1) INDIRECT MURDER

OPINIONS: Rava rules that when a person ties someone down with rope and leaves him in front of a lion that subsequently kills him, the person is not sentenced to death by Beis Din as a murderer. (Rather, Hash-m will deal with him appropriately.) The RAMBAM (Hilchos Rotze'ach 3:10) states that such a person "is a murderer and the One who avenges blood will seek it from him." Nevertheless, what is the reasoning behind Rava's ruling? Why is this man not liable as a full-fledged murderer for his act?

(a) RASHI explains that the perpetrator was not fully responsible for the death of his victim. Even if the victim had not been tied up, he would not have been able to save himself from the lion. Since he would have died anyway, the one who tied him up is not considered to have committed an act of murder.

Rashi's explanation implies that if the victim would have been able to escape had he not been tied up, then the one who tied him would be guilty of murder.

The YAD RAMAH asks that Rava's own ruling in the previous line of the Gemara contradicts his present ruling. Rava discusses a person who ties someone down at a time, and in place, where the sun is not yet shining, knowing that when the sun rises its heat will kill the person who is tied there. Rava rules that the perpetrator cannot be executed by Beis Din, because at the time of his act there was nothing deadly about his act. The victim's death did not occur until much later, as a result of the sun's heat. According to Rashi's explanation, however, what difference is there between the case involving the lion and the case involving the sun?

(b) The YAD RAMAH therefore explains that Beis Din can execute a person for murder only when that person personally places the lethal force upon the victim when the victim has no means of escape. When it was a lion, or the sun, that killed the victim, the perpetrator cannot be executed by Beis Din for murder.

This seems to be the way the Acharonim understand the Rambam. The Rambam (ibid.) records the other ruling of Rava, in which Rava states that a person who overturns a barrel onto another person and causes him to suffocate to death is not punishable by Beis Din. However, the Rambam also rules that if a person builds a structure around someone else which prevents oxygen from reaching him and he dies as a result, he is considered a murderer and can be executed by Beis Din. The KESEF MISHNEH asks that these two rulings clearly seem to contradict each other. The Kesef Mishneh answers that when a person builds such a structure, even before the last brick is placed there is very little air left. Sealing off the last bit actively creates the lethal atmosphere which will kill the person trapped inside. In contrast, the moment after a barrel is placed over a person, there is still decent air inside which only gradually turns virulent. This is not a direct act of murder and therefore Beis Din cannot punish the perpetrator.

(c) Alternatively, the Yad Ramah explains that a lion is not always hungry and will not always eat. Hence, when a person ties someone up and places him in front of a lion, there is no certainty that the lion will touch the victim. The same applies to a dog or a snake; if someone forces his dog or snake to attack a helpless person, it is not definite that the animal will attack, and thus the perpetrator is not liable for murder if the animal does kill. Rava would agree that if a person forcibly places someone in an area where there are deadly mosquitoes, and he is bitten to death by the mosquitoes, the perpetrator is Chayav Misah as a murderer.

According to this explanation, the perpetrator is Chayav because mosquitoes are always hungry. Moreover, the RAN explains, if someone would see that the lion is ready to attack the person and is going to eat him, he is considered a murderer for tying him up and having him killed. This apparently would also be true if someone starves a lion before he ties up his victim. (Y. MONTROSE)

77b----------------------------------------77b

2) THROWING A BALL AT SOMEONE WITH MURDEROUS INTENT

OPINIONS: Rava says that when a person throws a rock at a wall, and the rock bounces off the wall and kills someone, the perpetrator is guilty of murder. The Gemara cites two teachings which reflect this ruling. Both teachings involve throwing a ball against a wall to make it bounce off in the manner of a game that children play. RASHI explains that one person hurls the ball with as much force as he can so that it bounces off the wall and flies as far as possible. The second person runs after the ball to retrieve it, and the thrower runs away from the person retrieving the ball, who must then try to hit the thrower with the ball. It appears from Rashi that the rules of the game limit the movement of the players once the ball has been retrieved. The thrower must stop running away, and the retriever may not move from his place, but rather he must try to hit the thrower with the ball from where he is standing. This is why the thrower wants the ball to go as far away as possible, so that he will be farther away from his opponent's throw. (See ARUCH LA'NER.)

The first teaching cited by the Gemara ("Tana Tuna") explains that when the person who threw the ball against the wall intended to kill the other player by the force of the ricochet, he is guilty of murder. If the thrower did not intend to kill his opponent (but he killed him by accident), he must go to an Ir Miklat (Galus) like any other person who kills unintentionally. According to this teaching, one who can aim his ricochet with precision is considered the same as one who throws a lethal object directly at his victim.

