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Bava Kama, 26

1) THE EXEMPTION FOR "ADAM HA'MAZIK" FROM PAYING "KOFER"

QUESTIONS: The Gemara derives the exemption of a person who kills another person from paying Kofer from the verse, "Kofer Yushas Alav" (Shemos 21:30), which teaches that one pays Kofer only when his ox kills a person, but not when a person kills a person. RASHI writes that the Gemara is discussing a situation in which one person killed another person b'Mezid, intentionally, but he did not receive Hasra'ah (warning from witnesses) before committing the act, and, therefore, he is not Chayav Misah or Chayav Galus.

Rashi seems to be bothered by the obvious question -- how could we think that a person is Chayav to pay Kofer for killing someone if he is Chayav Misah? We know that the rule is that when a person is Chayav Misah, he is exempt from any accompanying monetary obligations because of the rule of "Kam Lei bid'Rabah Minei!"

Rashi answers that there are times when a person who kills is not Chayav Misah or Galus. "Kam Lei bid'Rabah Minei" applies only when the person actually receives the punishment of Misah or Galus, but not when the person just *could* have been punished had he done the act b'Mezid with Hasra'ah.

Rashi's words are difficult to understand for a number of reasons.

First, Tana d'Vei Chizkiyah (Bava Kama 35a) teaches that whenever a person commits a sin that could cause him to be killed had he done it b'Mezid and with Hasra'ah, he is exempt from any accompanying monetary obligations even if, in this instance, he did it b'Shogeg without Hasra'ah and is not actually killed. Rashi himself cites Tana d'Vei Chizkiyah in a number of places in Bava Kama (53b, DH O Dilma Bor; 61b, DH Hayah Gedi). (TOSFOS RABEINU PERETZ)

Second, Rashi later (53b, loc. cit.) seems to ignore this Gemara, and he writes instead that a person is exempt from paying Kofer because of Tana d'Vei Chizkiyah's principle and "Kam Lei bid'Rabah Minei," and not because of the verse of "Alav!" (See also RIVA cited by Tosfos 4a, DH k'Re'i.) (PNEI YEHOSHUA)

ANSWERS:

(a) The RASHBA explains that Rashi here is explaining the Gemara according to those who do not accept the ruling of Tana d'Vei Chizkiyah (see Rashi 42a, DH Atu b'Ason), because according to Tana d'Vei Chizkiyah it would not be necessary to derive from "Alav" that Adam ha'Mazik does not pay Kofer. Hence, when Rashi (on 53b) cites "Kam Lei bid'Rabah Minei" as the source that a person who kills is exempt from Kofer, he is explaining the source according to Tana d'Vei Chizkiyah (whose opinion is accepted as the Halachah).

(b) The PNEI YEHOSHUA explains that Rashi maintains that "Kam Lei bid'Rabah Minei" cannot exempt a person from a payment that is a Kaparah, an atonement, but only from a payment that is a normal payment of compensation. (Such a view is recorded in TOSFOS in Kesuvos 30b, DH Zar.) Rashi is explaining that at this point the Gemara thinks that the payment of Kofer is a payment of Kaparah, atonement, and therefore the rule of "Kam Lei bid'Rabah Minei" and Tana d'Vei Chizkiyah cannot exempt a person from such a payment. That is why the verse of "Alav" is necessary to exempt a person who killed from paying Kofer.

Why, then, does Rashi find it necessary to explain that the Gemara is discussing a case of a person who is not punishable with death or Galus for his act of killing? Even if he would be punished, he should still pay Kofer! The Pnei Yehoshua answers that Rashi found it illogical to suggest that a person should be killed or sent to Galus and still be required to pay Kofer for atonement. Killing, or Galus, already provides atonement (see Makos 2b). That is why Rashi explains that the Gemara only thinks that a killer pays Kofer if he is not receiving any other punishment.

The Pnei Yehoshua explains that according to this interpretation, the Gemara concludes that a killer *is* exempt from Kofer, because Kofer is indeed comparable to a monetary obligation and is not just an atonement, and therefore the rule of "Kam Lei bid'Rabah Minei" applies. That is why Rashi later (53b) writes that it is "Kam Lei bid'Rabah Minei" which exempts a killer from paying Kofer; "Alav" teaches that "Kam Lei" applies in such a case.

TOSFOS (DH v'Yehei, and 4a, DH k'Re'i) and other Rishonim explain the Sugya differently from Rashi. They explain that "Kam Lei bid'Rabah Minei" cannot exempt a person from Kofer, because it only exempts a person from payments that are not related to the sin for which the person is punished with Misah. Kofer is paid as compensation for the life of the person who was killed, and therefore the Chiyuv Misah for killing that person cannot cancel the obligation of payment that the killing incurred.

