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Sanhedrin, 71

1) THE REQUIREMENTS OF PARENTS OF A "BEN SORER U'MOREH"

QUESTION: According to Rebbi Yehudah, a Ben Sorer u'Moreh is put to death only when impossible requirements are met. His father and mother must be identical in voice, height, and appearance. He learns this from the verse which states, "Einenu Shome'a b'Koleinu" (Devarim 21:20). Since the word "b'Koleinu" is spelled without a Yud, it implies that the parents have one and the same voice. The Gemara concludes that since they must have the same voice, they must also have the same height and appearance.

What logic is there to say that just because the verse requires that they have the same voice, they must also have the same height and appearance?

ANSWERS:

(a) The MAHARSHA explains the Gemara's reasoning as follows. The word "b'Koleinu" implies that the Ben Sorer u'Moreh is punished with death only after he was reprimanded by both his father and his mother *together*. Why must they reprimand him together? Why does it not suffice for the mother and father to reprimand him independently? It must be that the voices of the father and the mother are so similar that if they were to reprimand him independently, the Ben Sorer u'Moreh would claim that he thought it was always the same parent rebuking him and that he never heard both parents rebuking him. It is only when both parents reprimand him *together* that he cannot deny that both parents reprimanded him.

Why, though, can the Ben Sorer u'Moreh say that he thought it was always one parent rebuking him? Even if he cannot differentiate based on the voice, he should be able to tell which parent it is by the parent's appearance! It must be that the father's appearance and mother's appearances are so similar that the son can claim that even their looks did not reveal to him which parent was rebuking him. For this reason, the Torah requires the parents to rebuke the son together. This is how the Gemara derives that it must be that the Torah requires the parents to be identical in voice, height, and appearance.

(b) Another possibility is that the Torah requires the parents to have the same voice in order to make it clear that they are in agreement. The parents must be similar in all ways so that the cause of the son's wayward actions should not be the discord that exists in the home. The way a person speaks (his tone, inflections, gestures) reflects his personality. The Torah is saying that the parents must have very similar personalities in order for their son to be executed as a Ben Sorer u'Moreh. A person's physical features also reflect his personality. (See Berachos 58a, which says that just like every face is different, so, too, every personality is different. See also Sanhedrin 38a, which says that people differ from each other in three ways -- "voice, appearance, and personality.") In fact, one's appearance is a greater reflection of his personality than his voice, as we find that through Ru'ach ha'Kodesh a person can see another person's personality through his face (see Rabeinu Bachye to Shemos 18:21).

Since the verse says that the parents must be so similar in personality that their voices are the same, certainly they must also have the same appearance, because one's appearance is a *more* integral reflection of one's personality.

(c) The TORAS CHAIM suggests that once we can deduce from the verse that the parents must have the same verse, it is clear that the verse was only written for the sake of "Derush v'Kabel Sachar." What, though, is this Derashah that we can learn from this verse for which we will receive reward?

The Zohar (Bamidbar 197b) explains what the Derashah is according to those who say that the Parshah is written for the sake of "Derush v'Kabel Sachar." According to the Zohar, Hashem taught Moshe Rabeinu that the verses are referring to the relationship between Hashem and the Jewish people. The father and mother are Hashem and Kneses Yisrael, respectively, and the wayward son is the Jewish nation who rebelled against his father. The father and mother first reprimand him through the Nevi'im. When the son does not listen, then the father and mother come in complete agreement and bring the son to be sentenced to stoning, representing the destruction of the Beis ha'Mikdash at the hands of the nations (through stones and catapults). This is why the verse says that the father and mother have the exact same voice. It is showing that the parents mentioned in this verse are alluding to the One G-d who shows Himself to this world in two different aspects -- the aspect that is more removed ("ha'Kadosh Baruch Hu") and the aspect that is close to the Jewish people (the Shechinah), but the two of those aspects are actually one and the same, since Hashem is Echad. This is what the Gemara means when it concludes that if the voices of the "parents" are the same, then it must be that the verse is referring to the "parents" who are truly One and the same in all aspects -- Hashem.

