SANHEDRIN 41 (4 Elul) - Dedicated l'Iluy Nishmas Chaim Yisachar (ben Yaakov) Smulewitz of Cleveland on his Yahrzeit, by his daughter and son in law, Jeri & Eli Turkel of Raanana, Israel.

[a - 49 lines; b - 46 lines]

1)[line 1]"- - ...""V'CHI YAZID ISH AL RE'EHU L'HARGO B'ARMAH ..."- "And if a man should plot against his fellow to murder him slyly ... (Shemos 21:14). The word "Yazid" means that the deed was committed with malicious aforethought. This implies that he was warned and that he verbally acknowledged the warning, since how else could the witnesses be aware of his intent (first explanation of RASHI)? Alternatively, the tense of the word "Yazid" is future, implying that he remained with his malicious intent - even after being warned - until he actually carried out the murder (second, preferred explanation of RASHI).

2)[line 4]"[ ] [- - -.]""[VA'YAKRIVU OSO] HA'MOTZ'IM OSO MEKOSHESH ETZIM [EL MOSHE V'EL AHARON V'EL KOL HA'EDAH.]"- "[And] those who found him gathering wood [brought him to Moshe and Aharon and the whole congregation.]" (Bamidbar 15:33). The Mekoshesh Etzim was a Jew who profaned Shabbos by gathered kindling on the holy day. He received the death penalty of Sekilah (stoning; see Background to 41:4:a:1) (Bamidbar 15:32-36). The tense of the word Mekoshesh is present, implying that he continued to gather wood even after he was observed. This information is pertinent only if he was first warned and then chose to disregard the warning.

3)[line 5]"... [ ... -] - - - ...""[US'KALTAM OSAM BA'AVANIM VA'MESU ... V'ES HA'ISH] AL DEVAR ASHER INAH ES ESHES RE'EHU ..."- "[And you shall stone them with stones and they shall die ... and the man] over the matter of that which he afflicted the wife of his fellow ... (Devarim 22:24). This verse describes the punishment of a man who committed adultery with a betrothed woman during the six months following the confluence of her having reached twelve years of age and having attained physical maturity (a Na'arah ha'Me'urasah).

4)[line 10]SAYIF (MISOS BEIS DIN - The Death Penalties Administered by Beis Din)

(a)One who transgresses certain sins, after receiving a proper warning and in front of two witnesses, receives the death penalty from Beis Din (Devarim 21:22). The four death penalties administered by Beis Din, in order of stringency, are:

1.SEKILAH - one who is convicted of an Aveirah punishable by stoning is led to the Beis ha'Sekilah, which is located outside of the settlement (42b). This is a structure twice the height of an average person. The convict is given wine to drink until he is inebriated, and he is then brought to the top of the Beis ha'Sekilah with his hands tied. The two witnesses whose testimony served to convict him accompany him, and one of them pushes him off of the top platform. Should he survive the fall, the witnesses roll a large stone heavy enough to require the two of them to lift it onto him from above. If he is still alive following this, then all those assembled pelt him with stones until he perishes. Sins for which Sekilah is administered include Shabbos desecration, idol worship, cursing G-d, bestiality, sodomy, and certain illicit relations including incest with one's father or mother-in-law (53a).

2.SEREIFAH - one who is convicted of an Aveirah punishable by burning is placed into refuse up to his knees. A scarf of hard material wrapped within a scarf of soft material is then wrapped around his neck. The witnesses to his crime pull on the ends of the double scarf until the convict opens his mouth, at which point molten lead is poured down his throat, burning his intestines. Sereifah is administered for certain illicit relations, including incest with one's child, grandchild, or spouse's child or grandchild (75a).

3.HEREG / SAYIF - one who is convicted of an Aveirah punishable by death by sword has his head severed in Beis Din by the witnesses to his crime (Sefer ha'Chinuch #50). Sins for which Hereg is administered include serving Avodah Zarah along with other inhabitants of an Ir ha'Nidachas, and murder (76b).

4.CHENEK - one who is convicted of an Aveirah punishable by strangulation is placed into refuse up to his knees. A scarf of hard material wrapped within a scarf of soft material is then wrapped around his neck. The witnesses to his crime pull on the ends of the double scarf until he expires. Sins for which Chenek is administered include wounding one's parents, an elder who rules against Beis Din (a Zaken Mamrei), one who prophecies falsely, and certain illicit relations (84b).

