SANHEDRIN 78 - Dedicated l'Iluy Nishmas Reb Aharon David ben Mordechai Kornfeld upon the passage of 30 days since his Petirah, by his son Mordecai and his family.

1)

(a)According to the Tana Kama of the Beraisa, if ten men with ten sticks beat someone to death, they are all Patur (from Misas Beis-Din). What does Rebbi Yehudah ben Beseira say?

(b)Rebbi Yochanan quotes the source of both rulings as the Pasuk in Emor "ve'Ish ki Yakeh Kol Nefesh Adam". If the Rabbanan interpret "Kol Nefesh" to mean 'the entire person' (and not just part of him), how does Rebbi Yehudah ben Beseira interpret it?

(c)'Rava Amar ha'Kol Modim ... '. In which similar case do both Tana'im concede that he is ...

1. ... Patur?

2. ... Chayav?

1)

(a)According to the Tana Kama of the Beraisa, if ten men with ten sticks beat someone to death, they are all Patur (from Miysas Beis-Din). Rebbi Yehudah ben Beseira says that - they are all Chayav.

(b)Rebbi Yochanan quotes the source of both rulings as the words "Kol Nefesh" (in the Pasuk in Emor "ve'Ish ki Yakeh Kol Nefesh Adam"), which the Rabbanan interpret to mean 'the entire person', whilst Rebbi Yehudah ben Beseira interprets it as - 'Kol d'Hu Nefesh' (even a little bit of the person).

(c)'Rava Amar ha'Kol Modim ... '. Both Tana'im concede that he is ...

1. ... Patur - if he kills a T'reifah.

2. ... Chayav - if he kills a Goseis (bi'Yedei Shamayim [a man who is dying a natural death]).

2)

(a)What is the (technical) difference between our case and ...

1. ... that of a T'reifah?

2. ... that of a Goseis?

(b)In that case, why do the Chachamim prefer to compare our case to a T'reifah than to a Goseis

(c)And why does Rebbi Yehudah ben Beseira prefer to compare it to a Goseis than to a T'reifah?

2)

(a)The (technical) difference between our case and ...

1. ... that of a T'reifah is that - a T'reifah has a recognizable symptom of death, which a man who has been beaten to the point of death does not have.

2. ... that of a Goseis is that - a Goseis did not become ill through an act, whereas a man who has been beaten did.

(b)The reason that Chachamim prefer to compare our case to a T'reifah than to a Goseis is - because, unlike a Goseis, he did not become wounded naturally, but through an act.

(c)Whereas Rebbi Yehudah ben Beseira prefers to compare it to a Goseis bi'Yedei Shamayim rather than to a T'reifah - because unlike a T'reifah, our case did not already have a recognizable symptom of death.

3)

(a)The Beraisa quoted by the Beraisa-expert in front of Rav Sheishes renders Chayav Reuven who kills Shimon after Levi beat him in a way that did not cause his death (Ein bo K'dei Lehamis). What problem do we have with that?

(b)So how do we amend it? Who is then the author?

(c)We have already learned that someone who kills a T'reifah is Patur. On what grounds does Rava ...

1. ... also exempt a T'reifah who kills?

2. ... declare him Chayav if he killed in the presence of Beis-Din?

3)

(a)The Beraisa quoted by the Beraisa-expert in front of Rav Sheishes renders Chayav Reuven who kills Shimon after Levi beat him in a way that did not cause his death (Ein bo K'dei Lehamis). The problem with that is that - this ruling is obvious and does not require a Beraisa to teach it to us.

(b)So we amend it to read (instead of 'Ein bo K'dei Le'hamis') - 'Yesh bo K'dei Le'hamis', rendering it a S'tam Beraisa like Rebbi Yehudah ben Beseira.

(c)We have already learned that someone who kills a T'reifah is Patur. Rava ...

1. ... also exempts a T'reifah who kills if witnesses are called to testify against him - because seeing as one is Patur for killing a T'reifah), should the witnesses become Eidim Zomemin, they will be Patur too, and we have a principle that 'Eidus she'I Atah Yachol Lehazimah Lo Sh'mah Eidus' (witnesses that cannot become Zom'min are disqualified).

