Comentario sobre Exodo 21:12

מכה איש ומת WHOSOEVER SMITETH A MAN SO THAT HE DIE [SHALL SURELY BE PUT TO DEATH] — Many apparently redundant verses have been written in various sections of the Torah dealing with murderers and I shall explain to the best of my ability why all these statements have been made.

מכה איש ומת, He who strikes a man and he dies as result, etc. This means that death need not occur immediately, such as when one slaughters or chokes someone to death. The striker is culpable even if death is delayed but occurs directly as a result of his blow. The only exception to this rule is if the stricken person had recovered sufficiently to be able to stand on his feet and leave his home unassisted (verse 19). The new element in this legislation is that if the striker had struck the victim unintentionally he is not obliged to flee to a city of refuge unless death occurred as an immediate result of the blow (compare Gittin 70). The Talmud states there specifically that if the victim had vital parts such as most of the windpipe and the gullet severed the killer is not consigned to the city of refuge as we consider the possibility that his victim did not die immediately, or contributed to his accelerated death by making a wrong move. Tossaphot comment that this rule applies only in the case of an involuntary killing. They derive this from Numbers 35,23: ויפל עליו וימות, "he cast it upon him whereupon he died." This means that death did not follow immediately. Although a person who has done this intentionally will be considered guilty of murder even if the victim did not die immediately, we distinguish between the laws of confinement to a city of refuge and the laws dealing with murder. This corresponds precisely to what we wrote that our verse deals with someone who attacked someone else intentionally. If the Torah wanted to include unintentional killing it would have had to write הורג איש instead of מכה איש. As it is, even if the attacker set out to kill now but death occurred only several days later, the death penalty applies. Concerning unintentional killing, the Torah speaks of והאלוקים אנה לידו, "and G'd caused it to happen by his hand;" this means that death occurred by means of the hand of the killer himself, not a delayed effect. You will find this confirmed by Maimonides' ruling in chapter five of his Hilchot Rotzeach. Rabbi Shlomo Aderet, who frequently disagrees with Maimonides, disagrees in this instance also. I find his reasoning quite unacceptable. This is not the place to evaluate the finer points of their dispute, however.

מכה איש ומת, “if one strikes a man with fatal results, etc.” According to our sages the conceptual linkage between these apparently unrelated subjects is that when a capital punishment is imposed on someone for a crime normally involving compensatory financial damages, the sinner does not also have to pay financial compensation to his victim. The repetition of the words מות יומת implies that with his judicial death he has paid for all his crimes.

מכה איש ומת מות יומת, “if someone strikes a man and he dies as a result the striker shall be executed.” Having concluded the legislation concerning Jewish servants, a subject conceptually linked to the first commandment on the first Tablet, the Torah returns to the first commandment on the second of the Tablets, the law about murder. Seeing that in the Ten Commandments the prohibition was spelled out without the penalty for transgressing it, the Torah now announces the penalty for murder. The verse speaks of an intentional, at least potentially lethal attack.

Which does not cause death. The Re’m asks: How could [Rashi suggest that] he might be put to death for a blow which does not cause death? [On the contrary,] it is written (v. 19) that if the victim does not die, the law is: “the one who struck him be acquitted, still he must pay for his loss of work, and must pay for his complete cure.” The Re’m left this unanswered. An answer is: We would think it is like striking one’s father or mother, for which one is put to death for striking them, even without killing them. And the difference would be that for parents, one is liable even without making a wound, but for others, only with a wound. Although it is written (v. 25): “a wound for a wound,” [teaching that for making a wound, one pays damages but is not put to death], and Rashi explains there: “A wound that draws blood,” [thus we see that for making even a significant wound, one is not liable for death]. But [we could explain that] that verse applies only if one struck unintentionally. Whereas if intentionally, one would be liable for the death penalty. And when it is written (v. 13): “But Hashem brought it to his hand,” teaching that for striking unintentionally, he is liable for exile [but not for paying damages], this applies when he had intent to strike one person but in fact struck another. Whereas without any intent to strike, he is not liable for exile [and must pay damages]. And when it says (v. 18—19) that if the victim “does not die”, [thus one pays damages], we could say that this applies to striking in a way that cannot kill, i.e., there was no wound at all. (Kitzur Mizrachi) Another answer is: We would think that if he does not agree to pay damages [for striking without killing], then he is put to death — as it is said in Maseches Sanhedrin (15b) concerning kofer [the atonement fine for when one’s ox kills a man]. And this answers all Re’m’s questions.

