Rotzeach uShmirat Nefesh - Chapter 9

See Halachah 11.

Deuteronomy 21:2 mentions “Your elders” - i.e., two judges - and “your judges” - i.e., another two. Since a court is never composed of an even number of judges, another one is added, thus reaching a total of five (Sotah 44b).

To determine which city the corpse is closest to.

Sotah, ibid., derives this concept from the fact that the above verse speaks of “Your elders and your judges” - i.e., judges who are distinguished among the entire people, not merely one city.

For the Torah explicitly requires such an activity.

See Halachah 6, which mentions that distance is not the only determinant considered by the court.

As mentioned in Hilchot Nizkei Mammon 5:3, whenever a corpse is found abandoned on the road, it is to be buried where it is discovered. (See also Kessef Mishneh and Halachah 9.)

I.e., two years old or less (Chapter 10, Halachah 2).

See the Rambam’s Commentary on the Mishnah (Sotah 9:5), which cites a parallel verse (Jeremiah 5:15): “For it is a powerful nation.” He states that Sotah 46b interprets the phrase as meaning “ancient.”
Rashi in his commentary on the Torah offers a different interpretation, explaining that this refers to a dried wadi with very firm ground that was never tilled. See also the gloss of the Kessef Mishneh.

Sefer HaMitzvot (Positive Commandment 181) and Sefer HaChinuch (Mitzvah 530) consider the decapitation of the calf to be one of the Torah’s 613 mitzvot.
In his Guide for the Perplexed, Volume III, Chapter 40, the Rambam explains that the rationale for the mitzvah of the decapitation of the calf is to call attention to the murder, so that people will search for the murderer and see to it that he is punished.

I.e., the person with the cleaver stands behind the calf and decapitates it.

And not the judges from Jerusalem, who performed the measurement.

I.e., using the exact words of the Torah.

This being called bloodshed by the Torah.

Although in a literal sense the seeing refers to the killing, our Sages took the verse out of its literal context.

The Sifre and Sotah 46b offer this interpretation for this phrase, because literally its intent is difficult to understand. For one would not think that-the elders of the city were the ones who shed the victim’s blood.
Kin’at Eliyahu does not dispute the purpose of this homiletic explanation, to emphasize the importance of showing hospitality to guests and wayfarers. He asks, however, what would happen in an instance when in fact a wayfarer was forced to leave a city without provisions and without accompaniment? Would they in fact be unable to bring this calf as an atonement offering?

Whose function is to bring atonement for the people.

They repeat the entire verse until “in the midst of Your people, Israel” (Kessef Mishneh).

The Rambam adds this explanation to emphasize that this phrase is not recited by the priests (see Sotah 46a).

The Rambam describes this process of estimation in his Commentary on the Mishnah (Eruvin 5:4).

Once a town had 120 male inhabitants and it had a sufficient number of sages, it was allotted a court of 23 judges (Hilchot Sanhedrin 1:3-5).

I.e., in land given to one of the tribes as an ancestral heritage.

Even if it is clearly apparent that it is the closest city.

Our text of Sotah 9:3, the source for this halachah, reads “a city whose inhabitants are mostly gentile,” while the Rambam does not make such a stipulation. From the text of his Commentary on the Mishnah, we might assume that his version of the Mishnah also followed this reading.
The Ma’aseh Rokeach explains that the Rambam’s intent is a city that is predominantly gentile. Kin’at Eliyahu suggests that perhaps the intent is a very large city, which though predominantly Jewish, has a sufficient number of gentiles as to cause a danger.

In his Commentary on the Mishnah (Sotah 9:2), the Rambam states that by travelling in such places, the person took too great a risk and caused his own death, as it were. Therefore, the court need not seek atonement for it.

Kin’at Eliyahu questions to what extent numbers overrule proximity. Is a very populous city that is very far away given precedence over a slightly smaller city that is much closer? Since the laws of the decapitated calf are not practiced in the present era, these questions have not been defined by many authorities.

See a parallel ruling in Hilchot Gezelah 15:18.

In this way, the calf will belong entirely to the city that is obligated to bring it to secure atonement.

I.e., most probably, both cities are not exactly equidistant from the corpse, and in fact only one of the cities should bring the calf. The tools of measurement available to man, however, may not be sensitive enough to make minute distinctions. Hence, this conditional arrangement is adopted.

