YOMA - 085a – יום הכפורים – פרק שמיני - יומא, פה ע”א

And Shmuel said: it means to clear the rubble off him.^[1]

ושמואל אמר לפקח עליו את הגל - he says that this applies if most are Jews, but not when it is half and half, and all the more so not when most are Kusim.

When Shmuel's statement was said, it was said on the first clause: If most are gentiles, the child is a gentile — Shmuel said: and with regard to saving a life, it is not so.

אינו כן - for he says that even when most are Kusim, we clear the rubble.

If most are gentiles, the child is a gentile — for what halachah?

למאי הילכתא - is he a Kusi according to Shmuel? Since he says we clear the rubble off him, all the more is there a mitzvah to sustain him — so for what halachah is he a Kusi?

Rav Pappa said: to feed him neveilos.

להאכילו נבילות - until he grows up and takes conversion upon himself.

If most are Jews, the child is a Jew — for what halachah?

אם רוב ישראל ישראל למאי הילכתא - is he a Jew where most are Jews, more than where it is half and half? If it is that we do not feed him neveilos — even where it is half and half we would not feed them to him.

To return his lost property to him.

Half and half, the child is a Jew — for what halachah?

Reish Lakish said: for damages.^[2]

לנזקין - a Jew's ox that gored a Kusi's is exempt; a Kusi's ox that gored a Jew's, whether tam or mu'ad, pays full damages; and a Jew's ox that gored a Jew's — a tam pays half damages, a mu'ad pays full damages.

What are the circumstances?

If you say that our ox gored his ox,

אי נימא דנגחיה תורא דידן לתורא דידיה - and we say that we obligate him to pay —

let him bring proof and take!

נייתי ראיה - that he is a Jew, and take; for as long as he has not immersed before a beis din for the sake of conversion, we cannot obligate the Jew to pay.

No — it is needed where his ox gored our ox: he pays half, and for the other half we tell him: Bring proof that I am not a Jew, and take.

פלגא - he pays as a Jew would; the other half is in doubt, while this one claims full damages as the law of a Kusi; he says to him: Bring proof that I am not a Jew, and take.

One on whom a collapse fell, etc.^[3]

What is it saying?

מאי קאמר - all these doubts that it teaches — what do they come to teach us?

It is saying, not only this but even that: not only where it is doubtful whether he is there or not, for if he is there he is alive and that is why we clear the rubble, but even if it is doubtful whether he is alive or dead, we clear it;

and not only a doubt of alive or dead of a Jew, but even a doubt whether he is a gentile or a Jew, we clear it.

If they found him alive, they clear the rubble.

If they found him alive — that is obvious!

No — it is needed for even a brief extension of life.^[4]

And if he is dead, they leave him.

This too is obvious!

No — it is needed according to Rabbi Yehudah ben Lakish, as it was taught: We do not rescue the dead from a fire; Rabbi Yehudah ben Lakish said: I heard that we do rescue the dead from a fire.

שמצילין את המת - to a courtyard joined by an eruv, where there is no prohibition other than moving it.

But even Rabbi Yehudah ben Lakish said so only because a person is frantic over his dead, and if you do not permit it to him, he will come to extinguish the fire;^[5] but here, if you do not permit it to him, what is there for him to do?

אבל הכא - if you do not permit him to clear the rubble, what is there for him to do that would be a Torah prohibition, so that we should permit this one in the face of that one?

The Rabbis taught: Up to where does one check?

עד היכן הוא בודק - if he looks like a dead man who does not move his limbs — up to where does he clear the rubble to learn the truth?

Up to his nose.

עד חוטמו - and if there is no life in his nose, that he gives off no breath, he is certainly dead, and they leave him.

And some say: up to his heart.

If he checked and found the upper ones dead, he should not say the lower ones are already dead.

There was an incident, and they found the upper ones dead and the lower ones alive.

Shall we say these Tannaim are like those Tannaim? As it was taught: From where is a fetus formed?

From its head, as it says (Tehillim 71:6): From my mother's womb You cut me; and it says (Yirmiyahu 7:29): Cut off your hair and cast it away.

גזי נזרך - and nezer is the hair of the head.

Abba Shaul says: from its navel, and it sends out its roots this way and that.

You may even say Abba Shaul: Abba Shaul said this only there, with regard to formation, for everything is formed from its middle; but with regard to saving a life, even Abba Shaul agrees that the main life is in the nose, as it is written (Bereishis 7:22): All in whose nostrils was the breath of the spirit of life.

אפילו תימא אבא שאול - also holds: up to his nose.

Rav Pappa said: The dispute is from below upward; but from above downward, once he has checked up to his nose he need not check further, as it is written: All in whose nostrils was the breath of the spirit of life.

הכי גרסינן אמר רב פפא מחלוקת מלמטה למעלה - the dispute of these Tannaim — one says up to his heart and the other says up to his nose — is from below upward: they find him by his feet first and check, proceeding toward his head; the one says at his heart one can discern whether there is life in him, for his breath beats there, and the other says up to his nose, for sometimes life is not noticeable at his heart but is noticeable at his nose.

