Question #1: According to Rashi, who explained earlier that those who hold that "be'Tzedek Tishpot Amisecha" comes to permit one Dayan cannot hold of Eiruv Parshiyos, why does the Gemara say 've'chi Teima ... ', seeing as this is definitely the case?

Question #2: Furthermore, how can R. Avuhu then say that if two judges adjudicated, their ruling is invalidated according to all opinions? That is not correct, since those that do not hold 'Eiruv Parshiyos, hold 'Dineihem Din'?

Alternative Explanation #1: It therefore appears like Tosfos explained earlier, that the D'rashah of "be'Tzedek Tishpot ... " goes even like those who hold 'Eiruv Parshiyos'. In that case, Shmuel and R. Avahu are arguing over the opinion that holds 'Eiruv Parshiyos', and when R. Avahu says 'le'Divrei ha'Kol Ein Dineihem Din', he is referring to those who hold 'Eiruv Parshiyos'.

Alternative Explanation #2: Alternatively, as Tosfos explained earlier, based on the Pasuk Mishpat Echad", R. Avahu holds ' ... Ein Dineihem Din' even according to those who do not hold of Eiruv Parshiyos. And the Beraisa cited above that permits an expert judge to judge on his own may well hold ' ... Ein Dineihem Din'.

Clarification: Even though we compare Pesharah to Din, this Hekesh is not total - because although regarding Din, a majority will suffice, so that if two say 'Zakai' and one says 'Chayav' or vice-versa, we follow the majority, when it comes to Pesharah, we only accept Beis-Din's ruling if al three Dayanim agree, as we learned in the last Perek of Avodah-Zarah 'When a Beis-Din of three make an assessment, then even if only two out of three agree, this will suffice; but if the Beis-Din issue a ruling, then it requires all three to reach the same conclusion' (Tosfos interpretation of that Gemara is unclear - see Rashi there).

Clarification: Everybody refers o R. Meir an the Chachamim, but does not include R. Shimon ben Gamliel, who definitely disagrees.

Explanation: Rashi cites the source as the Pasuk in Shmuel "And David did justice and charity" (i.e. Pesharah).

Refutation: The Gemara will cite a Beraisa later 'Just as Din requires three, so too does Pesharah require three', implying that we compare Pesharah to Din. It is evident from the Gemara later however, that that Tana considers Bitzu'a (Pesharah) vlountary; whereas according to R. Yehoshua ben Korchah, it is a Mitzvah. So we see, that the Tana Kama (who compares Pesharah to Din) does not Darshen "Mishpat u'Tzedakah" with regard to Pesharah - because if Pesharah was synonymous with 'Tzedakah', then it would be a Mitzvah?

Alternative Explanation: Neither can we learn it from the Pasuk in Zecharyah "Emes u'Mishpat Shalom", since the Navi is comparing Mishpat to Shalom (Pesharah) ...

Refutation: Because there too, Pesharah would then be a Mitzvah, seeing as Shalom too, is a Mitzvah!

Question: Why does the Gemara does not say 'According to Shmuel it is definitely a Machlokes Tana'im! Is it also a Machlokes Tana'im according to R. Avahu?', as the Gemara customarily does?

Implied Question: If, as the Yerushalmi explains, R. Meir requires three in order to ensure a majority ruling, then one would assume that if there were two Dayanim, who both agreed on Pesharah, their ruling would also be valid?

Answer: Nevertheless, the wording of R. Meir's ruling implies that even if two Dayanim issue a ruling of Pesharah in the same way as three, their ruling is invalid, and the litigants are permitted to retract.

Implied Question: Why can two Dayanim then not issue rulings of Pesharah?

Answer: Because it then resembles an erroneous Kinyan, seeing as they are not experts in Pesharah (see Tosfos ha'Rosh).

Implied Inference: Assuming that the Kinyan of Pesharah is performed before the actual Pesharah, and they make a Kinyan to mutually accept whatever the judges decide, whether to pay or to forego, perhaps one can extrapolate from there that 'Mechilah' in general requires a Kinyan.

Refutation #1: There is no proof from here, because the reason that a Kinyan is required here is only because otherwise, it appears that the Mechilah was made erroneously - since the litigant did not dream that the Beis-Din would demand such a substantial Mechilah. Granted, the Kinyan now appears to be an erroneous Kinyan, nevertheless, the fact that a Kinyan took place reinforces the issue.

Refutation #2: And even if we assume that the Kinyan Pesharah is performed after the Pesharah, there is still no proof from here that Mechilah requires a Kinyan, since it may well be that the Kinyan here is mainly on the part of the litigant who will be obligated to pay, but not on the part of the one who will be Mochel.

Ruling: The Halachos Gedolos however, rules that even the Mechilah of Pesharah requires a Kinyan too, even if it takes place after the Pesharah.

Upholding Refutation: In any event, we cannot learn from here that Mechilah in general requires a Kinyan.

Reason: This is because even though Mechilah of Pesharah knows what he is being Mochel, it is akin to Mechilah made in error (as we explained earlier), since the litigant is only Mochel because Beis-Din ask him to, which is why he needs to reinforce it by means of a Kinyan.

Contrary proof #1: One can however, bring a proof that Mechilah in general does not require a Kinyan, from the Gemara in Perek ha'Mekabel. The Gemara there rules that if the hirer arranges for a store-keeper or a banker to pay his laborer, he is not subject to the Mitzvah of "be'Yomo Titen Secharo"; and Rav Sheishes and Rabah argue there whether the laborer may still claim from the hirer (Rabah) or not (Rav Sheishes). This indicates that Mechilah does require a Kinyan, because if it did, how could Rabah still permit the laborer to claim from the hirer? Consequently

Clarification: Clearly then, they argue there where no Kinyan was made; one holds that when the hirer arranged for the store-keeper ... to pay, he did not exempt himself completely from the obligation, whislt the other holds that he did. In any event, we see that Mechilah does not require a Kinyan.

