies only where he “has blood”—in the ordinary case of a father coming against his son, or in the case of one about whom it is clear that he is at peace with you. In the case of others, however, one does not clear the mound from upon him, since he is a person liable to be killed from the moment he began tunneling. He may be killed even without warning; all the more so, one does not clear the mound from upon him .

The Sages taught:

The Torah states: “If the thief is found tunneling and is struck and dies, he has no blood.”

And we derive from what is stated

“and is struck”

rather than “and he strikes him,” which would have implied that the homeowner struck him—that

any person

is permitted to kill him, even one who is not the owner of the property.

It is further stated:

“and dies,”

and we derive:

with any death by which you can put him to death,

and not specifically by death through “striking.”

The Gemara explains the beraita:

Granted,

what it derived:

“and is struck—

by any person,”

is necessary

it was necessary to teach this, because—

it might enter your mind

you might think

to say: Only

: only

the homeowner himself

is permitted to kill him, as we said,

because he knows

the thief knows

that a person does not restrain himself where his property is concerned

and therefore he comes to kill, and the homeowner is permitted to kill him;

but

another

person

whom the thief did not come to kill—

is not

permitted to kill him—

it teaches us

the tanna of the beraita teaches us

that

the thief

is a pursuer

himself ,

and even another person as well

and it is permitted for any Jew to kill him in order to save the homeowner’s life.

Rather,

there is a difficulty with what the beraita derived: “and dies”—

with any death by which you can put him to death—

Why do I need this

to teach this? Surely

from

the law of

a murderer it is derived,

as this law can be learned from the law of a murderer—

as it was taught:

We learned the following concerning the law of a murderer: The Torah states (Numbers 35):

“The murderer shall surely be put to death; he is a murderer,”

and we derive: If only “he shall be put to death” had been written,

I would know only

that the court may kill him

with

the sword, which is

the death stated in his regard.

And from where

do we learn

that if you cannot put him to death with the death prescribed for him

for example, if he is a sorcerer, or if you cannot seize him because he is on the other side of a river,

you are permitted to put him to death by any death with which you can put him to death,

for example, by shooting an arrow or throwing a stone at him—

The verse states: “He shall surely be put to death,”

and we derive:

in any event,

by any means with which you can put him to death.

If so, there is a difficulty: Why did we need a special derivation concerning one who comes through a tunnel, that it is permitted to kill him by any means?

And we answer:

The case there is different

the law of a murderer is different, since

the verse states: “He shall surely be put to death,”

whereas concerning one who comes through a tunnel, had we not derived this, we would not know that it is permitted to kill him by any means.

And we object:

Let us derive it from there,

why was a special derivation necessary? Is it not possible to learn it from the law of a murderer? Just as we find in the case of a murderer that you may kill him by any means, so too, in the case of one who comes through a tunnel.

And we answer: It is impossible to learn it by analogy from the law of a murderer

because the cases of a murderer and the blood-avenger

[for concerning him too we derive that if he leaves his city of refuge, anyone may kill him, and not only the blood-avenger, as the plain meaning of the Torah would indicate] are

two verses that come as one—

and whenever there are two verses that come as one, they do not teach

a law for another case [as explained above, 45b].

Therefore, a special derivation is needed concerning one who comes through a tunnel, teaching that he may be killed not specifically by “striking,” which is written in the Torah, but even by any form of death, such as strangling him or drowning him in water.

The Gemara continues to discuss the law of one who comes through a tunnel.

The Sages taught:

The Torah states:

“A tunnel”—

I would know only

that it is permitted to kill him

if

he tunneled

a tunnel

in the homeowner’s wall—

If he came upon

his roof

with a ladder, or if he came into

his courtyard or enclosed yard

[a courtyard behind the house]—

from where

do we learn that it is permitted to kill him?

The verse states: “The thief is found”

and it does not state “he is found”; and we derive from “the thief”:

in any event,

wherever he appears to you as a thief.

And the beraita asks:

If so,

if we derive that the same law applies everywhere,

why does the verse state: “A tunnel”?

And it answers:

Because most thieves are found

are present

in a tunnel,

that is, when they come to steal, they tunnel.

The Torah spoke of the common case .

Another beraita was taught

We learned another beraita that derives a different exposition: If the Torah had written:

“A tunnel,”

I would know only a tunnel; from where do I derive his roof, his courtyard, and his enclosed yard? The verse states: “The thief is found”—

in any event.

If so—

why does the verse state: “A tunnel”?

To teach us that

his tunnel is his warning!

He does not need to be warned, and he may be killed without a warning, since he exerted himself and endangered himself by tunneling. He has therefore come intending to kill, and he is a pursuer; he is killed without warning and without a formal legal process.

