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Sanhedrin 41



(a) Ula learns from the Pasuk "ve'Ish Asher Yikach es Achoso ve'Ra'ah es Ervasah" - that the accused requires warning. Otherwise, since when does a voyeur receive Kares?

(b) Since Kares (in which context this Pasuk is written) does not require a warning - we establish the Pasuk by Malkos (which every Chiyuv Kares is subject to anyway).

(c) de'Bei Chizkiyah learns the obligation to warn from the Pasuk "ve'Chi Yazid Ish al Re'ehu Le'horgo be'Ormah" - which implies warning because "Yazid" is written in the future (meaning that he remains a Meizid, even after having been warned), or because how would we otherwise know that he was not a Shogeg?

(d) And de'Bei Rebbi Yishmael learns it from "ha'Motz'im Osos Mekoshesh Eitzim" (written in the present tense). Tana de'Bei Rebbi learns it from the Pasuk "al-D'var Asher Inah es Eishes Re'eihu" - seeing as "al-D'var" always applies to words rather than actions.

(a) The Tana needed to find a source for warning in the case of murder (de'Bei Chizkiyah), even though we already have one in the case of raping a sister, because we cannot learn warning (which is a leniency) with regard to death the sword from a case of Malkos (which is more lenient). We nevertheless need the Pasuk by the Mekoshesh (de'Bei Rebbi Yishmael) - because, by the same token, we cannot learn Sekilah from Hereg.

(b) In spite of the fact that the punishment of a Na'arah Me'urasah is Sekilah, the Torah adds another source for warning by Na'arah Me'urasah (Tana de'Bei Rebbi), according to ...

1. ... Rebbi Shimon (whom we quoted earlier) - as a source for warning by Sereifah (which is more stringent than Sekilah, as we have already learned.
2. ... the Rabbanan - based on the principle 'Milsa de'Asya be'Kal va'Chomer, Tarach ve'Kasav Bah K'ra'.
(c) Rava (or Chizkiyah) learn from the Pasuk (in connection with the witnesses warning) "Yumas ha'Meis" - that not only must the accused accept the warning, but that he must also declare that he is aware of the fact that he is subject to the death-sentence.
(a) Rav Chanan exempts the witnesses of a Na'arah Me'urasah, whom they claimed, committed adultery, and who became Zomemin, from the death-penalty - because they can claim that their testimony was intended to forbid her on her Chasan (and not at sentencing her to death).

(b) The problem we initially have with this is - the fact that when they warned her, the witnesses must have warned her that she faced the death-sentence, so how can they claim otherwise.

(c) Despite our suggestion that he is speaking when the witnesses did not in fact, warn the woman, it is possible for her to be sentenced to death - if she is an Ishah Chaverah (a learned woman, or the wife of Talmid-Chacham), according to Rebbi Yossi b'Rebbi Yehudah, who holds that an Ishah Chaverah does not require warning.

(d) Rebbi Yossi b'Rebbi Yehudah's reasoning - is based on his premise that the purpose of warning is purely to distinguish between Shogeg and Meizid, which is unnecessary in the case of a person who, in the eyes of the witnesses, is acting be'Meizid anyway (see also Tosfos DH 'be'Ishah Chaverah').

(e) We still query Rav Chanan however, on the grounds that according to Rav Chanan, the woman ought not to be Chayav Miysah either - because of the principle 'Eidus she'I Atah Yachol le'Hazimah Lo Sh'mah Eidus'.

(a) So we conclude according to Rav Chanan - that neither the witnesses nor the woman are subject to the death-penalty in the above case according to Rebbi Yossi b'Rebbi Yehudah ...

(b) ... and it is only in a case - where she is committing adultery for the second time (since she already became forbidden to her husband the first time) that she can become subject to the death-sentence.

(c) Neither can the witnesses now claim that they came to forbid her on the adulterer (with the same ramifications as our original Kashya) - because he is speaking about a case where it is either the same adulterer both times, or when the second adulterer was a close relative who was forbidden to her anyway.

