פרק יב: הכריך המורעל
With the merciful be merciful, with the sincere man be sincere.
With the pure be pure, and with the devious be subtle.
PSALMS 18:26-27
I. The Controversy
Some time ago an incident occurred involving a socially inept American student who became the butt of his classmates' derisive behavior. Matters reached a point at which one of the tormentors regularly invaded the oppressed student's knapsack, stole the sandwich the latter had prepared for lunch and proceeded to eat it himself. Endeavors to enlist the aid of fellow classmates in order to identify the thief or to prevail upon him to put an end to the practice were of no avail. Finally, the victim, who excelled academically as a chemistry student, took matters into his own hands and proceeded one day to lace his sandwich with a poison. In the midst of an afternoon lecture one of the members of the class became violently ill. In the course of the ensuing tumult the victimized student revealed what he had done explaining that he had resorted to poisoning the sandwich in order to establish the identity of the thief. Thereupon the rightful owner of the sandwich administrated an already prepared antidote to counter the effect of what otherwise would have been a lethal poison.
The students involved seem to have been non-Jews. However, many years later, a Jewish student who witnessed that episode, and who in the interim had become a physician in Israel as well as a participant in a periodic seminar conducted on behalf of physicians by Rabbi Yitzchak Zilberstein of Bnei Brak, asked Rabbi Zilberstein if the aggrieved student's conduct was justified in accordance with Jewish law. Surprisingly, as reported in the Israeli Torah journal, Pa'amei Ya'akov, no. 44 (Kislev 5760), Rabbi Zilberstein immediately responded, "Not only is it permissible, the matter even involves a mizvah!"
In a one-line statement published in the Kislev 5760 issue of Pa'amei Ya'akov, R. Chaim Kanievsky gives a qualified endorsement to that position. Rabbi Kanievsky writes: "It appears that there is a basis (yesh makom) for the words of my brother-in-law." Later, as reported by R. Elisha Mann, Derekh Siḥah, ed. Zevi Yaron (Bnei Brak, 5764), p. 371, Rabbi Kanievsky asserted that his opinion with regard to the case of the poisoned sandwich was solicited by Rabbi Zilberstein and that he had responded that the student was fully justified in poisoning the sandwich. Rabbi Kanievsky's statement is presented in conjunction with his reply to a similar inquiry: A thief gained entrance to an upper story of a dwelling by means of a rope. In order to prevent repeated burglary, may the owner of the house replace the rope with a weaker one that will snap and cause the burglar to fall and injure himself? Rabbi Kanievsky responded in the affirmative.
The same issue of Pa'amei Ya'akov as well as the following issue, no. 45 (Nisan 5760), contain a series of critiques of Rabbi Zilberstein's ruling authored by R. Sinai Meir Frankel of Yavni'el, R. Gedaliah Axelrod of Haifa, R. Mordecai Blinnov of France, R. Ya'akov Gerneirer of Bnei Brak and R. Menasheh Klein of Brooklyn as well as two responses by Rabbi Zilberstein. A further critique by R. Gedaliah Rabinowitz of Jerusalem appears in the American Torah journal, Or Yisra'el, vol. 6, no. 2 (Tevet 5761). Rabbi Zilberstein's view is also published as an article appended to Hakham Lev Yikaḥ Mizvot, authored by R. Eliezer Roth (Bnei Brak, 5661) and appears as well in his Hashukei Hemed, Bava Kamma, p. 387 and in his Toratekha Sha'ashu'ai, no. 34. Discussions attributed to Rabbi Zilberstein of less dangerous methods of identifying and apprehending a miscreant are published in Ve-Ha'arev Na, I, 438-440 and II, 427-430.
Although the rather bizarre fact pattern under discussion is unlikely to be replicated, the issues involved do have practical application in more usual situations. A classic example is the question of whether a householder who has reason to fear that his unoccupied premises may be burgled may booby-trap his house in order to protect his property by maiming or killing the miscreant. The crux of Rabbi Zilberstein's position is that a person may do as he pleases in his own home, with his own knapsack or with his own sandwich. The thief or trespasser proceeds at his own risk. Consistent with this reasoning it follows that a person may store bleach or chlorine in a whisky bottle and need not be concerned lest a burglar read the label and consume the contents believing that the bottle contains whisky. Indeed, Rabbi Zilberstein asserts that such a course of action is justified even if the householder is aware of the fact that the would-be burglar has designs upon his whisky.
The basic point is reflected in the statement of the Gemara, Bava Kamma 47b, absolving a person who places poison before an animal from tort liability. The underlying principle is that there is no proximate cause on the part of the tortfeasor; the animal is responsible for its own death since "it should not have eaten" the poisoned substance. Rabbi Zilberstein's critics object that, as is the case with regard to other instances of indirect cause of harm, the statement of the Gemara is limited to actionability in a human court but does not absolve a person who acts in that manner from responsibility "according to the laws of Heaven."
Rabbi Zilberstein counters that heavenly culpability is limited to placing poison before an animal in a place in which the animal has a right to be present; there is no similar heavenly liability if a person stores poison in his own backyard and it is consumed by a trespassing animal. Moreover, contends Rabbi Zilberstein, a human is an intelligent being and if he trespasses for purposes of theft the householder who causes him harm in this manner is not guilty even in the eyes of Heaven. Certainly, he argues, a householder who posts a sign saying "Beware of the Dog" is entirely without guilt if a trespasser ignores the sign and is bitten. Rabbi Zilberstein regards the commandment "You shalt not steal" as sufficient warning. Rabbi Zilberstein's basic position is that a person may do as he wishes in his own home and with his own property provided others are on notice with regard to possible harm that may befall them.
Rabbi Zilberstein further cites an anecdote recorded in the Gemara, Yoma 83b. R. Judah and R. Jose deposited their purse with an innkeeper who later denied accepting the bailment. Subsequently, they succeeded in tricking the innkeeper's wife into accepting their contention that her husband had directed them to retrieve the purse from her. Upon becoming aware of their successful ploy, the enraged innkeeper killed his wife. Rabbi Zilberstein regards it as unthinkable that the two tanna'im did not appreciate the possible consequences of their actions. Evidently, he concludes, R. Judah and R. Jose were entitled to do whatever might be necessary in order to prevent an act of theft against them while the innkeeper and his wife alone were responsible for any untoward result.
Rabbi Zilberstein finds more direct support for his position in a narrative recorded in Tractate Derekh Erez Rabbah, chap. 5. On one occasion R. Joshua provided hospitality for a guest. After serving his guest food and drink, R. Joshua escorted him to the roof of his house where he had prepared a bed for the night. Fearing that the guest might abscond with some of his valuable possessions, R. Joshua removed the ladder leading from the roof to the ground. R. Joshua had correctly assessed his guest's intention. In the dead of night the guest wrapped R. Joshua's valuables in his cloak but, in attempting to descend from the roof, he fell and broke his neck.
