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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Sanhedrin 86



(a) When the Beraisa-expert cited the above Beraisa 'Mochro le'Aviv ... Chayav', Rav Sheishes objected - on the basis of a Beraisa (which he taught), where, based on "me'Echav", Rebbi Shimon precludes someone who kidnapped his father ('ad she'Yo'tzi'enu me'Reshus Echav').

(b) So he amends the Beraisa to read - 'Patur'.

(c) We are all conversant with Rebbi Yochanan's statement 'S'tam Masnisin Rebbi Meir. He continues 'S'tam Tosefta Rebbi Nechemyah, S'tam Sifra - Rebbi Yehudah'.

(d) S'tam Sifri (the Medrash on Bamidbar and Devarim) is Rebbi Shimon - 'Sifra' is the name of the Medrash on Vayikra.

(a) The Rebbe of all the above-mentioned Tana'im was -Rebbi Akiva.

(b) Rav Sheishes could not have answered the above discrepancy by establishing the Beraisa (discussing "Ki Yimatzei Ish Gonev Nefesh me'Echav") like the Rabbanan of Rebbi Shimon - since it is a Sifri, and as we just learned, 'S'tam Sifri, Rebbi Shimon'.

(a) The Rabbanan in our Mishnah exempt a father who kidnaps his son. Rav Papa objects by citing the Pasuk "Ki Yimatzei Ish Shochev im Ishah Be'ulas Ba'al". Because, he argues, by the same token, we ought also to declare Patur someone who commits adultery with a married woman whose company he constantly shares.

(b) When he said 'K'gon Beis Peloni di'Shechichan Gabaihu', he meant - that here was an example of such a case, because it was a house where a number of couples lived together in the same house. And he declined to mention their name - since it was a well-known family, and he did not want to get into trouble by announcing their it (see also Rashash).

(c) Abaye conceded that Rap Papa was right - and that he had really meant to quote the Pasuk there "ve'Nimtza be'Yado" (which he derived not from the inference, but because it is superfluous).

(d) Rava extrapolates from here - that by the same token, a Rebbe who kidnaps Talmidim with whom he is learning Chumash or Mishnah is Patur.

(a) Rebbi Yehudah extrapolates from the Pasuk "Ki Yinatzu Anashim Yachdav Ish ve'Achiv" that 'Ein la'Avadim Boshes' - because the Torah would not refer to an Eved as 'Achiv'.

(b) The Pasuk is referring to a case - where Reuven and Shimon are fighting, and Reuven's wife, in an attempt to assist her husband, grabs Shimon in an indecent way.

(c) The Rabbanan refute Rebbi Yehudah's proof - by rather Darshening 'Achiv Hu be'Mitzvos', thereby including an Eved rather than precluding him.

(a) With regard to the Parshah of kidnapping, Rebbi Yehudah (in our Mishnah) Darshens ...
1. ... "me'Echav" - to preclude an Eved.
2. ... "mi'B'nei Yisrael" - to preclude a Chatzi Eved va'Chatzi ben-Chorin, effectively including the latter, due to the principle 'Ein Miy'ut Achar Miy'ut Ela Le'rabos'.
(b) The Rabbanan disagree with Rebbi Yehudah's D'rashah from "me'Echav" - seeing as they consider an Eved is a brother regarding Mitzvos.

(c) And they consequently Darshen - two D'rashos from the word "mi'B'nei" (one from "B'nei", the other, from the 'Mem') which is superfluous, one to preclude an Eved, and the other, to preclude someone who is a Chatzi Eved and a Chatzi ben-Chorin.

(a) Rebbi Yashiyah learns the Azharah for Gonev Nefashos from "Lo Signov" (Yisro), and Rebbi Yochanan, from "Lo Yimachru Mimkeres Aved" (Behar). In fact - they do not argue, only each one states the Azharah for one of the parts of the La'av.

(b) The Beraisa's basis for interpreting ...

