We learn D'rishah and Chakirah by Dinei Nefashos from the Pasuk in Re'ei "ve'Darashta ve'Chakarta". What does our Mishnah learn from the Pasuk in Emor "Mishpat Echad Yihyeh lachem"?
Of the ten differences between Dinei Mamonos and Dinei Nefashos, we have already learned that the former require three judges, the latter, twenty-three, and that the former require a majority of only one, whereas the latter require a majority of at least two, in order to sentence a man to death. From where do we learn ...
... this latter ruling?
... that it does not extend to Dinei Mamonos, where a majority of one will suffice?
What distinguishes Dinei Mamonos and Dinei Nefashos regarding the way Beis-Din opens the proceedings?
What is the meaning of Dinei Nefashos Machzirin li'Zechus ve'Lo le'Chovah'?
Who is permitted to learn Chovah by Dinei Mamonos but not be Dinei Nefashos?
We learn D'rishah and Chakirah by Dinei Nefashos from the Pasuk in Re'ei "ve'Darashta ve'Chakarta". Our Mishnah learns from the Pasuk "Mishpat Echad Yihyeh lachem" that - Dinei Mamonos too, require D'rishah and Chakirah.
Of the ten differences between Dinei Mamonos and Dinei Nefashos, we have already learned that the former require three judges, the latter, twenty-three, and that the former require a majority of only one, whereas the latter require two in order to sentence a man to death. We learn ...
... this latter ruling - from the Pasuk in Mishpatim "Lo Sihyeh Acharei Rabim le'Ra'os" (as we explained in the first Perek).
... that it does not extend to Dinei Mamonos where a majority of one will suffice - from the Pasuk there "Lo Sateh Mishpat Evyoncha", 'Aval Atah Mateh Mishpat Shor ha'Niskal' ('Kal va'Chomer' other Dinei Mamonos [See also Aruch la'Ner]).
By Dinei Mamonos - Beis-Din open the proceedings either li'Zechus or le'Chovah, but Dinei Nefashos - li'Zechus.
'Dinei Nefashos Machzirin li'Zechus ve'Lo le'Chovah' means that - they may only change the verdict by Dinei Nefashos if it is to pronounce the defendant innocent, but not to pronounce him guilty.
The Talmidim who sat in front of the Sanhedrin are permitted to learn Chovah by Dinei Mamonos but not be Dinei Nefashos.
By Dinei Mamonos, the Tana rules ...
... 'ha'Melamed Chovah, Melamed Z'chus'. What does he say about Dinei Nefashos?
... 'Danin ba'Yom ve'Gomrin ba'Laylah'. What does he say by Dinei Nefashos?
... 'Gomrin bo ba'Yom bein bi'Zechus bein le'Chovah'. What does he say by Dinei Nefashos?
On what days may one therefore not judge Dinei Nefashos?
If by Dinei Mamonos, the Tana rules 'ha'Teme'os ve'ha'Taharos Maschilin min ha'Gadol', what does he say about 'Dinei Nefashos'?
What does 'Maschilin min ha'Tzad' mean?
Why are Dinei Nefashos different in this regard?
By Dinei Mamonos, the Tana rules ...
... ha'Melamed Chovah, Melamdin Z'chus, ve'ha'Melamed Z'chus Melamed Chovah'; by Dinei Nefashoe - 'ha'Melamed Z'chus, Eino Melamed Chovah'.
... 'Danin ba'Yom ve'Gomrin ba'Laylah; by Dinei Nefashos - Danin ba'Yom ve'Gomrin ba'Yom.
... 'Gomrin bo ba'Yom bein bi'Zechus bein le'Chovah'; by Dinei Nefashos - 'Gomrin bo ba'Yom li'Zechus, u'va'Yom she'le'Acharav le'Chovah'.
Consequently, one may not judge Dinei Nefashos - on Friday or on Erev Yom-Tov.
By Dinei Mamonos, the Tana rules 'ha'Teme'os ve'ha'Taharos Maschilin min ha'Gadol', by Dinei Nefashos he says - 'Maschilin min ha'Tzad' ...
... meaning from the side o the semi-circle that comprised the Sanhedrin (where is where the 'smallest' of the judges sat).
