007a – הכל מעריכין – פרק ראשון – ערכין, דף ז ע"א

Does this imply that the Tanna Kamma holds that he is given to be returned to stand trial in court?!^[1]

לחזרת עמידת ב"ד - He cannot be brought back to court to stand trial over the injury he caused, for we do not torment him by delaying his sentence.^[2]

מכלל דת"ק סבר כו' - This is said in astonishment.

Rav Yosef said: They disagree about whether an oral loan is collected from the heirs. The Tanna Kamma holds: an oral loan is collected from the heirs; and Rabbi Shimon ben Elazar holds: it is not collected from the heirs.^[3]

Rabbah said: All agree that an oral loan is not collected from the heirs; but here they disagree about whether a debt written in the Torah is like one written in a document. The Tanna Kamma holds: it is like one written in a document; and Rabbi Shimon ben Elazar holds: it is not like one written in a document.^[4]

They raised an objection: One who digs a pit in the public domain, and an ox fell on him and killed him – [the ox’s owner] is exempt. And not only that, but if the ox died, the heirs of the pit’s owner are obligated to pay the value of the ox to its owner!^[5]

והרגו - The ox killed the digger.

פטור - The owner of the ox [is exempt].

חייבין לשלם - We see that a debt written in the Torah is like one written in a document. And this is difficult for the one who set the dispute of Rabbi Yose and the Tanna Kamma of our Mishnah in the case where he caused damage, for then one anonymous ruling contradicts another anonymous ruling.^[6] Some raise this objection against Rabbi Shimon ben Elazar, but it is a wonder in my eyes how one can object so: Rabbi Shimon is a Tanna, and he may disagree!

Rabbi Ila said in the name of Rav: [This is] where he had stood trial [before he died].

בשעמד בדין - Before he died, and they obligated him to pay; therefore it is collected from the heirs, for since his judgment was decided to pay, it is like a loan with a document.

But it teaches “killed him”!^[7]

Rav Adda bar Ahavah said: Where it made him a treifah.^[8]

But Rav Nachman said that Chagga taught: it died and buried him!^[9]

והא תני חגא מת וקברו - The ox [died] in the pit, for example where it brought down a clod of earth with it; and even so the heirs are obligated.

And the conclusion: where the judges were sitting at the mouth of the pit.^[10]

והילכתא - That which it teaches that the heirs are obligated is where the judges were sitting at the mouth of the pit and obligated him to pay at once.

The Rabbis taught: One who goes out to be executed – they sprinkle for him the blood of his chatas and the blood of his asham;^[11]

מזין עליו - They throw the blood of his chatas and asham on his behalf; and it is not like a chatas whose owner has died, as long as he has not been executed.

if he sinned at that time, they do not attend to him.

חטא בשוגג באותה שעה - Unwittingly, at the time that he went out to be executed; for example, he saw forbidden fat, thought it was permitted fat, and ate it.

אין נזקקין לו - [They do not attend to him] so that he might set aside an offering to be brought.

What is the reason?

Rav Yosef said: Because we do not torment him by delaying his sentence.^[12]

מפני שאין מענין את דינו - That they should hold back from executing him until they slaughter the offering and throw the blood, for that is torment of the judgment.

Abaye said to him: If so, even the first clause too [should be the same]!

רישא נמי - Which teaches that where he sinned before, they sprinkle for him – yet they wait for him until it is slaughtered and [the blood] thrown!

Where his offering was already slaughtered at that time.^[13]

But where his offering is not slaughtered, what? [They do] not [wait]?

Instead of teaching “if he sinned at that time, they do not attend to him,” let it distinguish within that very case and teach: When is this said? Where the offering was slaughtered at that time; but where the offering is not slaughtered, not!^[14]

That is indeed what it is saying: When is this said? Where the offering was slaughtered at that time; but where the offering is not slaughtered, he is treated as one who sinned at that time, and they do not attend to him.

Mishnah

A woman who goes out to be executed – they do not wait for her until she gives birth.^[15]

מתני' אין ממתינין לה עד שתלד - Rather, they execute her child with her, for it is one body.

