Sanhedrin 72b — the Talmud in English

And we answer:

There is no difficulty! ![](pamud.bmp "

precise page location")

Here

the first one is speaking

of a father

who comes through a tunnel

against his son,

for certainly the father has compassion for the 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 clear to you like the sun 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 with regard to other thieves, who do not have compassion like the compassion of a father for his son. Therefore, when in doubt—kill him, for certainly he came in order to kill if the homeowner were to stand against him. Unless it is clear to you like the sun that he is compassionate toward you like the compassion of a father for his son.

Rav said: Anyone

who

comes upon me

who comes upon me

through a tunnel, I shall kill him,

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

except

outside

for Rav Hanina bar Shila.

What is the reason? If you say

if it is said:

because he is righteous

and he does not come to kill—what sort of righteous man is he?

He comes through a tunnel

to steal? And if he was recognized as righteous, perhaps he has retracted from his righteousness.

Rather, because I am certain about him,

I know him,

that he has compassion for me like the compassion of a father for his son.

The Sages taught:

It is stated in the Torah:

“There are blood-guilt penalties for him”

in the plural, and we expound:

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 with the intention of killing.

And it is further stated:

“He has no blood-guilt penalties”

in the plural, and we expound:

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-guilt penalties both on a weekday and on Shabbat,” it was necessary

to inform us, and there is a novelty in this, because

it might enter your mind

it might occur to you

to say

:

just as it is with regard to

we compare it

to those executed by the court

to one whom the court kills for his transgression of one of the four forms of execution by the court,

for on Shabbat we do not kill him,

for we do not kill him on Shabbat, as we learned in the chapter “One Who Has Monetary Cases,” and we derived it from the verse: “You shall not kindle fire in all your dwelling places on the day of Shabbat”—

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

it teaches us

the tanna of the beraita teaches us that this is not so; rather, we kill him even on Shabbat, since he came concerning matters of life and death, and the saving of life overrides Shabbat —

rather, it is difficult: what does the tanna of the beraita teach us by expounding:

it is difficult: what does the tannaitic author of the beraita teach by interpreting the verse:

“There are blood-guilt penalties for him both on a weekday and on Shabbat,”

if the Torah had written it in the singular, without specification, we would expound that the intention is an ordinary weekday; if so,

now, if on a weekday we do not kill him,

if even on a weekday we do not kill him, is it necessary to say that

on Shabbat it is a question?!

is it necessary to teach us that we do not kill him?!

And we answer:

Rav Sheshet said:

Indeed,

it was not necessary

for the beraita to teach us that we do not kill on Shabbat, for it is obvious,

rather,

the beraita comes to teach us another law, namely: if, while he was tunneling, a heap of stones fell upon him and he was endangered inside it, it is permitted

to clear the heap from upon him

and save him from there, even though this entails a desecration of Shabbat; and this is the novelty of the beraita.

This law applies only when he has blood-guilt penalties—that is, with a father against a son in an unspecified case, or with one concerning whom it is clear that he is at peace with you. But with regard to others, we do not clear the heap from upon him, since he is a man destined to be killed from the moment of his tunneling. And it is permitted to kill him even without warning; all the more so, we do not clear the heap from upon him .

The Sages taught:

The Torah states: “If the thief is found in the tunnel and he is struck and dies, he has no blood-guilt penalties.”

And we expound from what is stated

“and he is struck”

and it does not say “and he strikes him,” which would have indicated that the homeowner struck him—

by every person

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

And it is further stated:

“and he dies,”

and we expound:

by every death by which you are able to put him to death,

and not specifically by death through “striking.”

The Gemara explains the beraita:

Granted

what they expounded:

“and he is struck—

by every person,”

it was necessary

to teach us, because—

it might enter your mind

it might occur to you

to say

: only

the homeowner, he

is permitted to kill him, as we said,

because it is known to him

the thief knows

that a person does not restrain himself with regard to his money,

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

but

a person

else

whom the thief did not come to kill,

not

is it permitted for him to kill him—

it teaches us

the tanna of the beraita teaches us

that

the thief

is a pursuer

he is ,

and even another as well

and it is permitted for every Israelite to kill him in order to save the life of the homeowner.

