SANHEDRIN 78 - Dedicated l'Iluy Nishmas Reb Aharon David ben Mordechai Kornfeld upon the passage of 30 days since his Petirah, by his son Mordecai and his family.

QUESTION: The Gemara quotes a Beraisa which discusses a case in which ten people hit a man with sticks until he died. The Rabanan rule that whether they hit the victim simultaneously or whether they hit him one after the other, none of them can be punished by Beis Din for murder. Rebbi Yehudah ben Beseira argues and rules that when they hit the victim one after the other, the last person to hit him before he died is considered a murderer, for it is he who ultimately brought about the victim's death.
Rebbi Yochanan explains that both Tana'im derive their opinions from the same word in the same verse (Vayikra 24:17): "v'Ish Ki Yakeh Kol Nefesh Adam" -- " "When a man kills any person's soul [he shall surely be put to death]." The Rabanan understand that "Kol" (literally, "all") here means that a person is not considered a murderer until he kills "all" of that person's soul by himself. Rebbi Yehudah ben Beseira maintains that "Kol" means that a person who kills any part of the soul is considered a murderer. Accordingly, although the first nine people who hit the victim weakened him considerably, the last bit of life in his soul was taken away by the tenth person who hit him, and thus that person is considered a murderer. (RASHI explains that according to Rebbi Yehudah ben Beseira, the first nine people who hit the victim are not guilty of murder because of the word "v'Ish" in the verse. This word teaches that only one person ("Ish") can be guilty of a single killing, and not more than one person.)
TOSFOS (cited by the RAN) has difficulty with Rebbi Yochanan's explanation of the dispute. How can two Tana'im expound the same verse in two opposite ways? One Tana learns that the word "Kol" is inclusive, teaching that killing any part of a soul is considered murder, while the other Tana learns that the word "Kol" is exclusive, teaching that only when one kills all of the soul is he a murderer.
(a) TOSFOS answers that the dispute is not based merely on the meaning of the word "Kol." The Tana'im disagree about the meaning of another word in the verse: "Nefesh." Does "Nefesh" imply the whole soul, or does it refer even to part of the soul?
The Rabanan maintain that "Nefesh" means even part of the soul. Hence, they understand that the Torah's addition of the word "Kol" teaches that only when one kills all of the soul of another person is he considered a murderer. Rebbi Yehudah ben Beseira interprets "Nefesh" to mean a whole soul, and thus he learns that the addition of the word "Kol" is meant to teach that one who kills even part of the soul is considered a murderer.
(b) The RAN writes that it is not necessary to say that the Tana'im disagree about the meaning of the word "Nefesh." Rather, the word "Kol" indeed has two different meanings. It can mean either all of something or any part of something, depending on the context. When the verse says, "Kol Tzipor Tehorah Tochelu" (Devarim 14:11), it obviously intends to permit the consumption of all kosher birds and not just some of them. This is also the meaning of the word in Hash-m's command to guard "Kol ha'Mitzvah" (Devarim 8:1, 11:22, 27:1). The word "Kol" in those verses clearly means that one must observe all of the Mitzvos; it certainly does not mean that one must guard only some of the Mitzvos.
On the other hand, in a verse such as, "Lo Sochal Kol To'evah" (Devarim 14:3), the word "Kol" clearly means any: "You shall not eat any abomination." Even a small bit of a non-kosher animal is forbidden. The word "Kol" has the same meaning in the command, "Lo Sechayeh Kol Neshamah" (Devarim 20:16), the Mitzvah not to leave even a few people from the seven nations living in Eretz Yisrael. The argument in the Gemara here is which "Kol" is intended by the verse that discusses murder.
The ARUCH LA'NER takes issue with the Ran's translation. He explains that "Kol" always means all individual bodies that are pertinent. For example, "Lo Sechayeh Kol Neshamah" means not to leave alive all souls that are included in this decree. Likewise, "Kol To'evah" means not to eat all types of animals which are prohibited. Tosfos understands that Rebbi Yehudah ben Beseira's opinion seems to be more logical, since "Kol Nefesh" should mean all parts of the soul, including even one part. Therefore, Tosfos explains that the dispute involves the meaning of the word "Nefesh."
