Today's Daf Yomi
October 10, 2017 | כ׳ בתשרי תשע״ח
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This month's learning is dedicated by Debbie and Yossi Gevir to Rabbanit Michelle and the Hadran Zoom group for their kindness, support, and care during a medically challenging year.
Sanhedrin 86
What type of kidnapping does one get the death penalty for? It must include kidnapping and selling into slavery. Could two witnesses testify that one kidnapped and a different two testify that one sold? Would that be considered two separate testimonies that each stand alone or is each only half a testimony? If it is half a testimony, then there is a debate about whether partial testimony is acceptable or not?
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תני תנא קמיה דרב ששת אמר ליה אני שונה רבי שמעון אומר ׳מאחיו׳ עד שיוציאנו מרשות אחיו ואת אמרת חייב תני פטור
A tanna who recited mishnayot and baraitot in the study hall recited that baraita, where the tanna holds that one is liable for abducting another and selling him to the abductee’s father, before Rav Sheshet. Rav Sheshet said to him: I teach that Rabbi Shimon says: From the term “of his brethren” it is derived that there is no liability unless he removes the abductee from the domain of his brethren, and you say that one who sells the abductee to his father is liable? Emend the baraita and teach instead: He is exempt.
מאי קושיא דילמא הא רבי שמעון הא רבנן
The Gemara asks: What is the difficulty raised by Rav Sheshet? Perhaps that statement that he cited is the opinion of Rabbi Shimon, while this baraita is the opinion of the Rabbis, who disagree with him.
לא סלקא דעתך דאמר רבי יוחנן סתם מתניתין רבי מאיר סתם תוספתא רבי נחמיה סתם ספרא רבי יהודה סתם ספרי רבי שמעון וכולהו אליבא דרבי עקיבא
The Gemara responds: That should not enter your mind, as the unattributed baraita that was cited is a passage from the halakhic midrash on the books of Numbers and Deuteronomy entitled Sifrei, and Rabbi Yoḥanan says: An unattributed mishna is in accordance with the opinion of Rabbi Meir; an unattributed baraita in the Tosefta is in accordance with the opinion of Rabbi Neḥemya; an unattributed baraita in the Sifra, the halakhic midrash on the book of Leviticus, is in accordance with the opinion of Rabbi Yehuda; and an unattributed baraita in the Sifrei is in accordance with the opinion of Rabbi Shimon. And all of these are in accordance with the opinion of Rabbi Akiva, as all the Sages mentioned were his disciples. Therefore, it is unlikely that an unattributed baraita from the Sifrei would run counter to the opinion of Rabbi Shimon.
הגונב בנו מאי טעמא דרבנן
§ The mishna teaches that there is a dispute between Rabbi Yehuda and the Rabbis with regard to the liability of one who abducts his son. The Gemara asks: What is the reason for the opinion of the Rabbis, who deem him exempt?
אמר אביי דאמר קרא כי ימצא פרט למצוי
Abaye said: It is derived from the verse that states: “If a man shall be found abducting a person of his brethren” (Deuteronomy 24:7), to exclude one who is already found in the custody of the abductor before the abduction. Since the son is already in the custody of his father, the father is not liable for abducting him.
אמר ליה רב פפא לאביי אלא מעתה כי ימצא איש שכב עם אשה בעלת בעל הכי נמי כי ימצא פרט למצוי כגון של בית פלוני דשכיחן גבייהו הכי נמי דפטירי
Rav Pappa said to Abaye: If that is so, then the verse: “If a man shall be found lying with a woman married to a husband, then they shall both of them die” (Deuteronomy 22:22), may also be interpreted: “If a man shall be found,” to exclude one who was already found. So too, would one say that adulterers are exempt from liability if they commit adultery in, for example, the house of so-and-so, where married women are commonly found and they have a preexisting reputation for licentiousness?
אמר ליה אנא מונמצא בידו קאמינא
Abaye said to Rav Pappa: The Rabbis’ opinion is derived from the phrase: “Or if he is found in his possession, he shall be put to death” (Exodus 21:16), from which I am saying my inference, that it is derived: If he is found, to the exclusion of one who was already found.
אמר רבא הלכך הני מיקרי דרדקי ומתנו רבנן כמצויין בידן דמו ופטירי
Rava said: Therefore, with regard to those teachers of children [dardekei] and those who recite mishnayot to Torah scholars, the status of their students is as though they are found in their possession, and the teachers are exempt from liability for abducting them.
גנב מי שחציו וכו׳ תנן התם רבי יהודה אומר אין לעבדים בושת
§ The mishna teaches that there is a dispute between Rabbi Yehuda and the Rabbis with regard to liability if one abducted one who is half-slave half-freeman. We learned in a mishna there (Bava Kamma 87a) that Rabbi Yehuda says: There is no indemnity for the humiliation of a slave, since he is not a full-fledged Jew.
מאי טעמא דרבי יהודה אמר קרא כי ינצו אנשים יחדו איש ואחיו מי שיש לו אחוה יצא עבד שאין לו אחוה
The Gemara asks: What is the reason for the opinion of Rabbi Yehuda? It is derived from the verse that states: “When men struggle together, a man and his brother, and the wife of the one drew near to deliver her husband from the hand of the one who smites him, and extended her hand, and grabbed his genitals” (Deuteronomy 25:11). This is the source for liability to pay restitution for humiliating another. From the term “his brother” it is derived that one who has brotherhood, i.e., who is halakhically related to his biological family, receives payment for humiliation. A slave is excluded, as he has no brotherhood, i.e., he is not halakhically related to his family.
ורבנן אחיו הוא במצות
And what is the reason for the opinion of the Rabbis? They hold that although the slave has no family ties, he is the brother of the assailant with regard to the fulfillment of mitzvot, as a Canaanite slave is obligated to fulfill the same mitzvot that a woman is obligated to fulfill.
והכא היכי דריש רבי יהודה
The Gemara asks: And here, with regard to abduction, how does Rabbi Yehuda interpret the verses and arrive at the conclusion that one is liable for abducting one who is half-slave half-freeman? Shouldn’t the term “from his brethren” render exempt from liability one who abducts a slave?
