Sanhedrin 78b (עח:) — the Talmud in English

upon his staff [

in full health, having completely recovered and relying on his own strength]

and the assailant is acquitted,

he need only pay for his idleness, and he shall provide for his complete healing,”

And would it enter your mind that this [

the injured man]

walks in the marketplace, while this [

the assailant]

is executed,

so that Scripture had to teach us, “and the assailant is acquitted”—

Rather, this refers to one whom they assessed as likely to die, and whose condition improved from what it had been—

and they assessed him as having reached a state compatible with recovery—

and

even

afterward his condition worsened and he died,

and Scripture states “and the assailant is acquitted” to teach

that he is exempt.

a. And if you say: since Rabbi Nehemiah learns it from the verse, why did he mention in the Mishnah the reason "that the feet are for speaking"? It is acceptable to the Rambam who explains that the words are those of the earlier tanna; fine, but to Rashi it will be a difficulty; ;

And

we explain, according to the view of

the Sages: What do they derive from this “

and the assailant is acquitted”

?

It teaches that he is held in custody—

the assailant, after he struck the victim—and if the victim dies, we execute him; and if he does not die, “he shall pay for his idleness, and provide for his complete healing”; this is what Scripture means by “and the assailant is acquitted,” which indicates that until the victim went out “upon his staff,” the assailant was not acquitted, because he was held in custody so that he would not flee.

And

we explain, according to the view of

Rabbi Neḥemya, from where does he derive the requirement of holding him in custody,

since he interprets the verse for another matter?

a. It is written: “The Children of Israel were in the wilderness, and they found a man gathering wood on the day of Shabbat. Those who found him gathering wood brought him to Moses, Aaron, and the entire assembly. They placed him in custody, because it had not been specified what should be done to him.”

b. It is written: “A son of an Israelite woman went out, and he was the son of an Egyptian man, among the Children of Israel... The son of the Israelite woman blasphemed the Name and cursed, and they brought him to Moses... They placed him in custody, to clarify for them according to the word of the Lord.”

Rabbi Neḥemya derives

the law of holding a person in custody

from the wood-gatherer,

as they placed him in custody until they knew his ruling.

And we challenge this:

The Sages should likewise derive from the wood-gatherer

the law of holding a person in custody, so why do they need “and the assailant is acquitted”?

And we answer: Holding in custody the one who strikes another, when we do not know whether the victim will die from his blow, is not comparable to the case of the wood-gatherer, because:

The wood-gatherer

was known to be

liable to be executed [

liable for death, since he had desecrated Shabbat, and the Torah had already said, “Its desecrators shall surely be put to death”],

but Moses did not know by what means he should execute him [

by which form of execution one executes one who desecrates Shabbat], and in such a case we indeed already learn the requirement of custody from the wood-gatherer—

as opposed to this

assailant, for we do not know whether the victim will die from his blow,

for

indeed,

we do not know

at all

whether he is liable to be executed or not [

whether he is liable for death or not]. Therefore, Scripture had to state “and the assailant is acquitted,” to teach that this case too requires holding him in custody.

And Rabbi Neḥemya,

indeed, does not derive the requirement of custody from the wood-gatherer, as the Gemara distinguished the cases; rather,

he derives it from the blasphemer, concerning whom Moses did not know

Moses

whether he was liable to be executed

at all,

and

nevertheless

they held him in custody.

And the Sages

maintain that it is impossible to derive the rule from the custody of the

blasphemer, because his custody was a temporary measure,

since there was no legal basis for holding him in custody: why would they have had any reason to be uncertain whether the blasphemer was liable for death?

The Gemara proves the distinction stated above between the custody of the wood-gatherer, which was only in order to determine by what means he should be executed, and the custody of the blasphemer, concerning whom they did not know at all that he was liable for death:

as it was taught:

Moses our teacher knew that the wood-gatherer was liable for death, since

already

it was stated, “

Its desecrators shall surely be put to death,”

but he did not know by which form of death he would be executed,

as it is stated, “

because it had not been specified

what should be done to him.” From the wording “what should be done to him” it may be inferred that it was known that he was subject to an act of execution; they simply did not know which act applied to him.

But concerning the blasphemer it is not stated, “

what should be done to him,”

but

only, “

to clarify for them according to the word of the Lord,”

which indicates that they did not know at all whether he was subject to an act of execution,

for Moses did not know whether he was liable for death in principle or not.

Granted, according to Rabbi Neḥemya, this is why

the Torah

contains two assessments,

for Scripture states: “If a man strikes his fellow with a stone or with a fist, and he does not die but falls into bed; if he rises... and the assailant is acquitted, he need only pay for his idleness and provide for his complete healing.” The Torah need not have said “and he does not die”; it could have said: “If a man strikes his fellow with a stone or with a fist and he falls into bed.” The words “and he does not die” are therefore expounded to teach an assessment. Similarly, the Torah states, “if he rises and walks outside... and the assailant is acquitted,” teaching an additional assessment, as stated above:

One

of them teaches concerning one whom they

assessed as likely to die, but he lived,

that the assailant is exempt. We do not say: Since he left the court liable, let us execute him; rather, the fact that the victim recovered and lived is because the Merciful One had mercy on him. Therefore, Scripture says “and he does not die,” meaning: “The man struck his fellow... and he does not die [as they had assessed him to], but falls into bed... he shall pay for his idleness”—and not death.

