Ask A Question about the Daf

Previous daf

Sanhedrin, 10

1) "PALGINAN DIBURA" FOR TESTIMONY ABOUT ONE'S WIFE

QUESTION: Rava states that if a man testifies in Beis Din that his wife willingly was Mezanah with another man and another witness corroborates his testimony, then the witnesses are believed with regard to incriminating the seducer (and he is put to death based on their testimony), but not with regard to the wife. The Gemara asks that since we have already learned that there is a principle of "Palginan Dibura" which allows us to separate parts of testimony (see Insights to previous Daf), what new law is Rava teaching? The Gemara answers that we might have thought that the husband's testimony is believed also with regard to his wife; perhaps the rule that one may not testify about himself (because a person is "related" to himself) does not apply to testifying about his wife. Therefore, Rava teaches us that this rule also applies to testifying about one's wife.

The Gemara's answer seems problematic, because the law that one may not testify for his wife has also been taught already. The Mishnah later (27b) clearly states that a man is unfit to testify about his wife. What, then, is Rava adding?

ANSWERS:

(a) RASHI and TOSFOS explain that the case Rava is discussing is different. We might have thought that as long as the testimony of witnesses is effective with regard to killing the seducer, it should also be effective with regard to killing the other partner involved in the sin. Rava, therefore, teaches us that this is not so.

The RAN disputes this approach. He says that we only apply such logic in order to *invalidate* testimony, such as in the principle of "Edus she'Batlah Miktzasah, Batlah Kulah" -- once part of the testimony of witnesses is proven to be false or invalid, the rest of the testimony is also considered invalid. There is no logic, though, to say the opposite and to make *bad* testimony into good testimony merely because it was presented together with good testimony!

The KEHILOS YAKOV (end of #15) defends the view of Rashi and Tosfos. The reason why a man is an invalid witness with regard to his wife differs from the reason why he is an invalid witness with regard to any other relative. With regard to any other relative, the Torah invalidates a person from testifying; he is Pasul mid'Oraisa. With regard to testifying about his wife, though, mid'Oraisa a man *may* testify (since they are not related by blood). The *Rabanan* enacted that a man may not testify for his wife, because he might alter the truth due to his relationship with her. Consequently, we might have thought that when a man's testimony is accepted with regard to another person (the seducer), it is also accepted with regard to his wife since, mid'Oraisa, he is not Pasul from testifying about her. (Accepting his testimony about his wife in such a case would be based on a Migu, as we find that a Migu works to validate a person's testimony for something that it otherwise would not have been valid mid'Rabanan; see Mishnah end of Chagigah 24b and Gemara there). Rava teaches, therefore, that we nevertheless do not accept a person's testimony about his wife even when his testimony is being accepted with regard to someone else (this is because a husband is indeed Pasul *mid'Oraisa* from testifying for his wife, either because any relationship through marriage is considered a "Karov" mid'Oraisa, or because the relationship of a husband and wife is so strong, "Ishto k'Gufo," that she is considered a full-fledged relative for whom his testimony is not accepted.)

(b) The RAN and ME'IRI agree to the explanation of the RA'AVAD. The Ra'avad maintains that we apply the principle of "Palginan Dibura" with regard to excluding the person testifying about himself from his testimony. (This is because what he says about himself is not considered to be the testimony of a witness at all, and the rest of what he says remains acceptable testimony.

In contrast, when part of his testimony includes testimony about a relative, he *does* have the status of a witness, and since part of his testimony is invalid, it is all invalid.) Hence, we might have thought that since, in this case, the man who is testifying was not involved personally in the sin and is not testifying about himself (such that we would then accept his testimony about the event entirely, since the part about himself is not considered part of the testimony at all), but rather he is testifying about a relative -- his wife, we cannot invoke the principle of "Palginan Dibura;" since the man's testimony cannot be accepted with regard to his wife, we do not "split" his testimony and say that the event happened with the adulterer but not with his wife. The adulterer, therefore, should be exonerated as well. Rava teaches that a wife is considered like the person himself, and therefore we can still apply "Palginan Dibura" to kill the adulterer. (See ROSH in Teshuvos (60:1) who cites the opposite logic in the name of RAV HAI GAON.) (Y. Montrose)

QUESTION: The Gemara discusses the argument between Rebbi Yishmael and the Tana Kama regarding whether a case of a crime which carries a punishment with lashes must be judged by twenty-three judges or whether three judges suffice. The Gemara inquires about the reason for Rebbi Yishmael's opinion that twenty-three judges are required. Abaye answers that Rebbi Yishmael learns from a Gezeirah Shavah that we require twenty-three; the Torah uses the word "Rasha" to describe the guilty party with regard to both the penalty of death (which certainly requires a Beis Din of twenty-three) and the penalty of lashes. Just as a Chiyuv Misah requires a Beis Din of twenty-three, so, too, a Chiyuv Malkus requires a Beis Din of twenty-three.