סבר מאחיו לאפוקי עבדים בני ישראל למעוטי מי שחציו עבד וחציו בן חורין מבני ישראל למעוטי מי שחציו עבד וחציו בן חורין הוי מיעוט אחר מיעוט ואין מיעוט אחר מיעוט אלא לרבות
The Gemara answers that Rabbi Yehuda holds that the term in the verse: “From his brethren” (Deuteronomy (24:7), serves to exclude from liability one who abducts slaves. Had the verse continued: The children of Israel, that phrase would have been interpreted to exclude from liability one who abducts one who is half-slave half-freeman. Since the verse states: “From the children of Israel,” the prefix letter mem, meaning from, indicates that there are some from the children of Israel for whose abduction one is liable and there are some for whose abduction one is exempt. That prefix also serves to exclude from liability one who abducts one who is half-slave half-freeman. Therefore, this is an example of a restriction following a restriction, and there is a hermeneutical principle that a restriction following a restriction serves only to amplify the halakha and to include in the category of those who are liable one who abducts one who is half-slave half-freeman.
ורבנן מאחיו לאפוקי עבדים לא משמע להו דהא אחיו הוא במצות בני ישראל מבני ישראל חד למעוטי עבד וחד למעוטי מי שחציו עבד וחציו בן חורין
And the Rabbis, who deem one who abducts one who is half-slave half-freeman exempt, how do they interpret the verse? They do not exclude slaves based on the term “from his brethren,” as the slave is the brother of the abductor with regard to the fulfillment of mitzvot. Concerning the expression “children of Israel” and the more expanded expression “from the children of Israel,” one serves to exclude from liability one who abducts slaves, as the slave is not a full-fledged Jew, and one serves to exclude from liability one who abducts one who is half-slave half-freeman.
אזהרה לגונב נפש מנין רבי יאשיה אמר מלא תגנב רבי יוחנן אמר מלא ימכרו ממכרת עבד ולא פליגי מר קא חשיב לאו דגניבה ומר קא חשיב לאו דמכירה
§ The Gemara asks: From where is a prohibition against abducting a person derived? Rabbi Yoshiya says that it is derived from the verse: “You shall not steal” (Exodus 20:13). Rabbi Yoḥanan says that it is derived from the verse: “They shall not be sold as slaves” (Leviticus 25:42). The Gemara comments: And they do not disagree, as each requires both verses to derive the prohibition. One Sage, Rabbi Yoshiya, enumerates the prohibition against abduction, and one Sage, Rabbi Yoḥanan, enumerates the prohibition against selling the abductee into slavery.
תנו רבנן ׳לא תגנב׳ בגונב נפשות הכתוב מדבר אתה אומר בגונב נפשות או אינו אלא בגונב ממון אמרת צא ולמד משלש עשרה מדות שהתורה נדרשת בהן דבר הלמד מעניינו במה הכתוב מדבר בנפשות אף כאן בנפשות
The Sages taught in a baraita: “You shall not steal” (Exodus 20:13), and it is with regard to one who abducts people that the verse is speaking. Do you say that the verse is speaking with regard to one who abducts people, or perhaps the verse is speaking only with regard to one who steals property? You say: Go out and learn from one of the thirteen hermeneutical principles: A matter derived from its context. With regard to what context are the adjacent prohibitions “You shall not kill; you shall not commit adultery” in the verse speaking? They are speaking with regard to capital cases. So too here, the prohibition is speaking with regard to a capital case of abduction.
תניא אידך ׳לא תגנבו׳ בגונב ממון הכתוב מדבר אתה אומר בגונב ממון או אינו אלא בגונב נפשות אמרת צא ולמד משלש עשרה מדות שהתורה נדרשת בהן דבר הלמד מענינו במה הכתוב מדבר בממון אף כאן בממון
It is taught in another baraita: “You shall not steal” (Leviticus 19:11), and it is with regard to one who steals property that the verse is speaking. Do you say that the verse is speaking with regard to one who steals property, or perhaps the verse is speaking only with regard to one who abducts people? You say: Go out and learn from one of the thirteen hermeneutical principles: A matter derived from its context. With regard to what context is the subsequent verse: “You shall neither exploit your neighbor nor rob him” (Leviticus 19:13), speaking? It is speaking with regard to property. So too here, the verse is speaking with regard to property.
איתמר עידי גניבה ועידי מכירה בנפש שהוזמו חזקיה אמר אין נהרגין רבי יוחנן אמר נהרגין
It was stated: If the witnesses to the abduction and the witnesses to the sale of a person were rendered conspiring witnesses, Ḥizkiyya says: The typical sentence of conspiring witnesses is not implemented and they are not executed. Rabbi Yoḥanan says: They are executed.
חזקיה דאמר כרבי עקיבא דאמר דבר ולא חצי דבר ורבי יוחנן אמר כרבנן דאמרי דבר ואפילו חצי דבר
The Gemara elaborates: It is Ḥizkiyya who said his statement in accordance with the opinion of Rabbi Akiva, who said one derives from the verse: “On the basis of two witnesses…shall a matter be established” (Deuteronomy 19:15), that the testimony of witnesses is valid only when they attest to an entire matter, but not to half a matter. Since each pair of witnesses provides testimony concerning only half the transgression for which the perpetrator would be liable, i.e., they each testify to only the abduction or the sale, the testimony of each pair is not valid. Therefore, when they are deemed conspiring witnesses, they are not executed. And Rabbi Yoḥanan says his statement in accordance with the opinion of the Rabbis, who said that one derives from the verse that the testimony is valid when they testify with regard to an entire matter, and even when they testify with regard to half a matter. Since the testimony of the two pairs of witnesses together constitutes a complete testimony, if they are rendered conspiring witnesses, they are executed.
ומודה חזקיה בעדים האחרונים של בן סורר ומורה שהוזמו שנהרגין מתוך שיכולים לומר הראשונים
The Gemara notes: And Ḥizkiyya concedes with regard to the final witnesses of a stubborn and rebellious son who were rendered conspiring witnesses that they are executed. A stubborn and rebellious son is executed only if witnesses testified that he engaged in gluttonous and drunken conduct and he was flogged, and then a second pair of witnesses testifies that he again engaged in gluttonous and drunken conduct. His death sentence is based solely on the testimony of the second pair, as the first witnesses could say:
להלקותו באנו והני אחריני כולי דבר קא עבדי ליה
It is in order to flog him, not to execute him, that we came to court. And these other witnesses, through their testimony, are the ones who did this to him, i.e., they are responsible for the entire matter of his execution, and are therefore liable to be executed for giving conspiring testimony.
