Thursday, July 01, 2010

safeik nefashos l'hakeil

Earlier in the week (link) we discussed why safeik nefashos l’hakeil. Rashi writes that this din is based on the pasuk, “v’hitzilu ha’eidah.” Tosfos (Baba Basra 51b) asks why you need a pasuk – simple logic dictates safeik nefashos l’hakeil, as executing a defendant where there is doubt as to his guilt places the court in a situation of potentially murdering an innocent person.

R’ Elchanan Wasserman explains that basing the din on a pasuk may make a big difference. According to Tosfos reasoning, the defendant who gets off is never really cleared – we just can’t do anything about it. According to Rashi, however, the Torah decrees that in cases of doubt the defendant is presumed completely innocent. There is no longer a safeik – he is definitely not guilty.

A potential nafka minah between the views would be in a case of safeik nefashos by a shor niskal. According to Tosfos model, since safeik nefashos leaves a doubt, i.e. there is still potential guilt, there is little reason not to kill the shor. At worst, there is a loss of money. According to Rashi, however, we grant the defendent, be it a person or a shor, the presumption of innocence so long as there is any doubt of guilt.


  1. jewinjerusalem7:23 PM

    In the American system the jury may say not guilty. We, however, don't think he's innocent. It seems the machlokes Tos' and rashi is whether we say "not guilty" or "innocent." [You should rewrite the end of the 2nd paragraph.]
    I'm not sure if I agree with you re the ox according to Tos'. There still is a pasuk [כמיתת הבעלים ] that compares their dinim.

  2. Sorry, I like the way I ended the 2nd paragraph.

    Re: k'misas haba'alim -- see Rambam/Ra'avad Nizkei Mamon 11:8. You only say that sevara regarding halachos intrinsic to the psak of misa. Tos is raising a side consideration based on potential consequences.

  3. Mike S.7:00 AM

    Rav Schechter said there would also be a consequence for monetary damages. If we say, like Tos. that he is patur b'toras vadai, then kim lei miderabbah minei would not apply, and he would be liable for any nezek done simultaneously with the safek nefashos.