QUESTION: The Gemara quotes the Mishnah in Sanhedrin (40a) which states that Beis Din interrogates witnesses, in cases of capital punishment, with seven queries (Chakiros). Two of these queries are the day of the month and the day of the week on which the event occurred.

Why are both of these questions necessary? Once the witnesses tell Beis Din the day of the month on which the event occurred, it is easy to deduce the day of the week on which the event occurred.

The statement of the Mishnah there is even more difficult to understand when one takes into account the principle of "Keivan she'Higid Shuv Eino Chozer u'Magid," as TOSFOS (DH b'Eizeh Yom) points out. This principle teaches that a witness cannot change his testimony once he has already testified in front of Beis Din. If he attempts to change his testimony, Beis Din disregards the second version entirely. Accordingly, Beis Din gains nothing by asking the witnesses on what day of the week the event occurred after they have already testified about the day of the month on which it occurred. If the witnesses answer that the event occurred on a day of the week that matches the day of the month that they mentioned previously, Beis Din has not gained any new knowledge by asking them on what day the event occurred. If, on the other hand, the witnesses say that the event occurred on a day of the week that does not match the day of the month that they mentioned previously, they are changing their original testimony and Beis Din should disregard what they say. What does Beis Din gain by asking the witnesses on what day of the week the event occurred? (See also Insights to Sanhedrin 40:1.)

(a) RASHI in Sanhedrin (40a) explains that Beis Din asks them for the day of the week simply in order to make it easier for other witnesses (Mazimim) to remember if they were together with the witnesses on that day. The Mazimim might not remember the day of the month that they were together with the witnesses, but they will remember the day of the week.

(b) TOSFOS (ibid.) answers that the questions of the Chakiros are required because of a Gezeiras ha'Kasuv. The Torah requires that Beis Din ask all seven questions so that if the witnesses contradict each other in any one of their answers, their testimony will be invalidated (and the defendant will be saved). This means that with regard to the Chakiros, the Torah teaches that a new statement of the witness is not disregarded and indeed can invalidate his testimony. For this reason, when the witness says that the event happened on a day of the week that is different from the day of the month that he previously mentioned, his testimony is disqualified.

(c) TOSFOS suggests further (ibid., and 11b, DH Zeh) that perhaps the principle of "Keivan she'Higid Shuv Eino Chozer u'Magid" does apply to testimony about the day of the week on which the event occurred. Nevertheless, Beis Din accepts their testimony about the day of the week even if it does not correspond with their testimony about the day of the month. The reason for this is as follows.

The Mishnah in Sanhedrin teaches that if one witness said that the event occurred on the second day of the month and the other said that it occurred on the third day of the month, Beis Din assumes that the witness who said the later day thought that the previous month had 29 days and was not aware that it had 30 days. In such a case, testimony about the day of the week on which the event occurred enables Beis Din to clarify that the two witnesses are not contradicting each other, and that one of them simply was not aware of the thirtieth day of the previous month.

Similarly, even though the witness' testimony about the day of the week did not match his testimony about the day of the month, Beis Din accepts his testimony about the day of the week and assumes that he was unaware of the thirtieth day of the month. Therefore, his second statement is not considered invalid due to "Keivan she'Higid Shuv Eino Chozer u'Magid."

According to this answer, it seems that when the two witnesses agree about the day of the month, there should be no purpose in asking them about the day of the week. However, the MAHARSHAL and RABEINU YONAH in Sanhedrin (40a) point out that even when both witnesses agree about the day of the month, it is still necessary for Beis Din to ask them on what day of the week the event occurred. If Beis Din does not ask them about the day of the week, there will remain an uncertainty about the exact day on which the event occurred, because it is possible that both witnesses were unaware that the previous month had an extra day. By asking the witnesses on what day of the week they saw the event, Beis Din clarifies whether or not the witnesses were aware of the actual length of the previous month.

This answer is logical and straightforward. Why does Rashi not give this answer? The MAHARSHA in Sanhedrin suggests a number of reasons for why Rashi and others reject this explanation. However, the SANHEDRI KETANAH there refutes the Maharsha's suggestions.

Rabeinu Yonah himself, however, points out a weakness in this explanation. As explained above, it is evident from the first part of the Mishnah in Sanhedrin (40a), which says that Beis Din asks the witnesses for the day of the month and the day of the week on which the event occurred, that the witnesses may legitimately claim that they erred by one day in their testimony about the day of the month. Why does the Mishnah need to teach a second time that "if one witness says the event occurred on the second of the month and the other says that it occurred on the third of the month, their testimony is accepted because it may be assumed that one of the witnesses does not know that the previous month had 30 days"? The first part of the Mishnah already teaches that witnesses can make such a mistake and their testimony remains valid! This may be why Rashi and others reject this explanation.

