QUESTION: Abaye and Rav Chisda disagree with Rava about the law in the case of a person who thinks he is allowed to do something which is actually forbidden ("Omer Mutar"). Is such a person comparable to one who sins due to circumstances beyond his control ("Ones"), or is he more similar to one who sins knowingly and intentionally ("Karov l'Mezid")? Rava attempts to prove that one who is "Omer Mutar" is considered Karov l'Mezid from the Torah's narrative of Avimelech's argument with Hash-m. When Avraham and Sarah traveled to the land of the Plishtim, Avimelech, the king of the Plishtim, took Sarah away from Avraham unaware that she was already married. Hash-m spoke to Avimelech in a dream and told him that he would die because of his sin. Rava derives from here that although Avimelech was "Omer Mutar" and thought that what he was doing was permitted, he was punishable by law of the courts. Rav Chisda replies that Hash-m told Avimelech only that he was punishable by Shamayim, but not that he was punishable bi'Yedei Adam, at the hands of the earthly courts, and thus there is no proof from Avimelech that "Omer Mutar" is considered Karov l'Mezid.

What is Rava's proof from Avimelech in the first place? Hash-m spoke to Avimelech in a dream before Avimelech committed any sin with Sarah (Bereishis 20:3-4)! The verse implies that Hash-m warned Avimelech that he would be killed if he touched Sarah. That punishment obviously would have been in the hands of the earthly courts, because if he would have gone ahead and sinned after Hash-m's warning, he would have been aware of Sarah's status and he would have been sinning knowingly and intentionally. How, then, is that a case of "Omer Mutar"?

(a) The ARUCH LA'NER, MINCHAS BIKURIM, and others answer that Rava understands the verses as follows. Hash-m was informing Avimelech of the great kindness that He did for him by preventing him from touching Sarah. Hash-m was telling Avimelech that had he sinned with Sarah under the assumption that she was not married, he would have been Chayav Misah at the hands of the earthly courts, because "Omer Mutar" is Karov l'Mezid. Hash-m prevented Avimelech from sinning with her, and thus He prevented Avimelech from being Chayav Misah for "Omer Mutar."

One may ask a different question, though. Why was Avimelech considered clean of any sin? He should have been Chayav Misah for stealing (kidnapping) Sarah, despite the fact that it was an act of "Omer Mutar"! According to many commentaries, Shechem was Chayav Misah because he stole Dinah, the daughter of Yakov (and a Nochri is Chayav Misah for transgressing any of the seven Mitzvos of Bnei Noach, such as stealing). According to Rava, why was Avimelech not Chayav Misah for his "Omer Mutar" transgression of stealing?

The OR HA'CHAIM (Bereishis 20:5) and Aruch la'Ner answer that as long as Avimelech was taking Sarah to be his wife under the assumption that she was not married, he was not considered "Omer Mutar" and was not transgressing any prohibition of stealing at all. The Or ha'Chaim explains that Avimelech thought that he was bestowing great honor upon Sarah's family by taking her as his wife. Therefore, his act cannot be considered an act of stealing even in an "Omer Mutar" manner. However, after Hash-m informed Avimelech that Sarah was married, he would have been guilty of stealing had he not returned her to Avraham immediately.

The SI'ACH YITZCHAK similarly writes that one is not considered "Omer Mutar" when the owner of an object tricks him into believing that he is permitted to take the owner's object. Since Avraham and Sarah both led Avimelech to believe that she was not married, his act cannot be considered stealing.

This answer, however, raises a general difficulty with Avimelech's guilt. How can Rava categorize Avimelech even as an "Omer Mutar"? One who is "Omer Mutar" is Karov l'Mezid, according to Rava, because he should have learned the Halachah and realized that the act was prohibited. How does this apply to Avimelech? He would not have known that he must avoid the sin even if he would have learned all of the laws pertaining to the prohibition of Eshes Ish, since he thought she was not an Eshes Ish! He certainly should be considered an "Ones," since his sin would have been committed due to circumstances beyond his control! (MINCHAS YEHUDAH and others)

The CHIDUSHEI REFA'EL answers that Avimelech certainly was not innocent. Avraham told the people that Sarah was his sister because he feared that they would kill him if they knew that he was married to Sarah. Since the system of justice in that land dictated that the king was entitled to take any woman whom he desired and to dispose of her husband, Avimelech certainly should have suspected that Avraham was withholding information in order to protect himself. Since this was a reasonable assumption, Avimelech was considered "Omer Mutar" in his act of taking Sarah. Although his action was not entirely intentional, he certainly was not innocent.

