1) THE COST OF LIVING IN AN "IR MIKLAT"
OPINIONS: Rebbi Yehudah states in the Mishnah that "they would pay the Leviyim" when they live in the Ir Miklat, since the cities of refuge belong to the Leviyim. Rebbi Meir says that "they would not pay." Who are "they," and for what would they pay?
(a) RASHI explains that the normal residents of the city would pay money to the Leviyim, since the accidental killers who lived there would pay rent to those residents for their living quarters.
(b) TOSFOS disagrees and says that the killers would pay the regular taxes and property taxes to the Leviyim.
The AMTACHAS BINYAMIN presents proofs for each opinion. On one hand, the wording of the Mishnah supports the explanation of Rashi. The Mishnah throughout this chapter always refers to the killer in the singular form (such as "a killer who was exiled to an Ir Miklat..."). Here, however, the Mishnah expresses its statement in the plural form, and thus it is likely referring to another subject other than the killers, namely the *cities*. On the other hand, the wording that they would give payment "to the Leviyim" (i.e., the owners of the cities) instead of to "the owners of the houses" supports the understanding of Tosfos.
The ARUCH LA'NER explains that the argument between Rashi and Tosfos essentially is an argument about whether or not accidental killers must pay rent. Paying rent is a more direct responsibility than having to pay taxes. In the Mishnah, Rebbi Yehudah states only that killers must pay rent. According to Rashi, this implies that they do not have to pay property taxes. According to Tosfos, even Rebbi Meir may agree that killers must pay rent, since the Mishnah discusses only whether or not they have to pay taxes.
The CHIDUSHEI REFA'EL understands Rashi's intention differently. He understands that according to Rebbi Yehudah, the cities around the Ir Miklat would invest in rental properties for killers who would be exiled there. Rebbi Yehudah states that these investors would pay the Leviyim for maintaining these properties, which is an indirect way of saying that the killers paid rent. Obviously, the money from the rentals would go to these investors.
The SI'ACH YITZCHAK asks an interesting question on the explanation of Tosfos. The Gemara in Yoma (12a) says that the houses of Yerushalayim are not able to become Tamei with Tum'as Tzara'as because they do are not really owned by anyone (according to the opinion that Yerushalayim was not divided among the Shevatim). This was demonstrated by the fact that houses were not rented out in Yerushalayim. If the people of Arei Miklat do not have to pay rent, then their houses also should not become Tamei with Tum'as Tzara'as!
The Si'ach Yitzchak answers that this is not a question. Although the houses could not be rented out to killers, they could be rented out to others who came to live there, and thus certainly they could become Tamei. (Y. MONTROSE)
2) THE EFFECTS OF REPENTANCE
QUESTION: Rebbi Akiva states that every prohibition that is punishable with Kares also carries with it the possibility for the punishment of lashes. This does not apply to prohibitions punishable with a death penalty, since those transgressors already receive death as a corporal punishment. Rebbi Akiva explains that this is just and fair, since it is possible that the person who is Chayav Kares might *only* receive Malkus and not an additional punishment of Kares, because he might do Teshuvah and repent before he dies, in which case Hash-m will not give him Kares.
RASHI (DH Rebbi Akiva) explains that Rebbi Akiva means to say that his statement does not contradict the verse which teaches that one cannot be punished with two punishments for one act. Rebbi Akiva's opinion is consistent with that rule, because a person can exempt himself from the punishment of Kares by doing Teshuvah, and thus he receives only Malkus.
However, there is another difficulty with the statement of Rebbi Akiva. Hash-m accepts a person's genuine Teshuvah and absolves him from punishment. Why, then, does Beis Din not do the same? Why does Beis Din punish the penitent with Misah or with Malkus, if Hash-m does not punish such a person? Just as Hash-m forgives the person's obligation of Kares, Beis Din also should absolve the Ba'al Teshuvah from Misah or Malkus.
