Perek Hayu Bodkin

1)

(a)Our Mishnah discusses the seven Chakiros. Four of the seven Chakiros are the Shavua, which year of the Shavu'a, the month and which day of the month. What does 'Shavu'a' mean?

(b)What are the other three Chakiros?

(c)Having asked them ...

1. ... the day of the month, what is the point of them asking them the day of the week?

2. ... the day of the week as well, what is the point of asking them the time of day?

(d)According to Rebbi Yossi, the Chakiros consisted of only three questions. Which three?

1)

(a)Our Mishnah discusses the seven Chakiros. Four of the seven Chakiros are the Shavua, which year of the Shavu'a, the month and which day of the month. 'Shavu'a' means - which of the seven-year Sh'mitah cycles that form the seven cycles of the Yovel.

(b)The other three Chakiros are - the day of the week, the time of day and the location.

(c)Having asked them ...

1. ... the day of the month, Beis-Din would nevertheless ask them the day of the week - so that, if the Eidei Hazamah were not aware of the date of the month, when they asked the witnesses which day of the week it was, they would remember to declare them Zomemin.

2. ... the day of the week as well, they would nevertheless ask them the time of day - in case the witnesses had not been with the Mazimin for the entire day, only for that hour.

(d)According to Rebbi Yossi, the Chakiros consisted of only three questions - the day of the week, the time and the location.

2)

(a)What is the difference between the result of a discrepancy in the Bedikos and the result of a discrepancy in the Chakiros?

(b)Beis-Din are obligated to ask the witnesses whether they recognize the murdered man. What is the significance of the first question?

(c)What additional question are the Beis-Din obligated to ask the witnesses?

(d)And what else did they ask the witnesses who are testifying that someone worshipped idolatry? Why was that necessary?

(e)The more Bedikos Beis-Din ask, says the Mishnah, the better. What did ben Zakai once ask the witnesses about the figs of the fig-tree under which the murder took place?

2)

(a)If there is a discrepancy in the Bedikos - then the witnesses are disqualified, but not punished, whereas a discrepancy in the Chakiros - means that they are Zomemin and will receive the same punishment as the defendant would have received at their hand.

(b)Beis-Din are obligated to ask the witnesses whether they recognize the murdered man - in case he was a Nochri (in which case neither the defendant nor the witnesses are are subject to Misah).

(c)The Beis-Din are also obligated to ask the witnesses - whether they warned the defendant.

(d)And if the witnesses are testifying that someone worshipped idolatry, they would also ask them - which idol he had worshipped (in case the form of worship was not common to that particular idol, in which case he would not be Chayav Misah).

(e)The more Bedikos Beis-Din asked, says the Mishnah, the better. In fact, ben Zakai once asked the witnesses - whether the stalks of the figs that grew on the tree under which the murder took place were thick or thin.

3)

(a)Would the witnesses' testimony have been affected had either of the witnesses been unable to answer the previous question?

(b)Then why did be Zakai ask it?

(c)Why is the witnesses' testimony not negated if one of them claims that the murder took place on the second of the month, and the other, on the third?

(d)To what extent do we allow such a discrepancy? In which case will their testimony be negated?

3)

(a)Seeing as the thickness of the stalks does not affect the accused one way or another, the witnesses testimony - would not have been affected even if either of them (or even if both of them) had been unable to answer the previous question.

(b)ben Zakai nevertheless asked it - in an effort to get the witnesses to contradict each other (in which case their testimony would have been disqualified, and the life of the accused would have been saved).

(c)The testimony of the witnesses is not negated if one of them claims that the murder took place on the second of the month, and the other, on the third - because we allow for the fact that one of the witnesses does not know on which day Rosh Chodesh fell.

(d)A discrepancy of two days (from the third to the fifth for example) however - will render their testimony disqualified.

4)

(a)The Tana Kama allows up to one hour discrepancy (based on human error) in the morning, but not two. What does Rebbi Yehudah say?

(b)When will even Rebbi Yehudah consider a two-hour discrepancy unacceptable? Why is that?

(c)We have already learned that a witness may not express an opinion, even li'Zechus. What happens if one of the Talmidim has something to say ...

1. ... le'Chovah?

2. ... li'Zechus?

(d)What if the accused has something to say in his own defense?

4)

(a)The Tana Kama allows up to one hour discrepancy (based on human error) in the morning, but not two. Rebbi Yehudah allows even two ...

(b)... unless those two hours are - from five hours in the day (eleven o'clock) to seven (one o'clock), because at five hours, the sun is still in the east, whereas at seven hours, it is already in the west (and the witnesses ought to have known better). In such a case, even Rebbi Yehudah considers a two hour discrepancy unacceptable.

