How do we determine a trespasser's intent from a Halachic Perspective?

The Rambam writes:

If it is clear to the house-owner that the thief who breaks in will not kill him and instead is only seeking financial gain, it is forbidden to kill the thief. If the house-owner kills him, the house-owner is considered to be a murderer.

And the Rema writes:

One who "tunnels in order to steal" has this rule of pursuer applied to him, however if it is understood that his only intent is monetary gain, and that he would not kill the owner in a confrontation, then it is forbidden to kill him.

What is "clear" or "understood" enough? Is the burden on the thief to be obviously non-threatening, or on the homeowner to judge leniently? How is the homeowner to decide?

The above quote and my question grew out of the discussion here: Trespassers from a Halachic Perspective

  • 1
    Rav Kuperman zt'l writes that one yom kippur ("kol nidrei") night he happened to be home, not at synagogue, and someone came into his house. The would-be thief had obviously picked a time when he figured no one would be home, which means he probably wasn't prepared to lethally silence anyone.
    – Shalom
    Dec 18 '18 at 3:09
  • Check Pesachim 2b with Rashi and Tosafot sefaria.org/Pesachim.2b.1?lang=bi&with=Rashi&lang2=en Aug 4 at 13:37

The Rambam in the same chapter bings that a father , just by being a that does not have the intent to kill you

Therefore, a father who breaks into his son's home should not be killed.

The aruch hashulchan hoshen Mishpat 425.10 (if I understand correctly) also bring this idea regarding a father
but he says if it is clear that the father (hates his son) and will kill his son then he is like any other person

351.8 that while he can be killed if he damages the stolen property then he is exempt to pay (since someone you deserves to get killed does not need to pay other damages)

358.(16-)18 brings other exceptions:.

  1. If he left (the tunnel or the property).
    1. If he did not steel and is leaving (turned his back.
    2. Obviously If he is running away.
    3. If he was seen or became sorowneded by people or special witnesses while he was still inside
    4. If he is trasspasing to a place where usually there are no people there
  • have any rabbis, even in the midrashim, given an exception to this halacha?
    – ninamag
    Aug 24 '17 at 16:36
  • @ninamag yes I just found it and am adding it
    – hazoriz
    Aug 24 '17 at 16:39
  • just out of curiosity, where can one find where a jewish father, via breaking-in, has killed his son? if there are such numerous cases, then can a halacha be over-ruled? can a halacha be ever over-ruled for any reason?
    – ninamag
    Aug 24 '17 at 16:39
  • @ninamag I do not know where to find them (the killing was not via beaking in but after words when being cought). Halachas can be over-ruled if halachikly it is permitted, (halacha by definition is G-d's will , if his will is different in this case then it is different)
    – hazoriz
    Aug 24 '17 at 16:43
  • @ninamag a Rav (and every Jew should also) knows the reasons of the halochos if the reason is not applicable then the halacha is also)
    – hazoriz
    Aug 24 '17 at 17:13

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