1)MURDERERS WHO ARE NOT EXILED [murder: Shogeg]

(a)GEMARA

1.The goat offered inside on Yom Kipur atone for one who killed b'Mezid without warning, or one who killed b'Shogeg and never realized it, or in a way that is exempt from exile.

2.Makos 7b (Beraisa): "Bi'Shgagah" excludes Mezid. "Bi'Vli Da'as" excludes one who intended.

3.Objection: If he was Mezid, obviously he is not exiled. He is killed!

4.Answer (Rava): It excludes (something close to) Mezid, i.e. Omer Mutar (he thought that murder is permitted).

5.Question (Abaye): Omer Mutar is Ones!

6.Answer (Rava): I say that it is close to Mezid.

7.(Beraisa): "B'Lo Eivah" excludes if he hated the victim;

8.Bava Kama 32b (Beraisa): If Ploni entered Reuven's carpentry shop without permission, and a piece of wood flew off and killed him, Reuven is exempt. If Ploni had permission to enter, Reuven is liable.

9.Version #1 (R. Yosi bar Chanina): He is liable to pay damage (if Ploni was hurt), but exempt from exile (if he died), for this is unlike a forest, in which, each enters his own domain. Here, the victim entered Reuven's domain.

10.(Rava): In a forest, (Ploni did not ask permission, yet) Reuven is exiled. Here he had explicit permission, all the more so Reuven should be exiled! Rather, Reuven is exempt, i.e. he does not merit exile, for he is close to Mezid.

11.Question (Mishnah): If Reuven threw a stone to a Reshus ha'Rabim and killed someone, he is exiled.

i.This is close to Mezid, for many go in a Reshus ha'Rabim!

12.Answer (Rav Shmuel bar Yitzchak): The case is, Reuven was destroying his wall during the day into a waste-heap.

13.Question: If people frequent it (to use it for a privy), he is (close to) Mezid! If people don't frequent it, he is (close to) Ones!

14.Answer (Rav Papa): People often frequent it at night. Occasionally they frequent it by day.

15.Version #2 (R. Yosi bar Chanina): In the Reisha of the Beraisa he is exempt from exile, but is liable to pay for damages.

16.Question (Beraisa): If a man entered a smith's shop, and a spark flew off and killed him, the smith is exempt, even if the victim entered with permission.

17.Answer: This Beraisa discusses an apprentice. The teacher asked him to leave, and he refused. Others do not fear the smith, so he should check that they left. An apprentice fears the smith, so he could assume that he left.

18.Version #3 (Beraisa): "And it found" excludes a victim who brought himself to be damaged;

19.R. Eliezer ben Yakov says, this teaches that if Reuven threw a stone, and Shimon stuck out his head and was killed, Reuven is exempt.

20.(R. Yosi bar Chanina): He is exempt from exile, but he pays damages.

(b)RISHONIM

1.Rambam (Hilchos Rotze'ach 4:8): If one killed in front of two witnesses, but they did not see together, rather, one after the other, or he killed in front of witnesses without warning, we confine the murderer in Kipah (a cell) and feed him sparse bread and water to construct is stomach, and later we feed him barley to burst his stomach.

2.Rambam (6:5): If one was close to Mezid, (he does not go to Galus). He guards himself from the Go'el ha'Dam. The same applies to murderers who killed in front of one witness, without warning, or similar cases. If the Go'el ha'Dam killed him, he is not killed. These cases are no more severe than one who killed without intent.

i.Rebuttal (Ra'avad): How is one witness believed to permit his blood to the Go'el ha'Dam?!

ii.Defense (Kesef Mishneh): The Rambam does not mean one witness, rather, Edus Meyuchedes, i.e. the witnesses testified on different days, or saw the murder one after the other, like the Rambam wrote about Kipah (4:8). Perhaps 'similar cases' alludes to when the witnesses contradicted each other about matters not essential to the testimony.

iii.Moreh ha'Nevuchim (3:40): One who owns the land where a murdered body was found will strive to find a witness, even a woman, to testify, lest they bring Eglah Arufah (behead a calf to atone for the murder), which would forbid him to farm the area. A king may kill the murderer based on estimation (e.g. one witness, if it seems true). If the king does not kill him, the Go'el ha'Dam will scheme to kill him.

iv.Radvaz (5:213): It seems to me our text of the Rambam is mistaken. Rather, he discusses only when the witnesses did not see at the same time, like he says in 4:8. There, he says that we put the murderer in Kipah. Here, he teaches that if the murderer escaped and the Go'el ha'Dam killed him, he is not liable. In any case we must say so to explain why above he says that one who killed in front of witnesses without warning gets Kipah, and here he says that the Go'el ha'Dam is exempt for killing him.

3.Rambam (Hilchos Malachim 3:10): If there is not a clear proof that Ploni killed, or he killed without warning, even in front of one witness, or if Ploni killed b'Shogeg one whom he hates, the king can kill Ploni according to the needs of the time.

4.Hilchos Rotze'ach (6:6): If Reuven threw a rock into Reshus ha'Rabim and killed, or he destroyed his wall into Reshus ha'Rabim and a rock fell and killed, whether this was during the day or at night, he is close to Mezid and he is not exiled. This is negligence. He should have looked before throwing or destroying.

5.Rambam (7): If he destroyed his wall into a waste area at night, if people are often found there, he is close to Mezid, and he is not exiled. If people are (almost) never found there, he is close to Ones and exempt from exile.

i.Tosfos (Bava Kama 32b DH Mesivei): In Makos 7b, Rava exempts Omer Mutar, for he is close to Mezid. Why didn't the Gemara challenge him from the Mishnah of one who threw a stone to a Reshus ha'Rabim. He is exiled, even though he is close to Mezid! This is because there is different (it is closer to Mezid). The Sugya in Makos 8a is like Version #1 here.

ii.Lechem Mishneh (Hilchos Chovel u'Mazik 1:17): The Rambam rules like Version #2, in which one is exempt if the victim entered without permission, but he is liable if he entered with permission. If so, the Halachah does not follow the discussion in Version #1. We explain the Mishnah simply. Close to Mezid does not exempt from exile! Why did the Rambam rule like Version #1 regarding destroying a wall? He cannot rely on Makos 8a, for it is like Version #1! The Rambam holds that since it was taught Stam in Makos, it is the Halachah, and it is (even) like Version #2. The Mishnah of throwing a stone to a Reshus ha'Rabim must discuss destroying a wall. The Rambam does not distinguish different kinds of close to Mezid. However, according to Version #2, we must say that the Beraisa discusses an apprentice. Why did the Rambam omit this?

6.Rambam (8): If people often use it for a privy at night, but during the day they do so only occasionally, and one happened to use it during the day, and a rock fell and killed him when Reuven destroyed his wall, Reuven is not exiled. If after the rock fell, the victim sat and it hit him and he died, Reuven is exempt from exile.

i.Kesef Mishneh: It is know that the Halachah always follows R. Eliezer ben Yakov. The Rambam discusses when the rock fell from the wall before Reuven sat.