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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Sanhedrin 46



(a) Rebbi Eliezer learns from "ve'Salisa *Oso* al Eitz" - "Oso", 'be'Lo Kesuso, ve'Lo Osah be'Lo Kesusah'.

(b) The Rabbanan learn from the first half of the same Pasuk "ve'Chi Yih'yeh *be'Ish* Chet Mishpat Maves" - "be'Ish", 've'Lo be'Ishah' (that a woman is not hanged after being stoned.

(c) They decline to learn this from the second half of the Pasuk (from "Oso") - because if a woman was subject to hanging, they would agree with Rebbi Eliezer's D'rashah (from "Oso" [though it is not clear what they *do* learn from there]).

(d) We refute the suggestion that Rebbi Eliezer uses "be'Ish" to preclude a ben Sorer u'Moreh from hanging (though it is unclear why this would require a D'rashah at all) - on the basis of a Beraisa, where he specifically *includes* a ben Sorer u'Moreh in the Din of hanging.

(a) In spite of the fact that "Ish" is a 'Miy'ut' (a word that precludes) and not a 'Ribuy' (one that includes), Rebbi Eliezer uses it to include - because it is followed by another word that excludes (and we have a principle that two exclusions come to include.

(b) The second 'Miy'ut' is - "Chet" (bearing in mind that a ben Sorer u'Moreh is not killed because of his sin).

(c) A ben Sorer u'Moreh is not put to death for the sin that he performed - but for the many sins that he is bound to perform, and the bitter end that is inevitably heading for.

(a) We learned in our Mishnah that Beis-Din cannot judge two cases of Chayvei Miysah on the same day. Initially, Rav Chisda qualifies this - by confining it to where the two accused are subject to two different types of death, but not when they are both subject to the same death.

(b) Rav Ada bar Ahavah objects to this distinction, based on our very Mishnah - which queries Shimon ben Shetach's killing the eighty witches on the same day, even though they were all subject to the same death-sentence.

(c) We therefore amend Rav Chisda's statement, and confine the ruling in our Mishnah - to one type of death that was like two, inasmuch as the sinners are guilty of two different sins (even though they are subject to the same death), but does not apply when both transgressed the same sin.

(d) The case of Shimon ben Shetach is considered 'Miysah Achas Ke'ein Sh'tei Miysos' (despite the fact that they were all witches) - inasmuch as they were guilty of different branches of witchcraft (one was an Ov, and another one, a Yid'oni ... ).

(a) Rav Ada bar Ahavah asks on Rav Chisda from a Beraisa - which forbids Beis-Din even to judge a man and a woman who committed adultery, on the same day.

(b) Rav Chisda will establish this Beraisa by a bas Kohen, and 'the man' refers either to the adulterer or to the witnesses who were Mazim her Zomemin.
The punishment, in the case of a bas Kohen ...

1. ... and the adulterer (assuming they were betrothed) is - Sekilah.
2. ... and the adulterer, (assuming they were married), is - Chenek.
3. ... and the Zomemei Zomemin - is whichever of the two above punishments the adulterer would have received (see Tosfos cited in Hagahos ha'Bach).
(c) Rebbi Eliezer ben Ya'akov heard that Beis-Din 'Makin ve'Onshin' arbitrarily (even when the transgressor is not Chayav Malkos or Miysah [which is what is meant by 'Onshin']) ...

(d) ... because the current laxness that prevails demands it.

(e) To demonstrate this, he cites two examples of Beis-Din's arbitrary justice. When a man ...

1. ... rode a horse on Shabbos in the time of the Greeks - they stoned him to death (even though riding a horse on Shabbos is not a Melachah).
2. ... had relations with his wife under a fig-tree - they gave him Malkos.
(a) Our Mishnah describes the actual hanging. After sticking a beam into the ground, they hanged the dead man on it - by fixing a wooden peg into it somewhere near the top, and then hanging him by his hands, which were bound together above his head.

(b) According to Rebbi Yossi - they did not stick the beam into the ground, but leaned it against the wall. They would then hang the dead man in the air behind the board like they would hang animals to be stripped.

(c) They would not leave the body hanging at all - but took it down immediately.

