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Sanhedrin, 43

1) A "GEZEIRAH SHAVAH" THAT IS NOT NEEDED

QUESTION: The Beraisa (42b) derives from a Gezeirah Shavah (from the verse regarding Sereifas Parim) that court executions must take place away from the court at a distance of three Machanos. The Gemara here quotes Rav Papa who concludes that the Halachah can be learned from extra words in the verse, without a Gezeirah Shavah. Why, then, does the Tana quote a Gezeirah Shavah? The Gemara answers that "Ilu Lo Ne'emar, Ka'amar" -- had it not been for the extra word in the verse we would have derived the law from the Gezeirah Shavah, but now that we have the extra word in the verse, the Gezeirah Shavah is not necessary.

We find a similar Gemara in Bava Metzia (61a). The Gemara in Bava Metzia continues and asks that if we have a verse to teach the law, then why do we need a Gezeirah Shavah? The Gemara answers that the Gezeirah Shavah is needed to teach a different law. Our Gemara, though, seems to be saying that once we have the verse, we are rejecting the need for the Gezeirah Shavah entirely; we are asserting that there actually is no Gezeirah Shavah.

This is problematic. How can the Gemara say that there is no Gezeirah Shavah? We find in a number of places (Pesachim 66a, Nidah 19b, and see Rashi to Sanhedrin 16a, DH Davar Davar) that a Tana cannot expound a Gezeirah Shavah unless it has been handed down to him from his teacher through the Mesorah as a Halachah l'Moshe mi'Sinai. Why, then, does the Beraisa say that had it not been for the verse we would have had a Gezeirah Shavah? The Gemara concludes that there is no Gezeirah Shavah, and thus there is no Mesorah to expound these words as a Gezeirah Shavah! How, then, can we say that we would have had a Gezeirah Shavah if not for the verse? The Gemara is saying that we do not have a Mesorah to expound such a Gezeirah Shavah! (MARGOLIYOS HA'YAM)

ANSWERS:

(a) The RAMBAN (in the introduction to Sefer ha'Mitzvos, Shoresh 2) points out that it is clear that a Gezeirah Shavah is not handed down together with all of its various details (such as what Halachah is derived from what other Halachah), because if a Gezeirah Shavah includes all of its details, then it would not be considered one of the "Midos she'ha'Torah Nidreshes ba'Hen." These "Midos" are methods, that were taught to Moshe Rabeinu, for expounding the Torah. If a Gezeirah Shavah is not a method that the Chachamim use but rather it is a tradition teaching all of the details of the Halachah that is derived and how it is derived, then it is not a method for *expounding* the Torah! Rather, it must be that the Mesorah that was passed down is comprised of a general list which the Chachamim were to apply as they saw fit. The Ramban explains that the list includes two possible things. It can include a Mesorah of words which are to be used for a Gezeirah Shavah, without saying how the Gezeirah Shavah with these words is to be applied. Second, it can include a list of Halachos, saying that these Halachos are derived through a Gezeirah Shavah, without teaching which words are used for that Gezeirah Shavah, or without teaching from which Halachos the Gezeirah Shavah is to be learned. This view seems to be accepted by the Rishonim (see Tosfos in Sukah 11b, DH Lekichah, and Tosfos in Shabbos 131b, DH Salka Daitach Amina, according to Maharam and Maharsha; Ramban and Rishonim in Shitah Mekubetzes to Bava Metzia 87b on the words of Rashi DH Asya). Here, too, perhaps the Gezeirah Shavah of "mi'Chutz la'Machaneh" is not used to teach the Halachah of our Mishnah, but it is used in other verses to teach other Halachos (none of the sources available to us teach us where this Gezeirah Shavah is actually used).

(b) The Yerushalmi in Pesachim (6:1) writes that it is permitted to expound a Gezeirah Shavah without having a Mesorah to do so if the purpose is to support a Halachah that one received through the Mesorah (but for which one does not have a source). Hence, if a Tana or Amora has a Mesorah that a certain Halachah is true, then he may expound a Gezeirah Shavah as a source for the Halachah. If he knows that a certain Halachah is true because he has a Mesorah from his teacher or he knows that it is a Halachah l'Moshe mi'Sinai, then he may bring textual support from a Gezeirah Shavah that he creates.

