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Rosh Kollel: Rabbi Mordecai Kornfeld

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Sanhedrin 32



(a) (Mishnah): The same laws of Drishah v'Chakirah apply to monetary and capital cases - "Mishpat Echad Yihyeh Lachem".
(b) The following are different in monetary and capital cases:
1. Monetary cases require three judges, capital cases require 23;
2. In monetary cases, the judges may begin their discussion with an opinion to Mezakeh or Mechayev, in capital cases we must begin with Zechus;
3. In monetary cases, a majority of one suffices for Zechus or Chiyuv; in capital cases, a majority of one suffices for Zechus, a majority of two is needed for Chiyuv;
4. In monetary cases, we can overturn the verdict, whether Zechus or Chiyuv; in capital cases, we can overturn a verdict of Chiyuv, not of Zechus.
5. In monetary cases, anyone (even Talmidim) can give a reason for Zechus or Chiyuv; in capital cases, anyone can give a reason for Zechus, not everyone can give a reason for Chiyuv.
6. In monetary cases, one who gave a reason for Zechus can give a reason for Chiyuv, or vice-versa; in capital cases, one who gave a reason for Chiyuv can give a reason for Zechus, but one who gave a reason for Zechus cannot give a reason for Chiyuv.
7. Monetary cases must be started during the day, they can be finished at night; capital cases are started and finished during the day.
8. Monetary cases are judged and finished on the same day, for Zechus or Chiyuv; capital cases can be finished on the same day for Zechus, a verdict of Chiyuv cannot be given until the next day;
i. Therefore, we do not begin capital cases on Erev Shabbos or Erev Yom Tov.
9. In monetary cases or questions of Tum'ah, the first opinion is given by the greatest Chacham; in capital cases, we may not begin with the greatest Chacham.
10. Everyone (even a Mamzer) is qualified to judge monetary cases, but capital cases require Kohanim, Leviyim or Yisraelim that are permitted to marry a Bas Kohen.
(c) (Gemara) Question: Is it really true that monetary cases require Drishah v'Chakirah?
1. Contradiction (Beraisa): If Ploni and Almoni were signed on a document dated 'Nisan 1, in Shemitah'; Reuven and David said 'They were with us that day in another place!', the document and its witnesses are Kesherim; we assume that it was postdated.
2. This shows that we do not require Drishah v'Chakirah (its basic purpose is to enable Hazamah)!
3. Question: Why not ask from a Mishnah?
i. (Mishnah): Predated loan documents are disqualified (because they can be used to swindle), postdated loan documents are Kesherim.
ii. If we require Drishah v'Chakirah, why are they Kesherim?
4. Answer: The Beraisa is a bigger Chidush - even though it is unlikely that one would postdate a document and give a date in Shemitah, since it looks suspicious (people usually refrain from lending in Shemitah, lest the loan be cancelled), we assume that this was the case;
i. Shemitah does not cancel loans until the end of Shemitah, therefore the document is valid.
(d) The contradiction has not been resolved yet.
(e) Answer #1 (R. Chanina): Our Mishnah teaches that *Mid'Oraisa*, the same laws of Drishah v'Chakirah apply to monetary and capital cases - "Mishpat Echad Yihyeh Lachem";
1. Chachamim enacted that monetary cases do not require Drishah v'Chakirah on account of Ne'ilas Delet (lest a person will not want to lend, lest the witnesses will remember the loan but forget Drishos or Chakiros, and he will be unable to collect).

(f) Question: If so, we should say that Beis Din does not pay if they err (since they could not interrogate the witnesses)!
(g) Answer: All the more so, that would discourage people from lending!
(h) Answer #2 (Rava): Our Mishnah discusses fines (Ne'ilas Delet does not apply, no enactment was made); the Beraisa discusses admissions and loans (in which Drishah v'Chakirah was abolished).
(i) Answer #3 (Rav Papa): Both discuss admissions and loans; our Mishnah discusses a Din Merumeh (when Beis Din senses that the claim is false), the Beraisa is a normal case.
1. Contradiction (Reish Lakish): It says "B'Tzedek Tishpot Amisecha" - it also says "Tzedek Tzedek Tirdof" (be extra zealous to reach the correct verdict)!
2. Answer #1 (Reish Lakish): One must be extra zealous in a Din Merumeh.
3. Answer #2 (Rav Ashi): (We resolve the Mishnah and Beraisa like R. Chanina or Rava;) "Tzedek Tzedek Tirdof" teaches to equally pursue Din (letter of the law) or compromise.
i. (Beraisa): "Tzedek Tzedek Tirdof" - Equally pursue Din or compromise: if two ships encounter each other in a narrow river, if they try to pass at the same time, both will sink; if they go one after the other, both will pass.
ii. The same applies to two camels alighting the incline to Beis Choron (in opposite directions) - if they go at the same time, they will (not have enough room at the top, they will) fall; if they go one after the other, both will alight;
iii. If one was laden and the other empty, the laden one goes first; if one was near its city and the other far, the far one goes first;
iv. If they are equal, make a compromise between them; the one that waits receives compensation.
(j) (Beraisa): "Tzedek Tzedek Tirdof" - go to a good Beis Din, to R. Eliezer in Lud, to R. Yochanan Ben Zakai in Beror Chayil.
(k) (Beraisa): If a mill is heard in Boreni, this was a sign of (grinding spices to cure the wound of) a circumcision (when the king decreed against circumcision, they could not openly announce it);
1. A lamp burning (by day, or many lamps at night) in Beror Chayil is a sign of a circumcision feast.
(l) (Beraisa): "Tzedek Tzedek Tirdof" - go to the Beis ha'Va'ad: to R. Eliezer in Lud, to R. Yochanan Ben Zakai in Beror Chayil...to the Great Sanhedrin in Liskas ha'Gazis.
(a) (Mishnah): In monetary cases, we begin...
(b) Question: How do we begin (to interrogate the witnesses, for Zechus, in capital cases)?
(c) Answer #1 (Rav Yehudah): We say, 'Who says that it was as you say?!'
(d) Objection (Ula): This will make them retract!
1. Question: What is wrong with that?
i. (Beraisa - R. Shimon ben Elazar): We make the witnesses move from place to place, perhaps this will confound them and they will decide not to testify.
2. Answer: We encourage that they should retract on their own (if they are lying), we do not induce them to retract (perhaps they are telling the truth)!.
(e) Answer #2 (Ula): We ask the defendant if he has witnesses to Mezim them.
(f) Objection (Rabah): Do we begin with Zechus for the defendant which would make the witnesses liable to death?!
1. Question: This would not Mechayev them to die!
i. (Mishnah): Edim Zomemim are not killed unless there was a final verdict to kill the defendant.
2. Correction: Rabah meant, do we begin with Zechus for the defendant which (if there would be a final verdict before Mezimim were brought) could Mechayev the witnesses to die?!
(g) Answer #3 (Rabah): We ask the defendant if he has witnesses to contradict them.
(h) Answer #4 (Rav Kahana): We say 'From your words, Ploni is innocent'.
(i) Answer #5 (Abaye and Rava): We tell Ploni 'Don't worry, if you are innocent, you will not be killed.'
(j) Answer #6 (Rav Ashi): We say, 'Whoever knows Zechus for Ploni, let him say it!'
1. Support (for Abaye and Rava - Beraisa - Rebbi): "Im Lo Shachav..." - this teaches that in capital cases we begin with Zechus.
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