Yerushalmi Sotah 9:2 ירושלמי סוטה ט׳:ב׳

MISHNAH: If [the corpse] was found hidden in a heap⁴⁶Of earth or debris., or hanging from a tree, or floating on the water, one did not break the neck as it is written⁴⁷Deut. 21:1. If there only had been written “if one finds a corpse and the murderer is unknown”, one would have had to bring a calf in any case. The added details should be interpreted as necessary conditions in whose absence the rules do not apply. “on the earth” but not hidden in a heap, “fallen” but not hanging from a tree, “on the field” but not floating on the water. If he was found close to the border, a town in which Gentiles live, or a town without a court⁴⁸Without a permanent court with authority over the local police. In Mishnaic Hebrew, עיר denotes any cluster of human dwellings, from hamlet to village to town; occasionally it may refer even to a walled city., one did measure only from a town with a court⁴⁹This is the reading in most mss., including independent Mishnah mss. and those of the Babli. A few mss. and Sifry Deut. 205 show that the clause “one did not measure” does double duty and the meaning of the sentence is: “If it was found close to the border, a town in which Gentiles live, or a town without a court, one did not measure; one did measure only from a town with a court.”. If he was found exactly in the middle between two towns, both bring a total of two calves, the words of Rebbi Eliezer; ⁵⁰This sentence is found only in the Leiden ms., a single Mishnah ms., and Sifry Deut. 206; not in the Rome ms. nor in the Babli. Since the Yerushalmi discusses the position of the Sages but the Babli does not, it is clear that the omission in the Babylonian Mishnah is original. but the Sages say that one town brings one calf whose neck is broken but two towns do not bring two calves, and Jerusalem does not bring a calf whose neck is broken⁵¹Since Jerusalem was not divided as tribal property, cf. Note 24..

HALAKHAH: It was stated: Rebbi Eliezer⁵²In the Genizah ms., the Tosephta (9:1), Sifry Deut. 205, and the Babli (45b) except for Ashkenazic mss.: R. Eleazar. says, if he was found strangled and hanging from a tree they did not break its neck. Rebbi Yose ben Rebbi Jehudah said, one does not have to say strangled and hanging from a tree, from where even if he was found cast away? The verse⁴⁷Deut. 21:1. If there only had been written “if one finds a corpse and the murderer is unknown”, one would have had to bring a calf in any case. The added details should be interpreted as necessary conditions in whose absence the rules do not apply. says “fallen”, why does the verse say “slain”? But even if he was found strangled or hanging from a tree they did not break its neck.

Rebbi Yose ben Rebbi Abun stated⁵³The word is missing in the Genizah ms. It can be justified in that R. Yose b. Abun recited a baraita on the authority of R. Joḥanan. In the version of the Genizah, this is an amoraic statement intended to brand a contradicting tannaitic one as unreliable. in the name of Rebbi Joḥanan: “If he was found standing on his bed and the knife was sticking in his heart, one did not break its neck. Rebbi Simeon ben Ioḥai stated, one did break its neck.” But that of Rebbi Simeon ben Ioḥai is of those which are so-and-so⁵⁴The statement is not from a recognized baraita collection, nor does it contain a name of a tradent which would vouchsafe the text for the 100 years between R. Simeon and R. Joḥanan.. As Rebbi Joḥanan said, all those [statements] of Rebbi Simeon ben Ioḥai which are so-and-so are isolated opinions and one cannot rely on them.

If he was found at the entrance of the city one did break its neck⁵⁵In the Babli sources (45a, Tosephta 9:1): “one did measure”. In all cases one has to measure the distanec of the corpse from the nearest city even if it is obvious which city is the nearest one. in order to perform the commanded measurement.

