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Babylonian Talmud: Tractate Sanhedrin

Folio 77a

    then with respect to damages, wherein unwitting damage is treated as deliberate, and an accident as intention,1  surely he is liable for confining [the animal].

'R. Aha b. Rab ruled that he is not liable.' Said R. Mesharshia: Why does my grandfather2  rule him not liable? — Because of the verse, [Or in enmity he smite him with his hand, that he die:] He that smote him shall surely be put to death: for he is a murderer:3  only a murderer has the law made liable for confining, but not one who causes damage thereby.

Raba said: If one bound his neighbour and he died of starvation, he is not liable to execution. Raba also said: If he bound him in the sun, and he died, or in a place of intense cold and he died, he is liable; but if the sun was yet to appear, or the cold to make itself felt, he is not.4   Raba also said: If he bound him before a lion, he is not liable:5   before mosquitoes, [who stung him to death] he is. R. Ashi said: Even before mosquitoes, he is not liable, because these go and others come.6

It has been stated: If one overturned a vat upon a man [who then died of suffocation], or broke open a ceiling above him,7  — Raba and R. Zera [differ]: One ruled that he is liable, the other that he is not. It can be proved that it was Raba who ruled that he is not liable, for he said: If one bound his neighbour and he dies of starvation, he is not liable.8  On the contrary. it can be

    shewn that R. Zera ruled that he is not liable. For R. Zera said: If one led his neighbour in to an alabaster chamber9   and lit a candle therein, so that he died [of the fumes]. he is liable. Now, the reason is only that he lit a candle that he is liable;10  but had he not lit a candle [and the prisoner died of the natural heat and lack of air], he would be exempt!11  — I will tell you: In that case, without a candle, the heat would not have commenced [its effects]

To Part b

Original footnotes renumbered.
  1. It being a general principle that a man is liable for any damage he does, no matter how, B.K. 26b.
  2. R. Aba b. Rab was a Babylonian amora of the fourth century, and the grandfather of R. Mesharshia.
  3. Ibid. The first half of the verse extends the law to confining one's neighbour in a place of death, (p. 519).
  4. I.e., he is liable only if the place was already exposed to heat or cold. But if it was merely destined to become hot, the sun not yet having risen, he is not liable. In the first case, he is regarded as a direct murderer, in the second, as an indirect cause. That is the general reason for the exemptions taught in this passage.
  5. Because he could not have saved himself in any case. [Raba probably refers to a prisoner thrown into an arena to be torn by lions.]
  6. I.e., the mosquitoes before which the prisoner was bound do not kill him entirely, as there is a continuous coming and going. Hence it is similar to binding one in a place where the sun will appear, but has not yet done so.
  7. So that the cold entering therein, killed him.
  8. This is similar: he did not kill him but indirectly caused his death.
  9. Which was then hermetically sealed, so that no fumes could escape.
  10. This being considered active murder under the circumstances.
  11. Thus R. Zera maintains that no penalty is incurred for indirectly causing one's death.
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Sanhedrin 77b

immediately [he placed him therein];1  but in this case [of placing the upturned vat over him] the heat commences immediately.

(Mnemonic: Ladder, shield, balsam, in a wall.)

Raba said: If one thrust his neighbour into a pit, in which there was a ladder [so that he could have climbed out], and then another came and removed it, or even if himself hastened to remove it, he is not liable [for the victim's death], because when he threw him in he could have climbed out. Raba also said: If one shot an arrow at his neighbour, who was holding a shield, but another came and snatched it away, or even if he himself [the thrower] hastened to do so, he is not liable, because when he shot the arrow its force was spent.2

Raba also said: If one shot an arrow at his neighbour. who had balsam in his hand [wherewith he could have healed the wound], but another dashed it out of his hand, or even if he himself [the thrower] did so, he is not liable, because when he did it he could have been healed. R. Ashi said: Therefore this holds good even if there was balsam in the market.3   R. Aha the son of Raba asked R. Ashi: What if he came across the balsam by chance?4  — He replied: Behold, he has left Beth din a free man.5

Raba also said: If one threw a stone at a wall, which rebounded and killed his neighbour,6  he is liable. And a Tanna teaches [in support of this]: If murder is committed by a man playing, for example. with a ball,7  if intentional, the thrower is executed; if unintentional, he is sentenced to the refuge cities.8  'If unintentional, he is sentenced to the refuge cities:' but is that not obvious? — It is necessary to teach that if intentional, he is executed, [the second half being added to complete it]; for I might say, this is a case of 'a doubtful warning', for who knows that it will rebound?9  We are therefore taught otherwise.