(c)We have already learned that a witness may not express an opinion, even li'Zechus. Should one of the Talmidim have something to say ...

1. ... le'Chovah - he is not permitted to do so.

2. ... li'Zechus - then we seat him together with the Sanhedrin (see Rashash), where he remains all day (though this will be amended later).

(d)Even if the accused has something to say in his own defense - we listen to him, provided his initial words have substance.

5)

(a)Assuming that they find the accused guilty, what the procedure do they follow ...

1. ... for the rest of that day?

2. ... during the night of Halanas Din?

(b)What procedure do they follow with regard to food and drink?

(c)On the next day, after reviewing their respective opinions, which are checked by the two Sofrim, what is the Din regarding the Dayanim changing their opinion?

(d)We have already learned that if twelve Dayanim declare the accused guilty, and eleven, innocent, or if one Dayan doesn't have an opinion, they bring in another two Dayanim. What will they do if, at the end of the day, thirty-six Dayanim declare him guilty and thirty-five, innocent? What will they then be required to do, to conclude the Din?

(e)But did we not learn earlier that a judge is not permitted to switch his opinion from Z'chus to Chov?

5)

(a)Assuming that they find the accused guilty, the procedure ...

1. ... for the rest of that day is - to divide into groups of two (in their own private homes, or in the street), to discuss the ins and outs of the case.

2. ... during the night of Halanas Din is - to stay up all night delving into the details of the case on hand on one's own.

(b)As regards the procedure for eating - they eat little, and in any event, wine is forbidden.

(c)On the next day, after reviewing their respective opinions, which were checked by the two Sofrim - the Dayanim are permitted to change their opinion from Chovah to Z'chus, but not vice-versa.

(d)We have already learned that if twelve Dayanim declare the accused guilty, and eleven, innocent, or if one Dayan doesn't have an opinion, they bring in another two Dayanim. If, at the end of the day, thirty-six Dayanim declare him guilty and thirty-five, innocent, then, to conclude the Din - they continue discussing the issue, to convince even just one Dayan to change his stance. If they do they will end up with either 37-34 le'Chovah, or 36-35 li'Z'chus ...

(e)... because what we learned earlier that a judge is not permitted to switch his opinion from Z'chus to Chov - does not apply at the time of G'mar-Din.

40b----------------------------------------40b

6)

(a)We learn three of the seven Chakiros from the Pasuk in Re'ei "ve'Darashta, ve'Chakarta, ve'Sha'alta Heitev". In which context is this Pasuk written?

(b)We learn two more from the Pasuk in Shoftim (in connection with someone who serves Avodah-Zarah) "ve'Hugad L'cha ve'Shama'ta ve'Darashta Heitev". And we learn the last two from the Pasuk there "ve'Darshu ha'Shoftim Heitev". In which connection is this written?

(c)How do we query this source, based on the fact that the seven Chakiros appear in three different places?

(d)What do we answer?

6)

(a)We learn three of the seven Chakiros from the Pasuk in Re'ei "ve'Darashta, ve'Chakarta, ve'Sha'alta Heitev" - written in the context of Ir ha'Nidachas.

(b)We learn two more from the Pasuk in Re'ei "ve'Hugad Le'cha ve'Shama'ta ve'Darashta Heitev" (in connection with someone who serves Avodah-Zarah). And we learn the last two from the Pasuk there "ve'Darshu ha'Shoftim Heitev" - written in connection with Eidim Zomemin.

(c)We query this source however, based on the fact - that the seven Chakiros appear in three different places, in which case it would seem more logical to require three Chakiros regarding the witnesses of Ir ha'Nidachas, two regarding witnesses of individual idolatry and two, regarding witnesses of Eidim Zozemin.

(d)We answer - that since the Torah equates the three Dinim in this regard, we automatically learn one from the other.

7)

(a)We query this however, on the grounds that the seven Chakiros are a Kula (a leniency), and since each of the three cases has a stringency that the others do not have, we cannot learn it from them. Which particular stringency pertains to ...

1. ... Ir ha'Nidachas?

2. ... Avodah-Zarah?

3. ... Eidim Zomemin?

(b)What do we mean when we say that the other two receive death by the sword, seeing as Eidim Zomemin are sometimes punishable by stoning too?

(c)In any event, how do we answer the previous Kashya? By what means do we learn the Chakiros in the three cases from one another, as if they were one case?

(d)We understand how "Heitev" by Ir ha'Nidachas and Avodah-Zarah are superfluous and are therefore 'Mufneh' to learn the 'Gezeirah-Shavah', but how is "Heitev" by Eidim Zomemin ("ve'Darshu ha'Shoftim Heitev") superfluous, seeing as it is needed to teach us one of the Chakiros?

