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Sanhedrin, 41

1) "MATIR ATZMO L'MISAH" IN A CASE OF "EDIM ZOMEMIM"

QUESTION: The Gemara cites a source for the Halachah that we do not kill a person until he is "Matir Atzmo l'Misah" by responding to Hasra'ah and saying, "That this is exactly my intention; let Beis Din kill me because of my act." The source is the verse, "Yumas ha'Mes" (Devarim 17:6), which implies that the sinner accepted upon himself the death penalty even before Beis Din issued its verdict.

The TUMIM (CM 38, DH v'Da) asks that if we cannot kill a person unless he is "Matir Atzmo l'Misah" then why does the Gemara in Kesuvos (33a) not use this as a way of proving that Edim Zomemim do not need Hasra'ah (see Rashi 40b, DH she'Ken Tzarich Hasra'ah)? The Gemara there says that although we cannot give Hasra'ah before they testify lest they refrain from testifying, nor can we give them Hasra'ah a few minutes after they have testified since they can no longer retract their testimony at that point, nevertheless we can give them Hasra'ah "Toch Kedei Dibur" of finishing their testimony, since they can still retract their testimony if they want within that time. That is true, however, only when the Hasra'ah simply involves telling the witnesses what punishment they will receive if they are made into Edim Zomemim. However, if the Hasra'ah is valid only if the witnesses reply, "Yes, this is why I am sinning -- so that Beis Din should kill me," then obviously we cannot expect the witnesses to become sentenced to death based on such a statement! By saying such a statement, the witnesses are admitting that their testimony is not true, and they are effectively retracting their testimony "Toch Kedei Dibur" and exempting themselves from punishment!

The Tumim mentions that the Gemara in Kesuvos may be based on the opinion of Rebbi Yosi bar'Rebbi Yehudah who, according to one answer in TOSFOS here (DH b'Ishah Chaveirah) and RASHI (72b, DH ha'Hu), holds that it is not necessary for the guilty part to be "Matir Atzmo l'Misah." However, he adds that this is a very forced answer.

ANSWERS:

(a) Because of this question, the Tumim concludes that although we cannot kill a person who is not "Matir Atzmo l'Misah" because of the verse "Yumas ha'Mes," nevertheless to give a punishment of *Malkus* it is not necessary for the guilty person to be "Matir Atzmo l'Malkus." The Gemara in Kesuvos is looking for a source that Edim Zomemim do not need Hasra'ah for *Malkus*, and therefore the requirement for someone guilty of Misah to be "Matir Atzmo l'Misah" is irrelevant.

This is also the opinion of the CHUT HA'SHANI (#17), who writes that it is not necessary for one to be "Matir Atzmo l'Malkus."

However, the GILYONEI HA'SHAS (Sanhedrin 81b) points out that Rashi there (DH Hasru Bo) and Tosfos in Temurah (7a, DH Ela) write that it *is* necessary for one to be "Matir Atzmo l'Malkus" in order to be punished with Malkus. This is also the opinion of the RAMBAM (Hilchos Sanhedrin 12:2) according to the LECHEM MISHNEH. Although the verse cited here mentions only the death penalty, we should be able to deduce from this that it is necessary to be "Matir Atzmo l'Malkus" through a Kal v'Chomer, since the Gemara here and earlier (40b) makes it clear that a *greater* form of Hasra'ah is necessary for a *lesser* form of punishment (see SEDEI CHEMED 4-M:31, DH Amnan).

(b) Perhaps the Gemara thought that we can give Hasra'ah to Edim Zomemim since they can be "Matir Atzmo l'Misah" by saying, "*If* I am found to be an Ed Zomem, then let Beis Din kill me."

The Tumim does not accept this as a valid answer. Apparently, his logic is that the point of being "Matir Atzmo l'Misah" is so that the guilty party should pronounce his own sentence. That is, being "Matir Atzmo l'Misah" is the beginning of the verdict against him. Hence, by saying "*If* I am guilty, then I should be killed," he has not pronounced anything upon himself, since he has not accepted unequivocally that he will be punished.

However, we may propose another explanation for why a person must be "Matir Atzmo l'Misah" in order to be punished with death. The ME'IRI (40b) explains that it is necessary for the accused to be "Matir Atzmo l'Misah" because if the sinner replies to the Hasra'ah by saying merely, "Yes, I know," but is not "Matir Atzmo l'Misah," it could be that he does not expect to be taken to court to be killed, but rather he thinks that the persons who warned him were just trying just to reproach him. Accordingly, the Hasra'ah did not have its full deterrent power, and we cannot determine the extent of the sinful intention. Hence, when Edim Zomemim say, "We area ready for the court to sentence us *if* we are found guilty," it is clear that they are taking the Hasra'ah seriously, and therefore this will suffice as fulfillment of the requirement to be "Matir Atzmo l'Misah."

41b

QUESTIONS: The Mishnah (40a) teaches that if one witness responds to a question of the Chakiros by saying, "I do not know," the testimony is invalid. In contrast, with regard to a question of the Bedikos, if one witness responds, "I do not know," and *even if two* say, "We do not know," the testimony is accepted.