But if he entered via the roof or courtyard through an open entrance, this does not prove that he came to kill. Rather, it is possible that he is trying his luck at stealing through the open entrance, and if the homeowner stands before him, he will flee and leave. In such a case, it is forbidden to kill him until witnesses warn him, saying to him: “Look! I am standing against you, and I will kill you.” Then, if the thief accepts the warning and says: “I know that you are standing against me to kill me, and nevertheless I am committing this theft,” it is permitted to kill him .

The Gemara continues to discuss whether one who comes through a tunnel requires a warning.

There is room to say that only one who is liable to a court-imposed death penalty requires a warning, and the court does not kill him if he was not warned; but a “pursuer” [one who comes through a tunnel] does not require a warning.

Rav Huna said: A minor who pursues

to kill another minor ,

may be saved

from the transgression of murder

by taking his life

by killing him; that is, he has the status of a pursuer, and anyone is permitted to kill him, like any other pursuer.

The novel point is that although he is a minor and cannot be warned, since he is not capable of receiving a warning [as is the law with regard to any other warned person, for a warning is not considered a warning until he answers: “Even so”]—

but with regard to the law of a pursuer, his status is like that of an adult. And why?

For Rav Huna holds

Rav Huna holds:

a pursuer does not require a warning,

and consequently

it makes no difference

whether he is

an adult, and it makes no difference

whether he is

a minor;

he is killed .

He challenged him

Rav Ḥisda challenges

Rav Huna

from a Mishna that we learned in Tractate Ohalot (chapter 7, Mishna 6).

At the beginning of the Mishna it is stated: A woman who is having difficulty giving birth [and the mother is endangered by this]—they cut up the fetus in her womb [the midwife extends her hand and cuts it] and remove it limb by limb, because her life takes precedence over its life [for as long as it has not emerged into the air of the world, it is not a person , and it may be killed in order to save its mother].

If she miscarried afterward, he is exempt, for he had already become liable for the obligation.

But if

its head emerged

[most of it]

and it has the status of a newborn—

one may not touch it, because one life may not be set aside

the fetus

for another life ,

that is, in order to save the mother.

I vozrazhaet Rav Hisda:

I pochemu

plod ne ubivayut, ved'

on ved' rodef!

I vpolne ponyatno, yesli skazat', chto rodef trebuet preduprezhdeniya: ved' ego ne predupredili. No yesli ty skazhesh', chto on schitaetsya rodefom dazhe buduchi malenkim rebenkom i poetomu ne trebuet preduprezhdeniya, voznikayet trudnost': pochemu ego ne ubivayut?

I otvechaet Rav Huna:

zdes' otlichayetsya

zakon, potomu chto rebenok ne presleduet svoyu mat', a

s nebes presleduyut yeye

to est' yeye presleduyut s nebes. Poetomu k nemu voobshche ne primenim zakon rodefa.

I utochnyaet Gemara:

mozhet byt' skazat', chto sleduyushchaya

baraitha

pomogaet emu

— Rav Hune?

My uchili:

Esli rodef presleduet svoego blizhnego, chtoby ubit' ego —

vsyakiy, kto okazhetsya tam,

govorit emu: «Smotri! Chto

etot chelovek, kotorogo ty presleduesh',

evrey!

a ne neevrey,

i on syn zaveta!

a ne apostat».

Ved' Tora skazala (

Bereshit 9):

«Prolivayushchiy krov' cheloveka v cheloveke, krov' ego da budet prolit»,

i my tolkuem: «v cheloveke, krov' ego da budet prolit» — vsyakiy, kto vidit eto, dolzhen prolit' ego krov' radi spaseniya cheloveka,

Tora skazala: spasi krov' etogo krov'yu togo».

I eto ne yavlyaetsya dostatochnym preduprezhdeniem, ved' v baraithе ne skazano, chto rodef prinyal preduprezhdenie, i vse zhe my uchili v baraithе, chto vsyakiy, kto ego uvidit, ubivayet rodefa. Znachit, eto podtverzhdaet slova Rav Huny: rodef ne trebuet preduprezhdeniya.

I otvergayem eto dokazatel'stvo: ot syuda nel'zya dokazat', potomu chto

eta baraitha —

eto mnenie Rabbi Yosi ben Rabbi Yehudy,

kotoryy schitaet, chto pri lyubom preduprezhdenii, dazhe pri preduprezhdenii svidetelyami, preduprezhdayushchimi prestupnika, chto Beit-din kaznit ego, ne trebuetsya, chtoby tot prinyal na sebya preduprezhdenie i sam podverg sebya smerti, skazav: «Radi etogo ya i delayu eto».

