Komentaryong Sumisipi para sa Exodo 21:12

Introduction This mishnah deals with a murderer who intends to kill either in a certain manner or a certain person but does not fulfill his intention and yet nevertheless he kills someone. The question is, since he did not fulfill his intention is he liable to the death penalty. Before learning this mishnah we should note that the Exodus 21:12-13 states: “He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God…”. The Rabbis in our mishnah seem to be discussing what does “by design” mean. How much intention must there be in the act of murder for someone to be liable in the death penalty. While I am not an expert on modern law, I know that our modern law system also distinguishes between degrees of murder based on the level of intention in the act.

ואתה תבער את הדם נקי מקרבך, “and you will remove the innocent blood from your midst.” Rashi explains that in the event the murderer is found after the heifer had already been killed, the murderer is not going free. This sounds strange seeing that we learned in the Talmud, tractate Ketuvot folio 37, that the meaning of the word in our verse is that we use the wording in our verse to learn that administering the death penalty by the sword must be performed by severing the vital arteries of the neck, just as the neck of that heifer was broken by its fall. Rabbeinu Moshe offers a different interpretation of the wording in our verse: the paragraph cited by Rashi deals with a murderer who is sentenced to death and according to the opinion that the death penalty by strangulation is more severe (Compare Talmud tractate Sanhedrin folio 49) than the death penalty by having one’s throat cut. This is also reasonable as the wording of the death penalty both in Exodus 21,12, and in Leviticus, 26,25: i.e. “he must surely be avenged,” and “I will bring a sword upon you that shall execute the vengeance of the covenant;” these lines refer to execution by the sword. The verse in Exodus quoted speaks of the penalty for killing a slave. If this is the penalty for killing a slave, it is logical that the penalty for killing a free man can certainly not be milder. This “logic” makes sense when we assume that the penalty by strangulation is milder than the penalty of cutting the victim’s throat. How can that logic be applied according to the scholar who holds that the penalty of strangulation is harsher than having one’s throat cut? Whence do we derive the law that murdering a free man is punishable by having one’s throat cut? The answer given is that we derive it from a baraitha which compares the law applicable to our portion, i.e. the killing of the heifer as a symbolic action by which the people near the town where the slain person was found declare that they had not been remiss in sending that person out of their town without escort or without basic provisions. If the murderer is found after that procedure has already been performed, according to the opinion that strangulation is a milder penalty than having one’s throat cut by comparing it to the penalty of the killer of a slave being executed by the sword, by reason of the logic we mentioned earlier. If one then would argue what is the meaning of the words in Numbers 35,33:כי לארץ לא יכופר, “but no expiation can be made for the earth” (that absorbed the blood of the slain)? We would have to say that this applies for a case in which the murderer is found only after the Yom Kippur following his having committed the deed. If no atonement had been made by that time it cannot be atoned for retroactively anymore.

The second reason that man cannot avail himself of the legislation which exonerates negligent behaviour of the borrower in the presence of the lender has to do with the principle that only a few of man's trespasses are subject to judicial prosecution on earth. In principle, it is the Supreme Judge who has the prerogative to sit in judgment of human activities and to adjudicate such cases fairly. Who is to say that a person who is guilty of negligent dealings with his neighbour's property will not be judged by the Supreme Judge Himself? We have hundreds of instances of violations which are subject to G'd's judgment only, human judges not having been accredited to deal with such violations of the Torah! The best proof of this concept is the fact that there are many violations concerning which the Torah has specifically stated that the transgressor will not be held liable by a court on earth but will be judged either by G'd directly while still alive, or at least in the Hereafter. I have explained this in detail on Exodus 21,12 on the words מות יומת. You will find for instance, that when "keepers" have been negligent with property owned by the Temple treasury they are not subject to penalties by a human court. Even Maimonides who held keepers liable in cases where lands, documents or slaves are involved, appears to hold that this is so only vis-a-vis human owners. When the property is owned by Heaven or its representatives, no action is taken against the offending party. You may conclude that the reason that no action is taken is because such people are guilty of something more serious than is subject to earthly judges' jurisdiction.

ואיש כי יכה AND HE THAT KILLETH [ANY MAN SHALL SURELY BE PUT TO DEATH] — Because it is said (Exodus 21:12) “Whosoever smiteth a man so that he die [shall surely be put to death]” I might say that I have here only the law that if one kills a man he is punishable with death; whence, however, do I know that this is also the case if he kills a woman or a child? Because Scripture states here: “[and he that killeth] any person (more lit., the soul of any human being)” (Sifra, Emor, Chapter 20 1; cf. Rashi on Exodus 21:12).