(d) They would have transgressed the La'av of "Lo Salin Nivlaso" - only if they left the body hanging all night (see Sugya Amud Beis), and what's more - this La'av extends to all corpses, which may not remain unburied until the morning.

(a) Leaving the dead man hanging longer than necessary constitute a Chilul Hashem - because, it is a reminder to all who see it that someone cursed Hashem (or served idols).

(b) Rebbi Meir in our Mishnah cites Hashem who says 'Kalani me'Roshi, Kalani mi'Zero'i'. It means 'My head and My arms are heavy (as will be explained in the Sugya), and He says this - in connection with people who bring troubles upon themselves with their sins.

(c) We can extrapolate from there - that if Hashem is so perturbed with the troubles of Resha'im, who have to die, imagine how perturbed He is when Tzadikim suffer!

(d) Someone who does not bury his dead on the same day not transgress the La'av of "Lo Salin" - if his motives are in honor of the deceased person (e.g. in order to make him a coffin or to obtain shrouds).

(a) Those who were killed at the hand of Beis-Din were not buried in their ancestral burial-grounds, but - in one of two special graveyards, one for the Neheragin and the Nechenakin, the other, for the Niskalin and the Nisrafin. They were not buried in their ancestral burial-grounds - because it is incorrect to bury a Rasha among with Tzadikim.

(b) They would merit re-burial in their ancestral burial-grounds as soon as their flesh had decomposed.

(c) After the death-penalty had been carried out - the relatives would come and greet the Dayanim and the witnesses, to demonstrate that (unlike the relatives of the witches of Shimon ben Shetach) - they held nothing against them.

(d) The relatives of Chayvei Miysos Beis-Din do not mourn for them - so that this disgrace too, should work towards atoning for their sin.

(e) They *did* however, practice Aninus" - because Aninus, a negative Mitzvah which only affects the heart (as opposed to Aveilus, which comprises positive concepts), and does not therefore constitute Kavod ha'Meis.




(a) The Beraisa learns from the fact that the Pasuk writes "Chet Mishpat Maves *ve'Humas* ve'Saliso Oso ... " (and not just "Chet Mishpat Maves ve'Saliso Oso ... ") - that the condemned man is stoned first and hanged afterwards (rather than vice-versa, in the way that the Nochrim do).

(b) Beis-Din wait until shortly before Sheki'ah before concluding the Din of the accused - for fear that if they were to condemn him, put him to death earlier in the day and hang him, they would forget to take him down before nightfall.

(c) One person would hang him, and another would immediately untie his hands and take him down.

(a) Given that we already know (from one of the extra Leshonos in the Pasuk) that the beam on which the condemned man is hanged also requires burial, the Tana learns from the Pasuk "Ki Kavor" - that the hanging must take place on a detached beam of wood (which only requires burial), and not on a tree (which requires chopping-down and burial).

(b) Rebbi Yossi adds to this D'rashah - that the beam may not be stuck into the ground either, because then it requires digging out and burial.

(c) To explain why the body must be taken down immediately, Rebbi Meir gives the parable - of two like-twin brothers, one of whom became king, the other, a robber. One day, the robber was caught and hanged. However, when people confused the hanging man with the king, the king ordered him to be taken down (in our case too, man is created in the Image of G-d).

(a) When, according to Rebbi Meir, Hashem says 'Kalani me'Roshi ... ', Rava refutes Abaye's suggestion, that He means to say 'Kal Lis' ('I do not feel light in My head ... ', meaning that He feels heavy]) - because then, He should rather have said 'Kaveid Alai Roshi ... '.

(b) According to Rava, Hashem means 'Kil Li Alma' - meaning 'The world is too heavy for Me' (only Hashem said ['Kil' instead of 'Kaved'] 'be'Lashon Sagi Nahor', since what He said sounds better than what He really meant).

(c) In fact, Rebbi Meir bases his statement on the Pasuk "Ki *Kil'las* Elokim Taluy". We know that the word is not needed for itself (to teach us that a Mekalel Hashem must be hanged) - because then, the Pasuk should have said (not "Kil'las'", but) 'Mekalel'.