(d) Rav Chanan mentions specifically a Na'arah ha'Me'urasah (not because the Din would be any different in the case of a married woman, but) - to teach us that even in such case where they are not yet living together, yet the witnesses are believed when they claim that it was their sole intention to forbid her to him.

(a) Rav Chisda maintains that - although a discrepancy regarding the murder weapon is considered a discrepancy, a discrepancy regarding the color clothes the murderer is not, since the clothes that the murderer wears at the time of the crime, will not affect the verdict one way of the other.

(b) Consequently, Rav Chisda will establish the Beraisa which considers a discrepancy ...

1. ... a difference of opinion in the color clothes the murderer was wearing no less "Eino Nachon" than a discrepancy in the murder weapon - not by ordinary clothes, but by a Sudar (a head-cloth) for example, which the murderer used to strangle his victim.
2. ... a difference of opinion in the color shoes the murderer was wearing as "Eino Nachon" - when he kicked the victim and killed him with his shoes.
(c) Rami bar Chama initially explain our Mishnah, where ben Zakai questioned the witnesses with regard to the fig-stalks on the fig-tree - by establishing it when the accused picked some of those figs on Shabbos.

(d) We reject this answer however from the Lashon of the Beraisa 'Tachas Te'einah Hargo'. So Rami bar Chama tries to establish the case - when the murderer burned the victim with a branch from the fig-tree under the murder took place.

(a) We reject Rami bar Chama's second explanation too, from another Beraisa, which cites ben Zakai as having asked the witnesses "Te'einah Zu ... Te'einim Shechoros, Te'einim Levanos' - and if 'Eino Nachon' is confined to the murder weapon, it is not feasible to kill someone with figs.

(b) Rav Yosef finally reconciles Rav Chisda's ruling with our Mishnah by establishing ben Zakai as a minority opinion (whereas he holds like the Chachamim). In his opinion - ben Zakai is particularly stringent with regard to Bedikos, to which he attributes the stringency of Chakiros.

(c) Raban Yochanan ben Zakai lived - a hundred and twenty years, of which he spent forty years as a businessman, forty years as a Talmid and forty, he taught.

(d) The Beraisa explains how - forty years before the Churban Bayis Sheini, the Sanhedrin left the Lishkas ha'Gazis and sat in Chanus (an area somewhere in Yerushalayim).

(a) We reject the suggestion (initially at least), that ben Zakai is synonymous with Raban Yochanan ben Zakai - because Raban Yochanan, who lived to the age of a hundred and twenty years, and seeing as he only taught Torah during the last forty years of his life, some of which at least, coincided with after the Churban (as the Mishnah in Rosh Hashanah specifically states), he could not have sat on the Sanhedrin, which stopped ruling Diynei Nefashos forty years before the Churban.

(b) We learn from the Pasuk "ve'Kamta ve'Alisa" that the Sanhedrin ha'Gedolah were only fully effective as long as they sat in the Beis-Hamikdash. This ruling affects -Diynei Nefashos, but not Diynei K'nasos, which do not require the Lishkas ha'Gazis.

(c) What leads us ....

1. ... to believe that this ben Zakai is not Raban Yochanan ben Zakai the Nasi - is the fact that the Mishnah refers to him as ben Zakai.
2. ... to conclude that they must be one and the same is - the fact that, on the other hand, the Beraisa refers to him as Raban Yochanan ben Zakai.
(d) Our Mishnah refers to him as ben Zakai - because the Mishnah was learned at the time that he presented the Halachah before the Sanhedrin, when he was a Talmid; whereas the Beraisa refers to him as Raban Yochanan ben Zakai - because it was learned later, when he was already a full-fledged member of the Sanhedrin.



(a) When we ask on our Mishnah (with regard to the Bedikos) 'Afilu Shenayim Omrim Eini Yode'a', 'Mai Afilu', we mean to ask - that having taught that one of the witnesses does not become disqualified by not knowing the answer to one or more of the Bedikos, then why add 'Afilu Shenayim' (since there is not the least reason to differentiate between one and two witnesses in this regard).