מתקיף לה רב פפא אי הכי עידי מכירה נמי ליקטליה מתוך שיכולין עידי גניבה לומר להלקותו באנו וכי תימא דקסבר חזקיה דלא לקי
Rav Pappa objects to this: If so, and Ḥizkiyya concedes to Rabbi Yoḥanan in the case of the final testimony of the stubborn and rebellious son, let them also execute the witnesses to the sale of one who was abducted, as the witnesses to the abduction could say: It is in order to flog the abductor, not to execute him, that we came to court. And if you would say that Ḥizkiyya holds that one who abducts another and does not sell him is not flogged, that is difficult.
והא איתמר עידי גניבה בנפש שהוזמו חזקיה ורבי יוחנן חד אמר לוקין וחד אמר אין לוקין ואמרינן תסתיים דחזקיה דאמר לוקין מדאמר חזקיה אין נהרגין
But wasn’t it stated: With regard to witnesses to the abduction who were rendered conspiring witnesses prior to the testimony of the witnesses to the sale, Ḥizkiyya and Rabbi Yoḥanan disagree. One says: They are flogged, and one says: They are not flogged. And we say: It may be concluded that it is Ḥizkiyya who said that they are flogged, from the fact that Ḥizkiyya said: They are not executed.
דאי רבי יוחנן כיון דאמר נהרגין הוה ליה לאו שניתן לאזהרת מיתת בית דין וכל לאו שניתן לאזהרת מיתת בית דין אין לוקין עליו איהו לא לקי אינהו היכי לקו
Since if one were to suggest that it is Rabbi Yoḥanan who said that they are flogged, that cannot be. Since he says that conspiring witnesses are executed in this case, it is a prohibition that is given as a warning of liability for a court-imposed death penalty, and the principle is: With regard to any prohibition that is given as a warning of liability for a court-imposed death penalty, one is not flogged for its violation, even in a case where the transgressor is not executed. The abductor is not flogged. How then could the conspiring witnesses be flogged for testifying against them, as the punishment for conspiring witnesses is identical to the punishment of the one against whom they testified? Rather, it is certain that Ḥizkiyya holds that the conspiring witnesses to the abduction are flogged, and therefore everyone agrees that the conspiring witnesses to the sale are executed.
אלא אמר רב פפא בעידי מכירה דכולי עלמא לא פליגי דנהרגין כי פליגי בעידי גניבה חזקיה אמר אין נהרגין גניבה לחודה קיימא ומכירה לחודה קיימא רבי יוחנן אמר נהרגין גניבה אתחלתא דמכירה היא
Rather, Rav Pappa says: The previous explanation is rejected, and instead the dispute must be explained as follows: With regard to the witnesses to the sale of the abductee, it is clear that everyone agrees that they are executed, as theirs is testimony concerning an entire matter and would have led to his execution. When they disagree, it is with regard to the witnesses to the abduction. Ḥizkiyya says: They are not executed, as he holds that abduction stands discrete as an independent prohibition punishable by lashes, and the sale stands discrete as an independent prohibition punishable by strangulation. Rabbi Yoḥanan says: They are executed, as the abduction is the beginning of the process that culminates with the sale. The witnesses testifying to the abduction are testifying to a transgression that will culminate with the sale of the abductee.
ומודה רבי יוחנן בעדים הראשונים של בן סורר ומורה שהוזמו שאין נהרגין מתוך שיכולין לומר להלקותו באנו
The Gemara notes: And Rabbi Yoḥanan concedes with regard to the initial witnesses concerning a stubborn and rebellious son who testified that he engaged in gluttonous and drunken conduct and who were rendered conspiring witnesses that they are not executed, as they could say: It is in order to flog him for past conduct, not to execute him for actions that he might perform in the future, that we came to court. Therefore, there is no connection between their testimony and punishment for future actions.
אמר אביי הכל מודים בבן סורר ומורה והכל מודים בבן סורר ומורה ומחלוקת בבן סורר ומורה
Abaye said in summary: All concede in the case of a stubborn and rebellious son, and all concede in the case of a stubborn and rebellious son, and there is a dispute with regard to a stubborn and rebellious son.
הכל מודים בבן סורר ומורה בעדים הראשונים שאין נהרגין מתוך שיכולין לומר להלקותו באנו
The Gemara elaborates: With regard to the initial witnesses, all, even Rabbi Yoḥanan, concede in the case of a stubborn and rebellious son that they are not executed if they are rendered conspiring witnesses, as they could say: It is in order to flog him for past conduct, not to execute him, that we came to court.
והכל מודים בבן סורר ומורה בעדים אחרונים שנהרגים מתוך שעדים הראשונים יכולין לומר להלקותו באנו והני כוליה דבר קא עבדי ליה
And with regard to the final witnesses, all, even Ḥizkiyya, concede in the case of a stubborn and rebellious son that they are executed if they are rendered conspiring witnesses, due to the fact that the initial witnesses could say: It is in order to flog him for past conduct that we came to court, and these final witnesses are the ones who did this to him, i.e., they are responsible for the entire matter of his execution and are therefore liable to be executed.
ומחלוקת בבן סורר ומורה שנים אומרים בפנינו גנב ושנים אומרים בפנינו אכל
And there is a dispute with regard to a stubborn and rebellious son in a case where two of the final witnesses, who testify after the son was already flogged for engaging in gluttonous and drunken conduct, say: He stole in our presence, and two other witnesses say: He ate in our presence. The dispute is whether the testimony of these two pairs of witnesses is testimony concerning an entire matter or testimony concerning half a matter.
אמר רב אסי עדי מכירה בנפש שהוזמו אין נהרגין מתוך שיכול לומר עבדי מכרתי
Rav Asi says: The witnesses to the sale of a person who were rendered conspiring witnesses are not executed, due to the fact that the one against whom they testified could say: Although they testified that I sold an individual, it was my slave that I sold. In that case, the witnesses are not testifying that he violated a capital transgression, as they cannot attest to the fact that the individual he sold was first abducted.