The Gemara here might be saying that we received, through the Mesorah, the Halachah that the execution must be done outside of the city, and therefore we would have created the Gezeirah Shavah in order to establish textual basis for it had we not found that it can be inferred from an extra word in the verse.

(c) There are a number of incidents where we find that what the Chachamim refer to as a Gezeirah Shavah is not really a full Gezeirah Shavah which they received through the Mesorah, but which actually was a Binyan Av. Although the Gemara uses the term "Gezeirah Shavah," it might simply mean that we find a certain Halachah in a similar context and therefore it is logical to apply it in this context as well. (See Rashi to Beitzah 12b, DH Gezeirah Shavah.)

Sometimes, when the meaning of a word in the Torah is not entirely clear to us, we derive its meaning from another place where the word is used and refer to this as a Gezeirah Shavah, when it really is just a "Giluy Milsa" through which we infer the deeper meaning of the word based on its usage elsewhere. The Rishonim discuss this in numerous places (see Ramban and Rishonim in Bava Metzia 87b, Tosfos Erchin 15a, DH Havu, and Kidushin 20b, DH Ge'ulaso, Shabbos 131b, DH Salka Daitach Amina according to the Maharam Shif; see also Margoliyos ha'Yam, Sanhedrin 16:7). This seems to be the intention of the Gemara in Nidah (19b, in its explanation of the view of Rebbi Meir), and this is the intention of the Gemara in Shabbos (96b, in its explanation of the view of Rebbi Akiva, according to the ARUCH, Erech Gezeirah). Our Gemara might be using the term "Gezeirah Shavah" when referring to a Giluy Milsa that the words "mi'Chutz la'Machaneh" means outside of three Machanos, and that is why it was not necessary to receive it as a Mesorah from one's teacher.

(d) The MARGOLIYOS HA'YAM cites the IMREI HA'TZVI who suggests that perhaps the Gezeirah Shavah *is* being used, in practice, in the very context of the Beraisa (i.e. to teach that executions are to be performed outside of the city). When the Gemara says that the Gezeirah Shavah is no longer necessary, it means that it is not necessary to learn that the execution of a *Megadef* (blasphemer) is done outside of the city from a Gezeirah Shavah (for the verse in which this Halachah is taught is written with regard to the Megadef). However, we have no source to teach that the death penalty for other transgressions must be performed outside of the city. Rather, this might be learned from the Gezeirah Shavah of "mi'Chutz la'Machaneh." Although "mi'Chutz la'Machaneh" ostensibly is referring to a Megadef, since we do not need the Gezeirah Shavah for Megadef we will apply the rule of "Im Eino Inyan...," which teaches that if a verse is not needed to teach a Halachah for one thing, then it may be used to teach a Halachah for another thing, and we will apply the Gezeirah Shavah to learn that other forms of executions are to be performed outside of the Beis Din.

QUESTION: The Gemara teaches that if one of the Talmidim in the court finds a way to exonerate the defendant, and then that Talmid dies before the case is over, we view him as though he is still alive and standing in his place.

What does this mean? The Talmid is not a member of the court; he is merely sitting before the court. Why should his death hold up the vote of the members of the court? If the Beraisa means that we continue to take into consideration the Talmid's arguments, then why does the Beraisa need to teach that we view the Talmid as though he is still alive? Why would we reject his arguments just because he died? In addition, what would the Gemara's question be in the case of a Talmid who said that he has a way to exonerate the defendant and then he became mute and lost his speech? If he never presented any arguments, then what are we to do with his declaration?

ANSWERS:

(a) The RAMBAN (32a) and CHIDUSHEI HA'RAN (33b) cite some who explain that the Beraisa means that we must exempt the defendant if the Talmid dies, because we view the Talmid as though he is still alive and arguing, and had he continued to argue perhaps he would have convinced the judges to accept his arguments.

The Ramban rejects this explanation for a number of reasons. First, how could it be that when the Talmid is alive and is presenting his argument, we ignore him since he is not one of the judges, while if he dies he is given *more* authority and we end the case because of his argument? Second, why does the Beraisa say that we view the Talmid as though he is still alive? The Beraisa should have said simply that we exempt the defendant! Third, the Sugya earlier (34a) which quotes this Beraisa about a Talmid who died after presenting his arguments seems impossible to learn according to this approach. The Sugya there appears to be learning that the Talmid's words are taken into account for the G'mar Din and not just for the pre-final arguments.