(b)According to Rebbi Shimon, the order of stringency is Sereifah, Sekilah, Chenek, and Hereg (Mishnah, 49b).

(c)Beis Din are strongly encouraged to act leniently and find a loophole so as not to administer the death penalty (Devarim 13:15). A Beis Din that puts a sinner to death as often as once every seven years is considered a murderous Beis Din. According to Rebbi Elazar ben Azaryah, this applies to a Beis Din that puts a sinner to death as often as once in seventy years (Mishnah, Makos 7a).

5)[line 11] TARTEI B'NISKALIN- two [sources (namely, that from the Mekoshesh and that from a Na'arah ha'Me'urasah) that one must receive Hasra'ah] regarding those who are liable to be stoned

6)[line 11]" ... REBBI SHIMON ... RABANAN- Rebbi Shimon maintains that Sereifah is more stringent than Sekilah, whereas the Rabanan maintain that the opposite is true (see above, entry #4:b). Although both sources under discussion are punishable by Sekilah, Rebbi Shimon is able to use one to learn that Hasra'ah is necessary even for Sereifah since it is not necessary to teach this idea regarding Sekilah (Im Eino Inyan ...).

7)[line 12] " MILSA D'ASYA B'KAL VA'CHOMER TARACH V'CHASAV LAH KRA- the Torah sometimes goes out of its way to transcribe that which can be derived from an a fortiori argument (see Background to Bava Basra 111:2)

8)[line 14] LEISU HANACH V'LIGMERU MINEI- let [that which] those [penalties of Sayif and Malkus require Hasra'ah] come and be derived from that [which even Sekilah requires Hasra'ah]

9)[line 16]"[- ] ...""[AL PI SHENAYIM EDIM O SHELOSHAH EDIM] YUMAS HA'MES ...- "[Upon the testimony of two witnesses or three witnesses] shall he who is condemned to death die ...]" (Devarim 17:6). That which the Torah refers to he who is condemned as a "Mes" implies that it is as if he is already dead; Rava or Chizkiyah explains that this is due to that which he agreed to receive the death penalty as a result of his action.

10)[line 17] EDEI NA'ARAH HA'ME'URASAH (MOTZI SHEM RA - A Maiden Accused of Adultery)

(a)If one accuses (Motzi Shem Ra) his ostensibly virgin wife of having committed adultery between Erusin (betrothal) and Nisu'in (marriage) and is found to be lying, he receives Malkus (lashes) (Devarim 22:18). He must also pay his wife's father a fine of one hundred silver Shekalim / Sela'im (equivalent to approximately two kg. or four lb. of silver). Furthermore, he may not subsequently divorce her against her will (ibid. 22:19).

(b)A husband may base his claim upon witnesses who testify that his wife had had relations with another during the time in question, or through a Ta'anas Damim (in which he brings proof that she lacked virginal blood; see Background to Kesuvos 2:4). An accused wife (or her father) can defend herself by either discrediting her husband's witnesses as Edim Zomemin (plotting witnesses; see above, entry #40), or by proving that she did indeed bleed from the detachment of her hymen (and her husband obscured the proof).

(c)If valid witnesses testify that she had committed adultery after she had been properly warned of the consequences of her action, Beis Din takes her to the door of her father's house (assuming that that was where she had been living at that time; RAMBAM Isurei Bi'ah 3:9) and she is stoned to death (Sekilah; Devarim 22:21). If such witnesses testify before her marriage, then she is stoned at the city gates (Devarim 22:24; see Kesuvos 45a).

(d)These rules apply only to a Na'arah - a woman during the six months following the confluence of her having reached twelve years of age and having attained physical maturity. If she is a Bogeres (a woman after the six-month period of Na'arus), a Be'ulah (a non-virgin), or if she had once been married, then she receives the death penalty of Chenek (choking) instead of Sekilah (44b, 48b). Furthermore, her husband neither receives Malkus nor is he fined.

(e)The witnesses referred to in our Gemara are those who testify that the Na'arah ha'Me'urasah committed adultery while betrothed.

11)[line 18]HUZMU (EDIM ZOMEMIM - Plotting Witnesses)

(a)If different sets of at least two witnesses each contradict each other, their testimony is termed "Edus Mukcheshes", and Beis Din takes no action based upon either claim. If, however, one set of witnesses discredit the testimony of another set by claiming that they were instead with them, elsewhere, when they claimed to have witnessed the crime, then the discredited witnesses are termed "Edim Zomemim". The Torah decrees that under such circumstances the second set of witnesses are believed. As a general rule, Edim Zomemim are punished with whatever punishment they attempted to visit upon he whom they testified against (Devarim 19:16-21; see Mishnah, Makos 5a).

