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Sanhedrin 33



(a) The Beraisa rules that if a judge who declared the innocent party, guilty, and the guilty party, innocent ... , his ruling remains intact and the judge must reimburse the litigant whose loss he caused.

(b) Rav Yosef reconciles this ruling with our Mishnah ('Diynei Mamonos Machzirin') - by establishing the Beraisa in the case of a qualified Dayan (who has the power to enforce his final ruling), whereas the Beraisa speaks by a layman.

(c) Rav Nachman then reconciles our Mishnah with the Beraisa 've'Im Hayah Mumcheh le'Beis-Din Patur' (implying 'Ein Machzirin') by differentiating between when there is someone who is greater than him in wisdom and years (who supports his second ruling, forcing the second litigant to retract) and when there is not (in which case, on the basis of his first ruling, he can refuse to do so).

(a) Rav Sheishes establishes our Mishnah by an error in a D'var Mishnah, and the first Beraisa speaks - by an error in Shikul ha'Da'as (both of which will be explained shortly).

(b) According to Rav Yosef and Rav Nachman - our Mishnah too by Shikul ha'Da'as.

(c) The basis for the difference between Ta'ah bi'Devar Mishnah and Ta'ah be'Shikul ha'Da'as is - the fact that whereas the former is definitely an error, the latter is basically a matter of opinion (both of which are Halachah acceptable).

(a) Ravina asked Rav Ashi whether 'Ta'ah bi'Devar Mishnah' incorporates an error in Rebbi Chiya and Rebbi Oshaya - because it is possible that 'D'var Mishnah' means exactly what it says, due to the fact that Rebbi was that much greater than all those who came after him.

(b) When (based on the fact that basically, in spite of Rebbi's greatness, the status of the Beraisos is on a par with that of the Mishnayos) Rav Ashi answered in the affirmative, Ravina found it necessary to ask whether it also incorporated an error in Rav and Shmuel - since they were no longer quoting the opinions of the Tana'im (which enjoy a higher status than the sayings of the Amora'im), but were stating their own opinions, and he therefore thought that perhaps they might fall under the category of Ta'ah Shikul ha'Da'as.

(c) And when Ravina finally asked him whether it incorporated someone erring even in their (Ravina and Rav Ashi's) rulings - he retorted that they could hardly be considered people who 'destroyed canes on the meadow' (meaning that they too, were Halachic authorities, whose opinions had to be contended with, no less than Rav and Shmuel in their generation).

(d) Rav Papa defines 'Ta'ah be'Shikul ha'Da'as' - as two Tana'im or Amora'im who argue a certain point, given that the Halachah is not fixed like either of them, though one of the opinions is generally the accepted one. If someone then rules like the other opinion, that is 'Ta'ah be'Shikul ha'Da'as'.

(a) When Rebbi Tarfon was asked to determine a the Kashrus of a cow, he fed it to the dogs - because its womb had been removed and he thought that it was a T'reifah.

(b) He subsequently bemoaned the loss of his donkey (which he believed he would now be forced to sell, in order to pay for the cow) - when the Chachamim in Yavneh cited Todos the doctor, who explained that no cow or pig was allowed to leave Egypt before its womb was removed (to prevent it from having children), because it actually raised their value.

(c) Rebbi Akiva pointed out that since he was a qualified Dayan and therefore able to retract, he was Patur from paying. He should rather have queried him, asked Rav Hamnuna, why he was not Patur because he was a To'eh bi'Devar Mishnah (seeing as this is a S'tam Mishnah in Chulin)

(d) To answer Rav Hamnuna's Kashya - by establishing Rebbi Akiva in the form of 'Chada ve'Od', meaning that taking for granted the Kashya from Ta'ah bi'Devar Mishnah, one could also add that he was Patur from paying in his capacity as a qualified Dayan.

(a) Rav Nachman bar Yitzchak asks how Rav Hamnuna could possibly query Rebbi Tarfon on the grounds that he could become Patur by retracting - seeing as he had already fed the cow to the dogs.

(b) In answer to this Kashya, we explain that what Rav Hamnuna really means to ask was - if Ta'ah bi'Devar Mishnah is Patur, then the judge's ruling was invalid, and he ought to be Patur, because if (as we currently believe, it was the owner who threw it to the dogs, then it is basically his own fault (for acting so hastily), since Rebbi Tarfon still had the option of retracting.

(a) When Rav Chisda answers 'Ka'an she'Nasa ve'Nasan be'Yad ... ', he is referring to the original Kashya from the Beraisa of 'Dan es ha'Din ... Mah she'Asah Asuy' on our Mishnah (though it would answer Rav Hamnuna's Kashya too), which rules 'Machzirin', and, establishing them both by Ta'ah be'Shikul ha'Da'as, he differentiates between whether the judge actually took the money from one litigant and handed it to the other (the Beraisa) or not (our Mishnah).

(b) 'Nasa ve'Nasan be'Yad' may not apply technically to 'Zikah es ha'Chayav' (in our Mishnah). Halachically however - declaring someone who is Chayav, Patur, is automatically considered as if he had handed over the money, because (unlike 'Chiyev es ha'Zakai', which still needs to be paid) it requires no further act.

(c) This creates a problem with our Mishnah however - because how will we then interpret 'Machzirin ... Bein le'Chovah' (implying that he initially declared him Patur), seeing as on the one hand, this falls under the category of 'Nasa ve'Nasan be'Yad' (as we just explained), whilst on the other, our Mishnah specifically speaks when the judge is not 'Nasa ve'Nasan be'Yad' (as we explained earlier).

(d) When we answer 'Chada Katani', we mean - that the Tana actually speaks about one case only, that of 'Machzirin li'Zechus she'Hi Chovah', which means when he first declared him Chayav and then Patur (and there is no reverse case).