(b) The RAMBAN explains, therefore, that the Talmid's view is counted when counting the number of judges who find the defendant innocent. That is, when a Talmid presents an argument to exonerate the defendant, as the Mishnah (32a) allows him to do, he not only may present a view but he may also vote on the issue as well. If the Talmid dies, then we accept and count his vote even though he is not there to present it. The Ramban points out that this also seems to be the opinion of Rashi (34a, DH Ro'in Oso) and the Rambam (Hilchos Sanhedrin 10:8).

The question of the Gemara regarding a Talmid who becomes mute appears to be what is the Halachah when the Talmid says only that he has a way to exonerate the defendant but he does not have a chance to present his reasoning. Do we count his vote in such a case?

The Ramban says further that since the Mishnah (32a) says that in cases of Dinei Mamonos a Talmid may present his view *either* to exempt or to obligate the defendant, it would seem that in monetary issues a Talmid may also join the court and vote by presenting his view either to exempt or to obligate. The Gemara (33b) teaches that according to Rebbi Yosi bar'Rebbi Yehudah a witness may also present his view to exonerate the defendant in cases of Dinei Nefashos. Does this mean that the witness can become one of the judges and vote on the issue as well? There is a rule that "Ein Ed Na'aseh Dayan," and the witness should not be able to vote on the issue! The Ramban suggests that perhaps he *may* vote, and the rule of "Ein Ed Na'aseh Dayan" applies only when we do not already have the requisite number of judges to judge the case. However, the Ramban cites the Yerushalmi that rules that a witness may *not* vote (even according to Rebbi Yosi bar'Rebbi Yehudah); this is also the view of the Chidushei ha'Ran. When the Mishnah (32a) says that the defendant himself may present a defense on his own behalf, the Ramban explains that this part of the Mishnah certainly does not mean that he may vote on behalf of himself.

However, the RAMBAM (Hilchos Sanhedrin 19:8) goes further than the Ramban and writes that even the defendant may vote in court to exonerate himself if he presents an argument in his own defense.

According to the Ramban, it seems that outsiders (Talmidim) can override the members of the court and exonerate the defendant by presenting arguments and joining the vote.

The Ran questions the Ramban's logic. How can we accept a Talmid's vote in cases of Dinei Mamonos? After all, the Gemara (23a) -- which teaches that the defendant in a case of Dinei Mamonos has the right to say that he does not want to be judged by that court and he may choose a different court. It must be that with regard to Dinei Mamonos, the Talmid's vote is accepted only when the litigants do not reject him.

(c) The CHIDUSHEI HA'RAN (33a) limits the application of the Ramban's ruling that we allow a Talmid to vote. The Ran explains that we allow the Talmid to vote only when the Beis Din is undecided (for example, when there are twelve judges voting to incriminate the defendant and eleven voting to exonerate him, or when one judge says "I do not know"). Since the court is undecided, we accept the vote of the Talmid rather than having to add more judges to the court. However, if the members of the Beis Din passes a ruling on their own, then we do not allow outsiders to interject and overrule the judges themselves.

(d) RASHI in our Sugya (DH Mahu) explains that the Gemara's question about the Talmid who lost his speech is not whether or not we count his vote, but whether or not we accept his announcement and assume that he has strong arguments that might affect the outcome of the case and, as a result, we must adjourn the court and bring new judges and start the case over again. (It is assumed that one of the new judges will come up with the argument that the Talmid wanted to present, which the first judges did not think of.)

If Rashi understands the Gemara the way the Ramban explains -- that we accept the vote of the Talmid who presents his view, then why does he not explain the Gemara's question accordingly and explain that the question is whether or not we accept the vote of the Talmid who merely claimed that he had an argument to present (but did not have a chance to present it)? In addition, why does the Gemara compare the case of the Talmid who became mute to the case of the Talmid who actually said his argument (and then died), if the Talmid who said his argument is counted in the vote, whereas the Talmid who merely announced that he had an argument has an entirely different Halachah -- he causes the court to adjourn? How can the Gemara compare these two cases and say that the Talmid who made an announcement should be included in the law of the Beraisa which discusses a Talmid who presented his argument? The Ramban (32a) and the Ran (here) ask this question and suggest somewhat forced answers.