V. 12. Leben, als alle übrigen mit dem hieniedigen Dasein verbundene Güter involvierende Bedingung, steht obenan. Der Satz מכה איש ומת wird durch einen andern Satz: איש כי יכה כל נפש אדם: (Wajikra 24, 17) ergänzt; durch beide zusammen wird erst der gesetzliche Begriff des Täters, der Tat und des Objektes genauer präzisiert. Das in מכה ganz allgemein gelassene Subjekt erhält durch איש die Bedingung der Zurechnungsfähigkeit zum Ausschluss der קטנים, und das in איש zu beschränkt gefasste Merkmal des Geschlechtes wird durch מכה beseitigt und damit auch das weibliche Geschlecht inbegriffen. Der durch איש beschränkte Begriff des Objekts wird durch נפש אדם auch auf Frauen und Kinder ausgedehnt, und bleibt durch איש nur auf die Bedingung der Lebensfähigkeit mit Ausschluss von נפל etc. beschränkt. Endlich wird der durch כי יכה zu weite Begriff der Tat durch unsere Beifügung ומת auf einen absolut tödlichen Schlag beschränkt. Es heißt aber nicht הורג איש, sondern es wird der Schlag und dessen Folge getrennt aufgeführt, weil es nicht notwendig ist, dass der Tod unmittelbar darauf gefolgt, wohl aber, dass er als absolut notwendige Folge des Schlages zu beurteilen sein müsse, wenn die Todesstrafe darauf erfolgen soll.

מכה איש, “if someone strikes an adult male, etc;” Rashi compares this verse with a similar verse in Leviticus 24,17, reading איש כי יכה, “when an adult male strikes someone,” explaining that both verses are necessary. Verse 14 here, commencing with “if someone deliberately strikes some with intent to kill, but tries to make it look as if it was unintentional,” is also needed as explained by Rashi on that verse, i.e. that unless it had been written, I would have thought that penalties are in place only when the aggression was deliberate with intent to harm or kill. Without our verse one could have thought that killing a woman or injuring her, or doing so to a hermaphrodite would not be punishable, or would be punishable less severely. Rashi explains all this on verse 16 in our chapter.

מכה איש ומת, “if someone strikes a man and he dies as a result;” Rashi explains this as being based on Leviticus 24,17: ואיש כי יכה כל נפש אדם מות ימות, “if a man strikes a lethal blow on another human being it is a capital offence and the attacker will be subject to execution.” If you were to ask: “where did we ever hear that if a person strikes another and he does not die as a result, that he is still subject to execution? After all, even if he did cause his victim to lose a limb, he is only liable for monetary compensation? Some commentators have provided what is a very forced answer by saying that if the injury to the victim of the blow is such that he will die within 12 months that the attacker will be subject to the death penalty. Alternately, the verse could have meant that death resulted from a blow with an instrument not meant to cause death. Since we could have thought that he would still be guilty of the death penalty as it is the result that counts, the Torah had to write that unless the weapon used was of a kind that is used as a lethal weapon the killer is not liable to the death penalty.

מכה איש ומת WHOSOEVER SMITETH A MAN SO THAT HE DIE — Why is this said (how does the particular form of words used here tell us some point of law which is not contained in another text bearing upon the same subject)? Since it is said, (Leviticus 24:17) “And the man that smiteth (יכה) any person (more lit., the soul of any human being) [shall surely be put to death]”, I might have inferred that mere smiting without resultant death is subject to the death penalty. Scripture therefore states here, “Whosoever smiteth a man so that he die [shall surely be put to death]”, thus telling you that he is not punishable with death unless the stroke proves fatal. On the other hand if it had stated here, “Whosoever smiteth a man…” and it had not said there “If a man smiteth [any person]”, I might have inferred that the murderer is not guilty except if he killed “a man”; whence, however, could I know that he is subject to the death penalty if he killed a woman or a minor? Therefore Scripture states “And if [a man] smiteth any person”, thus including even a minor and a woman. Then again: if it had stated only, “Whosoever smiteth a man” I might have inferred that even a minor who smote and killed a person is punishable with death. Scripture therefore states “and if a man smiteth” — a man but not a minor. Then on the other hand, so far as concerns the statement “And if [a man] smiteth the soul of any man” it might be held that even premature births at a term of eight months are included in the term כל נפש אדם “soul of any man”, Scripture therefore states “Whosoever smiteth a man” to intimate that one is not subject to the death penalty unless he kills a viable child — one which is fitted to become a man (Mekhilta d'Rabbi Yishmael 21:12:2).

