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Sanhedrin 32


***** Perek Echad Diynei Mamonos *****


(a) We learn D'rishah and Chakirah by Diynei Nefashos from the Pasuk in Re'ei "ve'Darashta ve'Chakarta". Our Mishnah learns from the Pasuk "Mishpat Echad Yih'yeh Lachem" - that Diynei Mamonos too, require D'rishah and Chakirah.

(b) Of the ten differences between Diynei Mamonos and Diynei Nefashos, we have already learned that the former require three judges, the latter, twenty-three, and that the former require a majority of only one, whereas the latter require two in order to sentence a man to death (which we learn from "Lo Sih'yeh Acharei Rabim le'Ra'os", as we learned in the first Perek). We learn ...

1. ... this latter ruling - from the Pasuk in Mishpatim "Lo Sih'yeh Acharei Rabim le'Ra'os" (as we explained in the first Perek).
2. ... that this does not extend to Diynei Mamonos, and that a majority of one will suffice by Diynei Mamonos - from the Pasuk there "Lo Sateh Mishpat Evyoncha", 'Aval Atah Mateh Mishpat Shor ha'Niskal' ('Kal va'Chomer' other Diynei Mamonos) See Aruch la'Ner.
(c) Beis-Din opens the proceedings - by Diynei Mamonos either li'Zechus or le'Chovah, but Diynei Nefashos, exclusively li'Zechus.

(d) 'Diynei Nefashos Machzirin li'Zechus ve'Lo le'Chovah' means - that they may only change the verdict by Diynei Nefashos if it is to pronounce the defendant innocent, but not to pronounce him guilty.

(a) 'Diynei Mamonos ...
1. ... ha'Melamed Chovah Melamdin Z'chus, ve'ha'Melamed Z'chus Melamed Chovah', Aval Diynei Nefashos - 'ha'Melamed Z'chus Eino Melamed Chovah'.
2. ... Danin ba'Yom ve'Gomrin ba'Laylah, Diynei Nefashos - Danin ba'Yom ve'Gomrin ba'Yom.
3. ... Gomrin Bo ba'Yom Bein bi'Zechus Bein le'Chovah, Diynei Nefashos - Gomrin Bo ba'Yom li'Zechus, u'va'Yom she'le'Acharav le'Chovah'.
(b) Consequently, one may not judge Diynei Nefashos - on Friday or on Erev Yom-Tov.

(c) 'Diynei Mamonos ha'Teme'os ve'ha'Taharos Maschilin min ha'Gadol; Diynei Nefashos - Maschilin min ha'Tzad'.

(d) Diynei Nefashos are different in this regard - because, due to the Pasuk "ve'Lo Sa'aneh al Riv" (without a 'Yud'), a Dayan may be afraid to argue with the senior Dayan once the latter has presented his opinion (see Tosfos 36a DH 'Diynei Nefashos').

(a) Anyone is eligible to judge Diynei Mamonos - but only Kohanim, Levi'im and Yisre'elim whose daughters are eligible to marry Kohanim may judge Diynei Nefashos.

(b) The Beraisa validates both the Sh'tar and the witnesses in a case where a Sh'tar is dated on the first of Nisan of the Sh'mitah-year, and witnesses claim that the signatories on the Sh'tar were with them elsewhere on that day - because we assume that the Sh'tar was written and dated some time after the loan actually took place, and that it was written in the location where they had seen the transaction take place (rather than where the Sh'tar was written).

(c) Even though we learned in Bava Basra that the witnesses should write in the Sh'tar the location where the Sh'tar was written, and not where the loan takes place - that is only Lechatchilah, but not Bedieved.

(d) The problem the current Beraisa poses on our Mishnah "Echad Diynei Mamonos bi'Derishah va'Chakirah" is - that if cross-examination is mandatory (with the object of turning the witnesses into Eidim Zomemin), assuming that a Sh'tar was written later and in a different place negates the whole object of the cross-examination.

(a) We could really ask the same Kashya from the Mishnah in Shevi'is, where the Tana writes ...
1. ... 'Sh'tarei-Chov ha'Mukdamin - Pesulim'.
2. ... 'Sh'tarei-Chov ha'Me'ucharin - Kesherim'.
(b) Seeing as Diynei Mamonos require D'rishah and Chakirah, the Din ought to be - that a Sh'tar Me'uchar is Pasul too.

(c) Even though other witnesses may have seen the loan taking place - that would render the loan a Milveh al Peh, which would not allow the creditor to claim from the Lekuchos.

(d) We prefer to ask from the Beraisa than from the Mishnah - because it specifically speaks about Sh'mitah, and due to the fact that (based on the fact that all debts will be canceled at year's end) the closer one gets to the end of Sh'mitah, the less likelihood there is of people lending money, we would not assume the Sh'tar to be post-dated, since it would make the creditor look like a liar.

(a) In spite of that we assume it to be a Sh'tar Me'uchar, and validate it - because when all's said and done, Shevi'is only cancels the debt at the end of the year, and there is no reason to assume that people will stop issuing loans before then. Consequently, the creditor will not hesitate to post-date the loan.

(b) Rebbi Chanina reconciles our Mishnah (which requires D'rishah va'Chakirah) with the Beraisa (which validates a Sh'tar Me'uchar) - by establishing the latter after the Rabbanan canceled D'rishah and Chakirah ...

