Areas – 2018

Rabbi Dr. Michael Avraham

outline

A. The issue of 'coming underground'

B. Between an underground visitor and a persecutor

1. Distinguishing between an undergrounder and a persecutor
2. Why is the Ba'ab not required to give up his wealth?

D. It is permissible for a thief to protect his property at the cost of the thief's life.

E. Evidence from the words of Maimonides

1. Coming underground is the law of the thief.
2. Permission or commandment
3. The manner of killing
4. It is believed that the thief does not place himself on his property – is that true?
5. The degree of certainty of the danger to life
6. An alternative way to rescue

F. The law of morality is learned from the one who comes underground and teaches about it

1. The permission to kill morality stems from the danger to money.
2. Why didn't the sender get rid of payments?

G. Summary

Appendix: No one kills for financial matters

vvvv

On the night of the 11th of Shemot 5767, four Bedouins arrived at an isolated farm in the northern Negev to steal the herd of the farm owner, Shai Dromi. This incident was part of a series of thefts from those farms (entire herds are stolen every night), accompanied by the helplessness of the police and authorities, which left the farm owners to deal with the phenomenon alone. Such thefts leave the farm owners destitute, and some of them have reached the point of being penniless, and because of the shackles of the law they have nothing to do.

According to Shai Dromi, after warning the thieves and they did not respond, he shot and hit one of them, who later died of blood loss. The police recommended that he be charged with murder (and to be precise: not manslaughter, but murder). According to the law in force in Israel today, those four thieves could have come to the farm with a truck, loaded up its entire contents in plain sight, and even forced Dromi to help them. According to the police, Dromi should have let them steal, and then asked the police to use their forces to recover his property, something they usually cannot do.

In the US, the legal situation is different. There, anyone is allowed to shoot thieves who come to their house in order to kill them. In today's Israel, a public debate has developed on the question of whether Daromi had the opportunity to avoid the killing, and whether he actually felt a threat to his life.

The halakha stands between the two approaches in this case – it conditions the permission to kill the thief on the threat to the life of the victim. Although it allows this to be done even without in-depth investigation, and the fear that the thief is dangerous is enough to permit his killing, it clearly seems that the basis of the permission is the fear for the life of the victim, and not the right to protect property.

Ostensibly, according to the law, a violent thief (violent, not murderous) can act in front of the homeowner, disobey requests and warnings, and leave him without his property. Isn't there a sinner who benefits and a righteous person who loses, solely because of the righteous person's observance of the laws of the law?! In this article, I would like to show that, at least according to some of the rabbis, a person is permitted to protect his property, even at the cost of the thief's life (at least when there is no other choice), even when there is no danger to his life.[1]

A. The issue of 'coming underground'

The verses dealing with the law of the one who comes underground (Exodus 22:1-2) are found within a section detailing the punishments for the thief (Chapel, four and five):

If a man steals an ox or a sheep and slaughters it or sells it, he shall pay five oxen for the ox and four sheep for the sheep. If the thief is found in a hiding place and is struck and dies, there is no bloodguilt for him. If the sun has risen on him, there is bloodguilt for him, he shall pay in full; if he has none, he shall be sold for his theft. If he finds the theft, it is found in his hand, whether it be an ox or a donkey or a live sheep, he shall pay two years.

The verse simply states that the killing of the one who comes underground is the result of his intention to steal (as in the American approach), and only if the thief has already come out with the loot in his hand ("if the sun has risen on him"), then it is forbidden to kill him.[2]

Since these verses deal with the punishments for theft, it seems that killing the thief is also a punishment imposed on him for stealing. This is therefore the extreme of the American approach: not only is the homeowner permitted to kill the thief in order to save his property, but he also serves as the court that punishes the thief for his act. The picture that emerges from this is that this is not a killing whose purpose is only to prevent theft, but here there is also the execution of the death penalty for theft.[3]

Ostensibly, this approach also emerges from the mishna, which brings the judgment of the one who goes underground immediately after the judgment of a rebellious son and a teacher, as two cases in which a person is judged by the name of his end: "The one who goes underground is judged by the name of his end" (Sanhedrin 58:46). That is, the killing of the thief is a punishment for the crime he is about to commit – namely, the theft.[4] The conclusion of the Mishnah – “He came secretly and broke the barrel – if he had blood, he is liable; if he had no blood, he is exempt” – also supports the view that killing the thief is his punishment, since the law of “Kim liyya badarba minya,” according to which a person is not punished with death and a fine for one act, applies only when the person is liable to the death penalty.[5]

In contrast to the approach emerging from the simplified versions of the Bible and the Mishnah, the Gemara (Hebrews 1:1) holds that killing the thief is not a punishment for his actions, but rather stems from the risk to the life of the homeowner:

Rava said: What is the reason for the subjugation? - It is a strong belief that no one puts himself above his own wealth. And the one who says: "If I am not able to do it, I will not be able to do it for you, and if I am not able to do it for you, I will kill him." And the Torah said: "If he comes to kill you, be quick to kill him."

Therefore, when there is no immediate danger to the life of the homeowner, he is prohibited from killing the thief. This is evident from the rest of the Gemara, which states that a person is prohibited from killing his father when he comes to his home in secret, since it is clear that the father would not kill his son, and therefore there is no danger to the life of the homeowner. The Gemara also quotes the words of Rav, who states that even if the person who comes in secret is not the homeowner's father, but the homeowner knows for sure that the thief will not kill him, he is prohibited from killing him. This is also how the halakha was ruled (Rambam, 3:10, Geniva 9:9-10).

From this it appears that the halakha is not like the American approach, that the protection of property justifies harming the life of the thief, but only a danger to life justifies it. According to this, the law of the 'underground thief' is literally the law of a 'pursuer', from whom it is permissible to save by killing him.

B. Between an underground visitor and a persecutor

1. Distinguishing between an undergrounder and a persecutor

Despite what emerges from the Gemara, there are several laws that distinguish between the law of the one who comes underground and the law of the one who pursues:[6]

1. First, it is worth noting that the Gemara does not explicitly define the one who goes underground as a persecutor at the beginning of its words, but rather uses unusual language – “He who comes to kill you, let him kill him.” Although the Gemara later writes “Ka means that he is a persecutor,” it seems that the Gemara remains in its principled position that the one who goes underground is not considered a persecutor, and merely compares the judgment of one person with the judgment of another.
2. The Baraita (Sanhedrin 27:2) required a special study of the verse "And he struck - with every person" to teach us that the permission to kill the thief is not given only to the Ba'ab, but is given to every person. Were it not for the verse, the Gemara says, "Clear your mind, Amina: The owner of the house is a man of great strength, so that a person does not put himself on his property, but not others - it means that he is a pursuer, and even another is a pursuer." Such a present Amina did not arise at all on the issue of 'pursue',[7] And truly, if the basis for the permission to kill the thief is to save the life of the homeowner, there is no room for such a presumption.
3. On the same issue, a baraita is cited that teaches that it is permissible to kill a thief even on Shabbat: “He is liable for bloodshed – whether on a weekday or on Shabbat; he is not liable for bloodshed – whether on a weekday or on Shabbat.” If the reason for permitting the killing of the thief is for the sake of protecting life, what justification could there be for prohibiting it on Shabbat, and why is a special study needed for this purpose?

Furthermore: The Gemara explains that the innovation "whether on a day off or on Shabbat" is necessary because "Your mind is clear from the hand of God that the killing of the court of justice is not on Shabbat - it means that they are killed." The present tense of the verb "amina" to describe the one who comes in hiding to kill the court of justice is consistent with the approach that emerges from the simple readings, that killing the thief is a punishment, and not just protecting the life of the Ba'ab. Admittedly, this is only the present tense, and it is possible that the Gemara understands the conclusion that killing the thief is indeed only a salvation, and not a punishment.

4. The same baraita also teaches: "And he died – by any death that you can kill him." And the Gemara explains that although this is a halakha for every murderer, learned from the verse "The death of the one who strikes is a murderer" (Numbers 33:21), if you cannot kill him by the death written in it (i.e., by sword), you are permitted to kill him by any death. If it were not for the special teaching, we would not know that it is also the law for those who go underground. However, this statement raises a question: If the killing is for the purpose of saving the life of Ba'ab, what would be the reason for not killing the thief except by sword?

It is worth noting that a murderer should initially be killed with the sword, and only if he cannot be killed in this way can he be killed in another way. Some of the first writers also wrote about a persecutor that initially he should be killed with the sword, in order to carry out the murderer's punishment, and only if this is not possible should he be killed in another way.[8] But while those first ones simply call a murderer a persecutor, and conclude that he too can be killed by any means, it is impossible to call a murderer a follower in the underground, and the Gemara requires special study for this purpose. Once again, we see that the follower in the underground is not an ordinary persecutor, and there are differences between the law of one and the law of another.

