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Rosh Kollel: Rabbi Mordecai Kornfeld

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Sanhedrin 40



(a) (Mishnah): Witnesses are interrogated with seven Chakiros (questions about when and where they saw the testimony): which Shemitah cycle of Yovel (was it), which year in the Shemitah cycle, which month, which day of the month, which day of the week, what hour of the day, where were you?
(b) R. Yosi says, we only ask which day, what hour, where were you.
(c) We also ask questions relevant to the case, e.g. did you recognize the victim (of a murder, i.e. whether or not he was a Yisrael), did you warn the transgressor, (if he served idolatry) which idol did he serve, how did he serve it?
(d) The more Bedikos we ask, the better.
(e) A case occurred (someone murdered under a fig tree), Ben Zakai asked them if the figs had large or small stems.
(f) The difference between Chakiros and Bedikos: if a witness cannot answer a Chakirah, his testimony is invalid; if a witness, or even both witnesses cannot answer Bedikos, their testimony is valid.
1. Regarding Chakiros and Bedikos, if they contradict each other, their testimony is disqualified.
(g) If one witness says 'It was the second of the month', the other says 'It was the third', their testimony stands - we assume that the first heard that the month was Me'ubar, and the latter did not (therefore, he thought it was the third).
1. If one witness says 'It was the third', the other says 'It was the fifth', their testimony is disqualified.
(h) If one witness says 'It was the second hour of the day', the other says 'It was the third', their testimony stands;
1. If one witness says 'It was the third', the other says 'It was the fifth', their testimony is disqualified.
2. R. Yehudah says, their testimony stands.
3. If one witness says 'It was the fifth hour of the day', the other says 'It was the seventh', (R. Yehudah agrees that) their testimony is disqualified, for in the fifth hour the sun is in the east, in the seventh it is in the west.
(i) After interrogating the first witness, we bring in the second witness and interrogate him.
(a) If their testimonies fit each other, we begin with a reason for Zechus.
(b) If one of the witnesses gives a reason for Zechus, or one of the Talmidim gives a reason for Chiyuv, we do not let him say it;
1. If one of the Talmidim gives a reason for Zechus, we put him with the judges, he stays there the entire day.
2. If his reason is good, we follow it.
3. If the transgressor himself gives a proper reason for Zechus, we listen to him.
(c) If we find a reason for Zechus, we exempt him; if not, we postpone the verdict until tomorrow.
(d) We pair up the judges to discuss the case with each other; they eat a minimal amount and do not drink wine the entire day. Every judge ponders the case overnight.
(e) The next day, they rise early; a Mezakeh says 'I was Mezakeh, I still am', a Mechayev says 'I was Mechayev, I still am';
1. 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.
2. If they err about what they said yesterday, the scribes remind them.
(f) If we find a reason for Zechus, we exempt him; if not, we vote.
(g) If 12 judges are Mezakeh and 11 are Mechayev, he is exempt;
(h) If 12 judges are Mechayev and 11 are Mezakeh, or even if 11 are on each side and one is unsure, or even if 22 agree one way or the other and one is unsure, we add more judges.
(i) We add two judges at a time, until we reach 71.
1. If 36 are Mezakeh and 35 are Mechayev, he is exempt;
2. If 36 are Mechayev and 35 are Mezakeh, they debate the matter until one of the Mechayvim changes his mind.
(a) (Gemara) Question: What is the source (for seven Chakiros)?
(b) Answer (Rav Yehudah): It says (regarding Ir ha'Nidachas) "V'Darashta v'Chakarta v'Sha'alta Heitev", and it says (regarding idolatry) "V'Darashta Heitev", and it says (regarding Edim Zomemim) "V'Doreshu ha'Shofetim Heitev" (in all, seven words that connote (or are extra to teach about) investigation).

