1)THE DIFFERENCES BETWEEN MONETARY AND CAPITAL CASES
(a)(Mishnah): The same laws of Drishah v'Chakirah apply to monetary and capital cases - "Mishpat Echad Yihyeh Lachem."
(b)The following are different in monetary and capital cases:
1.Monetary cases require three judges. Capital cases require 23;
2.In monetary cases, the judges may begin their discussion with an opinion for Zechus or Chiyuv. Capital cases must begin with Zechus;
3.In monetary cases, a majority of one suffices for Zechus or Chiyuv. In capital cases, a majority of one suffices for Zechus, but a majority of two is needed for Chiyuv;
4.In monetary cases, we can overturn a verdict of Zechus or Chiyuv. In capital cases, we can overturn a verdict of Chiyuv, but not of Zechus.
5.In monetary cases, anyone (even Talmidim) can give a reason for Zechus or Chiyuv. In capital cases, anyone can give a reason for Zechus, but not everyone can give a reason for Chiyuv.
6.In monetary cases, one who gave a reason for Zechus can give a reason for Chiyuv, or vice-versa. In capital cases, one who gave a reason for Chiyuv can give a reason for Zechus, but one who gave a reason for Zechus cannot give a reason for Chiyuv.
7.Monetary cases must be started during the day, and they can be finished at night. Capital cases are started and finished during the day.
8.Monetary cases are judged and finished on the same day, for Zechus or Chiyuv. Capital cases can be finished on the same day for Zechus, but a verdict of Chiyuv cannot be given until the next day;
i.Therefore, we do not begin capital cases on Erev Shabbos or Erev Yom Tov.
9.In monetary cases or questions of Tum'ah, the greatest Chacham begins (gives his opinion). In capital cases, we may not begin with the greatest Chacham.
10.Everyone (even a Mamzer) may judge monetary cases, but capital cases require Kohanim, Leviyim or Yisraelim who may marry a Bas Kohen.
(c)(Gemara) Question: Do monetary cases really require Drishah v'Chakirah?
1.Contradiction (Beraisa): If Yo'av and Michah were signed on a document dated 'Nisan 1, in Shemitah (in the place Ploni)', and Reuven and David said 'they were with us that day elsewhere (too far to get to Ploni the same day)', the document and its witnesses are Kesherim. We assume that it was postdated.
2.This shows that we do not require Drishah v'Chakirah (it is primarily to enable Hazamah)!
3.Question: Why didn't we ask from a Mishnah?
i.(Mishnah): Predated loan documents are disqualified (because they can be used to swindle), postdated loan documents are Kesherim.
ii.If we require Drishah v'Chakirah, why are they Kesherim?
4.Answer: The Beraisa is a bigger Chidush. Even though it is unlikely that one would postdate a document and give a date in Shemitah, since it looks suspicious (people usually refrain from lending in Shemitah, lest the loan be cancelled), we assume that this was the case;
i.Shemitah does not cancel loans until the end of Shemitah, therefore the document is valid.
(d)The contradiction has not been resolved yet.
(e)Answer #1 (R. Chanina): Our Mishnah teaches that mid'Oraisa, the same laws of Drishah v'Chakirah apply to monetary and capital cases - "Mishpat Echad Yihyeh Lachem";
1.Chachamim enacted that monetary cases do not require Drishah v'Chakirah, due to Ne'ilas Delet (lest one be deterred from lending, out of fear that the witnesses will remember the loan but forget Drishos or Chakiros, and he will be unable to collect).
(f)Question: If so, we should say that Beis Din does not pay if they err (since they could not interrogate the witnesses)!
(g)Answer: All the more so, that would discourage people from lending!
(h)Answer #2 (Rava): Our Mishnah discusses fines (Ne'ilas Delet does not apply, so no enactment was made). The Beraisa discusses admissions and loans (in which Drishah v'Chakirah was abolished).
(i)Answer #3 (Rav Papa): Both discuss admissions and loans. Our Mishnah discusses a Din Merumeh (when Beis Din senses that the claim is false). The Beraisa discusses a normal case.
1.Contradiction (Reish Lakish): It says "b'Tzedek Tishpot Amisecha", and it says "Tzedek Tzedek Tirdof" (one must be extra zealous to reach the correct verdict)!
2.Answer #1 (Reish Lakish): One must be extra zealous in a Din Merumeh.
3.Answer #2 (Rav Ashi): (We resolve the Mishnah and Beraisa like R. Chanina or Rava.) "Tzedek Tzedek Tirdof" teaches to equally pursue Din (letter of the law) or compromise.
i.(Beraisa): "Tzedek Tzedek Tirdof" - equally pursue Din and compromise. If two ships encounter each other in a narrow river, if they try to pass at the same time, both will sink. If they go one after the other, both will pass.
ii.The same applies to two camels ascending (in opposite directions) the incline to Beis Choron, and they meet at the peak (it is wide enough for only one). If they go at the same time, they will fall. If one waits for the other, both will pass;
iii.If one was laden and the other empty, the laden one goes first. If one was near its city and the other far, the far one goes first;
iv.If they are equal, make a compromise between them. The one that waits receives compensation.
(j)(Beraisa): "Tzedek Tzedek Tirdof" - go to a good Beis Din, e.g. to R. Eliezer in Lud, or to R. Yochanan Ben Zakai in Beror Chayil.
(k)(Beraisa): If a mill is heard in Boreni, this hints to (grinding spices to cure the wound of) a circumcision (when the king decreed against circumcision, they could not openly announce it);
1.A lamp burning (by day, or many lamps at night) in Beror Chayil is a sign of a circumcision feast.
(l)(Beraisa): "Tzedek Tzedek Tirdof" - go to the Beis ha'Va'ad: to R. Eliezer in Lud, to R. Yochanan Ben Zakai in Beror Chayil... or to the Great Sanhedrin in Lishkas ha'Gazis.
2)WE BEGIN MONETARY CASES WITH ZECHUS
(a)(Mishnah): In monetary cases, we begin...
(b)Question: How do we begin (to interrogate the witnesses, for Zechus, in capital cases)?
(c)Answer #1 (Rav Yehudah): We say 'who says that it was like you say?!'
(d)Objection (Ula): This will make them retract!
1.Question: What is wrong with that?
i.(Beraisa - R. Shimon ben Elazar): We make the witnesses move from place to place, perhaps this will confound them and they will decide not to testify.
2.Answer: We encourage them to retract on their own (if they are lying). We do not induce them to retract (perhaps they are telling the truth)!.
(e)Answer #2 (Ula): We ask the defendant if he has witnesses to Mezim them.
(f)Objection (Rabah): Do we begin with Zechus for the defendant that is (mortal) liability for the witnesses?!
1.Question: (If Mezimim come now,) this is not liability for the witnesses!
i.(Mishnah): Edim Zomemim are killed only if there was a final verdict to kill the defendant.
2.Correction: Rabah meant that do we begin with Zechus for the defendant, which (if there would be a final verdict before Mezimim were brought) could obligate witnesses to die?!
(g)Answer #3 (Rabah): We ask the defendant if he has witnesses to contradict them.
(h)Answer #4 (Rav Kahana): We say 'from your words, Ploni is innocent.'
(i)Answer #5 (Abaye and Rava): We tell Ploni 'if you did not kill, don't worry. (You will not be killed.)'
(j)Answer #6 (Rav Ashi): We say ''whoever knows Zechus for Ploni, let him come and say it!'
1.Support (for Abaye and Rava - Beraisa - Rebbi): "Im Lo Shachav..." teaches that in capital cases we begin with Zechus.