Question #1: Why, in the case of 'Tihar es ha'Tamei', does the Tana rule 'Mah she'Asuy, Asuy'? ...

Question #2: Moreover, now that he does, why does the one who did it have to pay, seeing as the Gemara has not yet established the case where'he mixed it together with his own fruit'?

Answer: At this juncture, he holds the owner mixed the fruit together with his fruit (although he ultimately learns that it was the Chacham who did so). Consequently, 'Mah she'Asuy, Asuy' refers to where he mixed it with a majority of his Tahor fruit, whereas 'Viyeshalem mi'Beiso' speaks where his fruit was in the minority.

Question: According to the Havah Amina of the Sugya in Perek ad Kamah (Bechoros, 28b), which establishes this Mishnah like R. Meir, why is the fruit Bateil be'Rov, seeing as R. Meir holds in Perek ha'Nizakin, Gitin, 54b (regarding a case where 'nuts fell and broke', that even if they fell be'Shogeg, they do not become Bateil because he holds that we punish Shogeg because of Meizid'? So why do we not apply that here as well?

Answer #1: We do not apply that principle here, because, since he acted on the ruling of a Chacham, it would not be appropriate to punish Shogeg in this case.

Answer #2: Alternatively, it is only regarding the Din of Garmi that we establish the Mishnah like R. Meir, not with regard to other issues.

Clarification: The entire Sugya speaks where the Chacham erred 'be'Shikul ha'Da'as (in his judgement), because with regard to an error based on 'a lack of knowledge of a specific Mishnah' (bi'D'var Mishnah), both Rav Nachman and Rav Yosef themselves rule in Kesuvos (Perek Almnah, Daf 100a) that 'If Beis-Din sold the debtor's property without first announcing it, it is if they had erred in a D'var Mishnah, and they are obligated to withdraw their ruling.

Question: Earlier in the first Perek- Daf 5a - Mar Zutra the son of R. Nachman issued a ruling and erred. When he came before Rav Yosef, he ruled that, as long as the litigants authorized him to adjudicate, he was Patur from paying. Why, even if he erred in Shikul ha'Da'as, was he Patur, seeing as he was an expert (whom we obligate here to pay)?

Answer: 'Expert' in our Sugya refers to someone who has Semichah, which the Amora'im of Bavel did not have.

Clarification: The Gemara must be speaking where R. Tarfon did not 'take it with his hands and deliver it', because if he had, then how can the Gemara say that he did not do anything?

Question: In Perek 'Ad Kamah'(Bechoros, 28b & 29a), the Gemara initially tries to establish the current case of 'Dan es ha'Din' like R. Meir, before concluding that it is speaking by 'Natal ve'Nasan be'Yad'. Why does the Mishnah then obligate the Chacham to pay when he declares Tahor what is Tamei, due to the fact that the owner mixed the fruit with his own Tahor fruit? Why do we not say that, since, if he had not mixed it, he would have been able to retract, now too, it is as if did not do anything (like we say in our Sugya)?

Answer: Our Sugya goes according to the Rabbanan. According to R. Meir, who holds Dina de'Garmi, the Chacham will be Chayav, even though, if he had not mixed it, he would have been able to retract ...

Proof: ... like in the case of someone who shows a Dinar to a banker, which later turns out to be a bad coin, where R. Meir, in 'ha'Gozel Kama', Bava Kama, 100a & 100b, obligates the banker to pay, even though, had the coin been available, the banker would have been able to retract.

Question (Part 1): Rabeinu Efrayim asks why the Din here differs from that of 'Metamei be'Yadayim', and we learned in 'ha'Nizakin' (Gitin, Daf 52b) 'ha'Metamei, ve'ha'Medamei ve'ha'Menasech be'Shogeg, Patur', seeing as here too, he is Shogeg.

Qualification: Granted, according to Chizkiyah, who holds there that, min haTorah both Shogeg and Meizid are Chayav, and the reason that they said 'be'Shogeg Patur' is in order not to discourage the perpetrator to inform us of what he did, it is clear that this reason is not applicable here, seeing as a Chacham will inform us even if he he is Chayav to pay.

Question (Part 2): But according to R. Yochanan, who holds that min ha'Torah, both Shogeg and Meizid are Patur, and the reason that they said 'be'Meizid Chayav' is to discourage people from running around rendering everyone's crops Tamei, seeing as he is Patur from having to pay, that reason to make him Chayav does not apply here?

Qualifying the Question: Granted, according to the Gemara's conclusion, where it establishes the case where it is the Chacham who mixed the fruit, it is correct to declare him Chayav to pay, seeing as taking the fruit with his hands and mixing it was un-called for, and renders him a Meizid; According to our initial understanding however, where it was the owner who mixed them, the Kashya remains.

Answer: Still, he is considered Meizid, seeing as, knowing of the likelihood of the owner taking the fruit and mixing it with his own, he should have been more careful in his ruling.

Question #1: This Beraisa poses a Kashya on Rava, who (commenting on R. Yishmael, who maintains that Malkos requires twenty-three Dayanim) cites the D'rashah that Malkos stands in the place of Misah, and declines to learn it from the Gezeirah-Shavah of "Rasha" "Rasha"?

Question #2: And one can ask the same question on him, when, in the first Perek of Makos, 5a - regarding the Din of 'dividing Mamon among Eidim Zom'min, but not Malkos', he gives the reason for the latter ruling as being that it would not be fulfilling the requirement of "Ka'asher Zamam" (rather than from "Rasha" "Rasha")?