1. ... "Lo Tignov" in the Asares ha'Dibros as an Azharah for Gonev Nefashos and not for Gonev Mamon is - the principle 'Davar ha'Lameid me'Inyano', and the previous two cases mentioned there ("Lo Tirtzach" and "Lo Tin'af") are both Chayav Miysas Beis-Din (like Gonev Nefashos, whereas Gonev Mamon is not).
2. ... "Lo Tignovu" in Kedoshim as an Azharah for Gonev Mamon and not for Gonev Nefashos is - also for the that reason, seeing as the previous case there is "Lo Sa'ashok es Re'acha", which, like Gonev Mamon, is not Chayav Miysas Beis-Din (whereas Gonev Nefashos is).
(a) Chizkiyah absolves both the Eidei Geneivah and the Eidei Mechirah (by Gonev Nefashos) from the Din of Zomemin, because he holds like Rebbi Akiva, who based on the Pasuk "al-Pi Shenayim Eidim Yakum Davar" - rules 'Davar ve'Lo Chatzi Davar'.

(b) Chizkiyah applies the same principle to Gonev Nefashos - inasmuch as the kidnapper is Chayav neither for the Geneivah alone nor for the Mechirah.

(c) This Halachah will affect the Din of the kidnapper himself - inasmuch as so long as the witnesses cannot become Zomemin, the sinner cannot be punished either, because of the principle 'Eidus she'I Atah Yachol Le'hazimah Lo Havi Eidus' (witnesses who cannot become Zomemin, are not Kasher witnesses).

(d) According to Chizkiyah, how is it possible for a kidnapper to receive the death sentence?




(a) Rebbi Yochanan holds like the Rabbanan - who say 'Davar va'Afilu Chatzi Davar'.

(b) Chizkiyah agrees that the latter pair of witnesses in the case of a ben Sorer u'Moreh can became Zomemin - because the first pair (unlike the first pair of witnesses by a kidnapper, whose testimony is only useful when it combines with that of the second pair) can say that they came to subject the boy to Malkus.

(c) According to Rebbi Yochanan, witnesses who testified that Reuven kidnapped Shimon, are subject to Miysah should they become Zomemin - if for example, the Eidei Mechirah turn up and the Beis-Din sentence the kidnapper to death before the Hazamah of the Eidei Geneivah.

(a) Chizkiyah and Rebbi Yochanan argue over whether Eidei Geneivah alone are subject to Malkos (for "Lo Signov"). Chizkiyah must be the one who holds 'Lokin' - because according to Rebbi Yochanan, they are subject to Miysah, as we just explained, and based on the principle 'La'av she'Nitan le'Azharas Miysas Beis-Din Ein Lokin Alav', they cannot therefore receive Malkos ...

(b) ... even if the Eidei Mechirah do not turn up.

(c) Even though it is the kidnapper who is exempt from Malkos, seeing as he is subject to Miysah - it stands to reason that, seeing as the Chiyuv of the Zomemin is determined by "Ka'asher Zamam ... ", wherever the sinner himself is Patur, the witnesses are Patur too (apart from one or two exceptions).

(d) The witnesses are not Chayav Malkos for "Lo Sa'aneh", because (although 'Lo Sa'aneh' on the one hand, serves as the Azharah for whatever punishment 'Ka'asher Zamam' would have resulted in) - it is not Mechayav Malkus in its own right, since it is a La'av she'Ein Bo Ma'aseh.

(e) The Kashya this prompts Rav Papa to ask on Chizkiyah himself, who just described the very same Eidei Geneivah as 'Chatzi Davar' is - why then, the Eidei Mechirah should not be Chayav Miysah, seeing as the Eidei Geneivah can claim that they came to be Mechayev the kidnapper Malkos (like he said by the second pair of witnesses of a ben Sorer u'Moreh)?

(a) So Rav Papa shifts the Machlokes to the other foot. Both parties agree - that the Eidei Mechirah alone are Chayav Miysah (in the event that the kidnapper is found guilty and sentenced before they become Zomemin).