That narrative is analyzed by R. Shlomoh Zalman Auerbach, Minḥat Shlomoh, III, no. 105. Rabbi Auerbach declares that the anecdote does not at all establish that it is permissible to cause harm to a putative thief. Rabbi Auerbach asserts that R. Joshua's course of action was justified only because a prudent person would have observed the absence of the ladder. The purpose of removing the ladder was to prevent incipient theft, not to cause the thief to plunge to his death. The ladder was removed, not to cause physical harm to the thief, but to prevent him from absconding with his ill-gotten gains in the dark of night. The thief was unaware of the danger only because he acted with precipitous haste, a factor R. Joshua was not obliged to consider. *In effect, the negligence of the victim renders him the author of his own harm and hence exonerates the tortfeasor, who does not anticipate such negligence on the part of the victim, from culpability even at the hands of Heaven. See supra, note 4.
Rabbi Zilberstein concedes the cogency of Rabbi Auerbach's analysis and hence effectively further restricts the ambit of his ruling in the case of the poisoned sandwich. Accepting the premise that only a deterrent that would not bring harm to a prudent person may be employed, Rabbi Zilberstein argues that, since the sandwich thief was proficient in chemistry, he should have tested the sandwich for the presence of a poison before partaking of his ill-gotten gains! Rabbi Zilberstein rather implausibly equates chemical analysis for the presence of a deadly poison with ascertaining that a ladder is in place before stepping off a roof. A prudent person does not step off a roof without determining that it is safe to do so; unless a person has specific cause to feel threatened, testing food for the admixture of a poisonous substance is probably a manifestation of paranoia.
Rabbi Zilberstein agrees that, if the suspected thief is not trained in chemistry, it is forbidden to entice him to eat a poisoned substance. Accordingly, he rules that, in ordinary circumstances, it is forbidden to place poisoned candy in close proximity to valuables in anticipation that the thief will not only make off with the valuables but will steal and consume the sweets as well.
Rabbi Kanievsky, as reported in Derekh Siḥah, also cites the narrative involving R. Joshua recorded in Derekh Erez Rabbah but apparently does not accept the limitation conceded by Rabbi Zilberstein. As noted earlier, Rabbi Kanievsky was presented with a situation in which a burglary victim wished to replace a strong rope with a much weaker one that would not support the weight of the burglar. Rabbi Kanievsky ruled that a substitution of that nature is permissible but failed to indicate that such license is limited to a situation in which the burglar would discern the substitution were he to have examined the rope.
R. Zevi Spitz, Mishpetei ha-Torah (Jerusalem, 5768), I, no. 79, similarly sanctions weakening the supporting pillars of a clothesline in order to prevent a thief from returning to burgle an upper story. Nevertheless, he forbids digging a deep pit in a courtyard and then camouflaging its opening so that a would-be thief would be trapped and injured by falling into the pit. Rabbi Spitz bases his latter ruling upon a statement recorded in the Gemara, Bava Kamma 15b, declaring that it is forbidden to maintain a ferocious dog or an infirm ladder in one's house. Such conduct is forbidden even if all family members and acquaintances are advised in advance of potential danger. The fear is that an innocent but unwary person intent upon no harm might be injured. The case of Rabbi Joshua is readily distinguishable because, save for the thief cum guest who had been escorted to the roof, the roof was not generally in use and hence did not constitute a hazard. Rabbi Spitz permits only creation of a situation that will endanger no one other than a person whose intentions are malevolent. Innocent persons are unlikely to come to harm because the posts supporting a clothesline have been rendered unstable or because a weak rope has been substituted for a stronger one not customarily used for climbing. Weakened ropes or pillars do not constitute an inherent danger whereas a vicious dog and a ladder with loose rungs — and a camouflaged pit — are inherently dangerous.
Rabbi Zilberstein's statement to the effect that a person may with impunity place poison before an animal that has entered his property is contradicted by earlier decisors. R. Yair Chaim Bacharach, Teshuvot Havvot Ya'ir, no. 165, presents a report of an incident involving a merchant who engaged in the sale of various beans and seeds. Chickens belonging to a neighbor repeatedly swarmed into his place of business and helped themselves to the merchant's wares. The merchant repeatedly warned his neighbor that, should the latter fail to prevent continued trespass by his chickens, he, the merchant, would destroy the chickens. Finally, the merchant killed one of the marauding hens and was summoned by his neighbor to a din Torah before Havvot Ya'ir. To the merchant's surprise and consternation, Havvot Ya'ir ruled in favor of the owner of the chicken.
Havvot Ya'ir rules that destruction of another person's animal is not warranted even if it occurs on one's own property and is designed to prevent ongoing damage of property. Havvot Ya'ir does recognize that, under limited circumstances, a property owner faced with destruction of his property is entitled to avail himself of the remedy of avid inesh dina le-nafsheih, i.e., self-help, in order to prevent ongoing damage. Self-help, however, is available only in face of willful and intentional infliction of damage. Hence, in the case of damage caused by animals, self-help is available only pursuant to notice to the animal's master in the presence of witnesses. *Ḥavvot Ya’ir does, however, draw attention to the Gemara’s discussion, Bava Kamma 28a, regarding an ox that mounts a second ox with intent to kill. The Gemara declares that the owner of the attacked animal may extricate his animal and if, in the process of doing so, the attacking ox falls and is killed he is not liable. That provision would seem to indicate that self-help is available without notice, even against an animal causing damage without the knowledge of its master. That problematic ruling notwithstanding, Ḥavvot Ya’ir reiterates that the general rule is that self-help requires prior notice and, as explained infra, note 9, is limited to slaughter of the offending animal. It is evident from the ruling of Shulḥan Arukh, Hoshen Mishpat 397:2, that notice is required *Rambam, Hilkhot Nizkei Mammon 5:1, rules that the animal’s master must be warned three times. Kesef Mishneh, ad locum, questions the need for three admonitions and argues that one warning is sufficient. Ḥavvot Ya’ir contends that even Rambam would agree that three admonitions are required only in the case of a fence that has developed a breach that allows animals to escape but not with regard to an unrestricted marauding animal. Moreover, contends Ḥavvot Ya’ir, the remedy that is sanctioned is slaughter that renders the meat of the animal fit for consumption. Even that remedy is sanctioned only if the animal is in any event destined to be slaughtered since slaughter of an animal raised for its meat causes the animal’s owner no financial harm. However, slaughter is not permitted if the value of the animal is enhanced because it has been raised for breeding or the like, or to lay eggs as in the case of the hen that was the subject of litigation before Ḥavvot Ya’ir. even if the damage is sustained because the animal has trespassed onto the property of the victim. The identical rule should apply to placing poison before a marauding animal although, since placing poison before an animal is regarded as only an indirect cause of the animal's death, liability in such instances would be limited to punishment "at the hands of Heaven."
