Sanhedrin, Chapter 8, Mishnah 6. The previous five Mishnayos dealt with the case of a stubborn and rebellious son and the law that he is judged based on his ultimate end. Now we will learn two additional Mishnayos in the chapter, which discuss cases where a person has not yet committed an offense punishable by death, and nevertheless, he is judged based on his ultimate end.
Our Mishnah deals with a burglar who breaks in - a person who breaks into his fellow's house to rob him. The Mishnah assumes that the learner is familiar with the verses, and therefore it is satisfied with stating that the burglar who breaks in is counted among those who are judged based on what they are destined to do, and immediately moves on to a minor technical point, which we will reach later.
The Verses in Parashas Mishpatim:
Only two verses teach this law, and they are in Parashas Mishpatim (Shemos 22:1). It is worth noting that the chapter divisions in the Chumash are not based on Jewish sources, but rather on Christian biblical scholars and publishers in Italy, who first printed the Tanach in the 15th century. There is no clearer proof of this than the verse before us: seemingly a new chapter begins here, yet the verse itself begins with the words "Im bamachteres yimatzei haganav" - if the thief is found breaking in - and who is the thief? After all, the previous verse discusses a thief, making this an inappropriate place for a break.
The Rambam emphasizes that the intent is not necessarily tunneling under the ground. The same applies to any method of breaking in:
A tunnel under the ground.
A ladder or fire escape outside the house.
Breaking in through a skylight.
The principle is the same: a person who breaks into his fellow's house.
The verse continues: "Ve'hukah vames ein lo damim" - if the thief is struck and dies, he has no blood. That is, it is considered as if he were already dead, since he forfeited his right to live. Since he ostensibly has no blood and no soul, the one who kills him is not liable for his murder; on the contrary, it is the thief who sacrificed his life and gave up his right to life the moment he broke in.
The reason for this is: a person who breaks into a house at night knows that the homeowner will not stand idly by and let him rob his property. There is a presumption that "ein adam ma'amid atzmo al mamono" - a person does not restrain himself over his property, meaning a person does not stand by with folded arms while his belongings are taken. Therefore, the homeowner is going to rise up and defend his property, and a struggle will subsequently develop. It is obvious that the burglar is prepared to do whatever is necessary to take what he wants, including killing the homeowner. Consequently, the homeowner knows that his life is in danger, and therefore he is permitted to strike first and kill, since the burglar has lost his right to live.
The next verse continues: "Im zarchah hashemesh alav damim lo" - if the sun shines on him, he has blood. The simple meaning of the verse is "if the sun shines on him", and its intention is: if it is as clear as the sun that the thief is not going to kill the homeowner. For example, if the thief is the homeowner's father, since a father would under no circumstances kill his son. In such a case "damim lo" - he literally has blood, and one who kills him is liable for his death.
Thus, a person is permitted to kill a thief who breaks into a house, whether he is the tenant and the homeowner himself or another person who sees the act. There is no obligation to kill here, but only permission, unlike the next Mishnah, where we will bring cases in which it is a mitzvah to stop the offender, even if it means killing the pursuer to prevent him from committing a transgression.
The Text of the Mishnah:
"Ba bamachteret nidon al shem sofo" - this is all the Mishnah says regarding this matter. A person tunneling in to rob a house, the reason he may be killed is "al shem sofo" - because we anticipate the future outcome, that the burglar is prepared to kill the homeowner if necessary.
The rule of "kim leih b'derabbah mineih":
From here the Mishnah moves to a side point: a rule that will appear many times in the coming chapters - "kim leih b'derabbah mineih", which literally means that we apply the stricter of the two punishments to him. Whenever a person commits a transgression that carries the death penalty, meaning he has forfeited his life, and simultaneously causes monetary damage - we judge him for the capital offense and do not obligate him to pay for the damages.
The classic example: Reuven shoots Shimon in the heart, Shimon dies, and a bullet hole is left in his shirt. Reuven is liable to the death penalty for the murder, and Shimon's heirs cannot also sue him for the cost of the torn shirt. He is exempt from the monetary payments. This is a technical matter, and our Mishnah notes that it applies even in the case before us.
If the thief, while breaking into the house, also broke a barrel or earthenware jug, we must differentiate between two situations:
"Yesh lo damim" - meaning that it is forbidden to kill him, since he is not considered a dead man. In this case, the thief must pay for the damage to the barrel, since he did not forfeit his life.
"Ein lo damim" - meaning that it is permitted to kill him, because he lost his right to live and is doing an act that makes him forfeit his life. In this case, he is exempt from paying for the damage he caused by breaking the barrel, based on the rule of "kim leih b'derabbah mineih".
In the next Mishnah we will deal with cases where it is not merely permitted, but rather a mitzvah to stop the transgressor, even at the cost of killing a pursuer who is on his way to commit a transgression.