1) EXECUTING A "BEN SORER U'MOREH" WITH "SEKILAH"
QUESTION: The Gemara teaches that a Ben Sorer u'Moreh is punished because of the natural progression of events to which his present conduct is expected to lead ("Al Shem Sofo"). When a young person conducts himself in such a sinful manner, he is certain to become a "highway robber" in his adulthood. The Torah says that he should die innocent rather than die guilty. Therefore, a Ben Sorer u'Moreh is killed with Sekilah in order to prevent him from degenerating to the state of a highway robber.
The Gemara implies that if the Ben Sorer u'Moreh would not be killed, then he eventually will sin and be Chayav Misah, and, therefore, he should be killed now so that he should die without having sinned. Why, though, would he be Chayav Misah for becoming a robber?
The Gemara apparently means that he will become a robber and eventually kill people in order to steal their money. Why, though, is he Chayav *Sekilah*? Even if he ends up killing people, he will be Chayav *Sayif* for murder, which is a less severe form of death than Sekilah. Why should he be killed with Sekilah, the most severe form of death, if there is no concern that he will do an act later for which he will be Chayav Sekilah? (BA'ALEI HA'TOSFOS to Devarim 21:18)
(a) The YAD RAMAH (here), the TOSFOS HA'ROSH on the Chumash, the CHIZKUNI, and the MIZRACHI answer that as a robber, he probably will also desecrate Shabbos while robbing and he will be Chayav Sekilah as a result. Therefore, Beis Din is justified in killing him with Sekilah.
If he is expected to desecrate Shabbos, then why does the Gemara mention only that he will be a robber and not that he will desecrate Shabbos? The Rishonim (see Yad Ramah) explain that the Gemara (74a) teaches that if a person is about to be Mechalel Shabbos, Beis Din is not permitted to kill him in order to prevent him from sinning. Consequently, if the only fear is that the Ben Sorer u'Moreh will grow up to be Mechalel Shabbos, the Torah would not have prescribed killing him while he is young. However, there is the additional concern that he will kill others. The Halachah (73a) is that if one person is pursuing someone else in order to kill him, then one *is* permitted to kill the Rodef to prevent him from committing the sin. Therefore, the reason the Torah requires that a Ben Sorer u'Moreh be killed is that he eventually will kill others. The reason the Torah gives him the more severe punishment of Sekilah is that since he must be killed anyway, he is given the punishment for one who is Mechalel Shabbos, because will also transgress the sin of Chilul Shabbos.
Such a concept -- of killing a person to prevent him from sinning -- is mentioned by the Gemara later (73a) which says that if a person wants to sin with Arayos, Beis Din is permitted to kill him in order to save him from the sin (see RASHI there).
(b) The DA'AS ZEKENIM and the TOSFOS HA'ROSH (in his second answer) suggest that because the Ben Sorer u'Moreh has rebelled so violently against his parents' wishes, he presumably will also curse his parents (or, as the Da'as Zekenim puts it, his rebellion is tantamount to cursing his parents). The punishment for Mekalel Aviv v'Imo is Sekilah.
(According to this answer as well, the reason why the Gemara mentions that he will become a robber and kill is that the Torah would not prescribe the death penalty for a person to prevent him from cursing his parents alone.)
(c) The KLI CHEMDAH (Ki Setzei #4) suggests that the Ben Sorer u'Moreh -- who is acting counter to the innate nature of a Jew, displaying character traits that are not Jewish ones -- is treated like a Nochri. Regarding a Nochri, the law is that "Azharasan Zo Hi Misasan" (57a), and thus a Nochri is killed even for theft. Similarly, a Ben Sorer u'Moreh is killed merely for stealing from others, because he is treated like a Nochri who is killed for stealing.
The Kli Chemdah points out that the VILNA GA'ON (end of Zera'im) suggests a similar approach to explain why the idolaters of an Ir ha'Nidachas are punished with Sayif and not with the more severe punishment of Sekilah, the punishment normally given to those who serve Avodah Zarah. He writes that since an entire city has fallen prey to idolatry, they are treated like Nochrim, whose punishment for idol worship and any other sin is Sayif and not Sekilah.
If a Ben Sorer u'Moreh is treated like a Nochri, then why is he punished with Sekilah and not Sayif, which is the punishment of a Nochri?
The Kli Chemdah relies on the answer of the Rosh. Since his sins will bring him to curse his parents or to desecrate Shabbos, sins for which a Nochri is not punished at all, he must be punished as a Jew for those sins, and therefore he is given Sekilah.