2. Why is the Ba'ab not required to give up his wealth?

Beyond the halachic differences between an undercover agent and a pursuer, there is also an important fundamental difference between them. When a person sees a thief breaking into his house, his life is not in danger, and he always has the option of not resisting and letting the thief leave with his loot. Only if he tries to defend himself will he create a situation in which the thief wants to kill him. Why, then, did the Torah allow the Ba'ab to protect his property at the cost of the thief's life? And isn't the thief's life more important than the Ba'ab's wealth?! Moreover, isn't it forbidden to kill the pursuer when he can defend himself by harming one of his limbs (Sanhedrin 1:1). Why, then, is it permitted for the Ba'ab to harm the thief when he can prevent the danger by giving up his property?

And we will add and ask: As we have seen, the owner of the house is permitted to kill the thief even on Shabbat. And here, a person is commanded to spend all of his wealth so as not to violate a prohibition, and how was he permitted in this case to hold onto his wealth at the cost of desecrating Shabbat?

This question becomes more acute in light of the issue of "foreigners who besieged the towns of Israel" (Eruvin 45:1; Rambam, Hala Shabbat 2:23), which states that if gentiles besiege the towns of Israel in order to steal their wealth - they do not desecrate the Sabbath against them and do not wage war against them.[9] The Shulchan Arbiter rules this law according to the law (O'H Shech 29:6), and next cites the name Terumat Hadashan: "At this time, even when they came to the business of money - from the defilements, that if the Israelites did not allow us to deprive them of their money and despise them - they would kill them, and woe to them for the business of lives."[10] Ostensibly, this is precisely the law of the one who comes underground; therefore, the words of the Maga, who commented on this (section 5), are puzzling:

And the question is, should we allow him to take the wealth and not desecrate the Sabbath? And it is possible that since no one puts himself above his wealth, they are afraid that someone might stand against them and kill them, and therefore desecrate the Sabbath. But in the case of a single person – he should be allowed to take from his own and not desecrate the Sabbath..

If so, our question above led the Maga (and following it, the Mishnah Berura, 15) to rule that a single person who steals on Shabbat – “let him take his own property and not desecrate Shabbat.” The author of Archot Chaim wondered about this (16:6; see Shmirat Shabbat-Kehilacha, chapter 40, 8a): How does this law reconcile with the law of the one who comes in hiding? And we will return and ask: Why did the Torah really permit the blood of the thief even on Shabbat, when he could have let him steal his property, thus preventing both his killing and the desecration of Shabbat?[11]

It can be concluded that the Torah took into account the nature of man (the homeowner), who, even if he were commanded not to defend himself, would not comply: "A man should not place himself on his property" (Sanhedrin 27:1). But it is difficult, since the Mishnah (Shabbat 17:2) prohibits saving more than a certain amount of food from fire on Shabbat, and the reason is as explained there in the Gemara: "Since a man is in a hurry for his property, why should he not say to him - I am the one who will extinguish it." The prohibition of extinguishing is a rabbinical act (a task that does not require a body), and yet – contrary to human nature – it is required of a person to stand aside, to see his property destroyed and not lift a finger. Halacha holds that this is a possible task. Why, then, when a person's life is at stake, does the Torah not require a person to refrain from defending himself? What's more, as we have seen, the Torah permits killing a thief even on Shabbat; and if so, extinguishing is prohibited while taking a life is permitted![12]

Our question can be resolved in another way: the thief is the one who created the situation in which Ba'ab was forced to choose between giving up his wealth and taking his life. If the thief had not come underground, Ba'ab could have kept his wealth and would not have been forced to harm anyone's life. Since the thief is the one who forced Ba'ab to choose – he must bear the consequences, and he is not permitted to use the halachic defense of "thou shalt not murder" to force Ba'ab to give up his property. A similar situation is similar to that of a robber who demands a passerby to give him a ration and threatens him with murder if he refuses. This robber also forces the passerby to choose between violating the prohibition of "thou shalt not murder" and protecting his property, and he is not permitted to use the prohibition of "thou shalt not murder" to force him to make the choice that is most convenient to him.[13]

And yet, even this excuse is difficult, because as we saw above, it is permissible to kill the one who comes underground even on Shabbat. Even if the Torah deprived the thief of the halachic protection of "thou shalt not murder," why did it permit the violation of Shabbat? And in order not to violate Shabbat, a person must give up all his wealth, and how was it permitted for the Ba'ab to violate Shabbat in order to save his wealth, instead of giving up his wealth and thereby eliminating the danger?

The laws that distinguish between the one who is in hiding and the one who is pursuing, as well as the fundamental difference between them – that the one who is pursuing intends to kill while the one who is in hiding intends only to steal, teach us that the permission to kill the thief is not based on considerations of protection of life and does not stem from threats to the life of the innocent. As we will see below, there is another reason for this permission, and that is: the right of a person to protect his property.

D. It is permissible for a thief to protect his property at the cost of the thief's life.

As we have seen, the Gemara explains that the basis for the permission to kill the one who comes in hiding is the assumption that a person does not put himself in charge of his property, and the statement: "And if a thief were to kill him, let him kill him." Maimonides (Heb. Geniva 9:9) explains that it is the thief who is likely to kill the owner of the house, if he tries to stand up to him: "And why did the Torah permit the blood of a thief, even though he came in charge of property? According to his assumption that if the owner of the house stood up to him and prevented him, he would be killed."

However, the Rabbi explained it differently (and so it is in the hand of the Rabbi):

Certainly not all thieves are not against the interests of their lives, and why would a thief immediately be able to eat and weigh his belongings – not kill him, so that a thief would not be able to steal to save his life?! Rather, in Ba'ab, it is he who stands against him in order to kill, if he does not immediately put down the tools. Although he is not under the law to kill him for this, it is assumed that no one sets himself against his belongings. And the thief, who knows this, when he stands against him – he stands against the interests of his lives. And he who started the quarrel, and came secretly, the scripture says, pursuing, and saying that he has no blood.

At the beginning of his speech, the Rabbi states that a thief does not come for the sake of life, but later – in the middle of a conversation – he writes that the thief is indeed “standing for the sake of life.” It seems that the Rabbi’s intention is that the thief does not intend to kill Ba’ab, but Ba’ab has a legal right to protect his property even at the cost of the thief’s life. Although “it is not lawful to kill him for this,” and it is not appropriate to take this right into one’s own hands, but since this is Ba’ab’s right – we were not charged with murder. As a result, the thief knows that his life is in danger, and therefore he is also willing to kill Ba’ab in order to save his life. Since the thief is willing to kill Ba’ab, a real danger to his life is created, and in any case he is permitted to kill the thief in order to prevent the danger to his life.

According to the Rabbi, therefore, the danger posed to the life of a thief is a kind of legal fiction, which justifies killing the thief in order to protect property. The halacha compares the punishment of the one who comes underground with the punishment of the one who pursues, even though they are different in nature, and as the Rabbi says: "The scripture is persecuting. And he said he has no blood." His approach is an 'American approach': the Ba'ab has the right to protect his wealth, and even kill the thief to do so.

This concept clarifies the uniqueness of the law of the one who comes underground, and explains the differences between him and the pursuer. The permission to kill the thief does not stem from the danger to the life of the thief, but from his right to protect his property. Therefore, the law does not condition the killing of the thief on the actual risk to the life of the thief, and even if he can prevent the danger to his life in some way – for example, by giving up his property – he is permitted to kill the thief in order to save his property.

Indeed, it is clear in law that this permit – even if it is based on the right to protect property – is conditional on the existence of some risk to the life of the animal. Two possible reasons can be put forward for this:

1. In order not to create a contempt for human life, the Torah did not want to completely permit the life of the thief. Therefore, the Torah determined that some risk, even if indirect, to the life of the thief was required in order to permit the killing of the thief. This risk is negligible, and therefore does not justify the application of the laws of 'pursuer', but it is sufficient to define the thief as a 'halakhic pursuer' and justify the exercise of the right of the homeowner to his property. When this risk does not exist at all (such as a father coming to steal from his son), the Ba'ab is prohibited from killing the thief.

