THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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MAKOS 9 (7 Shevat) - dedicated by Danny & Ramona Schwartz, l'Iluy
Nishmat Yochanan Shabsai ben Yair, Z"L, whose Yahrzeit is 7
1) AVIMELECH'S CLAIM OF INNOCENCE
QUESTION: Abaye and Rav Chisda argue with Rava regarding whether one who thinks he is
allowed to do something which is really forbidden ("Omer Mutar") is comparable to one
who sins due to circumstances beyond his control ("Ones") or whether he is more
similar to one who sins knowingly and intentionally ("Karov l'Mezid"). Rava attempts
to prove that one who is "Omer Mutar" is considered Karov l'Mezid from the Torah's
narrative of Avimelech's argument with Hashem. When Avraham and Sarah sojourned to
the land of the Plishtim, Avimelech, the king of the Plishtim, took Sarah away from
Avraham unaware that she was already married. Hashem spoke to Avimelech in a dream
and told him that he would die because of his sin. Rava derives from here that
although Avimelech was "Omer Mutar" and thought that what he was doing was permitted,
he was punishable by law of the courts. Rav Chisda replies that Hashem told Avimelech
that he was punishable by Shamayim, but not that he was punishable bi'Ydei
Adam, at the hands of the earthly courts, and thus there is no proof from Avimelech
that "Omer Mutar" is considered Karov l'Mezid.
What was Rava's proof from Avimelech in the first place? Hashem spoke to Avimelech in
a dream *before* Avimelech committed any sin with Sarah (Bereishis 20:3-4)! The verse
seems to be saying that Hashem warned Avimelech that he would be killed if he touched
Sarah. That punishment obviously would be at the hands of the earthly courts, because
if he would have gone ahead and sinned after Hashem's warning, he would have been
aware of Sarah's status and he would have been sinning knowingly and intentionally.
How, then, is that a case of "Omer Mutar?"
(a) The ARUCH LA'NER, MINCHAS BIKURIM, and others answer that Rava understands the
verses as follows. Hashem was informing Avimelech of the great kindness that He did
for him by preventing him from touching Sarah. Hashem was telling Avimelech that had
he sinned with Sarah under the assumption that she was not married, he would have
been Chayav Misah at the hands of the earthly courts, because "Omer Mutar" is Karov
l'Mezid. Hashem prevented Avimelech from sinning with her, and thus prevented
Avimelech from being Chayav Misah for "Omer Mutar."
We may ask a different question, though. Why was Avimelech considered to be clean of
any sin? He should have been Chayav Misah for *stealing* (kidnapping) Sarah, even
though it was an act of "Omer Mutar!" We know that according to many commentaries
Shechem was Chayav Misah because he stole Dinah, the daughter of Yakov (and a Nochri
is Chayav Misah for transgressing any of the seven Mitzvos of Benei Noach, such as
stealing). According to Rava, why was Avimelech not Chayav Misah for his "Omer Mutar"
transgression of stealing?
The OR HA'CHAIM (Bereishis 20:5) and Aruch la'Ner answer that as long as Avimelech
was taking Sarah to be his wife under the assumption that she was not married, he was
not considered to be "Omer Mutar" and was not transgressing any prohibition of
stealing at all. The Or ha'Chaim explains that Avimelech thought that he was
bestowing great honor upon Sarah's family by taking her as his wife. Therefore, his
act cannot be considered an act of stealing even in an "Omer Mutar" manner. However,
after Hashem informed Avimelech that Sarah was married, he would have been guilty of
stealing had he not returned her to Avraham immediately.
The SI'ACH YITZCHAK similarly writes that one is not considered to be "Omer Mutar"
when the owner of an object tricks him into believing that he is permitted to take
the owner's object. Since Avraham and Sarah both led Avimelech to believe that she
was not married, his act cannot be considered stealing.
This answer, though, raises a general difficulty with Avimelech's guilt. The MINCHAS
YEHUDAH and others ask how can Rava categorize Avimelech even as an "Omer Mutar?" One
who is "Omer Mutar" is Karov l'Mezid, according to Rava, because he should have
learned the Halachah and realized that the act was prohibited. How, though, does this
apply to Avimelech? He would not have known to avoid the sin even if he would have
learned all of the laws pertaining to the prohibition of Eshes Ish, since he thought
she was not an Eshes Ish! He certainly should be considered an "Ones," as his sin
would have been committed due to circumstances beyond his control!