(b) According to Chizkiyah however, the Eidei Geneivah are not subject to Miysah - because the Geneivah is a separate entity, for which the kidnapper receives Malkos (much like the first witnesses of a ben Sorer u'Moreh [and his Chiyuv Miysah comes for the Mechirah alone])

(c) Rebbi Yochanan on the other hand, holds that the Geneivah is the first stage of the sale, and it is for the combination of the two that the kidnapper is sentenced to death. Consequently, there is no Malkos (since it is a 'La'av she'Nitan le'Azharas Miysas Beis-Din).

(d) And the one who concedes by ben Sorer u'Moreh is - Rebbi Yochanan, who agrees that his first witnesses are not subject to Miysah, because they can say that they came to sentence him to Malkos.

(a) Abaye made three statement. When he said ...
1. ... everybody agrees by ben Sorer u'Moreh (with regard to the first witnesses), he was referring to - the ruling that they are not Chayav Miysah, because they can say that they came in order to sentence the boy to Malkos.
2. ... everybody agrees by ben Sorer u'Moreh (with regard to the last witnesses), he was referring to - the ruling that they are Chayav Miysah, since the first witnesses can say that they came to sentence the boy to Malkos.
3. ... there is a Machlokes by ben Sorer u'Moreh, he was referring to - where one pair of witnesses testified that the boy stole money to buy meat and wine, and a second pair testified that he ate and drank what he purchased in somebody else's domain. He will be Patur according to Rebbi Chizkiyah, (like Rebbi Akiva), and Chayav, according to Rebbi Yochanan (like the Rabbanan).
(b) The reason Rav Asi gives for his ruling 'Eidei Mechirah be'Nefesh she'Huzmu Ein Neheragin' is - because, as long as there are no Eidei Geneivah, he can always say that the person that he sold was his own Eved.

(c) Abaye refutes Rav Yosef, who establishes Rav Asi like Rebbi Akiva (who in turn says 'Davar ve'Lo Chatzi Davar') - because that does not tally with the reason that he gave.

(a) So Abaye establishes Rav Asi - even like the Rabbanan, and he speaks in a case when no Eidei Geneivah at all came to testify.

(b) Bearing in mind that this would be no Chidush, Abaye re-establishes the case when Eidei Geneivah did eventually arrive, only after the Eidei Mechirah had testified (which means that when they did, the Din could not have been concluded, in which case, they could not become Zomemin).

(c) Considering that this too is obvious, he finally adds that although the Eidei Geneivah had not yet testified, they had been in the court-room, signaling to each other, and the Chidush is - that signalling has no Halachic significance (as long as they have not testified in Beis-Din).

(a) Our Mishnah learns from the Pasuk "Ki Yipalei Mimcha Davar *la'Mishpat*" - that a Zaken Mamrei is confined to one who argues with the Beis-Din's rulings (and not just in theory).

(b) The first of the three Batei-Din in the vicinity of the Beis-Hamikdash sat at the entrance of the Har ha'Bayis (within the Chil, in front of the entrance to the Ezras Nashim). The other two sat - at the entrance to the Ezras Yisrael and in the Lishkas ha'Gazis respectively.

(c) A Zaken Mamrei - would proceed to the first Beis-Din together with the Beis-Din with which he had disagreed. There he would present his argument and theirs. If they had heard the ruling of the relevant Halachah, they would inform them, thereby ending the conflict. If not, they would proceed to the second Beis-Din ... and if necessary, to the Beis-Din ha'Gadol.

(d) The Mishnah describes the Beis-Din ha'Gadol that sat in the Lishkas ha'Gazis - as the one from which Hora'ah emanated to the whole of Yisrael.

(a) The distinction that the Mishnah draws between the first two Batei-Din and the Sanhedrin ha'Gadol - is that whereas the latter were only permitted to say what they heard, the former were permitted to rule from their own S'vara.

(b) The Mishnah learns from the Pasuk "ve'ha'Ish Asher *Ya'aseh* be'Zadon" - that the Zaken Mamrei is only Chayav if he returns to his home-town and (not only continues to insist that he is right, but) actually issues rulings to that effect.

(c) The Tana finally rules that a Talmid who behaved like a Zaken Mamrei - is Patur.

(d) 'Nimtzo Chumro Kulo' means - that the stringency concerning his lower status of a Talmid, serves as a leniency to save him from the death-sentence.

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