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1) WHAT IS BEST FOR "RESHA'IM" AND "TZADIKIM" (cont.)

(a) (Gemara - Beraisa - R. Yosi ha'Galili): Surely, he is not stoned for (stealing and) eating a Tartimar of meat and drinking half a log of Italki wine!

1. Rather, the Torah sees the future of a Ben Sorer u'Moreh - after he finishes his parents' money, and cannot eat as he is accustomed to, he will become a robber;
2. It is better for him to die before he sins even more.

(b) Death of Resha'im is good for them (for this reason), it is good for the world;

1. It is bad for Tzadikim, it is bad for the world.

(c) Resha'im enjoy sleep and wine, and this is good for the world;

1. It is bad for Tzadikim, this is bad for the world.

(d) Serenity of Resha'im is bad for them, it is bad for the world;

1. It is good for Tzadikim, it is good for the world.

(e) When Resha'im are scattered this is good for them, it is good for the world;

1. It is bad for Tzadikim, it is bad for the world.

(a) (Mishnah): A Ba b'Machteres (a thief tunneling into a house) is judged (i.e. one may kill him) on account of what he plans to do (this will be explained).
(b) If a Ba b'Machteres broke a barrel:

1. If he has blood (he may not be killed), he is liable; 2. If he has no blood (he may be killed), he is exempt.

(c) (Gemara - Rava) Question: Why may one kill a Ba b'Machteres?
(d) Answer (Rava): There is a Chazakah (of human nature) - a person does not restrain himself when someone takes his money;

1. The thief anticipates that the Ba'al ha'Bayis will oppose him (Rashi; Ramah - and try to kill him), therefore the thief plans to kill the Ba'al ha'Bayis;
2. The Torah says, if someone seeks to kill you, you should kill him.

(e) (Rav): If a Ba b'Machteres took vessels and left, he keeps them.
(f) Question: What is the reason?
(g) Answer: He acquired them with his blood. (A thief gets a Kinyan in what he steals, but he is (normally) obligated to return it. Since the life of a Ba b'Machteres is Hefker, the Torah does not impose any monetary obligations on him at the time, i.e. he need not return the theft.)
(h) (Rava): We understand why Rav exempts the thief for breaking vessels, for they are not here to be returned;

1. But if he took, surely, they should be returned!
2. However, I swear, Rav said, even if he took them he keeps them!
3. Rav reasons, if he has blood and took vessels, he is liable if they broke, even through Ones - this shows that they are his (just he must return them.
Similarly, if he has no blood they are his, and he need not return them.) 4. This is wrong - he merely has responsibility to pay for Onesim, like a borrower, but the Ba'al ha'Bayis owns them!

(i) Question (against Rav - Mishnah): If a Ba b'Machteres broke a barrel - if he has blood, he is liable; if not, he is exempt.

1. Inference: When he has no blood he is exempt because he broke it - if he took it, he would be liable to return it!

(j) Answer: No, the same applies if he took it - the Mishnah discusses breaking to teach that when he has blood he is liable even for breaking.
(k) Objection: This is obvious, he damaged it!
(l) Answer: The Mishnah teaches, even if he broke it accidentally.
(m) Question: We already learn from another Mishnah that man is always Mu'ad (liable for all damage he does)!

1. (Mishnah): Man is always Mu'ad, whether he damaged unintentionally or intentionally, willingly or unwillingly.

(n) This is left difficult.
(o) Question (against Rav - Rav Bivi bar Abaye - Beraisa): If one steals a wallet on Shabbos, he must pay - he is liable for stealing (from the moment he picked it up) before he is liable for desecrating Shabbos (when he comes to the Reshus ha'Rabim (public domain);

1. If he was dragging it out, he need not pay, the liabilities come at the same time (when he gets to Reshus ha'Rabim).

(p) Answer: The case is, he threw it in the river.
(q) Thieves tunneled into Rava's property and stole rams; they wanted to return them, Rava would not accept them, in deference to Rav's opinion that they are exempt (they only wanted to return them because they thought that Beis Din would force them to do so).

(a) (Beraisa #1) Question: "Ein Lo Damim Im Zorchah ha'Shemesh Alav" - does the sun shine only on the thief?!
(b) Answer: Rather, this teaches that if it is as clear to you as the sun that he is ready to kill you, kill him; if not, do not.
(c) Contradiction (Beraisa #2) Question: "Im Zorchah ha'Shemesh Alav Damim Lo" - does the sun shine only on the thief?!
(d) Answer: Rather, this teaches that if it is as clear to you as the sun that he will not kill you, do not kill him; if not, kill him.

