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Sanhedrin 88

SANHEDRIN 88 (3 Teves) - dedicated l'Iluy Nishmas Rebbetzin Sarah Gustman (wife of Hagaon Rav Yisroel Zev Gustman and daughter of Hagaon Rav Meir Bassin of Vilna) on the day of her Yahrzeit, by two of Rav Gustman's Talmidim, Rav Hillel Ruvel and Rav Avraham Feldman.



(a) "Divrei", 'Eilu ha'Erchin, ha'Charamim ve'ha'Hekdeishos'. The Machlokes by Erchin revolves around a Machlokes between Rebbi Meir and the Rabbanan. Rebbi Meir rules that if Reuven promises to give the Erech of a baby less than one month old - he is obligated to pay Hekdesh his regular value (Damav), because of the principle 'Ein Adam Motzi Devarav le'Vatalah'.

(b) Assuming that the Gizbar of Hekdesh claimed the money from Reuven, this would involve a Chiyuv Kareis - if someone then used the money to betroth a woman, she would not be Mekudeshes (according to Rebbi Meir [unless he was aware that the money was Hekdesh]), but who would be Mekudeshes according to the Rabbanan, rendering anyone who subsequently married her, Chayav Kareis.

(c) It might also involve a Chiyuv Kareis - if the person who used it subsequently purchased an Asham Me'ilos for having used Hekdesh, which would be a valid Asham according to Rebbi Meir (to be Mechayev Kareis anyone who ate from it be'Tum'ah), but not according to the Rabbanan ...

(d) ... since the animal will be Chulin ba'Azarah (irrespective of his intentions), for which there is no Chiyuv Kareis.

(a) The Machlokes by Charamim is that of Rebbi Yehudah ben Beseira and the Rabbanan. Rebbi Yehudah ben Beseira learns from the Pasuk "Kol Cherem be'Yisrael Kodesh Kodshim Hu la'Hashem" - that 'S'tam Charamim le'Bedek ha'Bayis' (and are therefore subject to Me'ilah).

(b) The Rabbanan hold - 'S'tam Charamim le'Kohanim' (in which case there is no Me'ilah).

(c) They explain the Pasuk in Bechukosai to mean - that Cherem takes effect even on Kodshei Kodshim and on Kodshim Kalim.

(d) This case involves Kareis and Chatas - according to the Rabbanan (in the way that we explained by Erchin), but not according to the Rabbanan.

(a) And the Machlokes by Hekdeishos is based on that of Rebbi Eliezer ben Ya'akov and the Rabbanan (that we discussed in the first Perek). Rebbi Eliezer ben Ya'akov rules - that even assessing a golden fork of Hekdesh requires ten people ...

(b) ... whereas according to the Rabbanan - only Hekdesh Karka requires ten assessors.

(c) Kareis and Chatas will apply to this case - if less than ten people assessed Metaltelin of Hekdesh, which is not Hekdesh according to Rebbi Eliezer ben Ya'akov, and is therefore subject to Kareis in the way that we explained by Erchin, but not according to the Rabbanan (according to whom it is Hekdesh).

(a) "Rivos" 'Zeh Hashka'as Sotah, va'Arifas Eglah ve'Taharos Metzora'. The Machlokes by Hashka'as Sotah is that of Rebbi Eliezer and Rebbi Yehoshua, in the Mishnah in Sotah. According to Rebbi Eliezer, the Kinuy (husband's warning) requires two witnesses, the S'tirah (the seclusion with another man), one, or even the husband himself. Rebbi Yehoshua - requires two witnesses for the S'tirah as well.

(b) The monetary ramifications of this Machlokes - concern the woman's Kesuvah, which, assuming there was only one witness for the S'tirah, she will lose should she refuse to drink the water (in the Beis ha'Mikdash) according to Rebbi Eliezer, but not according to Rebbi Yehoshua.

(c) This will involve Kareis and a Korban Chatas in the event that she sells her Kesuvah, and the purchaser seizes it from her husband. Should he then betroth a woman with the Kesuvah, she is betrothed to him according to Rebbi Yehoshua, but not according to Rebbi Eliezer, with the obvious ramifications of Kareis that we have already discussed.

(d) The basis of the Machlokes by 'Arifas Eglah' is another Mishnah in Sotah. According to Rebbi Eliezer, they would measure the distance to the nearest town from the murdered man's navel, and according to Rebbi Akiva, from his nose. Whereas Rebbi Eliezer ben Ya'akov holds - that they measure from his neck (from which he generally becomes a Chalal).

(e) This will lead to a Chiyuv Kareis and Chatas - if for example, the Zaken measured from his navel and the Beis-Din from his nose, and they each brought a calf. If two people then betrothed a woman with the two calves, the Kidushin of each would be valid according to the one opinion, but not according to the other.

(a) A Mishnah in Nigmar ha'Din serves as the source of the Machlokes regarding 'Taharas Metzora'. The Tana Kama holds that if the Metzora has no right thumb or big toe (on which to place the blood of the Asham), he can never become Tahor, whereas according to Rebbi Eliezer, the Kohen places it on the spot where they ought to have been. Rebbi Shimon says - that if the Metzora has no right thumb or big toe, then they place the blood on his left right thumb or big toe.

