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Sanhedrin, 40

1) ASKING THE WITNESSES ABOUT THE DAY OF THE WEEK

QUESTION: Two of the seven Chakiros with which Beis Din interrogates witnesses are the day of the month and the day of the week on which the event occurred.

Why are both of these questions necessary? Once we know the day of the month on which the event occurred, we can easily determine the day of the week! (RASHI)

ANSWERS:

(a) RASHI explains that we ask them for the day of the week simply in order to make it easier for other witnesses (Mazimim) to remember if they were together with the witnesses on that day. Sometimes Mazimim will not remember the day of the month that they were together with the witnesses, but they will remember the day of the week.

(b) TOSFOS in Pesachim (12a, DH b'Eizeh Yom) answers that the questions of the Chakiros are required because of a Gezeiras ha'Kasuv. Even though we already know on what day of the week the event occurred when the witnesses tell us the day of the month, the Torah still requires that Beis Din ask these seven questions so that if the witnesses contradict each other in any one of their answers, their testimony will be invalidated. Tosfos points out that it would be especially unusual for their testimony to be invalidated because of a discrepancy in the day of the week, since when the witnesses agree about the day of the month and then disagree about the day of the week, one of them must be trying to change the day his testimony about the day the event occurred, and we have a rule that "Keivan she'Higid Shuv Eino Chozer u'Magid" which teaches that we normally ignore entirely the second testimony. Nevertheless, with regard to the Chakiros, the Torah says that a new statement of the witness *can* invalidate the testimony.

(c) TOSFOS in Pesachim (11b, DH Zeh) suggests that we ask the witnesses on what day of the week the event occurred only when the witnesses disagree with each other with regard to the day of the month on which the event occurred. The Mishnah tells us that in such a case we assume that one of the witnesses did not know that the previous month had an extra (thirtieth) day. Tosfos explains that we make this assumption only after asking the witnesses on what day of the week the event took place and we find that they agree about the day of the week. This provides circumstantial evidence that one of the witnesses did not know the correct day of the month. According to this answer, it could be that when the witnesses agree about the day of the month, perhaps we do not ask them about the day of the week (and there are only six Chakiros).

(d) The MAHARSHAL explains that even when both witnesses agree about the day of the month, it is still necessary to ask them on what day of the week the event occurred. If we do not ask them, it will be considered Edus she'Iy Atah Yachol l'Hazimah, testimony of witnesses who cannot be made into Edim Zomemim. The reason it will be impossible to make them Edim Zomemim based on their testimony about the day of the month is because when a second set of witnesses say "you were with us on that day," the first witnesses will say that "we were referring to the previous day, and we did not realize that the previous month was a full month of thirty days." Therefore, it is necessary to ask the witnesses on what day of the week they saw the event. This is also the way the RABEINU YONAH answers the question.

Why do Rashi and Tosfos not give this answer? Just as a single witness might be mistaken about the day on which the event occurred (as Tosfos writes), *both* witnesses might be mistaken! See MAHARSHA who suggests a number of reasons, and see SANHEDRI KETANAH who rejects the arguments of the Maharsha.

RABEINU YONAH suggests a weakness in this explanation. We can learn from the first part of the Mishnah that it is possible that witnesses are not aware of the extra day of the previous month. Why, then, is it necessary to teach the same thing in the second part of the Mishnah (that if one witness says that the event occurred on the second day of the month, and the other witness says that it occurred on the third day of the month, we accept the testimony because we assume that one of the witnesses does not know that the previous month had thirty days)? We already know from the Reisha of the Mishnah that witnesses can make such a mistake!

Perhaps we can suggest another reason why Rashi and Tosfos do not accept this answer. If this is the only reason why we ask the witnesses about the day of the week on which the event occurred, then it would be simpler to inform the witnesses, before they give their testimony, that the previous had (or did not have) an extra day! It must be that there is a different reason to ask for the day of the week (i.e. the reasons given by Rashi and Tosfos). (M. Kornfeld)

40b

QUESTIONS: The Gemara suggests that even if Derishah v'Chakirah of witnesses is necessary in order to punish Edim Zomemim and in order to punish the people of an Ir ha'Nidachas, perhaps witnesses who testify that someone served Avodah Zarah do *not* need to be interrogated with Derishah v'Chakirah. Perhaps Derishah v'Chakirah are not necessary because the Aveirah of Avodah Zarah is more severe, since it is punishable with Sekilah, while the other two are punishable only with Sayif.

