1) "CHOSHESHIN L'LA'AZ"
OPINIONS: In the Mishnah (2a), Rebbi Meir and the Chachamim disagree about how many judges are required in a case of "Motzi Shem Ra." Rebbi Meir says that only three judges are necessary, while the Chachamim require twenty-three judges, the same number that is required in a case of capital punishment.
The Gemara asks why the Chachamim require the case to be judged by twenty-three judges, if the issue being judged is only a monetary issue. Even though the case might eventually become a capital case if the husband brings witnesses who testify that his wife was Mezanah while she was betrothed to him, nevertheless that is not the issue now; the issue now is only a monetary one. Ula answers that the Chachamim and Rebbi Meir argue about "Chosheshin l'La'az." Rebbi Meir maintains that we are not concerned for "La'az," while the Chachamim maintain that we are concerned for "La'az."
What monetary issue is the Beis Din judging in the case of Motzi Shem Ra, where three judges suffice, and what does "Chosheshin l'La'az" mean?
(a) RASHI explains that the monetary issue being judged is the husband's claim that he does not have to pay the Kesuvah to his wife. Even though the husband does not have witnesses at present to testify that this woman was unfaithful to him, once the word is spread about his appearance in Beis Din witnesses might come forth who saw his wife being unfaithful. If witnesses indeed come, then the Beis Din needs an additional twenty judges in order to judge the capital case of Motzi Shem Ra.
Why, though, do the Chachamim consider the need to get twenty additional judges in such a case something undesirable ("Chosheshin l'La'az")?
The MARGOLIYOS HA'YAM explains that the Chachamim are concerned that the Beis Din of three judges might issue a verdict of guilt against the woman before the case is transferred to the larger Beis Din. The larger Beis Din would then not be able to judge her, since a capital case may be judged only when there is complete impartiality; when the defendant's status has already been declared as guilty, Beis Din cannot judge the case. Rashi explains that Rebbi Meir is not concerned with this possibility, while the Chachamim are, and therefore the Beis Din does not start judging the case without twenty-three judges present.
(b) TOSFOS asks many questions on the explanation of Rashi. Among his questions are that if the case of Motzi Shem Ra stated in the Mishnah is a case of a monetary matter (such as the husband's claim that he does not owe the Kesuvah), then why is it listed in the Mishnah among cases of *penalties* like Ones u'Mefateh (rape and seduction)? Moreover, the Gemara quotes a Beraisa which describes the case as one in which "he claimed money [from the other party]." If the monetary issue involved is that the husband claims that he is *exempt* from paying the Kesuvah, then he is not claiming anything from his wife or from her family. Rather, he is *exempting* himself from *their* claim.
Tosfos also asks that the word "La'az" refers to something that is not true, such as a false rumor. It does *not* refer to something that is true but just bad, as Rashi seems to explain.
RABEINU TAM therefore explains the Gemara in an entirely different manner. The Mishnah's case of Motzi Shem Ra is a case in which the *father* of the bride claims from the husband one hundred Sela'im for defaming his daughter's reputation. This amount is the penalty mandated by the Torah for the crime of Motzi Shem Ra. Hence, this case is listed in the Mishnah together with the other cases of penalties.
The Gemara is discussing a case in which the husband originally brought witnesses who testified that this woman was unfaithful, but his witnesses were then contradicted by other witnesses. The father now claims from the husband the penalty of one hundred Sela'im. The argument between Rebbi Meir and the Chachamim in the Mishnah applies to this point in the case. On one hand, more witnesses might come to testify on behalf of the husband, thus requiring twenty-three judges. The Chachamim say that if this happens, and twenty judges are added to this case, this will cause the spread of false rumors about the incompetence of the first three judges. Rebbi Meir is not concerned for this possibility.
(c) The RAN offers an explanation which combines elements of both Rashi's explanation and Rabeinu Tam's. The Ran says that the Gemara is discussing a case in which it is known that the husband has witnesses whom he will bring to court to testify about his wife's unfaithfulness (this is in contrast to the explanation of Rashi, who writes that there presently are no known witnesses). At this moment, the husband wants to deal only with the monetary issue of the Kesuvah, or the father wants to deal with the issue of his daughter's tarnished reputation and the penalty owed by the husband for it. Rebbi Meir says that more judges may be added if the need arises, because Rebbi Meir does not suspect that people will spread rumors about the incompetence of the first judges. The Chachamim *are* concerned for such rumors, and therefore they maintain that twenty-three judges must judge the case from the outset.