Based on this approach, the MIGDANOS NASAN answers an apparent contradiction in the RAMBAM. The Rambam (Hilchos Melachim 10:31) rules like Rava, that "Omer Mutar" is Karov l'Mezid, but he also states that if a Nochri has relations with the wife of another man under the assumption that she is not married, he is not put to death. However, according to Rava, the Nochri should be put to death for such an act, just as Avimelech would have been Chayav Misah for his act of "Omer Mutar" in taking a married woman. Why does the Rambam rule like Rava and, at the same time, rule that a Nochri is not Chayav Misah for taking a married woman whom he thought was not married?

According to the above explanation, the answer is clear. Only when there is reason for the man to have a doubt about the woman's status is he considered "Omer Mutar." In a case of a genuine mistake, the man indeed is innocent, even according to Rava. (Y. MONTROSE)

QUESTION: The Mishnah and Gemara discuss the Arei Miklat, the cities of refuge for people who killed accidentally. There were three Arei Miklat in Ever ha'Yarden and three in the rest of Eretz Yisrael. The Gemara asks why did Ever ha'Yarden (where only two tribes lived) have the same number of Arei Miklat as all of Eretz Yisrael (where ten tribes lived)? Abaye answers that in Gil'ad, which was in Ever ha'Yarden, there were many murderers, and therefore there was a need for more cities of refuge.

What does Abaye mean? He cannot mean that there were more accidental murderers in Gil'ad, because accidents are seemingly subject to random occurrences, and thus there should not be any more accidents in one area than in another. If he means that there were more intentional murderers in Ever ha'Yarden, then what difference does that make to the number of Arei Miklat? The Arei Miklat are exclusively for accidental murderers!

(a) The RAMBAN answers that since the people in Gil'ad were adept at murdering, they would often kill in a way that appeared to be accidental in order to be free of the death penalty and be able to find refuge in the Arei Miklat. It was not possible to close the Arei Miklat altogether and thereby prevent such murders from occurring, because then the real accidental murderers would have no refuge. Therefore, in order to accommodate all of the killers who sought refuge and to ensure that the ones deserving of refuge were able to get protection, it was necessary to have more Arei Miklat.

(b) The MAHARAL (in GUR ARYEH) does not accept this answer. He asserts that it would be better not to have any Arei Miklat and thereby deter murderers from killing than to have many Arei Miklat and allow all murderers who claim to be Shogeg to enter. The Maharal instead prefers the answer of his brother, RAV SINAI of Prague (see below, e:2).

Alternatively, the Maharal answers based on an understanding of the purpose of giving a punishment for an accidental killing. Why is a person given such a harsh punishment, exile to an Ir Miklat, for an accident? It must be that the person was not sufficiently careful to preserve human life. Since, in Ever ha'Yarden, there were many intentional murderers, there certainly was a lack of sensitivity to murder, and, as a result, there were many more accidental killings there than in the rest of Eretz Yisrael.

(c) The TIFERES YISRAEL answers that although the number of accidental killings in Ever ha'Yarden was the same as everywhere else, it was still necessary to have more Arei Miklat there for the following reason. In Ever ha'Yarden, the social order was relatively accustomed to murder. Consequently, a Go'el ha'Dam who wanted to avenge the accidental killing of his relative would be much quicker to act there than in the rest of Eretz Yisrael, because no one would look at him suspiciously if he yielded a weapon and pursued the accidental killer. An accidental killer, therefore, would need quick access to an Ir Miklat, and all accidental killers would rush to get to the Arei Miklat. In contrast, in the rest of Eretz Yisrael, it was not common for murderers to be seen in the open, and thus a Go'el ha'Dam would take much time in planning his avenge, if he attempted to avenge the killing at all. Therefore, the need for Arei Miklat was considerably less.

