1) THE OPENING ARGUMENT IN A MONETARY CASE

QUESTION: The Mishnah lists the differences between Dinei Mamonos and Dinei Nefashos. One difference is that the opening argument in Dinei Mamonos may be one to prove the defendant's innocence or one to prove his guilt. In Dinei Nefashos, the opening argument must be one to prove the defendant's innocence.

How is it possible to propose an argument that will show one's innocence or guilt in Dinei Mamonos? In a monetary case there are always two disputants involved, and if one person is liable (guilty) then the other one is exempt. Any argument presented will simultaneously prove one litigant guilty and the other innocent!

ANSWERS:

(a) The DEVAR MOSHE writes that the Mishnah apparently refers to the defendant against whom the claim is made. "Zechus" means that the defendant is exempt, and the claimant loses. This approach finds support in the words of the YERE'IM (#184) who writes that the decision of a majority of two judges is not required in the ruling of a monetary case, because the verse which discusses the need for a majority of two says, "Lo Siheyeh Acharei Rabim l'Ra'os" (Shemos 23:2). This verse cannot apply to Dinei Mamonos, since there is no objective evil ("Ra'os") in a court case involving money; a ruling that is undesirable to one disputant is pleasing to the other. The Yere'im understands that there is no case of Dinei Mamonos in which all defendants lose.

However, there *does* seem to be a case of Dinei Mamonos which has an objective loss: a case in which Beis Din rules "Yehei Munach" about an object in question. Such a ruling states that neither disputant receives the disputed object (Bava Metzia 3a). Perhaps "Yehei Munach" is not considered a loss to either disputant since it is not a definitive ruling. Rather, Beis Din states "Yehei Munach" merely to delay ruling on the matter until further proof is found, at which point Beis Din will give the object to the one who brings the proof.

(b) The KOS YESHU'OS suggests that there can be an objective loss in Dinei Mamonos in a case involving an animal that killed a man or that had relations with a man and must be put to death. In such a case, no one gains monetarily by putting the animal to death.

This might be the intention of RASHI (DH v'Dinei Nefashos) when he proves from the Gemara later (36b) that a majority ruling of two judges is not required in Dinei Mamonos. The Gemara later says that a majority of two is not required in a case of a Shor ha'Niskal, executing an ox. Rashi writes that if a majority of two is not required in such a verdict, then all the more so it is not required in other monetary cases. Rashi means that other monetary cases, which do not involve an objective loss (since one disputant gains when the other loses), certainly should not require a majority of two judges.

It seems that the Yere'im and Rashi disagree about whether a case of Shor ha'Niskal is included in the category of Dinei Mamonos. Rashi refers to a case of Shor ha'Niskal as a case of Dinei Mamonos, because Beis Din judges whether or not to take away a person's property (the Shor). The Yere'im may place it in a category of its own, since the case involves the taking of a life, even though it is a not a human life. There might be practical differences between them with regard to certain laws that apply only to Dinei Mamonos. The Gemara later (36b) writes that all of the laws of the Mishnah that apply to Dinei Mamonos also apply to Shor ha'Niskal. However, there are other laws that are not mentioned in the Mishnah. For example, the Gemara (30b) teaches that Hakchashah in Bedikos does not invalidate testimony in Dinei Mamonos, but it does invalidate testimony in Dinei Nefashos, according to Rav Yehudah. Also, in cases of Dinei Mamonos, Beis Din accepts testimony from two witnesses who were not aware of each other's presence when the event occurred, but not in cases of Dinei Nefashos. Perhaps a case of a Shor ha'Niskal will not be considered Dinei Mamonos with regard to these laws. (M. KORNFELD)

2) A LESSER JUDGE WHO ARGUES BEFORE A GREATER JUDGE

QUESTION: The Mishnah teaches that in cases of Dinei Mamonos the greater judge presents his view first, while in cases of Dinei Nefashos the lesser judges present their views first. RASHI explains that the Gemara later (36a) teaches that this is because of the verse, "Lo Sa'aneh Al Riv" (Shemos 23:2), which the Gemara expounds -- based on the spelling of the word "Riv" as "Rav" -- to mean, "Do not argue with the Rav," with one who is greater than you. The verse implies that a less experienced judge is not permitted to argue with a greater judge, as the SEMAG (Lo Ta'aseh 196) and RAMBAM (Perush ha'Mishnayos) indeed write. This is also the implication of Rashi elsewhere (18b and 36a, DH Lo Sa'aneh, and in Gitin 59a, DH d'Chulhu).