A woman who has sat on the birthstool^[16] – they wait for her until she gives birth.

ישבה על המשבר - Before her sentence was decided.

ממתינין לה עד שתלד - For since [the child] has been uprooted and moved from its place, it is another body.

A woman who was executed – one may benefit from her hair.^[17]

נהנין בשערה - The Gemara explains the reason.

An animal that was executed is forbidden for benefit.^[18]

אסורה בהנאה - As we hold (Pesachim 22b): “and the owner of the ox shall be clean”^[19] – like a person who says to his fellow, “So-and-so went out clean of his property and has no benefit from it at all.”

Gemara

That is obvious! It is her own body!^[20]

It was necessary; it would enter your mind to say: since it is written (Shemos 21:22) “as the woman’s husband shall lay upon him,”^[21] [the fetus] is the husband’s property, and we should not make him lose it;

[the Mishnah] teaches us [that we do not wait].

But say that it is indeed so!

Rabbi Abahu said in the name of Rabbi Yochanan: The verse says (Devarim 22:22) “then they shall both of them die”^[22] – to include the fetus.

גמ' לרבות את הולד - It entered his mind that he learns it from “both of them”, for [the Torah] should have written [only] “then they shall die”, and I would know that “they shall die” is not less than two.

שניהם - Is superfluous, [free] for exposition.

But he needs this [word] for: until both of them are equal – the words of Rabbi Yoshiyah!

שניהן שוין - The adulterer and the adulteress must both be subject to punishment; but if she was a minor and he an adult, or he a minor, who is not subject to punishment, and she an adult who is subject to punishment, the adult is not executed. And [the Gemara] answers: we learn it from “also”.

When we say [it], it is from “also”.

A woman who has sat on the birthstool, etc.^[23]

What is the reason?

Since [the child] has been uprooted, it is another body.

Rav Yehudah said in the name of Shmuel: A woman who goes out to be executed – they strike her opposite the womb,^[24] so that the fetus dies first, so that she not come to disgrace.

לידי ניוול - For if there is life in the child, it will come out after its mother’s death, and that is a disgrace.

Is this to say that she dies first? But we hold that the child dies first!

As we learned: A day-old infant inherits and bequeaths;^[25]

נוחל - If an inheritance fell to him on that day, and on that day he died, he passes it on to his relatives from his father’s side.

and Rav Sheshes said: He inherits his mother’s property, to pass it on to his brothers from his father.^[26]

ואמר רב ששת - This “inherits and bequeaths” cannot be set in his father’s property, for even if he had not been born, his relatives [the brothers] would inherit his father’s property, where there are no sons.

אלא נוחל בנכסי אמו - If [his mother] died on that day, then even if he died on that day, he inherits his mother’s property and passes it on, through himself, to his brothers from his father, who are not his mother’s sons; for were it not for him, her own relatives would inherit her. And we do not say that he is a non-viable birth and not fit for inheritance.

Only a one-day-old [infant], but a fetus, not, for it dies first, and a son does not inherit his mother in the grave to pass it on to the brothers from the father!^[27]

אבל עובר - If a pregnant woman died, the relatives of the fetus do not inherit her, for it dies first.

That applies to [natural] death: since the child’s life-force is small, the drop of the Angel of Death enters and severs its vital organs;^[28] but where she was executed, she dies first.

ומשני ה"מ - That it dies first applies to death, where she dies her own death.

But there was an incident, and [the fetus] convulsed up to three convulsions!^[29]

And we ask: and in [natural] death, does it really die first? But there was an incident and it convulsed after its mother’s death!

It is just like the tail of a lizard, which convulses.

זנב הלטאה - If they cut it off, the piece convulses, even though there is no life in it.

Rav Nachman said in the name of Shmuel: A woman who sat on the birthstool and died on Shabbos – they bring a knife, tear open her belly, and take out the child.^[30]

ומקרעין את כריסה - For sometimes it happens that she dies first.

