[40a - 36 lines; 40b - 43 lines]

*****PEREK #5 HAYU VODKIN*****

1)[line 1] CHAKIROS (EDUS: DERISHAH V'CHAKIRAH)

(a)When witnesses testify in Beis Din about a specific event in order to convict the perpetrator, the judges interrogate each witness separately to determine whether their testimony is reliable.

(b)Chazal learn from the verses of the Torah (Devarim 13:15, 17:4, 19:18) that two types of questions are employed to ascertain the truth of their testimonies: Chakiros and Derishos. There is no limit to the amount and type of Derishos that are used. Chakiros, however, are limited to seven specific questions (Sanhedrin 32a).

(c)The Torah requires that the following seven Chakiros be asked (even though the answers to some of the more specific questions already answer the more general ones). These Chakiros, which are meant to ascertain the time and place of the event, are 1. During which seven-year Shemitah cycle of the Yovel did the event occur? 2. During which year of the Shemitah? 3. During which month? 4. On which day of the month? 5. On which day of the week? 6. During which hour of the day? 7. Where did the event take place?

(d)If a witness cannot answer even one of the Chakiros, his testimony is invalid. The reason for this is that when the witness makes it impossible to testify against him that he was *not* in the place in question at the time in question, we suspect that he is lying (RASHI to Pesachim 12a, and to Bava Kama 75b DH Aval Hacha).

2a)[line 1] B'EIZO SHAVU'A- during which seven-year Shemitah cycle of the Yovel [did the event occur]?

b)[line 2] B'EIZO SHANAH- during which year of the Shemitah cycle [did the event occur]?

c)[line 5] HISRESEM BO - did you give him warning? (HASRA'AH)

If a person transgresses a Lav for which the punishment is the death penalty or lashes, he can only be put to death or lashed if he has been given a proper Hasra'ah (warning). The warning must be, "Abstain, because this action is prohibited and you will be punished with the death penalty (or with lashes) for doing it," or something to that effect. The warning must specifically name the Lav or Av Melachah that the person is about to transgress.

3)[line 6] BA'MEH AVAD- in what manner did he serve [the idol]?

4)[line 7] BEDIKOS

See above, entry #1.

5)[line 8] UKTZEI TE'EINIM- stems of figs

6)[line 11] MAKCHISHIN- they contradict

7)[line 12] ZEH YODE'A IBURO SHEL CHODESH- this [witness] knows about the lengthening of the month (i.e. that the previous month had 30 days, and not just 29 days)

8)[line 17] CHAMAH- the sun

9a)[line 18] IM NIMTZE'U DIVREIHEM MECHUVANIM- if their words are found to be consistent [with the testimony of each other]

b)[line 18] POSCHIN BI'ZECHUS- they open with words of merit, innocence (Daf 32b, see Background to Sanhedrin 32:2)

10)[line 19] ECHAD MIN HA'TALMIDIM- one of the students sitting in rows before the judges during the court case

11)[line 21] IM YESH MAMASH BI'DEVARAV SHOM'IN LO- if there is substance to his words, then they listen to him

12)[line 23] MA'AVIRIN OSO L'MACHAR- they pass (postpone) it (the judgement) to the next day

13)[line 24] MIZDAVGIN ZUGOS ZUGOS- they get together in pairs

14a)[line 25] HA'MEZAKEH OMER: "ANI MEZAKEH U'MEZAKEH ANI BI'MEKOMI"- the Mezakeh (the judge who argued to acquit the defendant) says, "I am the one who was Mezakeh [yesterday] and I am still Mezakeh [today]"

b)[line 26] HA'MECHAYEIV OMER: "ANI MECHAYEIV U'MECHAYEIV ANI BI'MEKOMI"- the Mechayeiv (the judge who argued to convict the defendant) says [if he has not found a Zechus and has not changed his mind overnight], "I am the one who was Mechayeiv [yesterday] and I am still Mechayeiv [today]"

15)[line 29] OMDIM L'MINYAN- they stand up to be counted

16a)[line 35] "V'DARASHTA V'CHAKARTA V'SHA'ALTA HEITEV"- "You shall inquire, and you shall investigate, and you shall question well" (Devarim 13:15) - This verse is written with regard to the procedure of interrogating witnesses who testify that an entire city served Avodah Zarah (Ir ha'Nidachas -- see below, entry #21).

b)[last line] "V'HUGAD LECHA V'SHAMA'TA V'DARASHTA HEITEV"- "And [when] it will be told to you, you shall listen and inquire well" (Devarim 17:4) - This verse is written with regard to the procedure of interrogating witnesses who testify that an individual served Avodah Zarah.

c)[last line] "V'DARSHU HA'SHOFTIM HEITEV"- "The judges shall inquire well" (Devarim 19:18) - This verse is written with regard to Edim Zomemim.