Dinei Nefashos are different in this regard - because, due to the Pasuk "ve'Lo Sa'aneh al Riv" (without a 'Yud', which can therefore be read as 'Rav'), a Dayan may be afraid to argue with the senior Dayan once the latter has presented his opinion (see Tosfos 36a DH 'Dinei Nefashos').
Anyone is eligible to judge Dinei Mamonos. Who is not eligible to judge Dinei Nefashos?
On what grounds does the Beraisa validate both the Sh'tar and the witnesses in a case where a Sh'tar is dated on the first of Nisan of the Shemitah-year, and witnesses claim that the signatories on the Sh'tar were with them elsewhere on that day?
How do reconcile this with what we learned in Bava Basra, that the witnesses should write in the Sh'tar the location where the Sh'tar is written, and not where the loan takes place?
What problem does the current Beraisa pose on our Mishnah "Echad Dinei Mamonos bi'Derishah va'Chakirah"?
Anyone is eligible to judge Dinei Mamonos - but only Kohanim, Levi'im and Yisre'elim whose daughters are eligible to marry Kohanim may judge Dinei Nefashos.
The Beraisa validates both the Sh'tar and the witnesses in a case where a Sh'tar is dated on the first of Nisan of the Shemitah-year, and witnesses claim that the signatories on the Sh'tar were with them elsewhere on that day - because we assume that the Sh'tar was written and dated some time after the loan actually took place, and that it was written in the location where they had seen the transaction taking place (rather than where the Sh'tar was written).
Even though we learned in Bava Basra that the witnesses should write in the Sh'tar the location where the Sh'tar was written, and not where the loan takes place - that is only Lechatchilah, but not B'Di'eved.
The problem the current Beraisa poses on our Mishnah "Echad Dinei Mamonos bi'Derishah va'Chakirah" is that - if cross-examination is mandatory (leaving open the possibility of turning the witnesses into Eidim Zomemin), assuming that a Sh'tar was written later and in a different place negates the whole object of the cross-examination?
We could really ask the same Kashya from the Mishnah in Shevi'is. What does the Tana there say about ...
... 'Sh'tarei-Chov ha'Mukdamin'?
... 'Sh'tarei-Chov ha'Me'ucharin'?
Seeing as Dinei Mamonos require D'rishah and Chakirah, what ought the Din to be there?
How about the witnesses who saw the loan taking place?
Why do we then prefer to ask from the Beraisa than from the Mishnah?
So why do we then not say that (and invalidate the Sh'tar)?
We could really ask the same Kashya from the Mishnah in Shevi'is, where the Tana writes ...
... 'Sh'tarei-Chov ha'Mukdamin - Pesulim', but ...
... 'Sh'tarei-Chov ha'Me'ucharin - Kesherim'.
Seeing as Dinei Mamonos require D'rishah and Chakirah, the Din ought to be - that a Sh'tar Me'uchar is Pasul, too.
Even though other witnesses may have seen the loan taking place - that would render the loan a Milveh al Peh, which would not allow the creditor to claim from the Lekuchos.
Nevertheless, we prefer to ask from the Beraisa than from the Mishnah - because it specifically speaks about Sh'mitah, and since (based on the fact that all debts will be canceled at year's end) the closer one gets to the end of Sh'mitah, the less likelihood there is of people lending money, we would not assume the Sh'tar to be post-dated, since it would make the creditor look like a liar.
The reason that we do not say that is - because Shevi'is only cancels the debt at the end of the year, and there is no reason to assume that people will stop issuing loans before then. Consequently, the creditor will not hesitate to post-date the loan.
How does Rebbi Chanina reconcile our Mishnah with the Beraisa? If the former requires D'rishah va'Chakirah, why does the latter validate a Sh'tar Me'uchar?
Why did the Rabbanan cancel D'rishah and Chakirah by Dinei Mamonos?
Then why do we obligate a Beis-Din who erred in Dinei Mamonos to pay? Why can they not argue that if they had been permitted to cross-examine the witnesses, they would not have erred?
Rebbi Chanina reconciles our Mishnah (which requires D'rishah va'Chakirah) with the Beraisa (which validates a Sh'tar Me'uchar) - by establishing the latter after the Rabbanan canceled D'rishah and Chakirah ...
... because of 'Ne'ilas Deles' (the fear that, if it is too difficult to retrieve their money, potential creditors will stop lending money).
