Commentaire sur Sanhédrin 8:6

הבא במחתרת – The Torah stated (Exodus 22:1, Sanhedrin 72a) that he should be killed (i.e., beaten to death).

Introduction Mishnah six discusses the permission that one has to kill a thief who has tunneled into one’s home.

נדון על שם סופו – that his end is to kill the house owner if he should against him to save what is his.,

[The thief] who burrows his way in [to someone’s home] is judged on account of his outcome. Exodus 22:1-2 teaches that if a householder kills a thief who has burrowed his way into his house, the householder is not guilty of murder. Although execution is not the usual punishment for a thief, since the householder was taken by surprise and did not know the intention of the illegal intruder, he is not held liable for having killed him. Our mishnah understands that this preemptive killing of the intruder is to prevent him from committing more sins, specifically the murder of the householder.

אם יש לו דמים חייב – such as when the father comes in the breach over his son, and it is known that the father has compassion on his son. Therefore, the son is not permitted to kill him, and if the father broke the barrel, he is obligated to pay.

If he burrowed his way in and broke a jug, should there be blood-guiltiness for him, he must pay [for the jug], but if there is no blood-guiltiness for him, he is not liable. The Torah also teaches that if the thief burrowed in during the day the householder is not allowed to kill him (unless it is in self-defense). If the householder does kill him he will be accounted guilty. Our mishnah teaches that if the thief broke a jug while burrowing he is liable for damages only in a case where the householder was not allowed to kill him. If, however, the householder was allowed to kill him, i.e. at night, since the thief can be executed he is not liable for monetary damages. This is based on a common principle in Jewish law that if on account of one act one becomes liable for two punishments, he is punished by the greater of the two punishments, in this case death (see Bava Kamma 3:10).

אין לו דמים פטור – and all other peole who go into the breach, if the house owner did not kill him, he has no bloodguilt.. And if he broker the barrel, he is exempt from payment, since he was liable for his life, he is exempt from payment, for a person does not both die and make payment. (Note: the punishment that is made is the more severe: (קם ליה מדרבה מיניה).

Questions for Further Thought:
• Why do the Rabbis understand the killing of the “tunneling thief” as preventing him from committing worse crimes, as opposed to self-defense?