How can this verse be reconciled with the law in the beginning of the Mishnah, which states that *anyone* may propose an argument to exonerate the defendant in a case of Dinei Nefashos? The Gemara (end of 33b, cited by Rashi here) explains that this means that even a student may speak up to challenge the rulings of his mentors, the members of the court. (NIMUKEI YOSEF, 13b of the pages of the Rif)

Moreover, the Gemara earlier (6b) teaches that if a student sees his master mistakenly accept the claims of one of the disputants, he is obligated to speak up and tell his master of the mistake. Even though the statement there (6b) was made with regard to Dinei Mamonos, monetary law, we do not find that the Derashah of "Lo Sa'aneh Al Rav" is limited to Dinei Nefashos. We find only that we *take into account* the effects of "Lo Sa'aneh Al Rav" in cases of Dinei Nefashos but not in cases of Dinei Mamonos, and not that "Lo Sa'aneh Al Rav" only *applies* to Dinei Nefashos and not to Dinei Mamonos. (TOSFOS to 36b, DH Dinei, according to the MAHARSHA there; NIMUKEI YOSEF, 13b of the pages of the Rif)

Third, if an elder judge does speak up first (wrongly), how is it possible to obligate the other judges to follow his ruling and agree with him when they believe that his ruling is incorrect? (MISHNEH L'MELECH, in Parashas Derachim, Derech Mitzvosecha #2)

ANSWERS:

(a) TOSFOS (36b, DH Dinei) answers the first two questions by explaining that although a lesser judge of the court may not contradict a greater judge, he may present the greater judge with *a question* on his ruling for the judge to consider. This is what the Mishnah means when it says that a student may speak up, and this is what the Gemara (6b) means when it says that a student may correct his superior.

RASHI (18b and 36a, DH Lo Sa'aneh, and Gitin 59a, DH d'Chulhu) seems to answer the first two questions by explaining that one is permitted to argue with any judge other than the *greatest judge of the times*, the "Mufla" of the Sanhedrin.

(In a second answer, Tosfos proposes that the verse that prohibits a younger member from contradicting his superior applies only to Dinei Nefashos. This is also the opinion of the YERE'IM (#184; see also Rashi to Gitin 59a, DH d'Chulhu). This answers the question from the Beraisa (6b). Regarding the question from the Mishnah, perhaps the Mishnah allows a student to speak up and to correct his superiors in Dinei Nefashos only *before* the elder member of the court has ruled (since his ruling is saved for last, as the Mishnah says). Even though other members of the court have already presented their opinions and they, too, are greater than the student, the prohibition of the verse relates only to arguing with the eldest member of the court.)

The answer to the third question is that a justice who does not agree with the head of the court is *not* obligated to rule against his own reasoning. Rather, he may remain silent and withdraw from the case, and let another judge (who agrees with the ruling of the head of the court) take his place (DEVAR MOSHE #206).

(b) The CHIDUSHEI HA'RAN (36b, and as cited by the NIMUKEI YOSEF) answers that the verse does not mean to *prohibit* a younger member of the court from arguing with an older member of the court. He certainly is permitted to argue, as implied by the three questions posed above.

Rather, the verse addresses the eldest member of the court and warns him not to speak before the other members, lest they refrain from presenting their true views (to exonerate the defendant in a capital case) out of respect for the eldest member (who found the defendant guilty). That is, the eldest member is warned to take into account the fact that others will feel uncomfortable arguing with him. He is told, "Lo Sa'aneh Al Rav," which means that -- by presenting his view first -- he should not *cause others* to have to argue with him when they present their arguments.

This also appears to be the intention of RASHI here (DH Min ha'Tzad, in contrast to what he writes in the other places; see CHAMRA V'CHAYEI, MARGOLIYOS HA'YAM, DEVAR MOSHE), and the RAMBAM (Hilchos Edus 10:6)).

3) A DATE ON WHICH THE WITNESSES COULD NOT HAVE SIGNED

QUESTION: The Gemara says that when witnesses sign a Shtar which is dated the first of Nisan, and other witnesses make the first set into Edim Zomemim and say that they could not have signed the Shtar on the first of Nisan, the first witnesses remain valid. This is because even if it is true that the witnesses could not have signed the Shtar on the first of Nisan, it is assumed that the Shtar is a Shtar Me'uchar.