Once Rabbi Yishmael, Rabbi Akiva and Rabbi Elazar ben Azaryah were walking on the road, with Levi HaSadar and Rabbi Yishmael the son of Rabbi Elazar ben Azaryah walking behind them, and this question was asked before them: From where do we know that saving a life sets aside Shabbos?

ולוי הסדר - it was not explained to me what this is.

Rabbi Yishmael answered and said (Shemos 22:1): If the thief is found breaking in.^[6]

Now if this one, about whom there is doubt whether he came for money or for life — and bloodshed defiles the land and causes the Shechinah to depart from Israel — may be saved from by taking his life, all the more so saving a life sets aside Shabbos.

ושפיכות דמים - by which it was permitted for the householder to shed this one's blood to save himself from a doubt to his life, is a grave sin that defiles the land, as it is written (Bamidbar 35:34): You shall not defile the land, in the passage of murderers.

וגורם לשכינה שתסתלק - as it is written (ibid.): in whose midst I dwell — thus if you defile it, I do not dwell; and it is written regarding a murderer.

Rabbi Akiva answered and said (Shemos 21:14): And if a man plots against his fellow, etc., from My altar you shall take him to die.

מעם מזבחי - if he is a Kohen who comes to perform the service.

From My altar — and not from upon My altar.^[7]

ולא מעל מזבחי - if he has begun the service, he does not stop to come to be judged, but completes his service.

And Rabbah bar bar Chanah said in the name of Rabbi Yochanan: They taught this only to put to death^[8]

Tosafos

ולפקח הגל אינו כן - The Ri says that this is the reason we do not follow the majority in saving a life: because it is written ( Vayikra 18:5 ) and live by them — and not die by them; so that one should not come in any way to the death of a Jew.

להאכילו נבילות - He could not have said: not to sustain him, because even where it is half and half one is not obligated to sustain him, for only where most are Jews do we say: they taught this only to sustain him.

להחזיר לו אבידתו - That he did not say: to sustain him, as Rav said above — Rashi explained that it was needed for Shmuel, who holds that even to clear the rubble on Shabbos we do not follow the majority, all the more so to sustain him. And although Shmuel holds (Bava Basra 92b) that we do not follow the majority in monetary matters — that applies where it came into his hands with the owner's consent, as one who sells an ox to his fellow and it is found to be a gorer; but here, where it did not come into his hands with the owner's consent, we follow the majority. And in Kesubos, at the end of the first perek (15b), he explained that he took the novelty, even to return a lost object to him, where there is a great transgression, as we say ( Sanhedrin 76b ): One who returns a lost object to a Kusi — about him the verse says: in order to add the drunk to the thirsty, etc.; and even so we return it where most are Jews, and all the more so to sustain him, where there is not so great a transgression, for we support the poor of the Kusim together with the poor of Israel because of the ways of peace [Gittin 61a].

להחזיר לו אבידה - But not when it is half and half, for he says to him: Bring proof that you are a Jew and I will return it to you.

לא צריכא דנגחיה תורא דידיה לתורא דידן - It is puzzling to me, for he could have said that all of them are for damages: if most are Jews, he is a Jew — where our ox gored his ox; half and half, he is a Jew — where his ox gored our ox and he pays only half; if most are Kusim, he is a Kusi — he pays full damages. Rather, it is preferable to state a novelty in each one.

אבא שאול אומר מטיבורו - Rabbeinu Tam asked: in perek HaMapeles (Niddah 25a) it was taught: What is a fully formed fetus? Abba Shaul says: the beginning of its creation is from its head. He further asked: there it implies that it speaks only of the size of the limbs and their smallness, as it concludes there: its two eyes are like two drops of a fly, etc. Therefore Rabbeinu Tam reads: the beginning of its creation is like a rashon — meaning, on the day its first form is completed, its whole body is the size of a salam, as we translate rashuna; and so the Aruch explained [entry rashon].

Notes

1. 1. This continues the dispute between Rav and Shmuel on 84b over the Mishnah (Machshirin 2:7) about an abandoned child found in a town of Jews and gentiles.
2. 2. A tam is an ox not yet established as a gorer; its owner pays half damages. A mu'ad has gored three times and been warned; its owner pays full damages.
3. 3. The Mishnah [Yoma 83a]: One on whom a collapse fell — if it is doubtful whether he is there or not, whether he is alive or dead, whether a gentile or a Jew — they clear the rubble off him.
4. 4. Chayei sha'ah — even if he will live only a short while.
5. 5. That is: they permitted moving the dead, which is only a rabbinic prohibition (muktzeh), so that he not come to extinguish the fire, which is a Torah prohibition.
6. 6. The thief who tunnels in may be killed, although it is only a doubt whether he came to kill; from this a kal vachomer is drawn for saving a life.
7. 7. See [Rashi on Shemos 21:14].
8. 8. The passage continues on [Yoma 85b].