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Sanhedrin, 32

1) THE OPENING ARGUMENT IN A MONETARY CASE

QUESTION: The Mishnah lists the differences between Dinei Mamonos and Dinei Nefashos. One difference is that the opening argument in Dinei Mamonos may be one to prove the defendant's innocence or one to prove his guilt. In Dinei Nefashos, the opening argument must be one to prove the defendant's innocence.

How is it possible to propose an argument that will show one's innocence or guilt in Dinei Mamonos? In a monetary case there are always two disputants involved, and if one person is liable (guilty) that the other one is exempt, and vice versa!

ANSWERS:

(a) The DEVAR MOSHE writes that the Mishnah is probably referring to the defendant against whom the claim is made. "Zechus" means that the defendant is exempt, thereby causing the claimant to take a loss. This approach finds support in the words of the YERE'IM (#184) who writes that the decision of a majority of two judges is not required in the ruling of a monetary case, because the verse which discusses the majority of two says "Lo Siheyeh Acharei Rabim l'Ra'os" (Shemos 23:2). This cannot apply to Dinei Mamonos, since there is no objective evil ("Ra'os") in a court case involving money; a ruling that is undesirable to one disputant will be pleasing to the other. The Yere'im is learning that there is no case of Dinei Mamonos in which all defendants lose.

We may ask that there is a case of Dinei Mamonos which has an objective loss -- a case in which Beis Din rules about an object in question "Yehei Munach," saying that neither disputant should receive it (Bava Metzia 3a). Perhaps "Yehei Munach" is not considered a loss to the disputants since it is not a definitive ruling. Rather, Beis Din is simply pushing off ruling on the matter until further proof is brought, at which point Beis Din will give the object to the one who brings the proof.

(b) The KOS YESHU'OS suggests that there can be an objective loss in Dinei Mamonos in a case involving an animal that killed a man or that had relations with a man and must be put to death. In such a case, no one gains monetarily by putting the animal to death.

This might be the intention of RASHI (DH v'Dinei Nefashos) when he proves that a majority ruling of two judges is not required in Dinei Mamonos from the Gemara later (36b) which says that a majority of two is not required in a case of a Shor ha'Niskal, killing an ox. Rashi writes that all the more so other monetary cases do not require a majority of two. He means that other monetary cases which do not involve an objective loss (since one disputant gains when the other loses) should certainly not require a majority of two judges.

It seems that the Yere'im and Rashi might be arguing about whether a case of Shor ha'Niskal is included in the category of Dinei Mamonos. Rashi refers to Shor ha'Niskal as a case of Dinei Mamonos, because we are judging whether or not to take away a person's money. The Yerei'm might give it a new category of its own, since the case involves the taking of a life, even though it is a not a human life. There might be practical differences between them with regard to certain laws that apply only to Dinei Mamonos. The Gemara later (36b) writes that all of the laws of our Mishnah that apply to Dinei Mamonos also apply to Shor ha'Niskal. However, there are some other laws that are not mentioned in the Mishnah. For example, the Gemara (30b) teaches that Hakchasah in Bedikos does not invalidate testimony in Dinei Mamonos, but it does invalidate testimony in Dinei Nefashos, according to Rav Yehudah. Also, in cases of Dinei Mamonos, we accept testimony from two witnesses who were not aware of each other's presence when the event occurred, but not in cases of Dinei Nefashos. Perhaps a case of a Shor ha'Niskal will not be considered Dinei Mamonos with regard to these laws. (M. Kornfeld)

QUESTION: The Mishnah teaches that in cases of Dinei Mamonos, the greater judge presents his view first, while in cases of Dinei Nefashos the lesser judges present their views first. RASHI explains that the Gemara later (36a) says that this is because of the verse "Lo Sa'aneh Al Riv" (Shemos 23:2) which the Gemara expounds -- based on the spelling of the word "Riv" as "Rav" in the verse -- to be saying, "Do not argue with the Rav," i.e. with one who is greater than you. The verse implies that a less experienced judge is *not permitted* to argue with a greater judge, as the SEMAG (Lo Ta'aseh 196) and RAMBAM (Perush ha'Mishnayos) indeed write. This is also the implication of Rashi elsewhere (18b and 36a, DH Lo Sa'aneh, and in Gitin 59a, DH DH d'Chulhu.