That is obvious! What is he doing^[31]

Tosfos

מיתיבי בור ברה"ר - He challenges Rabbah, who said above that a debt written in the Torah is not like one written in a document; and so Rabbeinu Tam copied in his book. One could also challenge Rav Yosef, for he too holds that a lien is not from the Torah;^[32] but [the Gemara] explained his words more.

אמר רב אילא א"ר כשעמד בדין - Rav did not give this answer because of Rabbah’s difficulty, for Rabbah lived many years after Rav; rather, because we challenge him from it in Perek Get Pashut (Bava Basra 175b), where he says there that an oral loan is not collected from the heirs; and he answered for himself.^[33]

דיתבי דייני אפומא דבירא - Even so, it was necessary to say “it died and buried him,” for it would enter your mind that we require “the owner of the ox must come and stand by his ox” (Sanhedrin 19a);^[34] it teaches us that he did properly stand by it.

מזין עליו מדם חטאתו ומדם אשמו - For a chatas [and an asham] are not offered after his death, but his olah is offered.^[35]

ישבה על המשבר כו' - Rashi explained: “before her sentence was decided.” But this is not so, for it refers to “one who goes out to be executed,” and everyone who goes out to be executed is after the verdict, as is implied by all those mentioned above in the Mishnah of our sugya. And so it is implied in Perek Kol HaGet (Gittin 28b), which speaks of one going out to be judged and one going out to be executed. And this is the reason for the first clause, that they do not wait: because of torment of the judgment – as is implied in Perek Echad Dinei Mamonos (Sanhedrin 35a), that there is torment of the judgment only after the verdict, since it says: “How shall we act? Shall we judge him on Erev Shabbos, finish his verdict on Shabbos and execute him on Sunday? You would then be tormenting his judgment,” etc.; “Let his verdict be finished on Sunday! – they would forget their reasoning”; but about torment they are not concerned.^[36]