I might have inferred that mere smiting without resultant death [is subject to the death penalty]: It is a wonder how it could come to one's mind that he would be killed for hitting without [killing] - and behold, it is written (verses 18-19), "and he struck his neighbor with a stone... and he did not die, and the one who struck is cleared, yet he must give his rest, etc." And Rashi himself wrote there, s.v. "And the one who struck is cleared," "And would it come to one's mind that this one who did not kill would be killed?"

Even were a minor to strike a blow and kill he would be liable. The Re’m asks: [Why does Rashi say that a minor might be liable?] Where do we ever find the Torah punishing a minor? The Gemara (Sanhedrin 68b) raises a similar question concerning the ben sorer umoreh, and answers: “Did you think that a ben sorer umoreh is killed for his sin? He is killed only because of what he will do in the end!” There, the Gemara says that even a minor might be liable. But here, how could we say such a thing? The Nachalas Yaakov answers: Since it is written, “If one strikes a man,” [implying any striker at all,] we might think it includes that even a minor is subject to the death penalty, although generally a minor is exempt from all mitzvos. Therefore we need “And if a man strikes,” to exclude a minor. This question and its answer are relevant to all the cases following as well.

מות יומת, he shall surely be put to death. The reason the Torah repeats this word as well as in such instances as someone either cursing or killing his father or mother, and someone guilty of kidnapping, needs to be analysed. Remember that it is the prerogative of G'd, the judge of the whole universe, to kill perpetrators of evil. However, instead of doing so personally, G'd has assigned judges of flesh and blood to judge part of the crimes for which people deserve to be killed. These judges are to hand down death sentences for crimes/sins listed in the Torah as carrying the death penalty. In some instances G'd has revealed why certain crimes carry the death penalty, i.e. one to be administered here on earth, while in other instances He has reserved the right to execute the guilty party Himself in His own good time. In all instances where the Torah speaks about the penalty being כרת, such as a husband who has marital relations with his wife while the latter is menstruating, G'd himself is the executioner. Ketuvot 30 informs us that the fact that nowadays we do not have a court authorised to impose and carry out the death penalty, does not mean that the party guilty of a sin for which the Torah legislates the death penalty will go unpunished. In the case of an ox which has gored a human being (the owner having been negligent), the Torah states that the owner should be executed in addition to his ox although such a law is not enforced by a human tribunal (Mechilta) but only by Heaven. Our sages in Baba Metzia 31 elaborated further on this subject.

The reason why this paragraph follows closely after the paragraph dealing with how to treat a slave, is because most masters are in the habit of hitting slaves when they do not perform their duties diligently. The expression: מות יומת “he must certainly be executed,”by decree of the court, is meant to exclude the legislation applicable to a gentile slave

Even a baby that cannot live would be included. The Re’m says that this interpretation [saying that one is liable for killing a viable child] was received by Chazal as an oral tradition. Otherwise, we could say that “If one strikes a man” exempts killing a minor, and “any human being” makes one liable for killing an [adult who is a] woman, one whose gender is indistinguishable, or a hermaphrodite. The same applies to Chazal’s interpretation that the verse “If a man should strike” (Vayikra 24:17) makes one liable only for a blow that kills. Otherwise we could expound the opposite: since it says in our verse, “If one strikes a man and he dies,” this means only for a blow that kills. Therefore the verse in Vayikra says, “If a man should strike,” teaching that even for a blow that does not cause death, [still he would be liable]. The Re’m explained at length. However, it is difficult [how can Rashi suggest that one might be liable for the death penalty for killing even a baby that cannot live]. If so, when would one be liable merely to pay damages for killing a fetus [see v. 22]? An answer is: damages would apply when one had no intent to injure the fetus. This is similar to what Rebbi said (Sanhedrin 79a), that “A life for a life” (v. 23) means merely to pay money [when the striker intended to kill a certain person but actually killed another). Another answer is: One would be subject to the death penalty for killing an unviable baby that was already born, whereas before its birth, one would not be liable [to the death penalty, only to pay damages]. (Tosafos, Sanhedrin 84b)