I.e., if one city is closer to the corpse’s feet and the other is closer to its head.

This is the opinion of Rabbi Akiva (Sotah 45b). He derives this concept from Genesis 7:22, which describes man as having “the soul and the spirit of life in his nostrils.”
There are two other opinions mentioned in this passage (that of Rabbi Eliezer: “from his navel,” and that of Rabbi Eliezer ben Ya’akov: “from the place where one is [usually] slain, from his neck” (see Halachah 11). The Rambam chooses Rabbi Akiva’s opinion, although frequently the halachah follows Rabbi Eliezer ben Ya’akov.

Sotah, op. cit., also mentions this ruling in the name of Rabbi Akiva, but states that it is dependent on a different rationale. Rabbi Akiva maintains that when the head is severed from the body, the head will generally fall in the place where the person was killed, while the body may - as a result of convulsions - shift its position slightly.

If some corpses are found closer to the other cities, those other cities must also bring a calf as atonement. This ruling is followed even though one might surmise that all the people were traveling together and left from the same city.

There is no need to atone for each death individually.

For the ones beneath it are considered to be “covered.” As mentioned in the following halachah, when a corpse is covered there is no obligation to bring a calf for atonement.
The Ra’avad objects to the Rambam’s ruling, maintaining that this is not indicated from his understanding of Sotah 45a. Although the Kessef Mishneh tries to rationalize the Rambam’s ruling, he admits that it is difficult to do so.

This term is unnecessary for the simple meaning of the verse; its addition implies that the corpse must be lying openly upon the earth and not buried or hidden under other objects.

These words are also unnecessary for the simple meaning of the verse. The Torah adds them to allude to the concepts stated.

Even if, as indicated by the following halachot, that knowledge is not sufficient to have the murderer executed.

Although the testimony of one witness is not sufficient to convict a murderer, when there is such a witness - even if there are no acceptable witnesses, as in the instances that follow - it cannot be said that: “And it is not known who killed him.”

Neither women nor Canaanite servants are acceptable as witnesses.

See Hilchot Edut, Chapter 10, which mentions this disqualification.
From the Rambam’s words, it appears that this ruling applies even with regard to those disqualified as witnesses by Scriptural Law. Thus, there is a distinction between this ruling and his ruling in Hilchot Sotah 1:15, which accepts only the testimony of those disqualified according to Rabbinic law.

When there was an overflow of the violence of Roman society into the Jews’ lifestyle.

I.e., he testified that the first witness was together with him in a place distant from the site of the murder.

Since the testimony of each witness nullifies that of the other, we return to the initial circumstance, and the calf is decapitated.

In which instance, the testimony of the first witness had not yet been accepted.

This is a principle frequently followed in Jewish Law. Whenever the testimony of one witness is sufficient to establish the status of a matter, once that witness’ testimony is accepted, his testimony is given the weight of that of two witnesses. See parallels in Hilchot Gerushin 12:18 and Hilchot Sotah 1:16.

For the testimonies nullify each other, and we return to the original situation, in which the decapitation is required.

Who is not an acceptable witness, and thus her testimony carries less weight.

According to the Rambam, the testimony of a woman can never be accepted as that of witnesses or even as that of two women.
The Ra’avad takes issue with the Rambam on this point and states that, in this context, there is no difference between the testimony of a woman and that of a man. If the testimony of a woman is accepted, she is considered as two women, and her testimony cannot be negated by one woman.

See the clarification in the following halachah.

For the testimony of one acceptable witness that has been confirmed by the court can be nullified only by the testimony of two acceptable witnesses. See a parallel in Hilchot Sotah 1:18. The Ra’avad differs with the Rambam with regard to this ruling as well.

As the Rambam continues to illustrate, one acceptable witness is considered to be of equal weight to any number of unacceptable witnesses. This applies even after the statements of the unacceptable witnesses have been confirmed by the court.
The Ra’avad differs with regard to this point as well, and maintains that the only time the testimony of one acceptable witness is given more weight than that of an unacceptable witness is when he testifies in court and his testimony is confirmed before the other witnesses come. Most of the other commentaries follow the Rambam’s understanding.

And therefore, the calf should be decapitated.

See parallels in Hilchot Gerushin 12:22, Hilchot Sotah 1:19. As the Ra’avad emphasizes, this applies even if the witnesses do not come to the court at the same time.