(d) Nevertheless, we also learn that a Mekalel (and whatever we learn from it) must be hanged - because if it came solely for the current D'rashah, then the Torah would have said 'Ki Kilas Elikim ... '. "Kil'las", with two 'Lameds', enables us to learn both D'rashos.

(a) Rebbi Yochanan in the name of Rebbi Shimon ben Yochai learns that whoever leaves his dead unburied until the morning, transgresses the La'av of "Lo Salin" - from "Kavor *Tikberenu* ... Lo Salin", which is superfluous (see Rashash).

(b) In the second Lashon, Rebbi Yochanan learns - the Mitzvah of Kevurah from there.

(c) When, in reply to Shavur Malka (King of Persia)'s request for the source of burial, Rav Chama remained silent, Rav Acha bar Ya'akov commented - that the world seemed to have been handed over to fools, because there are so many possible sources (at least, so he thought).

(d) Rav Chama in fact, did not cite as a source ...

1. ... "Kavor" - because that could refer to placing the corpse in a coffin and leaving it above ground level.
2. ... "Tikberenu" - because Shavur Malka would never accept a superfluous word as a Halachic source.
3. ... the fact that one buries Tzadikim - because that might just be a Minhag, and not a Halachah.
4. ... the fact that Hashem buried Moshe, or that Achiyah ha'Shiloni prophesied that Aviyah ben Yeravam would merit burial for negating the border-guards that he father had placed - because both of these may have merely been a matter of conforming with the Minhag.
5. ... the fact that Yirmiyah prophesied that the Resha'im would not merit burial - since he too, might have meant that they would not merit to be buried according to the Minhag (and does not prove that it is Halachah).
(a) We ask whether the purpose of burial is to avoid the disgrace of bodies lying in the open rotting and splitting open (see also Tosfos DH 'Kevurah'), or to attain atonement by being placed deep inside the earth. The ramifications of this She'eilah - occur in a case where the deceased left instructions not to bury him (which will be acceptable according to the second side of the She'eilah, but not according to the first).

(b) We refute the attempt to resolve the She'eilah from ...

1. ... Tzadikim, who surely do not require a Kaparah - by dismissing that as a myth, seeing as the Pasuk in Koheles has already taught us that "There is no Tzadik on earth who does only good and who does not sin".
2. ... the Resha'im of Yirmiyah's prophesy, which we cited earlier (who would certainly require a Kaparah if that was what was required) - because even if the reason was because of Kaparah, they did not deserve atonement. Note, it is unclear how we will explain Yirmiyah's prophecy, even if the reason for burial is because of disgrace.
(c) We also ask whether a Hesped is in honor of the Meis or of the relatives. Besides a case where the Meis, or the family, specifically asked for there not to be a eulogy, this She'eilah also has ramifications of whether we force the heirs to pay the expenses of the eulogies (the eulogizer's fees ... ) - which we certainly would if it would be in honor of the deceased.

(d) There is no proof from the fact that ...

1. ... the B'nei Cheis delayed burying Sarah until Avraham returned from the Akeidah to eulogize her, that Hesped must be Kavod ha'Meis - because even it was because of Kavod ha'Chai, Sarah would have wanted them to wait, so that Avraham would be honored through her.
2. ... Yisrael eulogised Aviyah bar Yeravam (whose entire family were total Resha'im), that Hesped must be Kavod ha'Meis - because Aviyah (who was considered a Tzadik in this regard), would have derived benefit from the fact that the other people (who were albeit Resha'im) would be honored through him, even if it was Kavod ha'Chaiyim.
(a) According to what we just explained, even assuming that Hesped is Kavod ha'Chayim, they did not also eulogise the Resha'im in the time of Yirmiyahu, to give pleasure to the Tzadikim - because Tzadikim derive no benefit through the Resha'im.

(b) Yirmiyah told Tzidkiyah that he would die in peace ... and that they would eulogise him 'Hoy Adon' - a proof that Hesped must be Kavod ha'Meis, because if it was Kavod ha'Chayim, what was the point of telling Tzidkiyah about it?

(c) We repudiate this proof - because what the Navi was telling him was that Yisrael were destined to show him honor, in the same way as they showed his ancestors honor.

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