QUESTION: Rebbi Eliezer maintains that the Parshah of Ir ha'Nidachas was written only for the sake of "Derush v'Kabel Sachar." The punishment of an Ir ha'Nidachas cannot actually occur, because the verse says that all of the possessions of the city are to be gathered and burned. Since there certainly is no city that does not have at least one Mezuzah, and it is forbidden to burn a Mezuzah because of the verse, "Lo Sa'asun Ken" (Devarim 12:4), no city can be punished as an Ir ha'Nidachas.

Why should the prohibition of burning a Mezuzah prevent us from burning the Mezuzos of an Ir ha'Nidachas? There is a Mitzvas Aseh to burn the possessions of an Ir ha'Nidachas (Devarim 13:17), and we know that an Aseh overrides a Lo Sa'aseh -- "Aseh Docheh Lo Sa'aseh." Hence, the Mitzvas Aseh of burning the city should override the Isur of burning a Mezuzah! (TORAS CHAIM here, REBBI AKIVA EIGER 113a)

ANSWERS:

(a) The MARGOLIYOS HA'YAM cites the PRI HA'SADEH (2:2; see also LIMUDEI HASHEM #4) who explains that the Mitzvas Aseh of burning the city is fulfilled only when the entire city is burned. The Isur of burning a Mezuzah is transgressed before that point. Since the fulfillment of the Mitzvah is not done at the same time ("b'Idnei") as the Lo Sa'aseh is transgressed, the Aseh cannot be Docheh the Lo Sa'aseh (as the Gemara states in Shabbos 132b).

However, this answer does not suffice according to what the NIMUKEI YOSEF writes in Bava Metzia (30a). The Nimukei Yosef proves from the Gemara there that the principle of "Aseh Docheh Lo Sa'aseh" should apply to permit a Kohen to enter a cemetery to fulfill the Mitzvah of retrieving a lost object for someone, if not for the fact that the prohibition of a Kohen entering a cemetery involves an Aseh *and* a Lo Sa'aseh. Why should it be permitted if entering a cemetery was prohibited only because of a Lo Sa'aseh? The Kohen transgresses the Lo Sa'aseh (entering the cemetery) before he fulfills the Aseh (returning the lost object)! The Nimukei Yosef answers that the Mitzvas Aseh involves all of the actions that the Kohen must do in order to retrieve the lost object. Since his first step into the cemetery is part of the fulfillment of the Mitzvah, it is considered "b'Idnei," done at the same time as the Mitzvah, even though the Mitzvah is only completely fulfilled after the object is returned to its owner. The same principle should apply in our case to teach that it is permitted to burn the Mezuzah since it is part of the possessions of the city, even though it will take some time before every last possession in the city will be burned.

(b) The Margoliyos ha'Yam suggests that perhaps an exception to the principle of "Aseh Docheh Lo Sa'aseh" applies here. The Gemara in Zevachim (97b) learns from a verse that the principle of "Aseh Docheh Lo Sa'aseh" does not apply with regard to eating the Korbanos (for example, breaking bones of a Korban Pesach in order to eat the marrow), because "an Aseh is not Docheh a Lo Sa'aseh in the Mikdash." Perhaps the same is true with regard to burning the Holy Name of Hashem; because of its Kedushah, an Aseh is not Docheh the Lo Sa'aseh of burning the Shem Hashem. (See also IGROS MOSHE OC 1:4-6.)

However, this argument is weak, since the Gemara in Zevachim does not relate its rule to the Kedushah of the Lo Sa'aseh in the Mikdash. It seems to be a general rule that applies in the *location* of the Mikdash, rather than a reflection of the importance of a particular Lo Sa'aseh in comparison to the Aseh that is being Docheh it. The Lo Sa'aseh of breaking a bone in the Korban Pesach, for example, would not seem to be related to the Kedushah of the Mikdash.