(b)Edim Zomemim receive that which they attempted to inflict upon another only when the second set of witnesses arrive after the first verdict was pronounced but before it was actually visited upon the litigant. If the second set of witnesses arrive before the verdict is pronounced, then the first set of witnesses are merely discounted. If they arrive after the verdict is pronounced, then the first set do not receive the punishment that they inflicted upon their victim. This is because the verse describes their punishment with the word "Ka'asher Zamam" - as they plotted to do - and not what they actually accomplished.

12)[line 18] L'OSRAH AL BA'ALAH BANU- we came to prohibit her to her husband [and not to cause her to receive the death penalty of Sekilah]

13)[line 18] !V'HA ASRU BAH!- but [according to their own story] they warned her [that her actions made her liable to receive Sekilah]!

14)[line 19] ISHAH CHAVEIRAH (CHAVER - One who is Meticulous in his Observance of Halachah)

(a)One who has earned the title of "Chaver" is meticulous in at least the following four areas of Halachah:

1.he does not give Terumah or Ma'asros to an Am ha'Aretz (an unlearned Jew who may be lax in his Torah observance);

2.he does not prepare Taharos in the vicinity of an Am ha'Aretz;

3.he is careful not to keep even Chulin from becoming Tamei;

4.he is careful to separate Ma'aser from all produce that he eats, sells, or buys (Tosefta Demai 2:2-3).

The Gemara in Bechoros 30b explains exactly how one goes about accepting this distinguished status.

(b)Rav Ashi explains that the wife referred to in our Mishnah has the status of a Chaveirah since she is meticulous in her observance of Halachah.

15)[line 23] KOL EDUS SHE'IY ATAH YACHOL L'HAZIMAH LO SHMAH EDUS - Testimony that Cannot be Contradicted is Not Valid Testimony

(a)When testifying in Beis Din, witnesses must clearly state both when and where they observed the event that they claim to have witnessed. If another set of witnesses subsequently claims that the first set were elsewhere at the time that they claimed to have witnessed the event, then the first set are termed Edim Zomemin (see above, entry #11). Testimony that cannot be contradicted in this way is not acceptable in Beis Din. (b) Our Gemara asks that that if the witnesses are able to claim that they intended only to prohibit her to her husband, how can she be killed even if she is an Ishah Chaveirah? Since they cannot receive the same punishment that she would have receive had their testimony been accepted, their testimony should not have been acceptable in the first place!

16)[line 27] KESHE'ZINSA V'CHAZRAH V'ZINSA- (the Gemara answers) when she committed adultery and then committed adultery again [in which case the only reason for the witnesses to testify against her is so that she receives the death penalty, since she has been prohibited to her husband from the first time]

17)[line 27] L'OSRAH AL BO'ALAH SHENI BANU- we came to prohibit her to the second man with whom she committed adultery (since such a man may never marry her, even after she has been divorced or widowed from her current husband; Sotah 26b)

18)[line 29] LO YASVAH TUSEI- lit. she is not sitting below him; i.e., they are not yet living in the same house [since they are only betrothed]

19)[line 31]ARIRAN- a) a type of ax (RASHI, second explanation of the ARUCH); b) a type of knife (first explanation of the ARUCH)

20)[line 31] EIN ZEH NACHON- this is not corroborative testimony. The term "Nachon" (lit. "correct") in this context is based upon the verse which states, "... and if the matter is true and indeed correct ..." (Devarim 13:15; see below, entry #22), which refers to the acceptance of testimony and serves as the source for Beis Din to cross-examine witnesses with Bedikos (RASHI to 30b)

21)[line 31]KELAV- his clothing

22)[line 32]"[, , , ] [ ...]""[V'DARASHTA, V'CHAKARTA, V'SHA'ALTA HEITEV, V'HINEI EMES] NACHON [HA'DAVAR ...]"- "[And you shall inquire, delve into, and ask in detail, and if the matter is true and indeed] correct ..." (Devarim 13:16). This verse is written regarding the cross-examination process of witnesses in a case involving the possibility of capital punishment.

