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Two witnesses go to the beit din and claim that so and so violated the sabbath on a biblical level. The witnesses claim they warned him in accordance with the rules and they did their part as witnesses. When so and so is brought to beis din, he claims he did a melacha (such as digging a hole), but he claims it was for the dirt. Which would only be a rabbinical prohibition because it's a מלאכה שאין צריכה לגופה. If a person were to use this as their defense to deflect the death penalty would it theoretically work?

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2 Answers 2

Sanhedrin 40b:

תנו רבנן מכירים אתם אותו נכרי הרג ישראל הרג התריתם בו קיבל עליו התראה התיר עצמו למיתה המית בתוך כדי דיבור

(paraphrased) They ask the witnesses, "did he accept the warning and accept that he would be killed?"

Rashi on התיר עצמו למיתה:

התיר עצמו למיתה - שכשהתריתם בו אל תעבור שאתה מתחייב מיתה פלונית הוא אומר על מנת כן אני עושה דאם לא הפקיר עצמו אינו נהרג כדלקמן

When you warned him, you said "do not violate this because you will get a death penalty for it" and he said "I am doing it on that condition" - if he does not accept that he will be killed for doing it, he is not killed

Part of his warning was his acknowledgement that he will be killed for what he is about to do. So he admitted he is not doing it in a rabbinically prohibited way as part of accepting his warning.

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There's still a problem with that. Let me give you an example, if two witnesses view a man digging a hole, and they warn him that digging a hole is forbidden because of choresh (plowing), so he says "i don't care I'm doing it anyway." Later in beis din he claims that the digging was for בונה (construction purposes). Both are מלאכה דאורייתא. However if he admits to the choresh he will get the מיתה. His escape route will be to claim in beis din that they warned him for choresh, and that he was really doing boneh –  David Feigen May 29 '14 at 3:53
@DavidFeigen the warning includes which melacha he is doing. So they say "You are doing the melacha of choresh, and you will be killed for it." He says "I know, I am doing it even though I will be killed." So he can't later claim he was doing boneh, he admitted to doing choresh. –  YeZ May 29 '14 at 3:56
He could admit whatever he wants to the witnesses, but the loophole is מחשבה in beis din –  David Feigen May 29 '14 at 3:57
@DavidFeigen Because he says yes to what they said!!!1!eleven –  YeZ May 29 '14 at 3:58

The Maharsha (Bava Basra 119a) addresses this question and answers that even though the person is theoretically exempt according to R' Shimon, he is still liable to be killed in a court if the witnesses were not made aware of his intentions at the time that they warned him:

ומיהו הוא ודאי דהיה חייב מיתה בדיני אדם שלא ידעו העדים שהתרו בו שהוא עשה על דעת זו ואינן אלא דברים שבלב ודנין היו אותו למיתה ע"פ העדות

Perhaps the Maharsha would concede that the person would be exempt from punishment if the circumstances at the time of the m'lacha act suggest it was likely a m'lacha she'eina tz'richa l'gufa.

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Forget about a מלאכה שאין צריכה לגופה! A person can say that he was doing בונה and he didn't know בונה was אסור he can claim he only thought there were 38 melachos and בונה wasn't one of them! –  David Feigen Jun 22 '14 at 9:44
@DavidFeigen Well, if Tz'lofchad was a talmid chacham, then, according to R' Yose b. Y'huda, he would not require hasra'a and there would be a presumption that he knew hilchos Shabbos properly. –  Fred Jun 23 '14 at 1:52
What or who is tz'lofchad? –  David Feigen Jun 23 '14 at 8:21
@DavidFeigen He is the person who R' Akiva identified as the m'kosheish eitzim (the person who was executed for gathering wood on Shabbos, see B'midbar 15:32-36). He is the subject of the Maharsha's discussion, considering that the m'kosheish eitzim could have argued (and perhaps correctly so) that he was doing a m'lacha she'eina tz'richa l'gufa. –  Fred Jun 23 '14 at 18:12

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