אמר רב יוסף כמאן אזלא הא שמעתא דרב אסי כרבי עקיבא דאמר דבר ולא חצי דבר אמר ליה אביי דאי כרבנן נהרגין הא מתוך קאמר
Rav Yosef says: In accordance with whose opinion is that halakha of Rav Asi? It is in accordance with the opinion of Rabbi Akiva, who says: The testimony of witnesses is valid only when they attest to an entire matter and not to half a matter. Abaye said to Rav Yosef: According to your explanation, it is in accordance with the opinion of Rabbi Akiva, as, if it were in accordance with the opinion of the Rabbis, who hold: The testimony is valid when they testify to an entire matter and even when they testify to half a matter, are the conspiring witnesses executed? Doesn’t Rav Asi say that they are not executed due to the fact that the one against whom they testified could say: Although they testified that I sold an individual, it was my slave that I sold? According to that reasoning, even the Rabbis would concede that they are not executed.
אלא אפילו תימא רבנן ובדלא אתו עידי גניבה אי הכי מאי למימרא לא צריכא דאף על גב דאתו לבסוף
Rather, you may even say that Rav Asi’s statement is in accordance with the opinion of the Rabbis, and it is concerning a case where only witnesses to the sale came to testify and witnesses to the abduction did not come to testify. In that case the accused can avoid punishment; therefore, the conspiring witnesses are not executed. The Gemara asks: If so, what is the purpose of stating that halakha? Obviously, in that case they are not executed, as there is no way to determine that the one he sold is not a slave. The Gemara answers: No, it is necessary to teach that they are not executed even if witnesses to the abduction ultimately came after the witnesses to the sale had testified and testified that he sold a freeman, not his slave.
ואכתי מאי למימרא לא צריכא דקא מרמזי רמוזי מהו דתימא רמיזא מילתא היא קא משמע לן רמיזא לאו כלום הוא
The Gemara asks: But still, what is the purpose of stating that halakha? When the witnesses to the sale testified, their testimony was not sufficient to execute the accused. The Gemara answers: No, it is necessary to teach the halakha in a case where they are not executed even where the first and second pairs of witnesses gesture to one another, ostensibly indicating that the conspiring witnesses to the sale were aware that the witnesses to the abduction would follow and that therefore the initial witnesses are part of the conspiracy to testify and execute the accused. And consequently, it is necessary to teach this halakha lest you say: Gesturing is a significant matter, and the legal status of the two testimonies is that of a single testimony. Therefore, Rav Asi teaches us that gesturing is nothing of significance.
מתני׳ זקן ממרא על פי בית דין שנאמר כי יפלא ממך דבר למשפט שלשה בתי דינין היו שם אחד יושב על פתח הר הבית ואחד יושב על פתח העזרה ואחד יושב בלשכת הגזית
MISHNA: A rebellious elder according to the court, who does not observe the ruling of the court, is executed by strangulation, as it is stated: “If there shall be a matter too hard for you in judgment…and you shall arise and ascend unto the place that the Lord your God shall choose…and you shall do according to the matter that they shall declare unto you…and the man that shall do so intentionally, not to listen…and that man shall die” (Deuteronomy 17:8–12). There were three courts there in Jerusalem. One convenes at the entrance to the Temple Mount, and one convenes at the entrance to the Temple courtyard, and one convenes in the Chamber of Hewn Stone.
באין לזה שעל פתח הר הבית ואומר כך דרשתי וכך דרשו חבירי כך לימדתי וכך לימדו חבירי אם שמעו אמר להם
An elder who issues a ruling contrary to the ruling of his colleagues and his colleagues come to that court that is at the entrance to the Temple Mount, and the elder says: This is what I interpreted and that is what my colleagues interpreted; this is what I taught and that is what my colleagues taught. If the members of the court heard a clear halakhic ruling in that case, the court says it to them.
ואם לאו באין להן לאותן שעל פתח עזרה ואומר כך דרשתי וכך דרשו חבירי כך לימדתי וכך לימדו חבירי אם שמעו אמר להם
And if not, they come to those judges who are convened at the entrance to the Temple courtyard, which is a more significant tribunal. And the elder says: This is what I interpreted and that is what my colleagues interpreted; this is what I taught and that is what my colleagues taught. If the members of the court heard a clear halakhic ruling in that case, the court says it to them.
ואם לאו אלו ואלו באין לבית דין הגדול שבלשכת הגזית שממנו יוצא תורה לכל ישראל שנאמר מן המקום ההוא אשר יבחר ה׳ חזר לעירו שנה ולמד בדרך שהיה למד פטור ואם הורה לעשות חייב שנאמר והאיש אשר יעשה בזדון אינו חייב עד שיורה לעשות
And if not, these judges and those judges come to the High Court, the Sanhedrin of seventy-one judges that is in the Chamber of Hewn Stone, from which Torah emerges to the entire Jewish people, as it is stated: “And you shall do according to the matter that they shall declare unto you from that place that the Lord shall choose and you shall observe to perform according to all that they shall teach you” (Deuteronomy 17:10). They are the ultimate arbiters who establish the halakha that is binding. If they ruled contrary to the ruling of the elder and the elder then returned to his city, and nevertheless, he taught in the manner that he was teaching previously, he is exempt from punishment. But if he instructed others to act on the basis of his ruling that stands contrary to the ruling of the Sanhedrin, he is liable to be executed, as it is stated: “And the man that shall do so intentionally not to listen” (Deuteronomy 17:12), meaning that one is not liable unless he instructs others to act.
תלמיד שהורה לעשות פטור נמצא חומרו קולו
A student who is not yet an elder, i.e., he has not been ordained, who instructs others to act contrary to the ruling of the Sanhedrin, is exempt, as a ruling given prior to ordination is not a valid ruling. It follows that his stringency is his leniency. The stringency imposed upon the student that he is not sanctioned to issue rulings results in the leniency that if he instructs others to act on the basis of his ruling that is contrary to the ruling of the Sanhedrin, he is exempt.