RASHI explains that the Shtar is valid as a Shtar Me'uchar because the witnesses did not sign the Shtar on the date on which the event occurred, but rather they signed it on the first of Nisan and described an event that occurred earlier. Therefore, even if the witnesses -- on the first of Nisan -- were not in the place where the earlier event happened, the Shtar is valid because the witnesses attest to the Shtar's description of what happened on an earlier date (when they were able to witness the event).

If the witnesses wrote the Shtar on a later date (after the event occurred), then why did they write in the Shtar the name of the place where the event occurred, and not the name of the place in which the Shtar was written (which is the correct way to write a Shtar, as the Gemara in Gitin (80a) says)? Rashi explains that the Gemara in Gitin merely *recommends* that the witnesses write the name of the place in which the Shtar is written, along with the date on which it is written, but if they write the place where the event occurred the Shtar is still valid, b'Di'eved.

Why does Rashi not give a more straightforward explanation and say that the Shtar is Me'uchar because it presumably was written at the time that the event occurred, but a later date (i.e. the first of Nisan) was written in the Shtar (so that the Shibud should not start until the later date)? (TOSFOS DH Chaishinan, Rishonim)

ANSWER: RASHI apparently derives his explanation from the wording of the Gemara. The Gemara says that "perhaps they delayed the Shtar and [then] they wrote it (Shema Ichruhu v'Chasvuhu)." If the Gemara means that the witnesses simply wrote a later date in the Shtar, then the word "v'Chasvuhu" ("and they wrote it") refers to the *date* written in the Shtar, which was written as a later date than the one on which the event occurred, and it does not refer to the Shtar itself. The context of the Beraisa, however, implies that "v'Chasvuhu" refers to the Shtar itself; they delayed and wrote *the Shtar*. That is, the Shtar itself was not written immediately when the event occurred, but rather its writing was delayed. (This might be why Tosfos -- who explains the Gemara as suggested in the question -- omits the word "v'Chasvuhu" when he quotes the Gemara.)

However, if this is Rashi's inference from the Gemara, then the Gemara itself needs clarification. Why does the Gemara explain that the Shtar is valid only because it might have been written at a later date, and not because the witnesses might have written it immediately but put a later date in it?

The answer may be as follows. The rule, "Keivan she'Higid Shuv Eino Chozer u'Magid" -- "once a witness has testified, he cannot retract and give different testimony," dictates that the witnesses who sign a Shtar are not believed to testify contrary to something that is implied by their signatures. For this reason, the witnesses cannot say that they were minors or invalid witnesses when they signed the Shtar (see Kesuvos 18b). If the witnesses themselves cannot contradict what is implied by their own signatures, then certainly Beis Din cannot assume that they meant to say something different than what is implied by their signatures.

Since the Shtar does not say explicitly that the date written in the Shtar is not the date on which the Shtar was signed, it is assumed that the witnesses are testifying that they signed on the day written in the Shtar. Therefore, when other witnesses come and attempt to make them Edim Zomemim, Beis Din cannot defend their testimony by saying that they really signed on a different day than the date written in the Shtar. The only way to defend them is by saying that they signed on the day written in the Shtar, but the Shtar describes an event which occurred on an earlier date. (That is, the date is associated with the time of the signature and not with the time of the event that is recorded in the Shtar.)

This answers the question raised by the TUMIM (38:8) and TAZ (CM 42). They ask, why does the same argument not defend every case in which two witnesses are made into Edim Zomemim? Even though they could not have been in the place that they describe on the day that they describe, perhaps the event that they describe took place on a different date than the date they claim, and they are lying only about the date. If they are lying only about the date, then they should not be invalid witnesses! The answer might be that since the witnesses cannot change their testimony about the date they originally said because of the rule of "Keivan she'Higid," Beis Din cannot defend them by suggesting that they are lying only about the date.

Tosfos and the other Rishonim might agree with Rashi on this point. However, Tosfos maintains that it is not implicit in the Shtar that their signatures took place on the date written in the Shtar, since it is common for people to write a later date in a Shtar in order to delay the Shibud.

32b----------------------------------------32b

4) THE REQUIREMENT OF "DERISHAH V'CHAKIRAH" IN CASES OF "DINEI MAMONOS"

QUESTION: The Gemara explains that although the Torah requires Derishah v'Chakirah of witnesses in cases of Dinei Mamonos, the Chachamim annulled the need for Derishah v'Chakirah in order to make it easier for borrowers to obtain loans. The Gemara learns this from the Beraisa and Mishnah which teach that a Shtar Me'uchar is valid even though Beis Din does not know when it was written.

