Oygevald, Crown Heights: HOW MAY WE KILL A MOSER (JEWISH TRAITOR)?

[joeblow]

http://oygevald.wordpress.com/2011/05/0 ... l-a-moser/

May 1, 2011
Posted by TrachGut in Mishichistim Mossrim.
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Source: SANHEDRIN 57

(a) Gemara

1. (R. Avahu): We throw into a pit Mumarim (people who sin to anger Hash-m), Mosrim... We do not raise them.
2. Bava Kama 117a:Yosef wanted to show Yehudah's straw (to extortionists). Rav told him not to. He persisted 'I will show.' Rav Kahana broke Yosef's neckbone.

i. Rav: "...Like a trapped wild ox" – once a wild ox is trapped, no one has mercy on it. Similarly, once money of Yisrael falls into the hands of Nochrim, they have no mercy on it.

3. 119a (Rav Huna or Rav Yehudah):One may destroy property of a Moser.

i. Since one may kill him, all the more he may destroy his money!

4. Berachos 58a: Rav Shila lashed a man (Ploni) who had relations with a Mitzris. The man informed on him to the king, that a Yisrael who judges without permission of the king. The king sent to take Rav Shila.
5. Rav Shila said that Ploni had had relations with a donkey. Eliyahu came, looking like a commoner, and testified to this. The court gave to Rav Shila a staff and authority to judge. He explained to Ploni that Mitzriyim are equated to donkeys — "Asher Besar Chamorim Besaram."
6. Rav Shila saw that Ploni was going to report this to the king. Rav Shila reasoned 'the Torah says that if one seeks to kill you, kill him first!' He killed him.

(b) Rishonim

1. Rambam (Hilchos Chovel u'Mazik 8:10):Once one says 'I will be Moser Ploni or his money', even a small sum, he permits himself to be killed. We warn him not to be Moser. If he is brazen and insists that he will, it is a Mitzvah to kill him. Whoever does so first, he merited.

i. Magid Mishneh: The Rambam learns from the episodes in Bava Kama and Berachos. In the latter episode, Ploni tried to kill Rav Shila. Even so, warning is required. Perhaps Rav Shila warned him. Alternatively, he didn't have time.
ii. Mishneh l'Melech: The Rivash (473) says that Rav Shila warned him, or he didn't have time. The intended victim need not warn him! Only others must, like the case with Rav Kahana.
iii. Hagahos Mishneh l'Melech: The Rivash himself (238) says that perhaps the victim need not warn him. He is frantic to save himself, so Chachamim did not obligate him to warn the Moser. Likewise, others may not kill a Rodef if it suffices to destroy a limb, but the Nirdaf need not be particular about this.
iv. Kesef Mishneh (Hilchos Melachim 9:4): The Rambam permits a Nirdaf to kill a Rodef even if it suffices to destroy a limb. The Ra'avad challenges this from Avner; Yo'av justified killing him, for Avner could have stopped Asa'el without killing him (Sanhedrin 49a). The Rambam holds that this was false. The verse calls Avner a Tzadik! Rather, they had greater charges against Yo'av.
v. Mishneh l'Melech (Melachim 9:4): The Rambam means that Beis Din does not kill a Nirdaf who killed when he could have destroy a limb, but the Go'el ha'Dam of the Rodef (i.e. Yo'av) may kill the Nirdaf for doing so.

2. Rambam (Hilchos Rotze'ach 4:10):It is a Mitzvah to kill Yisrael idolaters, Mumarim... If one can kill them in public with a sword, he does so. If not, he seeks pretexts to cause their death. E.g. if one of them fell in a pit, he takes the ladder and says 'I will take my son down from the roof, then I will return it to you.'

i. Kesef Mishneh: Perhaps the Rambam's text of the Beraisa said 'Apikorsim' in place of 'Mosrim.'
ii. Yam Shel Shlomo (ibid.): It seems that the Rif does not permit overtly killing a Moser. This is why he omitted the episode with Rav Kahana. Rav expounded to teach that Rav Kahana is not called a murderer, but Rav Kahana erred, and therefore he accepted to do Teshuvah. Also R. Tam does not permit overtly killing a Moser. One opinion (Bava Kama 119a) holds that since one may cause his death, all the more so one may overtly destroy his property.
iii. Rebuttal (Shach CM 388:56): This is not a Kal va'Chomer! The Gemara connotes otherwise. Surely, the Rif does not hold that Rav Kahana did improperly! The Rif said that we are no more stringent about his money than about his life, so he did not need to bring the episode with Rav Kahana.
iv. Yam Shel Shlomo (ibid.): The Rambam's text of the Beraisa did not include Moser. Further, the Rambam explains that the Beraisa permits lowering into a pit, and all the more so to overtly kill if one can. However, I hold that it does not permit killing overtly. Even so, one may overtly kill one who will be Moser. The Beraisa allows only lowering (but not overtly killing) after he was Moser, if there is no concern lest he do so again, e.g. he became despised in the eyes of the government. Rav Kahana was allowed to kill the Moser. He accepted to do Teshuvah for acting in front of his Rebbi without asking. Also, he endangered himself. The Yevanim did not tolerate murder; he should not have relied on a miracle.
v. The Tur (Sof 388) cites Ba'al ha'Itur who forbids overtly destroying his money, but permits through Gerama or even Garmi. I agree, but not through Mesirah to Nochrim, which is like overtly destroying. The Maharam and Mordechai (195) say so. Also, we do not destroy a Yisrael's money in a way that benefits transgressors. The Mordechai (194) permits keeping the Moser's money, for "the Rasha prepares, and the Tzadik will wear." This was a reason not to destroy it, lest the Moser have a righteous child. His child comes first! Rather, the lenient opinion permits even destroying his money, and all the more so to keep it. The stringent opinion forbids both.