גמ׳ תנו רבנן ׳כי יפלא ממך דבר׳
GEMARA: The Sages taught with regard to that which is stated: “If there shall be a matter too hard for you in judgment, between blood and blood, between plea and plea, and between mark and mark, even matters of controversy within your gates, then you shall arise, and ascend to the place that the Lord your God shall choose” (Deuteronomy 17:8). “If there shall be a matter too hard [yippaleh] for you”;
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Sanhedrin 86
The William Davidson Talmud | Powered by Sefaria
תני תנא קמיה דרב ששת אמר ליה אני שונה רבי שמעון אומר ׳מאחיו׳ עד שיוציאנו מרשות אחיו ואת אמרת חייב תני פטור
A tanna who recited mishnayot and baraitot in the study hall recited that baraita, where the tanna holds that one is liable for abducting another and selling him to the abductee’s father, before Rav Sheshet. Rav Sheshet said to him: I teach that Rabbi Shimon says: From the term “of his brethren” it is derived that there is no liability unless he removes the abductee from the domain of his brethren, and you say that one who sells the abductee to his father is liable? Emend the baraita and teach instead: He is exempt.
מאי קושיא דילמא הא רבי שמעון הא רבנן
The Gemara asks: What is the difficulty raised by Rav Sheshet? Perhaps that statement that he cited is the opinion of Rabbi Shimon, while this baraita is the opinion of the Rabbis, who disagree with him.
לא סלקא דעתך דאמר רבי יוחנן סתם מתניתין רבי מאיר סתם תוספתא רבי נחמיה סתם ספרא רבי יהודה סתם ספרי רבי שמעון וכולהו אליבא דרבי עקיבא
The Gemara responds: That should not enter your mind, as the unattributed baraita that was cited is a passage from the halakhic midrash on the books of Numbers and Deuteronomy entitled Sifrei, and Rabbi Yoḥanan says: An unattributed mishna is in accordance with the opinion of Rabbi Meir; an unattributed baraita in the Tosefta is in accordance with the opinion of Rabbi Neḥemya; an unattributed baraita in the Sifra, the halakhic midrash on the book of Leviticus, is in accordance with the opinion of Rabbi Yehuda; and an unattributed baraita in the Sifrei is in accordance with the opinion of Rabbi Shimon. And all of these are in accordance with the opinion of Rabbi Akiva, as all the Sages mentioned were his disciples. Therefore, it is unlikely that an unattributed baraita from the Sifrei would run counter to the opinion of Rabbi Shimon.
הגונב בנו מאי טעמא דרבנן
§ The mishna teaches that there is a dispute between Rabbi Yehuda and the Rabbis with regard to the liability of one who abducts his son. The Gemara asks: What is the reason for the opinion of the Rabbis, who deem him exempt?
אמר אביי דאמר קרא כי ימצא פרט למצוי
Abaye said: It is derived from the verse that states: “If a man shall be found abducting a person of his brethren” (Deuteronomy 24:7), to exclude one who is already found in the custody of the abductor before the abduction. Since the son is already in the custody of his father, the father is not liable for abducting him.
אמר ליה רב פפא לאביי אלא מעתה כי ימצא איש שכב עם אשה בעלת בעל הכי נמי כי ימצא פרט למצוי כגון של בית פלוני דשכיחן גבייהו הכי נמי דפטירי
Rav Pappa said to Abaye: If that is so, then the verse: “If a man shall be found lying with a woman married to a husband, then they shall both of them die” (Deuteronomy 22:22), may also be interpreted: “If a man shall be found,” to exclude one who was already found. So too, would one say that adulterers are exempt from liability if they commit adultery in, for example, the house of so-and-so, where married women are commonly found and they have a preexisting reputation for licentiousness?
אמר ליה אנא מונמצא בידו קאמינא
Abaye said to Rav Pappa: The Rabbis’ opinion is derived from the phrase: “Or if he is found in his possession, he shall be put to death” (Exodus 21:16), from which I am saying my inference, that it is derived: If he is found, to the exclusion of one who was already found.
אמר רבא הלכך הני מיקרי דרדקי ומתנו רבנן כמצויין בידן דמו ופטירי
Rava said: Therefore, with regard to those teachers of children [dardekei] and those who recite mishnayot to Torah scholars, the status of their students is as though they are found in their possession, and the teachers are exempt from liability for abducting them.
גנב מי שחציו וכו׳ תנן התם רבי יהודה אומר אין לעבדים בושת
§ The mishna teaches that there is a dispute between Rabbi Yehuda and the Rabbis with regard to liability if one abducted one who is half-slave half-freeman. We learned in a mishna there (Bava Kamma 87a) that Rabbi Yehuda says: There is no indemnity for the humiliation of a slave, since he is not a full-fledged Jew.
מאי טעמא דרבי יהודה אמר קרא כי ינצו אנשים יחדו איש ואחיו מי שיש לו אחוה יצא עבד שאין לו אחוה
The Gemara asks: What is the reason for the opinion of Rabbi Yehuda? It is derived from the verse that states: “When men struggle together, a man and his brother, and the wife of the one drew near to deliver her husband from the hand of the one who smites him, and extended her hand, and grabbed his genitals” (Deuteronomy 25:11). This is the source for liability to pay restitution for humiliating another. From the term “his brother” it is derived that one who has brotherhood, i.e., who is halakhically related to his biological family, receives payment for humiliation. A slave is excluded, as he has no brotherhood, i.e., he is not halakhically related to his family.
ורבנן אחיו הוא במצות
And what is the reason for the opinion of the Rabbis? They hold that although the slave has no family ties, he is the brother of the assailant with regard to the fulfillment of mitzvot, as a Canaanite slave is obligated to fulfill the same mitzvot that a woman is obligated to fulfill.
והכא היכי דריש רבי יהודה
The Gemara asks: And here, with regard to abduction, how does Rabbi Yehuda interpret the verses and arrive at the conclusion that one is liable for abducting one who is half-slave half-freeman? Shouldn’t the term “from his brethren” render exempt from liability one who abducts a slave?
