SANHEDRIN 10 (3 Av) - dedicated l'Iluy Nishmas Reb Aharon Dovid ben Elimelech Shmuel Kornfeld (Muncasz/Israel/New York), who passed away on 3 Av 5761, by his daughter Diane Koenigsberg and her husband Dr. Andy Koenigsberg. May his love for Torah and for Eretz Yisrael continue in all of his descendants.

1) "PALGINAN DIBURA" FOR TESTIMONY ABOUT ONE'S WIFE

QUESTION: Rava states that if a man testifies in Beis Din that his wife willingly committed adultery with another man and another witness corroborates his testimony, then the witnesses are believed with regard to incriminating the seducer (and he is put to death based on their testimony), but not with regard to the wife. The Gemara asks that since the principle of "Palginan Dibura" has already been taught (see Insights to 9b), what new law is Rava teaching? The Gemara answers that one might have thought that the husband's testimony is believed also with regard to his wife; one might have reasoned that perhaps the rule that one may not testify about himself (because a person is "related" to himself) does not apply to testifying about his wife. Therefore, Rava teaches that this rule also applies to testifying about one's wife.

The Gemara's answer seems problematic. The law that one may not testify for his wife has also been taught already! The Mishnah (27b) clearly states that a man is unfit to testify about his wife. What is Rava adding to that Mishnah?

ANSWERS:

(a) RASHI and TOSFOS explain that the case of Rava is different. One might have thought that as long as the testimony of witnesses is valid with regard to killing the seducer, it also should be valid with regard to killing the other partner involved in the sin. Rava, therefore, teaches that this is not so.

The RAN challenges this approach. He asserts that such logic applies only in order to *invalidate* testimony, such as in the principle of "Edus she'Batlah Miktzasah Batlah Kulah" -- once part of the testimony of witnesses is proven to be false or invalid, the rest of the testimony is also considered invalid. In contrast, there is no logical reason to say the opposite -- to make *invalid* testimony into valid testimony merely because it was presented together with valid testimony!

The KEHILOS YAKOV (end of #15) defends the view of Rashi and Tosfos. The reason why a man is an invalid witness with regard to his wife differs from the reason why he is an invalid witness with regard to any other relative. With regard to any other relative, the Torah invalidates a person from testifying; he is Pasul mid'Oraisa. With regard to testifying about his wife, mid'Oraisa a man *may* testify (since they are not related by blood). The *Rabanan* enacted that a man may not testify for his wife, because he might alter the truth due to his relationship with her. Consequently, one might have thought that when a man's testimony is accepted with regard to another person (the seducer), it is also accepted with regard to his wife since, mid'Oraisa, he is not Pasul from testifying about her. (Accepting his testimony about his wife in such a case would be based on a Migu, as the Gemara elsewhere teaches that a Migu works to validate a person's testimony for something that it otherwise would not have been valid mid'Rabanan; see Mishnah, end of Chagigah 24b, and Gemara there.) Rava teaches, therefore, that Beis Din nevertheless does not accept a person's testimony about his wife even when his testimony *is* accepted with regard to someone else. (This is because a husband indeed is Pasul *mid'Oraisa* from testifying for his wife, either because any relationship through marriage is considered a "Karov" mid'Oraisa, or because the relationship of a husband and wife is so strong, "Ishto k'Gufo," that she is considered a full-fledged relative for whom his testimony is not accepted.)

(b) The RAN and ME'IRI agree with the explanation of the RA'AVAD. The Ra'avad maintains that the principle of "Palginan Dibura" applies with regard to excluding from a person's testimony any testimony about himself. (This is because what he says about himself is not considered to be the testimony of a witness at all, while the rest of what he says remains acceptable testimony. In contrast, when part of his testimony includes testimony about a relative, he *does* have the status of a witness, and since part of his testimony is invalid, all of it is invalid.) Hence, one might have thought that since, in this case, the man who testifies was not involved personally in the sin and is not testifying about himself (such that Beis Din would accept his testimony about the event entirely, since the part about himself is not considered part of the testimony at all), but rather he is testifying about a relative (his wife), Beis Din cannot invoke the principle of "Palginan Dibura." Since the man's testimony cannot be accepted with regard to his wife, Beis Din does not "split" his testimony and say that the event happened with the adulterer but not with his wife. The adulterer, therefore, should be exonerated as well. Rava teaches that a wife is considered like the man himself, and therefore Beis Din still may apply "Palginan Dibura" to kill the adulterer. (See ROSH in Teshuvos (60:1) who cites the opposite logic in the name of RAV HAI GA'ON.) (Y. MONTROSE)

2) LASHES INSTEAD OF DEATH

QUESTION: The Gemara discusses the dispute between Rebbi Yishmael and the Tana Kama with regard to whether a case of a crime which carries a punishment with lashes must be judged by twenty-three judges or whether three judges suffice. The Gemara inquires about the reason for Rebbi Yishmael's opinion that twenty-three judges are required. (See following Insight.)

