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Kollel Iyun Hadaf, Jerusalem

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Sanhedrin 40


***** Perek Hayu Bodkin *****


(a) Our Mishnah discusses the seven Chakiros. Four of the seven Chakiros are the Shavua, which year of the Shavu'a, the month and which day of the month. 'Shavu'a' means - which of the seven-year Sh'mitah cycles that form the seven cycles of the Yovel.

(b) The other three Chakiros are - the day of the week, the time of day and the location.

(c) Having asked them ...

1. ... the day of the month, Beis-Din would nevertheless ask them the day of the week - so that, if the Eidei Hazamah were not aware of the date of the month, when they asked the witnesses which day of the week it was, they would remember to declare them Zomemin.
2. ... the day of the week as well, they would nevertheless ask them the time of day - in case the witnesses had not been with the Mazimin for the entire day, only for that hour.
(d) According to Rebbi Yossi, the Chakiros consisted of only three questions - the day of the week, the time and the location.
(a) If there was a discrepancy in the Bedikos - then the witnesses would be disqualified, but not punished, whereas a discrepancy in the Chakiros - meant that they would receive the same punishment as the defendant would have received at their hand (provided that is, that *both* witnesses were declared Zomemin).

(b) Beis-Din are obligated to ask the witnesses whether they recognize the murdered man - in case he was a Nochri, and in the case of idolatry, which god the defendant served.

(c) They were also obligated to ask each of the respective witnesses - whether they had warned the defendant and in the case of idolatry, they would also ask them which idol he had served (in case the form of worship was not common to that particular idol).

(d) The more Bedikos Beis-Din asked, says the Mishnah, the better. In fact, ben Zakai once asked the witnesses - whether the stalks of the figs that grew on the tree under which the murder took place were thick or thin.

(a) Seeing as the thickness of the stalks does not affect the accused one way or another, the witnesses testimony - would not have been affected even if either of them (or even if both of them) had been unable to answer the previous question.

(b) ben Zakai nevertheless asked it - in an effort to get the witnesses to contradict each other (in which case their testimony would have been disqualified, and the life of the accused would have been saved).

(c) The testimony of the witnesses is not negated if one of them claims that the murder took place on the second of the month, and the other, on the third - because we allow for the fact that one of the witnesses does not know on which day Rosh Chodesh fell.

(d) A discrepancy of two days (from the third to the fifth for example) however, will render their testimony disqualified.

(a) The Tana Kama allows one hour (human error) discrepancy in the morning, but not two. Rebbi Yehudah allows even two ...

(b) ... unless those two hours are - from five hours in the day (eleven o'clock) to seven (one o'clock), because at five hours, the sun is still in the east, whereas at seven hours, it is already in the west (and the witnesses ought to have known better). In such a case, even Rebbi Yehudah considers a two hour discrepancy unacceptable.

(c) We have already learned that a witness may not express an opinion, even li'Z'chus. Should one of the Talmidim have something to say ...

1. ... le'Chovah - he is not permitted to do so.
2. ... li'Zechus - then we seat him together with the Sanhedrin (see Rashash), where he remains all day (though this will be amended later).
(d) Even if the accused has something to say in his own defense - we listen to him, provided his initial words have substance.
(a) Assuming that they find the accused guilty, the procedure ...
1. ... for the rest of that day is - to divide into groups of two (in their own private homes, or in the street), to discuss the ins and outs of the case.
2. ... during the night of Halanas Din is - to stay up all night delving into the details of the case on hand on one's own.
(b) As regards the procedure for eating - they would eat little, and in any event, wine was forbidden.

(c) On the next day, after reviewing their respective opinions, which were checked by the two Sofrim - the Dayanim were permitted to change their view, provided it was from Chovah to Z'chus, but not vice-versa.

(d) We have already learned that if twelve Dayanim declare the accused guilty, and eleven, innocent, or if one Dayan doesn't have an opinion, they bring in another two Dayanim. If, at the end of the day, thirty-six Dayanim declare him guilty and thirty-five, innocent, then, to conclude the Din - they continue discussing the issue, to convince even just one Dayan to change his stance. If they do they will end up with either 37-34 le'Chovah, or 36-35 li'Z'chus.




(a) We learn three of the seven Chakiros from the Pasuk in Re'ei "ve'Darashta, ve'Chakarta, ve'Sha'alta Heitev" - written in the context of Ir ha'Nidachas.

(b) We learn two more from the Pasuk "ve'Hugad Lecha ve'Shama'ta ve'Darashta Heitev" (in connection with someone who serves Avodah-Zarah). And we learn the last two from the Pasuk "ve'Darshu ha'Shoftim Heitev" - written in connection with Eidim Zomemin.

(c) We query this source however, based on the fact - that the seven Chakiros appear in three different places, in which case it would seem more logical to require three Chakiros to the witnesses of Ir ha'Nidachas, two to witnesses of individual idolatry and two, to witnesses of Eidim Zozemin.

(d) We answer - that since the Torah equates the three Dinim in this regard, we automatically learn one from the other.

(a) We query this however, on the grounds that the seven Chakiros are a Kula (a leniency), and since each of the three cases has a stringency that the others do not have, we cannot learn it from them. The stringency that pertains to ...
1. ... Ir ha'Nidachas is - the fact that the property of the inhabitants must be destroyed.
2. ... Avodah-Zarah is - the fact that the sinner is put to death by stoning (the other two, by the sword).
3. ... Eidim Zomemin is - the fact that they do not require a warning.
(b) When we say that the other two receive death by the sword, seeing as Eidim Zomemin are sometimes punishable by stoning, we mean - that the case of Eidim Zomemin referred to by the Torah is that of a murderer, who is killed by the sword (even though Eidim Zomemin are sometimes punishable by stoning too), or that, unlike someone who served Avodah-Zarah, who always receives Sekilah, Eidim Zomemin sometimes receive death by the sword (see Tosfos DH 'she'Kein be'Sayaf).