סבר מאחיו לאפוקי עבדים בני ישראל למעוטי מי שחציו עבד וחציו בן חורין מבני ישראל למעוטי מי שחציו עבד וחציו בן חורין הוי מיעוט אחר מיעוט ואין מיעוט אחר מיעוט אלא לרבות
The Gemara answers that Rabbi Yehuda holds that the term in the verse: “From his brethren” (Deuteronomy (24:7), serves to exclude from liability one who abducts slaves. Had the verse continued: The children of Israel, that phrase would have been interpreted to exclude from liability one who abducts one who is half-slave half-freeman. Since the verse states: “From the children of Israel,” the prefix letter mem, meaning from, indicates that there are some from the children of Israel for whose abduction one is liable and there are some for whose abduction one is exempt. That prefix also serves to exclude from liability one who abducts one who is half-slave half-freeman. Therefore, this is an example of a restriction following a restriction, and there is a hermeneutical principle that a restriction following a restriction serves only to amplify the halakha and to include in the category of those who are liable one who abducts one who is half-slave half-freeman.
ורבנן מאחיו לאפוקי עבדים לא משמע להו דהא אחיו הוא במצות בני ישראל מבני ישראל חד למעוטי עבד וחד למעוטי מי שחציו עבד וחציו בן חורין
And the Rabbis, who deem one who abducts one who is half-slave half-freeman exempt, how do they interpret the verse? They do not exclude slaves based on the term “from his brethren,” as the slave is the brother of the abductor with regard to the fulfillment of mitzvot. Concerning the expression “children of Israel” and the more expanded expression “from the children of Israel,” one serves to exclude from liability one who abducts slaves, as the slave is not a full-fledged Jew, and one serves to exclude from liability one who abducts one who is half-slave half-freeman.
אזהרה לגונב נפש מנין רבי יאשיה אמר מלא תגנב רבי יוחנן אמר מלא ימכרו ממכרת עבד ולא פליגי מר קא חשיב לאו דגניבה ומר קא חשיב לאו דמכירה
§ The Gemara asks: From where is a prohibition against abducting a person derived? Rabbi Yoshiya says that it is derived from the verse: “You shall not steal” (Exodus 20:13). Rabbi Yoḥanan says that it is derived from the verse: “They shall not be sold as slaves” (Leviticus 25:42). The Gemara comments: And they do not disagree, as each requires both verses to derive the prohibition. One Sage, Rabbi Yoshiya, enumerates the prohibition against abduction, and one Sage, Rabbi Yoḥanan, enumerates the prohibition against selling the abductee into slavery.
תנו רבנן ׳לא תגנב׳ בגונב נפשות הכתוב מדבר אתה אומר בגונב נפשות או אינו אלא בגונב ממון אמרת צא ולמד משלש עשרה מדות שהתורה נדרשת בהן דבר הלמד מעניינו במה הכתוב מדבר בנפשות אף כאן בנפשות
The Sages taught in a baraita: “You shall not steal” (Exodus 20:13), and it is with regard to one who abducts people that the verse is speaking. Do you say that the verse is speaking with regard to one who abducts people, or perhaps the verse is speaking only with regard to one who steals property? You say: Go out and learn from one of the thirteen hermeneutical principles: A matter derived from its context. With regard to what context are the adjacent prohibitions “You shall not kill; you shall not commit adultery” in the verse speaking? They are speaking with regard to capital cases. So too here, the prohibition is speaking with regard to a capital case of abduction.
תניא אידך ׳לא תגנבו׳ בגונב ממון הכתוב מדבר אתה אומר בגונב ממון או אינו אלא בגונב נפשות אמרת צא ולמד משלש עשרה מדות שהתורה נדרשת בהן דבר הלמד מענינו במה הכתוב מדבר בממון אף כאן בממון
It is taught in another baraita: “You shall not steal” (Leviticus 19:11), and it is with regard to one who steals property that the verse is speaking. Do you say that the verse is speaking with regard to one who steals property, or perhaps the verse is speaking only with regard to one who abducts people? You say: Go out and learn from one of the thirteen hermeneutical principles: A matter derived from its context. With regard to what context is the subsequent verse: “You shall neither exploit your neighbor nor rob him” (Leviticus 19:13), speaking? It is speaking with regard to property. So too here, the verse is speaking with regard to property.
איתמר עידי גניבה ועידי מכירה בנפש שהוזמו חזקיה אמר אין נהרגין רבי יוחנן אמר נהרגין
It was stated: If the witnesses to the abduction and the witnesses to the sale of a person were rendered conspiring witnesses, Ḥizkiyya says: The typical sentence of conspiring witnesses is not implemented and they are not executed. Rabbi Yoḥanan says: They are executed.
חזקיה דאמר כרבי עקיבא דאמר דבר ולא חצי דבר ורבי יוחנן אמר כרבנן דאמרי דבר ואפילו חצי דבר
The Gemara elaborates: It is Ḥizkiyya who said his statement in accordance with the opinion of Rabbi Akiva, who said one derives from the verse: “On the basis of two witnesses…shall a matter be established” (Deuteronomy 19:15), that the testimony of witnesses is valid only when they attest to an entire matter, but not to half a matter. Since each pair of witnesses provides testimony concerning only half the transgression for which the perpetrator would be liable, i.e., they each testify to only the abduction or the sale, the testimony of each pair is not valid. Therefore, when they are deemed conspiring witnesses, they are not executed. And Rabbi Yoḥanan says his statement in accordance with the opinion of the Rabbis, who said that one derives from the verse that the testimony is valid when they testify with regard to an entire matter, and even when they testify with regard to half a matter. Since the testimony of the two pairs of witnesses together constitutes a complete testimony, if they are rendered conspiring witnesses, they are executed.
ומודה חזקיה בעדים האחרונים של בן סורר ומורה שהוזמו שנהרגין מתוך שיכולים לומר הראשונים
The Gemara notes: And Ḥizkiyya concedes with regard to the final witnesses of a stubborn and rebellious son who were rendered conspiring witnesses that they are executed. A stubborn and rebellious son is executed only if witnesses testified that he engaged in gluttonous and drunken conduct and he was flogged, and then a second pair of witnesses testifies that he again engaged in gluttonous and drunken conduct. His death sentence is based solely on the testimony of the second pair, as the first witnesses could say:
להלקותו באנו והני אחריני כולי דבר קא עבדי ליה
It is in order to flog him, not to execute him, that we came to court. And these other witnesses, through their testimony, are the ones who did this to him, i.e., they are responsible for the entire matter of his execution, and are therefore liable to be executed for giving conspiring testimony.