The MESHECH CHOCHMAH (end of Parshas Ekev) also proposes that there is a verse which teaches that we do not to apply the rule of "Aseh Docheh Lo Sa'aseh" to burning the Mezuzos of an Ir ha'Nidachas. However, he contends that the verse is not the one that the Margoliyos ha'Yam quotes from Zevachim (which applies only to the Mikdash), but rather the verse in Devarim (12:4), which states, "You shall demolish their altars... and destro y the name of Avodah Zarah.... Do not do that to Hash-m." Raban Gamliel asks (in the Midrash; see Rashi), "Would we ever suspect a Jew, Chas v'Shalom, of destroying the altar of Hash-m, that the verse must warn us not to do such a thing?" He does not tell us his answer to this question. Perhaps his answer is that the verse means to prohibit destroying an altar (or Mezuzah) even if it is a *Mitzvah* to destroy it, such as when it is in an Ir ha'Nidachas! The verse, then, is specifically telling us not to allow the Mitzvah of burning an Ir ha'Nidachas to override the Lo Sa'aseh in this case, the Meshech Chochmah explains.

However, there is no source for such a Derashah in the Gemara or Midrash, so it is somewhat forced to suggest that our Gemara is relying on such an unwritten Derashah.

(c) The Gemara later (113a) repeats the discussion of our Gemara, and Rashi there seems to have been bothered by our question. RASHI (113a, DH di'Chesiv) explains that we cannot burn a Mezuzah of an Ir ha'Nidachas, because the Torah prohibits the burning of the Holy Name (as the Gemara says). Rashi then adds, "The Torah requires that we burn the *personal possessions* of the city ('Shelalah'), and a Mezuzah is not just a personal possession. It is a Heavenly possession ('Shelal Shamayim')."

REBBI AKIVA EIGER there questions Rashi's explanation. Why does Rashi need to add this last phrase? It would suffice to say merely that the Torah prohibits destroying a Mezuzah! The MARGOLIYOS HA'YAM answers that Rashi's intention is to answer why the Mitzvah of burning the Ir ha'Nidachas does not override the prohibition of burning the Holy Name. His answer is that the Torah does not command us to burn the Mezuzos of the Ir ha'Nidachas in the first place. Since there is no Mitzvah to burn the Mezuzos, there is no Aseh to be Docheh the Lo Sa'aseh!

This answer, however, is incomplete. If the commandment to burn the city does not include burning the Mezuzos, how can it be inferred from the verse that we are discussing a city that has no Mezuzos? Even if the city has Mezuzos, perhaps we are only commanded to burn everything else in the city, but not the Mezuzos (which we are to remove to safety). The Torah says to burn only "*Shelalah*," and a Mezuzah is not in the category of "Shelalah" and thus the Torah does not require that it be burned! (REBBI AKIVA EIGER ibid.; see the Margoliyos ha'Yam's attempt there to avoid this question. See also ARUCH LA'NER there for an entirely different explanation of the intention of Rashi.)

(d) A number of Acharonim suggest that burning the Holy Name is not only prohibited due to a Lo Sa'aseh, but it is prohibited with a Mitzvas Aseh as well. Even though we have a rule that "Aseh Docheh Lo Sa'aseh," there is also a rule that an Aseh is *not* Docheh a Lo Sa'aseh that is itself enforced with an Aseh.

What is the Aseh that prohibits burning the Holy Name? It is either the Mitzvah of "v'Ahavta Es Hashem" (SANHEDRI KETANAH), the Mitzvah of "Es Hashem Elokecha Tira" (ACHIEZER 2:48:2; BEIS MEIR; KOMETZ L'MINCHAH of the Minchas Chinuch, Mitzvah #69), or the Mitzvah of "v'Ibadtem Es Shemam," which teaches to destroy the name of Avodah Zarah and includes the implication that one may *not* destroy the name of *Hashem* (ARUCH LA'NER 113a).

71b

QUESTION: The Mishnah teaches that in order to convict a Ben Sorer u'Moreh, "we must warn him [not to sin] in front of three people" (71a). In the Gemara, Abaye explains that the Mishnah actually means that he must be warned to stop his evil ways in front of *two* people, and then, if he sins nonetheless, he is given lashes in a court of three judges.