(c) In any event, we answer the previous Kashya by introducing the 'Gezeirah-Shavah' of "Heitev", "Heitev", "Heitev", which enables us to learn the Chakiros in the three cases from one another, as if they were all one case.

(d) We understand how "Heitev" by Ir ha'Nidachas and Avodah-Zarah are superfluous and are therefore 'Mufneh' to learn the 'Gezeirah-Shavah'. "Heitev" by Eidim Zomemin ("ve'Darshu ha'Shoftim Heitev") is superfluous, despite the fact that it is needed to teach us one of the Chakiros - because the Torah should then have written 'Darosh Tidrosh". Changing the Lashon to "Heitev", renders the word eligible to learn a 'Gezeirah-Shavah' as well.

(a) The above 'Gezeirah-Shavah covers cases of Sekilah (a Yachid who serves Avodah-Zarah), and Hereg (Ir ha'Nidachas and Eidim Zomemin). We will know that seven Chakiros are needed even in cases of ...
1. ... Chanikah (strangulation) - by means of a 'Kal va'Chomer' from Sekilah and Hereg.
2. ... Sereifah - by means of a 'Kal va'Chomer' from Sekilah.
(b) The problem with the latter, according to Rebbi Shimon is - that, in his opinion, Sereifah is more stringent than Sekilah (and we have already learned that we cannot learn what is more stringent from what is more lenient with regard to the Chakiros, which are a leniency).

(c) So Rav Yehudah cites the Pasuk "ve'Hinei Emes Nachon ha'Davar", which is written twice, once by Avodah-Zarah and once by Ir ha'Nidachas. Given that we deduct the three "Heitev's" from the previous seven words (for the 'Gezeirah-Shavah'), these two phrases supplement the seven Chakiros - inasmuch as 'Emes Nachon' constitutes two Chakiros.

(d) According to ...

1. ... Rebbi Shimon, the extra word - comes to incorporate cases of Sereifah.
2. ... the Rabbanan - we simply apply the principle 'Milsa de'Asya be'Kal va'Chomer, Tarach ve'Kasav Lah K'ra'.
(a) Rebbi Avahu objects vehemently to Rav Yehudah's solution. If (according to the Rabbanan) there is an extra superfluous word, he maintains, then we ought rather to include an extra Chakirah (and what's more, there is a Beraisa which does indeed speak of eight Chakiros). We attempt to counter Rebbi Avahu's objection - by dismissing the possibility of an eighth Chakirah (according to the Tana of our Mishnah), because there is no Chakirah that we could possibly add to the seven Chakiros listed.

(b) We suggest that the eighth Chakirah could be the minutes in the hour, which would be possible according to Abaye in Rebbi Yehudah, or Rava in Rebbi Meir in the Sugya in Pesachim. The margin of error allowed according to ...

1. ... Abaye in Rebbi Yehudah - is half an hour.
2. ... Rava even according to Rebbi Meir - even more than that.
(c) Our refutal of Rebbi Avahu is certainly justified according to Abaye in Rebbi Meir however - who does not allow a person any margin of error at all.

(d) The possibility of Rebbi Avahu (and the Beraisa)'s eighth Chakirah exists, we conclude, in the form of which Yovel. Rav Yehudah (and our Mishnah) will disagree with this - on the grounds that it is pointless to ask this, because witnesses do not tend to hold back their testimony from one Yovel to the next.

(a) Rebbi Yossi (in our Mishnah) attempts to dismiss the Tana Kama's opinion, that the Shavu'a, the year the month and the date are mandatory questions - by pointing out the futility of asking such questions in cases where the witnesses specifically mentioned that the murder took place 'yesterday'.

(b) The Rabbanan counter this however, by pointing out, that even he would have to concede that it would be equally futile to even ask them which day, which hour, and which location (presumably, the latter two cases are 'added only for good measure'), there where the witnesses mention that it took place 'today'.

(c) The truth of the matter is however, that one would ask further even in such cases, based on a statement by Rebbi Shimon ben Elazar in 'Zeh Borer' - who obligates the Beis-Din to move the witnesses from one place to another, in an effort to confuse them, and withdraw their evidence. Likewise, the 'unnecessary' Chakiros would help to confuse them and err in their in their testimony (all part of the Mitzvah of "ve'Hitzilu ha'Eidah").

(d) In answer to the Rabbanan, Rebbi Yossi explains - that whereas it is common for witnesses to testify on what happened 'yesterday', it is not at all common for them to testify what happened 'today'.

(a) Besides asking the witnesses whether they knew the murdered man to be a Yisrael or a Nochri, and whether they had warned the accused, Beis-Din also asked them whether the latter had accepted the warning - whether he had specifically declared that he was about to act in spite of the fact that he would die for it, and whether he acted 'Toch K'dei Dibur' of the warning.

(b) In cases of Avodah-Zarah, they would ask them whether he had served Pe'or or Mar-Kulis. Then they would query them regarding how he had served, and they would specifically mention four types of worship that would implicate the accused. Slaughtering a sacrifice on behalf the idol, sacrificing it to it - pouring out a Nesech (wine) to it and prostrating oneself before it.

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