2. ... declares him Chayav though, if he killed in the presence of Beis-Din - thereby eliminating the need for witnesses, based on the Pasuk in Re'ei "u'Vi'arta ha'Ra mi'Kirbecha".

4)

(a)Rava issues the same set of Halachos with regard to a T'reifah who rapes another man. What does he rule with regard to someone who rapes a T'reifah?

(b)What is Rava coming to teach us in this latter ruling? Why might we have thought that he should be Patur?

(c)Why indeed, is he Chayav? In what way does it differ from raping a dead man ('Meshamesh Meis')?

4)

(a)Rava issues the same set of rulings with regard to a T'reifah who rapes another man. He rules however that - someone who rapes a T'reifah is Chayav.

(b)Rava is coming to teach us in this latter ruling that - although a T'reifah is considered dead in certain regards, he is not considered dead in this regard ...

(c)... because this particular sin is based on the pleasure that one derives from it, which the rapist experiences from a T'reifah just like from any other person (unlike Meshamesh Meis, where the flesh of the dead person is cold, and from whom he therefore derives no pleasure).

5)

(a)Rava then exempts witnesses who testify against a T'reifah (as we explained earlier), but declares Chayav, witnesses who are themselves T'reifos. What does Rav Ashi say?

(b)On what basis does Rava disagree with Rav Ashi (whose logic is irrefutable)?

(c)Rava declares Chayav a T'reifah ox which kills a person. What does he then go on to learn from the Pasuk in Mishpatim "ha'Shor Yisakel ve'Gam Be'alav Yumas"?

(d)On what grounds does Rav Ashi disagree with Rava's first ruling?

5)

(a)Rava then exempts witnesses who testify against a T'reifah (as we explained earlier), but declares Chayav, witnesses who are themselves T'reifos. Rav Ashi - exempts the latter too, because, since the first witnesses cannot become Zom'min, the second witnesses cannot become Zom'mei Zom'min.

(b)Rava disagrees with Rav Ashi (whose logic is irrefutable) - because he says, since Eidim Zom'min itself is a Chidush, we do not carry its Din beyond the first set of witnesses ('Ein bo Ela Chidusho').

(c)Rava declares a T'reifah ox which killed a person, Chayav, and he then goes on to learn from the Pasuk in Mishpatim "ha'Shor Yisakel ve'Gam Be'alav Yumas" (from the Hekesh of the ox to the owner) that - if an ox belonging to a person who is a T'reifah kills someone, he is Patur.

(d)Rav Ashi disagrees with Rava's first ruling - because he argues (based on the same Hekesh), since the owner would have been Patur had he been a T'reifah, the ox is Patur, too.

6)

(a)Our Mishnah cited the Machlokes between Rebbi Yehudah, who declares Chayav Reuven who holds a snake against Shimon's body, as the snake bites him, and the Rabbanan declare him Patur. How does Rav Acha bar Ya'akov explain the Machlokes? What is the reason of ...

1. ... Rebbi Yehudah?

2. ... the Chachamim?

(b)How will the same Tana'im therefore rule with regard to the death of the snake?

(c)How can the Chachamim sentence the snake to death, seeing as the Torah only talks about a Shor?

6)

(a)Our Mishnah cited the Machlokes between Rebbi Yehudah, who declares Chayav, Reuven who holds a snake against Shimon's body as the snake bites him, whilst the Rabbanan declare him Patur. Rav Acha bar Ya'akov explains that, according to ...

1. ... Rebbi Yehudah - the snake's venom, which is situated between its teeth, emerges automatically, and Reuven is therefore Chayav as if he had pierced Shimon with a sword.

2. ... the Chachamim - it is the snake that spits out the venom at will, in which case Reuven's action is only G'rama, for which he is Patur.

(b)By the same token - Rebbi Yehudah will exempt the snake from the death-sentence, whereas the Chachamim will declare it Chayav.

(c)The Chachamim sentence the snake to death, in spite of the fact that the Torah only talks about a Shor - because "Shor" is La'av Davka, as we learned in Bava Kama ("Shor" "Shor" mi'Shabbos), and extends to all species of animals.

