The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
The Mishnah (27b) teaches that people who are closely related – by blood or by marriage – will be disqualified from testifying about one another. Thus a person cannot testify for or against his brother or his sister’s husband, similarly he cannot be a witness regarding a case involving his uncle, whether it is his mother’s brother or his father’s brother, or, for that matter his mother’s sister’s husband or his father’s sister’s husband.
Why are relatives limited in this way?
The Gemara quotes Devarim 24:16 as a pasuk that can be interpreted to serve as the source for this law. It appears clear, however, that this is considered a gezeirat ha-katuv – a biblical rule that is not related to a suspicion that the relative may lie on behalf of his brother or his uncle. Even Moshe and Aharon, who we would not suspect of lying, cannot testify about each other.
The Gemara on today’s daf asks about the status of an engaged couple (ishto arusa – “a man’s wife to whom he is engaged” – is already a situation of partial marriage, and is a much closer relationship than what an engagement is today). Rabbah bar bar Hannah believes that a man can testify about ishto arusa. Ravina differentiates between testifying on her behalf or to her detriment. The Gemara concludes that he cannot testify about her at all, explaining that their relationship is one of ikoravei da’ata – that their engagement leads to a close emotional relationship, which precludes such testimony.
This explanation appears to suggest that the disqualification from testimony stems from their emotional closeness rather than from the relationship itself. Some suggest that the case of ishto arusa is unique in that the emotional closeness attests to the relationship between the engaged couple, but does not extend to other relatives by marriage (e.g. he could testify about his brother-in-law in such a case).
As we have learned, the Mishnah (27b) offers a list of relatives who cannot testify about one another. The Mishnah concludes with the teaching of Rabbi Yehuda that someone who has a very close friend or an enemy cannot testify about that person. The Sages of the Mishnah reject Rabbi Yehuda’s teaching, arguing that we do not suspect that members of the Jewish community will lie about someone simply because they like or dislike him.
The example that Rabbi Yehuda offered for someone who is a very close friend, or, in the language of the Mishnah, who loves him, is shushbino – his “best man.” Shushbinin referred to in this case are the closest friend that a man has. In Talmudic times the custom was that when a man was to get married, his closest friend would accompany him throughout the days of the celebration. He also bought generous gifts for him and arranged a celebratory meal. This relationship obligated the groom – both morally and legally – to return the favor of shushbinut when his friend or his friend’s son invited him to their wedding. In modern Hebrew the word shushbinin still refers to the close friends of the groom who attend his wedding, but the relationship is not the same as what the Talmud is describing.
The example that Rabbi Yehuda offers for someone who is an enemy is a person who has not talked to his friend for three days out of hatred. The source for this ruling that appears in the baraita is based on the pasuk in Sefer Bamidbar (35:23) that states that someone who kills another person by accident will be sent to an ir miklat – a City of Refuge – rather than be punished, since we know that he was not his enemy and did not wish that anything bad would happen to him. Rabbi Yehuda concludes from here that someone who hates – or loves – another cannot be expected to offer an objective statement about him.
When the judges conclude their ruling, how much information should they give the litigants about how their decision was reached?
According to the Mishnah (29a) the judges are not supposed to share much information. The Mishnah states clearly that a judge should not tell one of the litigants “I was on your side but I could do nothing because the other two judges were against you” invoking the passage in Sefer Vayikra (19:16) that teaches that one should not be a talebearer, and in Sefer Mishlei (11:13) that talebearers share secrets, but a loyal person keeps them.
Given the clear ruling of the Mishnah, the Gemara presents an odd disagreement. In response to the question “How is the court decision recorded?” we find three opinions:
- Rabbi Yochanan says we write that the court found the defendant innocent.
- Reish Lakish says that we enumerate the names of the judges who found the defendant innocent and those who found him guilty.
- Rabbi Eliezer says that we say that from the conclusion of their discussion the defendant was found to be innocent, language that implies that there was a disagreement in the court.
The position presented by Reish Lakish appears to contradict the clear language of the Mishnah, for if we record the different opinions, what is wrong with the judge sharing them, as well. This question is raised by the Talmud Yerushalmi, and several different answers are offered.
The Meiri suggests that court decisions were not usually recorded; they were only set to writing if one of the litigants wanted to appeal the ruling. Therefore it would have been unusual for the litigants to find out what positions the judges had taken.
The Ran suggests that the prohibition in the Mishnah was limited to situations where the judge might chase after the party that lost the case in an attempt to flatter him, but there is nothing intrinsically wrong with the litigants learning which way each judge ruled.
When two litigants want to approach the court, who gets to decide the venue where the case will be considered?
The Gemara on today’s daf deals with a situation where one litigant says “I would like the case to be heard here” and the other one wants the case to be taken to the makom ha-va’ad – the place of the committee. Two students came from Israel with different traditions said in the name of Rabbi Yochanan:
- Rav Dimi quoted Rabbi Yochanan as ruling that they must go to the makom ha-va’ad.
- Rav Safra quoted Rabbi Yochanan as saying that they should remain in their city and any difficulty could be sent to the makom ha-va’ad.
Although Ameimar concludes by accepting Rav Safra’s ruling, he points out that there is one exception. In cases where the disagreement is between a borrower and a lender, the lender has the upper hand based on the passage in Sefer Mishlei (22:7) – eved loveh le-ish malveh – that the borrower is subservient to the lender.
The concept of a makom ha-va’ad is explained by the Me’iri as referring to any place where there are judges sitting in courts that were established by the community, and did not establish themselves as judges on their own. Such courts had more power to enforce their rulings.