(b) And this Machlokes will lead to Kareis and a Chatas - if for example, the Kohen places the blood on the Metzora's left thumb ... like Rebbi Shimon, and the latter subsequently enters the Beis-Hamikdash or eats Kodesh, in which case he will be Chayav Kareis according to the Rabbanan.

(a) "bi'She'arecha", 'Zeh Leket, Shikchah u'Pe'ah'.= The first two revolve around a Machlokes Tana'im in a Mishnah in Pe'ah, where the Tana Kama considers two grains Leket and two sheaves, Shikchah, whereas three remain the owner's. According to Beis Shamai in both cases - three is still considered Leket and Shikchah, and it is only four that still belongs to the owner,

(b) The Machlokes by Pe'ah is based on a Machlokes in another Mishnah there, where the Tana Kama permits the owner to separate Pe'ah even from the sheaves, from the pile, and even after Miru'ach (the flattening of the pile), if need be. Before separating Pe'ah, the owner must be careful to separate Ma'asros?

(c) Rebbi Yishmael adds - that the owner can separate Pe'ah even after it has been into a dough - despite the fact that the owner acquires the dough with Shinuy Ma'aseh (the Chachamim's reason for disagreeing).

(d) Should the Ani seize the dough as Pe'ah or take three grains as Leket and Shikchah and the owner take it back from him and then betroth a woman (see Maharsha), the woman will be Mekudeshes, according to the Rabbanan of Rebbi Yishmael and Beis Hillel respectively (but not according to Rebbi Yishmael and Beis Shamai, due to the principle 'he'Mekadesh be'Gezel Einah Mekudeshes).

(a) According to Rav Kahana, the Zaken Mamrei is not Chayav Miysah if both he and the Beis-Din say that they received their respective rulings from their Rebbes, or if they both said it from a 'S'vara'. He is only Chayav, he says - if the Zaken Mamrei states his opinion from a S'vara, and the Beis-Din, from their Rebbes.

(b) And he proves this from Akavya ben Mahalalel - who instructed his son before he died, to retract from the four rulings in which he disagreed with the Chachamim in the Lishkas ha'Gazis.

(c) He himself did not retract, he told his son - because he, like the Chachamim, had heard the rulings from his Rebbes (unlike his son, who had heard it from him, who was only a Yachid).

(d) We prove from here - that even if both he and the Beis-Din received their respective rulings from their Rebbes, he is not sentenced to death.

(a) Rebbi Elazar disagrees. In his opinion - the Zaken Mamrei is sentenced to death in all cases, in order to minimize Machlokes in Yisrael ...

(b) ... and the reason that they did not sentence Akavya ben Mahalalel to death, according to him - was because he only argued with the Chachamim in theory, but did not issue rulings to conform with his theories.

(c) Initially, we establish our Mishnah 'Kach Darashti ve'Kach Darshu Chaverai, Kach Limadti ve'Kach Limdu Chaverai' - like the last case, where he quoted his Rebbes and they ruled from a S'vara, a Kashya on Rav Kahana.

(d) We finally establish our Mishnah - in the opposite case, when he ruled from a S'vara and they quoted their Rebbes, to conform with Rav Kahana.

(a) Rebbi Yashiyah in a Beraisa quotes three things that he heard from Zeiri of Yerushalayim. He said that ...
1. ... a husband cannot be Mochel (forego) the Kinuy of his Sotah wife, but that ...
2. ... the parents of a ben Sorer u'Moreh can be Mochel their son (even after he has already received Malkos) and that Beis-Din can be Mochel a Zaken Mamrei.
(b) His colleagues in the south disagreed - with the latter ruling however. They deny Beis-Din the right to be Mochel a Zaken Mamrei 'in order to minimize Machlokes in Yisrael'.

(c) The reason of the Rabbanan in the Beraisa - indicates that the Zaken Mamrei is sentenced to death in all cases, like Rebbi Elazar, leaving us with a Kashya on Rav Kahana.




(a) The advantage enjoyed by the generations until Beis Shamai and Beis Hillel over subsequent generations was - the fact that the were free of Machlokes (in Halachah).

(b) This was ensured - by means of the various Sanhedriyos that we discussed in the Mishnah, which encouraged any doubts to pass from the Sanhedrin of one town to the Sanhedrin of the nearest town ... to that of the entrance to the Har ha'Bayis ... to that of the Azarah ... to the Beis-Din ha'Gadol.

(c) Besides the Beis-Din of his town - the Beis-Din which sat at the entrance to the Azarah accompanied the Zaken Mamrei to the Beis-ha'Din ha'Gadol.

(d) In the event that they had not heard it from their Rebbes, the Beis-Din ha'Gadol would decide the Halachah - by taking a vote based on their own S'varos, and follow the majority?

(a) The Beis-ha'Gadol would convene each day - from the time of the Korban Tamis shel Shachar until that of the Korban Tamid shel Bein ha'Arbayim.

(b) On Shabbos and Yom-Tov - they would relocate to the Chil.

