Rotzeach uShmirat Nefesh - Chapter 6

Examples of such uncommon phenomena are described in Halachot 7, 8 and 14.

This indicates that the “blood redeemer” is not given unlimited license to slay the killer. Only in certain occasions is such license granted.

See Halachah 6.

Although he did not have the intent to kill, a man is always responsible for his actions. Showing negligence that causes another person’s death is tantamount to actually killing him.

The Ra’avad objects to the Rambam’s statements, noting that the testimony of one witness is never given such weight in Torah law. The Kessef Mishneh and others accept the Ra’avad’s basic premise and explain that the Rambam is speaking about an instance where there are in fact two witnesses, but their testimony is not sufficient to convict the murderer, because they did not see each other at the time they observed the murder. See Chapter 4, Halachah 8.

I.e., individuals who committed murder, but who cannot be executed because of the requirements of Torah law.

See Halachah 9 and notes.

Even though it is more difficult to see at night, since there is a possibility that someone will be walking in the public domain, the person performing the dangerous activity must ensure that no one will be hurt.

I.e., although there was no intention to kill per se, the difference between such carelessness in performing dangerous activities and willful murder is slight.

In the eras before comfort facilities became ordinary features in homes and in the public domain, garbage dumps often served as public toilets. If a particular garbage dump was known to be used for this purpose, a person tearing down his wall would have to take pains to make sure that no one was using the garbage dump at that time.

For not checking the location before acting is gross negligence.

For he had no reason to suppose that this instance would be any different, and that someone would be found in the garbage dump at the time he tore down his wall.

Because darkness afforded the people privacy.

Because of the lack of privacy.

Since the garbage dump is used as a toilet at times, although it is generally not used for that purpose during the day, there is a possibility that this will happen. Therefore, the death is not considered to be close to having been caused by forces beyond the person’s control. On the other hand, since by and large, people do not use it as a toilet during the day, the person cannot be considered to be grossly negligent. Therefore, he is exiled (Makkot 8a).

For the reasons to be described in the following halachah.

Makkot 8a states: “A person who throws a stone into the public domain should be exiled. Rabbi Eliezer ben Ya’akov says: ‘If after the stone left [the thrower’s] hand, [the victim] stuck his head out, [the thrower] is not liable.’”
The Talmud then clarifies the first opinion, explaining that generally a person who throws a stone into the public domain is considered close to killing willfully, and that the obligation to exile the killer applies only when one is tearing down a wall in the situation described in the previous halachah.
The commentaries interpret the Rambam’s acceptance of Rabbi Eliezer ben Ya’akov’s approach in this and the previous halachah as implying the following. When a person throws a stone into the public domain, he is considered to be close to killing willfully, because there is a high probability that the stone he threw will cause death. This applies, however, only when the victim was present when the stone was thrown. If the victim was not in the place where he was killed when the stone left the thrower’s hand, we cannot hold the thrower liable, despite the fact that it is probable that throwing a stone into the public domain will cause death.

Therefore, he must live in constant dread of vengeance from the blood redeemer.

Commenting on the above verse, the Sifre states: “[An enemy] should not be executed - perhaps he acted unintentionally. Nor should he be exiled, for perhaps he acted intentionally.”

This is considered gross negligence, because the person should have considered the possibility that his knife could kill.

The Kessef Mishneh explains that this ruling is dependent on the Rambam’s interpretation of Makkot 7b, which differs from that of other commentaries.

Since his action was not entirely intentional, he cannot be executed. It cannot, however, be considered to be unintentional, and hence, he is not granted the protection of a city of refuge.

Ignorance of such a basic law is not condoned, and the person is considered as if he killed willfully.

See Chapter 4, Halachah 1.

Although killing a gentile or an animal is not as severe as killing a Jew, that is not significant in the present context. What is significant is that the person’s actions cannot be considered to be entirely unintentional.

Makkot 8a.

Since the victim has a right to walk in such places, another person must take precautions so that harm does not befall him.

A person is not obligated for as severe a penalty as exile when the accident takes place in his own domain. Since the victim entered without permission, the owner is not required to bear such a heavy responsibility.

Significantly, as the Rambam states in Hilchot Chovel UMazik 1:17, even if the person enters without permission, the carpenter is liable for the damages that the intruder suffered.

Makkot 7a explains that since the object [or in the second clause, the person] was ascending, it is considered out of the ordinary for him to fall.

Our translation is taken from the Rambam’s Commentary on the Mishnah (Makkot 2:1). The Rambam is speaking about a roof with a downward slant. Rashi and Rav Ovadiah of Bartinura offer different interpretations.

By swinging it backward first, he will be able to swing it forward with greater momentum.

For this a “descent for the purpose of ascent,” as the Rambam proceeds to explain.

The Rambam’s ruling reflects the statement of this law in the Jerusalem Talmud (Makkot 2:4). According to Rabbenu Chanan’el, this is also the proper version of the Babylonian Talmud (Makkot 7b). As the Kessef Mishneh relates, the version of this passage in the standard printed text of the Talmud (which is reflected in Rashi’s commentary) is slightly different and cannot easily be reconciled with the Rambam’s understanding.

According to Rashi’s interpretation, such a person should be exiled. Significantly, in his Commentary on the Mishnah (Makkot 2:1), the Rambam offers a similar interpretation.

As the person ascends, he pushes the rung of the ladder down slightly. Nevertheless, the purpose of that descent is to enable him to ascend.

For he is ascending and not descending. See Hilchot Chovel UMazik 6:4, which delivers the following ruling with regard to whether or not a person is liable for damages in a similar situation:
If [the rung] was not tightly fit or was not strong [enough to bear the person’s weight], he is liable. If it was tightly fit and strong [enough to bear the person’s weight], but it slipped from its place or rotted, the person is not liable. For this is an act of God.”

Numbers 35:22 mentions that a person who kills בלא צדיה “without premeditation,” should be exiled. צד is Hebrew for “side.” Thus, Makkot 7b interprets the phrase to be freeing the person from exile when the object goes to a side other than that intended.

I.e., without his knowledge, someone had placed a stone in his clothes, and he did not detect it before he stood up.

See Hilchot Chovel UMazik 1:15, which states that in such a situation, a person is liable for the damages he caused. He is, however, only liable for the damages themselves, and not the other four assessments.

Numbers 35:23 states that a person is exiled when he kills a person “without seeing him.” Makkot 9b interprets this to exclude a person who can never see and yet kills unintentionally.
The rationale for this law can be explained as follows: A blind man has far less control of his surroundings than a person who can see. Therefore, he is not held responsible for a death that he caused unintentionally.

For in most cases of shogeg, unintentional transgression, a person must be aware that he has a responsibility - in this instance, the knowledge that he is holding a dangerous stone - and then lose consciousness of this responsibility.

Although Deuteronomy 19:5 mentions “an iron slipping from the wood,” this refers to a situation where the axe-head slips off the axe when the chopper swings the axe. Thus, the person is killed as a direct result of the killer’s force.

His cutting into the tree is a product of his force. The tree knocking off the axe-head is the effect of his force.
The Rambam’s source is the Mishnah, Makkot 2:1. Significantly, Rashi (Makkot 7b) interprets this mishnah differently, explaining that it refers to an instance where a piece of wood from the tree being chopped flies off and kills a person. Rabbenu Chanan’el mentions both interpretations.