      In other words: the risk to the life of a thief is a halachic fiction (presumption), the purpose of which is to allow him to protect his property. Contrary to the usual rule, according to which "a suspect of property is not a suspect of life," the Torah established a halachic presumption, according to which the thief will certainly not hesitate to kill a thief, and therefore it is permissible to kill him. The Torah established this presumption in order to protect the right of a thief to his property, but the halachic device that permits the killing of a thief is not the danger to property but the danger to life. When there is absolute certainty that the thief will not kill a thief - this certainty, of course, outweighs the presumption; however, when there is a risk, even if only formal, to the life of a thief - the Torah established that it is permissible to kill the thief.

      A similar mechanism, of halakhic fiction, we find in the law of 'because': there too there is a formal mechanism that aims to permit engaging in the needs of one's own food, and there too this permission is contingent on the slim chance that guests will come. When theoretically it is possible that guests will come – the Torah permits relying on a slim chance and preparing food for them; however, when there is no chance that this will happen – the permission is null and void, even though the purpose of the permission is to prepare food for the person himself, and not for guests.

2. Another possibility for understanding the need for the existence of risk is the fact that when there is no risk at all to the life of the victim, this means that he can defend himself without killing the thief, and in any case there is no need for permission to kill him. Only when there is a risk, even a theoretical one, to the life of the victim, does the Torah permit killing the thief and does not require the victim to risk his life. The permission to kill does not stem from the danger to the life of the victim (since he can give up his property), but rather because of his right to protect his property, but the Torah permitted him to kill only when there is a theoretical fear for his life.[14]

Since the risk in this case is merely a fiction, the Torah does not go into detail about the boundaries of the risk, and only when it is absolutely clear that there is no risk does the permit become void. This is how the halakha is formulated in the chapter on "Homam 6:15":

Therefore, one should not kill him unless he knows for certain that if the owner of the wealth stands up to save him from his money, he will rise up against him and kill him. And who is he? Every person has this power, and can kill him, unless he knows that the hunter loves the owner of the wealth and will not kill him, even if he stands up to save him from his money.

Unlike a persecutory law, there is no near certainty required here that the persecutor will kill the persecuted. This difference stems from the fact that in 'coming underground' the permit is not a persecutory law, but rather to save property. The threat to life is required only as a background, so that we can bring the permit within the boundaries of the categories of Pikoun and persecution.

But why did the Torah establish the fiction that the thief is trying to kill, and thereby, in effect, impose the death penalty for theft? If the chance that the thief will kill Ba'ab is low, why did the Torah permit his killing? It seems that the essence of this law is the fact that the thief seeks to exploit the law in a cynical way to his advantage. The thief tries to take refuge under the prohibition of "Thou shalt not murder" which prohibits Ba'ab from killing the thief in order to protect his property, and therefore the Torah took this protection away from him. Similarly, when the thief enters a house on Shabbat and tries to exploit the prohibition against taking a life on Shabbat to his advantage – the Torah also takes away this halachic protection from him, and permits killing him even on Shabbat.[15]

This explains the halakhah we saw in Magen Avraham above, according to which Gentiles who come to steal are not considered to be "come underground." These Gentiles do not intend to exploit the prohibitions of the Torah for their own needs, and it must be assumed that they are completely unaware that the prohibition "Thou shalt not murder" protects their lives. They wage wars by force of arms, and do not base their actions on the halakhic prohibition against killing them or desecrating the Sabbath, and therefore, although the prohibition against murder was permitted for them in order to defend themselves, the desecration of the Sabbath was not permitted.[16] For this reason, according to the Maga, an individual who is attacked by gentiles on Shabbat to steal from him must give them his property, since their sole intention is to steal by force; however, one who comes underground on Shabbat is permitted to be killed, since his intention is to use the prohibition "Thou shalt not murder" as a halakhic shield.[17]

E. Evidence from the words of Maimonides[18]

1. Coming underground is the law of the thief

A study of the Rambam reveals that he also does not see the one who comes underground as a mere persecutor. The Rambam places the laws of the one who comes underground within the framework of the laws of theft, while he places the laws of the persecutor in the context of the murderer and the preservation of life.[19] If the underground was a private case of an ordinary persecutor, he should have been treated as a murderer.[20]

Also in the Book of Commandments (Ma'at Ralat), the law of coming underground is a section of the laws of the thief, and not of the laws of the pursuer, as Maimonides wrote there:

And the mitzvah of the Talmud is the Torah that we have instructed in the law of the thief that he should be fined double, or four or five times, or killed if he came secretly or was sold, and in general all the laws of the thief…[21]

It is clear from the Rambam that killing the thief is a punishment for the act of theft, and not an act whose purpose is to save the Ba'ab from the (minor) risk that the thief will try to kill him. If there were a significant risk to the Ba'ab's life, the one who came in hiding would be considered a persecutor – but we saw above that he is not considered a persecutor. It appears, therefore, that the Torah gave the Ba'ab permission to protect his property even at the cost of the thief's life.

2. Permission or commandment

Regarding the one who comes underground, Maimonides rules (Hebrew: Geniva 9:7): “The one who comes underground… permission "Everyone has to kill him." This is in contrast to Maimonides' words regarding the persecutor (Hebrew: Rotsech 1:6-9): "All Israel Mitzvah To save the persecuted from the hands of the persecutor, and even in the soul of the persecutor… this is Mitzvahs you shall not do "Not to spare the soul of the pursuer."

Since killing a thief is permitted and not a commandment, one can learn from the wording of the verse, "He has no blood on him" (Exodus 22:1) – meaning, he is only exempt from punishment.[22] However, if the one who came underground is condemned as a persecutor, why is there only permission to kill him, and not an obligation? With regard to the Ba'ab himself, it could be explained that he is permitted to give up his property and thereby save the thief's life; however, how can killing the thief be permission for a third person, who does not know whether the Ba'ab will give up his property or risk his life? And how is it possible that an act that is permission and not a mitzvah, is permitted to be done in a manner that violates the Sabbath according to the Torah?

It is necessary for us to realize that there is really no real situation of pikuach nefesh here, and therefore killing the thief is only permitted. The Torah defines such a situation as persecution, in order to allow the Ba'ab to protect his property even at the cost of the thief's life, even though there is no real danger to the Ba'ab's life. Defining the danger as pikuach nefesh extends the permission to a third person as well, but does not make killing the thief a mitzvah and an obligation.[23] As we explained above, the law freezes all prohibitions that might protect the offender, and therefore the prohibitions of murder and the Sabbath are frozen. If killing the thief were due to the danger to the life of the Ba'ab, it would be impossible to explain why it is not obligatory.

3. The manner of killing

As noted above, the Maimonides writes about the one who goes underground that "everyone has permission to kill him... by any means that can kill him" (Hebrew: Geniva 9:7). In contrast, the Maimonides writes about the pursuer: "Anyone who kills a soul... his death is by the sword... but the one who pursues his companion is to be killed... for all Israel is commanded to save the pursued from the hand of the pursuer, even with the life of the pursuer" (Hebrew: Rotesh 1:1-7).

Why didn't the Rambam emphasize in the book of the murderer that the pursuer is killed by any means possible, as he emphasized in the book of the one who came underground? This means that while the pursuer is killed as punishment for coming to kill (and the only difference between him and a murderer who is sentenced in court is that the former was killed before he committed the crime, and the latter after he committed it), and therefore he is initially sentenced to the sword,[24] Going underground is not an execution of the death penalty for intent to kill, but rather the exercise of the right to protect property (or punishment for theft), which is not exactly a sword.

4. It is assumed that the thief does not place himself on his property – is that true?

Rava said: What is the reason for your hiding? It is a strong belief that no man puts himself above his own wealth. And the one who said: If he did not take it - if he did not take it from me, and if he did not take it from me - if he did not take it from me - we killed him. And the Torah said: If he comes to kill you - hurry up and kill him. (Sanhedrin 8:1)

As we saw above, the Rishonim disagreed over the identity of the one who does not put himself above his property. The Rabbis interpreted this as the owner of the house, who would certainly not stand by while his property was being stolen, and the thief – who knows this and is ready to kill him – is sentenced to death. In contrast, the Maimonides understood that the thief is the one who does not put himself above the property he stole (Hebrew: Geniva 9:9):

And why did the Torah allow the blood of a thief, even though he came for financial matters? Because it was assumed that if the owner of the house stood in his way and prevented him, he would be killed; and it was found that the one who entered his friend's house to steal was pursuing his friend to kill him, and therefore he would be killed...

According to Maimonides, the assumption "No man places himself on his own property" is meant for the thief, who will not allow Ba'ab to take his stolen property, and will murder him instead of abandoning the theft and fleeing. Maimonides' intention is, apparently, to emphasize that this is a situation of persecution, and that Ba'ab's life is indeed in danger.