Rava, on the other hand, answers that the punishment of Malkus takes the place of the punishment of death, and therefore it requires twenty-three judges, like a Chiyuv Misah.

What is Rava's logic in connecting lashes to death?

In addition, what is the reasoning of the Tana Kama, who argues with Rebbi Yishmael and requires only three judges in a case of lashes?

ANSWERS:

(a) RASHI (DH Malkus b'Makom Misah) explains that at the moment that a person transgresses the will of Hashem, he is fit to die. However, in certain cases, Hashem decreed that the type of death that the transgressor is to receive is lashes.

(b) TOSFOS (DH Malkus Tachas Misah) gives two other explanations, although he concludes that Rashi's explanation is the correct one. First, he explains that since B'nei Noach are automatically punished with death for transgressing any command for which they have been warned ("Azharasan Zo Hi Misasan;" Sanhedrin 57a), the fact that a Jew receives only Malkus for transgressing a command for which he has been warned (when the "Azharah" is not qualified with any specific punishment) is a form of kindness to the Jew. The lashes indeed are taking the place of death.

(c) In his second explanation, Tosfos says that since a transgressor being punished with lashes occasionally dies as a result of the lashes, it is comparable to death.

Tosfos rejects both of these explanations because of Rav Acha's question on Rava. Rav Acha asks that according to Rava, who says that twenty-three judges are needed for a case of lashes because lashes take the place of death, why is there a requirement to estimate how many lashes the transgressor can withstand? We should administer the maximum number of lashes and let the transgressor die if he cannot endure them, since lashes, anyway, is in the place of death! According to the first explanation quoted by Tosfos, Rava is stating that lashes is a form of kindness that Hashem granted to a Jewish transgressor, and therefore Rav Acha's question is inappropriate. Hashem does *not* want him to die as a result of his sin, and thus Beis Din indeed must estimate how many lashes he can endure! Similarly, according to the second explanation quoted by Tosfos, lashes is only comparable to death because it might lead to the person's death; we do *not*, however, *want* him to die, and thus it is necessary to estimate how many lashes he can endure. For this reason, Tosfos accepts the explanation of Rashi. (Y. Montrose)

QUESTION: The Gemara discusses the argument between Rebbi Yishmael and the Tana Kama regarding whether a case of a crime which carries a punishment with lashes must be judged by twenty-three judges or whether three judges suffice. The Gemara inquires about the reason for Rebbi Yishmael's opinion that twenty-three judges are required (see previous Insight). Abaye answers that Rebbi Yishmael learns from a Gezeirah Shavah that we require twenty-three; the Torah uses the word "Rasha" to describe the guilty party with regard to both the penalty of death (which certainly requires a Beis Din of twenty-three) and the penalty of lashes. Just as a Chiyuv Misah requires a Beis Din of twenty-three, so, too, a Chiyuv Malkus requires a Beis Din of twenty-three.

Rava, on the other hand, answers that the punishment of Malkus takes the place of the punishment of death, and therefore it requires twenty-three judges, like a Chiyuv Misah.

The Gemara, however, does not explain the reasoning of the Tana Kama, who argues with Rebbi Yishmael and requires only three judges in a case of lashes. What is the reasoning of the Tana Kama?

ANSWER: The KESEF MISHNAH explains the opinion of the Tana Kama as follows. We find that the RAMBAM (Hilchos Sanhedrin 16:1) makes a seemingly cryptic statement. The Rambam writes, "... and even though a case involving lashes requires only three judges, the lashes are still considered to be in the place of death." The obvious question is that Rava only said that lashes take the place of death as a reason for the view of Rebbi Yishmael, to explain why *twenty-three* judges are needed! Why is the Rambam writing this reason when he rules like the Tana Kama that only three judges are required for a case of lashes?