7)

(a)We query this however, on the grounds that the seven Chakiros are a Kula (a leniency), and since each of the three cases has a stringency that the others do not have, we cannot learn it from them. The stringency that pertains to ...

1. ... Ir ha'Nidachas is - the fact that the property of the inhabitants must be destroyed.

2. ... Avodah-Zarah is - the fact that the sinner is put to death by stoning (the other two, by the sword).

3. ... Eidim Zomemin is - the fact that they do not require a warning.

(b)When we say that the other two receive death by the sword, seeing as Eidim Zomemin are sometimes punishable by stoning, we mean - that the case of Eidim Zomemin referred to by the Torah is that of a murderer, who is killed by the sword (even though Eidim Zomemin are sometimes punishable by stoning too), or that, unlike someone who served Avodah-Zarah, who always receives Sekilah, Eidim Zomemin sometimes receive death by the sword (see Tosfos DH 'she'Kein be'Sayaf).

(c)In any event, we answer the previous Kashya by introducing the 'Gezeirah-Shavah' of "Heitev" "Heitev" "Heitev", which enables us to learn the Chakiros in the three cases from one another, as if they were all one case.

(d)We understand how "Heitev" by Ir ha'Nidachas and Avodah-Zarah are superfluous and are therefore 'Mufneh' to learn the 'Gezeirah-Shavah'. "Heitev" by Eidim Zomemin ("ve'Darshu ha'Shoftim Heitev") is superfluous too, despite the fact that it is also needed to teach us one of the Chakiros - because the Torah should then have written 'Darosh Tidrosh". Changing the Lashon to "Heitev", renders the word eligible to learn a 'Gezeirah-Shavah' as well.

8)

(a)The above 'Gezeirah-Shavah' covers cases of Sekilah (a Yachid who serves Avodah-Zarah), and Hereg (Ir ha'Nidachas and Eidim Zomemin). From where do we learn that seven Chakiros are needed even in cases of ...

1. ... Chanikah (strangulation)?

2. ... Sereifah?

(b)What is the problem with the latter, according to Rebbi Shimon? What does he say about Sereifah?

(c)So Rav Yehudah cites the Pasuk in Re'ei "ve'Hinei Emes Nachon ha'Davar", which is written twice, once by Avodah-Zarah and once by Ir ha'Nidachas. Given that we deduct the three "Heitev's" from the previous seven words for the 'Gezeirah-Shavah', how will these two phrases supplement the seven Chakiros?

(d)And what do we now do with the extra one, according to ...

1. ... Rebbi Shimon?

2. ... the Rabbanan?

8)

(a)The above 'Gezeirah-Shavah covers cases of Sekilah (a Yachid who serves Avodah-Zarah), and Hereg (Ir ha'Nidachas and Eidim Zomemin). We learn that seven Chakiros are needed even in cases of ...

1. ... Chanikah (strangulation) - by means of a 'Kal va'Chomer' from Sekilah and Hereg (since it is intrinsically less strimngent they are).

2. ... Sereifah - by means of a 'Kal va'Chomer' from Sekilah (Using the same reasoning).

(b)The problem with the latter, according to Rebbi Shimon is - that, in his opinion, Sereifah is more stringent than Sekilah (and we have already learned that we cannot learn what is more stringent from what is more lenient with regard to the Chakiros, which are a leniency).

(c)So Rav Yehudah cites the Pasuk in Re'ei "ve'Hinei Emes Nachon ha'Davar", which is written twice, once by Avodah-Zarah and once by Ir ha'Nidachas. Given that we deduct the three "Heitev's" from the previous seven words (for the 'Gezeirah-Shavah'), these two phrases supplement the seven Chakiros - inasmuch as 'Emes Nachon' constitutes two Chakiros.

(d)According to ...

1. ... Rebbi Shimon, the extra word - comes to incorporate Sereifah.

2. ... the Rabbanan - we simply apply the principle 'Milsa de'Asya be'Kal va'Chomer, Tarach ve'Kasav lah K'ra'.

9)

(a)Rebbi Avahu objects vehemently to Rav Yehudah's previous explanation. If (according to the Rabbanan) there is an extra superfluous word, he maintains, then we ought rather to include an extra Chakirah. How do we attempt to counter Rebbi Avahu's objection?

(b)We suggest that the eighth Chakirah could be the minutes in the hour, which would be possible according to Abaye in Rebbi Yehudah, or Rava in Rebbi Meir in the Sugya in Pesachim. How much margin of error is a person allowed according to ...

1. ... Abaye in Rebbi Yehudah?