מתקיף לה רב פפא אי הכי עידי מכירה נמי ליקטליה מתוך שיכולין עידי גניבה לומר להלקותו באנו וכי תימא דקסבר חזקיה דלא לקי
Rav Pappa objects to this: If so, and Ḥizkiyya concedes to Rabbi Yoḥanan in the case of the final testimony of the stubborn and rebellious son, let them also execute the witnesses to the sale of one who was abducted, as the witnesses to the abduction could say: It is in order to flog the abductor, not to execute him, that we came to court. And if you would say that Ḥizkiyya holds that one who abducts another and does not sell him is not flogged, that is difficult.
והא איתמר עידי גניבה בנפש שהוזמו חזקיה ורבי יוחנן חד אמר לוקין וחד אמר אין לוקין ואמרינן תסתיים דחזקיה דאמר לוקין מדאמר חזקיה אין נהרגין
But wasn’t it stated: With regard to witnesses to the abduction who were rendered conspiring witnesses prior to the testimony of the witnesses to the sale, Ḥizkiyya and Rabbi Yoḥanan disagree. One says: They are flogged, and one says: They are not flogged. And we say: It may be concluded that it is Ḥizkiyya who said that they are flogged, from the fact that Ḥizkiyya said: They are not executed.
דאי רבי יוחנן כיון דאמר נהרגין הוה ליה לאו שניתן לאזהרת מיתת בית דין וכל לאו שניתן לאזהרת מיתת בית דין אין לוקין עליו איהו לא לקי אינהו היכי לקו
Since if one were to suggest that it is Rabbi Yoḥanan who said that they are flogged, that cannot be. Since he says that conspiring witnesses are executed in this case, it is a prohibition that is given as a warning of liability for a court-imposed death penalty, and the principle is: With regard to any prohibition that is given as a warning of liability for a court-imposed death penalty, one is not flogged for its violation, even in a case where the transgressor is not executed. The abductor is not flogged. How then could the conspiring witnesses be flogged for testifying against them, as the punishment for conspiring witnesses is identical to the punishment of the one against whom they testified? Rather, it is certain that Ḥizkiyya holds that the conspiring witnesses to the abduction are flogged, and therefore everyone agrees that the conspiring witnesses to the sale are executed.
אלא אמר רב פפא בעידי מכירה דכולי עלמא לא פליגי דנהרגין כי פליגי בעידי גניבה חזקיה אמר אין נהרגין גניבה לחודה קיימא ומכירה לחודה קיימא רבי יוחנן אמר נהרגין גניבה אתחלתא דמכירה היא
Rather, Rav Pappa says: The previous explanation is rejected, and instead the dispute must be explained as follows: With regard to the witnesses to the sale of the abductee, it is clear that everyone agrees that they are executed, as theirs is testimony concerning an entire matter and would have led to his execution. When they disagree, it is with regard to the witnesses to the abduction. Ḥizkiyya says: They are not executed, as he holds that abduction stands discrete as an independent prohibition punishable by lashes, and the sale stands discrete as an independent prohibition punishable by strangulation. Rabbi Yoḥanan says: They are executed, as the abduction is the beginning of the process that culminates with the sale. The witnesses testifying to the abduction are testifying to a transgression that will culminate with the sale of the abductee.
ומודה רבי יוחנן בעדים הראשונים של בן סורר ומורה שהוזמו שאין נהרגין מתוך שיכולין לומר להלקותו באנו
The Gemara notes: And Rabbi Yoḥanan concedes with regard to the initial witnesses concerning a stubborn and rebellious son who testified that he engaged in gluttonous and drunken conduct and who were rendered conspiring witnesses that they are not executed, as they could say: It is in order to flog him for past conduct, not to execute him for actions that he might perform in the future, that we came to court. Therefore, there is no connection between their testimony and punishment for future actions.
אמר אביי הכל מודים בבן סורר ומורה והכל מודים בבן סורר ומורה ומחלוקת בבן סורר ומורה
Abaye said in summary: All concede in the case of a stubborn and rebellious son, and all concede in the case of a stubborn and rebellious son, and there is a dispute with regard to a stubborn and rebellious son.
הכל מודים בבן סורר ומורה בעדים הראשונים שאין נהרגין מתוך שיכולין לומר להלקותו באנו
The Gemara elaborates: With regard to the initial witnesses, all, even Rabbi Yoḥanan, concede in the case of a stubborn and rebellious son that they are not executed if they are rendered conspiring witnesses, as they could say: It is in order to flog him for past conduct, not to execute him, that we came to court.
והכל מודים בבן סורר ומורה בעדים אחרונים שנהרגים מתוך שעדים הראשונים יכולין לומר להלקותו באנו והני כוליה דבר קא עבדי ליה
And with regard to the final witnesses, all, even Ḥizkiyya, concede in the case of a stubborn and rebellious son that they are executed if they are rendered conspiring witnesses, due to the fact that the initial witnesses could say: It is in order to flog him for past conduct that we came to court, and these final witnesses are the ones who did this to him, i.e., they are responsible for the entire matter of his execution and are therefore liable to be executed.
ומחלוקת בבן סורר ומורה שנים אומרים בפנינו גנב ושנים אומרים בפנינו אכל
And there is a dispute with regard to a stubborn and rebellious son in a case where two of the final witnesses, who testify after the son was already flogged for engaging in gluttonous and drunken conduct, say: He stole in our presence, and two other witnesses say: He ate in our presence. The dispute is whether the testimony of these two pairs of witnesses is testimony concerning an entire matter or testimony concerning half a matter.
אמר רב אסי עדי מכירה בנפש שהוזמו אין נהרגין מתוך שיכול לומר עבדי מכרתי
Rav Asi says: The witnesses to the sale of a person who were rendered conspiring witnesses are not executed, due to the fact that the one against whom they testified could say: Although they testified that I sold an individual, it was my slave that I sold. In that case, the witnesses are not testifying that he violated a capital transgression, as they cannot attest to the fact that the individual he sold was first abducted.