The Gemara concludes with a vignette that illustrates the ruling. Mar Ukva – the head of the Jewish community in Bavel – received a letter from the court in Tiberias stating that someone named Ukvan HaBavli complained to them that his brother, Yirmiyah, had taken some of the land to build a path for himself. Their suggestion was understood to mean that he be tried in Bavel and come before them in Tiberias. The Gemara explains this to mean that if he does not accept the local ruling, he should be brought before the court in Tiberias.
Rav Ashi argues that the case here is a different one, since the question was one of kenas – of penalizing Yirmiyah – and questions of kenas are not judged in Bavel. Rav Ashi concludes that the letter was written to Mar Ukva to honor him, but not because he would have had the power to judge the case locally.
The fourth perek of Masechet Sanhedrin begins on today’s daf. Entitled Ehad dinei mamonot…, the first Mishnah continues …ve-ehad dinei nefashot b’derishah u-vahakirah – teaching that according to halakhah, judgment of both monetary claims and capital crimes require that the witnesses be questioned and cross-examined.
Thus the fourth perek moves beyond the teachings of the third perek that focused on general laws regarding the Jewish court system. This perek begins the examination of the laws regarding capital crimes, which is the main topic of Masechet Sanhedrin.
There are some basic differences between the way monetary laws and capital cases are treated in court. When dealing with capital cases, we are facing questions about the most valuable commodity of all – human life – which makes clear why so much care must be taken when making a judgment in such a case. The Torah, in fact, requires that the judges themselves must attempt to discover and explore every possible factor that would favor the accused (see Bamidbar 35:24-25). Moreover, when dealing with monetary matters, if a mistake is made the ruling can be overturned and the money returned to its rightful owner, while in the case of a capital crime, a death sentence cannot be undone.
Another important difference that we find between these two types of cases is the fact that the judge cannot be “strict” or “lenient” when dealing with a monetary case, for any concession to one party will come at the expense of the other party. This obligates the court to remain totally neutral in such cases, even if one party is poor or downtrodden and we would ordinarily seek to favor him.
Because of these differences, the Mishnah in our perek enumerates ten differences in the way cases are handled by the court in dinei nefashot as opposed to dinei mamonot. These are aside from the basic rule taught in the first perek that monetary matters are presented before a simple court of three judges, while capital cases require a Sanhedrin of twenty-three.
One of the differences between dinei mamonot (monetary cases) and dinei nefashot (capital cases) that is taught in the Mishnah (32a) is whether we will reopen a case when someone suggests that new evidence is available. In dinei mamonot we will always be willing to reopen a case; in dinei nefashot we will only do so if the original decision found that the defendant was guilty. If he had been found innocent we will not reconsider the case, even if new evidence is forthcoming.
The Gemara on today’s daf suggests that the source for both of these laws is based on a passage in Sefer Shemot (23:7) that says v’naki v’tzadik al taharog – “do not kill an innocent or a righteous person.” Thus, the reason we will reopen a capital case if the defendant had been found guilty is because of the command of the Torah – do not kill an innocent person. This obligates the court to do all that is in its power to ascertain whether someone is innocent. The reason we will not reopen a case where the defendant has been found not guilty is because the Torah also commands not to kill a righteous person, which is understood to mean that someone declared righteous cannot be killed.
Rabbi Chiya bar Aba quotes Rabbi Yochanan as limiting the law that we will not recall a decision of “not guilty” to cases where there was a true error in judgment. If the law was obvious, however (i.e. it was clearly written in the Torah) then we cannot accept such a ruling, and the case would be retried, since the ruling had no basis in halacha whatsoever.
The expression used by the Gemara to describe a law that is clearly written in the Torah is davar she-ha-Tzedukim modim bo – something that even the Sadducees agree to. The Sadducees were known to reject many of the rabbinic interpretations and oral traditions, accepting only laws that appeared in the written Torah.
Another one of the differences between dinei mamonot (monetary cases) and dinei nefashot (capital cases) that is taught in the Mishnah (32a) is that in dinei mamonot anyone can step forward to offer evidence on behalf of either party, but in dinei nefashot we will allow anyone to speak on behalf of the accused, but not against him.
The Gemara suggests that this follows the opinion of Rabbi Yossi bar Yehuda who learns from the passage in Sefer Bamidbar (35:30) that a single witness cannot testify that a person should die, but he can testify to allow him to live. The Sages, on the other hand, believe that we will not accept any statement from the witnesses beyond their testimony, even if they want to speak on behalf of the accused. Resh Lakish explains that the Sages will not let the witnesses speak on behalf of the accused, because it appears to be something of a conflict of interest to be testifying and at the same time speaking against their testimony.
The Meiri explains that it is possible that we are concerned that the witnesses are worried that the family of the accused might threaten them, which is why they are recanting. Other explanations include the possibility that the witnesses are worried that someone may come and accuse them of being false witnesses.
The Sages understand that the passage in Sefer Bamidbar refers to a student who is listening to the case being argued and wants his opinion to be considered in the decision, as well. According to this approach, the student would be listed too only if his suggestion would help the accused, but not if it would damage his case. The Ran points out that we listen to any argument that is put forward in the courtroom – even if it comes from the defendant or the plaintiff, and certainly if it comes from an objective observer. The Gemara’s intent must be to limit the student’s participation regarding the possibility of including him as a member of the court, which we will only do if he is arguing on behalf of the accused and not if he is against him.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.