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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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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 she'Asah, Asuy'.

(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).



5) 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 two disputants.

(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 stolen.

(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 for P'sharah.

(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.
2. ... "Elokim Nitzav ba'Adas Keil" - that the Dayanim should be aware of that too.
(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 ').
(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'.

(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.

13) 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 ...
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.
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