(b) Rav Sheishes therefore amends the Tana's statement and links it to the Chakiros in the Reisha, The Tana is speaking when there are three witnesses, and the statement now reads - 'ba'Chakiros, Afilu Shenayim Omrim Yada'nu ve'Echad Omer Eini Yode'a, Eidusan Beteilah'.

(c) And when he establishes our Mishnah like Rebbi Akiva, he is referring to the Mishnah in Makos, where Rebbi Akiva disqualifies all three witnesses, when only one of them says 'Eini Yode'a' - because he compares three witnesses to two (and two witnesses can only become Zomemin if both of them are declared Zomemin). Consequently, since the third witness cannot become an Eid Zomem, neither can the others, in which case their testimony is Bateil because it is 'Eidus she'I Atah Yachol Le'hazimah'.

(d) In fact, this is the specific opinion of Rebbi Shimon, only Rebbi Akiva, who learns something else from the comparison between three witnesses and two, agrees with Rebbi Shimon. The reason that Rav Sheishes establishes our Mishnah like Rebbi Akiva rather than like Rebbi Shimon - is because of the principle that the majority of S'tam Mishnayos and Beraisos go like Rebbi Akiva.

(a) Rava argues with Rav Sheishes on the grounds that the Tana says 'Eidusan Kayemes' and not 'Eidusan Beteilah'. According to him, the Mishnah is coming to teach us - that although if one witness says 'Eini Yode'a' by Chakiros, the entire testimony is Pasul, nevertheless, there are times when it is Kasher, namely, when there are three witnesses, and the tesrimony of the other two remains intact.

(b) In that case, the author of our Mishnah will be - the Chachamim who argue with Rebbi Akiva.

(a) When Rami bar Chama met Rav Kahana and Rav Safra, they had been learning Sanhedrin - by Rabah.

(b) When Rami bar Chama asked them that, seeing as Bedikos and Chakiros are both min ha'Torah, why is the entire testimony is disqualified should one of the witnesses say 'Eini Yode'a' by one of the Chakiros, whereas by one of the Bedikos, it is not?, they replied that it is disqualified by Chakiros - because it becomes an Eidus she'I Atah Yachol le'Ha'azimah', which is not the case by Bedikos.

(c) Rami bar Chama commented that although Rav Kahana and Rav Safra claimed to have learned only P'shat, they were conversant with the deeper meaning too. To which they responded - that it was only out of the goodness of Rami bar Chama's heart and his modesty that he said that, and that had he wanted to attack their words, they would not have known what to say.

(a) We learned in our Mishnah that a discrepancy of one day at the beginning of the month is acceptable, since we assume one of them to have been unaware of the fact that the previous month had been pronounced a full month. Rebbi Acha bar Chanina Amar Rebbi Asi Amar Rebbi Yochanan gives them only - until the majority of the month has passed to allow for this error.

(b) Rava attempts to prove this from the Mishnah itself which does not allow a discrepancy of two days - presumably, he says, because once half the month has passed, we no longer allow the witnesses any discrepancy for the current month, in which case there can never be a discrepancy of two days.

(c) We refute Rava's proof however, on the basis of the theory - that although we will accept the witness' claim that he did not hear the sound of the Shofar which Beis-Din would blow each month when they announced Rosh-Chodesh, he is unlikely to have missed it twice.

(a) Rebbi Acha bar Chanina Amar Rebbi Asi Amar Rebbi Yochanan also gives the final time to say 'Kidush Levanah' as - when the missing section of the moon is filled in.

(b) Rebbi Ya'akov bar Idi Amar Rav Yehudah explains this to mean until seven days. According to the Neherda'i - it is until the sixteenth of the month.

(c) In fact, we conclude, both opinions hold like Rebbi Yochanan, only Rav Yehudah holds 'Ki Yisra', whereas the Neherda'i hold 'Ki Nafya'.

1. 'Ki Yisra' refers - 'like the string of the bow', meaning that, comparing the moon to a bow, one has up to the time when the section of the moon up to where the string of the bow would normally be (the equivalent of half the bow) to recite Kidush Levanah.
2. 'Ki Nafya' means - like a sieve (which is round like the moon), meaning until the moon is full in the middle of the month.
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