The propriety of setting out poison for the purpose of killing trespassing animals that cause property damage is addressed directly by R. Shalom Mordecai Schwadron, Teshuvot Maharsham, IV, no. 140. Maharsham cites Shulḥan Arukh, Hoshen Mishpat 397:2 and Teshuvot Havvot Ya'ir, no. 165, in ruling that self-help is not sanctioned in such cases. Somewhat surprisingly, he does not add that self-help in the form of slaughter of an animal raised for its meat is permitted upon prior notice. Maharsham considers and rejects his interlocutor's contention that such action may be appropriate provided it is carried out within the confines of the aggrieved party's own property.
II. Culpability in Common Law
There is a close parallel to Rabbi Zilberstein's opinion in the case of the poisoned sandwich and two classic decisions of a British court in which a distinction is made with regard to whether or not the victim was given notice. Trespassing for the purpose of hunting game seems to have been common in nineteenth-century England. Landowners responded by setting up "spring-guns" that were designed to shoot an intruder who tripped a wire. In Ilott v. Wilkes, 3 Barn. & Ald. 304, decided in 1820, the plaintiff was gathering nuts on the land of the defendant upon which the latter had concealed nine or ten spring-guns. The court refused to allow recovery for damages because the plaintiff had notice of the presence of guns in the wood, albeit not of their location. Just five years later, in Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (1825), the same court found a defendant liable for injuries caused to an innocent intruder intent upon retrieving a straying bird, but only because the defendant failed to give notice of the danger.
That distinction was rejected by an American court in Johnson v. Patterson, 14 Conn. 1, 1840 WL 334 (Conn), 33 Am. Dec. 96. With notice, it had been argued, the trespasser, having full knowledge of the danger, assumes the risk voluntarily and hence must be deemed to have personally inflicted the injury on himself. The court dismissed that argument as applied to the taking of human life declaring: "The man who should furnish suicides with means of self-destruction, would justly be considered as partaking of the crime of homicide, however voluntarily or rashly they were bent on its perpetration." In a concurring opinion in Ilott, one of the justices of the British court justified the use of spring-guns on the grounds that "If you do not allow the men of landed estates to preserve their game, you will not prevail upon them to reside in the country. Their poor neighbors will then lose their protection and kind offices; and the government, the support that it derives from an independent, enlightened and unpaid magistracy." Quite understandably the Johnson court found little to commend in that rationale as applied to American society.
Similarly, in 1971, in Katko v. Briney, 183 N. W.2d 657, 47 A.L.R.3d 624, the Supreme Court of Iowa affirmed an award in an action for damages resulting from injuries suffered by the plaintiff when he triggered a spring-gun placed in an uninhabited farm house. The court affirmed the principle that use of reasonable force in protection of property is permissible but that one may not use force that will result in the taking of a human life or that will inflict great bodily injury. Force of that nature, the court reiterated, is justified only if the trespasser was committing a felony of violence or if the trespasser was endangering human life.
Even when employed to prevent danger to human life, only reasonable force may be used. The reasonableness of the force used is usually a question of fact for a jury to determine. Force may be employed in defense of property but the force used must be of a kind appropriate to the defense of the property. Since the law places a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels unless there is also a concomitant threat to the defendant's personal safety of a gravity sufficient to justify self-defense.
Jewish law permits use of deadly force by a householder against a burglar on the basis of the consideration that when the householder attempts to resist in defending hearth and home the burglar will use deadly force against him. Accordingly, the burglar, or ba be-maḥteret, is deemed to be a "pursuer" and the law of rodef applies. For obvious reasons that principle cannot be applied to protection of unoccupied premises or to an endeavor designed solely to identify or apprehend a perpetrator no longer intent upon burglary since in such cases there is no conceivable threat to innocent life.
Thus it is evident that, although American courts have abandoned the earlier doctrine, the position of Rabbi Zilberstein and Rabbi Kanievsky permitting booby-trapping one's premises provided that prior notice is given of the potential hazard is entirely consistent with the common law position announced in Ilott and in Bird.
Liability for poisoning in order to prevent theft was considered by the Supreme Court of Mississippi in a 1958 decision, Bruister v. Hanly 233 Miss. 527, 102 So.2d 806. A farmer who suffered losses caused by trespassing cattle placed poison in little piles of oats on his premises with intent to injure or kill the marauding animals. The court held that a person who places poisoned food on his premises with intention to injure or kill animals trespassing on his land is liable for any resultant injury to, or loss of, such animals. That basic rule is consistent with Halakhah save for the fact that, since the harm was in the form of gerama, Halakhah would assign culpability only at the hands of Heaven. Citing Johnson, the court further found that notifying the owner of the animals of his intention to place poisoned food on his premises would not exonerate the farmer. Common law would have permitted such a course of action upon prior notice. Again, although Rabbi Zilberstein's opinion is at variance with the decision in Bruister, his view is consistent with the common law position.
III. The Duty of Rescue
Nevertheless, Rabbi Zilberstein's ruling is not as far-reaching as it might appear to be. Granted that a person may act as he wishes with his own possessions, nevertheless, unlike common law, the commandment "You shall not stand idly by the blood of your fellow" (Leviticus 19:16) serves to impose a duty of rescue and mandates that a person not allow the life of another to become forfeit. As codified by Rambam, Hilkhot Rozeaḥ 4:12, and Shulḥan Arukh, Hoshen Mishpat 425:5, Leviticus 19:16 imposes a duty of rescue even with regard to a person who sins in the course of seeking to gratify lust or appetite. Certainly, one may not create a danger and allow a person to succumb if there is an obligation to rescue the victim from that danger. That consideration would seem to preclude any attempt to poison a putative thief.
However, in positing an exception to the obligation of rescue, Pitḥei Teshuvah, Yoreh De'ah 251:1, asserts that, according to Shulḥan Arukh, there is no duty to preserve the life of a notorious thief. As evident from the ruling of Shulḥan Arukh, Yoreh De'ah 251:2, there is certainly no obligation to rescue a repeated wanton and habitual transgressor. Although Rema, Yoreh De'ah 251:2, rules that ransom of a transgressor "le-tei'avon," i.e., one who repeatedly transgresses for pleasure or benefit, is discretionary, Teshuvot Havvot Ya'ir, no. 139, rules that efforts must be made to secure the reprieve of a convicted thief from execution since his transgressions were le-tei'avon, i.e., born of avarice rather than of wanton disregard of the law. Accordingly, Rabbi Zilberstein concedes that, for example, one should not tempt a burglar by placing poisoned candy in a safe or in close proximity to valuables in order to punish the malfeasor, particularly since there is no evidence that the putative burglar has stolen property in the past and has thereby acquired the status of a mumar or habitual trangressor.