3. Rambam (Hilchos Mamrim 3:2):If it is publicly known that one denies Oral Torah, he is like Mumarim, Mosrim... who are not part of Klal Yisrael. We throw them into a pit. We do not raise them. We do not need witnesses, warning or judges. Whoever afflicts them did a great Mitzvah and removed a stumbling block.

i. Beis Yosef (CM 388 DH uvi'Teshuvos): We must say that he discusses people established to be Moser.

4. Teshuvas ha'Rosh (32:4):The opinion that holds 'since one may kill a Moser, all the more he may destroy his money' refers to one who intends to be Moser. He is a Rodef; he may be killed in any way. One who was Moser may not be killed. Even a murderer is killed only in Beis Din, through witnesses and warning. We may cast him into a pit to die. One may cast an idolater to die, even though one may not kill someone going to do idolatry. Casting into a pit is only Gerama.

i. Question (Mishneh l'Melech Hilchos Malveh 5:2 DH u'Mah she'Chosav): Why did the Tur (CM 425) permit killing idolaters and Mumarim in any way, like the Rambam, without mentioning that the Rosh disagrees?

5. Rivash (238): The Rambam permits overtly killing a Rodef. R. Chananel permits only to cast him into a pit so he will die there, but not overtly killing him. Even R. Chananel would permit giving him to officers of the kingdom to kill him, for this is not overt. Also Teshuvas ha'Rosh says so.

(c) Poskim

1. Shulchan Aruch (CM 388:10): Once one says 'I will be Moser Ploni or his money', he permits himself to be killed. We warn him not to be Moser. If he is brazen and insists that he will, it is a Mitzvah to kill him. Whoever does so first, he merited.
2. Rema:If there is no time to warn him, he need not be warned. Some say that one may not kill a Moser unless one cannot be saved from him by destroying one of his limbs, but if it suffices to cut out his tongue or blind him, one may not kill him, for he is no worse than other Rodfim.

i. Beis Yosef (DH uvi'Teshuvos): Teshuvos Maimoniyos (Nezikim 15) says so. This is difficult, for surely Rav Kahana could have cut the man's tongue or legs! The same applies to the case with Rav Shila.

See also:
PUNISHING ONE WHO WAS MOSER (Bava Kama 62)

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http://www.dafyomi.co.il/bkama/halachah/bk-hl-062.htm

BAVA KAMA 61-62 - Dedicated by Drs. Shalom and Syma Kelman of Baltimore in honor of their children and grandchildren.

1) PUNISHING ONE WHO WAS MOSER

    (a) Gemara

        1. (Ameimar) Question: (It was enacted that if it is clear that Levi stole from David, but it is not known how much, David swears how much was taken and he collects.) Was a similar enactment made regarding a Moser (Ploni incited the government to take Yakov's property)?

            i. The opinion that exempts for Garmi (causing damage), surely exempts. We ask according to the opinion that obligates for Garmi. Can Yakov swear what was taken from him and collect from Ploni?

        2. This question is unresolved.
        3. 117a: Yosef wanted to show Yehudah's straw (to extortionists). Rav told him not to. He persisted 'I will show'.
        4. Rav Kahana broke Yosef's neckbone.

            i. Rav: "...Like a trapped wild ox" - once a wild ox is trapped, no one has mercy on it. Similarly, once money of Yisrael falls into the hands of Nochrim, they have no mercy on it.

        5. 119a (Rav Huna or Rav Yehudah): One may destroy property of a Moser.

            i. Since one may kill him, all the more he may destroy his money!

        6. (The other of Rav Huna and Rav Yehudah): One may not destroy his property.

            i. Perhaps he will have a righteous heir - "the Rasha prepares, and the Tzadik will wear (benefit from it)."

        7. Sanhedrin 57a (R. Avahu): We throw into a pit Mumarim (people who sin to anger Hash-m), Mosrim... We do not raise them.

    (b) Rishonim

        1. Rif (Bava Kama 46a): Amora'im argued about whether or not one may destroy property of a Moser. Elsewhere, the Gemara forbids. I.e. we did not settle whether or not there was an enactment to swear and take from him what one lost (62a), all the more so one may not destroy his property!
        2. Rosh (Bava Kama 10:34): This is not a solid proof. Perhaps the question about the enactment refers to a Moser who repented!
        3. Rambam (Hilchos Chovel u'Mazik 8:11): If a Moser carried out his plot, it seems to me that one may not kill him unless he is established to be Moser. Then, we kill him lest he be Moser others.

            i. Magid Mishneh: Avodah Zarah 26b teaches that we kill established Mosrim.