How can this verse be reconciled with the beginning of the Mishnah, which states that *anyone* may propose an argument to exonerate the defendant in a case of Dinei Nefashos? The Gemara (end of 33b, cited by Rashi here) explains this to mean that even a student may speak up to challenge the rulings of his mentors, the members of the court. (NIMUKEI YOSEF, page 13b of the Rif)

In addition, we learned earlier (6b) that if a student sees his master mistakenly accept the claims of one of the disputants, he is obligated to speak up and tell his master of the mistake. Even though the statement there (6b) was made with regard to Dinei Mamonos, monetary law, we do not find that the Derashah of "Lo Sa'aneh Al Rav" is limited to Dinei Nefashos. We find only that we *take into account* the effects of "Lo Sa'aneh Al Rav" i cases of Dinei Nefashos but not in cases of Dinei Mamonos, and not that "Lo Sa'aneh Al Rav" only *applies* to Dinei Nefashos and not to Dinei Mamonos. (TOSFOS 36b, DH Dinei, according to the MAHARSHA there; NIMUKEI YOSEF, page 13b of the Rif)

Third, if an elder judge does (wrongly) speak up first, how can we obligate the other judges to follow his ruling and agree to him when they believe it to be false! (MISHNEH L'MELECH, in Perashas Derachim, Derech Mitzvosecha #2)

ANSWERS:

(a) TOSFOS (36b, DH Dinei) answers the first two questions by explaining that although a lesser judge of the court may not contradict a greater judge, he may present the greater judge with *a question* on his ruling for the judge to consider. This is what our Mishnah means when it says that a student may speak up, and this is what the Gemara (6b) means when it says that a student may correct his superior.

RASHI (18b and 36a, DH Lo Sa'aneh, and Gitin 59a, DH d'Chulhu) seems to be answering our first two questions by explaining that it is permitted to argue with any judge other than the *greatest judge of the times*, the "Mufla" of the Sanhedrin.

(In a second answer, Tosfos proposes that the verse that prohibits a younger member from contradicting his superior applies only to Dinei Nefashos. This is also the opinion of the YERE'IM (#184; see also Rashi in Gitin 59a, DH d'Chulhu). This answers the question from the Beraisa (6b). Regarding the question from our Mishnah, we may answer that the Mishnah allows a student to speak up and to correct his superiors in Dinei Nefashos only *before* the elder member of the court has ruled (since his ruling is saved for last, as the Mishnah says). Even though other members of court have already presented their opinions, and they, too, are greater than the student, the prohibition of the verse only relates to arguing with the eldest member of the court.)

Regarding our third question, a justice who does not agree to the head of the court is not obligated to rule against his own reasoning. Rather, he may remain silent and withdraw from the case, letting another judge (who agrees with the ruling of the head of the court) take his place (DEVAR MOSHE #206).

(b) The CHIDUSHEI HA'RAN (36b, also cited by the NIMUKEI YOSEF) answers that the verse does not mean to *prohibit* a younger member of the court from arguing with an older member of the court. It certainly is permitted for him to argue, as can be deduced from our three questions.

Rather, the verse is addressing the elder member of the court and warning him not to speak before the other members, lest they refrain from presenting their true views (to exonerate the defendant in capital crimes) out of respect for the elder member (who found the defendant liable). That is, the elder member is warned to take into account the fact that others will feel uncomfortable arguing with him. He is told "Lo Sa'aneh Al Rav," which means that -- by presenting his view first -- he should not *cause others* to have to argue with him when they present their arguments.

This also appears to be the intention of RASHI here (DH Min ha'Tzad, in contrast to what he writes in the other places; see CHAMRA V'CHAYEI, MARGOLIYOS HA'YAM, DEVAR MOSHE), and the RAMBAM (Hilchos Edus 10:6)).

QUESTION: The Gemara says that when witnesses sign a Shtar which is dated the first of Nisan, and other witnesses make the first into Edim Zomemim and say that they could not have signed the Shtar on the first of Nisan, the first witnesses are still valid. This is because even if it is true that the witnesses could not have signed the Shtar on the first of Nisan, nevertheless we assume that the Shtar is a Shtar Me'uchar.