Rabbi Zilberstein asserts that the sandwich thief acted, not because of hunger or out of a desire to satisfy an appetite stimulated by sight of the sandwich, but out of sheer maliciousness and, having done so repeatedly, the thief has acquired the status of a mumar le-hakh'is, i.e., of a habitual, wanton transgressor rather than of a person who trespasses for the purpose of enjoying a pleasure or benefit. Despite that contention, it is far from clear that the thief did not act out of mixed motivation: he may also have found the victim's sandwiches particularly tasty or he may well have similarly coveted sandwiches belonging to others but have felt constrained not to steal from close friends or colleagues.
Moreover, Rabbi Zilberstein does not establish that the pleasure derived from taunting or holding up another person to ridicule, perverse as that pleasure may be, fails to constitute a "benefit" of a nature that serves to remove the act from the category of le-tei'avon. Indeed, a statement found in Teshuvot Havvot Ya'ir, no. 146, cited by Pitḥei Teshuvah, Yoreh De'ah 251:1, supports the opposite conclusion. Havvot Ya'ir describes a person who had committed homicide as a transgressor le-tei'avon on the grounds that the person acted as he did in order to assuage his evil nature. Havvot Ya'ir regards giving vent to anger as a form of "pleasure," albeit an evil pleasure. Surely, making sport of a hapless person, perverse as it may be, is no less a pleasure than acting out pent-up aggression.
Presumably, Rabbi Zilberstein would also maintain that, even when there is no physical danger to the potential victim of further theft, it is nevertheless permissible to create a potentially lethal danger directed against a malevolent and habitual thief provided that the thief is given actual prior notice of an existing danger. It seems reasonable to assume that the imprudence inherent in ignoring such notice is at least as great as, and presumably greater than, the imprudence of not testing a sandwich for poison.
Rabbi Zilberstein's position is not inconsistent with the normative view regarding the rescue of a person intent upon committing suicide. When an intention to commit suicide is manifest such intention must be thwarted but, unless there is evidence to that effect, it may be presumed that a rational person will seek to avoid harm to himself. Hence, according to Rabbi Zilberstein, license to create a hazard designed to serve as a deterrent is not incompatible with a duty of rescue.
IV. "Hal'itehu la-Rasha — Gorge The Wicked"
Rabbi Zilberstein asserts not only that, as a matter of normative law, a person may do as he wishes within his own property but that he need not be concerned even in a moral sense with regard to potential harm that may befall a miscreant. Quite to the contrary, he asserts, any harm that is occasioned is to be welcomed.
"Hal'itehu la-rasha ve-yamot – Gorge the wicked and let him die" is formulated as a principle of comportment by the Gemara, Bava Kamma 69a, with regard to thieves who steal fruit yielded by a sapling within the first four years after it has been planted. The fruit of the first three years is entirely forbidden as orlah; the fruit that grows during the fourth year, known as neta reva'i, or, in the case of grapes, as kerem reva'i, must either be transported to Jerusalem and consumed within the walls of the city or redeemed by exchanging the fruit for coins which must then be expended for the same purpose.
Thieves who steal fruit do not necessarily ignore other prohibitions. However, even if, in general, they would be concerned not knowingly to transgress the prohibition against consuming neta reva'i outside of Jerusalem, thieves are unlikely to be aware of the restricted status of the fruit they have appropriated to themselves. The rightful owners might readily mitigate the severity of the transgression committed by the thieves by expeditiously "redeeming" the fruit, i.e., by themselves transferring the sanctity of the fruit to coins so that the thieves would be spared the transgression of eating neta reva'i outside of Jerusalem. Alternatively, they might simply post a notice indicating the restricted nature of the fruit. Yet they are not required to do so. Indeed, Me'iri, in his commentary ad locum, indicates that a potential victim of theft is advised not to provide any indication that the coveted object is a forbidden foodstuff. Rather than seeking to take measures that would cause the putative thief to desist from compounding his infractions, declares Me'iri, "it is preferable (mutav)" to allow the culprit to become mired in more serious transgression in order to hasten heavenly punishment. R. Solomon Sirillo, known as Rash Sirillo, in his commentary on the Palestinian Talmud, Dem'ai 3:5, similarly comments, "…the more severe the transgression the better, so that [the malfeasor] will die speedily."
The statements of Me'iri and Rash Sirillo to the contrary, the absence of a binding obligation to prevent a transgressor from sinning is not at all the same as discouragement of a voluntary undertaking of such a course of action. Moreover, there is reason to assume that, in disagreement with Me'iri and Rash Sirillo, such a distinction would be made by other early-day authorities.
The principle "hal'itehu la-rasha" is itself the subject of controversy. The source quoted in Bava Kamma 69a as announcing that principle is the Mishnah, Ma'aser Sheni 5:1, that describes how during the sabbatical year when all produce is in effect res nullius, it was customary for landowners to mark vineyards in which vines bearing grapes that were orlah were present with pulverized pottery or potsherds so that those grapes would be eschewed and to mark vineyards in which the yield was kerem reva'i with clods of earth so that any person who legitimately helped himself to such fruit would be aware of its restricted nature. As recorded in the Palestinian Talmud's version of the Mishnah and as cited in Bava Kamma 69a, R. Shimon ben Gamliel is quoted as declaring that placement of such markers is required only during the sabbatical year when produce is ownerless; however, during other years of the seven-year cycle, when the person helping himself to grapes in another person's vineyard is a simple thief, the applicable principle is "Gorge the wicked and let him die." The Mishnah, however, concludes with the citation of a contrary practice attributed to a group known as "the zenu'in," i.e., "modest" or "virtuous" individuals, who did not simply mark the vineyard to warn against transgression but set aside their own funds and declared that any kerem reva'i taken from the vineyard be redeemed out of those designated funds.
Rambam, in his Commentary on the Mishnah, ad locum, as well as in Hilkhot Ma'aser Sheni 9:7, followed by R. Ovadiah of Bartenura, Ma'aser Sheni 5:1, and by one opinion cited by Me'iri, Bava Kamma 69a, understand the zenu'in as having engaged in that practice only during the sabbatical year, i.e., when picking fruit on land belonging to another did not constitute theft. If so, there is no reason to conclude that the zenu'in rejected the principle hal'itehu la-rasha; quite to the contrary, during the balance of the seven-year cycle, during which time picking fruit belonging to another person constituted theft, the zenu'in refrained from mitigating the thieves' transgression because they, too, recognized and accepted the principle hal'itehu la-rasha.
Tosafot, in disagreement with Rambam, maintain that redemption of kerem reva'i grown during the sabbatical year is entirely unnecessary. Hence, consistent with that position, Tosafot found it inconceivable that the zenu'in redeemed kerem reva'i during the sabbatical year. Accordingly, Tosafot explain the conduct of the zenu'in in a manner diametrically opposed to that of Rambam in asserting that the zenu'in engaged in that practice only in years other than the sabbatical year. R. Akiva Eger, Tosafot R. Akiva Eger, Ma'aser Sheni 5:1, advances yet a third interpretation of the conduct of the zenu'in in assuming that the zenu'in acted in the manner described by the Mishnah each and every year of the seven-year cycle. According to the interpretations of Tosafot and R. Akiva Eger, the zenu'in clearly disagreed with R. Shimon ben Gamliel and did not at all subscribe to the principle of "gorge the wicked." Nevertheless, on the basis of the canon formulated by the Gemara, Bava Kamma 69a, the halakhah is in accordance with R. Shimon ben Gamliel.