Abaye explains that Rebbi Yishmael derives from a Gezeirah Shavah that twenty-three judges are required. The Torah uses the word "Rasha" to describe the guilty party with regard to both the penalty of death (which certainly requires a Beis Din of twenty-three) and the penalty of lashes. Just as a Chiyuv Misah requires a Beis Din of twenty-three, so, too, a Chiyuv Malkus requires a Beis Din of twenty-three.

Rava explains that the punishment of Malkus takes the place of the punishment of death, and therefore it requires twenty-three judges, like a Chiyuv Misah.

What is Rava's logical basis for comparing lashes to death?

ANSWERS:

(a) RASHI (DH Malkus b'Makom Misah) explains that at the moment that a person transgresses the will of Hash-m, he is fit to die. However, in certain cases Hash-m decreed that the type of "death" that the transgressor is to receive is lashes.

(b) TOSFOS (DH Malkus Tachas Misah) gives two other explanations, although he concludes that Rashi's explanation is the correct one. In his first explanation, he says that since the law prescribes the death penalty for Bnei Noach for transgressing any command for which they have been warned ("Azharasan Zo Hi Misasan"; Sanhedrin 57a), the fact that a Jew receives only Malkus for transgressing a command for which he has been warned (when the "Azharah" is not qualified with any specific punishment) is a form of kindness to the Jew. The lashes indeed take the place of death.

(c) In his second explanation, Tosfos says that since a transgressor who is punished with lashes occasionally dies as a result of the lashes, it is comparable to death.

Tosfos rejects both of these explanations because of Rav Acha's question on Rava. Rav Acha asks that according to Rava, who says that twenty-three judges are needed for a case of lashes because lashes take the place of death, why is there a requirement to estimate how many lashes the transgressor can withstand? Beis Din should administer the maximum number of lashes and let the transgressor die if he cannot endure them, since lashes, anyway, are given in place of death! According to the first explanation quoted by Tosfos, Rava means that lashes are a form of kindness that Hash-m granted to a Jewish transgressor, and therefore Rav Acha's question is inappropriate. Hash-m does *not* want him to die as a result of his sin, and thus Beis Din indeed must estimate how many lashes he can endure. Similarly, according to the second explanation quoted by Tosfos, lashes are comparable to death only because they might lead to the person's death; Beis Din, however, does not *want* him to die, and thus it is necessary to estimate how many lashes he can endure. For this reason, Tosfos accepts the explanation of Rashi. (Y. MONTROSE)

3) THREE JUDGES FOR A CASE OF LASHES

QUESTION: QUESTION: The Gemara discusses the dispute between Rebbi Yishmael and the Tana Kama with regard to whether a case of a crime which carries a punishment with lashes must be judged by twenty-three judges or whether three judges suffice. The Gemara inquires about the reason for Rebbi Yishmael's opinion that twenty-three judges are required.

Abaye explains that Rebbi Yishmael derives from a Gezeirah Shavah that twenty-three judges are required. The Torah uses the word "Rasha" to describe the guilty party with regard to both the penalty of death (which certainly requires a Beis Din of twenty-three) and the penalty of lashes. Just as a Chiyuv Misah requires a Beis Din of twenty-three, so, too, a Chiyuv Malkus requires a Beis Din of twenty-three.

Rava explains that the punishment of Malkus takes the place of the punishment of death, and therefore it requires twenty-three judges, like a Chiyuv Misah.

The Gemara, however, does not explain the reasoning of the Tana Kama, who argues with Rebbi Yishmael and requires only three judges in a case of lashes. What is the reasoning of the Tana Kama?

ANSWER: The KESEF MISHNEH explains the reasoning of the Tana Kama as follows. The RAMBAM (Hilchos Sanhedrin 16:1) makes a seemingly cryptic statement: "... and even though a case involving lashes requires only three judges, the lashes are still considered to be in place of death." The obvious question is that Rava said that lashes take the place of death only as a reason for the view of Rebbi Yishmael, to explain why *twenty-three* judges are needed. Why does the Rambam record this reason when he rules like the Tana Kama that only three judges are required for a case of lashes?