The Gemara asks what the Mishnah is teaching by saying "*even* if two say, 'We do not know.'" What is the Chidush of two witnesses? What difference does it make if one of the two witnesses does not know or if both of the witnesses do not know? In either case we do not have complete testimony and yet we accept their words!

Rav Sheshes proposes that we read the Mishnah as saying that even when there are *three* witnesses and two of them say that they *do* know in response to a question of the *Chakiros* and the third witness says that he does not know, the entire testimony is *not valid*.

Rava rejects this, because the Mishnah says that the testimony *is* valid when two witnesses say that they do not know. How can we change the words of the Mishnah to be saying the opposite?

Rava therefore explains the words of the Mishnah to mean that when there are three witnesses and two witnesses say that they *do* know and the third witness says that he does not know, with regard to the *Chakiros*, the entire testimony is *valid*.

The only difference between the answers of Rava and Rav Sheshes is that Rava keeps the world "valid" ("Kayemes") and he does not change it to "invalid" ("Beteilah"). However, Rava, like Rav Sheshes, is also changing the words of the Mishnah! The Mishnah says that two witnesses say, "We do not know," and Rava changes it and says that the two witnesses are saying, "We do know!" Why does the Gemara not challenge Rava with the same question that Rava asks on Rav Sheshes? How can Rava change the Mishnah to say "we do know" when the Mishnah says that they say "we do not know?" (CHIDUSHEI HA'RAN)

ANSWERS:

(a) The CHIDUSHEI HA'RAN and CHAMRA V'CHAYEI explain that we are more certain that the correct text of the Mishnah is that the testimony is *valid*, as is written, than that the statement of the two witnesses was that they do *not* know. The reason for this is because the Mishnah uses one word ("Kayemes") to teach the Halachah for two cases -- the case in which a witness says "I do not know" with regard to the Bedikos, and the case in which two witnesses say that they do not know (or that they do know) with regard to the Chakiros. We know that in the former case, the testimony is indeed valid. Therefore, the Mishnah's ruling must have been that the testimony is also valid when the two witnesses say that they do (or do not) know with regard to the Chakiros.

(b) The ARUCH LA'NER cites RASHI earlier (10b, DH v'Ha Ibur) who writes that it is common for a Tana to inadvertently omit a word that he forgot, but the Tana does not change one word into an entirely different word. Similarly, our Tana might have inadvertently added the word "*Ein* Anu Yod'in," but the Tana would not confuse the word "Kayemes" with the word "Beteilah."

(c) Another answer might be as follows. How could Rav Sheshes and Rava suggest that the words "even if both witnesses say 'we do [not] know" are referring to the witnesses responding to a question of the *Chakiros*? The Mishnah at this point is clearly discussing *Bedikos*!

Perhaps Rava is actually suggesting that the Mishnah be read as it appears in our texts, and that these words are indeed referring to the witnesses' reply to the Bedikos and not to the Chakiros. The Halachah that Rava teaches is the *inference* from the words of the Mishnah and is not explicitly stated in the Mishnah.

Rava is reading the Mishnah as referring to a single case, in which three witnesses come to testify and are asked the questions of the Bedikos. The Mishnah teaches that if one of the three says, "I do not know," then even if the other two *also say* that they do not know, the testimony is valid. (That is, the word "va'Afilu" in the Mishnah should be read as "Afilu," without the Vav.) From this phraseology of the Mishnah we can infer that with regard to the Chakiros, the Halachah will be different: if the third witness says -- in response to a question of the Chakiros -- that he does not know, the testimony will be valid only if the other two witnesses say that they do know. This is Rava's intention.

According to this explanation, Rava's emendation of the Mishnah is insignificant (it is just omitting the Vav of "va'Afilu"). This also seems to be the intention of the KOS HA'YESHU'OS.

(d) Consistent with our third answer, we may suggest further that Rava is not changing even a single letter in the Mishnah. Rather, Rava is answering why the Mishnah considers it a Chidush to say that when two witnesses say that they do not know, the testimony is valid. Rava is answering that the Mishnah is talking about a situation in which there are three witnesses. Accordingly, the Mishnah is teaching an additional Chidush by saying that two witnesses say they do not know. When a single witness says "I do not know," we still have the valid testimony of the other two witnesses. The Mishnah adds that even when two of the three witnesses say "we do not know," leaving only one witness who does know, the testimony is still valid.

However, this explanation is acceptable only if the Mishnah does not consider all of the witnesses to be giving a single testimony. If all of the witnesses must be valid in order to accept the testimony, then as soon as the Mishnah teaches that the testimony is valid when *one* says "I do not know," then we would know by ourselves that the testimony is valid when two witnesses say that they do not know. Consequently, from the words "even if two say 'we do not know,'" it can be derived that when more than two witnesses testify together, it is necessary only to validate the testimony of two of them (and not all of them). This is what Rava means when he says that these words teach that when two witnesses answer the Chakiros and the third does not, the testimony is valid.