RASHI asks why does the Gemara say that Edim Zomemim is punished with Sayif? The punishment for Edim Zomemim is whatever punishment they intended to inflict on their victim! If the Edim Zomemim testified that someone desecrated Shabbos and they are found to be Edim Zomemim, then they are punished with *Sekilah*. Why, then, is the punishment and sin of Edim Zomemim considered less severe than that of Avodah Zarah?

Rashi gives two answers. First, Rashi suggests that the verse in the Torah that teaches the law of Edim Zomemim is discussing Edim Zomemim who testified that a person murdered, and thus they are to be punished with Sayif. Consequently, we cannot learn from the verse that Derishah v'Chakirah is not required in a case in which the Edim Zomemim must be punished with Sekilah.

Second, Rashi suggests that even if the verse is discussing *all* types of Edim Zomemim, nevertheless since some Edim Zomemim are punished with Sayif, the Torah would not be so stringent as to require Derishah v'Chakirah.

Both of Rashi's answers require further elucidation.

(a) The first answer is problematic because the verse in the Torah mentions nothing about the accusation of the Edim Zomemim. How do the words "Nefesh b'Nefesh" (Devarim 19:21) imply that the Edim Zomemim are being punished for trying to kill an accused murderer and not for trying to kill someone who desecrated Shabbos? (TORAS CHAIM)

(b) The second answer is unclear. Why should the Torah consider the punishment of Edim Zomemim to be more lenient in a case when they try to kill someone who a punishment of Sekilah, just because there are other Edim Zomemim who try to kill people with Sayif? In addition, Rashi should have said that there are some Edim Zomemim who are not Chayav Misah altogether, but rather they are Chayav Malkus! According to the reasoning that Rashi is following, the Torah should be lenient with all Edim Zomemim because of that reason!

ANSWERS:

(a) The TORAS CHAIM explains that Rashi makes a point of quoting not only the words "Nefesh b'Nefesh" in the verse but also the words "Ayin b'Ayin." It is clear that Rashi infers that the verse is discussing witnesses who testify about a murderer from the words "Ayin b'Ayin" at the end of the verse. As the Gemara explains that "Ayin b'Ayin" does not mean that we take out the eye of the witness for attempting to take out the eye of the defendant, but rather it means that we make the witnesses pay if they accused someone of blinding someone in an attempt to obligate him to pay money to someone he is accused of having blinded. It is clear that the end of the verse is referring to Edim Zomemim who accused someone of physical violence. Accordingly, "Nefesh b'Nefesh" should also be referring to an accusation of physical violence, an assault that causes the accused to be punished with the death penalty.

This point may be made more substantial if we view the punishment of a murderer not merely as a Kaparah, an atonement, like every other Misas Beis Din, but as a type of payment to the victim. The Gemara in Bava Kama (83b) explains that "Ayin Tachas Ayin" (Shemos 21:24) must refer to monetary compensation since the verse says, "v'Lo Sikchu Kofer l'Nefesh Rotze'ach" -- "Do not take monetary compensation from a murderer" (Bamidbar 35:31), implying that if someone did not kill but only wounded someone, then we *should* take monetary compensation. The verse, then, is teaching that the proper punishment for someone who blinds is to blind him in return, as a way of compensating the person he blinded. Just as a person would have had to pay for blinding someone by having his own eye removed had the Torah not decreed that only monetary compensation is to be given, so, too, a person must pay for killing someone by having his own life taken away (see Insights to Bava Kama 22:3). Accordingly, when the verse says "Nefesh b'Nefesh" it means that the witnesses must *pay* with their lives for trying to make someone else pay with his life, just like "Ayin b'Ayin" means that they must pay for trying to cause the defendant to have to pay for blinding someone.

(b) The second explanation of Rashi may be understood by analyzing the following question. What is the nature of the punishment given to Edim Zomemim? Is the punishment of Edim Zomemim a varying punishment which is determined by seeing what punishment the witnesses tried to bring about, and then we give that punishment to them? Alternatively, is the intention of the Torah to teach that there is only *one* punishment for Edim Zomemim, and the name of that punishment is not Sekilah or Sayif, but "Ka'asher Zamam" -- the punishment that we give them is whatever punishment they tried to inflict. It is true that in practice both explanations will produce the same punishment, but according to the second explanation every punishment given to Edim Zomemim is an expression of a single punishment, that of "Ka'asher Zamam."