        4. Rivash (238): Letter of the law, a Moser should not be killed. A murderer is killed only if he himself killed, but not for inciting a dog or snake to bite and kill someone. Edim Zomemim are not killed after the victim was killed. It is a Chidush that we kill them if they were Huzam after the sentence and before execution. All the more so a Moser is exempt, especially if he only was Moser money. He is killed like a Rodef, for the sake of the future, to save the victim. If he already was Moser, Beis Din punishes him according to letter of the law for what he did, or more, for a fence (to deter others), according to the needs of the time. If he is habituated to do so, i.e. has done so three times, he is like a Rodef, and anyone can kill him anywhere at any time, with or without Beis Din, to save others. The Rambam permits overtly killing him. R. Chananel permits only to cast him into a pit so he will die there, but not overtly killing him. Even R. Chananel would to giving him to officers of the kingdom to kill him, for this is not overt. Also Teshuvas ha'Rosh says so.
        5. Rosh (Teshuvah 17:2): If one was already Moser, and there is fear lest he do so again, some permit hiring Nochrim to punish him. Some forbid, for if a Rasha was Mekadesh 'on condition that I am a Tzadik', we are concerned lest he repented. The first opinion says that this is a mere stringency of Kidushin. R. Ami did not save a man from death because people testified that he ate Isur to anger Hash-m (Gitin 47a). He was not concerned lest the man repented!

            i. Yam Shel Shlomo (ibid.): I say that killing through a Nochri is like overtly killing. We are stringent to say Yesh Shali'ach l'Davar Aveirah through Nochrim. The Gemara permits only lowering to a pit. Perhaps he will repent there and convince us that he will not do so again. If so, we take him out. Presumably, one may hire Nochrim only when there is concern lest he be Moser. Then, one may kill him overtly. It is slightly better through Nochrim if there is no concern lest this cause other problems.
            ii. Question (Beis Yakov 2, cited by R. Akiva Eiger 388:15): We are stringent to say Yesh Shelichus l'Nochri, but since Nochrim are liable for murder, Ein Shali'ach l'Davar Aveirah for murder! Perhaps the Maharshal holds like the Tasbatz and Rema (388:15), who say that Yesh Shali'ach l'Davar Aveirah if the Shali'ach is established to transgress. The Beis Yosef says in the name of the Tashbatz that Ein Shali'ach l'Davar Aveirah applies only to Yisrael. However, in EH (5:14), the Rema rules like the Terumas ha'Deshen that Ein Shali'ach l'Davar Aveirah applies to Nochrim.

    (c) Poskim

        1. Shulchan Aruch (388:11): If a Moser carried out his plot, one may not kill him unless he is established to be Moser. Then, we kill him lest he be Moser others.

            i. Mordechai (Bava Kama 196): R. Simchah proves that the Rif disagrees. The Rif proved that we may not destroy property of a Moser from the unsettled question about an enactment to collect from a Moser, which discusses after he was Moser. The Amora'im argue about whether or not we make a Kal va'Chomer, but all agree that one may kill him!
            ii. Rebuttal (Yam Shel Shlomo ibid.): Why didn't R. Simchah ask about the Rambam, who forbids destroying a Moser's money, even though he forbids killing him after he was Moser! Rather, the Rambam distinguishes between before and after only regarding killing, but the one who permits destroying his money permits even afterwards. One may kill a Rodef who seeks to rape a man or Ervah only before the act. If we permit destroying his money, this is a fine, and it is even afterwards. This is why the Rif learned from 62a. Most forbid destroying his money.
            iii. Note: It seems that R. Simchah's proof was not from the Rif's rulings, rather, because the Rif learned from the question about the enactment. The Shach (55) says that the opinion of the Rif, like R. Simchah explains, is primary. Tosfos and Piskei ha'Tosfos agree. However, many follow the Rambam.
            iv. Lechem Sesarim (cited by R. Akiva Eiger): What is the proof that the Rif argues? Perhaps he permits killing one who was established to be Moser! Rather, the question was even about one who was Moser only once, therefore, he must hold that even such a Moser may be killed.
            v. Pri ha'Aretz (13, cited in R. Akiva Eiger): Edus b'Yehosef (34) says that the Rif permits destroying a Moser's money after he was Moser, for then we cannot kill him and (he himself will use his money, so) we need not leave his money for a righteous heir. If so, how did the Rif learn from 62a? All agree afterwards! Rather, the Rif does not distinguish between before and after.
            vi. SMA (29): A Moser is like a Rodef, but he is no worse than a Rodef. After he was Moser, he cannot be killed without warning and Beis Din, unless he is established to be Moser.


Other Halachos relevant to this Daf:
COERCED KIDUSHIN (Kidushin 44)