(d) The MAHARAL (in Gur Aryeh) suggests that Sekilah might indeed be the appropriate punishment for a killer in the case of a Ben Sorer u'Moreh. The reason why the punishment for a murderer is Sayif is that Beis Din pronounces his verdict based on one particular act of killing. (Even if a person was a serial killer, Beis Din may pronounce the verdict only on each killing independently, since the sentencing is for a specific sin.) However, in the case of a Ben Sorer u'Moreh, Beis Din is killing the sinner now in order to prevent him from killing numerous times. For killing numerous times he would deserve a more severe sentence than Sayif, and thus Sekilah is appropriate (even though a person is never Chayav Sekilah post facto for murder).
(e) However, the Maharal continues and says that in truth the question is not a question at all, since the Ben Sorer u'Moreh is not being killed for a specific sin that he will do. Rather, he is being killed as a Rodef, a pursuer who is killed to prevent the death of his victim, since it is assumed that he will eventually try to kill others when he is older if he follows this pattern of behavior. The Halachah is that a Rodef may be killed in any manner possible, and therefore there is nothing wrong with killing a Ben Sorer u'Moreh with Sekilah, even though the sin that he might do (Retzichah, murder) is punishable only with Sayif.
A similar type of punishment is mentioned by the Gemara later (73a). The Gemara there says that when a person is pursuing an Ervah to transgress a sin of Arayos, it is permissible to kill him in any way possible to prevent him from sinning, in order that he not sin and carry his guilt with him to the grave.
The Maharal proves this principle from the fact that the Gemara says that a Ben Sorer u'Moreh should die innocent rather than die guilty. If, as the other Rishonim suggest, dying guilty means being killed by the court because of his sins, and Beis Din thus administers the punishment before the sin itself, then why does the Gemara call this "dying guilty"? When a sinner is killed with Misas Beis Din, he achieves atonement for his sins (44b). Accordingly, he dies *innocent* after he receives the punishment of Misas Beis Din! The Gemara must mean that Beis Din kills him now in order to prevent him from trying to kill in the future and dying as a guilty sinner.
RAV YOSEF ENGEL in BEIS HA'OTZAR (Alef, 56:12) understands that the Maharal means that the Ben Sorer u'Moreh will be killed later as a Rodef by a bystander trying to save the life of the Nirdaf, and such a death will not attain atonement for the Rodef since it is not given as a punishment of Beis Din but as a preventative measure. Since it is not a Misas Beis Din it does not achieve atonement for the Rodef. It is more likely, however, that the Maharal means that if the Ben Sorer u'Moreh is left to sin, he might *not* be caught by Beis Din, and at the end of his life he will die as a guilty person, whether he dies a natural death or not. (Rav Yosef Engel himself suggests that this is the intention of the Gemara here, later in that discussion.)
Rav Yosef Engel asks, how does the Maharal answer his question? Even if the Ben Sorer u'Moreh has the status of a Rodef, why should Beis Din kill him with Sekilah and not with a less severe form of death?
The answer to this question may be learned from the words of the RAMBAN, who explains that the killing of a Ben Sorer u'Moreh is not only to prevent him from sinning, but to teach a lesson to potential sinners and thereby prevent them from following in his evil ways. This is why the Torah says that Beis Din should announce everywhere that this child was killed because he was a Ben Sorer u'Moreh (Devarim 21:21). In order for the death of the Ben Sorer u'Moreh to be most effective as a deterrent, he is killed with the most severe form of death. This will discourage others from following his ways, despite their strong Yetzer ha'Ra that attempts to induce them to sin. The Ramban points out that the death of a Zaken Mamrei is also intended as a deterrent rather than as a punishment for his sin, since his sin in itself did not deserve such a severe punishment. Why, though, according to the Ramban, is a Zaken Mamrei punished with Chenek and not with Sekilah? Perhaps the answer is that the death of a Zaken Mamrei is intended to deter people of a significant stature who consider themselves fit to rule in contradiction to the consensus of the court. For such a person, even the minor deterrent of Chenek is enough, whereas the potential Ben Sorer u'Moreh, whose Yetzer ha'Ra to sin is much stronger, and he is younger and less mature, needs a stronger deterrent.
2) COMPENSATING FOR AN OBJECT STOLEN THROUGH "BA BA'MACHTERES"
QUESTION: Rav and Rava disagree about whether a thief who is "Ba ba'Machteres" is required to return what he stole when the object is still extant ("b'Ein"). Rav rules that he is exempt because he is "Chayav b'Nafsho" -- his act warranted his death, and therefore he is not obligated to pay for what he stole. Why does Rav exempt him even if the object is still extant and able to be returned? Even if he is exempt from payment, that does not make the stolen object belong to him!