Perhaps Rashi learns that the two Sugyos (here and on 34a) have different ways of understanding this Beraisa about the Talmid who died. It is clear that the Gemara earlier (34a) understands that the Talmid's vote is counted in the G'mar Din, as the Ramban and Ran prove from the Sugya there. Perhaps the Sugya there understands that the word "Talmid" does not refer to a Talmid who sits before the court, since the vote of such a Talmid cannot be included in the count (not like the Ramban says). Rather, it is referring to a younger, junior member of the court. If an older, senior member presents his view and dies, then we adjourn the court because we assume that he might have argued so effectively that he would have convinced the others. However, if a younger member dies, then we just count his vote and we do not assume that he would have convinced the others (and thus we do not adjourn the case).

The Gemara here, on the other hand, understands the Beraisa differently. According to the way that the Gemara earlier understands it, there is no basis for the question about what the Halachah would be when the Talmid says that he has an argument to present but he does not have a chance to present it before becoming mute. Since he did not present his argument, it might have been based on an error and he might have withdrawn it had he presented it to the other judges, and therefore we certainly should not take his vote into account. Rather, the Gemara's question must be whether we adjourn the court because of the Talmid's announcement, because there is possibly a new argument that the court was not aware of. The Gemara wants to prove the Halachah from the Beraisa which discusses a Talmid who presented an argument and then died, and rules that we view it as though he is alive. Our Gemara understands that the Beraisa which discusses a Talmid who died is not allowing the Talmid to vote, because it is interpreting the word "Talmid" literally to mean a Talmid who sits before the judges and who is not a member of the court. Consequently, the Beraisa must be saying that we accept the words of the Talmid as basis to adjourn the court, as Rashi implies (in DH Tiba'i Lach). The Ramban brings support for this view from the Yerushalmi (Sanhedrin 6:1).

We mentioned earlier (in (a) above) that the Ramban rejects this understanding of the Beraisa because the Beraisa should have said simply that the defendant is exempt. Rashi, though, answers this question by saying that we do *not* exempt the defendant, but rather we convene a new court to judge the case. The Ramban also asks how can we give more authority to the Talmid after he is dead than he has when he is alive. This also is not problematic, because we find in a number of places that "Ein Meishivin Es ha'Ari l'Achar Misah," that when a person presents an argument and then dies, we cannot assume that we know better because we thought of a refutation to his argument, since he is no longer here to respond to that refutation.

43b

QUESTION: The Jewish people were punished for the sin of Achan, because they had accepted "Arvus" -- responsibility for each other -- upon entering Eretz Yisrael. That is why the Jewish people were not punished when Achan violated the Cherem two (or four) times before they entered Eretz Yisrael. They were punished only for Achan's violation of the Cherem of Yericho which occurred after they entered Eretz Yisrael.

Why was the Jewish nation not punished even before Achan violated the Cherem of Yericho? When the Jewish people entered Eretz Yisrael they became accountable for each other, and thus if Achan was deserving of punishment for his earlier transgressions, then they should also be deserving of punishment for those transgressions! (ARUCH LA'NER)

ANSWERS:

(a) The ARUCH LA'NER explains that the battle against Yericho occurred before the Jewish people accepted Arvus at Har Gerizim. The Gemara (44a) teaches that Har Gerizim and Har Eval are sixty Mil away from the Jordan River, and thus they probably arrived there only after much traveling. Yericho, though, is much closer to the Jordan, and thus the battle against Yericho most likely occurred before they reached Har Gerizim.

However, the Gemara in Sotah (33b and 36a) implies that the events of Har Gerizim and Har Eval occurred immediately after they crossed the Jordan River. Even if they were sixty Mil away, the Gemara says that, through a miracle, they were able to travel from the Jordan to Har Gerizim and back to Yericho near the river in a single day. (TOSFOS (33b, DH Mul) cites an opinion that the Jewish people accepted Arvus only fourteen years after entering the land. However, according to that opinion, the battle against Ai also occurred before they accepted Arvus.)

(b) Therefore, the second approach of the Aruch la'Ner seems more appropriate. The Jewish people were punished only for sins (Nistaros) that were *transgressed* after they accepted Arvus. The logic behind this is that the Arvus, the group responsibility, does not mean that the entire community shares punishment for the sin of an individual, but rather that the entire community shares the *sin* of the individual and are therefore held responsible like the one who sinned. Thus, we are held accountable only for those sins committed *after* Arvus was accepted.