Sanhedrin 117

Today's Shiur is dedicated by Professor Ze'ev Orzech in memory of his father, Pinchas Eliahu ben Shimon Shraga ha-cohen, z"l, whose Yahrzeit falls tomorrow, 4th Tevet.

8:
Before we explain the third part of our mishnah there are some further comments to be made about the second part. We are concerned with the difference between an assailant being the direct and immediate cause of his victim's death or only the indirect or secondary cause. The Gemara [Sanhedrin 77b] now adds further cases for the sake of elaboration, each time indicating a different point concerning the attack on the victim. Almost all residential areas had a common cistern to provide water. This was usually a large hole dug in the ground and lined to prevent seepage, and covered with a plank. The water was conducted to the individual homes via conduits. Some houses had their own private cistern. The first case considered by the Gemara is one where the assailant forces his victim into a cistern and leaves him there. However, he knows that there is a ladder in the cistern which his victim can use to get out of the cistern. If someone subsequently removes the ladder before the victim can extricate himself – or even if the assailant himself returns to remove the ladder – he cannot be accused of murder (which incurs the death penalty) since at the moment that he forced his victim into the cistern the victim could have escaped. (Recall what we said in our last Shiur: the fact that in such cases the assailant cannot be accused of murder does not mean that he gets off scot free, as we shall see in Mishnah 5. It just means that the death penalty cannot be applied, and all these refinements discussed by the Gemara are just further means developed by the sages to reduce the compass of cases where the death penalty is mandated.) Further examples are given by the Gemara which serve to illustrate a general rule: when the victim's death is not the unavoidable consequence of the assailant's attack the death penalty cannot be applied – even if subsequently someone (including the assailant) restored the circumstances to such that had they existed at the time of the attack the victim's death would have been unavoidable.

9:
Another example is given. Agriculturalists would water their fields via channels that led from the local river. A series of dams that could be opened and closed as needed would channel the water where needed. In a case discussed by the Gemara the assailant ties up his victim so that he cannot escape and then removes the dam so that the victim is in the direct path of the torrent. The Gemara rules that in such a case the assailant is liable to the death penalty since this is no different than aiming arrows at the victim. If however, the torrent overtakes the victim in an indirect way the death penalty cannot be applied. This enables us to formulate another rule: the death of the victim must be the result of the direct action of the assailant and not merely his indirect responsibility.

10:
Yet another example is given. If a gang of ten attack a victim, either all together or one after the other, the death penalty cannot be applied. Rambam [Moses Maimonides, North Africa, 12th century CE] explains that this is because the death penalty can only be applied for the action of one individual and cannot be applied for the action of a group acting in concert [Mishneh Torah, Laws of Murder, 4:6].

11:
We shall consider one more case: when someone kills someone who is already dying. Rambam summarizes most interestingly as follows:

It seems to me, comparing Rambam's very careful language, with the language used in the original discussion in the Gemara [Sanhedrin 78a] that he is not considering the case of someone suffering from a terminal illness – what is described as death caused by "an act of Heaven". Rather he is considering the case of someone attacked either by a wild animal or by a human animal and left for dead.

12:
We can now turn to the elucidation of the third part of our mishnah (quoted above at the head of this Shiur). As a result of the assailant's attack the experts expect the victim to die. However, his situation improves, but then he suffers a relapse from which he dies. There is a Maĥloket [difference of opinion] here between Tanna Kamma and Rabbi Neĥemyah. Rabbi Neĥemya seems to be saying that the assailant cannot be liable to the death penalty since the victim did not die as an immediate result of his attack. Tanna Kamma [i.e. the rest of the sages] seems to be saying that the assailant is liable to the death penalty since, despite the temporary recovery, the victim does eventually die as the direct result of the assailant's attack on him. This permits us to formulate another general rule: the death penalty is mandated where the death of the victim is caused by the attack of the assailant: it makes no difference how much time elapses between the attack and the incidence of death.

In our last Shiur I responded to a question about adoption. Richard Friedman writes:

You said that Judaism does not recognize adoption as creating a parental relationship. You went further and said that,
if Avraham and Sarah adopt Re'uven, Re'uven should not be called to the Torah as "ben Avraham v'Sarah." I thought that there was recognition, at least in some Conservative practice, and at least with regard to a child born non-Jewish but converted, that the child could be called to the Torah with the patronymic/matronymic of the adoptive parents.

I respond:

I did not say that "Judaism does not recognize adoption as creating a parental relationship". I wrote that "Halakhah does not recognize the possibility of the dissolution of blood ties with a biological parent, nor does it recognize the possibility of creating a blood tie with an adopting parent." There is a great difference between "blood ties" (which are the result of a biological link) and "a parental relationship". There is nothing in Halakhah that would prevent an adopting parent exercising all the material privileges and duties of parenthood: that is the meaning of the legal status of Apotropos that I mentioned last time.

I did say that "it would be misleading if the adopted child were presented as if he or she were the natural child of the adopting parent (when being called to the Torah in synagogue, for example) since this could lead the general public to think that there is a blood relationship". I am aware that some Poskim (and not just Conservative Poskim) permit a youngster to be called to the Torah "with the patronymic/matronymic of the adoptive parents". I do not agree with these Poskim. Imagine a situation in which two children of the same biological parents are adopted by two different sets of adopting parents, each unknown to the other, and possibly in different countries. If the persons involved and the general public that knows them are not aware that there is no blood relationship between the child and the parent, there is the possibility (however remote) that at some stage in the future biological siblings will marry each other. In the days when bigamous marriage was permitted to men Halakhah frowned upon a man marrying two women from different places for just the same reason – that his children, growing up with separate mothers in separate places, would not know that they were siblings. However, the Gemara [Yevamot 37b] does permit such marriages where the father is a famous person, since the children would be aware of their parentage.

This leads me to feel that it would be better for the general public to know that a certain child is not a blood relative of the parents. However, I can certainly imagine circumstances where I would agree with those Poskim who permit what Richard has described. For instance, where it has been ascertained beyond all doubt that all the children of the biological parents have been adopted by the same family, or where the children themselves know that they are adopted even though they are known for ritual purposes as the children of the adopting parents.