The Aruch la'Ner cites further proof for Tosfos' opinion from the words of the Toras Kohanim. The Toras Kohanim derives from the verse of "Kol Nefesh" that even one who kills a minor is deemed a murderer. This clearly is derived from the word "Kol." However, since there is a rule that only one law may be derived from each word, how can the Gemara here use the word "Kol" to teach an additional law? According to Tosfos, this is not a question, because the primary source for both opinions in the Gemara here is not from the word "Kol" but from the word "Nefesh." (Y. MONTROSE)


OPINIONS: The Beraisa states that Moshe Rabeinu knew that Tzelofchad -- who intentionally desecrated Shabbos (Bamidbar 16:32) -- deserved the death penalty, but he was uncertain as to the particular death that Tzelofchad deserved. What exactly was Moshe Rabeinu's doubt?
(a) The MOSHAV ZEKENIM and the CHIZKUNI comment that Moshe Rabeinu certainly knew the verse that states that one who desecrates Shabbos "shall be put to death" -- "Mos Yumas" (Shemos 31:14), and he knew that whenever the verse says "Mos Yumas" without specifying what form of death, the death penalty implied by that wording is Chenek, as the Gemara earlier (52b) teaches. However, he thought that perhaps a Gezeirah Shavah from the word "Chilul" in the verse that prescribes the punishment for someone who worships idols (Vayikra 18:21) teaches that one who desecrates Shabbos receives the same punishment as one who worships idols, which is Sekilah.
(b) Similarly, TOSFOS states that the doubt of Moshe Rabeinu was that perhaps the act of Shabbos desecration should be punished with Sekilah not because of the Gezeirah Shavah from Avodah Zarah, but because Shabbos desecration itself is a form of Avodah Zarah. One who desecrates Shabbos denies that Hash-m created the world (and implies that other forces created it). Consequently, he should be punished with Sekilah like one who serves Avodah Zarah.
REBBI AKIVA EIGER questions the logic of Tosfos. The Torah, in the same Parshah, teaches that a person who desecrates Shabbos receives the same punishment that Tzelofchad received -- Sekilah. According to Moshe's logic, however, perhaps only public desecration of Shabbos is tantamount to Avodah Zarah and deserves Sekilah, while one who desecrates Shabbos in private does not receive Sekilah, but rather Chenek.
The MARGOLIYOS HA'YAM and PARDES YOSEF answer this question. They cite many sources that state that in order to be called "public," an event does not need to take place in front of many people. The act is called a "public" act as long as many people will find out about it later. (For example, see MAHARIK #160, TASHBATZ 1:158, PRI MEGADIM YD 2:17.) Since every person who desecrates Shabbos and who will be put to death has at least two witnesses and twenty-three judges who know that Shabbos was desecrated. This makes every act of Shabbos desecration for which the violator is killed a public act.
The Pardes Yosef offers another answer based on the question of the SIFSEI TZADIK. Why did Hash-m, in His response to Moshe's inquiry about what punishment to give Tzelofchad, tell Moshe, "Mos Yumas ha'Ish, Ragom Oso va'Avanim" -- "The man shall be put to death, stone him with stones..." (Bamidbar 16:36)? Moshe knew the verse that says "Mos Yumas" with regard to one who desecrates Shabbos. Why, then, did Hash-m repeat that he should be put to death?
The Pardes Yosef answers that Hash-m was explaining to Moshe Rabeinu that although the punishment that Tzelofchad deserved was the same as the one that Moshe thought he deserved (Sekilah), the reason for that punishment was not the same as Moshe's logic for it. Since Moshe's logic would have limited the punishment of Sekilah to one who desecrates Shabbos in public, Hash-m told Moshe Rabeinu that one who desecrates Shabbos is punished with Sekilah regardless of whether the act was done in public or in private. Hash-m told Moshe Rabeinu that when He said that the Shabbos desecrater "shall be put to death" (Shemos 31:14), which includes both public and private acts of Chilul Shabbos, He meant that the punishment is Sekilah. This answers Rebbi Akiva Eiger's question. Hash-m's answer revealed something which indeed would not have been known from Moshe's question alone. (See KLI CHEMDAH, Parshas Pinchas, for an additional answer.) (Y. MONTROSE)