Why is it necessary for the Mishnah to teach that a Ben Sorer u'Moreh must be warned before he is punished? Every sinner mentioned in Maseches Sanhedrin is punished only after he is warned not to sin ("Hasra'ah;" 40b)! Why does the Mishnah single out the Ben Sorer u'Moreh to mention Hasra'ah?

(In addition, why does the Mishnah phrase this Halachah in such a misleading manner, implying that the Hasra'ah must be given in front of three people (and not two, as Abaye explains the Mishnah to mean)?)

ANSWERS:

(a) RASHI (71a, DH Masrin Bo) explains that the Hasra'ah of the Mishnah is not the usual Hasra'ah that is given to a sinner before he can be punished for his actions. Normally, Hasra'ah is given immediately before the sinner sins, in order to determine whether the sinner is transgressing the Torah's commandments with full intent. The Hasra'ah of our Mishnah, however, is given *after* the Ben Sorer u'Moreh sins the first time. After he steals the first time, he is brought to court and reprimanded in court (either by the court or by his parents). This reprimand is not to determine whether he is sinning with intent, but to prevent him from sinning again. If he again steals from his parents (and is "Zolel v'Sovei"), he is whipped in court. (The whipping which follows the second theft is presumably administered only if the Ben Sorer u'Moreh is given a proper Hasra'ah at the time of the theft, as with all court punishments.) If he steals again, he is punished with Sekilah. (See also YAD RAMAH at the end of 63a, who gives the same explanation as Rashi.)

The Mishnah is discussing the first Hasra'ah that the Ben Sorer u'Moreh receives, which is unique to a Ben Sorer u'Moreh and is not the normal type of Hasra'ah that is given as a prerequisite for punishment. This answers our first question.

The MAHARAL (in Gur Aryeh to Devarim 21:18) explains why the Mishnah uses this strange terminology. The Mishnah is hinting that in the case of a Ben Sorer u'Moreh, the judges of the court themselves may administer the Hasra'ah. Normally, a judge cannot be the one who administers the Hasra'ah for the sin, because of the rule of "Ein Ed Na'aseh Dayan" -- a witness to the case cannot sit and judge the case he witnessed, and it is the witness who must give the Hasra'ah (Makos 7b). However, in the case of a Ben Sorer u'Moreh, even the judges themselves can administer the Hasra'ah, because, as Rashi explains, this Hasra'ah is not administered by the witnesses who observed the sinful act, but rather it is a court reprimand. The Mishnah hints to this by saying that he is warned "in front of three," meaning that *two* of the *three* judges can be the ones who warn him.

(b) The MINCHAS CHINUCH (248:11) points out that the RAMBAM (Perush ha'Mishnayos, Hilchos Mamrim 7:6) understands our Mishnah differently. He explains that the Hasra'ah of our Mishnah is the normal Hasra'ah that is given to sinners. The first time a Ben Sorer u'Moreh steals *after hearing a proper Hasra'ah* at the time of his theft, he is given lashes. The second time, he is given Sekilah.

Why, then, does the Mishnah need to mention the Hasra'ah of a Ben Sorer u'Moreh? Perhaps it is because we might have thought that a Ben Sorer u'Moreh -- in contrast to every other sinner -- does not need Hasra'ah, since he is not killed due to the gravity of his sin, but rather he is killed in order to prevent him from following the natural progression of events to which his present conduct is expected to lead. For this reason, the Gemara earlier (on 68b) suggests that perhaps even a minor can be punished as a Ben Sorer u'Moreh.

The reason the Mishnah uses a somewhat misleading expression is in order to teach -- in as terse a term as possible -- that both the Halachah of Hasra'ah and the Halachah that lashes can be administered only before three judges applies even in the case of Ben Sorer u'Moreh, despite the fact that he is punished "Al Shem Sofo." (M. Kornfeld)