כראי אדם שאין משלם את הכופר - הקשה ריב"א מאי חומרא היא זו האי דאין משלם את הכופר משום דקים ליה בדרבה מיניה ותירץ דשוגג נמי פטור מדתנא דבי חזקיה ואור"י דלאו פרכא היא כלל דלא מפטר משום קים ליה בדרבה מיניה וכאן נמי אין שייך להזכיר תנא דבי חזקיה דלקמן בפ"ב (בבא קמא דף כו.) משמע דאי לאו קרא דעליו ולא על האדם הוה ילפינן אדם משור שיתחייב מזיד מיתה וכופר ומעליו פטרי ליה אפילו שוגג דומיא דשום דאין מזיד לשור ותנא דבי חזקיה דפוטר אפילו שוגג היינו ממון שהזיק בשעת חיוב מיתה ולאפוקי ממאן דדריש בפ' אלו נערות (כתובות דף לה. ושם) הא אם יהיה אסון לא יענש דדוקא דין אסון אתא חזקיה ואשמועינן לאו דוקא דין אסון לא יענש אלא אפי' שוגג לא יענש: similar to characteristic of the Man, where does not pay the ransom. The G’moro is showing that there is an inherent leniency with the way the Torah deals with a person who has murdered someone else. Whereas, when an animal kills a person the owner is liable to pay kofer, a person who kills someone else is not liable for the kofer payment. So too, argues the G’moro that although an animal might be liable to pay damages, a person may be exempt. One cannot derive the liability of a person who damages from the liability of an animal that damaged.
This argument is based on the understanding that a person’s lack of liability for the kofer payment is a leniency. Tosfos questions this assumption.
Riva asked: what sort of stringency is this, that a person does not pay kofer? The reason he does not pay kofer is because it, the obligation to pay kofer, is canceled by that, capital punishment for murdering, which is greater than it,1This principle is derived from a posuk in Sh’mos 21, 22. The Torah is discussing payment for aborting a fetus when one strikes the mother. The Torah says: אם לא יהיה אסון ענוש יענש if there will not be a death, which would have resulted in capital punishment, the perpetrator will be fined. ואם אסון יהיה and if there will be a death,ונתת נפש תחת נפש and you will pay with a life for a life and there will be no financial payment. We see that when one is subject to capital punishment, financial obligations are cancelled. the financial fine of kofer. Indeed, it is the severity of a person’s behavior, that carries with it capital punishment which causes that he does not pay the kofer. If so, how can the G’moro present non-payment of kofer as proof that the laws governing a person are lenient in comparison to those governing an animal?
And he answered: That it is not the severity of a person that causes him to be exempt from kofer, because we find that an unintentional murderer is also exempt from kofer, from that which was taught in the academy of Chizkeeyoh2The academy of Chizkeeyoh teaches in K’subos 35a, based on a textual comparison between a person who kills an animal and a person who kills another person, that one is not liable for financial punishment when murdering even though, he will not actually be put to death.. Since we see that a person is exempt from kofer payment even if he murdered unintentionally, it is obviously not because of the stringent way the Torah deals with a person, but rather, because of the lenient way the Torah is dealing with him. The G’moro’s original contention that non-payment of kofer proves that the Torah is lenient with a person remains.
Tosfos is skeptical about legitimacy of the Riva’s question. Riva’s question assumes that the reason a person who kills is exempt from kofer is because of the principle that a lesser punishment is canceled by a greater punishment. R”I will prove that the basis for the exemption is totally independent of the principle of קם ליה בדרבה מיניה. The question we must ask is; why the principle of the greater punishment cancels the lesser does not apply? Upon proper analysis we can see that the Torah in Sh’mos 21, 22, is not discussing a financial payment for causing the death of the mother. Such a payment if it were to take the form of kofer might be in order as far as that verse is concerned. What the verse there is excluding is a payment for the lost fetus, which of course is totally independent of the payment for the mother’s life. It may be that we can learn from the verse that only independent payments are canceled by a death penalty, but we cannot learn from that verse that a payment for the death of the mother is exempt because of that verse.
And R’I says: That the Riva’s question is no question at all, because one is not exempted from kofer because of the principle that a lesser punishment is canceled by a greater punishment, and here in the discussion of non-payment of kofer it is not possible to mention that which was taught in the academy of Chizkeeyoh, because that is an extension of the principle that the lesser punishment is canceled by the greater punishment. Since the original principle does not apply, the extension also does not apply.
Later the Gemara on 26a asks that a person should be liable for kofer based on a kal v’chomer. If an animal that is not liable for the four things, pain, medical expenses, lost time and embarrassment, is liable for the kofer, a person who is liable for the four things should certainly be liable for the kofer. The G’moro rejects this kal v’chomer, because the verse obligating one to pay kofer uses the word עליו - upon him, referring to the animal and the G’moro understands that this means to exclude a person from kofer. Tosfos now applies what we learn from that G’moro to the issue under discussion.
For later in the second Perek on 26a it appears that if not for the verse עליו- upon him, the ox, and not upon the person, we would derive liability for a person who killed from an ox that killed, based on the kal v’chomer we mentioned earlier. The liability for intentional murder would be capital punishment and kofer. It does not seem that the principle of the lesser penalty being canceled by the greater penalty is relevant. And it is from עליו, that he is exempted from kofer. The exemption of עליו applies even when he killed unintentionally, because a person who murders unintentionally is comparable to an ox that killed, even though the ox had intent to kill, there is no legal validity for the intention of an ox3Even though we definitely speak of an ox’s intent to harm as being a reason for liability, such intent could never qualify as intent for a human who is liable only if he understands the consequences of his action and can be warned by witnesses that he will be liable for capital punishment. See Rashash.. Just as an ox kills with less than legally valid intent, so too, a person who kills unintentionally lacks legally valid intent. Since the Torah says עליו- and not upon a person, the implication is that in any way the ox is liable for the kofer, a person is exempt. The ox is liable even though his intent is not legally considered intent, so too, a person is exempt when he does not have legally valid intent to kill.
We now have a source other than קם ליה בדרבה מיניה for the exemption from kofer for both intentional and unintentional murder. However, we must still know why that principle does not apply to kofer.
And that which was taught in the academy of Chizkeeyoh, that exempts one who kills even unintentionally, is not discussing kofer, which is a penalty for killing, it is referring to property that one damaged as he was committing a capital violation. That payment would be totally unrelated to the capital violation. The relationship of the two violations is simply one of time. They both happen together, as in the case of paying for a fetus. The capital violation of murdering the mother happens at the same time as the financial obligation for aborting the fetus. The reason one pays for the fetus has nothing to do with the death of the mother.
That which was taught by the academy of Chizkeeyoh comes to reject the opinion of the one in Perek Ailu Naaros (K’subos 35a) who expounds the verse in Sh’mos 21, 22, “if there will be no death, the perpetrator must pay”. He deduces, but if there will be a death, there will be no payment for the fetus. The word אסון death, refers specifically to the penalty for death, and it is actually only if the murder was intentional when there will be a death sentence, that there will be no payment for the aborted fetus. If however, the murder was unintentional and the murderer is not executed, the payment for the fetus must be made. It is this opinion that Chizkeeyoh rejects.
Chizkeeyoh comes and informs us that it need not particularly be liability for the death penalty that cancels the payment for the fetus but even an unintentional murderer is not punished with payment for the fetus.