The second explanation of Rashi accepts the second possibility, that the nature of the punishment of Edim Zomemim is a new category of punishment called "Ka'asher Zamam." Since the punishment of "Ka'asher Zamam" is a punishment which is not as serious as Sekilah because it is sometimes expressed as Sayif (or other less severe forms), it follows that even when the witnesses are Chayav Sekilah it is considered a less severe punishment, for it is a punishment of "Ka'asher Zamam" and not a punishment of "Sekilah" per se.

Regarding our second question -- why does Rashi and the Gemara not mention that Edim Zomemim are sometimes not even Chayav Sayif -- the answer might be that Rashi's second explanation understands that Edim Zomemim are not punished with Malkus because of "Ka'asher Zamam" -- the punishment of Malkus is *not* a manifestation of "Ka'asher Zamam." Rather, they are punished with Malkus because they transgressed the Isur of "Lo Sa'aneh b'Re'acha Ed Shaker" (Devarim 5:17) (P'NEI YEHOSHUA to Makos 5b). Accordingly, the punishment of Malkus is not connected to "Ka'asher Zamam" and does not prove that "Ka'asher Zamam" is a weaker form of punishment than Sekilah.

QUESTION: The Beraisa teaches that we ask witnesses who testify that a person is Chayav Misah whether they gave Hasra'ah to the sinner, and whether the sinner accepted the Hasra'ah by saying, "I realize this act is prohibited," and whether the sinner was "Matir Atzmo l'Misah" by saying, "I want Beis Din to kill me."

The Torah (Devarim 22:23-27) teaches that if a man has relations with a Ne'arah ha'Me'urasah and there are no witnesses who say that she protested and was forced to do the act (and she claims that she was forced), her verdict depends upon where the sin took place. If it took place in the city, then we assume that she must have sinned willingly, since had she been forced she would have screamed and people nearby would have heard her and come to save her. If the sin took place in an open field outside of the city, then we believe the woman when she says that she was forced. The fact that there are no witnesses that she screamed and protested does not contradict her claim, since she either may have screamed and no one heard, or she may have not screamed because she did not expect anyone to hear her and come to her rescue, since people do not frequent open fields.

It is clear from the verse that the only difference between a city and a field is whether or not there are people present to hear her scream. In all other ways, the cases are identical. If we kill the woman who sinned while in the city, then obviously she must have received Hasra'ah and been "Matir Atzmah l'Misah." It must be assumed, therefore, that the woman in the field also received Hasra'ah and was "Matir Atzmah l'Misah." Why, then, should we exempt the woman who sinned in the field? She obviously had full intention to sin since she has "Matir Atzmah l'Misah!" In addition, the woman should have screamed when she saw that there were people there giving her Hasra'ah who could come to her rescue!

ANSWER: The CHIZKUNI, SEFORNO, and KESAV V'KABALAH answer based on the Gemara in Kesuvos (51b). The Gemara there teaches that when a woman was forced by a man to sin with him but, in the middle of the sin, she continued willfully, even if she says "do not take him away," she is exempt from punishment because we assume that "Yitzrah Albeshah" -- she was overcome by her Yetzer ha'Ra as a result of her physiological responses. According to this, the Torah might be referring to a case in which when witnesses saw the woman only in the middle of the act, and not at its start. They gave her Hasra'ah, and she was "Matir Atzmah l'Misah." In the city, we assume that the beginning of the act was also done with full intent, since no one heard the woman scream. However, in the fields we accept the woman's claim that she originally was forced into doing the act, and we therefore exempt her from Misah.

This answer needs further elucidation. How can the Hasra'ah -- which was given in the middle of the act done in the city -- be valid to obligate the woman with a Chiyuv Misah for what the woman did at the beginning of the act, when there was no Hasra'ah at the beginning of the act? We cannot punish her with Misah for what she is doing now, because she would not be deterred by the Hasra'ah even if she was originally forced into the act, because of "Yitzrah Albeshah!" Why, then, should the Hasra'ah retroactively apply to the beginning of the sin, which was done willfully?

The answer might be that although the act that she is doing at the time of the Hasra'ah is not incriminating in itself, nevertheless if the woman started the act willingly, then what she is doing now is considered to be part of that same act of willful sinfulness. It suffices to give Hasra'ah at some point during the sinful act even if it is given at a point which cannot, in itself, obligate her to die. This might be compared to a Hasra'ah which is given to a sinner who is carrying on Shabbos *after* he has done an act of Akirah and *before* he has done an act of Hanachah. Perhaps if he performs a Hanachah after the Hasra'ah, the Hasra'ah will obligate him with Misah even for the Akirah that was done before the Hasra'ah (see PANIM YAFOS to Bamidbar 15).