I discussed the following interesting Minchas Chinuch with my son over Shabbos: The halacha is that we pasken dinei nefashos based on rov (Sanhedrin 69). We also know that rov gosisin l’misah. It should therefore follow that if Reuvain makes Shimon into a goseis (and Shimon is subsequently killed by Levi, so we can’t just wait and see if he recovers or not), Reuvain would be chayav for murder. By way of analogy: if Reuvain pushed Shimon off a cliff and on the way down Shimon was shot by Levi so we don't know if he would have miraculously survived, Reuvain is guilty of murder (thanks R’ P.C. for the analogy).
The logic sounds right, but Tosfos (Sanhedrin 78a d”h b’goseis) writes that Reuvain is not chayav for making Shimon a goseis. Putting aside Tos’ proofs (which the Minchas Chinuch takes issue with), why does the principle of rov not apply in this case?
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והצילו העדה could be applied to be חושש for the מיעוט when there could have been a way to be מברר.
ReplyDeleteOr, it could be that כל הנפש tells us it's "all of his soul" or nothing. The Chachamim argue on Rabi Yehudah to exempt the first and the second at both ends. Once the second person finished him off before he died from the first one's blows, he took away the first person's requirement for "all his soul".
The point of setting up the case with having a 2nd person finish the killing is to avoid the issue of efshar l'vareir, otherwise you are right.
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