The Ran adds that this approach explains why the Mishnah requires expert judges in a case of Motzi Shem Ra, even though it seems to be a case of a simple monetary matter according to Rashi's explanation. The Ran says that even Rebbi Meir would agree that there is concern that people might start rumors about the judges after it actually becomes a capital case and twenty more judges are summoned. If, however, the original three judges are experts, then no rumors will start when more judges are added to the case, because it is clear that it is merely the nature of the case which is causing the change in the number of judges. The Chachamim, on the other hand, are concerned for the possibility of rumors even when the original three judges are experts. (Y. MONTROSE)
2) DOES A "MESIS" NEED "HASRA'AH"
OPINIONS: The Gemara cites a Tosefta which records a Machlokes between the Tana Kama and Rebbi Yehudah regarding Hasra'ah. The Tana Kama says that unlike the death penalty in the case of a "Mesis" (a man or woman who leads a fellow Jew astray by trying to influence him or her to commit idolatry, and who is put to death by stoning, as described in Devarim 13:7-12), administering the death penalty in all other cases requires an "Eidah" -- witnesses and Hasra'ah, warning, before the act is perpetrated. Rebbi Yehudah argues and says that not only is Hasra'ah required, but the perpetrator must be warned of the *type* of death he faces if he commits the sin. It appears from this Tosefta that a Mesis does not need all of the above qualifications in order to receive the death penalty. Is this indeed the Halachah?
(a) TOSFOS implies that a Mesis *does* require Hasra'ah in order to be punished. However, the Hasra'ah is done in a way more subtle than for other transgressions. Tosfos quotes the Mishnah later (67a) which states that two witnesses are situated in a hidden area where they will hear the Mesis' conversation with his intended victim. When the Mesis starts his persuasion, the intended victim should say, "But how can we leave our Father in Heaven and worship wood and stones?" If he continues with his attempts to persuade, then he is deemed guilty.
Tosfos understands that this process of hiding witnesses ("Hachmanah") and the words of the intended victim, "But how can we leave our Father...," is considered Hasra'ah.
The MINCHAS CHINUCH (Mitzvah 462) rules this way, and also records this opinion in the name of the RAMBAM (Hilchos Avodah Zarah 5:3).
(RAV YERUCHAM FISHEL PERLOW (cited by the annotator of the Minchas Chinuch, Machon Yerushalayim edition, footnote 13) writes that the Minchas Chinuch was not careful in this respect, since the Rambam elsewhere says exactly as Rashi does -- that the Mesis does not need to be warned at all. The Rambam (Hilchos Sanhedrin 11:5) writes regarding the Mesis, "And he does not need to be warned like others who are put to death." Others, however, understand the words of the Rambam the way the Minchas Chinuch does. The MAYIM CHAIM, AVODAS HA'MELECH, and MITZPEH EISAN (Sanhedrin 85b) understand that the Rambam specifically adds the words "*like others*" to teach that the Mesis *does* require Hasra'ah, but not Hasra'ah *like others*. If the Rambam means that the Mesis does not need any Hasra'ah at all, then that is understood already, since the Rambam already differentiates between a Mesis and other sinners, and it would suffice for the Rambam to write, "And he does not need to be warned.")
(b) RASHI (DH u'She'ar), however, implies that a Mesis does not need Hasra'ah at all in order to be punished. This also seems to be the view of Rashi later. The Mishnah later (67a) says that if someone attempts to persuade two people to worship idols, then they take him directly to Beis Din to be tried as a Mesis. Rashi there explains that this means that there is no need to give him Hasra'ah.
Rashi understands that the process of "Hachmanah" is not considered Hasra'ah, but rather the hiding of the witnesses is necessary merely in order to have Edus, testimony, about the act of the Mesis, so that they can testify against him in Beis Din. (Y. MONTROSE)