Ved' skazano: Rabbi Yosi ben Rabbi Yehuda govorit: haver

uchenik mudretsa, znayushchiy zaprety Tory, —

ne nuzhdaetsya v preduprezhdenii, potomu chto preduprezhdenie dano tol'ko

neznakomtsu, chtoby

otlichit' deystvie po oshibke ot umyshlennogo

i chtoby on ne mog skazat': «Ya deystvoval po oshibke».

Znachit, on schitaet, chto preduprezhdenie — eto lish' «soobshchenie» o zaprete, chtoby otlichit' deystvie po oshibke ot umyshlennogo, i «prinyatie preduprezhdeniya» ne trebuetsya, i dazhe ot neznakomtsa eto ne trebuetsya.

Poetomu iz etoy baraithы nel'zya privesti podtverzhdenie slovam Rav Huny, kotoryy schitaet, chto rodef ne trebuet preduprezhdeniya: iz togo, chto v baraithе ne skazano, chto on deystvitel'no prinyal preduprezhdenie, nel'zya delat' nikakogo vyvoda, ved' baraitha byla izlozhena v sootvetstvii s mneniem Rabbi Yosi ben Rabbi Yehudy, kotoryy schitaet voobshche pri lyubom preduprezhdenii, chto ne trebuetsya, chtoby preduprezhdennyy prinyal na sebya preduprezhdenie.

Ta shma:

Gemara privodit vozrazhenie na slova Rav Huny iz drugoy baraithы. V ney pryamо skazano v zakone o rodefе, chto preduprezhdennyy prinyal na sebya preduprezhdenie.

My uchili:

Esli rodef presleduet svoego blizhnego, chtoby ubit' ego —

emu skazali: «Smotri! On evrey i syn zaveta», i Tora skazala: «Prolivayushchiy krov' cheloveka v cheloveke, krov' ego da budet prolit».

I baraitha prodolzhaet:

Yesli on skazal,

rodef:

«Ya znayu, chto eto tak»,

togda on

osvobozhden.

Potomu chto eto ne yavlyaetsya dostatochnym prinyatiem preduprezhdeniya.

A kogda deystvitel'no govoryat o «prinyatii preduprezhdeniya»? Yesli

on skazal: «Radi togo,

chto ya budu ubit' za eto,

ya delayu eto» —

togda

on podlezит nakazaniyu.

Znachit, baraitha, govoryashchaya o rodefе, schitaet, chto dazhe rodef trebuet preduprezhdeniya vo vsekh yego detal'yakh — poka on ne podvergnet sebya smerti.

I eto protivorechit slovam Rav Huny.

I otvechayut:

eto ne trebuetsya:

baraitha voobshche ne govorit o zakone rodefa, a govorit o preduprezhdenii v sluchae, kogda rodef deystvitel'no ubivayet presleduemogo, a stoyashchie tam lyudi preduprezhdayut ego, chtoby otvesti ego v Beit-din; i pri takom preduprezhdenii dazhe Rav Huna soglasen, chto yego sleduet preduprezhdat' vo sootvetstvii so vsemi zakonami preduprezhdeniya.

A yesli ty vozrazish': pochemu eti lyudi ego preduprezhdayut? Pochemu oni ne ubivayut ego, chtoby spasti presleduemogo? Otvet: rech' idet o sluchae, kogda oni ne mogut spasti yego, naprimer:

on stoit,

rodef i presleduemyy nakhodyatsya

na dvukh beregakh reki,

na protivopolozhnom beregu, i preduprezhdayushchie ne mogut dobrat'sya tuda, chtoby spasti yego. Poetomu —

chto oni mogut

sdelat',

chtoby otvesti ego v Beit-din,

chtoby ispolnit' skazannoe (Devarim 22): «I unichtozhish' zlo iz sredi sebya» —

Beit-din —

trebuyet preduprezhdeniya

vo vsekh yeyo detal'yakh, poetomu baraitha i napisala, chto rodef prinyal na sebya preduprezhdenie.

No v deystvitel'nosti «rodef ne trebuet preduprezhdeniya».

Yesli zhelaesh',

mozhno ne ob''yasnyat' bareithu ukazannym vyshe obrazom, a schitat' yeyo preduprezhdeniem rodefa,

skazhi

tebe drugoy otvet.

A imenno:

Rav Huna skazhet tebe:

dazhe yesli eta baraitha schitaet, chto rodef trebuet preduprezhdeniya, ona ne oprovergaet moi slova, potomu chto

ya

—

skazal

to, chto skazal,

po mneniyu tannaya o podkopе,

kotoryy byl privеден vyshe,

skazal

tot tanнай:

«Ego podkop — eto yego preduprezhdenie».

I on ne nuzhdaetsya v preduprezhdenii.

I ya soglasen s nim.