Rashi says that the Shtar is valid as a Shtar Me'uchar because the witnesses did not sign the Shtar on the date on which the event occurred, but rather they signed it on the first of Nisan and described an event that occurred earlier. Therefore, even if the witnesses -- on the first of Nisan -- were not in the place where the earlier event happened, the Shtar is valid because the witnesses are writing the Shtar describing what happened on an earlier date (when they were able to witness the event).

If the witnesses wrote the Shtar on a later date (after the event occurred), then why did they write in the Shtar the name of the place where the event occurred, and not the name of the place in which the Shtar is being written (which is the correct way of writing a Shtar, as the Gemara in Gitin (80a) says)? Rashi explains that the Gemara in Gitin is merely recommending that the witnesses write the name of place in which the Shtar is written, along with the date on which it is written, but if they write the place where the event occurred the Shtar is still valid, b'Di'eved.

Why does Rashi not give a more straightforward explanation and say that the Shtar is Me'uchar because we assume that it was written at the time that the event occurred, but a later date (i.e. the first of Nisan) was written in the Shtar (so that the Shi'abud should not start until the later date)? (TOSFOS DH Chaishinan and the Rishonim)

ANSWER: RASHI might have derived this explanation from the wording of the Gemara. The Gemara says that "perhaps they delayed the Shtar and [then] they wrote it (Shema Ichruhu v'Chasvuhu)." If the Gemara means that the witnesses simply wrote a later date in the Shtar, then the word "v'Chasvuhu" ("and they wrote it") is referring to the *date* written in the Shtar, which was written as a later date than the one on which the event occurred, and it is not referring to the Shtar itself. The context of the Beraisa, however, implies that "v'Chasvuhu" is referring to the Shtar itself -- they delayed and wrote *the Shtar*, meaning that the Shtar itself was not written immediately when the event occurred, but rather its writing was delayed. (This might be why Tosfos, who explains the Gemara the way we suggested in the question, leaves out the word "v'Chasvuhu" when quoting our Gemara.)

However, if this was Rashi's inference from the Gemara, then the Gemara needs clarification. Why does the Gemara itself explain that the Shtar is valid only because it might have been written at a later date, and not because the witnesses might have written it immediately but put a later date in it?

The answer seems to be that we know that even the witnesses who sign a Shtar are not believed themselves to contradict something that is implied by their earlier signatures, because of the rule, "Keivan she'Higid, Shuv Eino Chozer u'Magid" -- once a witness has testified, he cannot retract and give different testimony." For this reason, the witnesses cannot say that they were minors or invalid witnesses when they signed the Shtar (see Kesuvos 18b). If the witnesses themselves cannot contradict what is implied by their own signatures, then certainly *we* cannot assume that they meant to say something different than what is implied by their signatures.

Since the Shtar does not say explicitly that the date written in the Shtar is not the date on which the Shtar was signed, it is assumed that the witnesses are testifying that they signed on that day that is written in the Shtar. Therefore, we cannot defend their testimony -- when other witnesses come and attempt to make them Edim Zomemim -- by saying that they really signed on a different day than the date written in the Shtar. Our only way to defend them is by saying that they signed on the day written in the Shtar, but the Shtar was describing an event which occurred on an earlier date. (Since the date is associated with the time of the signature and not with the time of the event that is recorded in the Shtar.)

This answers the question raised by the TUMIM (38:8) and TAZ (CM 42). They ask why do we not use the same argument to defend every case in which two witnesses are made into Edim Zomemim? We should say that even though they could not have been in the place that they describe on the day that they describe, perhaps the event that they describe took place on a different date than the date they claim, and they are only lying about the date. If they are only lying about the date, then they should not be invalid! The answer might be that since the witnesses cannot change their testimony about the date that they originally said because of "Keivan she'Higid...," we cannot defend them by suggesting that they are lying only by the date.

Tosfos and the other Rishonim might agree with Rashi on this point. However, Tosfos maintains that it is not implicit in the Shtar that their signatures took place on the date written in the Shtar, since it is common for people to write a later date in a Shtar in order to delay the Shi'abud.

32b

QUESTION: The Gemara explains that even though the Torah requires Derishah v'Chakirah of witnesses in cases of Dinei Mamonos, the Rabanan annulled the need for Derishah v'Chakirah in order to make it easier for borrowers to obtain loans. The Gemara learns this from the Beraisa and Mishnah which teach that a Shtar Me'uchar is valid, even though we do not know when it was written.