The Gemara explains that according to Rav, every stolen object becomes the property of the thief, because he becomes obligated to pay for any Ones that occurs to the object. His obligation to return the object is nothing more than an obligation of payment for what he took.
Rava argues and says that when the object is still able to be returned, it does not belong to the thief, but rather it still belongs to the original owner. It must be returned not as a payment, but as the possession of someone else. The reason why a thief is obligated to pay for the object if it is destroyed through Ones is merely because of the responsibilities that a thief must assume, just as a Sho'el may use someone else's object and he is responsible to pay for any Ones that occurs.
RASHI (DH v'Lo Hi) explains that Rava's argument is that the thief does not own the stolen object, but nevertheless he must pay for damages if the object is lost or destroyed, as is the law with regard to a Shomer. The Torah obligates even a Shomer Chinam to pay for an Ones if he is "Shole'ach Yad" and uses the object without permission.
Why does Rashi mention the case of Shelichus Yad to demonstrate a situation in which a person does not own an object but is responsible for any Ones that occurs? The Gemara itself gives a different example, the case of a Sho'el, which Rashi himself discusses in his following comment. (MAHARSHA)
Moreover, why does the Gemara assume that one who is "Shole'ach Yad" does not make a Kinyan on the object, but that a thief does not make a Kinyan on the object? Perhaps both are Koneh the object when they steal it.
Also, Rashi (DH Aval l'Inyan) writes that when the object is still "b'Ein," the thief must return it because of the requirement of "v'Heshiv Es ha'Gezeilah" (Vayikra 5:23), according to Rava. Rashi should have said that it must be returned because it belongs to someone else, since the thief was not Koneh it! (Indeed, this is what the other Rishonim write.) Why does Rashi need to mention the verse of "v'Heshiv Es ha'Gezeilah"?
ANSWER: Perhaps Rashi does not mean that Shelichus Yad is a proof that a thief can be obligated to pay for an Ones without owning the object. As mentioned above, one who is "Shole'ach Yad" might also own the object which he used, according to Rav. Rather, Rashi is bothered by a question. The Gemara in Bava Kama (67a) teaches that when the verse states, "v'Heshiv Es ha'Gezeilah Asher Gazal," it means "k'Ein she'Gazal" -- the obligation of "v'Heshiv" applies only when the object is still "b'Ein" and there has been no change in the object. However, the Halachah is that even if the object was destroyed through an Ones, the thief still must compensate the owner for the object. This is not evident from the verse itself. What is the source for the law that the thief must return the value of the object even if the object is destroyed through an Ones? (Although the verse states that if the thief no longer has the object, "he is sold [in order to pay] for the stolen object" (Shemos 22:2), that verse does not prove that the thief must pay even when the object was destroyed through an Ones. Perhaps he pays only when he destroyed the object intentionally, or it was lost or destroyed through his negligence.)
Rashi therefore mentions Shelichus Yad as a source for the thief's obligation to pay even when the object is destroyed through an Ones. When Rashi writes later that a thief is obligated to pay for an Ones because "he is no less than a Sho'el" since he benefits from the object and therefore must accept responsibility for Onsin, Rashi is giving a logical reason for why the verse obligates a thief to take responsibility for Onsin even if he is not Koneh the object that he steals. However, from the verse of Shelichus Yad it cannot be proven whether or not the thief is Koneh the object that he steals.
The reason why Rashi cites the verse of "v'Heshiv Es ha'Gezeilah" is that Rashi maintains that this is Rava's source for asserting that the thief is *not* Koneh the stolen object. According to Rashi, who understands that there is a source from Shelichus Yad to obligate the thief for an Ones and not just from the verse of "v'Heshiv Es ha'Gezeilah," one would have learned from Shelichus Yad that the thief is Koneh the object that he stole since the verse obligates him for Onsin. The verse of "v'Heshiv Es ha'Gezeilah" teaches that the thief must return what he stole (if he can) *because* he was not Koneh it. The point of the verse is to negate the opinion of Rav who says that a thief is always Koneh what he steals.
3) WHEN DOES THE LAW OF "BA BA'MACHTERES" NOT APPLY TO A THIEF
QUESTION: The Gemara cites two Beraisos which teach that the verse that permits the homeowner to kill a thief who breaks into his home permits him to kill the thief not only when he enters through a Machteres (digging a tunnel), but even when he enters through the roof or courtyard of the house without the owner seeing him enter. The first Beraisa states that the Halachos of a thief who is found breaking in through a Machteres and a thief who enters through a roof are identical; the Torah mentions specifically one who enters through a Machteres only because it is more common for the thief to be caught entering that way.