Rather,

it is difficult: what the beraita expounded: “and he dies”—

by every death by which you are able to put him to death—

why do I need it

to teach us this? Surely

from

the law of

a murderer it follows,

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

as it was taught

we learned concerning the law of a murderer: The Torah said (Numbers 35):

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

and we expound: If only “he shall die” had been written—

I have only

that the court can kill him

but by

the sword, which is

the death stated with regard to him.

And from where

do we learn

that if you cannot put him to death by the death written with regard to him,

such as when he was a sorcerer, or you cannot seize him because he is across the river,

that you are permitted to put him to death by every death by which you are able to put him to death,

such as shooting an arrow or a stone at him—

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

and we expound:

in any event

that you are able to put him to death.

If so, it is difficult: why did we need a special exposition concerning one who comes through a tunnel, that it is permitted to kill him by every death?

And we answer:

It is different there,

the law of a murderer is different, since

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

but with regard to one who comes through a tunnel, had we not expounded this, we would not have known that it is permitted to kill him by every death.

And we challenge:

and let us derive it from there,

why did they need a special exposition? Is it not possible to learn it from the law of a murderer? What do we find with regard to a murderer—that you may put him to death by every death—so too with regard to one who comes through a tunnel.

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

because it is a murderer and an avenger of blood

[who is also subject to the exposition that if he left his city of refuge, every person is permitted to kill him, and not only the avenger of blood, as the plain meaning of the Torah indicates] and they are

two verses that come as one—

and two verses that come as one do not teach

a law applying elsewhere [as explained above, 46b].

Therefore, a special exposition is needed concerning one who comes through a tunnel: it is permitted to kill him not specifically by “striking,” which is written in the Torah, but even by every 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 said:

“A tunnel”—

I have only

that it is permitted to kill him

but

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 and enclosure

[a courtyard behind the house]—

from where

do we learn that it is permitted to kill him?

The verse states: “The thief shall be found”

and it did not say “he shall be found,” and we expound “the thief”:

in any event

that he appears to you as a thief.

And the beraita asks:

If so,

that we expound that the same law applies everywhere,

what does the verse teach by saying: “A tunnel”?

And it answers:

because most thieves are found

are present

in a tunnel,

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

And the Torah spoke of what is common .

Another beraita was taught

We learned another beraita that expounds another exposition: If the Torah had written:

“A tunnel”—

I have only a tunnel; from where do I derive his roof, his courtyard, and his enclosure? The verse states: “The thief shall be found”—

in any event.

If so—

what does the verse teach by saying: “A tunnel”?

To teach us that

his tunnel is his warning!

And he does not need to be warned, and one kills him without warning, since he exerted himself and endangered his life to tunnel. Thus, he comes with the intention of killing, and he is a pursuer, and they kill him without warning and without legal proceedings.

But if he entered through the roof and the 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 against him, he will flee and go away. In this manner it is forbidden to kill him until they warn him before witnesses and say to him: “See! I am standing against you and will kill you.” Then, if the thief accepts the warning and says: “I know that you are standing against me to kill me, and with this intention I am carrying out my theft,” it is permitted to kill him .

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

And there is room to say that only one who becomes liable to execution by the court needs a warning, and the court does not kill him if they did not warn him—but a “pursuer” [one who comes through a tunnel] does not need a warning.

Rav Huna said: A minor who pursues

to kill his fellow minor ,

may be saved

from the transgression of murder

through his life

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

And the novelty is that although he is a minor and cannot be warned, because he is not “capable of accepting a warning” [as with the law of any other warned person, for a warning is not called a warning until he answers: “Even so”]—

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

For Rav Huna holds

Rav Huna:

a pursuer does not need a warning,

and consequently

it makes no difference

when he is

an adult, and it makes no difference

when he is

a minor,

he is killed .

He challenged him

asks

Rav Hisda challenged Rav Huna

from a Mishna that we learned in tractate Oholot (chapter 7, Mishna 6).

In the first clause 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 living person ], and it may be killed in order to save its mother.

If she became broken after that time, he is exempt, for he had already become liable for the obligation.

But if

its head emerged

[most of it]

and its law is that of a born child—

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

the fetus

for the sake of a life ,

that is, in order to save the mother.

And Rav Hisda raises an objection:

Why

do they not kill the fetus, behold,

it is a pursuer!

And granted, if we say that a pursuer requires a warning, it is understandable, for they did not warn it. But if you say that it is a pursuer even when it is a minor, since it does not require a warning, it is difficult: why do they not kill it?

