The Status Of A Fetus In Halacha (Part XI)

To briefly review, the Rambam associates the fetus with a rodef when explaining why one is allowed to sacrifice a fetus in order to save the life of its mother. Thus, to explain the reasoning of the Rambam, we are now exploring the sugya of “rodef” and why one is allowed to kill a rodef.

Previously, we suggested three main approaches for why one is allowed to kill a rodef and we began exploring several important nafka minos regarding these three approaches. We will now continue, suggesting several more important nafka minos:

8. Kim Leh B'Dirabah Minei

The exact lashon of the Gemara is as follows:

As Rava says: If a pursuer was pursuing another to kill him, and during the course of the chase the pursuer broke vessels belonging either to the person being pursued or to anyone else, he is exempt from paying for the broken vessels. What is the reason for this? The reason is that he is liable to be killed.

Why should the fact that the rodef is liable to be killed during his act of attempted murder affect whether or not he is chayiv to pay back the monetary damage he caused? It appears as though the Gemara is referring to the concept of Kim Leh B'Dirabah Minei, the legal concept which states that when one is chayiv for two onshim (punishments), they receive only the worse of the two.

However, there are several things that we need to clarify:

1. How and why does Kim Leh B’Dirabah Minei work? (See Bava Metzia 91a. See also Rashi and Mei’ri there.)
2. Should the principle of does Kim Leh B’Dirabah Minei apply in the case of a rodef?

Let us start by trying to understand the concept of Kim Leh B’Dirabah Minei and how the Rishonim approach this halachic concept:

The Different Ways to Understand Kim Leh B'Dirabah Minei

1. Beis din can be michayiv one onesh

2. Beis din can define the action only in one way

3. The more severe onesh knocks out the more kal onesh

4. The more chamur (severe) onesh is mikayim (includes) both onshim

Applying this the Din of Rodef

Is the rodef chayiv missah while he is trying to kill the nirdaf?

Even if the rodef is chayiv missah, does this status carry over afterwards, when he is no longer has the status of a rodef? (For example, what if the rodef failed to kill the nirdaf? Alternatively, if the nirdaf or a third-party-bystander killed the rodef in order to save the nirdaf, would the rodef's progeny be chayiv to pay for the damages?)

As usual, the answers to these questions would depend on how we understand the din of rodef:

• Chiyuv Missah

And if Kim Leh B’Dirabah Minei applies while the chiyuv for the monetary damage was being created, then we could understand why it would apply afterwards, even when the rodef no longer has the status of rodef; because while the chiyuv missah was being created, Kim Leh Bi'Dirabah Minei would be applied to the chiyuv mamon, and would therefore either knock it out, affect it, or redefine it (as we discussed above, regarding the different ways of understanding Kim Leh B'Dirabah Minei).

• Saving the Rodef from the Aveirah

• Hatzalas Ha'Nirdaf

Alternatively, as we previously suggested, it could be that the only reason we are allowed to kill the rodef in order to save the nirdaf is because the rodef has engaged in an act of rishus and has thus forfeited his right to life. As such, this din missah would not only be enough to allow us to kill the rodef, but also be enough to activate the principle of Kim Leh B’Dirabah Minei – even though this is not the same as a normal chiyuv missah which one would only receive for having actually killed the nirdaf.

9. Why Doesn't the Din of Rodef Need to be Performed in Beis Din?

As always, answering this question will depend on how we understand the din of rodef:

• Chiyuv Missah

It is also possible that the din of rodef is a unique form of chiyuv missah which does not require a beis din; thus, we would not need the mechanism of shlichus to explain how it could be done outside of beis din, as this is a unique din.

• Saving the Rodef from the Aveirah

• Hatzalas Ha'Nirdaf

Is There a Difference Between the Nirdaf and a Third-Party Bystander?

While a bystander might be able to assess the situation a bit more carefully and make a slightly more calculated decision, this might not be the case for the actual nirdaf. Since the nirdaf’s own life is at stake, and a single wrong move might cost him his life, Hashem might not require the nirdaf to take the same level of precaution when responding to the rodef.

Furthermore, while a bystander might only know a small part of the story, and thus not be able to assess the situation with a high level of clarity, the nirdaf might know more of the “whole story,” and therefore have a greater sense of clarity regarding the degree of danger that he is actually in. Thus, while a bystander might be required to go through certain precautions and procedures when approaching this situation, even given its delicate and time-sensitive nature, a nirdaf might not have these same requirements.

As such, it is possible that several leniencies might apply for the nirdaf but not for a third-party bystander:

1. Maiming vs. Killing

The svara is as follows: since the nirdaf’s own life is at stake, he can do whatever it takes to save his life, and there is no requirement for him to be cautious or hesitant to act. (After all, one wrong move might cost him his life.)

2. Safek vs. Vadai

3. Requiring Hasra'ah

In our next article, we will continue to analyze this fascinating halachic topic.