And one

of them teaches concerning one whom they

assessed as likely to die, but whose condition improved from what it had been,

and then his condition worsened again, that the assailant is exempt. Therefore, Scripture says: “If [after they had assessed him as likely to die] he rises and walks outside upon his staff [having been assessed as having reached a state compatible with recovery], the assailant is acquitted,” even though in the interim his condition worsened and he died.

But according to the Sages,

one may challenge:

Why do I need the two assessments

stated by the Torah

!?

And we answer:

One

of them teaches concerning one whom they

assessed as likely to die, but he lived,

that the assailant is exempt—

And one

of them teaches concerning one whom they

assessed

initially

as likely to live, but he died,

that in this case too the assailant is exempt—

And this is how the verse is expounded according to the Sages [in contrast to Rabbi Neḥemya’s exposition]: “

And he does not die [if they initially assessed that he would not die, then even if he subsequently dies] he shall pay for his idleness,” and not death; and “if [they initially assessed him as likely to die, and afterward] he rises and walks outside [and did not die], he shall pay for his idleness...,” and not death.

And Rabbi Neḥemya,

who expounds one of the verses as referring to one whom they assessed as likely to die but whose condition improved from what it had been, can say to you:

If they assessed him as likely to live but he died, no verse is needed

to teach that he is exempt,

for

already

he left the court acquitted,

and this is comparable to one whom the court acquitted, after which one of the judges sought to declare him liable: the verdict is not reversed, as we learned from the verse, “Do not kill the innocent and the righteous.” If so, only one “assessment” remains, to teach concerning one whom they assessed as likely to die but whose condition improved from what it had been, and then his condition worsened again, that the assailant is exempt; and the verse is expounded unlike the Sages’ exposition.

The Sages taught:

One who strikes another, and they assess him as likely to die, but he lives, is acquitted [

the assailant] from execution. We do not say: Since he left the court liable, let us execute him; rather, the fact that the victim recovered and lived is because the Merciful One had mercy on him, as the source for this was explained above.

If they assessed him

the court

as likely to die, but his condition improved from what it had been,

the court

reassesses him with a second assessment for monetary liability, and if afterward his condition worsened and he died, we follow the intermediate assessment

which was only for monetary liability, and we do not impose execution upon him,

the words of Rabbi Neḥemya:

And the Sages say: There is no second assessment after an assessment,

meaning: We do not say that since they reassessed him as liable only for a monetary payment, he is like one who left the court acquitted and the assailant is not liable. Rather, we follow the current result: since his condition worsened and he died, the assailant is liable to be executed.

Another beraita was taught:

;

If

they assessed him

the court

as likely to die,

they reassess him

as likely to live

if they saw that his condition improved, and we do not say: Since he left the court liable, he must be executed.

But if they initially assessed him

as likely to live,

even if his condition worsened,

they do not reassess him as likely to die,

saying, “We erred in the first assessment, and we will impose liability upon him,” because he left the court acquitted, and we attribute the worsening of his condition to another illness that came upon him.

If they initially assessed him

at first

as likely to die, but his condition improved from what it had been,

they reassess him

with a second assessment for monetary liability, and if afterward his condition worsened and he died,

he is not executed, but

he pays damages and pain to the heirs—

And

from what time does he pay,

meaning: with regard to what point in time do they assess him if his condition subsequently improved—

From the time he struck him,

they assess how much the victim was worth before the blow and how much he was worth after the blow, before his condition improved. We do not say: Since until now we assessed him as likely to die, and only now are we assessing him for monetary liability, let us assess how much he was worth before the blow and how much he is worth now, after his condition improved, thereby causing the injured party to suffer a loss.

And evidently

this beraita is

in accordance with Rabbi Neḥemya,

since it is clear from it that if the victim’s condition subsequently worsened, the assailant is not executed.

Mishna:

One who

intended to kill an animal,

for whose killing he is exempt—

and even if they warned him, “Do not throw it, lest you kill the person standing beside the animal and become liable to execution,” and he accepted the warning and said, “I know that he is a member of the covenant, and I am acting with this in mind: if I kill him, I will become liable to execution,”

and

in the end he indeed

killed the person [

an Israelite]—

or he intended

to kill a gentile,

for whose killing he is exempt,

but killed an Israelite,

even if they warned him and he accepted the warning—

or he intended

to

kill

a nonviable fetus,

for whose killing he is exempt, because such a fetus is regarded as dead,

but killed a viable person—

in all these cases he is

exempt, because the warning was a conditional warning: when they warned him, “Do not throw, lest you kill the person,” it was possible that his throw would not strike a person for whose killing he is liable, but one for whose killing he is exempt.

because this is a warning based on uncertainty. They warned him, “Do not throw the object, because perhaps you will kill the person,” since perhaps his throw would not strike a person for whose killing he is liable, but one for whose killing he is exempt.

But if he intended to kill this person [for whose killing he is liable] and killed that person, he is liable, because the warning they gave him—“Do not throw”—was a definite warning: whether he strikes this person or that person, he will in any event become liable to execution.

And likewise, if

he intended to strike him on his loins, and it was not sufficient to kill him

if he had indeed struck him

on his loins—

and even if they warned him not to throw it, because if he threw it and it reached his heart he would be killed, and he did accept the warning—

and

ultimately

the blow did land

on his heart,

and it was sufficient to kill him

with this blow that he struck

on his heart, and he died,

he is

exempt,

because the warning they gave him—“Do not throw it, lest it reach his heart”—is a “warning based on uncertainty.”

And likewise, if

he intended to strike him on his heart,