According to the view of Rav (72a), a thief who breaks and enters through a Machteres has no monetary obligation to return the objects that he stole even if they are still extant ("b'Ein") and able to be returned, because of the principle of "Kam Lei bid'Rabah Minei." If the Halachah of Machteres applies to all forms of entry, according to Rav when will a thief ever be obligated to pay the double payment ("Kefel") that the Torah requires him to pay (Shemos 22:2-3)?
It is true that the Gemara teaches that when a father enters his son's house through a Machteres, the son is not permitted to kill his father. This is the case to which the verse refers when it says that when the sun shines on the thief, the owner may not kill the thief and the thief must pay for what he stole. However, it does not seem likely that according to Rav the only thief who pays Kefel is a father who steals from his son. There are many Mishnayos that discuss the law of Kefel, and neither the Mishnayos nor the verse which mentions Kefel give any hint that it applies only to a father who breaks into the home of his son.
(a) RASHI (72a, DH ha'Ba), in his explanation of Rav's statement, explains that when Rav says "Ba ba'Machteres," he means that "the thief actually dug into the house." What does Rashi intend to add by saying that the thief actually dug a tunnel and broke into the house? It is obvious that Rav is talking about one who breaks into the house in such a manner, because that is the case of "Ba ba'Machteres"! Also, why does Rashi not make this comment on the Mishnah, where "Ba ba'Machteres" is first mentioned?
Apparently, Rashi is bothered by this question, and the only satisfactory answer that he finds is that Rav disagrees with the first Beraisa which equates one who enters through a Machteres with other forms of entry, and he rules like the second Beraisa that maintains that only a thief who enters through a Machteres may be killed without Hasra'ah (and, consequently, the Halachah of "Kam Lei bid'Rabah Minei" applies to him"). For this reason, Rashi emphasizes that Rav specifically refers to a thief who enters through a Machteres. One who steals by entering in some other way *will* be obligated to pay, as the verse says.
(b) The YAD RAMAH explains the Beraisos here differently from the way Rashi explains them. He writes that even according to the first Beraisa, not all forms of entry are equal. The thief may be killed only when he enters the house without the knowledge of the owner in a way that raises suspicions about his intent. For example, the Gemara in Bava Basra (6b) says that one who enters the courtyard of his neighbor by climbing over his neighbor's fence which is at least ten Tefachim high is "Nitpas Alav k'Ganav" -- he raises suspicions of theft. Such a thief may be killed. If, however, he enters over a fence which is *less* than ten Tefachim high, then the thief may *not* be killed. According to this explanation, the thief whom the Torah obligates to pay Kefel is the one who enters without climbing over a fence that is ten Tefachim high.
(c) Rashi on the Chumash (Shemos 22:2) cites the Targum who writes that if witnesses see the thief and recognize him before the homeowner finds him, the homeowner may not kill him, since a thief who has been identified will be afraid to kill. (See RAMBAN there.)
This is what the verse means when it says that if the sun shines on the thief he may not be killed. According to the Targum, the thief who will be obligated to pay Kefel might be the one who stole after he was seen by witnesses, since he no longer can be killed.
(d) The RA'AVAD (Hilchos Geneivah 9:2) writes that although the Gemara translates the words "if the sun shone on him" metaphorically, nevertheless every verse still can be explained in its literal sense as well. He suggests, therefore, that a thief who steals during the day when the sun is shining upon him may not be killed. The Ra'avad also suggests a logical basis for this distinction. He writes that during the day, homeowners are usually out working, and therefore the thief does not expect to be challenged by the owner and be forced to choose between killing the owner or being killed. It may be assumed that the thief never intended to kill. In contrast, when he comes at night, when people are usually in their homes, the thief is suspected to be a potential killer and thus the Halachah of "Ba ba'Machteres" applies.
The RAMBAM makes a similar distinction between a thief who expects to meet up with the owner and one who does not. The Rambam (Hilchos Geneivah 9:12) writes that a thief may be killed only if he breaks into a house, courtyard, or other area in which people live. However, if the thief is caught in a garden, field, or corral for example, then the thief may not be killed since he did not enter with the expectation that he might meet up with someone whom he would have to kill. (See also CHIDUSHEI HA'RAN here.)
According to the Ra'avad and the Rambam, Rav obligates a thief to pay Kefel either when he steals during the day, or when he steals from a deserted area, since the Halachah of "Ba ba'Machteres" does not apply in those cases, even according to the first Beraisa.