⁵⁶Peah 6:3, Notes 78–80. When Rav descended there⁵⁷“There” always means Babylonia; going to Babylonia is “descending,” going to the Land of Israel is “ascending.” The story appears in the same context in the Babli 45a, the actor being Abbaie, three generations after Rav., he declared: I am this place’s Ben Azai⁵⁸Ben Azai, one of the most outstanding students of Rebbi Aqiba, was a walking encyclopedia and used to stroll through the markets of Tiberias, ready to immediately answer any question of Jewish learning. He died during mystical studies before he could marry R. Aqiba’s daughter. In the Talmudim, several Sages are reported to have tried to imitate Ben Azai but all of them were quickly confronted with a question for which they gave the wrong answer or did not know any answer at all. The story is inserted in Peah because a few paragraphs down hidden sheaves will be discussed.. There came an old man and asked him, two slain people, one on top of the other? Rav was of the opinion that one breaks its neck. He told him, one does not break its neck. He asked him, why? He said to him, not the lower one for he is hidden⁵⁹The lower body is not “found”; he is only discovered when the body on top is removed. The upper body is not found on the land., not the upper one because he floats. When he ascended here, he came to Rebbi, who told him: He told you correctly, “if he is found,” and not “if they are found.” It is reasonable to say “on the land,” not floating on the water, “on a field”, not hidden in a heap. That is how it was stated in the House of Rebbi⁶⁰However, our parallel sources follow the Mishnah..

The argument of the rabbis seems inverted; there they say to exclude the hidden things⁶²This refers to Mishnah Peah 6:9, Sifry Deut. 283, interpreting Deut. 24:19: If you cut your harvest on your field and you forget a sheaf on the field, you may not return to take it. R. Jehudah says, this excludes anything hidden, the Sages say this includes everything hidden. But in Deut. 21:1, on your field is interpreted as “not hidden in a heap,” excluding any hidden corpse., but here they say to include the hidden things. There, “your field,” in the open, to exclude that which is hidden; “your harvest,” in the open, to exclude that which is hidden. It is a restriction after a restriction⁶³The principle that a restriction after a restriction is an extension is universally accepted in both Talmudim; in Horaiot 1:1 it is generalized to the statement that any sequence of restrictions of an even number of elements is an extension; for an odd number of elements it is a restriction. to add the hidden things. But here, “on the land,” not floating on the water.

“If he was found close to the border,” I say that Saracens killed him. “To a town in which Gentiles live,” I say that Gentiles killed him. “Or a town without a court, one did measure only from a town with a court,” as it is written⁶⁵Deut. 21:7. Since the members of the local court have to recite the declaration which acknowledges that the crime was perpetrated within the domain of their authority, it is clear that they must come from the seat of the court.: “Our hands did not spill this blood.”

What is the reason of the rabbis? As it is written⁶⁶Deut. 21:3.: “It shall be the town close to the slain.” What is the reason of Rebbi Eliezer? As it is written⁶⁷Deut. 21:2. The Babli, Bekhorot16b, which never quotes the Sages, disagrees, and holds that for R. Eliezer it is possible to determine lengths with the utmost precision because if it were possible to measure only with limited precision, the two towns together could bring one calf and stipulate that it should count for that town which really is closest if unlimited precision were possible.: “They shall measure to the towns which surround the slain.”

What is the status of cities of refuge⁶⁸The levitic cities which served as refuges for the homicide. These cities certainly have a court which has to supervise the trial of the homicide. The problem alluded to here is not mentioned in the Babli; the main reference in the Yerushalmi is Makkot2:7 (fol. 32a); the statement is alluded to in Ma‘aser Šeni 5:8 (fol. 56d, Note 165). If the Levitical cities and the cities of refuge were parcelled out to their inhabitants, they would own land given by God and would be under the obligation of the calf, Deut. 21:1. But if the cities were tribal property and the houses given to the inhabitants as living quarters by the tribal council, not as property, then individual Levites and Cohanim never obtained land and their court cannot participate in the ceremony.? If you say, they were given as distribution, they bring a calf whose neck is broken. If you say, they were given as living quarters, they do not bring a calf whose neck is broken.