Although the Gemara suggests other answers to reconcile the Halachah of a Shtar Me'uchar with our Mishnah which says that cases of Dinei Mamonos require Derishah v'Chakirah, nevertheless all of the answers given accept the fact that it was the Rabanan who cancelled the requirement of Derishah v'Chakirah (see RASHI DH Rava Amar).

From our Gemara it seems that it is only with regard to Dinei Mamonos that we forego the need for knowing the correct date of the Shtar, because of this Takanah d'Rabanan. Why, then, do we find in Yevamos (31b) that documents of Gitin and Kidushin also do not need to have the date written in them mid'Oraisa?

The Gemara in Gitin (17b) says that mid'Rabanan a Get must have a date written in it l'Chatchilah because of the problem of "Bas Achoso" (see Background to Gitin 26:4c). The Gemara there does not require a date in a Shtar in order to be able to fulfill the requirements of Derishah v'Chakirah. Why not? The reasoning that we want it to be easier for a borrower to obtain a loan does not apply there in Gitin, because the Gemara there is not discussing documents of loans. In addition, the matters of Get and Kidushin are matters of Isur and not just monetary law. Why, then, do documents of Gitin and Kidushin not require a date mid'Oraisa?

ANSWERS:

(a) The NIMUKEI YOSEF (10b of the pages of the Rif) explains that indeed the Rabanan cancelled the requirement of writing the date in documents of Gitin and Kidushin as well, since they are common Shtaros. They cancelled the requirement for Derishah v'Chakirah in cases of Gitin and Kidushin because such documents are commonly made and the Rabanan did not want to make them too complicated. The Rabanan have the right to do this -- even though a Get involves a matter of Eshes Ish -- based on the principle that when a person is Mekadesh a woman he does so "Al Da'ata d'Rabanan (Kesuvos 3a). When a Get is written without a date, the Rabanan retroactively removed the Kidushin, thereby annulling the marriage.

RABEINU CHAIM HA'LEVI Soloveichik (Hilchos Edus) questions this explanation. The Gemara in Yevamos (31b) implies that a Get Shichrur also does not need a date written in it, mid'Rabanan. How could the Rabanan validate a Get Shichrur which is not valid mid'Oraisa? Even if they uproot the Avdus retroactively, the Eved will not become a full-fledged Jew, because his original Tevilah was done in order to make him an Eved and not a full Jew. How, then, can a Get Shichrur make an Eved into a full Jew?

(b) Rav Chaim explains that a Shtar without a date is not considered lacking the Derishah v'Chakirah of witnesses. The reason for this is because of the rule that witnesses who sign a Shtar are "Na'aseh ke'Mi she'Nechkerah Edusan b'Veis Din" -- they are accepted as though they already passed the entire interrogative process of Beis Din. This is why a Shtar may be written at night even though Beis Din does not convene at night -- the signed testimony is considered as if it was delivered in Beis Din in the proper manner.

Rav Chaim then writes that perhaps the rule of "Na'aseh ke'Mi she'Nechkerah Edusan b'Veis Din" does not apply to the requirement for Derishah v'Chakirah, because Derishah v'Chakirah is not an aspect of the testimony itself. Rather, it is an aspect of the way the court relates to the testimony. Nevertheless, Derishah v'Chakirah is still not required of witnesses who sign a Shtar, because their testimony does not have to be accepted by the court in order to make the Shtar valid. This is because there is no need for a formal "Kabalas Edus," and therefore the testimony on a Shtar does not need Derishah v'Chakirah in Beis Din.

Why, then, does the Gemara assert that a Shtar Me'uchar should not be valid if we require Derishah v'Chakirah? The reason is because a Shtar Me'uchar not only lacks Derishah v'Chakirah, but the testimony has been *contradicted* with regard to the Chakiros, because the witnesses say that the event took place on one day and others say that it did not take place on that day. If cases of Dinei Mamonos require Derishah v'Chakirah, then this contradiction should invalidate the Shtar. The Gemara answers that the Rabanan removed the need for Derishah v'Chakirah, and therefore the Shtar is valid even if there is a contradiction in the Chakiros. With regard to a document of Get or Kidushin which has no date written in it, the Shtar would be valid even mid'Oraisa, since it is "ke'Mi she'Nechkerah Edusan b'Veis Din," or because it does not require "Kabalas Edus."