(a) The problem now is - how we will explain the equivalent case of 'Ein Machzirin le'Chovah' in the Seifa, because if we are speaking about 'Z'chus she'Hi Chovah' - who would stand to lose by declaring the defendant innocent?

(b) We reject the answer 'Chovseih de'Go'el ha'Dam'' (that the next of kin of the murdered man, who demands justice, stands to lose) - because that would not be a reason to sentence the defendant to death.

(c) We also refute the current explanation on the basis of the Lashon 'Bein li'Zechus, Bein le'Chovah' in the Reisha - because it implies that the Tana is speaking about two cases, and not just one (as we just tried to explain).

8) Ravina dispenses with the Kashyos on Rav Chisda by establishing 'Zikah es ha'Chayav' (of the Beraisa) when the judge actually took a security from the creditor and handed it to the debtor (otherwise, he would be able to retract, like we initially thought). And he explain ...
1. ... 'Timei es ha'Tahor' - when he actually picked up a Sheretz, and to prove his point, threw it on the Taharos in question.
2. ... 'Tiher es ha'Tamei' - when, to demonstrate his ruling, he took the Tamei fruit and mixed it with other Tahor fruit belonging to the owner. And that explains why 'Mah she'Asah, Asuy'.



(a) The Beraisa learns from the Pasuk ...
1. ... "veNaki Al Taharog" - that if, after a person is proclaimed guilty, someone announced that he has fresh evidence to prove him innocent, he is brought back to court to hear the fresh evidence.
2. ... "ve'Tzadik Al Taharog" - that once a man has been declared innocent, he cannot be returned, even if someone claims to have evidence to prove him guilty.
(b) When it comes to a Meisis (who talks someone into worshipping idols) ...
1. ... Rav Shimi bar Ashi learns from the Pasuk "Lo Sachmol ve'Lo Sechaseh Alav" - that the reverse is applicable (that once he has been proclaimed guilty, he may not be returned to hear evidence proving his innocence, whereas once he is declared innocent, he may be brought back to hear evidence proving him guilty.
2. ... Rav Kahana learns from the Pasuk there "Ki Harog Tahargenu" - the very same thing (since it is a Mitzvah to eliminate him at all costs).
(c) Rebbi Zeira asked Rav Sheishes - whether in cases of Chayvei Galuyos and Chayvei Malkos, Beis-Din follow the same lenient procedure as Chayvei Miysos or not.

(d) And we resolve both She'eilos from a 'Gezeirah-Shavah'. We learn from ...

1. ... "Rotze'ach" "Rotze'ach" ("Yumos ha'Rotze'ach" [written by Chayvei Miysos) - Chayvei Galuyos ("La'nus Shamah Rotze'ach") that the leniencies that apply to the former apply to the latter (thereby resolving our She'eilah regarding Chayvei Galuyos).
2. ... "Rasha" "Rasha" ("Asher Hu Rasha La'mus" from Diynei Nefashos) - that those leniencies apply to Chayvei Malkos ("Ve'hayah Im bin ha'Rasha") as well.
(e) And we substantiate these D'rashos - by supporting them with a Beraisa.
(a) Rebbi Chiya bar Aba Amar Rebbi Yochanan qualifies the ruling in our Mishnah, that we do not return a defendant to hear fresh evidence that he is guilty - by restricting the error to one with which the Tzedokim would not agree (because it is not clearly written in the Torah); but if the error is so stark that even the Tzedokim would agree, then our Tana will concede, that we will bring him the defendant back, even after declaring him innocent.

(b) Rebbi Chiya bar Aba asked Rebbi Yochanan about such a situation with regard to a case of adultery - where in the majority of cases, the Torah's rulings are clear-cut, in which case we will always bring him back to court to hear fresh evidence, even to prove him guilty.

(c) Murder cases are less clear-cut than adultery, as we find for example regarding the size of the stone, the warning coming from the mouth of the victim or if the murderer was acting in self-defense, but could have saved himself by striking one of his attacker's limbs, rather than killing him (all of which are not stated specifically in the Torah).

(a) Rebbi Yochanan replied with the words 'a'de'Mokdach Yakid, Zil Kotz Kari ve'Tzali', which means - that as long as the fire is burning, one should quickly cut a pumpkin and roast it.

(b) What Rebbi Yochanan meant to say was - that Rebbi Chiya bar Aba should take the opportunity whilst it presented itself. Seeing as Rebbi Yochanan had just told him that the criterion for calling the defendant back or not, was if the Tzedokim would concede that an error had been made or not. So he should work out for himself that by cases of adultery, where generally, the Tzedokim would agree that it had, we will accept fresh evidence even le'Chovah.

(c) What forces us to nevertheless presume that our Mishnah speaks in a case of adultery too - is the open Lashon 'Diynei Nefashos Ein Machzirin' without making any reference to cases of murder more than to cases of adultery.

(d) And we establish the case by sodomy - where the Tzedokim would not agree, since the Torah does not incorporate it in the list of Chayvei Miysah specifically.

(a) Our Tana permits anyone to testify li'Zechus by Diynei Nefashos. Initially, we think that this comes to include - the witnesses.

(b) The Tana Kama in a Beraisa learns from the Pasuk "ve'Eid Echad Lo Ya'aneh be'Nefesh" - that a witness may not present evidence to prove neither the defendant's innocence or his guilt.

(c) Rebbi Yossi b'Rebbi Yehudah - permits them to bring proofs that he is innocent.

(d) To reconcile 'anyone' in our Mishnah with the Rabbanan of Rebbi Yossi b'Rebbi Yehudah, Rav Papa attributes it exclusively - to one of the Talmidim who sat before the Beis-Din (as we shall see in the next Mishnah).

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