Babylonian Talmud: Tractate Sanhedrin

Folio 72a

GEMARA. It has been taught: R. Jose the Galilean said: Did the Torah decree that the rebellious son shall be brought before Beth din and stoned merely because he ate a tartemar of meat and drank a log of Italian wine? But the Torah foresaw his ultimate destiny. For at the end, after dissipating his father's wealth, he would [still] seek to satisfy his accustomed [gluttonous] wants but being unable to do so, go forth at the cross roads and rob.¹  Therefore the Torah said, 'Let him die while yet innocent, and let him, not die guilty.' For the death of the wicked benefits themselves and the world; of the righteous, injures themselves and the world. Sleep and wine of the wicked benefit themselves and the world; of the righteous, injure themselves and the world. The tranquillity of the wicked injures themselves and the world; of the righteous, benefits themselves and the world. The scattering of the wicked benefits themselves and the world; of the righteous, injures themselves and the world.

MISHNAH. [THE THIEF] WHO BURROWS HIS WAY IN²  IS JUDGED ON ACCOUNT OF ITS PROBABLE OUTCOME. IF HE BROKE THROUGH AND BROKE A JUG, SHOULD THERE BE 'BLOOD-GUILTINESS FOR HIM,³  HE MUST PAY [FOR THE JUG], BUT IF THERE IS NO 'BLOOD-GUILTINESS FOR HIM,⁴  HE IS NOT LIABLE.⁵

GEMARA. Raba said: what is the reason for the law of breaking in? Because it is certain that no man is inactive where his property is concerned; therefore this one [the thief] must have reasoned, 'If I go there, he [the owner] will oppose me and prevent me; but if he does I will kill him.' Hence the Torah decreed, 'If he come to slay thee, forestall by slaying him'.

Rab said: If one broke into a house, and stole some utensils and departed, he is free [from making restitution] — Why? Because he has purchased them with his blood.⁶  Raba⁷  said: It would logically appear that Rab's dictum holds good only if he broke the utensils, so that they are not in existence; but not if he merely took them [and they are still intact]. But in truth,⁸  Rab's dictum applies even if he merely took them. For [even] where there is 'blood-guiltiness for him', if the utensils are injured, he is liable. This proves that they stand under his [the thief's] ownership; so here too, they are under the thief's ownership.⁹  But it is not so.¹⁰  The Divine Law placed it under the thief's control only in respect of injury;¹¹  but as to ownership, it remains the property of the first owner,¹²  just as in the case of a borrower.¹³

We learnt: IF HE BROKE THROUGH AND BROKE A JUG, SHOULD THERE BE BLOOD-GUILTINESS FOR HIM', HE MUST PAY [FOR THE JUG]; BUT IF THERE IS 'NO BLOOD-GUILTINESS FOR HIM', HE IS NOT LIABLE. Thus, it is only because he broke it that he is exempt when there is no blood-guiltiness for him, but if he only took it, he is not exempt?¹⁴  — The same law [of exemption] applies even if he merely took it, and the reason it states, 'AND BROKE A JUG' is to show that if there is blood-guiltiness for him, he is liable even if he broke it. But is this not obvious, since he damaged it? — We are thereby informed that [he is liable] even if he broke it unintentionally. What does this teach us? That a man is always regarded as forewarned?¹⁵  But we have already learnt this: A man is always regarded as forewarned, whether [he did damage] unwittingly or wittingly accidently or deliberately. This is a difficulty!¹⁶

R. Bibi b. Abaye objected: [We learnt:] If one steals a purse on the Sabbath, he is bound to make restitution, since the liability for theft arose before the desecration of the Sabbath. But if he drags it out of the house, he is exempt, since they are simultaneous!¹⁷  — [No]. This ruling holds good only, if he threw it into the river.¹⁸

Raba was robbed of some rams through a thief breaking in. Subsequently they [the thieves] returned them, but he refused to accept them, saying. 'Since Rab has thus ruled,¹⁹  [I abide by his decision]'.

Our Rabbis taught: [If a thief be found breaking up, and be smitten that he die], there shall no blood be shed for him, if the sun be risen upon him.²⁰  Now, did the sun rise upon him only? But [this is the meaning: 'If it is as clear to thee as the sun that his intentions are not peaceable, slay him; if not, do not slay him.' Another [Baraitha] taught: If the sun be risen upon him, there shall be blood shed for him. Now, did the sun rise upon him alone? But if it is as clear to thee as the sun that his intentions are peaceable, do not slay him; otherwise, slay him. These two unnamed [Baraithas] contradict each other.²¹  — This is no difficulty:

1. Evil habits, even if not actually sinful, very rapidly lead to sin. 'For precept draws precept in its train, and transgression, transgression; for the recompense of a precept is a precept, and the recompense of a transgression, a transgression' (Aboth IV. 2).
2. V. Ex. XXII, 1. He may be killed by the occupier of the house with impunity.
3. I.e., if his death is punishable.
4. I.e., if he may be killed with impunity.
5. V. infra. Not in every circumstance was the house owner allowed to kill him.
6. Since he risked his life, which the owner could have taken with impunity.
7. The Rashal reads 'Rabbah'.
8. Lit., 'Oh God!' — an oath.
9. The reasoning is as follows: when something is stolen, it loses its first ownership, and passes into that of the thief, who is therefore liable for having removed it from its owner's control as for an ordinary debt. Consequently, he is liable even if it is broken. For if it theoretically remained in its first ownership, the thief would not be liable for any injury to it. Hence in this case, since the thief, by his act of breaking in, became liable to death, restoration cannot be demanded even if it is intact, for liability to monetary restoration is cancelled in the face of the greater liability to death.
10. Raba (or Rabbah), having proved that Rab's dictum holds good even if the utensils are intact, now demolishes the theory upon which it is based.
11. As explained in note 1.
12. And if intact, the thief cannot retain the stolen article and offer the value instead.
13. If one borrows (not hires) an article, and it is damaged in his possession, he must make it good, though it really remains the property of the first owner, who can claim the return of it intact, if available. So here too.
14. This contradicts Rab's ruling.
15. I.e., lack of intention, or an accident, does not free him from his full liabilities.
16. Nevertheless, it does not altogether refute Rab's ruling, since the Mishnah can be interpreted as holding good even if he took it, though as shown above, such interpretation is not very plausible (Rashi).
17. Lit., 'The prohibition of stealing and the prohibition involving stoning came together'. By 'stealing' is meant that he took it in his hand, thereby lifting it up from it's place. Lifting up is a method of formal acquisition, and as soon as he does this with felonious intent he has stolen it, and hence is liable for theft. But the Sabbath is not violated until he takes it into the street, the violation consisting of the carrying of the purse from a private domain (the house) into a public domain (the street). But if he drags it along the floor of the house, not lifting it up, the act of theft is committed only when it leaves the house; simultaneously with this, the Sabbath is desecrated. Since he is liable to stoning for the latter, he is exempt on account of the former, it being a principle that if a person simultaneously commits two wrongs, the greater only is punished. Hence we see that though the purse is still in existence, he is not bound to return it. This refutes Rab's ruling.
18. I.e., destroyed it. But if it is intact, he is bound to return it.
19. Lit., 'Since the matter came out from the mouth of Rab'.
20. Ex. XXII, 1ff. The clauses are thus coupled in this Baraitha, the Massoretic punctuation being disregarded.
21. The first implying that in doubt thou mayest not slay him; the second, that in doubt thou mayest.

Rab said: 'Any man that broke into my house, I would kill, excepting R. Hanina b. Shila.' Why? Shall we say because he is righteous [and therefore certain not to kill me]? Surely he has broken in!²  — But because I am assured that he would have pity upon me, like a father for his son.

Our Rabbis taught: [If the sun be risen upon him,] there shall be blood [damim] shed for him: both on a week day, and on the Sabbath. [If the thief be found breaking up, …] there shall no blood [damim] be shed for him:³  neither on week days, nor on the Sabbath. Now, granted that the exegesis of 'there shall no blood be shed for him', as including both week days and the Sabbath, is necessary, for I might think that this case is similar to that of those who are executed by Beth din, who may not be executed on the Sabbath:⁴  we are therefore told that [the thief] may be slain [even on the Sabbath].⁵  But why deduce 'there shall be blood shed for him', neither on a week day nor on the Sabbath? If he may not be slain on a week day, he may surely not be slain on the Sabbath? — R. Shesheth replied: This is necessary only to teach that a pile [of debris] must be removed for his sake.⁶

Our Rabbis taught: [If a thief be found breaking up,] and be smitten, — by any man; that he die, — by any death wherewith you can slay him. Now, [the exegesis] 'And be smitten, — by any man' is rightly necessary; for I might think that only the owner may be assumed not to remain passive. Whilst his money is being stolen, but not a stranger:⁷  it is therefore taught that he is regarded as a potential murderer,⁸  whom even a stranger may kill [in defence of the owner]. But what need of 'that he die', — by any death wherewith you can slay him'; can this not be deduced from a murderer? For it has been taught: He that smote him shall surely be put to death; for he is a murderer.⁹  I only know that he may be executed with the death that is decreed for him; whence do I know that if you cannot execute him with that death, that you may execute him with any other death? From the verse: He that smote him shall surely be put to death, implying in any manner possible!¹⁰  — There it is different, because Scripture writes, He shall surely be put to death. Then why not derive this from it? Because the murderer and the avenging kinsman are two verses with the same object, and the teaching of such two verses does not extend to anything else.¹¹

Our Rabbis taught: If a thief be found breaking in:¹²  from this I know that law only for breaking in [through the wall]: whence do we know it if he be found on the roof, in the court, or in an enclosure [attached to the house]? — From the verse, If the thief be found, implying, wherever he is [found as thief].¹³  If so, why state 'breaking in'? — Because most thieves enter by breaking in.