(c) ... because of 'Ne'ilas Deles' (the fear that, if it was too difficult to retrieve their money, people would stop lending money).

(d) We nevertheless obligate a Beis-Dim who erred in Diynei Mamonos to pay (despite their claim that if they had been permitted to cross-examine the witnesses, they would not have erred) - because that too, is part of the Takanah of Ne'ilas Deles, since people will not lend money, if they know that they may not get it back, even if it on account of an error on the part of Beis-Din).




(a) Rava and Rav Papa both establish our Mishnah after the Takanas Chachamim.
1. Rava establishes our Mishnah by K'nasos, which are not subject to Ne'ilas Deles.
2. Rav Papa establishes our Mishnah even by admissions and loans and still requires D'rishah and Chakirah - because he is speaking about a Din Merumah (where Beis-Din recognize either that the claimant as a swindler or that his presentation was devious).
(b) Resh Lakish draws a distinction between the Pasuk "be'Tzedek Tishpot Amisecha", which speaks about - a regular case, and the Pasuk "Tzedek Tzedek Tirdof", about - a Din Merumah.
(a) Rav Ashi agrees with the various interpretations of the Mishnah and the Beraisa, but not with the way that Resh Lakish resolves the Pesukim. According to him ...
1. ... "be'Tzedek Tishpot Amisecha" - refers to Din.
2. ... "Tzedek Tzedek Tirdof" - refers to P'sharah (compromise).
(b) And to demonstrate the latter, he gives a parable of two ships that meet head on in a narrow river, or two camels that are climbing up the steps of Beis Choron from two opposite sides and meet at the top, head-on. and there is no room for both to pass. Knowing at the outset that both parties cannot get the best deal, they arrange a compromise, agreeing that one of them retreats, letting the other pass, for which he pays the former a sum to supplement his loss.

(c) The above speaks if both are equally laden and the one is as close to home as the other. If however, one of the ships or camels is laden and the other is not or if one is close to home and the other is not - then that is the one who is given first right of passage.

(d) Based on the same Pasuk ("Tzedek Tzedek Tirdof") the Beraisa extrapolates - that a litigant should always go for the best Beis-Din available, such as that of Rebbi Eliezer in Lud and Raban Yochanan ben Zakai in B'ror Chayil.

(a) The significance of a ...
1. The noise of a mill grinding spices in Burni - took the place of an announcement that a B'ris would take place that day (and they were preparing spices to heal the baby).
2. ... a lamp burning in B'ror Chayil - was a sign that a wedding was taking place (see also Tosfos DH 'Or ha'Ner').
(b) The point of this symbolism - was that the Romans forbade such activities (see also Maharam), so it was not possible to announce them in the conventional manner.
(a) Rebbi Yehoshua was the Rav of Peki'in - Raban Gamliel 'ruled' in Yavneh, Rebbi Akiva in B'nei B'rak and Rebbi Yossi in Tzipori.

(b) Besides Rebbi Masya in Rome, Rebbi Chananya ben T'radyon in Sichni and Rebbi Chanina ben Achi Rebbi Yehoshua in Golah, the Beraisa lists - Rebbi in Beis-She'arim.

(c) When the Tana refers to ...

1. ... 'Golah', he means - Pumbedisa.
2. ... 'Chachamim be'Lishkas ha'Gazis', he means - the Sanhedrin ha'Gedolah.
(a) Rav Yehudah suggests that by 'opening the proceedings li'Zechus' (by Diynei Nefashos), the Tana means that after the D'rishah va'Chakirah, we ask the witnesses how we are supposed to know that they are telling the truth. Ula refutes this suggestion however - because it is wrong to forcibly silence the witnesses.

(b) Rebbi Shimon ben Elazar rules in a Beraisa that the witnesses (of Diynei Nefashos) even begin to testify - Beis-Din move them around from one place to another in order to wear them down and induce them to retract.

(c) We cannot 'silence' the witnesses here however - because whereas the inducement is indirect, here it is direct.

(a) In spite of the Mitzvah of saving the defendant from the death-penalty, we are concerned about inducing the witnesses to retract - because against that, we have the Mitzvah of "u'Vi'arta ha'Ra mi'Kirbecha" (Shoftim).

(b) Rabah objects to Ula's suggestion that we ask the defendant whether he has witnesses to be Mazim the witnesses who are testifying against him - because it would be wrong to save one person by causing the downfall of another.

(c) We counter the answer to that (that Eidim Zomemin are not punished anyway if they become Zomemin before the final verdict has been issued) - by expressing the fear that the defendant will indeed wait for the final verdict before introducing the Mazimin.

(d) What we in fact ask the defendant, according to Rabah is - whether he has witnesses to contradict the prosecution witnesses (thereby negating their testimony without actually causing them to get punished).

(a) According to Rav Kahana, 'opening the proceedings li'Zechus' means entails saying to the witnesses 'mi'Divreichem Nizdachechah P'loni'; according to Rav Ashi, they would announce that whoever has something to say in the defendant's favor, should come and say it. But the Beraisa supports the opinion of Abaye and Rava, in whose opinion - they would simply inform the defendant that if had not sinned, he had nothing to fear.

(b) Rebbi extrapolates from the Pasuk "Im Lo Shachav Ish Osach" (the opening words of the Kohen to the Sotah) - that this is the source for opening the proceedings in Diynei Mamonos with a positive statement.

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