(This answer requires elucidation. If the testimony of the witnesses who signed the Shtar is considered to be *contradicted* by the new set of witnesses who say "We were with the signers all that day and they didn't sign," how then can we protect the signers by saying that the Shtar was Me'uchar? Even the signers themselves would not be able to say that the Shtar was Me'uchar if it is considered to be a *contradiction* to their original testimony, since it would be considered "Chozer u'Magid." See previous Insight - M. Kornfeld)

However, Rav Chaim ha'Levi points out that this answers the question only according to the RAMBAN cited by the SEFER HA'TERUMOS (29:2), who writes that even contradiction in matters of the Chakiros does not invalidate testimony in cases of Dinei Mamonos. However, the RAMBAM (Hilchos Edus 3:3) rules that even after the Takanah d'Rabanan, when we do not require Chakiros for Dinei Mamonos, we invalidate testimony for Dinei Mamonos if the witnesses contradict themselves in matters of Chakiros. According to the Rambam, it is clear that the Gemara considers a Shtar Me'uchar to be *lacking* Derishah v'Chakirah, and not as being *contradicted* by Derishah v'Chakirah.

(c) Rav Chaim ha'Levi answers the Rambam by saying that the Rambam is following his own opinion (in Hilchos Edus) that witnesses signed on a Shtar Ra'ayah (a Shtar written to serve as proof about what happened) are not valid witnesses mid'Oraisa because of the rule of "mi'Pihen v'Lo mi'Pi Kesavan." However, witnesses signed on a Shtar Kinyan -- a Shtar written to accomplish an effect (such as a Get) -- are valid mid'Oraisa even according to the Rambam, as Rav Chaim proves, because the Torah teaches that witnesses in such a Shtar are considered to have testified properly in a valid court ("ke'Mi she'Nechkerah Edusan b'Veis Din").

Hence, a document of Get or Kidushin certainly needs no date, because of the reasons mentioned above (in (b)). However, the Gemara thought that a Shtar Ra'ayah *should* require a date, since we do not apply to it the rule of "ke'Mi she'Nechkerah Edusan b'Veis Din." (Although the Rabanan instituted that such a Shtar is valid and is "ke'Mi she'Nechkerah Edusan," nevertheless they did not remove the requirement that there be a "Kabalas Edus," that testimony must be formally received in court. Therefore, the Shtar should require a date in order to fulfill the requirement of "Kabalas Edus," which is not included in the Takanah d'Rabanan of "ke'Mi she'Nechkerah.")

(d) Another possible answer is that even though signatures on a Shtar are normally considered "k'Mi she'Nechkerah Edusan b'Veis Din," in the Beraisa's case of Shtar Me'uchar there is reason to suspect misconduct on the part of the witnesses who signed (because a second set of witnesses claim that the signers were with them on the date that appears on the Shtar, and they did not sign the Shtar). This creates a slight reason to doubt the veracity of the witnesses. (Slight, because there is always the possibility that the Shtar is Me'uchar.)

If Derishah va'Chakirah were not required by Dinei Mamonos, then we would not invalidate the Shtar because of our slight cause for suspicion. Rather, we would say that as long as we do not have *strong* reason to doubt the testimony of the signers, we will accept their testimony (and apply the rule of "k'Mi she'Nechkerah Edusam b'Veis Din," which is based on the inherent honesty of witnesses who appear on a Shtar). We would therefore assume that the Shtar was Me'uchar (as the Beraisa indeed rules).

However, if Derishah va'Chakirah *is* required by Dinei Mamonos, we would interpret the requirement of Derishah va'Chakirah to mean that we are supposed to do all that we can to *disqualify* the testimony of the witnesses. Therefore, we would invalidate the Shtar (and no longer apply "k'Mi she'Nechkerah Edusam b'Veis Din") even if we only have a slight reason to doubt the witnesses' honesty.

If this is true, then a Shtar without a date will certainly be valid without Derishah va'Chakirah, since it does not arouse our suspicion. The Shtar in our Gemara is not valid only because our suspicion has become aroused. (See Rashi DH Heichi). (M. Kornfeld)