(d) The MAHARSHA (in his second approach) and others write that Abaye follows the view of Rebbi Yosi ben Yehudah in the Mishnah, who says that originally both intentional killers and accidental killers would be given refuge in the Ir Miklat, and afterwards the intentional killers would be taken from there to be judged. Therefore, because of the large number of intentional killers in Ever ha'Yarden who would also enter the Arei Miklat, it was necessary to have additional Arei Miklat.

(e) TOSFOS explains that many Arei Miklat were needed in Ever ha'Yarden because of Hash-m's way of bringing justice to killers as described later (10b). The Gemara says that if one person killed accidentally but without witnesses (and thus he cannot be sent to an Ir Miklat), and another person killed intentionally but without witnesses (and thus he cannot be put to death by Beis Din), Hash-m would cause them to go to the same place, and the person who killed accidentally would fall off of a ladder in front of witnesses, and land on -- and kill -- the person who killed intentionally. Each person would then receive the punishment he deserves. The intentional killer would receive his punishment of death, and the accidental killer would be sent to Galus. Gil'ad, in Ever ha'Yarden, apparently was the place where Hash-m caused these murderers to meet each other.

What does Tosfos mean to say? Although Ever ha'Yarden has many intentional killers, there still are not more accidental killers there, as accidents are subject to random occurrence, as mentioned above. Why, then, was there a need for more Arei Miklat in Ever ha'Yarden?

1. Perhaps Tosfos understands the concept of Galus for an accidental murderer as RASHI understands it. Rashi later (10a, DH Talmid Chacham) writes that a teacher should not accept a student who is unfit, because, due to that student's sinfulness, he might come to kill by accident and be sent to Galus. What does one's sinfulness have to do with an accident? The answer is that only a person who is deserving of punishment for his many other sins meets the fate of Galus for killing accidentally. Therefore, since there were many more intentional killers and Resha'im in Ever ha'Yarden than in other places, there were also many more people who killed accidentally through Divine providence, and thus more Arei Miklat were necessary.

2. The MAHARSHA explains the intention of Tosfos as follows. Tosfos relies on the teaching of the Gemara later (on 10b), that Hash-m punishes a person who deserves death bi'Yedei Shamayim (death at the hands of Hash-m) by having another person kill him accidentally. Since there were so many intentional murderers in Ever ha'Yarden who killed without witnesses, it was necessary for Hash-m to cause there to be many more accidental killers in order to bring justice to the intentional ones.

3. The MAHARAL (in GUR ARYEH) quotes his brother, RAV SINAI of Prague, and praises his answer. Rav Sinai explains that in Eretz Yisrael there are many accidental killers (who killed without witnesses) who are not able to receive their punishment of Galus by being caused to kill accidentally an intentional killer. This is because there are not always intentional killers available to kill. Hence, in Eretz Yisrael, many of the accidental killers are not able to go to Galus. In contrast, in Ever ha'Yarden there are many intentional killers, and thus all of the people who kill accidentally without witnesses are caused to kill an intentional murderer. This results in more accidental killers going to Galus in Ever ha'Yarden than in Eretz Yisrael.

4. The MAHARAM explains that according to Tosfos, Hash-m brings all of the accidental killers from all over Eretz Yisrael to Ever ha'Yarden, and there each one kills accidentally (with witnesses) one of the many intentional murderers in Ever ha'Yarden. Abaye means that since there are many intentional killers in Ever ha'Yarden, it is necessary for Hash-m to bring to there many accidental killers from the rest of Eretz Yisrael in order for each to receive his proper punishment.

Why, though, does Hash-m not send instead the intentional killers to the accidental ones? The SHA'AGAS ARYEH answers that indeed He does! Hash-m divides the number of these "accidents" evenly between Eretz Yisrael and Ever ha'Yarden. Many accidental killers end up going to Ever ha'Yarden, and many intentional killers end up going to Eretz Yisrael. In each place, the intentional killers are killed by accident, with witnesses, by the accidental killers, and thus the same number of Arei Miklat is needed in each place!