Although the Gemara suggests other answers to reconcile the Halachah of a Shtar Me'uchar with the Mishnah which says that cases of Dinei Mamonos require Derishah v'Chakirah, all of the answers given accept the fact that it was the Chachamim who waived the requirement of Derishah v'Chakirah. (See RASHI DH Rava Amar.)

The Gemara implies that only in cases of Dinei Mamonos is the need to know the correct date of the Shtar waived because of this Takanah d'Rabanan. Why, then, does the Gemara in Yevamos (31b) state that documents of Gitin and Kidushin also do not need a date, mid'Oraisa? The Gemara in Gitin (17b) teaches that, mid'Rabanan, the date must be written in a Get l'Chatchilah because of the concern for "Bas Achoso" (see Background to Gitin 26:4c). Why does the Gemara there *not* say that the date must be written in order to fulfill the requirement of Derishah v'Chakirah? The reasoning that the Chachamim sought to make it easier for a borrower to obtain a loan does not apply there in Gitin, because the Gemara there is not discussing documents of loans. Moreover, the matters of Get and Kidushin are matters of Isur and not just monetary law. Why, then, do documents of Gitin and Kidushin not require a date mid'Oraisa?

ANSWERS:

(a) The NIMUKEI YOSEF (10b of the pages of the Rif) explains that the Chachamim indeed waived the requirement to write the date in documents of Gitin and Kidushin as well, because they are common Shtaros. Since documents of Gitin and Kidushin are common, the Chachamim did not want to them to be too complicated, and thus they waived the requirement for Derishah v'Chakirah. The Chachamim are empowered with the right to waive such a requirement -- even though a Get involves the serious matter of Eshes Ish -- based on the principle that when a person is Mekadesh a woman he does so "Al Da'ata d'Rabanan" (Kesuvos 3a). When a Get is written without a date, the Chachamim retroactively remove the Kidushin and thereby annul the marriage.

(b) RABEINU CHAIM HA'LEVI SOLOVEITCHIK (Hilchos Edus) questions the explanation of the Nimukei Yosef. The Gemara in Yevamos (31b) implies that a Get Shichrur also does not need the date written in it, mid'Rabanan. How can the Chachamim validate a Get Shichrur which is not valid mid'Oraisa? Even if they uproot the Avdus retroactively, the Eved will not become a full-fledged Jew because his original Tevilah was done in order to make him an Eved and not a full Jew. How can a Get Shichrur make an Eved into a full Jew?

Rabeinu Chaim explains instead that a Shtar without a date is not considered lacking the Derishah v'Chakirah of witnesses. This is because of the rule that witnesses who sign a Shtar are "Na'aseh k'Mi she'Nechkerah Edusan b'Veis Din" -- they are considered as though they already passed the entire interrogative process of Beis Din. This is why a Shtar may be written at night even though Beis Din does not convene at night; the signed testimony is considered as though it was delivered in Beis Din in the proper manner.

Rabeinu Chaim adds that perhaps the rule of "Na'aseh k'Mi she'Nechkerah Edusan b'Veis Din" does not apply to the requirement for Derishah v'Chakirah, because Derishah v'Chakirah is not an aspect of the testimony itself. Rather, it is an aspect of the way the court relates to the testimony. Nevertheless, Derishah v'Chakirah is still not required of witnesses who sign a Shtar because their testimony does not have to be accepted by the court in order to make the Shtar valid. This is because there is no need for a formal "Kabalas Edus," and therefore the testimony on a Shtar does not need Derishah v'Chakirah in Beis Din.

Why, then, does the Gemara assert that a Shtar Me'uchar should not be valid if there is a requirement for Derishah v'Chakirah? The reason is that a Shtar Me'uchar lacks not only Derishah v'Chakirah, but the testimony has been *contradicted* with regard to the Chakiros, because the witnesses say that the event took place on one day while others say that it did not take place on that day. If cases of Dinei Mamonos would require Derishah v'Chakirah, then such a contradiction would invalidate the Shtar. The Gemara answers that the Chachamim removed the need for Derishah v'Chakirah, and therefore the Shtar is valid even if there is a contradiction in the Chakiros. With regard to a document of Get or Kidushin which has no date written in it, the Shtar would be valid even mid'Oraisa since it is "k'Mi she'Nechkerah Edusan b'Veis Din," or because it does not require "Kabalas Edus."

