QUESTION: In the Mishnah, Rebbi Tarfon and Rebbi Akiva state that had they been members of the Sanhedrin, no one would have received the death penalty for murder. Raban Shimon ben Gamliel responded that, on the contrary, they would have increased the number of murderers among the Jewish people.

The Gemara inquires about the method Rebbi Tarfon and Rebbi Akiva would have used to prevent verdicts of death. In cases of murder, they would have asked the witnesses if they knew beyond any doubt that the victim was healthy at the moment before he was killed, and that he was not a Tereifah (one who is mortally ill and will die soon). Since it is very unlikely that the witnesses would know for certain that the victim was not a Tereifah, the perpetrator would not be killed.

Rav Ashi points out that if the witnesses were certain that the victim was not a Tereifah (for example, after he died they saw that he had no signs of a Tereifah), the Beis Din still would be able to prevent the murderer from receiving the death penalty by asking the witnesses whether they saw a hole in the victim's body (that would have made him a Tereifah) right before he was stabbed in that place by the murderer. Since the witnesses would not know the answer to this question, the Beis Din would not be able to determine beyond a doubt that the victim was not a Tereifah, and thus the murderer would not be put to death.

The Gemara here is difficult to understand. The Gemara in Chulin (11b) states that the principle of Rov applies to cases of capital punishment. Accordingly, why does Rav Ashi say that Beis Din would exonerate an accused murderer because of the possibility of the extremely unlikely occurrence that the victim had a hole in his body where the sword entered him? The principle of Rov dictates that most people do not have such holes in their bodies, and thus Beis Din should rule that the victim was not a Tereifah and that the murderer is Chayav Misah.

(a) RABEINU TAM answers that Rav Ashi does not mean that Beis Din actually suspects that the victim had such a hole in his body. However, if Beis Din asks the question, then the witnesses must know the answer in order for their testimony to be valid. Even when the principle of Rov determines that the victim was not a Tereifah, if the witnesses fail to answer a question of Beis Din, then their testimony is not acceptable. (See also RITVA.)

Rabeinu Tam proves this from the Gemara in Sanhedrin (41a) that says that if one witnesses testifies that the weapon used to kill the victim was a sword while the other witnesses says that it was a different type of weapon (see RASHI and ARUCH to Sanhedrin 41a), their testimony is not acceptable. It is evident from there that Beis Din can invalidate the testimony of witnesses when the witnesses are unable to answer a question properly even though -- had that question not been asked by Beis Din -- the testimony of the witnesses would have been valid.

Even though the testimony in the case in Sanhedrin is invalidated because the two witnesses contradict each other, while in the case of the Gemara here the testimony is invalidated because the witnesses do not know the answer to the question, the proof is still valid. The reason why, in the case in Sanhedrin, the testimony is invalid only when there is a contradiction is that the information which the witnesses provide about the weapon does not involve knowledge about the prior condition of the victim. Hence, the testimony is invalid only when there is an actual contradiction. In contrast, when the witnesses lack information about the prior condition of the victim, that is reason enough to invalidate their testimony even without a contradiction. This detail about the victim is essential to their testimony that the defendant is a murderer (while the detail about what weapon he used is not essential).

(b) TOSFOS questions Rabeinu Tam's reasoning. It is not logical that when Beis Din does not ask this question the murderer is Chayav Misah, but when Beis Din does ask this question, and the witnesses do not know the answer, he is exempt. Moreover, the case in Sanhedrin is not comparable to this case. When the witnesses explicitly state contradictory information, that indicates that they are lying. When they merely state that they do not know whether there was a hole in the place where the sword entered the body, that is no indication that they are lying. Also, Beis Din cannot require the witnesses to examine the body of a murder victim before the murder in order for them to be able to answer this question!

Although the detail about the victim's body is more crucial to the case than the detail about the weapon, nothing can be derived from the case regarding the murder weapon except the law that witnesses cannot contradict each other.

Tosfos therefore explains that the Gemara here means simply that the Beis Din would ask many questions involving the smallest details of the case. Due to the abundance of questions, it would be unlikely that the witnesses would not end up contradicting each other in some way, resulting in the dismissal of their testimony.

The ALEH D'YONAH, IMREI SHEFER and others are puzzled by this answer of Tosfos. The Gemara in Sanhedrin (81b) says that if witnesses contradict each other in a case of murder, thus preventing the murderer from receiving the regular death sentence, Beis Din nevertheless causes the murderer to die by placing him into a "Kipah" (see Insights to Sanhedrin 81:2). Since the murderer ends up dying even when the witnesses contradict each other in the minor details of the case, what did Rebbi Tarfon and Rebbi Akiva mean, according to Tosfos, when they said that they would have prevented people from being put to death, and what was Raban Shimon ben Gamliel's response to them?