However, recognition that the normative rule follows the opinion of R. Shimon ben Gamliel rather than the practice of the zenu'in does not necessarily entail acceptance of the opinion of Me'iri and Rash Sirillo to the effect that hal'itehu la-rasha constitutes a mandated mode of comportment. Rashi, Bava Kamma 69a, describes the zenu'in as "pietists who wish to preserve every person from sin." It would seem that in defining the zenu'in as "pietists," in contradistinction to R. Shimon ben Gamliel who did not emulate their practice, Rashi asserts that there is no substantive controversy between the zenu'in and R. Shimon ben Gamliel but that the zenu'in conducted themselves in a manner beyond that required by the letter of the law. If so — and if Rashi understood the zenu'in as having acted as they did during years in which picking fruit in other persons' fields would constitute thievery — it follows that Rashi understood that, even for R. Shimon ben Gamliel, hal'itehu la-rasha is not an expression of a mizvah or even of a preferred policy. However, if Rashi understood the zenu'in as having comported themselves in that manner only during the sabbatical year whereas in other years they conformed with R. Shimon ben Gamliel's dictum, there is no evidence that Rashi disagrees with Me'iri and Rash Sirillo.
At least one contemporary authority, R. Ya'akov Breisch, Teshuvot Helkat Ya'akov, II, no. 16, apparently understands hal'itehu la-rasha as merely sanctioning non-intervention rather than as a statement of affirmative encouragement of non-intervention. Helkat Ya'akov states, "Obviously, even for R. Shimon ben Gamliel there is no prohibition against marking [kerem reva'i]," i.e., hal'itehu la-rasha serves only to obviate an obligation to preserve the transgressor from sin but does not give rise to a prohibition or policy consideration against doing so.
Nevertheless, Rabbi Zilberstein cites both Me'iri and Rash Sirillo in support of his assertion that indirectly causing the demise of the thief is not only permitted but constitutes a "mizvah" as well. In actuality, the most that can be inferred from the words of those commentators is that the death of such a person is a desideratum. It would be reading far too much into their comments to conclude that one who causes the death of a wicked person has actually fulfilled a divine command for which he is entitled to heavenly reward. Moreover, recognition of a particular result as a desideratum is not at all inconsistent with a prohibition against seeking even indirectly to obtain that result. Hal'itehu la-rasha, when that principle applies, certainly serves to negate an otherwise binding obligation to prevent transgression. At the very most, it might be argued that the malfeasor's transgression may even be abetted in some way. The goal, even according to Me'iri and Rash Sirillo, is simply to hasten divine retribution; there is no evidence that the principle hal'itehu la-rasha serves to cancel the prohibition against overtly causing this-worldly harm to a human being even if the harm is caused only indirectly. Indeed, the examples of invocation of hal'itehu la-rasha in classic responsa are uniformly limited to permitting transgression to occur, not as justification for causing physical harm.
For example, R. David ibn Zimra, Teshuvot Radvaz, IV, no. 1,223, (152) addresses a situation involving a defendant who was ordered to swear a solemn oath affirming that he did not owe a sum of money and who was quite prepared to swear to that effect. The claimant, knowing that the oath would be false, queried whether he should allow the defendant to swear falsely or whether he should withdraw his claim. Radvaz responded that the claimant was under no obligation to absolve the defendant from the required oath.
The same author, Teshuvot Radvaz, IV, no. 1,357 (286) responded in a similar vein to another query as well. A divorce was executed on behalf of a woman accused of adultery on the condition that the wife not marry her paramour. It became evident that, despite the condition, the couple intended to marry with the result that the get would be nullified retroactively. Radvaz was asked whether it would be appropriate for the first husband to execute a second, unconditional divorce in order to preserve the couple from the sin of adultery. Radvaz responded by noting that, even if she were properly divorced by means of a second, unconditional get, the wife would remain forbidden to her paramour. Although the infraction of consorting with a person with whom one has had a previous adulterous liaison is far less severe than adultery itself, nevertheless, declares Radvaz, the principle "gorge the wicked" obviates any need to mitigate the transgression. Radvaz adds a tentative comment (karov ani lomar) to the effect that even in the absence of suspected adultery no attempt should be made to regularize the union "to satisfy the wicked" since, even if there was no prior adultery, the parties transgressed by entering into a civil marriage.
In yet a third responsum, Teshuvot Radvaz, III, no. 893, Radvaz refused to sanction a religious marriage ceremony of behalf of an already civilly married couple in a situation in which the partners were merely suspected of being engaged in a previous adulterous relationship.
V. Parameters of the Principle
Assuming that hal'itehu la-rasha establishes a "mizvah" of some type, the ambit of that concept is rather limited. R. Chaim Yair Bacharach, Teshuvot Havvot Ya'ir, no. 142, expresses bewilderment with regard to entertainment of the principle "gorge the wicked," even as a discretionary principle, in light of the normative halakhic obligation to prevent a fellow Jew from committing any transgression. The fact that a person will commit one transgression does not relieve fellow Jews from their obligation to prevent him from another transgression. Moreover, contends Havvot Ya'ir, a would-be thief will not necessarily also transgress the prohibition against consuming orlah or kerem reva'i. Hence, if made aware of the status of the grapes, he may well refrain from stealing the grapes and thus both transgressions will have been prevented. Havvot Ya'ir leaves the problem unresolved and eloquently expresses his perplexity in declaring that "whoever will cure my sickness in this regard shall be deemed a skilled physician."
1. Bet Yizḥak
R. Isaac Schmelkes, Teshuvot Bet Yizḥak, Oraḥ Hayyim, no. 29, sec. 4, accepts the underlying thesis dismissed by Havvot Ya'ir, viz., that hal'itehu la-rasha effectively overrides obligations of surety and admonition. Bet Yizḥak understands Shakh, Yoreh De'ah 151:6, as ruling that there is no obligation to prevent a putative evildoer from intentional transgression. According to that understanding, the obligations of surety and admonition are limited to unintentional transgression. Bet Yizḥak defends Shakh against those who took issue with his position by asserting that indeed Shakh derived his position from the principle of hal'itehu la-rasha which he understood as establishing that there is no obligation to prevent the sin of a person intent upon willful transgression.
Other authorities do not go as far as Bet Yizḥak in asserting a total negation of responsibility vis-à-vis willful transgressors. Instead, they resolve the problem voiced by Havvot Ya'ir by asserting that hal'itehu la-rasha serves to define the limits of the obligations of suretyship and admonition and to carve out an exception to those duties.