However, we generally know that a person suspected of a minor offense (theft) is not a suspect of a serious offense (murder). Why is the thief here suspected, according to Maimonides, of killing Ba'ab if he tries to confront him? It turns out that this is not a factual assumption, but a normative determination: when there is any chance that the thief is coming to kill, we treat him as a persecutor, in order to prevent him from receiving the protection of the halakha.[25]

5. The degree of certainty of the danger to life

Further evidence that the danger to life is not the main reason for the permissibility of killing a thief can be found in the conclusion of Maimonides' words (Heb. 9): "Therefore, he shall be killed, whether he was great or small, whether male or female." Is it true that the female or the small person endangers the life of the homeowner?! Of course, the killing is due to the threat to property (which also exists from the female or small person), and the danger to life only applies to the thief a halachic definition of "pursuer."

Indeed, the Gemara states that normally, when a person discovers a thief trying to break into his house, he is permitted to kill him. Only when there is certainty that the thief will not try to kill the other person (such as a father who steals from his son) is he prohibited from killing him (Hebrew: Geniva 9:10).[26] This is in contrast to the law of persecution, which only applies when there is near certainty that the persecutor actually intends to kill.

What is the ruling on a person who kills a thief, even though it is certain that he did not intend to kill? In such a case, the Maimonides rules (Hebrew: Geniva 9:10): "It is forbidden to kill him, and if he kills him, he is killing a soul." In the following laws, with regard to a thief who comes out of hiding and with regard to a thief who enters a place where the owners are not present, the Maimonides rules in the following terms: "He has blood on him." It is perhaps possible to conclude from this that since the main reason for the permissibility of killing a thief is to save the property, and not to save the life of the thief, then even in a case where it is certain that the thief will not kill the thief, the one killed is not punished with death.[27]

Evidence for this approach can perhaps be found in the Ran's method cited above. As we recall, according to the Ran's method, the permission to kill the thief does not stem from the danger to the life of the Ba'ab, but from his right to protect his property, and therefore the halakha does not condition the killing of the thief on a real risk to the Ba'ab's life. In any case, it appears that according to him, even in a case where it is certain that the thief will not kill the Ba'ab, such as in the case of a father who comes to steal from his son, if the son kills his father, the Ran will retroactively legitimize this, and will not judge the son as a murderer. In modern terminology, it is said that the son can be accused of manslaughter, but not of murder.[28] Admittedly, this interpretation of the Rabbi's words is not necessary, and should be examined further.

6. An alternative way to rescue

With regard to the pursuer, the Rambam ruled that if possible, one should spare him, and if it is possible to save the pursued with one of the pursuer's limbs, one should do so and not kill him (Hebrew: Rotesh 1:7-8). In contrast, the Gemara and the Rambam do not mention these reservations with regard to the one who goes underground, and some of the latter were precise in stating that one should not spare him, and that it is permissible to kill him even if the danger to the life of the thief can be stopped with one of the thief's limbs (Rabbi Hamra-Vechay on the issue of the gem in the Sanhedrin; Responsa Shvut Yaakov Hab 2 3. Kapaz; Responsa Beit Zebul Hab 2 3.2; and more).

How is it possible that against a pursuer – who seeks to kill the pursued – one must make every effort not to kill him, while against a person who is in hiding – whose main intention is to steal, not kill – it is permissible to kill him even if the same goal can be achieved by harming his own reputation? The author of Shevut Yaakov is asked this question, and offers two answers to it. His first answer is that the pursued is in a hurry for his life, and he should not be required to consider alternatives before killing his pursuer. In this way, every person would be considered ‘the pursued himself’ in relation to the person in hiding. However, since there is a dispute about the extent of the obligation of the pursued himself to consider alternatives before harming the pursuer (see Mishnah-Lamelech 33:10),[29] The author of Shevut Yaakov offers another excuse: he came underground – "Since he committed an act, came underground, he is considered a real murderer. Because there is absolutely no need to save him from one of his limbs. Since Bashar is pursuing – a slave of a man of great strength and not a slave, and perhaps his intention was not only for one of his limbs, since he came underground he is considered a murderer." However, this excuse is also puzzling: How is it possible that the expected danger to the life of the pursued is higher when the pursuer's intention is to steal, and not when his intention is apparently to murder?!

Above, we explained that the permissibility of killing a thief does not stem from the danger to the life of the victim, but from the fact that the thief seeks to use the prohibition against killing him as a shield when he harms his friend. Ostensibly, the same is true of the pursuer, who also seeks to use the halakha as a shield when he harms his friend, and according to our words, the Torah should have permitted the blood of the pursuer, just as it permits the blood of the one who comes in hiding. It turns out that the very fact that the thief is in hiding permits his blood. In the pursuer, the danger to the life of the victim permits the life of the pursuer, and therefore if this danger can be neutralized in one of the pursuer's limbs, he is prohibited from being killed. In the case of a thief, on the other hand, the fact that the thief enters another's house in violation of the prohibition and seeks to steal from there permits his blood, and not the danger to the life of the victim, and therefore in any case his blood is permitted, regardless of the danger to the life of the victim.[30]

In other words, this excuse is formulated in the words of the Rabbis in his novellas on the Maimonides (Heb. Rotesh 1:13): It is permissible for a thief to kill the one who comes in hiding, and he is not required to seek an alternative way to stop the theft, since he is considered a "gabra katila."[31]

Maimonides also wrote: "Any thief who has blood money – if a wave falls on him on Shabbat, he is supervised; and if he breaks utensils upon his return, he is obligated to pay. But whoever does not have blood money and breaks utensils upon his return – is exempt." And why did he not write that those who do not have blood money are supervised by the wave?[32] It was found that despite being trapped under the wave, he no longer endangers the life of the homeowner. In any case, he is considered a slain man and there is no need to save him, for even when he can be saved with one of his limbs, he is considered a slain man.

F. The law of morality is learned from the one who comes underground and teaches about it

1. The permission to kill morality stems from the danger to money.

The law that comes underground comes and teaches about the law of morality, as the author of the Maimonides glosses at the end of the book of theft in the name of the Samga (Levin, end of chapter 69) and the Fearers (chapter 60):

Rabbi R. A. Meitz (= the Fearers) would compare the matter of the devoted one to that of a person who goes underground, since a person does not place himself above his own wealth, and therefore it is permissible to kill him, as stated in the book of the thief (BK 17:1): "Rabbi Kahana, who is a traitor to the koa, is devoted." And so it is in the Jerusalemite book of the son of Sorer and Moreh (H8).

Applying a persecutory law to the moralist also stems from the assumption that when the Gentiles come to take the Jew's wealth, he will certainly stand up to them, and they may kill him. The Gemara in the Bible does indeed deal with the law of the moralist and permits his blood, but what is the evidence from Jerusalem?

In the commentary on the Jerusalem Pillars of Jerusalem, he explained that the evidence is from the words of Rabbi Shimon bar Yochai in the Jerusalem:

Even outside of the underground, he has no blood, since a person's wealth is as dear to him as his own life. His father-in-law, Ai Mitav, has lost his wealth, and Alavi and Kataliya are coming.

The conclusion that emerges from the words of Rashbi is that in any case of a financial dispute, the owner of the money is permitted to kill the thief, since any argument is liable to deteriorate into a threat to life. Even when the thief has already completed his theft, and he certainly will not return to Ba'ab's house to kill him - Ba'ab is permitted to kill him, since the Torah stated that "he has no blood." From this, the Rishonim concluded that it is also permissible to kill a moral person, since he also endangers the wealth of Israel.[33]

Indeed, in Maimonides' answers (Sefer Nezikin Teshuvah 15)[34] It is stated that the killing of the moral is due to the future danger to life, when Israel will fall into the hands of the Gentiles and they will slander him, and not due to the danger to wealth alone. But even according to his method, it seems that this danger to life is future and slight, and within the normal framework of the law of the "pursuer" and "persecutor", we would not consider it. It is only because of the danger to life, and due to the innovation that the Torah has introduced in the law of the one who comes underground, that it is permissible to kill the moral. In this case too - as in the case of the one who comes underground - the danger to life is nothing but a fiction, the purpose of which is to justify the protection of wealth even at the cost of the life of the one who endangers it. Thus, for example, the Rosh wrote in his responsa (17:1; see also 17:6):

This was practiced throughout the Diaspora, where there is a saw that is held in the sense that three times the Israelite or their property is in the hands of an ensign, Who seek advice and stratagem to punish him (in the Venice edition, 66: to destroy him from the world), because of the circumcision of the circumcised, and that others be punished and that there be no more punishers in IsraelAnd also to save all Israel who are persecuted under his hand.