The CHEMDAS YISRAEL answers that according to the opinion that the procedure of death through "Kipah" is an enactment of the Rabanan, Rebbi Tarfon and Rebbi Akiva meant that no murderers would have been killed according to Torah law. Raban Shimon ben Gamliel responded that their statement implies that the Torah does not mandate death for murderers, which is not true.

How does the Chemdas Yisrael explain Raban Shimon ben Gamliel's statement that "they would increase the number of murderers" if, anyway, every murderer was killed (by being placed in a "Kipah")? Perhaps he understands that according to Raban Shimon ben Gamliel, if Beis Din does not administer the form of death prescribed by the Torah for a murderer, then potential murderers will have a more lenient attitude towards taking someone else's life. Similarly, the IMREI TZVI and IMREI SHEFER (#82) answer that the death of Sayif is a strong deterrent which will make a profound impression upon other potential murderers and steer them away from their evil designs. The unhurried death of a murderer placed inside of a "Kipah" will not stir people as much, and thus potential murderers will not be deterred from carrying out their plans.

The LEVUSHEI MORDECHAI (Teshuvos 144:2) and Aleh d'Yonah explain that the Gemara in Sanhedrin is discussing a contradiction in a small detail that is not relevant to the actual testimony (see Rashi there, who specifies that the questions asked of the witnesses were not necessary to the case). Therefore, in that case, the murderer is put to death (in a "Kipah") based on their testimony. In contrast, if the witnesses contradict each other in a detail pertaining to the victim's health, since that is an important detail of the case Beis Din would not even place the suspected murderer in a "Kipah." Hence, the opinions expressed by Rebbi Tarfon, Rebbi Akiva, and Raban Shimon ben Gamliel remain as originally stated. (Y. MONTROSE)

QUESTION: The Gemara quotes a Beraisa that teaches the exceptions to the law of Galus as derived from verses in the Torah. The Beraisa derives from the words, "b'Lo Eivah" -- "without malice" (Bamidbar 35:22), that one of the conditions that must be fulfilled in order to apply the law of Galus in a case of accidental murderer is that Beis Din must determine that the accidental murderer did not hate the victim prior to the killing.

The Beraisa's teaching is difficult to understand. Why does the Beraisa need to derive this law from the words "b'Lo Eivah," when there are a number of explicit verses that state the same thing. The next verse states clearly, "And he was not his enemy and did not seek his harm" (Bamidbar 35:23). Similarly, the Torah states, "And he did not hate him from yesterday or the day before" (Devarim 19:4). Why does the Beraisa learn this law from the less explicit words of "b'Lo Eivah"? (RISHONIM)

(a) TOSFOS answers that the verse, "And he was not his enemy and did not seek his harm" (Bamidbar 35:23), is needed to teach a different law. The Gemara in Sanhedrin (29a) applies this verse to the laws of witnesses and judges. It learns from the verse that only a person who is not an enemy of the litigant may give testimony, and only a person who does not seek the litigant's harm may serve as his judge. The verse, "And he did not hate him from yesterday or the day before" (Devarim 19:4), repeats the earlier verse and teaches some additional points. (Verses in Sefer Devarim often review topics discussed earlier in the Torah in order to express new points.) This verse, therefore, teaches no new laws, and thus the Beraisa derives the law from the words "b'Lo Eivah." (See also ARUCH LA'NER's explanation of the words of the RAMBAM in Hilchos Rotze'ach 6:10.)

(b) The RITVA cites the RAMBAN who gives a slightly different explanation. The Ramban explains that all of the verses are necessary in order to teach three different degrees of hatred. Had there been only one verse, it would have implied that only an avowed enemy is not included in the law of Galus, while a person who is not an avowed enemy of the victim (but nevertheless hates him) is included in the law of Galus. The second verse teaches that all enemies are excluded from the law of Galus. However, one would not know to exclude an enemy who killed his victim in such a way that it is obvious that it was an accident. The third verse teaches that even when it is obvious that the murder was accidental, if the murderer was known to have hated the victim, then the law of Galus does not apply to him.

(c) The RITVA cites another answer for why three verses are necessary. The three verses exclude the three types of weapons mentioned in the verse: wood, stone, and metal. The reasoning behind this answer is that the witnesses who see the murder are able to determine -- based on the weapon used -- whether or not the murder was accidental. There are some types of weapons that only an enemy would wield. For example, it is obvious that an enemy who is careless with a sword while in the presence of his nemesis is not judged as an accidental murderer, while it is not so obvious that he is judged that way when he was handling a blunt object that is relatively harmless. The verse teaches that the object used cannot disqualify the possibility of a non-accidental killing. (Y. MONTROSE)