7)

(a)What does the Tana Kama in our Mishnah say in a case where Reuven strikes Shimon with a stone or with his fist, if after Beis-Din assess that he will die, he first takes a turn for the better, and then dies?

(b)Rebbi Nechemyah, who holds that he is Patur, learns his ruling from the Pasuk in Mishpatim "Im Yakum Vehishalech ba'Shuk al Mish'anto, ve'Nikah ha'Makeh". What is the literal meaning of "al Mish'anto" mean?

(c)What problem does Rebbi Nechemyah then have with the Pasuk?

(d)How does he therefore interpret it?

(e)What do the Rabbanan then learn from "ve'Nikah ha'Makeh"?

7)

(a)In a case where Reuven strikes Shimon with a stone or with his fist, if after Beis-Din assess that he will die, he first takes a turn for the better, and then dies, the Tana Kama in our Mishnah - declares him Chayav.

(b)Rebbi Nechemyah, who holds that he is Patur, learns this from the Pasuk in Mishpatim "Im Yakum Vehis'halech ba'Shuk al Mish'anto, ve'Nikah ha'Makeh", which literally means that - he is able get up and walk about on his stick (he is restored to his former health), then Reuven is free.

(c)The problem Rebbi Nechemyah has with the Pasuk is that - if we understand the Pasuk literally, why do we need a Pasuk to teach us that Reuven is free, once Shimon recovers? Is that not obvious?

(d)He therefore establishes the Pasuk - where the recovery is only temporary, yet the Torah declares Reuven Patur.

(e)The Rabbanan learn from "ve'Nikah ha'Makeh" that - in the interim, Reuven was incarcerated, and it is only when Shimon recovers, that he is set free.

78b----------------------------------------78b

8)

(a)We suggest that Rebbi Nechemyah learns the concept of temporary incarceration from the Mekoshesh (in Parshas Sh'lach-L'cha). Why do the Rabbanan decline to learn it from there?

(b)In fact, Rebbi Nechemyah agrees with that argument. Then from where does he ultimately learn his ruling?

(c)On what grounds do the Rabbanan disagree with that source, too.

8)

(a)We suggest that Rebbi Nechemyah learns the concept of interim jail from the Mekoshesh (in Parshas Sh'lach-L'cha). The Rabbanan decline to learn it from there however - since there, Moshe knew for sure that the defendant was Chayav Misah, whilst we are discussing someone whose guilt is as yet unknown.

(b)In fact, Rebbi Nechemyah agrees with that argument. He therefore learns the Din of temporary incarceration - from the Megadef (who was in jail at the same time as the Mekoshesh), and whose fate was unknown.

(c)The Rabbanan disagree with that source too - because, seeing as Moshe was not commanded to place the Megadef in jail, if we did not have another Pasuk, we would consider that as a 'Hora'as Sha'ah' (a momentary ruling issued by Moshe for that time only).

9)

(a)From where does the Beraisa learn that the Mekoshesh was definitely Chayav Misah?

(b)If his exact punishment was not known, how could the Hasra'ah be valid, and in that case, how could Beis-Din sentence him to death?

(c)What does the Tana extrapolate from the fact that the Torah writes ...

1. ... by the Mekoshesh "Ki Lo Forash Mah Ye'aseh lo"?

2. ... by the Megadef "Lif'rosh lahem al-Pi Hash-m"?

(d)Rebbi Nechemyah learns the above D'rashah from the extra words "Im Yakum ve'His'halech ba'Chutz " (as we explained). What does he learn from the extra Pasuk "ve'Lo Yamus"?

(e)Why might we have thought that he is Chayav?

9)

(a)The Beraisa learns that the Mekoshesh was definitely Chayav Misah - from the Pasuk in Vayakheil "Mechal'lehah Mos Yumas".

(b)Even though his exact punishment was not known, the Hasra'ah was nevertheless valid (and it was later possible for Beis-Din to sentence him to death) - because this Tana holds like the Rabbanan later, who do not require the witnesses to specify the type of punishment.

