Kesubos - Daf 35
- חייבי מיתות שוגגין פטורין לכולי עלמא – נלמד מ"מכה אדם" "מכה בהמה"
On Daf 34b Rav Dimi reported that Rebbe Yochanan holds that חייבי מיתות שוגגין חייב – that those who inadvertently did an action which is a capital crime, are chayav monetary payment. Rava questions if there is anyone who holds that, for it was taught in a Baraisa in the Beis Midrash of Chizkiyah: The Torah makes a comparison between the pesukim of "מכה אדם" "מכה בהמה" – one who strikes a man (who is executed and does not pay damages), and one who strikes an animal (who always pays damages). From here we learn מה מכה בהמה לא חילקת בו בין בשוגג בין במזיד – Just as one who strikes an animal, you do not distinguish whether he did it beshogegg or b’meizid, or whether he had kavanah to strike this animal, or did not have kavanah, and accidentally struck this animal instead of another animal, or between a downward blow, or upward blow, to exempt him from paying money, rather the passuk means to be mechayev him to pay in all of these cases, אף מכה אדם – so too when it comes striking a man, in all of these distinctions just mentioned, the Torah is not coming to be mechayev to pay in any of these cases, rather it is coming to exempt him from paying in all of these cases. Rav Dimi’s report is thus refuted.
- Reish Lakish holds בפירוש ריבתה תורה חייבי מלקיות כחייבי מיתות
When Ravin came from Eretz Yisroel to Bavel he reported that Rebbe Yochanan and Reish Lakish disagree בחייבי מלקות שוגגין ודבר אחר – with regard to those who did a transgression beshogegg that when done b’meizid is chayav malkus and is also chayav a monetary payment at the same time. Rebbe Yochanan says he is chayav to make the payment, for he holds only חייבי מיתות איתקוש – only those who did acts that they are chayav the death penalty when done b’meizid are compared to one who strikes an animal, in that they are always patur from payment, but חייבי מלקות לא איתקוש – those who did acts that are chayav malkus when done b’meized are not compared to one who strikes an animal, and they are not always patur from payment. Reish Lakish says he is patur, בפירוש ריבתה תורה חייבי מלקיות כחייבי מיתות – for the Torah explicitly included those chayav for malkus in the exemption from payment just like those chayav the death penalty. When the Gemara asks where the Torah includes this law, Abaye said: It is derived from the gezeirah shaveh of "רשע" "רשע". Rashi explains that it says with regard to those chayav misa, "אשר הוא רשע למות" – who is guilty to be put to death, and it says by those chayav malkus, "והיה אם בן הכות הרשע" – And it shall be if the guilty one deserves malkus. Rava said it is derived from "מכה" – one who strikes with regard to malkus, and "מכה" with regard to one who strikes an animal.
- The passuk of striking an animal is referring to a weekday
Rav Chiya said to Rava: According to the Tanna of the Beis Midrash of Chizkiya who made the comparison of "מכה אדם" "מכה בהמה" – on what basis did he presume the case is where he struck the animal on a weekday and not on Shabbos, when one can distinguish between an act done beshogegg and one done b’meizid? The Gemara answers that the passuk cannot be referring to where he struck the animal beshogegg on Shabbos, for the passuk states: "ומכה בהמה ישלמנה ומכה אדם יומת" – One who strikes an animal shall pay for it, and one who strikes a man, (and kills him) shall be put to death. If the person was not warned, why should he put to death? Rather, it is obvious he was warned. Now if it was on Shabbos. why would one who strikes an animal pay? If he was warned not to strike it, he would be chayav misa and patur from payment. Therefore, the passuk must be dealing with one striking an animal on a weekday, when he is always chayav payment, regardless of whether he acted beshogegg or b’meizid.