A number of reasons may be given to explain why Rashi does not accept this interpretation. First, the Gemara in Kesuvos (37b) asks why a verse is needed to exempt a killer from Kofer, and why it is not learned from the Halachah of "Kam Lei bid'Rabah Minei." The Gemara there clearly implies that one is exempt even from Kofer in the event of a Chiyuv Misah (see Tosfos here, DH Alav).

Second, the Gemara (4a) explains the Mishnah as saying that had the Torah written "Shor" we would not have been able to learn from it that Adam ha'Mazik is Chayav to pay for damages, since the obligation incurred by the damages done by a Shor is more severe than that of an Adam ha'Mazik, because one pays Kofer for a death caused by a Shor but not for a death caused by an Adam. If we know that an Adam does not pay Kofer only because of the verse written with regard to Shor, then the Gemara's logic is circular -- had the Torah written only Shor, from which we would have learned through derivation that Adam ha'Mazik is Chayav, then the laws of Adam would have been exactly like the laws of Shor, and Adam would not have been excluded by the verse of "Alav," as TOSFOS RABEINU PERETZ asks. According to Rashi's approach, the Gemara there is following the opinion of Tana d'Vei Chizkiyah, and it is stating that even if the obligations of Adam are derived from Shor, a man who killed would not be Chayav to pay Kofer because of Tana d'Vei Chizkiyah. (See Tosfos there, DH k'Re'i, in the name of the Riva.)

QUESTION: The Gemara explains that Adam ha'Mazik who kills another person does not pay Kofer, because the verse of "Alav" excludes Adam. The Gemara asks whether or not one pays Kofer for a death caused by Regel.

What is the Gemara's question? The Gemara has already taught that we learn from "Alav" that only for a Shor that kills with Keren must one pay Kofer, and not for any other type of damage!

ANSWERS:

(a) The ROSH (2:15) explains that "Alav" is certainly from the obligation of Kofer any damage that is not caused by a person's animal. The Gemara's question is whether "Alav" is meant to exclude even animals that damage in a way other than Keren, or whether it is meant to exclude only non-animal Mazikin, but one does pay Kofer for Shen and Regel just like one pays Kofer for Keren. The Gemara's question applies to Shen as well as Regel (see also Rashi, DH mi'Kal v'Chomer). This is also the intention of Tosfos (DH Regel).

(b) RASHI in a number of places clearly disagrees with the answer of the Rosh. According to the Rosh, Esh and Bor are excluded from the payment of Kofer because of the verse of "Alav." Rashi (10a, DH Mah) writes that Esh is exempt only because of "Kam Lei bid'Rabah Minei." (This follows the view of Rebbi Yochanan, that "Isho Mishum Chitzav," lighting a fire is like shooting an arrow, and a person is Chayav Misah if his fire kills someone (see 22b), as the TOSFOS RABEINU PERETZ and RASHASH (10a) point out. According to this interpretation, it would seem that Reish Lakish -- who maintains that "Isho Mishum Mamono" -- would learn that the Beraisa exempts Esh from Kofer only when the person who was burned was not bound and was able to run away. Since he could have run away but did not, the one who lit the fire is not responsible for killing him; see Rashi 10a, DH Mah).

With regard to Bor, Rashi writes in a number of places (see end of 9b; 28b, DH Shor; 53b, DH Adam) that one is exempt from Kofer when his Bor kills a person only because of the verse that teaches "'Shor'" v'Lo Adam." (This answers the questions of Tosfos 9b, DH Mah, and 10a, DH she'ha'Shor.)

It seems that Rashi learns that the Derashah of "'Alav' v'Lo Al ha'Adam" excludes *only* Adam from paying Kofer; it does not exclude any other Mazik from Kofer. It is clear, therefore, how the Gemara can ask whether one pays Kofer for Regel, since "Alav" certainly is not excluding Regel from Kofer. The question is only whether the obligation of Kofer for Regel can be learned from Keren through a Meh Matzinu.

Why, according to Rashi, is "Alav" excluding only Adam from Kofer? Where does the verse imply that it is excluding Adam and not other Mazikin? Rashi (DH Alav) seems to be addressing this question. Rashi writes that "Alav" teaches that one pays Kofer for Shor, but for Adam one does not pay Kofer, "but rather Misah or Galus." How can Rashi write that one is punished with Misah or Galus instead of Kofer? Rashi earlier explains that "Alav" is needed to teach that Adam does not pay Kofer only when he is *not* Chayav Misah or Galus! Why, then, should Rashi mention here that the verse excludes Adam from Kofer because Adam receives Misah or Galus?

It seems that Rashi understands that "Alav" is teaching that the obligation of Kofer is given only for the type of killing that can never incur any other punishment. Hence, it can be learned from "Alav" that Adam -- whose act of killing *can* incur Misah or Galus -- cannot incur Kofer. However, for Bor and Regel, which do not bear the punishment of Misah or Galus, one can, possibly, be obligated to pay Kofer.

26b