The second teaching cited by the Gemara ("Tani Rav Tachlifa bar Ma'arava") states that when the victim was within four Amos of the wall when he was killed, the thrower is *not* guilty. When the victim was farther than four Amos from the wall, the thrower is guilty. To what does this teaching refer -- to one who killed on purpose (and might be guilty of murder) or to one who killed by accident (and might be Chayav Galus)?

(a) Rashi cites an explanation that says that this teaching refers to a thrower who is guilty of *intentional* murder.

(b) TOSFOS, however, strongly rejects this explanation. He asks that if the thrower was warned not to kill his opponent, and the thrower exclaimed that he will proceed to do so despite the consequences that he will face, then what difference does it make whether the victim was within four Amos or not? The thrower is a murderer!

Tosfos therefore concurs with the first explanation that Rashi gives. He explains that this Gemara is similar to the Gemara in Bava Kama (26b) which states that if a person intended to throw an object two Amos and it traveled four Amos (or vice versa) and the object killed someone, the thrower is *not* Chayav Galus. Similarly, in the case of the Gemara here, it is assumed that the thrower wanted the ball to go farther than four Amos from the wall, since that is normally how the game is played. Therefore, if the ball fell within four Amos and killed someone, then the thrower does not go to Galus because he did not accomplish the act that he intended to do.

Tosfos questions the ruling of the Gemara in Bava Kama. The Gemara there derives its ruling from a verse in Shemos (21:13). The Gemara in Makos (7b) learns from a similar verse in Bamidbar (35:22) that one who planned to throw an object to one side but accidentally threw it to a different side and thereby killed someone with the object does *not* go to Galus. The rule in the case in Makos is more obvious than the rule in Bava Kama, because in the case in Makos the thrower had no intention whatsoever that the object should be thrown in the direction of the victim. Why, then, does the Gemara not learn this more basic exception from the earlier verse in Shemos? It should use the first verse to teach the more basic exception, and then use the second verse to teach the less obvious exception!

Tosfos points out that there is another explanation of the Gemara in Bava Kama, cited by Rashi there, that states that the Gemara means that the thrower *does* go to Galus, and the Gemara there is excluding the thrower only from having the status of an intentional killer (and the Gemara is teaching that he is not considered like one who throws an object to the wrong side; see MAHARSHA). This is also the ruling of RABEINU TAM. Tosfos says that if one accepts this opinion, then he indeed must learn that the Gemara here deals with intentional killing, because one who killed unintentionally in the manner described by the Gemara (i.e. by throwing the ball *less* than four Amos and killing the victim) *would* go to Galus.

According to this approach (which is how Rabeinu Tam learns the Gemara here), what is the answer to Tosfos' question that this person should be considered a murderer whether the ball struck the victim inside or outside of four Amos?

The RAN, who agrees with the explanation of Rabeinu Tam, answers this question. He asks that if Tosfos is correct, then the question of Tosfos can be asked on the Mishnah later (78b) as well. The Mishnah says that when a person intended to kill an animal and instead killed a man (and he had been warned not to kill the man), he is exempt from the punishment of Misah since he had no intention to kill the man. How can it be that he had no intention to kill the man if he received Hasra'ah not to kill the man, and he accepted the Hasra'ah?

The Ran explains that it must be that in both the case of the Mishnah later (78b) and the case of the Gemara here, witnesses warned a person not to throw an object in a certain manner since it might kill a person standing there if it goes out of control, and the thrower said that he was going to throw it anyway. In the case of the Gemara here, the witnesses told the thrower, "Do not to try to make the ball bounce off the wall, even though you intend that it bounce more than four Amos away from the wall, because there is a person standing within four Amos who might be killed if your aim is off." The thrower said that he was going to throw the ball anyway. Nevertheless, he is not a murderer, because it is known that the nature of the game is to make the ball bounce farther, and thus he did not intend for the ball to bounce within four Amos. The same reasoning applies in the case of the person who intended to kill an animal but killed a person instead. This also seems to be the intention of Rashi (on 78b).

The ARUCH LA'NER gives another answer for this opinion. Since it is normal to make the ball bounce more than four Amos from the wall, and the ball will kill only if it falls less than four Amos from the wall, the warning that was given is only a "Hasra'as Safek," a warning given when it is not clear that the action will lead to a punishment in Beis Din. This Gemara follows the opinion that such a Hasra'ah is not considered a valid Hasra'ah. (Y. MONTROSE)

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