We nevertheless obligate a Beis-Dim who erred in Dinei Mamonos to pay the creditor (despite their claim that if they had been permitted to cross-examine the witnesses, they would not have erred) - because that too, is incorporated in the Takanah of Ne'ilas Deles, since people will not lend money, if they know that they may not get it back, even if it is due to an error on the part of Beis-Din).
Rava and Rav Papa both establish our Mishnah after the Rabbanan canceled D'rishah and Chakirah. How does ...
... Rava nevertheless establish our Mishnah in a way that eliminates Ne'ilas Deles?
... Rav Papa establish our Mishnah even by admissions and loans and still require D'rishah and Chakirah? What is a Din Merumah?
What is the difference between the Pasuk in Kedoshim "be'Tzedek Tishpot Amisecha" and the Pasuk in Shoftim "Tzedek Tzedek Tirdof"?
How does Resh Lakish resolve the apparent discrepancy?
Even though Rava and Rav Papa both establish our Mishnah after the Rabbanan canceled D'rishah and Chakirah, nevertheless ...
... Rava establishes our Mishnah by K'nasos, which are not subject to Ne'ilas Deles.
... Rav Papa establishes our Mishnah even by admissions and loans and still requires D'rishah and Chakirah - because it is speaking about a Din Merumah (where Beis-Din recognize either that the claimant is a swindler or that his presentation was devious).
The difference between the Pasuk in Kedoshim "be'Tzedek Tishpot Amisecha" and the Pasuk in Shoftim "Tzedek Tzedek Tirdof" is that - the latter demands a more stringent approach than the former.
To resolve the apparent discrepancy, Resh Lakish establishes the former - by a regular case, and the latter - by a Din Merumeh.
Rav Ashi agrees with the various interpretations of the Mishnah and the Beraisa, but not with the way Resh Lakish resolves the Pesukim. How does he explain ...
... "be'Tzedek Tishpot Amisecha"?
... "Tzedek Tzedek Tirdof"?
What does this have to do with two ships that meet head on in a narrow river, or two camels that are climbing up the steps of Beis Choron from two opposite sides and meet at the top head-on, and there is no room for both to pass?
The above speaks if both are equally laden and the one is as close to home as the other. What will they do if one of the ships or camels is laden and the other is not, or if one is close to home and the other is not?
Based on the same Pasuk ("Tzedek Tzedek Tirdof"), what does the Beraisa extrapolate with regard to Rebbi Eliezer in Lud and Rabban Yochanan ben Zakai in B'ror Chayil? What did they have in common?
Rav Ashi agrees with the various interpretations of the Mishnah and the Beraisa, but not with the way that Resh Lakish resolves the Pesukim. According to him ...
... "be'Tzedek Tishpot Amisecha" - refers to Din.
... "Tzedek Tzedek Tirdof" - refers to P'sharah (compromise).
And to demonstrate the latter, he gives a parable of two ships that meet head on in a narrow river, or two camels that are climbing up the steps of Beis Choron from two opposite sides and meet at the top, head-on and there is no room for both to pass. Knowing at the outset that both parties cannot get the best deal, they arrange a compromise (P'sharah), agreeing that one of them retreats, letting the other pass, for which he pays the former a sum to supplement his loss.
The above speaks if both are equally laden and the one is as close to home as the other. If however, one of the ships or camels is laden and the other is not or if one is close to home and the other is not - then that is the one that is given first right of passage (Din).
Based on the same Pasuk ("Tzedek Tzedek Tirdof") another Beraisa extrapolates that - a litigant should always go for the best Beis-Din available, such as that of Rebbi Eliezer in Lud or Rabban Yochanan ben Zakai in B'ror Chayil.
What is the significance of ...
... the noise of a mill grinding spices in Burni?
... a lamp burning in B'ror Chayil?
Why were these signs necessary?
The significance of a ...
... the noise of a mill grinding spices in Burni was that - they were preparing spices to heal a baby after his B'ris, and served as a sign that a B'ris would take place there on that day.
... a lamp burning in B'ror Chayil - was a sign that a wedding was taking place (see also Tosfos DH 'Or ha'Ner').
These signs were necessary - because the Romans forbade B'risim and marriages (see also Maharam), so it was not possible to announce them in the conventional manner.