The Rosh explicitly writes that one must seek "advice and stratagem" to kill the moralist, and hence the punishment differs from that of an ordinary persecutor, who may be killed without the need to find "advice and stratagem."[35] It turns out that even the Rosh believes that the permissibility of killing the moral does not stem from the future danger to life that it may cause, and that this danger to life is merely the halachic device that allows the killing of the moral.

2. Why didn't the sender get rid of payments?

The words of the Hagam, who teaches the law of the giver from the law of the one who goes underground, were criticized by the latter (see Pani-Yehoshua, 1917:1; Minchat-Hinuch, Mitzvah Relu; Responsa Ahiezer, 1918:2, 55 and according to the method; Chiddushei R. Meir Simcha, 1917:1): Why is the giver obliged to pay for the financial damage he caused, when the Torah permitted his killing, and with regard to the one who goes underground, it was ruled that if he broke utensils during his theft – he is exempt from paying for them because 'he had committed a crime of his own making'?

To explain this question, let us examine the words of the Shulchan Arba (Hom Shaphah, 10; and also in Rambam, Havval Vamzik 8:10):

It is permissible to kill the one who betrays even at this time. And it is permissible to kill him before he surrenders, except when he says: I will surrender so-and-so in his body or in his property, even if it is a small property – he has permitted himself to be killed. And they release him and say to him: Do not surrender, if he dares to say: No, but I will surrender him – it is a mitzvah to kill him, and whoever kills him first – merits.

Haga: And if there is no time to indulge in it, there is no need for warning. And it is not permissible to kill a murderer unless it is impossible to save him from one of his limbs, but if it is possible to save him from one of his limbs, such as cutting out his tongue or gouging out his eyes – it is forbidden to kill him, for he is no less a persecutor than the rest.

The Shulchan Arbiter (following the Maimonides) justifies the permissibility of killing morality by saying that it "allowed itself to die." It does not mention any future danger to life that morality might cause.[36] Of course, the argument that the moralist allowed himself to die is not sufficient to permit the killing of a person: And if a person says, "I am a murderer and a murderer," will this be permitted?! It turns out that this expression is intended to teach that the moralist's boldness proves that he hopes that the law will protect him. And as mentioned, whoever cynically comes to shelter under the shadow of the law, the law strips him of all protection and permits his blood.

It should be noted that the Shulchan Arbiter rules that one must seek permission from the Mosser before killing him, and only if he dares to do so is it permissible to kill him. From now on, it seems to explain that the Mosser does not really pose a danger to life, but only a danger to money, and therefore he is similar to a father who comes to steal from his son, who has blood money and does not have the law of "Kim Liyeh Baderba Miniya." For this reason, the Halacha established that one must seek permission from the Mosser before killing him, in contrast to someone who goes underground - who does not need to seek permission from him before killing him. And yet - even though there is no danger to life from the Mosser's actions, if he is granted permission and he does not respond - it is permissible to kill him. The fact that the Mosser does not respond to the warning shows that he trusts that the Halacha will protect him, and in relation to such a person, the Halacha suspends all the Halacha that might protect him. Perhaps this is also evidence of our statement above, that even in the case of a father who comes to steal from his son - if the son killed his father, despite the fact that he is forbidden to do so, he is exempt from punishment.[37]

Finally, we will mention another law stated in the moral law – a person who is held to deliver, it is permissible to kill him even after he has already committed the act of delivering (Shulchan Shulman Shaphak, 9-11). If we continue the parallel between moral law and the law of coming underground, we will conclude that a thief who is held to steal, and does not accept the warnings that prevent him – it is permissible to kill him even after he has stolen.[38]

G. Summary

• The permission to kill the one who is in hiding is based on two foundations: one – the right of a person to protect his property, and the other – the fact that the Torah removes all protections from those who try to abuse its laws. The fact that this permission is contingent on the danger to the life of Ba'ab can be explained in one of two ways:

1. This is just a fiction, aimed at preventing the desecration of human life;
2. When there is no danger, the property can be protected without killing the thief, and in any case, he should not be killed unnecessarily.

• The laws of the underworld, according to which it is permissible to kill the thief only when there is a threat to the life of the thief, were stated only in a situation where the property can be protected without killing the thief. When the property cannot be protected without killing the thief – it is permissible to kill him even without a threat to life.
• Since the permission to kill the thief is based (even if only fictionally) on the danger to the life of the thief, the existence of a threat – even if only theoretical – to life is required. Such a threat constitutes a formal justification for killing the thief. In the absence of a threat to life, killing is prohibited.
• Despite this, if the thief is allowed to continue his actions, it is permissible to kill him, even if he does not pose a threat to life, and even on Shabbat.
• Similarly, if he passed by in a hurry and killed the thief in a place where there was no danger to his life – he is not punished for this killing.

attache:[39] No one kills for money matters.

The author comes with groundbreaking innovations, not the invention of our ancestors (for the record).[40] And since we are dealing with the law of persons, I will not refrain from commenting.

A. In the author's opinion, even in a situation where there is no presumption that bloodshed will result, such as a father against his son, in retrospect, if the son killed his father - he is exempt. The author relies on the words of the Rabbi, who states that the presumption that a person does not place himself on his property and is not dependent on it is not attributed to the thief, but to the Ba'ab, who will not allow the thief to steal, to the point of killing him. The thief knows this, and therefore is able to kill the homeowner in self-defense. If so, it follows that the thief in himself is not a recipe for killing, but rather that it is the Ba'ab's legal right to kill the thief, even though he came for financial matters only.

This is an innovation that not only has no mention in the Gemara, but also contradicts the plain meaning of the verse "blood is for him" and the words of the Gemara "he has blood." The rabbinic court also does not allow such a conclusion to be drawn from the words of the Rabbi. Even if the assumption "no man puts himself above his own property" is a psychological assumption, it may be legitimate in the eyes of the halakhah. The halakhah takes into account human nature, and since the thief will come to kill Ba'ab out of self-defense, Ba'ab is permitted to go ahead and kill him.

The author contrasts this halakha, which takes into account that a person does not put himself over his property, with the halakha that prohibits extinguishing a fire on Shabbat. However, in reality, there is no contradiction between these halakha. Indeed, the halakha prefers Shabbat over property, and commands him not to put out a fire on Shabbat. On the other hand, in the case of the person who comes underground, there is another option to avoid killing and desecrating Shabbat, and that is – for the thief to retreat. And since it is strong that a person does not put himself over his property, the Ba'ab is permitted to resist. And since there is now a danger to life, he is permitted to go ahead and kill the thief. The thief has brought himself into a state of pursuit. In a different style, the Rabbinical Rabbi Auerbach says this (Minchat-Slomo 1:37): In a fire, "this harm was decreed upon him from heaven, and therefore he is not permitted to transgress even the rabbinical prohibition of saving his property; However, if it is done by a person who threatens to kill him…” And I was content with the case of a person pursuing his friend to kill him, and the pursued person can escape or kill his pursuer, who is permitted to kill? Is there a situation here similar to “No man puts himself above his own property”?

B. The author points out a difference between the law of the one who comes underground and the law of the one who pursues – in the case of the one who pursues, there is a mitzvah to save him with one of his limbs, while in the case of the one who comes underground, no similar halacha is mentioned in the Rambam. Simply put, since the Rambam likened him to the pursuer, he relied on the student to find in the law of the pursuer the obligation to save him with one of his limbs.[41]

C. According to the author, if a thief is warned by a father and does not respond, it is permissible to kill him initially, even without a threat to his life, as in the case of a father against his son. This is a radical innovation that contradicts the plain meaning of the verse, “blood will be shed for him.” And even in a real chase, a warning is needed initially, as a kind of warning (Rambam, Hala Rotesh 1:7), and even more so if someone who comes in secret needs this, when possible. If so, everyone who comes in secret needs a warning, and yet in the case of a father against his son – “blood will be shed for him,” and it is forbidden to kill him. We have not heard that an unheeded warning would turn a prohibition into a permission.[42]

D. The author bases his innovation on the law of "morality", and there he understood that the G.M. also spoke of a case in which there is a threat of money only, without a threat to lives. However, this is not the case. The Rosh already wrote in his rulings (B.K. Pi. 37): "Like a priest... Even the wealth of Israel, since it fell to the Akkadians, is not pitied, and today they take some of it and tomorrow they take all of it, and finally they torture his soul and kill him so that he may confess that perhaps he has more money, and he is a persecutor, and his soul can be saved." The expression "like a priest" in the G.M. is interpreted as a threat to lives. And this should be understood more against the sociological background of Gentile-Jewish relations, when the "moralists" would withdraw from the community and cooperate with the Gentiles who hated Jews. Therefore, one should not examine a particular case, since the phenomenon of "giving away" is viewed in halakhic terms as part of the law of persecutors.[43]

E. Relying on the opinion of Rashbi in Yerushalmi Sanhedrin 58:58, that even a thief who steals secretly "has no blood," is flawed, since the law is not so, as the Maimonides says in Halacha Thieva 9:11. Also, according to Rashbi in Yerushalmi there ("A man's wealth is dear to him as his own life"), it is not a question of the danger to life having passed, see the commentary of Pani-Moshe there: "When he sees a she-goat following him and wants to take the wealth from him, he will stand up to him and kill him...".