Contrary proof #2: Another proof lies in the Gemara in the first Perek of Kidushin, regarding an Eved Ivri acquiring himself with a Sh'tar. The Gemara asks there why he requires a Sh'tar? Why can he not simply say in the presence of two witnesses 'Go!' Now if this speaks with a Kinyan, how will we explain the Gemara's answer 'Eved Ivri Gufo Kanuy!'? The Kashya remains why does one need a Sh'tar? Why can he not simply declare him Hefker (according to Shmuel who rules that if someone declares his Eved Ivri Hefker, he goes free, and does not require a Get Shichrur)? Clearly then, the Gemara's Kashya is why the Sh'tar is necessary. Let the owner declare orally whatever he would write in the Sh'tar?

Contrary proof #3: And one can bring a third proof from the Mishnah in 'ha'Nosei', which rules that a woman who did not claim her Kesuvah for twenty-five years has probably been Mochel it. And it is clear from the case there concerning the mother-in-law of R. Chiya, that the Tana is speaking without a Kinyan (see Maharsha).

Implied Proof #1: Perhaps we bring another proof that Mechilah does not require a Kinyan from the Gemara in Bava Metzi'a 'Ta'amo Chiyin, ve'Hodeh lo bi'Se'orin, Patur (even from the barley to which he admitted), seemingly because the claimant was Mochel the barley (even though no Kinyan took place).

Refutation: There is no proof from there however, since the reason there is not because of Mechilah, but because the fact that the claimant omitted barley from his claim indicates that he is not owed barley.

Proof: This we can deduce from the Gemara at the end of 'ha'Meni'ach', which asks from the Mishnah there where, in a case involving two Tam animals that damaged two animals, where the Nizak claims that the large animal damaged the large one ... , whilst the Mazik counters that it was the small one that damaged the large one ... , and which concludes that the Nizak does not even receive what the Mazik concedes. And there, the reason cannot possibly be based on Mechilah, seeing as the Nizak is shouting 'Gevalt!' (insisting on his rights).

Implied Proof #2: And perhaps we can also bring a proof from the Gemara in Bava Basra, which rules that a Bechor who accepts a portion like a Pashut, is Mochel the extra portion of a Bechor (even though no Kinyan took place).

Refutation: There is no proof from there either (see Maharam).

Retraction: It is due to this Gemara that the Rivam retracted from his previous stance that when the Gemara in Chezkas ha'Batim that a Kinyan should be performed in front of two people, it meant it literally, so that if two people did not witness the Kinyan, it would be people. But we conclude in our Sugya that Pesharah requires a Kinyan, despite the fact that, according to the Rabbanan, Pesharah requires only one judge.

Implied Question: Then why does the Gemara there mention says 'in front of two'?

Answer: Because then they are to document it even without being specifically asked to.

Refutation: There is no proof from here however, since it is possible that one needs to make the Kinyan in front of two people to substantiate the Pesharah that was done in front of one.

Alternative Proof: Rabeinu Tam supported the ruling that a Kinyan does not require two people, from the Gemara in Perek ha'Zahav, which, discussing the case of a person who is standing in a granary and has no money on him, proves from the fact that the Gemara does contend with the possibility of acquiring the money with Chalipin, that a coin cannot be acquired with Chalipin (since it is a Dochek [pushed] to establish the case by a man who is naked). Now if a Kinyan required two people, why did the Gemara not reject the proof, by establishing it where there were not two people present when the Kinyan was made?

Refutation: There are some who reject Rabeinu Tam's proof, on the grounds that a granary is a place where there are usually people available.

Clarification #1: The Gemara is speaking where Beis-Din arrived at their conclusion after a thorough investigation of the facts.

Clarification #2: According to Rashi, the Gemara is speaking where Beis-Din have arrived at their conclusion and declared 'Ish P'loni Atah Chayav, ve'Ish P'loni Atah Patur', and this is certainly what the Gemara means.

Question: The difficulty with this is however, how, after the final ruling has been issued, it is possible to switch to Pesharah.

Answer: It is possible to explain with a Dochek that the Beis-Din trick him by claiming that they are afraid of having erred and they will have to begin the deliberations all over again.

Qualification: However, there where one of the litigants is Chayav to swear, Beis-Din have the authority to suggest a Pesharah, to avoid the punishment for making a false oath.

Clarification:

Clarification: The reason that the Tana mentions 'baking' is because there are certain types of pastries that only become subject to Chalah after baking. These are listed in Perek Kol Sha'ah which states 'Sponge cakes, honey cakes and "Iskeritin" (a pastry made of soft dough) that one baked in a pan are subject to Chalah; if they are baked in the sun, they are not'.

Clarification: And when the Torah writes in Vayechi " ... from the prey, my son, you elevated yourself!", it is with reference to the incident with Tamar that the Torah is praising him.

Clarification: It is the judge whom the strong man will be pursuing, as is evident later.

Observation: And the reason that the Gemara mentions that one of the litigants is soft, because if they are both tough, then the second litigant will support him (the judge) against the one who is after his blood.

Clarification: With regard to a rich and poor man, one cannot interpret "Lo Saguru" as 'Do not be afraid', since the term 'afraid' is inappropriate; rather 'Do not hold back your words', in order to honor him.