And Rav Huna answers:

The case there is different:

the law there is different, for the minor is not pursuing its mother, but

from Heaven they are pursuing her;

and therefore it has no law of a pursuer at all .

And the Gemara clarifies: Is it possible to say that

the following

beraita

supports him

for Rav Huna?

We learned:

A pursuer who was pursuing his fellow to kill him—

anyone who finds himself there

says to him: “See! That

man whom you are pursuing

is an Israelite!

and not a gentile,

and he is a member of the covenant!

and not an apostate.”

And the Torah said (

Genesis 9):

“Whoever sheds the blood of man, by man shall his blood be shed,”

and we expound, “by man shall his blood be shed”: anyone who sees this shall shed his blood for the sake of saving a person—

the Torah said: Save this one’s blood through that one’s blood.

And this is not a sufficient warning, for the beraita did not say that the pursuer accepted the warning, and nevertheless we learned in the beraita that anyone who sees him kills the pursuer; thus, this is support for the words of Rav Huna, that a pursuer does not require a warning .

And we reject this: There is no proof from here, for

that

is Rabbi Yose son of Rabbi Judah;

he holds that with every warning—even the warning of witnesses who warn one committing a transgression that the court will kill him—he does not need to accept the warning and make himself liable to death, saying: “I am doing this on that condition.”

For it was taught: Rabbi Yose son of Rabbi Judah says: A fellow

a Torah scholar who knows the prohibitions of the Torah—

does not require a warning, because a warning was given only

to an ignoramus, in order

to distinguish between inadvertent and deliberate

so that he cannot claim: I was acting inadvertently.

Here, he holds that a warning is only “notification” of the prohibition, to distinguish between inadvertent and deliberate, and there is no need for “acceptance of the warning”; and even an ignoramus does not need it.

Therefore, this beraita does not support the words of Rav Huna, who holds that a “pursuer” does not require a warning, for from the fact that the beraita did not say that he actually accepted the warning, nothing can be inferred, because the beraita was taught according to Rabbi Yose son of Rabbi Judah, who holds this with regard to all warnings: it is not necessary that the one warned accept the warning upon himself.

Ta shma:

The Gemara brings an objection to the words of Rav Huna from another beraita, in which it is stated explicitly, with regard to the law of a pursuer, that the one warned accepted the warning.

We learned:

A pursuer who was pursuing his fellow to kill him—

he said to him: “See! He is an Israelite and he is a member of the covenant,” and the Torah said: “Whoever sheds the blood of man, by man shall his blood be shed.”

And the beraita continues:

If he said

the pursuer:

“I know that this is so,”

he is

exempt.

For this is not sufficient acceptance of the warning.

And when is it indeed called “acceptance of the warning”? If he

said: “On the condition

that I be killed for this

I am doing it,”—

then he is

liable.

It follows that the beraita speaking of a pursuer holds that even a pursuer requires a warning with all its laws—until he makes himself liable to death.

And this is difficult for Rav Huna.

And we answer:

It is necessary:

the beraita is not speaking of the law of a pursuer at all, but of the law of warning, when the pursuer actually kills the pursued person, and the people standing there warn him in order to bring him to court; and with regard to this warning, even Rav Huna agrees that he must be warned according to all the laws of warning.

And if you raise the difficulty: Why do those people warn him? Why do they not kill him, in order to save the pursued person? The answer is: It is speaking of a situation in which they cannot save him—for example:

He is standing,

the pursuer and the pursued person are

on two sides of the river,

on the opposite bank of the river, and those giving the warning cannot reach there to save him. And therefore—

What is there

that those giving the warning are able to do?

For they need to bring him to court,

to bring him to court, in order to fulfill what is stated (

Deuteronomy 22): “And you shall eliminate the evil from your midst”— The court—

requires a warning

with all its laws, and therefore the beraita wrote that the pursuer accepted the warning.

But indeed, “a pursuer does not require a warning.”

If you wish,

if you wish not to establish the beraita in the manner stated above, but as a warning of a pursuer ,

say

to you another answer.

And this is it:

Rav Huna will say to you:

Even if this beraita holds that a pursuer requires a warning, it is not a refutation of my words, because

I

I

who said

said my words

like the tanna of the tunnel,

whom we learned above,

who said

that tanna:

“His tunnel is his warning.”

And he does not require a warning.

And I hold like him.