Another [Baraitha] taught: if a thief be found breaking in: from this I know the law only for breaking in: whence do I know it if he be found on the roof, in the court, or an enclosure? From the verse, 'If the thief be found,' implying. Wherever he is found as thief. If so, why state 'breaking in'? — Because his breaking in constitutes a formal warning.¹⁴

R. Huna said: A minor in pursuit may be slain to save the pursued.¹⁵  Thus he maintains that a pursuer, whether an adult or a minor, need not be formally warned. R. Hisda asked R. Huna: we learnt: Once his head has come forth, he may not be harmed, because one life may not be taken to save another.¹⁶  But why so? Is he not a pursuer?¹⁷  — There it is different, for she is pursued by heaven.¹⁸

Shall we say that the following supports him? [Viz.,] If a man was pursuing after his fellow to slay him, he (observer) says to him, 'See, he is an Israelite, and a son of the covenant, whilst the Torah hath said, Whosoever would shed the blood of a man, [to save] that man shall his own blood be shed,¹⁹  meaning, save the blood of the pursued by the blood of the pursuer'!²⁰  — That is based on the ruling of R. Jose son of R. Judah. For it has been taught; R. Jose son of R. Judah said: A haber²¹  need not be warned, because a warning is necessary only to distinguish between ignorance and presumption.²²

Come and hear: If a man was pursuing his neighbour to slay him, the observer says to him 'See he is an Israelite, and a son of the Covenant, whilst the Torah hath taught, Whosoever would shed the blood of a man, to save that man, shall his blood be shed'. If he [the pursuer] replied. 'I know that it is so', he is not liable to be slain; but if he replied. 'I do it even on such a condition',²³  he is liable!²⁴  — This is only if they are standing on two opposite sides of the river, so that he cannot save him. Hence what is [to be done]? To bring him before Beth din! But [punishment] by Beth din must be preceded by a warning. An alternative answer if you wish is this: R. Huna can tell you: My ruling agrees with the Tanna of 'breaking in', who held that his breaking in constitutes a formal warning.²⁵

1. A father has more compassion for his son than a son for his father. Hence, if a father robs his son, the latter must assume that he will not go to extremes if he defends his property. Consequently, he may kill him only if he is certain thereof. But if a son robs his father (and even more so, when he robs a stranger), he may assume that he is prepared to kill him, unless certain that he will not. Therefore, if he has any doubt, he may take his life.
2. Which disposes of his righteousness.
3. Ex. XXII, 1-2. Damim is plural, teaching that this law holds good on more than one occasion and is therefore interpreted as referring to Sabbaths and week days.
4. For this is really execution, the house owner standing in lieu of Beth din: hence, just as the latter may not execute on the Sabbath, so the former too.
5. Since it is self-defence.
6. If, in burrowing his way in, he dislodged a pile of masonry, which fell upon him, it must be removed even on the Sabbath, and if the owner does not, he is guilty of bloodshed.
7. For it is only because of that assumption that his death is regarded as self-defence. But a stranger might not be assumed (by the thief) actively to interfere; therefore the thief is not likely to slay him, and hence his death at the hands of a stranger is not in self-defence.
8. Lit., 'pursuer'.
9. Num. XXXV, 21.
10. V. p. 358, n. 2.
11. V. supra 45b. Hence the need of a special verse here.
12. Ex. XXII, 1.
13. Since the writ does not state, If he be found, etc., but if the thief be found, which is superfluous, being understood from the context, it shows that if he is at all seen to be a thief, no matter what his position, the law applies.
14. I.e., the owner need not warn him before killing him, as in the case elsewhere.
15. Lit., 'the pursued is to be saved by his (the pursuer's) blood'.
16. This refers to a woman giving birth, whose life is endangered. Now, if the fetus put forth any limb but the head, it may be cut off, so as to facilitate delivery, and save the mother. But if his head issued, it is regarded as alive, and the mother may not be saved at his expense.
17. I.e., in seeking to be born, he is as a pursuer. endangering his mother's life.
18. I.e. it is an 'act of God'.
19. Gen, IX, 6.
20. Though the pursuer did not accept the warning, as is normally necessary in a formal admonition, he may be slain, which proves that a warning is unnecessary in his case.
21. Lit., 'associate', fellow student; it was also a scholar's title (Fellow), and is employed in this sense here.
22. Hence a scholar who knows what is forbidden need not be warned, even if his crime is punished by Beth din. Likewise, the above Baraitha is on the same basis. But on the opposing view that all transgressors, including scholars, must be formally warned, and the warning accepted, it may be that the same applies to a pursuer. Therefore this does not support R. Huna.
23. I.e., even if I am to be slain for it.
24. The latter formula is the acceptance of a warning. This proves that the pursuer must be formally warned, and thus refutes R. Huna.
25. V. p. 494, n. 1. Because by breaking in he is really a pursuer, needing no warning.