ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Sanhedrin 6
(a) The Beraisa states that if someone who judges on his own, declares
someone who is Chayav Patur, or someone who is Patur, Chayav, something that
is Tahor, Tamei, or something that is Tamei, Tahor - his ruling s valid, and
he must pay out of his own pocket.
(b) Rebbi Avahu, who holds 'Shenayim she'Danu, le'Divrei ha'Kol Ein Dineihem
Din', establishes this Beraisa - when the litigants asked him to arbitrate.
(c) He is nevertheless Chayav to pay - because it speaks when they
stipulated that he rules according to Din Torah.
(a) The Beraisa cannot be speaking when the judge erred in a D'var Mishnah,
Rebbi Aba told Rav Safra, - because then, in light of Rav Sheishes, who
rules 'Ta'ah bi'D'var Mishnah, Chozer', the Tana would not have said 'Mah
(b) So his mistake must have been one of Shikul ha'Da'as - which means that
he erred by ruling like the opinion in a Machlokes of equals, which is not
the generally accepted one, even though no ruling was actually issued in
favor of his disputant.
(c) On the one hand, the litigant who won the case is not obligated to
return the money or the goods - because he can argue that the ruling has not
been disproved. On the other hand ...
(d) ... the judge is obligated to pay - because he ruled like the opinion
which is not prevalent.
(a) Rebbi Meir learns in a Beraisa 'Bitzu'a bi'Sheloshah', which means -
that P'sharah (aiming at compromise) requires three judges.
(b) The Chachamim - permit even one.
(c) On the assumption that P'sharah has the same Din as Din, we try and
prove from this Beraisa - that the Machlokes between Rebbi Avahu and Shmuel
is actually a Machlokes Tana'im.
(d) We conclude however, that Din, according to both Tana'im, requires three
judges, and they argue over - whether we compare P'sharah to Din in this
regard (Rebbi Meir) or not (the Rabbanan).
(a) We learned on the previous Daf that, according to Raban Shimon ben
Gamliel, P'sharah requires two judges. This does not mean that we now have
three opinions (three, two and one) - because the one who permits two judges
will also permit one, and Raban Shimon ben Gamliel only said 'two' ...
(b) ... because it is advisable to have two, so that they can later double
up as witnesses.
(c) We try to prove from the opinion of Rebbi Meir ('Bitzu'a bi'Sheloshah')
that P'sharah does not require a Kinyan - because if it did, why would he
require three judges? Why will two with a Kinyan not suffice?
(d) In spite of this, the Halachah is - that P'sharah requires a Kinyan
(without which, the litigants are permitted to retract). Note, that
according to some commentaries, this ruling does not pertain to P'sharah at
the hand of three judges, only one or two (like the Chachamim).
The Tana Kama of the Beraisa requires three for P'sharah (like Rebbi Meir).
He qualifies P'sharah - by confining it up to the time of the G'mar-Din
(which will be defined later). From that point on, the litigants are
obligated to abide by Beis-Din's ruling.
(a) Rebbi Eliezer B'no shel Rebbi Yossi Ha'gelili forbids Bitzu'a, and
brands a judge who performs it, a sinner. And he goes on to apply the Pasuk
"u'Botze'a Beirech Ni'etz Hashem" about someone who blesses such a judge
(meaning that someone who blesses a judge who performs P'sharos instead of
judging, angers Hashem).
(b) And he extrapolates from the Pasuk "Ki ha'Mishpat l'Elokim Hu" - that,
like Hashem, a judge is obligated to enact justice, and not P'sharah ('Yikov
ha'Din es ha'Har').
(c) Moshe Rabeinu too, used to say 'Yikov ha'Din es ha'Har'. Aharon differed
from him, inasmuch as - he used to go out of his way to make peace between
(d) This does not mean that Aharon was a sinner - because he did it outside
of Beis-Din, before they took their case to court.
(a) Rebbi Eliezer Darshens the Pasuk "Botze'a Beirech Ni'etz Hashem" with
regard to someone who steals a Sa'ah of wheat (an alternative meaning of
'Botze'a'). He says - that even if he changes its form by subsequently
grinding and baking it (acquiring it with Shinuy), when he then comes to
take Chalah, he cannot recite a B'rachah, since the goods were originally
(b) Rebbi Meir Darshens it in connection with Yehudah, who said "Mah Betza
Ki Naharog es Achinu", He explains - that anyone who blesses Yehudah for
saying that, makes Hashem angry, because he stopped short of saving Yosef
and returning him to his father.