23)[line 34] B'SUDAR SHE'CHANKO BO- [the article of clothing mentioned in the Beraisa] is the scarf that he choked him with (i.e., the murder weapon, which is directly related to the testimony)

24)[line 36]BA'AT- kicked

25)[line 36] MA'ASEH U'VADAK BEN AZAI B'UKTZEI TE'ENAH- an incident occurred and Ben Zakai tested [the witnesses] by [asking them if] the stems of the fig tree [under which they claimed that the episode happened had thick stems or thin stems]

26)[line 37] AKATZ TE'ENAH B'SHABBOS- he picked a fig on Shabbos [which is an act of Kotzer (harvesting), one of the thirty-nine acts of creative labor prohibited on Shabbos whose transgression is punishable by stoning (Mishnah, Shabbos 7:2)]

27)[line 37] ALAH KA MIKTIL- he is to be killed through it [and it is therefore directly related to the testimony]

28)[line 39] SHIPDO B'YICHUR SHEL TE'ENAH- he skewered him with a fig branch

29)[line 39]OKTZEHA- its stems

30a)[line 39]DAKIN- thin

b)[line 39]GASIN- thick

31)[line 40]() [] () [] (TE'ENIM) [TE'ENEHA] SHECHOROS (TE'ENIM) [TE'ENEHA] LEVANOS- were its figs black or were its figs white? There is no way to explain this as referring to that which was integral to the murder, since it is impossible to use figs as a murder weapon.

32)[line 40] ?MI'BEN ZAKAI LOSIV INISH?- is it possible to ask a question from the opinion of Ben Zakai?

33)[line 41] ... BEDIKOS ... CHAKIROS - The Cross-Examination of Witnesses

(a)Before witnesses testify in Beis Din to convict a perpetrator, the judges cross-examine each witness individually to determine whether or not his testimony is acceptable.

(b)Two categories of questions are asked of the witnesses in this verification process - Chakiros and Derishos (Mishnayos, Sanhedrin 32a and 40a; derived from Devarim 13:15, 17:4, and 19:18). Chakiros are basic questions that serve as the baseline for any testimony. These seven questions, as derived from the verses, are:

1.During which seven-year Shemitah cycle of Yovel did the event occur?

2.During which year of the Shemitah did the event occur?

3.During which month of the year did the event occur?

4.On which day of the month did the event occur?

5.On which day of the week did the event occur?

6.During which hour of the day did the event occur?

7.Where did the event take place? (Mishnah, Sanhedrin 40a)

(c)The purpose of these questions is to establish exactly where and when the witnesses claim to have witnessed the event. Only after this is established is it possible for the witnesses to become Zomemim (see Background to 8:52), and witnesses that cannot become Zomemim are not accepted in Beis Din since they are suspected of falsifying their testimony (RASHI to Pesachim 12a and Bava Kama 75b DH Aval Hacha).

(d)Derishos (referred to in our Gemara as Bedikos) are follow-up questions that probe the witnesses for further details of the event. Examples of such details asked of the witnesses include whether or not the witnesses recognized the victim to be a Jew or what particular type of Avodah Zarah he worshipped. No limit is placed on the number or type of Derishos asked, and it is considered praiseworthy for a Beis Din to ask many of them. (e) Tana'im disagree as to what kind of Bedikos are asked. The Chachamim maintain that only Bedikos that are directly related to the event witnessed are asked (i.e., the type of weapon used, or how the Avodah Zarah was worshipped). If witnesses contradict each other in these details, then they are disqualified from testifying. Ben Zakai maintains that the witnesses are cross-examined even regarding details not immediately related to the event (i.e., the color of his clothing). They will be disqualified from testifying even if these details do not match (Mishnah, 40a).

(f)Witnesses do not become disqualified from monetary matters if they either cannot answer Derishos or contradict each other in their answers (30b).

34)[line 43] ASAK B'PERAKMATYA- he involved himself in business dealings

35)[line 45]CHANUS- the name of a place in Yerushalayim

36)[line 45] "?DINEI KENASOS SALKA DAITACH?- is it possible to say that they did not judge cases of fines? [Fines may be judged by a Beis Din that is not in the Beis ha'Mikdash!]

37)[line 46] LO DANU DINEI NEFASHOS- they did not judge cases involving the possibility of capital punishment. Capital punishment may be judged only by a Beis Din of twenty-three, and only when the seventy-one member Sanhedrin sits in the Lishkas ha'Gazis in the Beis ha'Mikdash (14b). When murder became prevalent and the Sanhedrin saw that it would be too difficult to properly judge all cases of capital punishment, they voluntarily exiled themselves from the Lishkas ha'Gazis.