Question #3: Furthermore, how come that the S'tam Gemara in the first Perek of Makos, Df 5b, holds like Abaye, when it learns that 'Eidim Zom'min cannot be sentenced to Malkos until the Din has been concluded' by Chayvei Misah with the Gezeirah-Shavah of "Rasha" "Rasha"?

Answer: In principle, Rava holds of the Gezeirah-Shavah, only in those two cases, he maintains that it is not needed.

Question #1: The question remains however, that in 'Eilu Na'aros' (Kesuvo, 35a) in connection with 'Chayvei Malkos Shogegin', Abaye learns are Patur from Mamon from "Rasha" "Rasha", whereas Rava learns it from "Makeh" "Makeh".

Question #2: And by the same token, we can ask why R. Yochanan, who learns that 'Chayvei Malkos Shogegin' are Chayav Mamon, does not learn from "Rasha" "Rasha" that they are Patur?

Question #3 (Part 1): Moreover, later in the Perek (Daf 37a), why does the Gemara learn that Malkos and Mamon is Patur (from Malkos) from "K'dei Rish'aso", and not from the Gezeirah-Shavah of "Rasha" "Rasha"?

Answer: Rava and R' Yochanan do not Darshan the Gezeirah-Shavah of 'Rasha' there, since the Gezeirah-Shavah is coming to exempt Mamon that comes together with Malkos, whereas the Pasuk of "Rasha" ("ve'Hayah Im bin Hakos ha'Rasha") is written in connection with the actual Malkos.

Implied Question: And the fact that (in spite of what we just explained) in the Sugya in Kesuvos) Rava does Darshen "Makeh" "Makeh" ...

Answer (Part 1): This is because the Pasuk ("Makeh Nefesh Beheimah Yeshalmenah") is written in connection with the actual payment.

Extention (Part 1): Abaye, on the hand, Darshens the Gezeirah-Shavah of "Rasha" "Rasha" everywhere.

Extention (Part 2): And the Sugya later in the Perek - which learns Malkos and Mamon from "K'dei Rish'aso" goes according to Rava, since according to Abaye, le'Malkos u'le'Mamon does not require a Pasuk, since we learn it from "Rasha" "Rasha", and he establishes 'one for Misah and Malkos' like R' Meir.

Extention (Part 3): And he (Abaye) will establish the spare Pasuk there by Misah and Malkos, according to R. Meir.

Implied Question: The reason that Rava Darshens "Makeh" "Makeh" ...

Answer (Part 1): ... is because with regard to payment, the Torah writes "Makeh Nefesh Beheimah Yeshalmenah".

Answer (Part 2): Whereas Abaye tends to always Darshen the Gezeirah-Shavah of "Rasha" "Rasha" ...

Explanation (Part 1): ... and the Sugya in connection with "K'dei Rish'aso" (that we cited earlier) goes according to Rava ...

Explanation (Part 2): ... since according to Abaye, neither Malkos nor Mamon require a Pasuk, seeing as learns them via the Gezeirah-Shavah of "Rasha" "Rasha". He will therefore establish one for Misah and one for Malkos, like Rebbi Meir.

Explanation #1: Rashi explains that by the case of adultery, there is no room for error that the Beis-Din may have ruled leniently.

Question: But that is simply not true? Since there are many such cases, such as we see in the first Perek of Makos, 7a, where they argue over whether it will suffice for the witnesses to see the adulterers in a compromising position, or whether they need to actually witness the act from close; whether a 'Chaver' (Talmid-Chacham) requires warning or not; whether or not, the defendant needs to declare that he is prepared to die, and whether, or not, the two witnesses must warn him or it will suffice for somebody else to do so?

Explanation #2 (Part 1): The She'eilah is whether there are any rulings regarding the adulterer and the adulteress with which the Tzedokim do not agree ...

Explanation #2 (Part 2): ... to which R. Yochanan replies 'a'de'Mokdach Yakid Kotz ... ' - in other words, whilst you are busying yourself with what I instructed you, to discover the difference between what the Tzedokim do agree and what they don't, first make a point of getting to know with what they agree and with what they don't ...

Explanation #2 (Part 3): ... and now, based on that, the Gemara explains what it is that the Tzedokim do not agree with.

Claification: Rashi explains that the Chiyuv is not mentioned in the Torah, only we learn it from "Mishk'vei Ishah", from which we learn that there are two 'Mishkavos on a woman, and the Tzedokim do not agree with this.

Question: The Tzedokim do, in fact, agree with this D'rashah, as is evident in the first Perek of Horayos, Daf 4a, where Shmuel rules that 'Beis-Di are not Chayav (a Par He'elam Davar) until the issue concerns a ruling with which the Tzedokim do not agree. And the Gemara concludes - that they rules that 'she'Lo ke'Darkah is permitted'. On which the Gemara asks 'But does the Torah not write "Mishkevei Isha?" - meaning that the Tzedokim do agree with it?

Answer: It must therefore be speaking here with regard to 'Ha'ara'ah' (the first stage of intimacy); And what they ruled was that, although by ke'Darkah, Ha'ara'ah is forbidden, by she'Lo ke'Darkah, it is permitted.

Implied Question: Even though the Gemara there queries this distinction ...

Answer: Nevertheless, according to the conclusion there, that answer is well established.

Question: When, at the end of the first Perek (Daf 17a) the Gemara rules that, if a Dayan initially claims that he does not know and then wants to retract, we do not listen to what he has to say. Why is he any different than a Talmid, whose opinion is taken into account even though he is not part of the Beis-Din?

Answer: The Gemara there speaks where the Dayan now wants to make a statement that will render the litigant guilty, whereas our Gemara is speaking where the Talmid makes a statement in his favor.