(This answer requires elucidation. If the testimony of the witnesses who signed the Shtar is considered to be *contradicted* by the new set of witnesses who say, "We were with the alleged witnesses all that day and they did not sign the document," how can Beis Din protect the signatories by saying that the Shtar was Me'uchar? Even the signatories themselves would not be able to say that the Shtar was Me'uchar if it would be considered a *contradiction* to their original testimony, since it would be considered "Chozer u'Magid" (see previous Insight). -M. KORNFELD)

However, Rabeinu Chaim points out that this approach answers the question only according to the RAMBAN cited by the SEFER HA'TERUMOS (29:2), who writes that even a contradiction in matters of the Chakiros does not invalidate testimony in cases of Dinei Mamonos. However, the RAMBAM (Hilchos Edus 3:3) rules that even after the Takanah d'Rabanan that waived the requirement for Chakiros for Dinei Mamonos, if the witnesses in Dinei Mamonos contradict themselves in matters of Chakiros, their testimony is disqualified. According to the Rambam, it is clear that the Gemara considers a Shtar Me'uchar to be *lacking* Derishah v'Chakirah, and not as being *contradicted* by Derishah v'Chakirah.

(c) Rabeinu Chaim answers the question according to the view of the Rambam by saying that the Rambam is consistent with his own opinion (in Hilchos Edus) that witnesses who sign a Shtar Ra'ayah (a Shtar written to serve as proof about what happened) are not valid witnesses mid'Oraisa because of the rule of "mi'Pihen v'Lo mi'Pi Kesavan" (their testimony must be delivered orally and not in writing). However, witnesses signed on a Shtar Kinyan (a Shtar written to accomplish a certain effect, such as a Get) *are* valid mid'Oraisa even according to the Rambam, as Rabeinu Chaim proves, because the Torah teaches that witnesses in such a Shtar are considered to have testified properly in a valid court ("k'Mi she'Nechkerah Edusan b'Veis Din").

Hence, a document of Get or Kidushin certainly needs no date, because of the reasons mentioned earlier (in (b) above). However, the Gemara assumed that a Shtar Ra'ayah *should* require a date, since the rule of "k'Mi she'Nechkerah Edusan b'Veis Din" does not apply to it. (Although the Chachamim instituted that such a Shtar is valid and is "k'Mi she'Nechkerah Edusan," nevertheless they did not remove the requirement that there be a "Kabalas Edus," that testimony must be formally received in court. Therefore, the Shtar should require a date in order to fulfill the requirement of "Kabalas Edus," which is not included in the Takanah d'Rabanan of "k'Mi she'Nechkerah.")

(d) Another possible answer is that even though signatures on a Shtar are normally considered "k'Mi she'Nechkerah Edusan b'Veis Din," in the Beraisa's case of Shtar Me'uchar there is reason to suspect misconduct on the part of the witnesses who signed (because two other witnesses claim that the first witnesses were with them on the date that appears on the Shtar, and they did not sign the Shtar). This creates a slight reason to doubt the veracity of the witnesses (slight, because there is always the possibility that the Shtar is Me'uchar).

If Derishah v'Chakirah would not be required for Dinei Mamonos, then the Shtar would not be disqualified merely because of the slight cause for suspicion. Rather, the Chachamim would say that as long as there is no *strong* reason to doubt the testimony of the witnesses who signed, their testimony is accepted (and they would apply the rule of "k'Mi she'Nechkerah Edusam b'Veis Din," which is based on the inherent honesty of witnesses whose signatures appear on a Shtar). It therefore would be assumed that the Shtar is Me'uchar (as the Beraisa indeed rules).

However, if Derishah v'Chakirah *would* be required for Dinei Mamonos, then the requirement for Derishah v'Chakirah would be interpreted to mean that Beis Din is supposed to do everything in its power to *disqualify* the testimony of the witnesses. Therefore, the Chachamim would invalidate the Shtar (and no longer apply "k'Mi she'Nechkerah Edusam b'Veis Din") even if there exists only a slight reason to doubt the witnesses' honesty.

If this is true, then a Shtar without a date certainly will be valid without Derishah v'Chakirah, since such a Shtar does not arouse any suspicion. The Shtar in the case of the Gemara here is not valid only because suspicion has been aroused. (See Rashi DH Heichi). (M. KORNFELD)

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