38)[line 46] MISHE'CHARAV BEIS HA'MIKDASH HISKIN RABAN YOCHANAN BEN ZAKAI- From that which Raban Yochanan ben Zakai made decrees at the time of the destruction of the Beis ha'Mikdash, it is clear that he began his forty-year career as a judge within forty years of that destruction. Since cases of capital punishment were no longer considered beginning forty years before the destruction, Raban Yochanan ben Zakai could never have been party to such judgments.

39)[line 47] BEN ZAKAI D'ALMA- [the "ben Zakai" referred to in our Mishnah must have been] a different (lit. generic) ben Zakai

40)[line 48] ' " "?KARI LEI REBBI "BEN ZAKAI"?- would Rebbi have called him "ben Zakai" [which is a dismissive way of referring to him, when Raban Yochanan ben Zakai was greater than Rebbi]?


41)[line 1] KAV'UHA BI'SHMEI- they established [this teaching] in his name

42a)[line 3] " "KI KARI LEI "BEN ZAKAI"- when he is called "ben Zakai" [in our Mishnah]

b)[line 4] AL SHEM D'ME'IKARA- that reflects what he was called at that time

43)[line 8] KI AMREI BEI TREI NAMI EDUSAN KAYEMES- if both [witnesses] say [that they do not remember] the testimony also stands [since even if one did claim to remember there would be nothing against which to check it]

44)[line 11]ECHAD- and one; i.e., a third witness

45)[line 12]" K'REBBI AKIVA D'MAKISH SHELOSHAH LI'SHENAYIM- like Rebbi Akiva who compares three witnesses to two. The Mishnah (Makos 5b) addresses the question of why the verse (Devarim 17:6; see above, entry #9) states that two or three witnesses are required before administering capital punishment. If two are enough, is it not obvious that three will suffice? The Mishnah records a disagreement between Tana'im as to what we derive from these extra words. Rebbi Akiva maintains that the reason is to equate the Halachic status of a third witness to that of the other two. Part of what this entails is that they cannot become Edim Zomemin (see above, entry #11) unless other witnesses claim that all three were with them elsewhere at the time that they claimed to have witnessed the event (see RASHI, TOSFOS DH k'Man, and Sugya ibid.).

46)[line 14] AFILU B'CHAKIROS- even regarding Chakiros [it is possible to find a case in which a witness does not answer one of the questions and yet the testimony still stands]

47)[line 16] TANU SANHEDRIN BEI RABAH- learned the Mesechta of Sanhedrin in the Yeshivah of Rabah

48)[line 17]PAGA- he met up with

49)[line 17] ?MAI AMRISU BAH SANHEDRIN D'VEI RABAH?- what [novel explanations] have you been able to come up with when learning Maseches Sanhedrin in the Yeshivah of [a man as great as] Rabah?

50)[line 19] ? ?U'MAI AMRINAN BAH B'SANHEDRIN GEREIDASA? U'MAI KASHYA LACH?- and what should we have said had we not been learning Maseches Sanhedrin from such a great man (i.e., what inherent difficulty exists)? And what is your question?

51)[line 24] IDI V'IDI D'ORAISA HI- both Chakiros (see 40a-b) and Derishos (see above, entry #20) are required by the Torah

52)[line 30] , IY HACHI AMRISU BAH, TUVA AMRISU BAH- if this is what you have explained in [Maseches Sanhedrin], you have indeed explained much

53)[line 31] MI'TIVUSA D'MAR AMRINAN BAH TUVA- it is [only] due to the goodness [and humility] of Mar (a third-person term of respect) that we have explained much

54)[line 32] MI'NEZIHUSEI D'MAR LO AMRINAN BAH V'LO CHADA- had you vociferously disputed [our point] we would have had nothing to say [since your knowledge is greater than ours]

55)[line 33] ?AD KAMAH?- until what point [in the month do we assume that if their testimony is one day off then one of them made a mistake regarding the length of the previous month]?

56)[line 37] NEIMA SHE'ZEH YODE'A BI'SHNEI IBURIN- let us say that one is aware of the previous two times that the month was extended to thirty days

57)[line 35]SHIPURA- the Shofar [blown when Beis Din sanctifies the day of Rosh Chodesh]

58)[line 38] MEVARCHIN AL HA'CHODESH- may one recite the monthly blessing over the new moon

59)[line 39] TISMALEI PEGIMASAH- the deficit [of the moon] is filled in [since only until that point is the Berachah of "Mechadesh Chodashim" - "He who renews months" - appropriate]