Rebbi Yehoshua was the Rav of Peki'in. Where did Rabban Gamliel, Rebbi Akiva and Rebbi Yossi respectively, serve?
Besides Rebbi Masya in Rome, Rebbi Chananya ben T'radyon in Sichni and Rebbi Chanina ben Achi Rebbi Yehoshua in Golah, the Tana also lists Rebbi. Of which town was he Rav?
What does the Tana mean by ...
... 'Golah'?
... 'Chachamim le'Lishkas ha'Gazis'? Who were they?
Rebbi Yehoshua was the Rav of Peki'in - Rabban Gamliel in Yavneh, Rebbi Akiva in B'nei Brak and Rebbi Yossi in Tzipori.
Besides Rebbi Masya in Rome, Rebbi Chananya ben T'radyon in Sichni and Rebbi Chanina ben Achi Rebbi Yehoshua in Golah, the Beraisa lists Rebbi - who served as Rav in - Beis-She'arim.
When the Tana refers to ...
... 'Golah', he means - Pumbedisa.
... 'Chachamim be'Lishkas ha'Gazis', he means - the Sanhedrin Gedolah.
Rav Yehudah suggests that by 'opening the proceedings li'Zechus' (by Dinei Nefashos), the Tana means that after the D'rishah va'Chakirah, we ask the witnesses how we are supposed to know that they are telling the truth. On what grounds does Ula refute this suggestion?
What does Rebbi Shimon ben Elazar say in a Beraisa about Beis-Din's treatment of the witnesses before they even begin to testify?
Then why can we not silence the witnesses here?
Rav Yehudah suggests that by 'opening the proceedings li'Zechus' (by Dinei Nefashos), the Tana means that after the Derishah va'Chakirah, we ask the witnesses how we are supposed to know that they are telling the truth. Ula refutes this suggestion however - because it is wrong to forcibly silence the witnesses.
Rebbi Shimon ben Elazar rules in a Beraisa that before the witnesses (of Dinei Nefashos) even begin to testify - Beis-Din move them around from one place to another in order to wear them down and induce them to retract.
We cannot 'silence' the witnesses here however - because (whereas the inducement there is indirect, here) it is direct.
In view of the Mitzvah of saving the defendant from the death-penalty, why are we concerned about inducing the witnesses to retract?
On what grounds does Rabah object to Ula's suggestion that we ask the defendant whether he has witnesses to be Mazim the witnesses who are testifying against him?
How do we counter the answer to that (that Eidim Zom'min are not punished anyway, if they become Zom'min before the final verdict has been issued)?
So what do we ask the defendant, according to Rabah?
In spite of the Mitzvah of saving the defendant from the death-penalty, we are concerned about inducing the witnesses to retract - because against that, we have the Pasuk in Shoftim "u'Vi'arta ha'Ra mi'Kirbecha".
Rabah objects to Ula's suggestion that we ask the defendant whether he has witnesses to be Mazim the witnesses who are testifying against him - because it is wrong to save one person by causing the downfall of another.
We counter the answer to that (that Eidim Zom'min are not punished anyway if they become Zom'min before the final verdict has been issued) - by expressing the fear that the defendant will indeed wait for the final verdict before introducing the Mazimin.
Rabah therefore explains that we ask the defendant - whether he has witnesses to counter those of the prosecution (thereby negating their testimony without actually causing them to get punished).
According to Rav Kahana, they 'open the proceedings li'Zechus' entails saying to the witnesses 'mi'Divreichem Nizdach'chah Ploni'. What similar explanation does o Rav Ashi give?
The Beraisa however, supports the opinion of Abaye and Rava. What do they say?
What does Rebbi extrapolate from the Pasuk in Naso (in connection with a Sotah) "Im Lo Shachav Ish osach"?
According to Rav Kahana, 'opening the proceedings li'Zechus' entails saying to the witnesses 'mi'Divreichem Nizdachechah P'loni'; according to Rav Ashi - they announce that whoever has something to say in the defendant's favor, should come and say it.
The Beraisa however, supports the opinion of Abaye and Rava, according to whom - they simply inform the defendant that if he has not sinned, he has nothing to fear.
Rebbi extrapolates from the Pasuk "Im Lo Shachav Ish osach" (the opening words of the Kohen to the Sotah) that - this is the source for opening the proceedings in Dinei Nefashos with a positive statement.