The Kesef Mishneh answers that the Tana Kama agrees that lashes take the place of death. The Tana Kama even uses this concept to derive the requirement that a case of lashes requires *expert* judges, witnesses, Hasra'ah, and interrogation and investigation similar to cases of the death penalty (as the Rambam writes there, 16:4). The Tana Kama argues only that this concept does not warrant the same number of judges as a case of a death penalty.

Similarly, the RAN writes that the Tana Kama agrees with the Gezeirah Shavah that Abaye mentions, as the Tana Kama indeed learns a number of Halachos from this Gezeirah Shavah (see Makos 5a). The Tana Kama argues only that the Gezeirah Shavah does not teach that a case of lashes requires twenty-three judges, since lashes is not as severe as death. Moreover, Rava himself agrees that certain laws are derived through the Gezeirah Shavah (see Tosfos to 33b, DH Asya), but he argues with Abaye and says that even according to Rebbi Yishmael the Gezeirah Shavah does not teach that a case of lashes requires twenty-three judges. That is why he explains that Rebbi Yishmael's reasoning is based on the logic that lashes take the place of death. (Y. MONTROSE)

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4) THE SIGNIFICANCE OF USING THREE, FIVE, AND SEVEN JUDGES FOR INSTITUTING A LEAP YEAR

QUESTION: The Mishnah (2a) records the dispute between Rebbi Meir and Raban Shimon ben Gamliel with regard to how many judges are required to institute a leap year (to add an extra month of Adar to the year). Rebbi Meir says that a Beis Din of three judges suffices, while Raban Shimon ben Gamliel says that the case begins with three judges, it is then discussed by five, and it is finalized by seven.

The Gemara asks why Raban Shimon ben Gamliel requires specifically a series of three, five, and seven judges to judge a case of a leap year. One opinion says that it corresponds to the number of words in the three verses of Birkas Kohanim, which contain three, five, and seven words respectively. Another opinion says that it corresponds to the three royal guards at the gate ("Shomrei ha'Saf"), five of the royal servants who see the king ("Ro'ei P'nei ha'Melech"), and the seven royal servants who see the king ("Ro'ei P'nei ha'Melech"), as depicted in Sefer Melachim and Megilas Esther.

What is the connection between judging a case of a leap year and the verses of Birkas Kohanim, or the number of royal guards and servants?

ANSWERS:

(a) RASHI explains that the reason the number of judges necessary for instituting a leap year is patterned after the number of royal guards and servants is that the establishment of the calendar and the proper order of the years is an act of honor for Malchus Shamayim, the Kingship of Hash-m.

The ARUCH LA'NER bases its significance on the fact that the first Mishnah in Rosh Hashanah states that the month of Nisan is the new year for kings, which means that even if the king took power only a month prior to Nisan, when the month of Nisan arrives it is counted as his second year of reign. Since the establishment of the length of the year (with an extra month before Nisan) is relevant to the earthly king's reign, this is symbolized by having the number of judges needed to judge the case of a leap year correspond to the number of guards and servants of the king.

(b) The YAD RAMAH explains that both Birkas Kohanim and the establishment of a leap year are acts that show Hash-m's fondness and favor for the Jewish people. When Hash-m commanded the Kohanim to bless the Jewish people, He did not give them the commandment in one long verse with fifteen words. Rather, He separated His command into three verses, each one containing an increasing number of words, in order to show His affection for the Jewish people. The establishment of the length of the year, together with all of its Yamim Tovim, is very important to the Jewish people, and thus we show our fondness for them by establishing the year, and the date of its Yamim Tovim, with increasing numbers of judges.

(c) The MARGOLIYOS HA'YAM demonstrates a number of similarities between Birkas Kohanim and the establishment of a leap year. The Gemara in Chulin (49a) states that when the Kohanim bless the Jewish people, Hash-m agrees to grant the blessing. Similarly, the Midrash (Shemos Rabah 15) states that when Beis Din establishes the year, Hash-m agrees with their declaration. Therefore, it is understandable that the number of judges used for establishing the leap year alludes to another thing to which Hash-m gives His agreement, which is Birkas Kohanim. (See also MAHARSHA for an explanation of how the blessings of Birkas Kohanim allude to the factors involved in establishing a leap year.) (Y. MONTROSE)

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