LIABILITY OF AND FOR A TREIFAH
(Beraisa): If 10 men hit Reuven, each with a different stick, and he died, whether they hit him at the same time or one after the other, they are exempt;
R. Yehudah ben Beseira says, if they hit him one after the other, the last one is liable, for he made him die sooner.
(R. Yochanan): Both of them expound the same verse, "v'Ish Ki Yakeh Kol Nefesh Adam";
Chachamim say, "Kol Nefesh" connotes that he kills the entire Nefesh;
R. Yehudah ben Beseira says, "Kol Nefesh" connotes any amount of a Nefesh (even if he was going to die).
(Rava): All agree that one who kills a Treifah is exempt (he was already mortally wounded. The murderer merely quickened his death);
All agree that one who kills a Goses b'Yedei Shamayim (a sick person who will probably die) is liable (his body was intact).
They argue about a Goses b'Yedei Adam (a wounded person who will probably die). Chachamim consider him like a Treifah, and R. Yehudah considers him like a Goses b'Yedei Shamayim.
Chachamim consider him like a Treifah, for he is injured;
R. Yehudah considers him like a Goses b'Yedei Shamayim, for his vital organs are intact (unlike a Treifah).
(A reciter of Beraisos): "V'Ish Ki Yakeh Kol Nefesh" includes if Reuven hits Shimon not hard enough to kill him, and Levi killed him. Levi is liable.
Objection: If Reuven did not hit him hard enough to kill him, obviously Levi is liable!
Correction: Rather, Reuven hit him hard enough to kill him, and Levi is liable. This Stam (anonymous) Beraisa is like R. Yehudah ben Beseira.
(Rava): One who kills a Treifah is exempt. If a Treifah killed someone, he is liable only if it was in front of Beis Din;
In front of Beis Din he is liable due to "u'Vi'arta ha'Ra mi'Kirbecha" (testimony is not needed);
Not in front of Beis Din he is exempt because the testimony cannot be Huzam. (We could not kill witnesses for trying to kill a Treifah.) Such testimony is invalid.
(Rava): One who is Rove'a (has Mishkav Zachar with) a Treifah is liable;
If a Treifah is Rove'a in front of Beis Din. he is liable, due to "u'Vi'arta ha'Ra mi'Kirbecha";
If a Treifah is Rove'a not in front of Beis Din he is exempt, because the testimony cannot be Huzam.
Question: Why must Rava teach this in addition to his previous teaching?
Answer: He needed to teach the case of one who is Rove'a a Treifah. One might have thought that this is like Bi'ah with a dead person (which is exempt);
Rava teaches that this is not so. Since he enjoys the act, he is liable.
(Rava): If witnesses testified about a Treifah and they were Huzmu, they are exempt;
If Treifah witnesses were Huzmu, they are killed.
Rebuttal (Rav Ashi): Also Treifah witnesses who were Huzmu are not killed, because the testimony of the Mezimim (who said that the witnesses were somewhere else) cannot be Huzam (we could not kill healthy Mezimim for trying to kill Treifos. A very small minority of people are Tereifos, so we do not say that the testimony could be Huzam, i.e. through Tereifah Mezimim.)
(Rava): If a Treifah ox gored, it is killed;
If the ox of a Treifah person gored, it is not killed.
Question: What is the reason?
Answer: "Ha'Shor Yisakel v'Gam Be'alav Yumas" - an animal is killed only if its owner would have been killed (had he killed).
(Rav Ashi): Even if a Treifah ox gored, it is exempt;
Since its owner would not be killed (if he were a Treifah), it is not killed.
(Mishnah): If he incited a dog...
(Rav Acha bar Yakov): R. Yehudah holds that a snake's venom rests in its tooth. Therefore, one who sticks its tooth into a person directly killed him, he is liable, and the snake is not killed;
R. Yehudah holds that a snake bites and then injects venom. Therefore, the snake is killed. The person was only a Gorem, so he is not killed.
SOMEONE CRITICALLY WOUNDED
(Mishnah): If Reuven hit Shimon with his fist or a rock, and Beis Din assessed that Shimon will (probably) die:
If Shimon improved, but then worsened and died, Reuven is liable;
R. Nechemyah exempts, due to Raglayim l'Davar (circumstantial evidence that he did not hit him hard enough to kill him).
(Gemara - Beraisa - R. Nechemyah) Question: "Im Yakum v'His'halech ba'Chutz Al Mish'anto v'Nikah ha'Makeh" - would we think that the victim (Shimon) walks in the market, and the one who struck him (Reuven) is killed?!
Answer: The case is, Beis Din assessed that Shimon will die. He improved, then worsened and died. The verse exempts Reuven.
Question: What do Chachamim learn from this verse?
Answer: It teaches that we imprison Reuven until we see whether Shimon will die.
Question: What is R. Nechemyah's source to imprison Reuven?
Answer #1: He learns from the Mekoshesh (the one who gathered wood on Shabbos in the Midbar. He was locked up, and later killed.)
Question: Why don't Chachamim learn from the Mekoshesh?
Answer: He was locked up because he was surely Chayav Misah, but Moshe did not know which Misas Beis Din;
We cannot learn from there that we lock up someone if we do not know if he will be Chayav Misah.
Answer #2: R. Nechemyah learns (to imprison) from the Megadef (blasphemer);
He was locked up even though Moshe did not know whether or not he was Chayav Misah.
Chachamim do not learn from the Megadef because it was a Hora'as Sha'ah (a special enactment needed at the time).
(Beraisa): Moshe knew that the Mekoshesh was Chayav Misah - "Mechaleleha Mos Yumas";
He did not know which Misas Beis Din - "Ki Lo Forash";
Moshe locked up the Megadef, even though Moshe did not know whether or not he was Chayav Misah - "Lifrosh Lahem Al Pi Hash-m."
Question: According to R. Nechemyah, we understand why the Torah writes two extra phrases ("v'Lo Yamus" and "Im Yakum v'Hishalech ba'Chutz"), to teach about two cases in which we assessed Shimon to die, yet we do not kill Reuven:
Shimon later recovered;
Shimon improved and later worsened and died.
However, what do Chachamim (who are Mechayev in the latter case) learn from the two verses?
Answer: They teach that Reuven is exempt whether we assessed Shimon to die and he lived, or whether we assessed Shimon to live and he died.
R. Nechemyah does not need a verse for the latter. Once Beis Din (assesses that he will live and) exempts Reuven, they can never be Mechayev him.
(Beraisa #1 - R. Nechemyah): If Reuven struck Shimon and we assessed Shimon to die and he lived, Reuven is exempt;
If we assessed him to die and he improved, we make a second assessment for payment of damages;
If Shimon later dies, Reuven pays (the heirs) according to the second assessment.
Chachamim say, the second assessment does not override the first. (Since we first assessed him to die, if he eventually dies from the blow, Reuven is killed.)
(Beraisa #2): If we assessed him to die (and he improves), we can later assess that he will live;
If we assessed him to live (and he worsened), we do not later assess that he will die (from the blow).
If we assessed him to die and he improves, we later assess payment for the damage;
If he worsened and died, the damager gives the payments for Nezek (the decrease in his earning potential due to the blow) and pain to the heirs.
Question: When we assess Nezek, do we consider the victim's state right after the blow, or his state after we assessed that he will live?
Answer: We consider his state right after the blow.
This Stam Beraisa is like R. Nechemyah.