(a) Based on the Pasuk "Emes u'Mishpat Shiftu be'Sha'areichem", Rebbi
Yehoshu ben Korchah Darshens the Pasuk to mean - that it is a Mitzvah to go
(b) The problem with this Pasuk would otherwise be - how to reconcile the
two seemingly conflicting concepts of Mishpat and Shalom.
(c) And he cites the Pasuk in Shmuel " ... Oseh Mishpat u'Tzedakah", which
refers to - David Hamelech.
(d) That is the opinion of Rebbi Yehoshua ben Korchah. According to the
previous Tana'im, we initially think - that David would judge the case to
its ultimate end (Mishpat), and then, if the defendant could not afford to
pay, he would pay out of his own pocket.
(a) Rebbi rejects the previous explanation on the grounds - that in that
case, the Pasuk ought to have said " ... Mishpat, u'Tzdakah la'Aniyim",
rather than "le'Chol Amo".
(b) So we reconcile the two, even assuming that David did not pay out of his
own pocket - by explaining that just as a correct ruling is Mishpat for the
claimant,so too, is it Tzedakah for the defendant, who is forced to get rid
of what he stole.
(a) Rebbi Shimon ben Menasya holds of P'sharah, like Rebbi Yehoshua ben
Korchah, only he qualifies it - by confining it to where the judge has not
yet reached the stage where he has an inkling as to the outcome of the case;
once he has, he is no longer permitted to go for a P'sharah. And he learns
this from ...
(b) ... the Pasuk "Poter Mayim Reishis Madon, ve'Lifnei Hisgala ha'Riv
Netosh". "Poter Mayim Reishis Madon" means - that if the judge wishes to
exempt himself from strife (which is compared to water, as we shall see
later) and to create peace, then before he begins hearing the dispute, he
should conclude it, by means of P'sharah.
(c) Rebbi Yehoshua (or Rebbi Yehudah) ben Lakish learns from the Pasuk "Lo
Saguru Mipnei Ish" - that a judge who is afraid of a tough litigant ('one of
the litigants is weak and the other, strong') may withdraw from the case as
long as he has no inkling as to the outcome of the case; once he does, he is
obligated to follow it through to the end.
(d) Rebbi Yehoshua ben Korchah Darshens it in connection with a Talmid - who
is forbidden to remain silent if he sees his Rebbe erroneously obligating a
poor defendant to pay a rich claimant. Rebbi Canin interprets "Lo Saguru" to
mean - that he should not hold his opinion inside.
(a) The Beraisa learns from the Pasuk ...
1. ... "ve'Amdu Sh'nei ha'Anashim Lifnei Hashem" -that the witnesses should
be aware before whom they are testifying and who will punish them, should
they testify falsely.
(b) The Dayan should not decline to issue rulings for fear that he might
err - because the Pasuk "ve'Imachem bi'D'var Mishpat", from which we learn -
the principle 'Ein le'Dayan Ela Mah she'Einav Ro'os' (which means that a
judge can only judge according to what he sees. In the event that he errs
[not through negligence], he will not be taken to task ').
2. ... "Elokim Nitzav ba'Adas Keil" - that the Dayanim should be aware of
(a) The Tana Kama of the Beraisa permits a judge to switch to P'sharah up to
the G'mar-Din, which Rav Yehudah Amar Rav defines as - the moment the judge
declares 'Chayav Atah Liten Lo'.
Despite the fact that, even Rebbi Yehoshua ben Korchah does not consider
P'sharah a Mitzvah, as we just concluded, the difference between the Tana
Kama of the Beraisa ...
(b) Rav rules like Rebbi Yohosua ben Korchah ('Mitzvah Li'vtzo'a').
(c) This poses a problem on Rav Huna, who would ask the litigants who came
before him for litigation - whether they preferred Din or P'sharah.
(d) We reconcile Rav Huna with Rav's ruling - by amending the 'Mitzvah' of
Rebbi Yehoshua ben Korchah, to mean (not that it is a Mitzvah to go for
P'sharah, but) - that it is a Mizvah to offer it to them.
1. ... and Rebbi Yehoshua ben Korchah - is the aspect of the Mitzvah to
offer the litigants P'sharah, with which the Tana Kama disagrees.
2. ... and Rebbi Shimon ben Menasyah - is the aspect of the prohibition to
even offer them P'sharah once the Dayan has an inkling of the Halachah, with
which he also disagrees.