The CHIDUSHEI REFA'EL answers that Avimelech was by no means innocent. Avraham told
the people that Sarah was his sister because he feared that they would kill him if
they knew that he was married to Sarah. Since the system of justice in that land
dictated that the king was entitled to take any woman whom he desired, and to dispose
of her husband in order to take her, Avimelech certainly should have suspected that
Avraham was withholding information in order to protect himself. Since this was a
reasonable assumption, Avimelech was considered "Omer Mutar" in his act of taking
Sarah. Although his action was not entirely intentional, he certainly was not
Based on the above, the MIGDANOS NASAN answers an apparent contradiction in the
RAMBAM. The Rambam (Hilchos Melachim 10:31) rules like Rava, that "Omer Mutar" is
Karov l'Mezid, and yet he also states that if a Nochri has relations with the wife of
another man under the assumption that she was not married, he is *not* put to death.
However, according to Rava, the Nochri *should* be put to death for such an act, just
as Avimelech would have been Chayav Misah for his act of "Omer Mutar" in taking a
married woman. How, then, can the Rambam rule like Rava and, at the same time, rule
that a Nochri is not Chayav Misah for taking a married woman whom he thought was not
According to the above explanation, the answer is clear. Only when there is reason
for the man to have a doubt about the woman's status is he considered "Omer Mutar."
In a case of a genuine mistake, the man indeed is innocent, even according to Rava.
2) AN ABUNDANCE OF MURDERERS
QUESTION: The Mishnah and Gemara discuss the Arei Miklat, the cities of refuge for
people who killed accidentally. There were three Arei Miklat in Ever ha'Yarden, and
there were three Arei Miklat in the rest of Eretz Yisrael. The Gemara asks why was
there the same number of Arei Miklat in Ever ha'Yarden, the region in which only two
tribes lived, as there were in Eretz Yisrael, where ten tribes lived? Abaye answers
that in Gil'ad, which was in Ever ha'Yarden, there were many murderers, and therefore
there was a need for more cities of refuge.
What does Abaye mean? He cannot mean that there were more accidental murderers in
Gil'ad, because accidents are seemingly subject to random occurrences, and thus there
should not be any more accidents in one area than in another! If he means that there
were more intentional murderers in Ever ha'Yarden, then what difference does that
make to the number of Arei Miklat? The Arei Miklat are only for *accidental*
(a) The RAMBAN answers that since the people in Gil'ad were adept at murdering, they
would often kill in a way that appeared to be accidental, in order to be free of the
death penalty and be able to find refuge in the Arei Miklat. It was not possible to
close the Arei Miklat altogether and thereby prevent such murders from occurring,
because then the *real* accidental murderers would have no refuge. Therefore, in
order to accommodate all of the killers who sought refuge, and thereby to make sure
that the ones deserving of refuge were able to get protection, it was necessary to
have more Arei Miklat.
(b) The MAHARAL (in GUR ARYEH) does not accept this answer. He asserts that it would
be better not to have Arei Miklat and thereby to deter murderers from killing, than
to have many Arei Miklat and allow all murderers who claim to be Shogeg to enter. The
Maharal instead prefers the answer of his brother, RAV SINAI of Prague (see below,
Alternatively, the Maharal answers based on an understanding of the purpose of giving
a punishment for an accidental killing. Why is a person given such a harsh
punishment, exile to an Ir Miklat, for an accident? It must be that the person was
not sufficiently careful to preserve human life. Since, in Ever ha'Yarden, there were
many intentional murderers, there certainly was a lack of sensitivity to murder, and,
as a result, there were many more accidental killings there than in the rest of Eretz
(c) The TIFERES YISRAEL answers that although the number of accidental killings in
Ever ha'Yarden was the same as everywhere else, it was still necessary to have more
Arei Miklat, for the following reason. In Ever ha'Yarden, the social order was
relatively accustomed to murder. Consequently, a Go'el ha'Dam who wanted to avenge
the accidental killing of his relative would be much quicker to act there than in the
rest of Eretz Yisrael, because no one would look at him suspiciously if he yielded a
weapon and pursued the accidental killer. An accidental killer, therefore, would need
quick access to an Ir Miklat, and all accidental killers would rush to get to the
Arei Miklat. In contrast, in the rest of Eretz Yisrael, it was not common for
murderers to be seen in the open, and thus a Go'el ha'Dam would take much time in
planning his avenge, if he attempted to avenge the killing at all. Therefore, the
need for Arei Miklat was considerably less.
