Kesubos - Daf 37
- Why there are two sources for the principle of קם ליה בדרבה מיניה
The Gemara challenges that the source for קם ליה דרבה מיניה – that one is only chayav the greater of two penalties, is from the parshah that discusses when two men quarrel and they accidently hit a pregnant woman and she miscarries: "ולא יהיה אסון ענוש יענש" – and there is no fatality, he shall be punished. Rashi explains that if there had been a fatality, he would not be punished with a monetary penalty. But we have a different source from the parshah of makkos, which states: "כדי רשעתו" – in accordance to his wickedness, משום רשעה אחת אתה מחייבו ואי אתה מחייבו משום שתי רשעיות – you may only be mechayav a person for one act of wickedness, not two, referring to two penalties at once. The Gemara answers that one passuk teaches it regarding the death penalty and monetary payment, and the other teaches it regarding malkus and monetary payment, and both are needed. If the Torah had only taught קם ליה בדרבה מיניה with misa and money, I would think it is because there is איבוד נשמה – loss of life. Rashi explains that since it is so severe, one penalty is enough. But where there is no loss of life, then two penalties should be given. And if it was only taught regarding malkus and money, it is because דלא חמיר איסוריה – the transgression is not chamur, and therefore one penalty suffices. But with misa and money, since the transgression is chamur, it would not be enough for the transgressor to only have one penalty.
- Atonement money (כפר) is not taken for the life of one who murders b’meizid or beshogegg
The Gemara brings the passuk: "ולא תקחו כפר לנפש רצח" – You shall not take atonement money for the life of a murderer, to teach that one does not take money from him to pardon him from execution, and it brings a second passuk to teach that one does not take atonement money for one who must flee to an ir miklat, a refuge city, and explains that both pesukim are necessary, חד בשוגג וחד במזיד – one for a person who kills beshogegg and one for a person who kills b’meizid. For if the Torah had only taught it for one who kills b’meizid, I might think that he cannot redeem his punishment with money because the transgression is chamur. But in the case of one who kills beshogegg, perhaps the Torah did not prevent him from redeeming his punishment with money. And if the Torah had only taught it for one who kills beshogegg, I might think it is because there is no איבוד נשמה – loss of life, but for one who kills b’meizid, where there is loss of life for the killer, I might think that the Torah does not prevent him from redeeming his punishment with atonement money.
- "ואהבת לרעך כמוך" – ברור לו מיתה יפה
It was taught in a Baraisa: מנין למומתים בסייף שהוא מן הצואר – From where do we know with regard to those executed with a sword, that it is from the neck? The Torah states at the conclusion of the parshah of the eglah arufah, the decapitated calf: "ואתה תבער הדם הנקי מקרבך" – And you shall purge the spillers of innocent blood from your midst. הוקשו כל שופכי דמים לעגלה ערופה – there is a hekeish of “spillers of blood” to the eglah arufah. Just as there, the death is from the neck, so too by all “spillers of blood,” the death is by the neck. When the Gemara asks that if we are comparing the execution of a murderer to the eglah arufah, מה להלן בקופיץ וממול עורף אף כאן בקופיץ וממול עורף – Just as there the calf is killed with an ax and from the back of the neck, here too murderers should be executed with an ax and from the back of the neck, Rav Nachman answered in the name of Rabbah bar Avuha, that the passuk states: "ואהבת לרעך כמוך" – And you shall you love your neighbor as yourself, which teaches: ברור לו מיתה יפה – choose for him a favorable death. Rashi explains that a sword and the cutting of the trachea and esophagus cause a quicker death.