(a) The NODA B'YEHUDAH (OC 1:35) explains Rebbi Akiva's view based on an understanding of punishment at the hands of Beis Din. Hash-m commanded Beis Din to punish evildoers in order for other people to see the severity of sin. The punishment serves as a strong deterrent for anyone who might aspire to rebel against the Torah or transgress the Mitzvos. The Torah certainly wants the death sentence to be carried out for this reason, because otherwise it would not state so often that these transgressors are killed. Accepting the repentance of a Ba'al Teshuvah and absolving him from punishment would result, practically, in no sinner ever being killed. There would no longer be a deterrent, and people would be lax in their observance of the Mitzvos. Therefore, the Torah does not allow such repentance to absolve the person from punishment at the hands of Beis Din. (For more about the deterrent element of punishment, see Insights to Sanhedrin 89:1.)
(b) The ARUCH HA'SHULCHAN HA'ASID (Sanhedrin 58:2), MA'AYAN HA'CHOCHMAH, and others write that in truth Beis Din *should* absolve a Ba'al Teshuvah from punishment. However, it is not always possible to know who has repented sincerely and who has not. Only Hash-m truly knows the inner thoughts and motivations of a person, and thus only Hash-m, and not Beis Din, can absolve a person of a punishment because of the person's Teshuvah.
(c) The HA'ME'IR LA'OLAM takes a different approach to how one's Teshuvah absolves a person from punishment at the hands of Hash-m. He explains that Teshuvah does not take away the person's death sentence. Rather, it causes a large amount of Divine mercy to accumulate which prevents the person from being punished by Heaven. The person's guilt still remains; it is the overriding factor of Hash-m's mercy that prevents the person from receiving the punishment he deserves. In contrast, when a person must be punished by Beis Din, there is no mercy that is aroused to protect him from Beis Din's punishment.
(d) An approach opposite to that of the Ha'Me'ir la'Olam is suggested by the ARUCH LA'NER and CHEMDAS YISRAEL. The Mishnah earlier (11b) discusses a case in which the Kohen Gadol dies before the accidental killer is sentenced to Galus by Beis Din. In such a case, when does the killer leave the Ir Miklat? The Mishnah teaches that he leaves the Ir Miklat only when the *next* Kohen Gadol dies. The Gemara asks that it was taught earlier that the Kohen Gadol's death is an atonement for the accidental killers, since he should have prayed more to ensure that such calamities not occur to the people of his generation. The second Kohen Gadol, however, was not the Kohen Gadol when this killing occurred. Since he was not responsible for the people at the time of the killing, why is his death an atonement for the killings? Why is he held partially responsible for the killings, if there was nothing he could have done to prevent them? The Gemara answers that he should have prayed -- when he was appointed as the Kohen Gadol -- that this accidental killer be found innocent.
The Aruch la'Ner and Chemdas Yisrael explain that this means that the Kohen Gadol should have asked for Heavenly mercy that Hash-m forgive the killer's sin. If Hash-m would have forgiven the sin, the perpetrator would not have needed to go to Galus in Hash-m's judgment, and thus Hash-m would have swayed the hearts of the judges to declare him innocent as well (since he no longer needed atonement). The court's judgment would not have been in error, but rather it would have been what the person genuinely deserved according to the Divine plan. This implies that one who did complete Teshuvah for a sin he committed would not be found guilty by Beis Din.
According to this explanation, when any person is put to death by Beis Din, it is a sign that that person was not a genuine Ba'al Teshuvah, for had he been a genuine Ba'al Teshuvah Hash-m would have caused his punishment to be diverted. (Indeed, it is rare that a person is so righteous as to be absolved from punishment in such a manner. In order for a person to receive a punishment of death at the hands of Beis Din, he must be warned before he does the act and he must accept the warning by saying that he wants to do the act and that he knows that he will be punished by death for doing it. It is rare that such a person would rise to such a level that he could do complete Teshuvah.) (Y. MONTROSE)