(c)The Tana extrapolates from the fact that the Torah writes ...

1. ... by the Mekoshesh "Ki Lo Forash Mah Ye'aseh lo" that - they knew his basic Chiyuv, only not the details.

2. ... by the Megadef "Lif'rosh lahem al-Pi Hash-m" that - they did not even know his basic Chiyuv either.

(d)Rebbi Nechemyah learns the above D'rashah from the extra words "Im Yakum ve'His'halech ba'Chutz" (as we explained). From the extra Pasuk "ve'Lo Yamus", he learns that - if Shimon recuperates, Reuven is Patur from Misah (but Chayav Mamon).

(e)We might otherwise have thought that he is Chayav - since he left Beis-Din Chayav (and it was only because subsequently, Hash-m had pity on Shimon that he survived (see Toras Chayim).

10)

(a)If Rebbi Nechemyah learns from "Im Yakum ... ve'Nikah ha'Makeh" the Din of Amduhu le'Misah ve'Hakel ... u'Meis' (as we just explained), what does he learn from "ve'Lo Yamus" (implying a second Umd'na)?

(b)What problem do we have with the Rabbanan, who learn from there 'Chovshin Oso', in a case of Amduhu le'Misah?

(c)How do we solve it? What do they learn from "ve'Lo Yamus"?

(d)What does Rebbi Nechemyah say about that?

(e)From which Pasuk in Mishpatim does he learn it?

10)

(a)Rebbi Nechemyah learns from "Im Yakum ... ve'Nikah ha'Makeh" the Din of Amduhu le'Misah ve'Hakel ... u'Meis' (as we just explained) and from "ve'Lo Yamus" (which is written first) he learns - 'Amduhu le'Misah ve'Chayah' (both are Patur from Misah, but Chayav to pay for damages).

(b)The problem with the Rabbanan, who learn from there 'Chovshin Oso', in a case of Amduhu le'Misah is - why the Torah needs to write "ve'Lo Yamus".

(c)And we answer that it is - to teach us that Amdudu le'Chayim u'Meis is also Patur from Misah and Chayav to pay damages. Since the Rabbanan learn Amduhu le'Misah ve'Chayah from "ve'Lo Yamus ve'Nafal le'Mishkav", what is the problem - why the Torah needs to then add "Im Yakum ve'His'halech ba'Chutz"?

(d)Rebbi Nechemyah maintains - that 'Amduhu le'Chayim u'Meis' does not require a Pasuk, since he left Beis-Din ...

(e)... which he learns from the Pasuk in Mishpatim - "ve'Tzadik Al Taharog".

11)

(a)What does Rebbi Nechemyah in a Beraisa say in a case where Beis-Din initially assess Shimon le'Misah, and eventually he does indeed die, but not before he has improved and even gone outside, at which point they re-assess him le'Chayim?

(b)The Rabbanan say 'Ein Omeid Achar Omeid'. What do they mean by that?

(c)What does a second Beraisa say about ...

1. ... 'Amduhu le'Misah'? What does the Tana mean?

2. ... 'Amduhu le'Chayim'?

(d)What does the Tana then say in a case where, after the second Umd'na Lehakel (le'Mamon), he deteriorates and dies? What will he then be Chayav? Who is then the author of the Beraisa?

(e)From when do we assess his value?

11)

(a)In a case where Beis-Din initially assessed Shimon le'Misah, and eventually he does indeed die, but not before he improved and even gone outside, at which point they re-assess him le'Chayim - Rebbi Nechemyah In a Beraisa goes after the second Omeid, and exempts Reuven from Misah (as we learned above).

(b)The Rabbanan say 'Ein Omeid Achar Omeid' - by which they mean - that the second Umd'na (which is acceptable as long as he recovers) is not considered 'Yatza mi'Beis-Din Zakai' (to exempt him completely, whatever transpires). Consequently, should Simon subsequently die, Reuven is Chayav (as predicted by the first Umd'na).

(c)A second Beraisa rules ...

