On yesterday’s daf, the Gemara began its discussion of the Torah’s requirement that certain cities in Israel be designated as cities of refuge, places where someone who kills unintentionally can find safety from revenge killings. The paradigmatic example given in the Torah is of someone chopping wood in the forest and the axe head flies off and kills someone else by accident.
On today’s daf, a mishnah identifies another type of killer who is “exiled” to such a city for their own protection:
One who threw a stone into the public domain and killed (a person) is exiled. Rabbi Eliezer ben Ya’akov says: If after the stone left his hand the other person placed his head out and received (a blow from the stone), the killer is exempt from being exiled.
According to the mishnah, if a person throws a stone into the public domain and it hits and kills another person, the death is unintentional and the killer is exiled. Rabbi Eliezer adds that this is true only when the victim was in harm’s way when the stone was thrown. If the victim entered the public domain after the stone was launched, the death is deemed out of the stone thrower’s control (a distinct category from unintentional) and the killer is exempt from exile.
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The Gemara raises a question about this mishnah:
They threw a stone into the public domain — they are an intentional murderer.
It is safe to assume there will be people in a public place. So if someone throws a stone there, it is a distinct possibility it will hit someone. Even if the stone thrower was not intentionally trying to kill someone, the Gemara wants to hold them accountable for their actions. Unlike the wood chopper, the stone thrower acted with negligence, so the Gemara reasons they ought to stand trial rather than be exiled.
Rav Shmuel bar Yitzhak tries to make sense of the mishnah by limiting its scope:
Where a person is demolishing their wall.
If the mishnah is talking about someone who is doing demolition work on their own property, it makes more sense. The killer’s intent was to demolish, not to kill, so the death is unintentional and exile makes sense.
But this adjustment is not considered sufficient. The Gemara points out that the demolisher has a responsibility to protect those on the other side of the wall. So the context is restricted further: Perhaps we are talking about a death that occurred at night when the public space is usually empty and it is unlikely there would be anyone around to get hurt. But this too is not enough, for even at night, the demolisher has a responsibility to protect passers by.
So what if the debris from the demolition is being diverted into an established scrap heap? Wouldn’t that show that the owner of the wall has taken precautions to send debris to an area the public would avoid? Should a random stone strike and kill, surely this would be an unintentional death that merits exile.
Not really, says the Gemara. If this scrap heap is one that people are known to enter to relieve themselves, then it is no different from the previous cases — people go there and precautions should be taken. But if the scrap heap is not used as a bathroom, there is no reason to expect anyone will be there. Should a person enter the heap and be killed by a flying stone, their death is considered accidental, like the case that Rabbi Eliezer raises in the mishnah, and the killer is exempt from exile.
Now Rav Pappa chimes in and limits the case further: The mishnah, he says, is talking about a case of a scrap heap that people use as a toilet at night, but not generally during the day. Unlike the previous case, there are occasions when someone is found there during the day. This seems to hit the sweet spot the Gemara is looking for: The one who demolishes their wall into such a scrap heap and kills someone in the process neither killed intentionally (as the scrap heap is not normally utilized then), nor is the death out of the stone thrower’s control (because sometimes it is utilized). And so, this must be the case of a stone-throwing killer who is liable to be exiled.
Rav Pappa’s teaching is accepted by the Gemara, which moves on to new topics. As readers, however, we might not be quite ready to do so. Rav Pappa’s explanation of the mishnah is a far cry from the simple statement with which the talmudic conversation began. This begs the question: Has Rav Pappa shared with us what the author of the mishnah originally intended, or has he reimagined the text’s meaning in order to satisfy the challenges that the Gemara has raised? A more traditional reading would favor the former — the mishnah means what the Gemara says it means. A contemporary one would be more open to the idea that the conclusion of the Gemara strays from the original intent of the author.
Read all of Makkot 7 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 16, 2025. If you are interested in receiving the newsletter, sign up here.