אמר רב יוסף כמאן אזלא הא שמעתא דרב אסי כרבי עקיבא דאמר דבר ולא חצי דבר אמר ליה אביי דאי כרבנן נהרגין הא מתוך קאמר
Rav Yosef says: In accordance with whose opinion is that halakha of Rav Asi? It is in accordance with the opinion of Rabbi Akiva, who says: The testimony of witnesses is valid only when they attest to an entire matter and not to half a matter. Abaye said to Rav Yosef: According to your explanation, it is in accordance with the opinion of Rabbi Akiva, as, if it were in accordance with the opinion of the Rabbis, who hold: The testimony is valid when they testify to an entire matter and even when they testify to half a matter, are the conspiring witnesses executed? Doesn’t Rav Asi say that they are not executed due to the fact that the one against whom they testified could say: Although they testified that I sold an individual, it was my slave that I sold? According to that reasoning, even the Rabbis would concede that they are not executed.
אלא אפילו תימא רבנן ובדלא אתו עידי גניבה אי הכי מאי למימרא לא צריכא דאף על גב דאתו לבסוף
Rather, you may even say that Rav Asi’s statement is in accordance with the opinion of the Rabbis, and it is concerning a case where only witnesses to the sale came to testify and witnesses to the abduction did not come to testify. In that case the accused can avoid punishment; therefore, the conspiring witnesses are not executed. The Gemara asks: If so, what is the purpose of stating that halakha? Obviously, in that case they are not executed, as there is no way to determine that the one he sold is not a slave. The Gemara answers: No, it is necessary to teach that they are not executed even if witnesses to the abduction ultimately came after the witnesses to the sale had testified and testified that he sold a freeman, not his slave.
ואכתי מאי למימרא לא צריכא דקא מרמזי רמוזי מהו דתימא רמיזא מילתא היא קא משמע לן רמיזא לאו כלום הוא
The Gemara asks: But still, what is the purpose of stating that halakha? When the witnesses to the sale testified, their testimony was not sufficient to execute the accused. The Gemara answers: No, it is necessary to teach the halakha in a case where they are not executed even where the first and second pairs of witnesses gesture to one another, ostensibly indicating that the conspiring witnesses to the sale were aware that the witnesses to the abduction would follow and that therefore the initial witnesses are part of the conspiracy to testify and execute the accused. And consequently, it is necessary to teach this halakha lest you say: Gesturing is a significant matter, and the legal status of the two testimonies is that of a single testimony. Therefore, Rav Asi teaches us that gesturing is nothing of significance.
מתני׳ זקן ממרא על פי בית דין שנאמר כי יפלא ממך דבר למשפט שלשה בתי דינין היו שם אחד יושב על פתח הר הבית ואחד יושב על פתח העזרה ואחד יושב בלשכת הגזית
MISHNA: A rebellious elder according to the court, who does not observe the ruling of the court, is executed by strangulation, as it is stated: “If there shall be a matter too hard for you in judgment…and you shall arise and ascend unto the place that the Lord your God shall choose…and you shall do according to the matter that they shall declare unto you…and the man that shall do so intentionally, not to listen…and that man shall die” (Deuteronomy 17:8–12). There were three courts there in Jerusalem. One convenes at the entrance to the Temple Mount, and one convenes at the entrance to the Temple courtyard, and one convenes in the Chamber of Hewn Stone.
באין לזה שעל פתח הר הבית ואומר כך דרשתי וכך דרשו חבירי כך לימדתי וכך לימדו חבירי אם שמעו אמר להם
An elder who issues a ruling contrary to the ruling of his colleagues and his colleagues come to that court that is at the entrance to the Temple Mount, and the elder says: This is what I interpreted and that is what my colleagues interpreted; this is what I taught and that is what my colleagues taught. If the members of the court heard a clear halakhic ruling in that case, the court says it to them.
ואם לאו באין להן לאותן שעל פתח עזרה ואומר כך דרשתי וכך דרשו חבירי כך לימדתי וכך לימדו חבירי אם שמעו אמר להם
And if not, they come to those judges who are convened at the entrance to the Temple courtyard, which is a more significant tribunal. And the elder says: This is what I interpreted and that is what my colleagues interpreted; this is what I taught and that is what my colleagues taught. If the members of the court heard a clear halakhic ruling in that case, the court says it to them.
ואם לאו אלו ואלו באין לבית דין הגדול שבלשכת הגזית שממנו יוצא תורה לכל ישראל שנאמר מן המקום ההוא אשר יבחר ה׳ חזר לעירו שנה ולמד בדרך שהיה למד פטור ואם הורה לעשות חייב שנאמר והאיש אשר יעשה בזדון אינו חייב עד שיורה לעשות
And if not, these judges and those judges come to the High Court, the Sanhedrin of seventy-one judges that is in the Chamber of Hewn Stone, from which Torah emerges to the entire Jewish people, as it is stated: “And you shall do according to the matter that they shall declare unto you from that place that the Lord shall choose and you shall observe to perform according to all that they shall teach you” (Deuteronomy 17:10). They are the ultimate arbiters who establish the halakha that is binding. If they ruled contrary to the ruling of the elder and the elder then returned to his city, and nevertheless, he taught in the manner that he was teaching previously, he is exempt from punishment. But if he instructed others to act on the basis of his ruling that stands contrary to the ruling of the Sanhedrin, he is liable to be executed, as it is stated: “And the man that shall do so intentionally not to listen” (Deuteronomy 17:12), meaning that one is not liable unless he instructs others to act.
תלמיד שהורה לעשות פטור נמצא חומרו קולו
A student who is not yet an elder, i.e., he has not been ordained, who instructs others to act contrary to the ruling of the Sanhedrin, is exempt, as a ruling given prior to ordination is not a valid ruling. It follows that his stringency is his leniency. The stringency imposed upon the student that he is not sanctioned to issue rulings results in the leniency that if he instructs others to act on the basis of his ruling that is contrary to the ruling of the Sanhedrin, he is exempt.
גמ׳ תנו רבנן ׳כי יפלא ממך דבר׳
GEMARA: The Sages taught with regard to that which is stated: “If there shall be a matter too hard for you in judgment, between blood and blood, between plea and plea, and between mark and mark, even matters of controversy within your gates, then you shall arise, and ascend to the place that the Lord your God shall choose” (Deuteronomy 17:8). “If there shall be a matter too hard [yippaleh] for you”;