R. Tahlifa of the West10  recited before R. Abbahu [the following]: If [unintentional] murder is committed by a man playing, for example, with a ball, if [the victim] was within four cubits [of the wall]. the thrower is exempt; if beyond four cubits, he is liable [to exile]. Rabina objected to R. Ashi: How is this? If he desired it [to rebound], he should be liable even for a short distance;11  whilst if not, he should be liable even for a greater distance? — He replied: The greater the rebound, the more is the average player pleased.12

Are we to say that [a murder] so committed is regarded as by his direct action?13  But the following contradicts it: If one was sanctifying [the water], and the ashes14  fell upon his hand or upon

    the side of the utensil, whence it fell into the trough, it is unfit?15  — The reference here is to a dripping down.16

Come and hear! If an [unclean] needle was lying upon a shard, and the [purifying] water was sprinkled thereon, but it is doubtful whether upon the needle or upon the shard, and then it spurted [miza] upon the needle, the sprinkling is invalid.17  — R. Hinena b. R. Judah said in Rab's name: We have learnt, It was found [maza].18

R. Papa said: If one bound his neighbour and then caused a column of water to inundate him, it is as his arrows, and he is liable [for his death]. But that is only if [he was drowned] by his direct agency; but if through his indirect agency,19  he is merely regarded as a subsidiary cause.20

R. Papa also said: If one threw a stone upwards, and it returned

    in a slanting direction and killed a man, he is liable. Mar son of R. Ashi asked R. Papa. Why so? Because it is by his agency! But if so it should go upwards;21

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Original footnotes renumbered.
  1. [By consuming the oxygen, the fire immediately produces effects of asphyxiation, but without fire such effects are not immediately felt.]
  2. Lit., 'broken', as at the time it was released there was a shield to prevent its killing.
  3. I. e., if when the arrow was thrown, a healing ointment could have been procured sufficiently quickly to prevent death, the attacker is not liable, even if for some reason the ointment became subsequently unavailable.
  4. When smitten, he neither possessed nor could procure it. But by some happy chance, he subsequently obtained it, and though he could have healed himself therewith, did not. Do we say, since when the attack was made, murder was its probable outcome, he is liable; or since he could have healed himself, he is not.
  5. I.e., he is not liable: in spite of the fact that the balsam was unavailable when he threw the arrow.
  6. And this was his intention.
  7. Children play by throwing a ball at a wall and catching or striking it on the rebound, thus here, one threw something at a wall, which, rebounding, struck his neighbour and killed him.
  8. V. Num. XXXV, 15.
  9. V. supra 72b. In this case, however, it might be thought that no true warning can be given, since the murder is doubtful.
  10. I.e., a Palestinian amora.
  11. I.e., even if it did not rebound so far, and struck a man standing within four cubits
  12. Therefore it may be presumed that he intended it to rebound at least four cubits; hence if less, he is not liable.
  13. Lit., 'force'.
  14. Lit., 'the sanctifier'.
  15. The reference is to the law of the red heifer: Num. XIX. The ashes thereof, when mixed with running water, are said to sanctify, the ashes themselves being denominated 'the sanctifier'. These had to be placed by a person into the water, not merely fall therein. Now, if one was engaged in sanctifying the water, and instead of pouring the ashes straight in, permitted them to fall upon his hand or on the side of a utensil, whence they fell into the trough containing the sanctified water, the water is unfit for its purpose, because the mixing had not been done directly by the person. This proves that a rebound is not regarded as a person's direct action, and this contradicts the law of murder.
  16. The ashes did not fall with force from the side of the utensil into the trough, but merely dripped down; therefore it is not regarded as man's direct agency. Had they fallen with force, however, the fall would be regarded as part of the man's action in dropping them on to the utensil, and the water would accordingly be fit. In the case of murder, the rebound is with force, and directly caused by the strength of the throw.
  17. Because the sprinkling, as the mixing. must be done by man. Thus we see that the rebound is not regarded as direct action.
  18. I.e., the text is corrupt, and instead of miza [H], maza [H] is to be read. Thus, the water was found upon the needle, but how it came there is not known, whether sprinkled direct thereon, or it had rebounded from the shard, which, on the present hypothesis would also be valid, or flowed of itself from the shard on to the needle, in which case it was not due at all to man's action.
  19. If the victim was lying immediately in front of the burst, where the strength of the water's flow is still due to the man's action, the drowning is by his direct agency. But if he was lying at some distance, he is held to be an indirect or secondary cause.
  20. Not the actual murderer.
  21. For he had exerted himself to cause it to go up, not down.
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