(c) Besides the possible reason that there were a lot of visitors then and it would have been squashed in the Lishkas ha'Gazis, they might have changed their location on those days - to convey the message that they were not actually judging (since Chazal forbade judging on Shabbos and Yom-Tov).

(d) What caused the increase in Machlokes among Talmidei-Chachamim - was caused by the Talmidim of Beis Shamai and Beis Hillel not serving their Rebbes (incorporating learning from them) with sufficient diligence). 'Two Toros' (an off-shoot of those Machlokos) means - that some said 'Chayav', and others 'Patur', some said 'Asur', and others said 'Mutar' ... (i.e. their rulings were no longer unanimous).

(a) The Beis-Din ha'Gadol would appoint the members of Sanhedriyos, even in the towns.

(b) The quality, besides wisdom and humility, candidates for that post required was - to be well-liked by the people.

(c) The procedure regarding the appointment to the Beis-Din of Har ha'Bayis, of the Azarah and of the Lishkas ha'Gazis - would follow the death of a member of one of them, following which the Sanhedrin ha'Gadol, would appoint someone from the Beis-Din immediately below that one, to take his place (and a new Dayan from the lower-Beis Din, to fill his ... .

(a) They pointed out Rav Ula bar Aba in Eretz Yisrael - as being a ben Olam ha'Ba.

(b) Besides constantly learning, he was also 'Lo Machzik Tivusa le'Nafsheih', meaning - that he thought that he owed Hashem more than Hashem owed him.

(c) He also possessed the qualities of internal and external humility.

(a) The Beraisa requires either that the Zaken Mamrei puts his theories into practice or that others do. The problem with the first possibility is - that seeing as he goes on to perform a Chiyuv Miysas Beis-Din, he would be Chayav even if he were not a Zaken Mamrei?

(b) There would be no problem if the sin that the Zaken ruled and perpetrated was Cheilev or blood - since these are not subject to Miysas Beis-Din (only Kareis).

(c) We query the suggestion that had he not been a Zaken Mamrei, he would have required a warning, which is not now necessary - from a case of a Meisis (which is not precluded from our Mishnah and) for which he would be Chayav Miysah anyway (like we just asked).

(d) We finally answer the Kashya - by pointing out that, since he went against the explicit ruling of Beis-Din, he is denied the right to present any arguments in his own favor, something which he would have been able to do had he not been a Zakein Mamrei.

(a) Our Mishnah goes on to explain its statement 'Chomer be'Divrei Sofrim (i.e. what the Chachamim extrapolate from the Pasuk) - inasmuch as if he teaches that there is no such thing as Tefilin, he is Patur; and that he is only Chayav if he teaches that there are five Parshiyos instead of four.

(b) The two details that Rebbi Alazar Amar Rebbi Oshaya adds to 'Ikro mi'Divrei Torah, u'Pirusho mi'Divrei Sofrim' are - that it is possible to add to the Mitzvah, and that, if he does, it is as if had subtracted (because the addition invalidates the rest).

(c) The only possible case is that of Tefilin according to Rebbi Yehudah - who stated above 'ad de'Ika Torah ve'Yorucha' (as opposed to Rebbi Meir ['Zedono Kareis ve'Shigegaso Chatas'] and Rebbi Shimon ['Afilu Dikduk Echad mi'Divrei Sofrim']).

(d) He cannot be referring to Rebbi Yehudah in Menachos, who says 'Tzarich Le'hadbik (to stick together the Parshiyos of the shel Yad, in the event that one wrote the four Parshiyos on different pieces of parchment instead of one) - because our Mishnah, which mentions "Totafos", is clearly speaking about the shel Rosh (and not the shel Yad), and this is corroborated by the Sugya which refers to four Batim (compartments), which can only refer to the shel Rosh.

(a) We query Rebbi Elazar's statement that the four requirements of Rebbi Yehudah pertain exclusively to Tefilin with the Kashya 've'ha'Ika Lulav (if one added a fifth species)?'. We refute this Kashya however, on the basis of ...
1. ... 'Lulav Ein Tzarich Eged' - because one would be holding the extra species independently of the others, which would therefore not be affected by it.
2. ... 'Lulav Ein Tzarich Eged' - because then they would be Pasul from the outset (and would conform with the last two requirements 've'Yesh Bo Le'hosif ... '.
(b) And we ask exactly the same set of questions on Tzitzis (assuming that one added a fifth thread). The criterion there is - whether the top knot is d'Oraysa or not (depending on which the four threads are either independent of the fifth thread, or Pasul at the outset, like we asked on Lulav).

(c) We ask that by Tefilin too, adding a fifth compartment afterwards (without actually affixing it) ought not to invalidate the other four, whereas if he initially made five compartments, 'Garu'a ve'Omed Hu'. In answer to this Kashya, we cite Rebbi Zeira, who says - that if the outer compartment is not open to the air, it is Pasul.

(d) Consequently, we will establish the case by Tefilin - when one initially made four compartments and adding a fifth one later, thereby invalidating the Tefilin (like Rebbi Zeira) even though he did not affix the extra compartment to the other four.

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