Notes

1. 1. This continues the sugya from the previous amud [Arachin 6b]. According to the second version, a beraisa teaches that one going out to be executed who injured others is liable, while Rabbi Shimon ben Elazar exempts him “because he is not given to be returned to stand trial in court.” The Gemara now asks: does that mean the Tanna Kamma holds that he can be brought back to court?
2. 2. This Rashi explains the words of the beraisa at the end of the previous amud [Arachin 6b]; the Vilna edition prints it at the top of this amud.
3. 3. An oral loan is a debt with no document. Rav and Shmuel hold that it is not collected from the heirs, since the lien on property is not from the Torah [Bava Basra 175b]. Damages never brought before a court are treated like an oral loan, so the question decides whether the injured party can claim from the estate.
4. 4. A “debt written in the Torah” is an obligation the Torah itself imposes, such as payment for damages. The question is whether, being publicly known from the Torah, it has the force of a loan written in a document, which is collected from the heirs.
5. 5. A pit dug in the public domain is one of the primary categories of damage: its digger pays for an animal that falls into it and dies. Here the digger was killed, yet his heirs must pay for the ox – implying that a debt written in the Torah is collected from heirs like a documented debt, against Rabbah (so Tosfos).
6. 6. Stama asstama: one anonymous ruling contradicting another. For the one who explained the dispute of Rabbi Yose and the Tanna Kamma in the Mishnah [Arachin 6b] as concerning one who caused damage, our anonymous beraisa contradicts the anonymous first view of the Mishnah.
7. 7. That is, the ox killed the digger as it fell, so there was no time to bring him to trial before his death.
8. 8. A treifah is one who has received a fatal injury and cannot survive it, though he lives on for a while. The digger lived long enough to be tried before he died.
9. 9. Chagga was a teacher of beraisos. His version reads that the ox died and buried the digger beneath it – he died at once, leaving no time for a trial.
10. 10. That is, a court happened to be sitting at the mouth of the pit and obligated him on the spot as the ox fell, so he did stand trial before he died.
11. 11. A chatas and an asham atone for a sin, and their essential act is throwing the blood on the altar. A chatas whose owner has died is not offered; but as long as the condemned man is alive, the blood is thrown on his behalf.
12. 12. Inuy hadin, “tormenting the judgment”: delaying the execution of one already sentenced, which causes him great anguish. Therefore he is not kept waiting while an offering is set aside and brought for him.
13. 13. Zevach zavuach: the offering has already been slaughtered, so only the throwing of the blood remains, which causes no real delay.
14. 14. That is, if the distinction depends on whether the offering is already slaughtered, the beraisa should have drawn it within the first ruling itself, rather than adding a separate ruling about one who sinned at that time.
15. 15. Ubar yerech imo: a fetus is regarded as a limb of its mother’s body. Therefore the execution is not postponed until she gives birth; the fetus dies with her.
16. 16. The mashber is the birthstool on which a woman sat to give birth. Once she has sat on it, labour has begun and the child has moved from its place.
17. 17. Benefit from a corpse is forbidden. The Gemara on the next amud [Arachin 7b] explains why her hair is nevertheless permitted.
18. 18. An animal executed by a court, such as an ox that killed a person and was stoned.
19. 19. “And the owner of the ox shall be clean” (Shemos 21:28): from here [Pesachim 22b] it is learned that an ox sentenced to stoning is forbidden for benefit, even after it is slaughtered.
20. 20. That is, since the fetus counts as her body, it is obvious that her execution is not delayed; what does the Mishnah add?
21. 21. The verse (Shemos 21:22) speaks of one who strikes a pregnant woman so that she miscarries: he pays the husband the value of the fetus. So the fetus is in a sense the husband’s property.
22. 22. The verse (Devarim 22:22) concerns an adulterer and an adulteress, both of whom are executed. The extra word “also” includes the fetus, which dies with her.
23. 23. The Gemara returns to the second clause of the Mishnah: a woman sentenced to death who has already sat on the birthstool is not executed until she gives birth.
24. 24. The beis herayon is the womb. She is struck there before the execution so that the fetus dies before its mother.
25. 25. The Mishnah in Niddah [Niddah 44a]: even a one-day-old infant inherits from those who leave him an estate, and his own estate passes to his heirs.
26. 26. That is, if his mother died and then the infant died, he inherited her, and her property passes from him to his half-brothers from his father, who would not otherwise inherit her.
27. 27. A son does not inherit his mother “in the grave”: a son who died before his mother does not inherit her, so her property goes to her own family and not to his paternal half-brothers.
28. 28. The drop of the Angel of Death is the Aggadic image of the drop by which the Angel of Death takes life. The simanim are the vital organs; the fetus, whose hold on life is weaker, dies first.
29. 29. Pirkus is a convulsive movement of the body. The fetus moved after its mother died, which seems to show it outlived her.
30. 30. Saving a life overrides Shabbos even when it is uncertain. A knife is brought and her belly opened, though it is unclear whether the child is alive.
31. 31. The sentence continues on the next amud [Arachin 7b]: “...he is cutting flesh!” – that is, no forbidden labour is involved at all.
32. 32. Shibuda d’oraisa: whether the lien of the lender on the borrower’s property is from the Torah. One who holds it is not, holds that an oral loan is not collected from the heirs. ר"ת is Rabbeinu Tam.
33. 33. Rav lived several generations before Rabbah. Rav himself holds that an oral loan is not collected from the heirs [Bava Basra 175b], so he had to explain the beraisa according to his own view.
34. 34. An ox may not be judged except in its owner’s presence [Sanhedrin 19a]. Tosfos explain that here too, with the judges at the mouth of the pit, the trial counts as properly held in his presence.
35. 35. A chatas or asham whose owner has died is not offered, but an olah is offered even after its owner’s death.
36. 36. Tosfos disagree with Rashi: the Mishnah speaks of a woman already sentenced, since inuy hadin applies only after the verdict, as shown in Sanhedrin [Sanhedrin 35a], where capital cases are not tried on Erev Shabbos.