The Kesef Mishnah answers that the Tana Kama agrees with the concept that lashes takes the place of death. The Tana Kama even uses this concept to derive the requirement that a case of lashes requires *expert* judges, witnesses, Hasra'ah, and interrogation and investigation similar to cases involving a death penalty (as the Rambam writes there, 16:4). The Tana Kama argues only that this concept does not teach us to use the same number of judges as a case of a death penalty.

Similarly, the RAN writes that the Tana Kama agrees with the Gezeirah Shavah that Abaye mentions, as the Tana Kama indeed learns a number of Halachos from this Gezeirah Shavah (se Makos 5a). The Tana Kama argues, though, that the Gezeirah Shavah does not teach that a case of lashes requires twenty-three judges, since lashes is not as severe as death. Moreover, Rava himself agrees that certain laws are learned through the Gezeirah Shavah (see Tosfos, 33b, DH Asya), but he argues with Abaye and says that even according to Rebbi Yishmael, the Gezeirah Shavah does not teach that a case of lashes requires twenty-three judges, and that is why he explains Rebbi Yishmael's reasoning to be based on the logic that lashes take the place of death. (Y. Montrose)

10b

4) THE SIGNIFICANCE OF USING THREE, FIVE, AND SEVEN JUDGES FOR INSTITUTING A LEAP YEAR QUESTION: Rebbi Meir and Raban Shimon ben Gamliel argue in the Mishnah (2a) with regard to how many judges are required to institute a leap year (i.e. to add an extra month of Adar to the year). Rebbi Meir says that a Beis Din of three judges suffices, while Raban Shimon ben Gamliel says that the case begins with three judges, it is then discussed by five, and it is finalized by seven. The Gemara asks why Raban Shimon ben Gamliel specifically holds that a series of three, five, and seven judges is to judge a case of a leap year. One opinion says that it corresponds to the number of words in the three verses of Birkas Kohanim, which contain three, five, and seven words respectively. Another opinion says that it corresponds to the three royal guards at the gate ("Shomrei ha'Saf"), five of the royal servants who see the king ("Ro'ei P'nei ha'Melech"), and the seven royal servants who see the king ("Ro'ei P'nei ha'Melech"), as depicted in Sefer Melachim and Megilas Esther.

What is the connection between judging a case of a leap year and the verses of Birkas Kohanim, or the number of royal guards and servants?

ANSWERS:

(a) RASHI explains that the reason the number of judges necessary for instituting a leap year is patterned after the royal guards and servants is because the establishment of the calendar and the proper order of the years is an act of honor for Malchus Shamayim, the Kingship of Hashem. The ARUCH LA'NER bases its significance on the fact that the first Mishnah in Rosh Hashanah states that the month of Nisan is the new year for kings, which means that even if the king took power only a month prior to Nisan, when the month of Nisan arrives we count this as his second year of reign. Since the establishment of the length of the year (with an extra month before Nisan) is relevant to the earthly king's reign, we symbolize this by having the number of judges who judge the case of a leap year correspond to the guards and servants of the king.

(b) The YAD RAMAH explains that both Birkas Kohanim and the establishment of a leap year are acts that show Hashem's fondness and favor for the Jewish people. When Hashem commanded the Kohanim to bless the Jewish people, He did not give them the commandment in one long verse with fifteen words. Rather, He separated His command into three verses, with each one containing an increasing number of words, in order to show His fondness towards the Jewish people. The establishment of the length of the year, together with all of its Yamim Tovim, is very important to us, and thus we show our fondness for them by establishing the year, and the date of its Yamim Tovim, with increasing numbers of judges.

(c) The MARGOLIYOS HA'YAM shows that we find similarities between Birkas Kohanim and the establishment of a leap year. For example, the Gemara in Chulin (49a) states that when the Kohanim bless the Jewish people, Hashem agrees to grant the blessing. Similarly, the Midrash (Shemos Rabah 15) states that when Beis Din establishes the year, Hashem agrees to them. Therefore, it is understandable that the number of judges used for establishing the leap year alludes to something else to which Hashem gives His agreement, which is Birkas Kohanim. (See also MAHARSHA for an explanation of how the blessings of Birkas Kohanim allude to the factors involved in establishing a leap year.) (Y. Montrose)