6. Regarding the difficulty of Gentiles besieging the towns of Israel, which in the Gemara (Aruvin 45:1) forbade the desecration of the Sabbath – the baraita explicitly contrasts between “they came for financial gain” and “they came for personal gain.” It is clear, then, that in the situation of “they came for financial gain” – the intention is that there is no danger to personal gain, similar to the ruling of a father who comes to steal from his son, whose blood is not forgiven.[44]

7. Regarding the division of the Magen-Avraham (Shecham, 29:5), between an individual who endangers the Ba'ab and many, according to what I wrote in Sha'ari-Tzedek (Volume 6, p. 73) to distinguish between a thief who breaks into a person's house and yard, a place from which there is no retreat, and one who steals property in a field outside the house, where, in the Maga's opinion, the individual has a duty to retreat. The house has a special status, because there is nowhere to flee. This is also what the English proverb says: A person's house is his fortress.

H. It should also be noted: Maimonides explicitly states that a thief who enters a friend's garden, field, or barn is not considered to have come underground and is prohibited from being killed, since "his claim to have come is solely on the property, since most of the owners are not located in these places." This may be the situation that Shai Dromi faced. On the other hand, it is possible that the farm adjacent to the house is within the boundaries of his yard and his garden, which are within the boundaries of his house, and this requires examination.

Beyond that, it is clear that even when a thief tries to break into a field, there is some danger to the life of the thief, and yet the Rambam ruled that he is not considered to be going underground. We see that a certain level of danger to the life of the thief is required in order to allow the thief's blood to be shed.

9. Indeed, there is no escaping the conclusion that the punishment of the underground comer is broader than that of the persecutor, and is not limited to a place where there is a real and immediate danger to the life of the Ba'ab. It turns out that the reason for the special punishment of the underground comer is the severe violation of the Ba'ab's autonomy. The underground comer is not a robber, nor is he an ordinary thief, but a burglar who desecrates the sanctity of the Ba'ab's house, and enters it in order to steal property from him. The Torah treats with particular severity a person who breaks into a person's house, and assumes – as a starting point – that a person who behaves in such a way, and penetrates the most private place where the person is, will probably not hesitate to kill him.[45]

J. In conclusion, it should be noted that it is incorrect to determine laws, especially in matters of life, based on intuition. Not only is moral intuition not a sufficient source, and therefore not in matters of life, but it is also not certain. If the author's intuition justifies the Ba'ab who kills the thief, mine says the opposite – that one should not kill for financial matters alone, unless there is also a fear of life.[46]

[1]I will not deal here with the subject of a gentile who goes underground and the differences – if any – between him and a Jew who goes underground. I will only refer to Rabbi Shaul Israeli’s article on the act of kivia (right-hand page, page 16), from which it emerges that a person is also forbidden to save himself with the life of a gentile or his property. See also my article “The Problem of the Public and the Private and the Jenin Dilemma,” Tzohar 14.

[2]This is how the plainness of the Bible appears, and this is what David Haneshka wrote in his article 'The One Who Came Underground – The Midrash's Attitude to the Plainness', Maggid 7, around notes 4-8 in the name of Rabbi Bechor Shor and Hezkuni; and see also the article by Yoel Elitzur, Maggid 6. In our opinion, our conclusion below can also be applied to the interpretation of the verses, but our concern here will be with halacha, not interpretation.

[3]It should be noted that the latter also wrote about the persecutor (see, for example, Afiki-Yam, 2:35), that his killing is not done only in defense of the persecuted, but also as a pre-emptive punishment for the fact that he is about to commit a crime punishable by death.

[4][It is clear that the killing of a rebellious and disobedient son is a deterrent, not a punishment, as the Mishnah says: “A rebellious and disobedient son is judged by his end – The righteous will die, and the guilty will not die." (P.H. 45). For this reason, his punishment is not by the sword, as is the punishment for a murderer, but by stoning. – Editor's note (Y.B.)]

      Author's answer: For the law, it is clear that "destined for the name of his end" means that a disobedient and errant son is already liable to death because of the act that has not yet been committed, that is, killing him is a punishment, not a deterrent. The phrase "the righteous should die, and the guilty should not die" means that it is better to punish him now, before he has committed the sin, and not after it has been committed. In this way, the judgment of a disobedient and errant son is similar to the judgment of a persecutor, who is also "destined for the name of his end," and as we will see later, killing him is a punishment, not just a deterrent. The offense that a disobedient and errant son will commit is a matter of dispute between the Talmuds and the Rishonim - whether it is murder or theft.

[5]This is exactly what the author of Afiki-Yam, Ch. 2, said, both regarding the pursuer and regarding the one who comes underground.

[6][See my article 'Self-defense at the cost of the pursuer's life', in Tecumin 10, pp. 76 ff., where the connection between the person who goes underground and the pursuer is discussed in detail. The pole of my articles there is built on the distinction between rescue by a third person and defense by the pursued himself. This distinction is related to the opinion of the Mishnah (Haval Vemzik 8:10), who wrote that the pursued does not need to be careful to "save with limbs". But even with the opinion that the pursued should be careful in this, there is still a difference between him and a third person. There is a psychological consideration of the natural urgency of the pursued to rush to defend himself, even at the cost of mutual danger. And the AYISH also considers the rescue of close family members as "self-defense" and not as "rescue". Halachic consideration of this natural behavior undermines a significant portion of the author's arguments in this article, and there is no need (and in any case no room) to renew it, because the issue of "coming underground" is a type of punishment for financial dealings, and not precisely a defense related to the danger of life. – Editor's Note (Y.R.)]

      Author's answerThis claim is hidden on its face, since the issue itself does not distinguish between the Ba'ab and a third party. In Rabbi Rosen's article, the opinion of the House of Zebul was presented, which should be explained by the fact that anyone who stands to save the persecuted is in the same threat as the persecuted himself, and therefore there is no need to mention him explicitly. This opinion undermines the distinction that he himself is trying to establish, between someone who comes underground and a persecutor, since this is the situation with every persecutor.

[7]. Although, it is possible that this stems from the fact that the verses that constitute the source of the din roved explicitly deal with a third person coming to save the persecuted ("The betrothed girl cried out, and there was no one to save her"), and in any case there is no need for special study for this purpose. However, if we understand it this way, another question will arise: Why did the Gemara not teach that a third person is permitted to kill the one who comes in hiding from the din roved himself, and why did it need special study from the verses?

[8]See, for example, Meiri Sanhedrin 2:2; Ran Sanhedrin 2:1; and also the exact language of Maimonides in Rotesh 1:7, from a comparison with his language in Genba 9:7.

[9]As we will see below, the Ram Shach concluded from this issue that the law of the one who comes underground is a special decree of the Scripture for the thief, and does not stem from the threat to the life of the thief. However, even according to his opinion, one must ask – why was the law of the one who comes underground taken away from these Gentiles?

[10]According to the assumption of Tervad, that the Gentiles of his time were more violent than the Gentiles of the days of the Gemara, Rav Schach's question of the law of the one who comes underground is settled by the law of "Gentiles who besiege the towns of Israel": the baraita dealt with Gentiles who do not endanger lives, and therefore one should not fight them on Shabbat, in contrast to the thief who comes underground, which it was stated that he endangers the lives of the Jews. It turns out that Rav Schach disagrees with the words of Tervad, regarding the nature of the Gentiles of the days of the Gemara, and therefore he was forced – similar to what we say below – to argue that killing the one who comes underground is a punishment for his theft.

[11][Rash"za Auerbach (Minchat-Shlomo 137) justified this question according to his method, that a person does not have to invest much money or effort in order to avoid desecrating Shabbat instead of protecting one's life: "Just as it is permissible to make one's friend swear and one does not need to feel sorry for the one who stumbles him by saying, 'You shall not carry,' so it is permissible to rise up against a thief and not feel sorry for the one who thereby makes him a persecutor and allows his blood to be shed." See also what is cited in his name in Shimirat Shabbat Kehalita, Chapter 44, 88, p. – Editor's note (12/10).]