(c) Question: Since all seven were not written by one case, we should say that each case requires the number written by it (i.e. three for Ir ha'Nidachas, two for idolatry, two for Edim Zomemim).
(d) Answer #1: Since the Torah says that all require investigation, we learn from each to the other cases, it is as if all seven words are written by each.
(e) Objection: But each case has a stringency unlike the others, we cannot learn from one to another!
1. Only in Ir ha'Nidachas the transgressors' money is destroyed!
2. An idolator is always stoned, he is never beheaded!
3. Edim Zomemim do not need to be warned!
(f) Answer #2: Rather, we learn from a Gezerah Shavah "Heitev-Heitev" from each case to the others.
1. Suggestion: We must say that the Gezerah Shavah is free (the words are not needed for anything else) - if not, we can refute the Kal va'Chomer (as above).
2. Confirmation: Indeed, it is free.
3. Question: Indeed, regarding idolatry and Edim Zomemim it is free - the Torah should have taught the second Chakirah through the word 'Drishah'; or 'Chakirah'; instead it said "Heitev";
i. But regarding Ir ha'Nidachas, it already says "V'Darashta v'Chakarta v'Sha'alta Heitev"!
4. Answer: It should have used the same word (Drishah or Chakirah) twice; since it changed, the Gezerah Shavah is considered free.
i. According to Chachamim, no death penalty is more severe than stoning, we learn all capital cases from idolatry (seven Chakiros suffice).
5. Objection: But according to R. Shimon, who says that burning is more severe than stoning, how do we know that seven suffice for burning?
(g) Answer #3 (Rav Yehudah): We expound the words "Emes Nachon" in the Parshiyos of Ir ha'Nidachas and Edim Zomemim.
(h) Question: If so, there are 11 Chakiros in all!
(i) Answer: We do not expound the three occurrences of "Heitev" to teach Chakiros (rather, they are free for the Kal va'Chomer);
1. According to R. Shimon, one of the remaining eight teaches that seven suffice for burning;
2. Also according to Chachamim, one of the eight teaches that seven suffice for burning - even though a Kal va'Chomer teaches this, the Torah wrote a word enabling us to expound it.
(j) Objection (R. Avahu): Rather, it should teach an eighth Chakirah! (We only say that a word teaches something we would have known anyway from a Kal va'Chomer if there is nothing else to expound from it.)
1. Objection: What eighth Chakirah could we ask the witnesses?
2. Answer #1: We could ask them what part of the hour was it.
3. Support (Beraisa): They would interrogate the witnesses with eight Chakiros.
4. Objection: Answer #1 only fits according to Abaye's understanding of R. Meir, that a person knows the exact time or almost the exact time;
i. But Abaye understands R. Yehudah to say that people normally err by up to half an hour, and Rava says that people err by even more, we cannot demand that witnesses know which part of the hour it was (and disqualify the testimony if they do not know)!
5. Answer #2: The eighth Chakirah is, which year of Yovel was it.
6. Objection: We already asked which Shemitah and which year of Shemitah, this determines the year of Yovel!
7. Correction: Rather, we ask in which Yovel it was.
i. The Tana of our Mishnah does not ask this, since witnesses normally would not testify about something that happened 50 years ago (therefore, we assume it was the last Yovel).
(a) (Mishnah - R. Yosi): (We only ask which day, hour...)
(b) (Beraisa): R. Yosi (to Chachamim): If a witness said 'He killed him yesterday', must we ask what Shemitah, what year, what month, which day?!
(c) Chachamim: Even according to you, if a witness said 'He killed him just now', must we ask which day, which hour, and where?!
1. Rather, even though we already know, we ask anyway, as R. Shimon ben Elazar taught (that we make the witnesses move around, perhaps this will cause them to retract).
(d) R. Yosi: It is common for witnesses to testify about what happened yesterday, it is not common to testify about what happened just now.
(e) (Mishnah): Did you recognize the victim?
(f) (Beraisa): Did you recognize the victim - was he a Nochri or a Yisrael?
1. Did you warn him - did he acknowledge the warning, and agree to be killed for his transgression, and he transgressed within Toch Kedai Dibur (the time needed to greet one's Rebbi, i.e. to say three or four words)?
2. (If he served idolatry) which idolatry did he serve - Markulis or Ba'al Pe'or, did he serve it by slaughtering, burning, Nisuch (pouring libations) or bowing?
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