Perhaps Rashi rejects this explanation for another reason. If the only reason why Beis Din must ask the witnesses about the day of the week on which the event occurred is to clarify that they are not mistaken about the number of days in the previous month, then it would be simpler to inform the witnesses, before they testify, that the previous month had (or did not have) an extra day! It must be that there is a different reason to ask about the day of the week. (M. KORNFELD)

QUESTIONS: The Gemara says that just as Rebbi Yehudah and Rebbi Meir argue about the margin of error allowed for witnesses who testify about the time of an event, they argue about the margin of error allowed to a person who destroys his Chametz on Erev Pesach. Rav Ashi explains that Rebbi Yehudah allows witnesses to err by three hours, and Rebbi Meir allows witnesses to err by two hours. Similarly, with regard to Chametz, Rebbi Yehudah prohibits Chametz two hours before the Torah prohibition takes effect, because he maintains that a person might make a mistake about the time at which Chametz becomes forbidden and err by two hours. Rebbi Meir prohibits Chametz one hour before the Torah prohibition takes effect, because he maintains that a person might make a mistake and think that Chametz becomes prohibited one hour later than it actually becomes prohibited.

The Gemara says that Rav Ashi's intention is to teach that "what we said earlier was correct." RASHI (DH Mishum Shinuya d'Shaninan) gives two explanations for this statement.

According to Rashi's first explanation, Rav Ashi means that although Rebbi Yehudah and Rebbi Meir allow for a discrepancy of three or two hours, respectively, with regard to the testimony of witnesses, they maintain that with regard to Chametz a person errs by only two hours or one hour. The reason for this difference is that "Chametz la'Kol Masur" -- everyone is involved with the Mitzvah to destroy Chametz, and therefore we are less concerned for large errors in time.

According to Rashi's second explanation, Rav Ashi means that although with regard to testimony, there is never a concern that a person will err and confuse the fifth hour with the seventh hour of the day (since in the fifth hour the sun is in the east, while in the seventh it is in the west), with regard to Chametz there is a concern that one will err between the fifth and seventh hours, according to Rebbi Yehudah who says that Chametz is forbidden even in the fifth hour. Rashi explains that the reason one will err, with regard to Chametz, between the fifth and seventh hours is either because "Chametz la'Kol Masur," or because one might become confused as a result of a cloudy day.

Rashi's first explanation for Rav Ashi's statement is difficult to understand. First, Rashi says that a lesser margin of error is granted with regard to calculating the time for the prohibition of Chametz, because "Chametz la'Kol Masur." However, the fact that "Chametz la'Kol Masur" is reason to allow a greater margin of error, as Rashi himself says earlier (DH Edus Mesurah l'Zerizim). (MAHARSHAL)

Second, why does Rashi not give the Gemara's reason for the difference between the testimony of witnesses and Bi'ur Chametz? The reason why a lesser margin of error is allowed for Chametz is because the prohibition of Chametz begins at the seventh hour, and people do not confuse the seventh hour with the fifth hour, and, likewise, they do not confuse the seventh hour with the sixth hour.

Third, even if the reason why Rashi mentions the reason of "Chametz la'Kol Masur" is in order to explain why people tend to make greater errors with regard to Chametz, Rashi also should mention the second reason why people tend to make greater errors with regard to Chametz: clouds in the sky confuse them. Why does Rashi mention this reason only in his second explanation and not in his first explanation?

(a) The CHASAM SOFER (Perush ha'Sugyos) explains that Rashi does not need to explain why a lesser margin of error is granted for Chametz than for the testimony of witnesses, because it goes without saying that one does not confuse the fifth hour with the seventh hour. Since the prohibition of Chametz starts in the seventh hour, there is less reason to be concerned for large errors. Rashi, though, was bothered by another question: Why did the Rabanan prohibit Chametz before the seventh hour at all? Even in the fifth and sixth hours, Chametz should not be prohibited, because people do not err between the pre-noon hours and the post-noon hours. To answer this question, Rashi adds "Chametz la'Kol Masur" in order to explain why there is a concern for any error at all with regard to Chametz (as TOSFOS asserts in DH b'Shis Chamah).

The MAHARSHAL and ROSH YOSEF give similar answers. (They note, however, that this answer is somewhat forced, and that it does not answer the third question.)

(b) Perhaps there is a slight printer's error in the text of Rashi. When Rashi writes in his first explanation that the reason why a lesser margin of error is given for Chametz is because "Chametz la'Kol Masur," his words should instead read, "Chamesh Chulei" ("five etc."), meaning "Chamesh Chamah b'Mizrach..." -- "during the first five hours of the day, the sun is in the east, and in the seventh hour, the sun is in the west." This is exactly what Rashi should have said here in order to explain why the margin of error for Chametz is smaller than that for testimony, as we explained above in the second question. If this is the correct reading of Rashi, then Rashi indeed is giving the proper explanation for why there is less of a margin of error with regard to Chametz. This explains why Rashi could not have mentioned the idea that a cloudy day might confuse people, because this is a reason to allow a larger margin of error for Bi'ur Chametz and not a lesser one. (M. KORNFELD)