40b----------------------------------------40b

17a)[line 1] V'EIMA CHADA CHADA KEDI'CHESIVA- and say that [the number of Chakiros for] each one is as it is written (i.e. three for Ir ha'Nidachas, two for Avodah Zarah and two for Edim Zomemim)

b)[line 1] D'IM KEN LICHTEVINHU RACHMANA B'CHADA- because, otherwise (if the seven words are teaching that seven Chakiros are required in all cases), the Torah should have written them all in one [verse]

18a)[line 2] KEIVAN D'CHULHU BAHADEI HADADEI KESIVA- since they are all written equally (i.e. that they all require Derishah)

b)[line 3] ME'HADADEI YALFEI- they are learned from each other

19)[line 3] V'CHEIVAN D'YALFEI ME'HADADEI K'MAN DI'CHESIV B'CHADA DAMI- and since they are learned from each other, it is as if it (i.e. all of words which teach the requirement for seven Chakiros) is written in one [verse]

20)[line 5] (SIMAN PALA"T SAYI"F HASRA'A"H) - this is a mnemonic device for remembering the ways in which each of the three sins -- Ir ha'Nidachas, an individual who serves Avodah Zarah, and Edim Zomemim -- are different from each other:

1.*Palat* refers to "she'Ken Mamonan *Palat*" (line 6)

2.*Sayif* refers to "she'Ken *b'Sayif*" (line 7)

3.*Hasra'ah* refers to "she'Ken Tzerichim *Hasra'ah*" (line 8)

21)[line 5] IR HA'NIDACHAS

(a)A city that was led astray (Nidach) to the extent that its inhabitants willfully committed idolatry, must be destroyed. All of those who were led astray must be killed and the city burned, along with all of the possessions of its inhabitants, as stated in Devarim 13:13-19. The righteous people who were not led astray are not killed, but their possessions are burned. The Madichim, those who influenced the city to commit idolatry, are punished with Sekilah (stoning) (RAMBAM Hilchos Avodas Kochavim 4:1).

(b)Other requirements to classify a city as an Ir ha'Nidachas is that the Madichim must be male residents of the city and must be from the same tribe to which the city belongs. There must be at least two Madichim, who must influence the majority of the city (with a minimum of 100 people). In addition, the city cannot be a border town (RAMBAM ibid. 4:2).

22)[line 6] MAMONAN PALAT- their property is spared

23)[line 7] AVODAH ZARAH (AVODAH ZARAH: YACHID HA'OVED AVODAH ZARAH)

(a)Avodah Zarah is the term for a Pesel (an idol or graven image) or anything such as the sun or the moon, or even a person, which people mistakenly believe is an independent power with G-d-like attributes, which they worship and to which they pray. It is prohibited to do even the most minute action that demonstrates the ascendancy of Avodah Zarah. Avodah Zarah is one of the three cardinal sins about which we are commanded, "Yehareg v'Al Ya'avor" - "One should be killed rather than transgress." (The other two are Giluy Arayos - forbidden relations and Sheficus Damim - murder. But see RAMBAM Hilchos Yesodei ha'Torah 5:1-4.)

(b)The prohibition to serve Avodah Zarah is one of the Ten Commandments, "Lo Yiheyeh Lecha Elokim Acherim Al Panai. Lo Sa'aseh Lecha Fesel v'Chol Temunah... Lo Sishtachaveh Lahem v'Lo Sa'ovdem..." - "You shall not possess any foreign gods, ever (lit. in my presence). You shall neither make for yourself a graven image nor any likeness of that which is in the heavens above or on the earth below or in the water beneath the earth. You shall not prostrate yourself to them nor worship them for I am HaSh-m, your G-d..." (Shemos 20:3-5).

(c)A person who serves Avodah Zarah b'Mezid (intentionally) is liable to the Kares punishment. If he received the proper warning and witnesses saw his action, he is liable to Sekilah (stoning). Avodah Zarah worshipped b'Shogeg (unintentionally) creates an obligation to offer a Korban Chatas (RAMBAM Hilchos Avodas Kochavim 3:1). A person who makes an idol or other Avodah Zarah, even for a Nochri, is liable to Malkus (lashes) (Rambam ibid. 3:9).

(d)Many rites were invented for specific forms of Avodah Zarah. If a person serves an Avodah Zarah with a rite specific to it, he is Chayav as above, (c). If one serves an Avodah Zarah with a rite that was intended for another Avodah Zarah, he is exempt from punishment. However, the verses show that a person who performs the services of Zibu'ach (sacrificing an animal), Kitur (burning incense), Nisuch (pouring a libation) and Hishtachava'ah (bowing down) is Chayav, whether it is specific to the Avodah Zarah or not (see Rambam ibid. 3:3). The prohibition against Avodah Zarah is included in the seven Mitzvos Benei Noach, the seven commandments in which all of humanity is obligated (see Background to Bava Metzia 90:27).

24)[line 7] B'SAYIF- [he is killed] with the sword (see Background to Sanhedrin 35:18)

25)[line 10] GEZEIRAH SHAVAH MUFNEH (GEZEIRAH SHAVAH)

(a)In the Introduction to the Sifra (the Halachic Midrash to Vayikra), Rebbi Yishmael lists thirteen methods that Chazal use for extracting the Halachah from the verses of the Torah. One of them is Gezeirah Shavah, which is a Halachic device by which two similar words in the Torah from different subjects teach that laws from one subject apply to the other.

