Thursday, February 4, 2010

Lo tirzach - indirect murder

Metzamtezem – Indirect murder

The sixth of the aseres hadibros is lo tirzach – you should not murder.

The mishna says in Sanhedrin ((ע״ו ע״ב that if someone was submerged in water and someone else came and held then down then the second person is chayav misoh. The gemara explains that even although the murderer did not commit an act of murder (and this is only gerama) nevertheless he is still chayav. This halacha is learnt from a passuk:
אמר שמואל דאמר קרא (במדבר לה, כא) או באיבה לרבות את המצמצם
We learn from the passuk of או באיבה that confinement is chayav misoh.

The gemara brings a machlokess between Ravina and Rav Acha Bar Rav if this halacha applies to other nizokin. The case in the gemara is that someone tied up someone else’s animal in the sun, so it died. Do you have to pay for the animal, or maybe because this is only gerama you are patur? The Rambam paskens like Ravina that you are chayav.

What about other issurin? The Rambam says that in other issurin, metzamtzem is patur. For example, if someone left a piece of paper that had Hashem’s name written on it in the rain, he would not receive malkos for mechikas hashem.

The nosei kelim on the Rambam do not bring a source for this. However, the Shulchan Aruch paskens like the Rambam and the be’er hagolah references the gemara in Sanhedrin as the source. The be’er hagolah is difficult to understand as the gemara does not discuss other issurin - the biur ha’gra explains that from the fact that the gemera does not discuss other issurin you see other issurin are patur.

It comes out that we have 3 categories:
  • Retzichah, where you have a passuk that there is a chiyuv.
  • Nizokin – this is a machlokess in the gemara, the halacha is that you are chayav. 
  • Other issurin – are potur.
Why is nizokin compared to retzicha and not to other issurin? Why is there a machlokess in the gemara if nizakin is similar to retzicha, but the gemara does not mention other issurin at all?

The chiyuv misoh for murder is similar to the chiyuv to pay for nizokin
The Kol Yisroel explains that the the chiyuv misoh for murder is similar to the chiyuv to pay for nizokin.

  • Retzichah - The possuk says that a murderer is killed is because he has to pay nephesh tachas naphesh. Rb Shmuel Rozovsky z”l explains this possuk literally, the chiyuv misoh for murder is a form of payment and is different to the chiyuv misoh for other aveiros. Whereas for other aveiros the person is killed for the maaseh ha’averioh, here the murderer pays with his life. 
  • Nizokin – Rabbeinu Yonah in Pirkei Avos (perek alef, mishna alef) asks that the Torah specifies the damages payable for nizokin – damages. However we have a rule – ein onshin elo im kein mazhirin – you can only punish if there is a lo saaseh where the Torah warned the person not to do the issur. What is the issur of nizokin? Rabbeinu Yonah explains that the issur of nizokin is the lo tigzol.
In other words, it does not make a difference if you deprive someone of an object by stealing it or if you deprive someone of an object by damaging it. Either way this is gezelah. When you reimburse the person for the damages, you are restoring the object that you deprived them of through damaging it.

Therefore it comes out that both the chiyuv misoh for retzichah and the chiyuv to pay for nizokin are types of tashlumin for depriving someone else of their life or their property.

The chiyuv for metzamtezem is a chiyuv for the result
The Kol Yisroel further explains that the reason that there is a chiyuv for matzamtezm is not because the Torah considers metsamtsem as an act of murder. Rather even although this is gerama it is still chayav.

Why metsamtsem is not applicable to other issurin
Using these two principles, the Kol Yisroel explains that metsamtsem is only applicable to retzicha and nizokin. Because the chiyuv for both of these is a type of tashlumin, the Torah says that even although this is gerama, because at the end of the day the same end result was still perepertrated, you are chayav.

However, with other issurin, where the chiyuv is for the act and not the outcome, metsamtsem is not applicable because it is only gerama.

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