(d) The MAHARSHA (in his second approach) and others write that Abaye is following
the view of Rebbi Yosi ben Yehudah in the Mishnah, who says that, originally, both
intentional killers and accidental killers would be given refuge in the Ir Miklat,
and afterwards the intentional killers would be taken from there to be judged.
Therefore, because of the large number of intentional killers in Ever ha'Yarden who
would also enter the Arei Miklat, it was necessary to have additional Arei Miklat.
(e) TOSFOS explains that many Arei Miklat were needed in Ever ha'Yarden because of
Hashem's way of bringing justice to killers as described later (10b). The Gemara says
that if one person killed accidentally but without witnesses (and thus he cannot be
sent to an Ir Miklat), and another person killed intentionally but without witnesses
(and thus he cannot be put to death by Beis Din), Hashem would cause them to go to
the same place, and the person who killed accidentally would fall off of a ladder in
front of witnesses, and land on -- and kill -- the person who killed intentionally.
Each person would then receive the proper punishment that he deserves -- the
intentional killer would receive his punishment of death, and the accidental killer
would be sent to Galus. Gil'ad, in Ever ha'Yarden, apparently was the place where
Hashem caused these murderers to meet each other.
What does Tosfos mean to say? Even though Ever ha'Yarden has many intentional killers
there, there still are not more accidental killers there, as accidents are subject to
random occurrence, as we asked above. Why, then, was there a need for more Arei
Miklat in Ever ha'Yarden?
1. It could be that Tosfos understands the concept of Galus for an accidental
understands it. Rashi later (10a, DH Talmid Chacham) writes that a
teacher should not accept a student who is unfit, because, due to that student's
sinfulness, he might come to kill by accident and be sent to Galus. What does one's
sinfulness have to do with an *accident*? The answer is that only a person who is
deserving of punishment for his many other sins meets the fate of Galus for killing
accidentally. Therefore, since there were many more intentional killers and Resha'im
in Ever ha'Yarden than in other places, there were also many more people who were
brought about by Hashem to kill accidentally, and thus more Arei Miklat were
2. The MAHARSHA explains the intention of Tosfos as follows. Tosfos is saying that we
learn from the Gemara later (on 10b) that Hashem punishes a person who is deserving
of death bi'Ydei Shamayim (death at the hands of Hashem) by having another person
kill him accidentally. Since there were so many intentional murderers in Ever
ha'Yarden who killed without witnesses, it was necessary for Hashem to cause there to
be many more accidental killers in order to bring justice to the intentional ones.
3. The MAHARAL (in GUR ARYEH) quotes his brother, RAV SINAI of Prague, and praises
his answer. Rav Sinai explains that in Eretz Yisrael, there are many accidental
killers (who killed without witnesses) who are not able to receive their punishment
of Galus by being caused to kill, accidentally, an intentional killer. This is
because there are not always intentional killers available to kill. Hence, in Eretz
Yisrael, many of the accidental killers are not able to go to Galus. In contrast, in
Ever ha'Yarden there are many intentional killers, and thus all of the people who
kill accidentally without witnesses are brought to kill an intentional murderer. This
results in more accidental killers going to Galus in Ever ha'Yarden than in Eretz
4. The MAHARAM explains that according to Tosfos, Hashem brings all of the accidental
killers from all over Eretz Yisrael to Ever ha'Yarden, and there each one kills
accidentally (with witnesses) one of the many intentional murderers in Ever
ha'Yarden. Abaye is saying that since there are many intentional killers in Ever
ha'Yarden, it is necessary for Hashem to bring to there many accidental killers from
the rest of Eretz Yisrael in order for each to receive his proper punishment.
Why, though, does Hashem not instead send the intentional killers to the accidental
ones? The SHA'AGAS ARYEH answers that indeed He does! Hashem divides the number of
these "accidents" evenly between Eretz Yisrael and Ever ha'Yarden. Many accidental
killers end up going to Ever ha'Yarden, and many intentional killers end up going to
Eretz Yisrael. In each place, the intentional killers are killed by accident, with
witnesses, by the accidenters, and thus there needs to be the same number of
Arei Miklat in each place!