2. Tuv Ta'am va-Da'at and Mahari Perla
R. Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, no. 174, declares that the principle hal'itehu la-rasha applies only if, even after intervention, the miscreant is left in a situation in which he will incur at least one infraction even though a second transgression is obviated; however, asserts Tuv Ta'am va-Da'at, hal'itehu la-rasha is not applicable in circumstances in which all infractions can be prevented. Tuv Ta'am va-Da'at explains that there is no obligation to prevent a person who is "wicked at that hour" from further transgression, i.e., there is no obligation to prevent transgression if the would-be sinner will remain "wicked" even though, in some sense, his transgression will have been mitigated. However, if the putative transgressor can be prevented entirely from sinning he is not "wicked at that hour," i.e., he will not at all become a transgressor, and hence measures must be taken to preserve his innocence by sparing him from transgression. Those comments are apparently designed to resolve, at least in part, the question posed by Havvot Ya'ir. The obligation of arvut, according to Tuv Ta'am va-Da'at, exists only if a would-be transgressor can be prevented from becoming "wicked at that hour" but does not mandate diminishing the severity of a wicked person's sin.
A similar thesis, but one that reflects a somewhat different analysis of the obligation of suretyship, is developed by R. Yerucham Perla, known as Mahari Perla, in his commentary on R. Sa'adia Ga'on's Sefer ha-Mizvot, III, Minyan Shishim ve-Hamesh ha-Parshiyot, Parashah 57, s.v. ve-hineh yadana, and is explicitly presented as a resolution of the perplexity expressed by Havvot Ya'ir.
Mahari Perla declares that hal'itehu la-rasha does not serve to sanction rendering active assistance to a would-be transgressor; hence the issue of placing a stumbling-block before the blind does not arise. The sole issue, then, is the obligation of suretyship that requires prevention of sin on the part of a fellow Jew.
The obligation of suretyship is binding only in situations in which a person has it within his power to prevent transgression. Ordinarily, the owner of a vineyard cannot prevent the theft of his grapes and, accordingly, he has no obligation of suretyship with regard to that infraction. Mahari Perla opines that the obligation of suretyship is limited to situations in which it is within a person's power to prevent all taint of sin. Accordingly, R. Shimon ben Gamliel maintains that no indication need be made regarding the status of the fruit as orlah or as kerem reva'i other than during the sabbatical year. During that year the owner of the vineyard can prevent the only attendant transgression, i.e., orlah or kerem reva'i. During other years, trespassers who pick grapes are also guilty of theft; since that infraction cannot be obviated, asserts Mahari Perla, there is no further obligation of suretyship.
3. Ein Yizḥak
R. Yitzchak Elchanan Spektor, Ein Yizḥak, I, no. 8, resolves the issue raised by Havvot Ya'ir but in doing so he severely limits the ambit of the principle hal'itehu la-rasha. Ein Yizḥak observes that Jews are parties to a covenantal relationship requiring each person to serve as a surety for observance of the commandments by all others. The principle of suretyship, or arvut, is limited to transgressions of which one has knowledge; there is no responsibility, and hence no onus of suretyship, regarding the transgression of a fellow Jew of which one has no knowledge. The latter are in the category of nistarot, i.e., "concealed" or secret things, that are depicted in Deuteronomy 29:28 as matters to be dealt with solely by God. Applying that thesis to the paradigm case of hal'itehu la-rasha, viz., the situation described in Bava Kamma 69a, Ein Yizḥak asserts that, since the identity of the individuals who steal grapes from the vineyard is unknown, those infractions are "concealed" and hence there is no obligation to prevent transgression by such individuals.
4. Passive Non-Prevention vs. Active Assistance
Havvot Ya'ir, in his previously cited responsum, further distinguishes between passive non-prevention of transgression and active "entrapment." The former may be justified, at least in some circumstances, on the basis of hal'itehu la-rasha; the latter can never be sanctioned. In Havvot Ya'ir's day, some villagers adopted the practice of drying or smoking hindquarters not eaten by Jews as well as animals that, upon slaughter, were found to be non-kosher so that the meat could be sold to non-Jews over a period of time without flooding the market and depressing the value of meat. Havvot Ya'ir was asked if it was proper for those Jews to retain non-kosher meat in their possession for an extended period of time because of a concern that itinerant guests might steal and later consume the non-kosher meat. Havvot Ya'ir rules that it is improper to do so since such a practice would compound the transgression of persons who might misappropriate the meat. Responding to the contention that the principle hal'itehu larasha would render the practice innocuous, Havvot Ya'ir declares that the principle "gorge the wicked" serves to permit non-intervention but cannot be invoked to sanction active placement of a stumbling-block.
Poisoning a sandwich is certainly no less an act of overt placement of a stumbling-block before the blind than the act of preserving and retaining non-kosher meat on one's premises. Accordingly, it would follow that the student's conduct in this matter would not have been sanctioned by Havvot Ya'ir.
The distinction between active assistance and passive non-intervention in this context emerges from what would otherwise be a contradictory ruling of the Mishnah, Demai 3:5, as interpreted by the Palestinian Talmud, and cited by R. Elijah of Vilna in a gloss appended to the commentary of Rabbenu Shimshon, ad locum. Apparently, in the days of the Mishnah, guests at an inn customarily brought their own flour and the like to be baked or cooked on their behalf by the proprietress. Innkeepers were prone to illicit substitution of their own ingredients for those of their guests. As a result, a problem arose because many people were not meticulous with regard to separation of tithes. The Mishnah rules that the guest must tithe both the foodstuffs he delivers to the proprietress as well as the food he receives in return. The guest may not simply tithe the food after it has been returned to him because the proprietor may have been lax in that regard but must also tithe any food entrusted to the proprietor because of a fear that a portion of the raw ingredients he provided to his host may have been misappropriated and, if consumed by the innkeeper, will result in a violation of the laws of tithing. Therefore, the guest must tithe before transferring those ingredients to the proprietor lest he be culpable for causing transgression. R. Jose disagrees and commenting, "we are not responsible for scoundrels," rules that the guests need tithe only once, viz., before partaking of the food returned to him by the proprietress.
The Palestinian Talmud comments that R. Shimon ben Gamliel, the author of the dictum "hal'itehu la-rasha," need not necessarily accede to the position of R. Jose. In other words, it is entirely consistent to rule that kerem reva'i need not be identified in order to spare a thief from transgression but at the same time to rule that untithed food may not be placed in the hands of a person who may misappropriate such food and incur the transgression of consuming untithed food. Indeed, Rambam, Hilkhot Ma'aser Sheni 9:7, rules in accordance with R. Shimon ben Gamliel that markers indicating that grapes are kerem reva'i need be set out only during the sabbatical years whereas in Hilkhot Ma'aser 11:12 Rambam rules contrary to the opinion of R. Jose. In a succinct comment, Havvot Ya'ir explains that there is no contradiction between those rulings because "since [the guest] actively gives her [the foodstuff] it is more severe," i.e., hal'itehu la-rasha serves to sanction passive non-intervention but not active assistance.
