Torah Riddles Test #142

1.       Question: Why must a doctor who accidentally kills a patient run to the city of refuge but not a rebbe who strikes his student and accidentally kills him neither the court executioner, who gives the proper amount of lashes and accidentally kills the sinner?


A.      The Shulchan Aruch (Yoreh Deah 336:1) says that the Torah gave permission for a doctor to cure and it is a mtzvah, it’s part of pikuach nefesh, saving a person’s life… If he heals people without the permission of the courts and mistakenly hurts someone he must pay for damages, but if he got permission, he is exempt. However, if he accidentally killed someone he must go into exile in the city of refuge.

B.      The Rambam in the laws of a Rotzeach/Murderer says that since the court executioner or rebbe accidentally killed the litigant or student while performing a mitzvah then he is exempt from escaping to the city of refuge.

  Answer: The Yad Avraham answers that a doctor is different because he did not do any mitzvah if the patient dies but the rebbe was performing a mitzvah of teaching his student and the executioner was performing a mitzvah of following the court ruling, the person just happen to have died in the process of performing that mitzvah therefore they are exempt from running to the city of refuge.  

Mattos/Massei – Accepting Responsibility for Negligence

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The second perek of Maseches Makkos is dedicated to the accidental murderer who has the right to run away to a city of refuge in order that he will not be killed by the goel hadam, the avenger of blood, a relative of the deceased. There is an argument between Rebbe Yossi HaGlili and Rebbe Akiva in the 7th Mishna of the perek as to whether the family member of the deceased gets a mitzvah for killing the accidental murderer and whether anyone else is allowed to commit the same murder – or if only a family member is allowed to kill the accidental murderer. It is implicit from the first Mishna and in the gemara with Rashi there that this accidental murderer, while he certainly had no intention of killing an innocent party, the act was not completely out of his control. Indeed,  he would not need to run away to a city of refuge but rather there must have been some level of negligence on his part, as he could have been more careful with what he was handling or more aware of his surroundings, and because of that he must run away and live his life in a city of refuge in order for himself not to be killed. Mishna 6 explains how this accidental murderer can eventually leave a city of refuge and go back home, namely upon the death of a kohen gadol; whether he was serving as kohen gadol at the time of his death, stepped down at the time as kohen gadol, or was the kohen appointed to lead the army into war; if any of them die he goes free. For this matter the Mishna says that the mothers of these kohanim would give food, drink and clothing to these accidental killers in order that they wouldn’t daven for the demise of their son.  The gemara in Makkos daf 11a asks why we would think the prayers of these accidental killers would be listened to since they are asking for such an accursed thing as the kohen gadol dying just so that they could go home? The gemara answers that in fact the Kohen gadol deserves this because they should have davened harder that nothing like this would happen in their lifetime.

This seems to make a decent amount of sense, on the simple understanding of this part in the Torah. However, the Daas Zekeinim says he has a different basic understanding of these pesukim which are found in the second parsha of this week’s double Torah portion of Mattos and Maasei, the source of this concept.  The Torah says: “But if the murderer goes beyond the border of the city of refuge to which he had fled, and the blood avenger finds him outside the limits of his city of refuge, and the blood avenger slays the murderer, he has no blood. For he shall remain in his city of refuge until the Kohen Gadol dies, and only after the Kohen Gadol has died, may the murderer return to the land which is his possession” (Bamidbar 35:26-29).

The Daas Zekeinim exclaims on pasuk 28 that the simple understanding of why the accidental murderer must stay in the city of refuge until the kohen gadol dies is in order that the world won’t speak badly about the kohen gadol when they see the murderer outside of the city of refuge. They would say: “See this guy who killed someone, and the kohen gadol refuses to take revenge upon him, it is his responsibility, as it says: ‘And you shall come to the kohen who will be [serving] in those days’ (Devarim 35:28).” But when the kohen gadol dies they would not suspect the kohen that is appointed after him, for what evil speech can they say about him, since the murder did not happen while he was kohen gadol. (Click here for Hebrew text.)
The mishnayos and gemara in Makkos seems to be saying that the accidental murderer must stay in the city of refuge in order to save his life ad he can only leave without worrying that he will be killed once the kohen gadol who was in charge at the time of the murder passes on. Also, it is granted that to a large extent he deserves to live in this city of refuge because he could have been more careful with what he was doing but he wasn’t and someone was killed based on his negligence. But the kohen gadol seems also to be held to account for not davening hard enough for this to not have happened.

Yet the Daas Zekeinim has a totally different interpretation, and claims that this is the simple understanding of the text: the accidental murderer must stay inside the city of refuge in order that people won’t slander, i.e. speak lashon hara, about the kohen gadol, for not taking revenge on this accidental murderer. What should the kohen gadol have done? The Daas Zekeinim quotes a pasuk which talks about the bikurim, first fruits, that were brought to the kohen gadol which the Torah says must be done with true joy for performing the mitzvah, and the Daas Zekeinim there says the crops are blessed at that time. So these scoffers seemed to have not wanted the kohen gadol to accept the accidental murderer’s bikurim, as revenge for the accidental murder.
First off, we have to understand how the Daas Zekeinim can be arguing on the second perek of Makkos, especially since it seems to be the simple understanding of the pesukim in the Torah. However, it is possible to say this even if family members don’t want to kill him. Perhaps he is a friend, they couldn’t come to do such a thing, or he is known for being an upstanding citizen in general. He knows and is confident that he would not be killed if he lives outside of the city of refuge; still in all the Daas Zekeinim says he still must live inside the city of refuge until the Kohen gadol dies in order that people won’t slander the kohen gadol.

But why should he be punished in such a manner? Being away from where he normally lives, from doing what he is used to doing, and from being a part of normal society? Did he really do something terribly wrong; it was an accident? He might have fallen down a ladder while going down it and fallen on someone, killing them, or the like. Should that warrant being locked up in a city of refuge simply because people might commit the grievous sin of speaking lashon hara about the kohen gadol if they see the killer on the street? The kohen gadol wouldn’t even do anything wrong according to their slander. If the murderer would be free to roam the streets and want to fulfill the honorable mitzvah of giving the first fruits of his crop to Hashem on Shavuos then the kohen would accept the mitzvah and these outlandish scoffers would not want the mitzvah accepted. Why should we even worry about what such people say, especially to deprive this person of an opportunity of performing a mitzvah if he wants?

We learn from this Daas Zekeinim to what extent we are held accountable for the negligible actions we do. Once we do something which has negative repercussions even if we claim it was an accident,  now we are responsible for even the most farfetched, and despicable ramifications like other people’s potential slander which caused the Beis HaMikdash to be destroyed and still not rebuilt to this day which is why the accidental killer is stuck in the city of refuge until the kohen gadol dies.