drush v'kabel s'char

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  • #616625
    zogt_besser
    Participant

    I’m learning sanhedrin, and thought of this question tonight; my chavrusa wasn’t sure and I didn’t see any sefarim that address it (although the beers might’ve made me miss something). Put simply, does the principle of ‘kim lei b’draba minei’ apply to a ben sorer u’moreh–is he patur from paying back the money or food he stole (see mishnah sanhedrin 9:3), since he is going to be killed? Or maybe because he’s being killed al sheim sofo, then his sekilah isn’t mevatel the stealing? I also remember hearing that there’s a chiluk whether klb”m is mevatel just a kenas, or any monetary chiyuv, so depending on how you understand the keifel payment of the ganav, the halacha could be different. a gut voch to all…

    #1111553
    Little Froggie
    Participant

    What an interesting question. I’d suppose he IS requires to pay back because his chiyuv misa is not for stealing, but for his lifestyle. He needs other actions and conditions too, before becoming a ben sorer umoreh – my humble opinion.

    #1111554
    zogt_besser
    Participant

    thanks for responding, LF. That was my intuition as well, but I’d love to see if this question is addressed in any sefarim.

    #1111555
    Daya Zooger
    Member

    ?’ ???? ????? ???”?. ?? ????? ???? ????”? ??? ??? ?? ??? ?? ???? ????? ??? ???? ???, ?????? ?? ????, ???? ?? ????? ??? ??? ???? ???? ?? ???? ????, ???? ????? ???? ????? ????! ???”? ????? ?”? ????, ???? ????? ???? ?? ??????, ????? ?”? ???? ???? ??? ???? ????, ??”?. ???”? ?????? ???? ??? ???? ???? ?????, ??? ???? ???? ??, ???? ????? ??? ????? ???? ???? ??”? ???? ???? ????? ???? ????, ?????. ?????? ??”? ????? ???? ???? ??????, ???????? ???? ?????? ????? ??? ????? , ?? ????”? ?? ????? ??? ??? ?”?? ????? ?? ???”

    ???”? ????? ????, ???? ??? ??? ????? ?? ????? ?????? ???? ???? ????”? ???? ?????? ???, ??? ??????… 😉

    ?? ?? ????? ???, ?? ????? ??? ???? ?? ???? ?????, ??? ???’ ?? ?: ?????? “????? ???? ???????” ??????? ??? ????? ?? ????. ??”? ?? ????? ?? ???? ????? ???? ????”? ??? ????? ????? ???? ???? ?????? ?????

    #1111556
    zogt_besser
    Participant

    daya zooger- my bad, you are right that there is no chiluk by klb”m between kenas and keren. You’re also right that if the kid admitted to the stealing, then he doesn’t have to pay the kenas–but he still has to pay the keren, so the question stands.

    I also am unsure about your point

    ???? ????? ???? ?? ??????. the mishnah says he is killed now so that he will die “zakai” and not “chayav.” The punishment is clearly a preventative measure (since the bsu”m is a rodef, as some say), and isn’t really connected to his theft and gluttony, which are not sins that deserve death.

    I’d love for you to explain the point about the beged ripping on shabbos. I don’t see it as related: the guy gets misah because he did a melachah and is patur from the nezek because of klb”m. by bsu”m, the maaseh that he did (stealing/eating) is *not* why he is killed (as we said earlier, it’s about him being a rodef and al sheim sofo), so perhaps the action itself doesn’t have the strength to push away the gezeilah under klb”m.

    #1111557
    Sam2
    Participant

    I believe the way the Achronim say it (quoting the Rambam) is that it’s Kim Lei because the Azhara is Lo Sochlu Al HaDam. So the Chiyuv to pay back money (until then he could just give back the food) comes at the same time as the Lav that brings with it a Chiyuv Misah.

    #1111558
    zogt_besser
    Participant

    isn’t lo sochlu an asmachta here? that pasuk is used for like a million other things. and do you know which acharonim talk about this?

    #1111559
    Sam2
    Participant

    Not sure who in particular. And the Rambam doesn’t use Lo Sochlu as an Asmachta. He calls it a Lav Shenitan L’azharas Misas Beis Din. The Ramban and other Rishonim ask major questions on this and why it’s not an Azhara Shebichlalos, among other things.

    #1111560
    Daya Zooger
    Member

    ???”? ???? ?”? ???? ??? ???? ????, ??? ???? ?????. ?????? ??? ?????? ???? ???? ?? ?????? ????? ????? ?????, ??? ?????? ???? ???? ?? ???? ?? ??????. ??? ???? ??? ????? ???? ?? ???? ?? ????? ?? (????? ???? ???? ?”?), ???? ????? ???? ????? ???’. ???? ????? ?’ ????????

    #1111561
    HaLeiVi
    Participant

    He is Mechuyav as soon as he steels, not when he eats. The Chiyuv Misa is not really for any of them. It is ?? ?? ?????.

    #1111562
    zogt_besser
    Participant

    Thanks, Sam2.

    #1111563
    pcoz
    Member

    There does not need to be a strict correlation between the maaseh of kom lei bederabah minei and the lav, e.g. see gemara Kesuvos where there is a haveh amina that gozel chelev ve’ochlo is patur since he needs to pick up the chelev (maaseh geneva) in order to eat it (issur chelev).

    #1111564
    Sam2
    Participant

    pcoz: That’s not what the Gemara in Kesubos says. The Hava Amina is that the Hagbaha is considered part of the Ma’aseh Achilah because it’s a necessary part of eating and therefore the Hagbaha and the Achilah is considered Chad Ma’aseh.

    #1111565
    pcoz
    Member

    This is not the way Reb Nosson Gestetner understands the gemara (Nasan Piryo on Makkos, sugya of lachatov etzim be’yaar).

    #1111566
    Sam2
    Participant

    pcoz: I dunno about that. Just look at Rashi and Tosfos there. It’s around 31a, right?

    #1111567
    pcoz
    Member

    He says, if Hashem told you to do something then Hashem also meant, do everything you need to do to make that happen also. And conversely for an aveirah.

    #1111568
    Sam2
    Participant

    pcoz: I have no idea how he reads the Gemara then. Because that’s not what the Gemara says.

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