(b)A sage is only permitted to use the method of Gezeirah Shavah if he received a tradition from his teachers that a Gezeirah Shavah exists between the two words. However, the comparison that he makes regarding *which* laws are applied from one subject to the other may be his own, if he did not learn it directly from his teachers.

(c)MUFNEH MI'SHENEI TZEDADIM - If two similar words in the Torah are free of any Derashah, they may be used unconditionally for the inference of a Gezeirah Shavah between the two topics.

(d)MUFNEH MI'TZAD ECHAD - If only one of the words is free, there is a Machlokes whether they may be used unconditionally for the inference of a Gezeirah Shavah (Lemedin v'Ein Meshivin), or if they can only be used for a Gezeirah Shavah if we have no logical argument against learning the Gezeirah Shavah (Lemedin u'Meshivin).

(e)EINO MUFNEH KOL IKAR - If both words are used for another Derashah, there is a Machlokes whether they can only be used for a Gezeirah Shavah if we have no logical argument not to learn the Gezeirah Shavah, or if they cannot be used at all for a Gezeirah Shavah.

26)[line 15] MISHUM D'HAVAH LEI L'MICHTAV- since it should have written

27)[line 21] L'REBBI SHIMON- according to Rebbi Shimon, who maintains that Sereifah is the most severe of the four death penalties (Sanhedrin 49b)

28a)[line 22] "V'HINEI EMES NACHON"- "... and behold, it is established to be true" (Devarim 13:15) - This is written with regard to the procedure of interrogating witnesses who testify that an entire city served Avodah Zarah (Ir ha'Nidachas).

b)[line 22] "V'HINEI EMES NACHON"- "... and behold, it is established to be true" (Devarim 17:4) - This is written with regard to the procedure of interrogating witnesses who testify that an individual served Avodah Zarah.

29)[line 22] HA CHAD SREI- this is eleven [words indicating the number of Chakiros to be asked]

30a)[line 23] DAL TELAS LI'GEZEIRAH SHAVAH- subtract three for the Gezeirah Shavah

b)[line 23] PASHA LEHU CHADA- one remains from them

31)[line 24] MILSA D'ASYA B'KAL VA'CHOMER TARACH V'CHASAV LAH KRA- the Torah troubles itself to write out explicitly that which can be learned from a Kal va'Chomer (see Background to Bava Basra 111:6)

32)[line 24] MEGADEF BAH REBBI AVAHU- Rebbi Avahu scoffed at it

33)[line 26] ALAMAH LO?- Why not?

34)[line 27] EIN ADAM TO'EH V'LO CHELUM- a person [testifying about the time at which the event occurred] does not make any mistake

35)[line 33] EMESH- yesterday

36)[line 35] RAMINAN ALEI, KED'REBBI SHIMON BEN ELAZAR- we place it (the obligation to relate all of the facts) upon him, in accordance with the view of Rebbi Shimon ben Elazar. Rebbi Shimon ben Elazar rules that we move the witnesses from place to place so that they get confused and, if they are lying, they will retract their false testimony (Sanhedrin 32b). Similarly, we make them report all of the details of when the event occurred, so that if they are lying, they will get confused and retract their false testimony.

37)[line 39] KIBEL ALAV HASRA'AH?- Did he (the defendant) accept the warning [that you, the witnesses, gave him]?

38)[line 39] HITIR ATZMO L'MISAH?- Did he permit himself to be killed? (That is, when the witnesses informed him that he will receive the death penalty if he commits the act, did he say, "I accept your warning and I am doing the act knowing that I will be killed for it.")

39)[line 39] HEMIS B'SOCH KEDEI DIBUR? - Did he murder within the time span of "Toch Kedei Dibur" from the time that the witnesses warned him? (KOL TOCH KEDEI DIBUR K'DIBUR DAMI)

"Toch Kedei Dibur" is the length of time that it takes for a student to say a greeting to his teacher (e.g. "Shalom Alecha Rebbi"). "k'Dibur Dami" means that within this small amount of time, we view an act or speech as not yet completed and still continuing. In the case of Hasra'ah of witnesses, if the transgressor commits the sin within "Kedei Dibur" of the warning, then we assume that he did the act with the full knowledge of the warning. If, however, he committed the sin after "Kedei Dibur," then we must be concerned that perhaps he forgot about the warning at the moment that he did the act.

40a)[line 40] PE'OR- the name of an idol of Moav, worshipped by defecation and highly immoral practices (RAMBAM Hilchos Avodas Kochavim 3:2)

b)[line 40] MARKULIS- the Roman God Mercury, identified with the Norse god Wodin, worshipped by throwing stones at it or removing stones from in front of it (Rambam ibid.)

41)[line 40] B'ZIVU'ACH B'KITUR B'NISUCH B'HISHTACHAVA'AH (AVODAH ZARAH: AVODOS AVODAH ZARAH)

See above, entry #23:d.

42)[last line] AD SHE'YAR'UHU TA'AMO SHEL DAVAR- [a person is not liable to punishment] until they (the witnesses) show him the reason for the matter (i.e. until they warn him with Hasra'ah, informing him of the transgression that he is about to commit)

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