      Author's answerThis principle itself indicates the relationship between the value of protecting property and the value of protecting the life of the person threatening, and therefore my principled argument also stands.

[12][There may be no contradiction here. On the one hand (in the matter of the fire) – the halacha commands a person to sacrifice all of his wealth so as not to desecrate Shabbat; on the other hand (in the matter of the person who is hiding) – the thief does not know whether Ba'ab will meet this challenge and refrain from desecrating Shabbat, and he also knows that it is human nature not to put himself above his wealth. Therefore, the thief fears that Ba'ab will rise up against him to kill him even on Shabbat, and in any case prepares to kill Ba'ab in order to save himself. Therefore, Ba'ab – for his part – is also permitted to kill the thief, out of concern for his own life. – Editor’s note (Y.B.)]

      Author's answer: If so, why doesn't the Torah command Ba'ab to hide, and then neither of them would be killed?

[13]This principle can be learned from the permission given in the Gemara for Zimri to kill Phinehas who attacked him (Sanhedrin 42:1), even though he could simply stop his act and thus prevent Phinehas from killing him. Baal Keli-Hemda (end of Par. Balak) explains that since Phinehas, by his act, forced Zimri to choose between ceasing his sin and killing Phinehas, he must bear the consequences, and he cannot use the halakhic defense of "You shall not murder" to force Zimri to stop sinning. Certainly Zimri's right to sin is much less than Ba'ab's right to protect his property. See also Mishnah-Lelmelech 1:15; Tzafnet-Penech 12:5; Responsa Minchat-Shlomo 1:37; Chiddushei R. Shmuel Rozovsky, Pesachim, p. 12-20.

      [It is difficult to see "Thou shalt not murder" as a halakhic defense. It is an obligation imposed on the Ba'ab, and not a 'halakhic defense' on the thief, and in any case he cannot 'give up' his 'right' not to be murdered. – Editor's note (Y.B.)]

      Author's answer: As the Rabbis are precise (in his novellas on Maimonides, Hala Rotesh 1:13), there are two laws regarding the permission to kill the pursuer: the cancellation of the pursuer's right to life ("he has no blood"), and the permission is the prohibition "you shall not murder." The Torah does not only forgive debts, but also creates rights, and see what I wrote in "Mida Tova" 137 (Council of 5767). In any case, the prohibition of desecrating the Sabbath is certainly not someone's "right," and yet the Torah permitted it for the purpose of killing the thief. The Torah freezes all laws that protect the perpetrator, even if they are not defined as laws based on rights.

[14][This possibility is not consistent with the opinions presented later in the article, according to which the Ba'ab is permitted to kill the thief even if he can prevent the theft by harming one of his limbs. Also, if the Ba'ab's life is not at real risk, but only at theoretical risk, why did the Torah permit him to kill the thief? – Editor's note (Y.B.)]

      Author's answer: Indeed, this comment repeats my question: Why was the Ba'ab allowed to kill the thief? The answer is that this is a fiction aimed at preventing the contempt of human life, but the permit itself is based on the right to protect property and the expropriation of defenses, as above. Furthermore, it is possible that in a situation where there is no risk to the Ba'ab's life – the law of "coming underground" does not apply; but if there is a risk to the Ba'ab's life, and the law of "coming underground" applies – he is again not obliged to scrutinize the possibility of being satisfied with harming the thief's limbs.

[15][This argument is extremely puzzling, as it can be made regarding any punishment prescribed by the Torah. And would it be conceivable, for example, that a person who speaks slander about his friend, and his friend tolerates it and does not stop, is permitted to kill him because "he seeks to rely on the prohibition of 'You shall not murder' which prohibits killing him"? From the moment the Torah has prescribed a punishment for a person who speaks slander - this is his punishment, and nothing more, and it is forbidden to punish him with a more severe punishment, which he 'relies' on not being punished with. In exactly the same way, from the moment the Torah has prescribed that the punishments for a thief are payments, doubling, four and five - these are the punishments for the thief, and he is permitted to 'rely' on not being punished with death for the offense he committed. - Editor's note (Y.B.)]

      Author's answer: Killing the thief is not a punishment for the thief, but rather a defense of the Ba'ab against him (or a third person, on Ba'ab's behalf). The reason why the Torah exceptionally permitted killing one person to protect the interests of another person is that the first person (the thief) seeks to use the laws of the Torah to harm his neighbor. Where slander becomes a phenomenon that threatens society, and assuming that it involves a fear – even a remote one – of protecting one's life, it may be permissible to kill the slanderer as if he were a traitor.

[16]. And if we ask: Why is it permissible to kill them, while it is forbidden to desecrate the Sabbath? It turns out that in order to be permitted to kill the thief, there is no need to believe that the halakha abrogates the prohibition of "thou shalt not murder," and it is sufficient that he threatens to kill someone who does not hand over his money. When a person threatens me with death if I do not give him my money, the halakha does not oblige me to hand over the money, and I am permitted to fight him in order to save my money. And R. Minchat-Shlomo, Ch. 1, 37, who presented numerous evidence for this.

[17][And that the permission to kill depends on the subjective intention of the thief? And what will be the ruling on a thief who enters the house of a person who does not observe Torah and mitzvot, who does not hesitate at all to transgress the prohibitions of Shabbat and "Thou shalt not murder"? Isn't this thief using halacha as a shield – and why would it be forbidden to kill him on Shabbat?! – Editor's note (Y.B.)]

      Author's answerThe assumption of the Torah is that a Jew is an observant of Torah and commandments, and this is what the halakha is supposed to be (and indeed, above we offered a similar explanation regarding Gentiles, according to the Magen-Avraham method). Admittedly, it is necessary to discuss what the halakha will be when this situation changes, and so on.

[18]The main points below are also presented in the book Avi-Ha'ezri, Hal' Geniva pt. 9; Hal' Rotesh pt. 1; Hal' Sanhedrin pt. 4.

[19][Indeed, the laws of the one who goes underground are located at the end of the laws of theft (Pt. 9), while the other penalties for theft – double, four, and five – are presented in Part 1 of those laws. By way of comparison, the laws of the pursuer are presented in Part 1 of the laws of the murderer and the preservation of life, as a direct continuation of the description of the murderer's punishment. – Editor's note (Y.B.)]

[20]It is necessary to examine why the Shulchan Arash does not mention the law of the one who comes underground at all, and only the Rema in Khum 551 (in the context of dealing with the law of persecution) writes that the law of persecution also applies to the one who comes underground, and not just immediately.

[21]The one who comes underground is also mentioned as one of the laws of theft in the Book of Education (Mitzvah 44). See also Moreh-Nevuchim (33), where the killing of the one who comes underground is included in the framework of the "punishments" (in chapter 14), and not alongside the pursuer, in the framework of the tort laws whose purpose is to "remove injustices or prevent damages" (in chapter 40). After writing these words, Jonathan Blass wrote, similar to our words, "If the thief is found underground and beaten and dies - between punishment and salvation", the Ministry of Justice's weekly section, issue 276, Mishpatim 5767.

[22]This is how the Tosafot (Sanhedrin 33:1, i.e., even a murderer) explained why the law of persecutor is not taught from the law of the one who comes underground – since killing the one who comes underground is permitted, while killing the persecutor is obligatory. The Rabbi added in his novellas that this permission is given to every person, and not necessarily to the owner of the house, and this also emerges from the words of the Rambam. Indeed, according to the opinion of the Tosafot, it was possible to interpret that after the Torah renewed that the one who comes underground is subject to the law of persecutor, in any case every law of persecutor applies to him, and even a mitzvah to kill him (see Afiki-Yam, Ch. 2, 34; Margaliot-Haim, on the website). As stated above, this is not what emerges from the words of the Rambam.

[23]It should be noted that the Rambam finds it appropriate to note that the permission to kill the thief is given to both the murderer and a third person. In the Hebrew text, there is no such detailed mention of a pursuer. The Rambam wants to mention the present tense in the Hebrew text, that there will be no permission for a third person, in order to teach us that the law of the one who comes in hiding is not the law of a regular pursuer. The same is true regarding the mention of the permission to do so on Shabbat, which also does not appear explicitly in the Hebrew text, Murderer and the Protection of the Soul.