2. ... Rava, even according to Rebbi Meir?

(c)Why is our refutation of Rebbi Avahu certainly justified according to Abaye in Rebbi Meir?

(d)The possibility of Rebbi Avahu (and the Beraisa)'s eighth Chakirah exists, we conclude, in the form of which Yovel the crime took place. On what grounds will Rav Yehudah (and our Mishnah) disagree with this?

9)

(a)Rebbi Avahu objects vehemently to Rav Yehudah's previous explanation. If (according to the Rabbanan) there is an extra superfluous word, he maintains, then we ought rather to include an extra Chakirah (and what's more, there is a Beraisa which does indeed speak of eight Chakiros). We attempt to counter Rebbi Avahu's objection - by dismissing the possibility of an eighth Chakirah (according to the Tana of our Mishnah), because there is no Chakirah that we could possibly add to the seven Chakiros listed.

(b)We suggest that the eighth Chakirah could be the minutes in the hour, which would be possible according to Abaye in Rebbi Yehudah, or Rava in Rebbi Meir in the Sugya in Pesachim. The margin of error allowed according to ...

1. ... Abaye in Rebbi Yehudah - is half an hour.

2. ... Rava even according to Rebbi Meir - even more than that.

(c)Our refutation of Rebbi Avahu is certainly justified according to Abaye in Rebbi Meir however - who does not allow a person any margin of error at all.

(d)The possibility of Rebbi Avahu (and the Beraisa)'s eighth Chakirah exists, we conclude, in the form of which Yovel the crime took place. Rav Yehudah (and our Mishnah) will disagree with this - on the grounds that it is pointless to ask this, because witnesses do not tend to hold back their testimony from one Yovel to the next.

10)

(a)How does Rebbi Yossi (in our Mishnah) attempt to dismiss the Tana Kama's opinion, that the Shavu'a, the year the month and the date are mandatory questions?

(b)How do the Rabbanan counter Rebbi Yossi's argument?

(c)The truth of the matter is however, that one would ask further even in such cases, based on a statement by Rebbi Shimon ben Elazar. What did Rebbi Shimon ben Elazar say in 'Zeh Borer'about the Beis-Din's treatment of the witnesses?

(d)How does Rebbi Yossi answer the Rabbanan? What is the difference between his 'yesterday' and the Rabbanan's 'today' in this context?

10)

(a)Rebbi Yossi (in our Mishnah) attempts to dismiss the Tana Kama's opinion, that the Shavu'a, the year the month and the date are mandatory questions - by pointing out the futility of asking such questions in cases where the witnesses specifically mentioned that the murder took place 'yesterday'.

(b)The Rabbanan counter this however, by pointing out, that even he would have to concede that it would be equally futile to even ask them which day, which hour, and which location (presumably, the latter two cases are 'added only for good measure'), there where the witnesses mention that it took place 'today'.

(c)The truth of the matter is however, that one would ask further even in such cases, based on a statement by Rebbi Shimon ben Elazar in 'Zeh Borer' - who obligates the Beis-Din to move the witnesses from one place to another, in an effort to confuse them, and withdraw their evidence. Likewise, the 'unnecessary' Chakiros would help to confuse them and err in their in their testimony (all part of the Mitzvah of "ve'Hitzilu ha'Eidah").

(d)In answer to the Rabbanan, Rebbi Yossi explains - that whereas it is common for witnesses to testify on what happened 'yesterday', it is not at all common for them to testify what happened 'today'.

11)

(a)Besides asking the witnesses whether they knew the murdered man to be a Yisrael or a Nochri, and whether they warned the accused, Beis-Din also ask them whether the latter accepted the warning. Which additional two questions do they ask them?

(b)In cases of Avodah-Zarah, they also ask them whether he worshipped Pe'or or Mar-Kulis. Then they query them regarding how he worshipped, and they specifically mention four types of worship that will automatically implicate the accused. Two of them are slaughtering a sacrifice on behalf of the idol and sacrificing it to it. What are the other two?

11)

(a)Besides asking the witnesses whether they knew the murdered man to be a Yisrael or a Nochri, and whether they warned the accused, Beis-Din also ask them whether the latter accepted the warning - whether he had specifically declared that he was about to act in spite of the fact that he will be sentenced to death for it, and whether he acted 'Toch K'dei Dibur' of the warning.

(b)In cases of Avodah-Zarah, they also ask them whether he worshipped Pe'or or Mar-Kulis. Then they query them regarding how he worshipped, and they specifically mention four types of worship that will automatically implicate the accused. Slaughtering a sacrifice on behalf of the idol, sacrificing it to it - pouring out a Nesech (wine) to it and prostrating oneself before it.

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