- A burglar who enters a house במחתרת may be killed because he is prepared to kill the homeowner
The next Mishnah states: הבא במחתרת נידון על שם סופו – [A burglar] who enters someone’s home is judged based on his ultimate end and may be killed. This is based on the passuk which says about such a burglar, "אין לו דמים" – he has no blood, i.e., he is like a dead man and may be killed.
Rava explains this law: חזקה אין אדם מעמיד עצמו על ממונו – there is an established presumption that a person does not hold himself back from protecting his property, so the burglar, who takes this into account, must have decided that if the homeowner will confront him, he will kill the homeowner. Since he threatens the owner’s life, we apply the rule: אם בא להורגך השכם להורגו – if one comes to kill you, preempt him and kill him first.
- A burglar’s exemption from paying damages, and machlokes if he must return stolen goods
The Mishnah stated that if the burglar broke a barrel while he was breaking in, then אם אין לו דמים פטור – if he “has no blood,” (i.e., he is an ordinary burglar who may be killed), he is exempt from paying the damages. Since he may be killed, he cannot also be liable for damages during that time, because we say קם ליה בדרבה מיניה – he is only subject to the greater [punishment]. Rav said that one who tunneled into someone’s house and stole utensils is exempt from returning them, even if they are still extant, because בדמים קננהו – he has acquired them with his blood. Rava explains Rav’s reasoning: a burglar who cannot be killed (e.g., if the burglar is his father) is responsible for the stolen items, even if they were lost through an אונס, which proves ברשותיה קיימי – they are in [the burglar’s] possession. Thus, they become the burglar’s property, and since here, he could have been killed, he could not become liable in any monetary obligation, even to simply return them. Rava himself disagreed, and says the stolen goods are only in the burglar’s possession regarding responsibility for their loss, but not to acquire them (this is similar to a borrower, who is responsible for all mishaps, although the item is not his).
- A קטן who is a רודף may be killed, and killing a baby during childbirth to save the mother
Rav Huna says: קטן הרודף – a minor who is chasing someone to kill him, ניתן להצילו בנפשו – [the victim] may be saved with [the pursuer’s] life, i.e., he may be killed. Rav Huna holds that a רודף can be killed without התראה, so the law applies equally to a קטן. Rav Chisda challenged Rav Huna from a Mishnah which states that although before a baby is born, it can be killed to save the mother’s life (because an unborn child is not a full-fledged life), יצא ראשו אין נוגעין בו – after its head came out of the mother, we cannot touch (i.e., kill) it to save the mother, לפי שאין דוחין נפש מפני נפש – because we do not push away one life to save another life. But according to Rav Huna, the baby should be a רודף, since it threatens the mother’s life, and may be killed!? The Gemara answers that that case is different, דמשמיא קא רדפי לה – because it is from Heaven that [the mother] is being pursued (the baby is not actively “pursuing” the mother; the danger is happening on its own). The Gemara below concludes that there may be a Tanna who requires התראה for a רודף.