Hazon Ish, Dem'ai 8:9, s.v. ve-amri, seems to draw a distinction identical to that of Havvot Ya'ir. Hazon Ish comments that allowing thieves to steal fruit does not constitute "placing a stumbling block" before them since the act is intrinsically forbidden and they have not been "invited" to transgress by the owner of the orchard. However, declares Hazon Ish, any overt act that serves to entice or enable additional transgression is forbidden.
Hazon Ish concludes his comments by stating that the term "gorge the wicked" should not be understood literally; rather, it means only that "you are not required to [be concerned] with regard to his action and to engage in his rescue." Those comments certainly imply that any overt act likely to cause harm, spiritual or temporal, is forbidden.
The distinction regarding responsibility vis-à-vis those who steal kerem reva'i and vis-à-vis the proprietress who does not tithe is that in the situation involving theft of kerem reva'i the additional transgression results from passive failure to provide a warning concerning the restricted nature of the coveted fruit whereas the transgression of the proprietress could not occur save for the overt act of her guest in actively providing the opportunity for sin. The conclusion to be drawn is obvious: hal'itehu la-rasha does not permit an overt act leading to spiritual harm. Hence, contrary to the view of Rabbi Zilberstein, it cannot be invoked as license for an overt act designed to cause physical harm. The cryptic dictum of the Palestinian Talmud cited by R. Elijah of Vilna, "It is not the wont of a scholar to cause an unperfected matter to issue from his hand," is interpreted by Hazon Ish as reflecting the distinction between overt and passive acts rather than a formulation of a normative rule.
However, it seems to this writer that there is a more obvious explanation that will reconcile the ruling of R. Jose with the principle of hal'itehu la-rasha and which also reflects the more obvious meaning of the dictum "A scholar does not cause an unperfected matter to issue from his hand." Rambam, Hilkhot Ma'aser 11:12, rules that one must tithe the foodstuffs delivered to the proprietress "so that there will be no misfortune to others (emphasis added)." The concern, apparently, is not that the proprietress might consume untithed produce; hal'itehu la-rasha might well obviate that concern. The proprietress, however, bakes and cooks on behalf of other guests of the inn as well. The concern, as expressed by Rambam, is for others, i.e., she is to be suspected of substituting untithed food for food entrusted to her by other guests and hence of serving them untithed food. According to this understanding, the distinction is not predicated upon general halakhic concerns of surety or of creation of a stumbling block but upon the much narrower principle that a scholar does not cause unsuspecting persons to sin by allowing "an unperfected matter to issue from his hand."
V. An Alternative Thesis
The distinction drawn by Havvot Ya'ir and Hazon Ish between passive facilitation and an overt act providing an opportunity for transgression is not as obvious as it may appear. Such a distinction may or may not exist with regard to the prohibition against placing a stumbling block before the blind. The cogency of entertaining such a distinction arises from the language in which the prohibition is couched, viz., "you shall not place." That terminology ostensibly restrains only overt action. However, the duty of admonition and the obligation to prevent transgression stemming from the more encompassing covenental obligation of suretyship do not simply forbid action but command performance. Such duties cannot be avoided on the plea that one has limited oneself to mere non-intervention. Moreover, as remarked earlier, the aphorism employed by the Palestinian Talmud, "A scholar does not allow an unperfected matter to emerge from his hands," certainly does not resonate as a code phrase for distinguishing between an overt act and passive non-intervention. More basically, despite the valiant efforts of latter-day authorities to resolve Havvot Ya'ir's principal concern, viz., why the obligation to prevent transgression should be cancelled because of hal'itehu la-rasha, remains perplexing.
Havvot Ya'ir clearly maintains that it is forbidden to create a "stumbling block" in one's own domain even if the only person likely to "stumble" is a person engaged in an illicit act. That position is in sharp contrast to the view of Iggerot Mosheh, Yoreh De'ah, III, no. 90, who asserts that a person may engage in normal activities without concern that others may "stumble" in attempting to reap vicarious benefit. Iggerot Mosheh formulates that thesis in explaining why it is permitted to teach Gemara in the vernacular through the medium of a radio program despite the possibility that non-Jews who are forbidden to study the Oral Law may also tune in to the program.
Iggerot Mosheh raises an objection to his own position in pointing out that the conduct of the owner of a vineyard in allowing orlah and kerem reva'i to grow represents normal activity conducted on his own premises. If so, he queries, why is it necessary to mark orlah and kerem reva'i in order to prevent transgression? Iggerot Mosheh responds by stating that during the sabbatical year the landowner has either explicitly or constructively invited all and sundry to partake of produce growing on his land. Such an invitation, he maintains, is tantamount to actively enticing people to transgress and therefore constitutes placing a stumbling block before them. Iggerot Mosheh recognizes that the first opinion recorded in the Mishnah requiring that orlah and kerem reva'i be marked as such every year — when surely no such invitation is extended — is not explained by his thesis. Iggerot Mosheh endeavors to explain that opinion in a rather vague and imprecise way but he is basically unconcerned with explaining that view since the normative rule is in accordance with the position of R. Shimon ben Gamliel. Be that as it may, and putting aside other considerations germane to the case of radio broadcasts, Iggerot Mosheh's basic thesis is at variance from the ruling of Havvot Ya'ir.
The difficulty, both with regard to the position of R. Shimon ben Gamliel and of the first view recorded in the Mishnah, is, in this writer's opinion, readily resolvable by positing that the requirement for marking orlah and kerem reva'i, either every year or only during the sabbatical year, is not mandated by the prohibition against placing a stumbling block before the blind but by rabbinic legislation limited to those cases. Indeed, the requirement to mark burial sites, also recorded in the same Mishnah, is explicitly regarded by many authorities as rabbinic in nature.
The matter is perhaps best explained if it is understood that the biblical duties of admonition and of preventing transgression by others is personal in nature but does not mandate expenditure of financial resources or extensive travail. The Sages, by rabbinic decree, did, however, impose obligations involving expenditure of money, at least in some circumstances. Marking burial places in order to prevent unwitting infraction is an obvious example. The first opinion recorded in the Mishnah, Demai 3:5, maintains that the Sages promulgated a similar rule requiring landowners to mark orchards and vineyards producing prohibited orlah and restricted kerem reva'i despite the fact that the trespassers have no right to pick even fruit not subject to those restrictions. R. Shimon ben Gamliel declares that there could not have been a general edict of that nature because of a contravailing consideration: hal'itehu la-rasha. R. Shimon ben Gamliel recognizes the cogency of the concern auguring for such legislation but asserts that such concern was tempered by refusal on the part of the Sages to legislate on behalf of a person who is purposefully wicked.
