Makkos Daf 7 מאקוס דַף 7

The next Mishnah states that a sanhedrin which executes once in seven years is called חובלנית – a destructive court (Rebbe Elazar ben Azaryah says even once in seventy years). Rebbe Tarfon and Rebbe Akiva say: אילו היינו בסנהדרין לא נהרג אדם מעולם – had we been on a sanhedrin, no person would ever have been executed. Rabban Shimon ben Gamliel commented: אף הן מרבין שופכי דמים בישראל – they too would have increased the spillers of blood in Yisroel, since there would be no fear of punishment.

Rebbe Yochanan and Rebbe Elazar explain that Rebbe Tarfon and Rebbe Akiva would avoid executions by asking the witnesses: ראיתם טריפה הרג שלם הרג – did you see if he killed a treifah or a whole person (murder of a treifah, someone who would die within the year, is not punished with death)? Rav Ashi says that even if they examined the victim, דלמא במקום סייף נקב הוה – perhaps there was already a fatal hole in the spot where the sword pierced. Regarding forbidden relations, they would ask the witnesses if they saw the very act which is prohibited, which they almost invariably did not. The Rabbonon disagree, and say that testimony about adultery is sufficient משיראו כמנאפים – when they appear like adulterers engaged in adultery.

The second Perek begins: אלו הן הגולין – these are the ones who are exiled to an עיר מקלט: ההורג נפש בשגגה – one who kills a person inadvertently. The Mishnah gives three illustrations: if one was pushing a roller downwards to slant a roof, or lowering a barrel on a rope, and the item fell and killed someone, or he was descending a ladder and fell and killed someone, he goes to galus. However, if these activities were performed in an upward motion, he is exempt. Shmuel gives the source: "ויפל עליו וימות" – he caused [something] to fall on him and he died, teaching: עד שיפול דרך נפילה – he is not exiled unless it falls in a “falling” (downward) manner. A Baraisa darshens "או השליך עליו" – or he threw something on him, להביא ירידה שהיא צורך עליה – to include one who killed with a downward motion which is for the purpose of an upward motion. Rebbe Yochanan said that someone ascending a ladder, whose stepping on a rung caused it to slip out and kill someone, is exiled for this reason. Below, the Gemara brings a machlokes about such a case, and explains how they can agree that such a case is exempt from galus.

The next Mishnah states: נשמט הברזל מקתו והרג – if the iron axe-head slipped off its handle while one chopped wood and it killed someone, Rebbe says he is not exiled, and the Chochomim say he is. מן העץ המתבקע – If a woodchip flew from the tree being chopped and killed someone, Rebbe says he is exiled, and the Chochomim say he is not. In a Baraisa, Rebbe argues that the passuk does not say the iron slipped off "מעצו" – from its wood (the handle); rather, it says "מן העץ" – from the wood (the tree). Furthermore, the word "עץ" earlier in the passuk (“to cut the עץ”) means the tree, so this "עץ" does also.

Rav explained the basis of the machlokes: Rebbe holds יש אם למקרא – there is primacy given to the transmitted (written) form, so ונשל (written without an "א") is read "ונִישל" – and it caused to fly off, implying the axe knocked off a wooden chip. The Rabbonon hold יש שם למקרא (the pronounced form), and it is read "ונָשל" – and it [the iron] slipped off. However, the Gemara proves that Rebbe also holds יש אם למקרא, and this is why Rebbe required the reasons given in the Baraisa.