[24]. The author of Aruch-Lanner Sanhedrin 82, 255, and the author of Afiki-Yam 82, 256, and the author of Afiqi-Yam 82, 257, and the author of Sama 55, 258, are also accurate in their language. And see also in Sama 55, 558. Although, the Rambam in his novellas wrote that even one who comes underground is initially sentenced to the sword, and apparently he sees the threat to life as the basis for the punishment itself. As stated above, the Rambam apparently disagrees with him, and in his opinion, killing the thief is a punishment for theft, and not a response to the threat of murder. However, these things contradict our interpretation above of the Rambam's opinion, that the permission to kill the thief is for the purpose of protecting the property, and not for the purpose of protecting the soul. Perhaps the basis of the permission is indeed for the purpose of protecting the property, but after the Torah applied a persecutory law to the thief, this law was applied to him in all its details, including the obligation to initially kill him with the sword. Indeed, the Meiri (ibid.) writes that initially the person who comes underground must be killed with the sword, since all the laws of the persecutor have been applied to him.

[25]The Rambam was correct in writing "as a pursuer," and not "as a pursuer." I have already argued this in my article on Tecumin 27 (p. 146), where the Rambam also used the term "as a pursuer," and not "as a pursuer," with regard to a fetus that harms its mother. The author of Even-Hazel (Hebrew: Geniva 9:7-8) was similarly accurate, and he included examples from the Rambam's books.

[26]The Gemara (Heb. 1-2) cites two rulings – according to one, it is permissible to kill a thief only when there is certainty that he intended to kill, and according to the other, it is permissible to kill him even in a state of doubt. The Gemara contrasts the two rulings, and decides as the second. It is possible to see this ruling as evidence that, also from the perspective of the explanation, it was clear to the sages of the Gemara that it is permissible to kill a thief even in a state of doubt (see Rashbam 22:12, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 10

[27]. According to the novellas of the Gira"z on the Maimonides, Rotesh 1:13, which distinguishes between two laws in the judgment of the one who comes underground: on the one hand – "he has no blood," meaning that the one killed is exempt from punishment, since he is considered a "man of war"; and on the other hand – "every person has the authority to kill him," even from the outset. If the phrase "he has no blood" indicates exemption from punishment, then the phrase "he has blood" indicates that the one killed is punished for it. In any case, in a place where the Maimonides refrains from writing "he has blood," such as in the case of a father who steals from his son, despite the fact that a son is forbidden to kill his father, if he kills him – he is exempt from punishment. And see also the article of the Neske (above, 8:2), 8:23.

      [As mentioned above, the Maimonides ruled on a thief who enters a garden in the words "he has blood." It simply seems that the danger to life of a person who enters a thief's house is greater than the danger to life expected of a son from his father (which is the case cited in the Gemara as an example of a thief who certainly would not kill Ba'ab). In any case, it is difficult to argue – as the author says – that in the latter case, if Ba'ab killed the thief, he is exempt from punishment. – Editor's note (Y.B.)]

[28][Indeed, the simple meaning of the Gemara – “He has blood” – is that killing him is considered murder. – Editor’s note]

[29]According to Rabbi Israel Rosen's article in Tecumin 10, pp. 76-89.

[30][Now, after this explanation has been provided, there is no longer any need for the explanation provided throughout the article for the law of the one who comes underground. Indeed, the one who comes underground is not a persecutor, and he is not killed because of the danger to the life of the Ba'ab. However, the reason why the Torah permitted the blood of the one who comes underground is not the fact that he "uses the laws of the Torah as a shield," but the fact that he enters another's house and 'profanes the sanctity of his house' in order to steal from him. Therefore, the permission of the one who comes underground is limited to the thief specifically (and not to the robber or other criminals), and specifically to the Ba'ab's house (and not to his yard or field, whose 'sanctity' has been diminished). And see also in Manchat Shlomo (Chapter 37), who understood that the law of coming in secret was also applied to a person who enters his neighbor's house in order to harm him, and not necessarily to steal from him, and hence he too saw the focus of this law in the forbidden intrusion into the house. – Editor's note (Y.B.)]

      Author's answerFirst, this ruling of the Gershon Zechariah proves my own words, that the permission to kill does not depend on the law, but is intended for the purpose of protecting property or a person (and if he is prevented from harming anyone, who is in danger of murder? We did not find this in the Gemara). Second, the explanation based on the desecration of the sanctity of a person's home is certainly not better than my suggestion, and in fact it almost repeats it. In any case, there is no dispute here about the innovation itself, that the permission is not due to danger.

[31]Therefore, a thief who breaks utensils while coming underground is exempt from paying for them, since he is considered a "dead man" (Rambam, 3:13).

[32]The commentators of the Rambam disagreed on this. See Magen-Abraham, Mishnah-Berura and Be'or-Halacha 39.

[33]Indeed, even in the Babylonian issue cited in the Ha-Gami as a source for the law of the provider (BK 17:1), the reason for permitting the killing of the provider is not a fear of future punishment, but only the fact that the Gentiles do not have mercy on the wealth of Israel. And so in the Rambam, Ha-Havel and Mizik, 8:10, and in the Shulchan Shulchan Shaffah, 10:11.

[34]. And so in the responsa of the Rosh, chapter 17; in Mordechai, chapter 17; in the responsa of the Maharam of Rothenburg, cited in the book by Chom Sussi Shaphak).

[35][He simply used this language because the messenger enjoys the protection of the monarchy, and against him there is no other option but to resort to advice and tricks. – Editor's note (ed.)]

[36]Even the House of Joseph mentions the Maharam's words, about the danger to life in morality, only at the end of his words and incidentally.

[37][It seems that the law of Musar according to the words of the Shula and the Rema is more similar to the law of persecution, and not to the law of coming underground: it is obligatory to punish him, it is commanded to kill him, and one must try to save him with one of his limbs. – Editor's note (Y.B.)]

      Author's answer: Only the Rema mentions the obligation to save one of its members, and only in the words "some say." Apart from this, it seems that the Shulchan Aruch believes that it is "permissible" to kill the moralist, as he says at the beginning of his remarks, and the word "mitzvah" at the end of the section is merely a word of reinforcement.

[38]According to press reports, this is apparently what happened in the case of Shai Dromi, who was shot in the back by one of the thieves as he fled.

      [Apparently, the case of Shai Dromi, in which the thief tried to steal animals from his farm, falls exactly within the limits of the halacha stated in the Rambam (Halal Geniva 9:12): "And so he who secretly brings into his garden or into his field or into the pen and the enclosure – he has bloodguilt, whose liability is only for the property, since most of the owners are not present in these places." – Editor's note (1992)]

[39]By the editor Rabbi Itamar Verhaftig.

[40].  Author's answerI will mention that the words certainly appeared in the Gemara, and therefore whoever claims that the conclusion is different – he has the evidence. I will also mention that in Avi-Ezri he concluded this way, and in Manach-Shlomo we also found a source that believes this way. The rest of the evidence (which is necessary for the answer), are not they written on the pages above. Therefore, 'not our ancestors were naked' is a very exaggerated expression.

[41]. Author's answer: As stated in the article, several of the great Aharonim pointed out in Rambam that there is no obligation to save the thief with one of his limbs.

[42].  Author's answer: The warning does not turn a prohibition into a permission, but rather ensures that the person is aware of the offense he is committing and permits the shedding of his own blood. According to the words of the scholar, how can a warning of a person who violates Shabbat "permit his killing" by the Jewish Law?

[43].   Author's answer: Refer to the body of the article, which also states that in the opinion of the Rosh, the reason for killing the moral is not the future danger to souls. I will also mention what I mentioned above, because there is an explicit disagreement among the Rishonim on this, and there is no need for precise language. The explanation I proposed is the opinion of the author and the Rema, and hence its halakhic weight.

[44].   Author's answer: How is it possible that Gentiles who rob are not suspected of killing, and that an Israelite who goes underground is suspected of even murdering? It is clear that the same danger to life that a Jewish thief faces from a Jewish thief who goes underground also faces him from Gentiles who besiege his home.

[45].  Author's answer: Comments 7 and 9 are mentioned as an error in the body of the article, and I have already responded to them that the sanctity of one's home is an invention that does not fall short (to put it mildly) of my innovation, and is even less plausible than it.

[46].   Author's answer: The issue of ruling based on intuition is indeed a worthy subject to answer. The Judiciary has an important place for intuition in ruling, and in fact there is no possibility at all of ruling technically, without using intuition as a deliberate tool. It is clear that every ruling must be based on the sources, but it has already been stated in various places, such as Beit Yosef and Hazon-Ish, that it is better to push with language than to push with reasoning. The illusion that it is possible to rule without resorting to intuition is naive positivism, which most contemporary approaches to legal theory do not support. In any case, it seems that the opinion of the author of the appendix is based on his intuition, and in what way is it superior, therefore, to the article based on my intuition?