1. According to Beraisa #1, if it is unclear, one does not kill - Beraisa #2 says that one should kill in this case!

(e) Answer: Beraisa #1 is when a father tunnels into his son's house (a man loves his son so much, we assume that he would never kill him); Beraisa #2 is when a man steals from his father (and all the more so, from a different relative or a stranger - the love is not so strong, we assume that he is ready to kill him).
(f) (Rav): I would kill anyone tunneling in against me, except for Rav Chanina bar Shila.
(g) Question: What is the reason?

1. Suggestion: He is a great Tzadik (he would never kill).
2. Rejection: If he is tunneling, he is no longer a Tzadik!

(h) Answer: He loves Rav as much as a father loves his son.
(i) (Beraisa): "Damim Lo" - both on a weekday and on Shabbos; "Ein Lo Damim" - both on a weekday and on Shabbos.
(j) Question: We understand the latter clause - one might have thought, killing the thief is like Misas Beis Din, we do not kill on Shabbos - the Beraisa teaches, this is not so.

1. But what does the first clause teach - if one may not kill on a weekday, all the more so on Shabbos!

(k) Answer (Rav Sheshes): It teaches that if the ground caved in on him we unearth him to save him, even on Shabbos.
(l) (Beraisa): "V'Hukah" - anyone may kill him; "Va'Mes" - he may be killed in any way.
(m) Question: We understand the first part - one might have thought, only the Ba'al ha'Bayis is allowed to kill him, for he knows himself, that he will fight to keep his property (and the thief will try to kill him), but anyone else may not (perhaps the Ba'al ha'Bayis will not confront him, the thief will not seek to kill him);

1. The verse teaches, the thief is a Rodef (he is prepared to kill), anyone may kill him.
2. But why must it teach that he may be killed in any way - we already know this from Rotze'ach!

i. (Beraisa) Question: "Mos Yumas ha'Makeh Rotze'ach Hu" - one might have thought, we can only give the Misah he deserves - what is the source to kill him any other way if we cannot give the proper Misah?
ii. Answer: "Mos Yumas ha'Makeh" (the verb is doubled to teach this).

(n) Answer: Rotze'ach is an exception, it was expounded from the verse.
(o) Question: We should learn from it (that if we cannot give the proper Misah, we kill any way we can)!
(p) Answer: Rotze'ach and Go'el ha'Dam are two verses teaching this principle; one of them could have been learned from the other, therefore they do not teach about other cases.

(a) (Beraisa #1) Question: "Machteres" - one might have thought, he may be killed only if he tunnels in;

1. What is the source to kill him if he enters through the roof, Chatzer or Karfef (enclosed field)?
2. Answer: "Yimatzei ha'Ganav" - in any case.
3. Question: If so, why does the Torah mention Machteres?
4. Answer: The Beraisa discusses the usual case , most thieves come through the Machteres.

(b) (Beraisa #2) Question: "Machteres" - one might have thought, he may be killed only if he tunnels in;

1. What is the source to kill him if he enters through the roof, Chatzer or Karfef.
2. Answer: "Yimatzei ha'Ganav" - in any case.
3. Question: If so, why does the Torah mention Machteres?
4. Answer: When he comes through the Machteres, he need not be warned.

(c) (Rav Huna): We kill a minor who is Rodef (even though a minor is not able to accept warning).
(d) Inference: He holds that a Rodef need not be warned whether he is an adult or minor.
(e) Question (Rav Chisda - Mishnah): (If a baby being born is likely to kill the mother, we kill it;) once the head (some texts - majority) leaves the womb (he is like any other person), we do not kill him, we do not kill one person to save another.
(f) Answer: That is different, the baby has no choice, Hash-m is threatening to kill the mother.
(g) Support (Beraisa): Reuven was Rodef Shimon - we tell him, 'You are chasing a Yisrael, he is not an idolater (who may be killed) - it says "Shofech Dam ha'Adam ba'Adam Damo Yishafech" - we save him by killing you'! (The Beraisa does not mention that Reuven must accept the warning!)
(h) Rejection: The Beraisa is R. Yosi b'Rebbi Yehudah, who says that a Chaver need not be warned, for warning is only to distinguish whether one is Shogeg or Mezid (i.e. the transgressor need not accept the warning).
(i) Question (Beraisa): Reuven was Rodef Shimon, Levi told him, 'You are chasing a Yisrael, he is not an idolater - it says "Shofech Dam ha'Adam ba'Adam Damo Yishafech"' - if Reuven said 'I know that', he may not be killed;

1. If he said 'I will kill him, knowing that (I may be killed for this)', he may be killed.

(j) Answer #1: The case is, Levi is on the other side of the river, he cannot save Shimon;

1. The warning is needed for a Sanhedrin to be able to kill Reuven afterwards.

(k) Answer #2: Rav Huna holds like the Tana of Beraisa #2, a thief who digs a Machteres need not be warned.