1. ... 'Amduhu le'Misah - Omdin Oso le'Chayim', meaning that - even though Beis-Din initially assessed the victim le'Misah, if they see that he has improved, they re-assess him le'Chayim (and do not simply say 'Ho'il Veyatza mi'Beis-Din Chayav').

2. ... 'Amduhu le'Chayim' - Ein Omdin Oso le'Misah' (because 'Yatza mi'Beis-Din Patur).

(d)The Tana then rules that, in a case where after the second Umd'na Lehakel (le'Mamon), he deteriorates and dies - he will be Chayav to pay the Yorshin Nezek and Tza'ar, like Rebbi Nechemyah.

(e)We assess his value - from the time of the stroke (even though at that stage, he was assessed le'Misah), and not from the time of the second assessment (even though that is the time when he was assessed le'Chayim).

12)

(a)What does our Mishnah say about someone who intends to kill an animal but misses and strikes a person; a Nochri, and strikes a Yisrael, or a Nefel and strikes a regular person?

(b)Assuming that he was duly warned that he might kill the living Yisrael, why is he Patur (see Rashash)?

(c)What does the Tana then say about ...

1. ... a case where Reuven aims to strike Shimon on his side with a stone say, that is not large enough to kill him at that spot, but is large enough to kill him on his heart, which is where he actually strikes him?

2. ... the reverse case, where he aims to strike him on the heart, with a stone that is large enough to kill him on the heart, but which will not normally kill him should it strike him on his side, and where he misses and strikes him on his side, and by a fluke, he dies?

12)

(a)Our Mishnah rules that someone who intends to kill an animal but misses and strikes a person; a Nochri, and strikes a Yisrael, or a Nefel and strikes a regular person - is Patur ...

(b)... even assuming that he was duly warned that he might kill the live Yisrael - because it is a Hasra'as Safek, (seeing as he might miss [see also Rashash).

(c)The Tana then rules that he is also Patur ...

1. ... in a case where Reuven aims to strike Shimon on his side with a stone say, that is not large enough to kill him at that spot, but is large enough to kill him on his heart, which is where he actually strikes him, as he is ...

2. ... the reverse case, where he aims to strike him on the heart, with a stone that is large enough to kill him on the heart, but which will not normally kill him should it strike him on his side, and where he misses and strikes him on his side, and by a fluke, he dies.

13)

(a)And what does the Tana say in a case where Reuven means to strike ...

1. ... a Gadol with a stone that cannot kill him, but misses and strikes a Katan instead, who is small enough for the stone to kill and who does indeed die?

2. ... a Katan with a stone that can kill him, but misses and strikes a Gadol instead, who is too big for the stone to kill, but by a fluke, he dies?

(b)And what does the Tana finally say about a case where he means to hit ...

1. ... Shimon on his side with a stone that is sufficiently large to kill him there, but strikes him on his heart and kills him?

2. ... a Gadol with a stone that is sufficiently large to kill him, but misses and strikes a Katan and kills him?

(c)In which case does Rebbi Shimon argue with the Tana Kama?

(d)Based on the above, which two conditions does the Tana Kama require to avoid Hasra'as Safek?

13)

(a)In a case where Reuven means to strike ...

1. ... a Gadol with a stone that cannot kill him, but misses and strikes a Katan instead, who is small enough for the stone to kill and who does indeed die - he is Patur.

2. ... a Katan with a stone that can kill him, but misses and strikes a Gadol instead, who is too big for the stone to kill, but by a fluke, he dies - he is also Patur.

(b)Finally, the Tana rules that if someone meant to hit ...

1. ... Shimon on his side with a stone that is sufficiently large to kill him there, but strikes him on his heart and kills him - he is Chayav.

2. ... a Gadol with a stone that is sufficiently large to kill him, but misses and strikes a Katan and kills him - he is Chayav, too.

(c)Rebbi Shimon argues with the Tana Kama - inasmuch as he holds that even someone who means to kill Reuven but misses, and kills Shimon, is Patur, even if they are both Gedolim.

(d)Based on the above, to avoid Hasra'as Safek, the Tana Kama requires - a. that one intends to deliver a stroke that will render him Chayav, and b. that he does so.

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