The difficulty inherent in this thesis lies in explaining the statement of the Palestinian Talmud declaring that R. Shimon ben Gamliel is in agreement with the opinion that food presented to the proprietress of the inn must be tithed because "A scholar does not allow an unperfected matter to issue from his hand," a principle that appears to have a quite different connotation and hence to be entirely extraneous.
The principle "A scholar does not allow an unperfected matter to issue from his hand" is formulated by the Gemara, Eiruvin 32a and Pesaḥim 9a, as a ḥazakah, i.e., a presumptive rule regarding comportment of learned individuals. The halakhic presumption is founded upon the usual comportment of scholars. Since it is their wont to tithe all produce in their possession, absent evidence to the contrary it may be assumed that they have done so.
The statement of the Palestinian Talmud can readily be understood as raising the presumptive principle to a mandatory role of comportment. The Sages did indeed base the rule of evidence upon empirical observation and hence the Gemara, Eiruvin 32a and Pesaḥim 9a, terms the principle a "ḥazakah" or a presumptive rule of conduct. But, having established the presumptive rule on empirical evidence, they sought to assure that reliance on that presumption would not lead to inadvertent transgression; accordingly, they transformed the evidentiary principle into a mandatory rule. R. Shimon ben Gamliel, since he subscribes to the principle hal'itehu la-rasha, certainly recognized that there would have been no reason to promulgate legislation for the purpose of protecting the proprietress from transgression. But, declares the Palestinian Talmud, R. Shimon ben Gamliel concedes that they did so simply in order to reinforce the underlying normative rule.
According to this analysis, hal'itehu la-rasha is not at all an independent principle of Halakhah justifying a course of action. Rather, it is a rationale explaining why legislation was not promulgated in a particular instance. Hal'itehu la-rasha explains only why transgressors were not shielded from further transgression; hal'itehu la-rasha is not an invitation to entice malfeasors to further transgression and certainly not a license to cause them physical harm.
VI. Spiritual Welfare vs. Physical Harm
Putting aside the issue of why one need not be concerned with the spiritual welfare of the wicked, in context, the dictum hal'itehu la-rasha establishes only that the wicked may be allowed to become mired in transgression. As expressed explicitly by Rambam in his Commentary on the Mishnah, Ma'aser Sheni 5:1: "We should not seek a remedy for a robber so that he does not stumble because the sin of robbery is even greater." The phrase "that he does not stumble" seems to reflect only a lack of concern for the thief's spiritual welfare. As Rabbi Frankel points out in his contribution to the discussion in Pa'amei Ya'akov, despite the presence of the concluding phrase "and let him die" there is no evidence that the aphorism "Gorge the wicked and let him die" is intended literally as sanction for causing the physical death of a thief; the sole harm caused the thief in the case described by the Mishnah is a compounded transgression bringing heavenly punishment in its wake. Rabbi Zilberstein, rather implausibly, insists upon a literal reading of the dictum. However, as Rabbi Rabinowitz points out in his article, if the word "hal'itehu" is understood literally, it follows that even overt execution of the thief would be sanctioned — a conclusion that Rabbi Zilberstein acknowledges to be incorrect.
Moreover, it is noteworthy that Rambam concludes his comment with the observation that the robber need not be preserved from further transgression "because the sin of robbery is even greater." It may be inferred that a would-be transgressor need not be prevented from committing additional infractions that are less severe in nature but must be prevented from committing transgressions more serious than those he intends.
Basing himself upon Rambam's comment, R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Yoreh De'ah, no. 125, offers a novel interpretation of R. Shimon ben Gamliel's formulation of hal'itehu la-rasha. Har Ẓevi establishes that there is no prohibition of theft with regard to ma'aser sheni and kerem reva'i which are "property of the Deity (mammon Gevoha)." Accordingly, R. Shimon ben Gamliel opposed measures designed to prevent trespassers from eating kerem reva'i because that would only prompt them to pick grapes from other vines and thereby commit the more serious transgression of theft. Hal'itehu la-rasha, according to this analysis, means that the thief must be left to his own devices because intervention would only enhance the transgression. According to Har Ẓevi's understanding of Rambam, R. Shimon ben Gamliel's disagreement with the zenu'in is extremely narrow and hal'itehu la-rasha is not at all a principle of general application.
VII. Concluding Remarks
According to Rabbi Zilberstein, the poisoner must be exonerated and even commended because the aphorism "Gorge the wicked and let him die" is to be understood literally. Rabbi Zilberstein's critics emphasize that theft is not a capital crime and that, in any event, punishment of that nature can be imposed only by a qualified bet din. Moreover, as codified by Rambam, Hilkhot Rozeaḥ 2:2, even indirect homicide is a crime punishable by death only at the hands of Heaven. To Rabbi Zilberstein's contention that it is the thief who causes his own death by imbibing poison they respond that, with regard to tort culpability, the Gemara, Bava Kamma 47b, declares that placing poison before an animal results in liability at the hands of Heaven even though the act of consuming the poison is initiated by the animal. Rabbi Zilberstein's rejoinder is that placing poison in one's own premises does not result in culpability even at the hands of Heaven and, moreover, a human being, unlike an animal, bears sole responsibility for the untoward results of his trespass.
Yet, as noted earlier, Rabbi Zilberstein concedes that, even in one's own home, notice of impending danger, either actual ("Beware the dog") or constructive ("Thou shalt not steal") must be provided and, moreover, the visitor must have acted imprudently (by not ascertaining that the ladder was still in place or by not subjecting the sandwich to a chemical analysis). Indeed, if actual notice of placing poison has been given to the potential victim, there seems to be no reason why the person placing the poison before a human being should be judged guilty even in the eyes of Heaven and even if the poison is placed outside of his domain. As expressed by Tosafot, Bava Kamma 47b, s.v. havah, since the harm was brought upon the victim by his own act, "it is not proper" that the person who merely made the poison available be held liable. If so, the person placing the poison before the victim with notice should be exonerated even if the poison is placed outside his own domain. If, on the other hand, constructive notice ("Thou shalt not steal") is not regarded as sufficient notice, it should follow that, contrary to Rabbi Zilberstein's distinction, the person who places the poison before the victim should be culpable at the hands of Heaven for intentionally causing the victim's death even if it occurs in his own domain.
The value of human life and limb, not only to the individual concerned but also to society, so out-weights [sic.] the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in §79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises… . A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.
Where the intruder is not proceeding with violence, defendant may normally, in the first instance, use only the mildest of force, for which the old form of pleading had a phrase —"molliter manus imposuit;" he gently laid hands upon him, and if in the process his own safety is threatened, he may defend himself, and even kill if necessary; but in the first instance a mere trespass does not justify such an act. Even the tradition that a man's house is his castle, and that one may kill in defense of his dwelling, has given way in most jurisdictions to the view that such force is not justified unless the intrusion threatens the personal safety of the occupants or the commission of a felony.
Rav Bleich Shlita
