Sanhedrin 3b

שֶׁאֵינוֹ מִשְׁתַּלֵּם בְּרֹאשׁ הוּא, תְּנָא נָמֵי חֲצִי נֶזֶק, דְּמָמוֹן שֶׁאֵינוֹ מִשְׁתַּלֵּם בְּרֹאשׁ הוּא. וְאַיְּידֵי דְּקָא בָּעֵי לְמִיתְנֵא חֲצִי נֵזֶק, תְּנָא נָמֵי נֵזֶק.

that is not paid according to its value, meaning that the payment is not equal to the cost of the damage but is actually more than that amount, he also taught the halakha with regard to payment of half the cost of the damage, which is also money that is not paid according to its value, as he pays less than the full cost of the damage. And since he needs to teach the halakha with regard to payment of half the cost of the damage, he also taught the halakha with regard to payment of the full cost of the damage.

שְׁלֹשָׁה מְנָלַן? דְּתָנוּ רַבָּנַן: ״וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים״ – הֲרֵי כָּאן אֶחָד, ״עַד הָאֱלֹהִים יָבֹא דְּבַר שְׁנֵיהֶם״ – הֲרֵי כָּאן שְׁנַיִם, ״אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים״ – הֲרֵי כָּאן שְׁלֹשָׁה, דִּבְרֵי רַבִּי יֹאשִׁיָּה.

§ The Gemara asks: From where do we derive the fundamental requirement for three judges? The Gemara answers: This is as the Sages taught: The verse states: “The owner of the house shall come near the court, to see whether he has not put his hand upon his neighbor’s property” (Exodus 22:7), so there is one judge here. The following verse states: “The cause of both parties shall come before the court,” so there are two judges here. And that verse concludes: “He whom the court shall condemn shall pay double to his neighbor,” so there are three judges here, corresponding to the three mentions of the term “the court.” This is the statement of Rabbi Yoshiya.

רַבִּי יוֹנָתָן אוֹמֵר: רִאשׁוֹן תְּחִילָּה נֶאֱמַר, וְאֵין דּוֹרְשִׁין תְּחִילּוֹת. אֶלָּא ״עַד הָאֱלֹהִים יָבֹא דְּבַר שְׁנֵיהֶם״ – הֲרֵי כָּאן אֶחָד, ״אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים״ – הֲרֵי כָּאן שְׁנַיִם, וְאֵין בֵּית דִּין שָׁקוּל. מוֹסִיפִין עֲלֵיהֶן עוֹד אֶחָד – הֲרֵי כָּאן שְׁלֹשָׁה.

Rabbi Yonatan says: The first instance of the term “the court” is stated first as part of the primary text of the passage, and it is necessary for conveying the straightforward meaning of the verse. And one does not derive tallies for halakhic matters by counting the first mention of a term. Rabbi Yonatan holds that when a tally is derived from the number of instances a certain word appears in the Torah, the first instance is not included in the tally, as it is necessary to teach the mitzva itself; the tally may be counted only from subsequent mentions. Rather, this is how it is derived: “The cause of both parties shall come before the court,” there is one judge here, and the continuation of the verse: “He whom the court shall condemn” teaches that there are two judges here. And since a court may not be composed of an even number of judges, they must add an additional one to them, so there are three judges here.

נֵימָא בְּדוֹרְשִׁין תְּחִילּוֹת קָמִיפַּלְגִי? דְּמָר סָבַר: דּוֹרְשִׁין תְּחִילּוֹת, וּמַר סָבַר: אֵין דּוֹרְשִׁין תְּחִילּוֹת. לָא, דְּכוּלֵּי עָלְמָא אֵין דּוֹרְשִׁין תְּחִילּוֹת. אָמַר לָךְ רַבִּי יֹאשִׁיָּה: אִם כֵּן, נֵימָא קְרָא ״וְנִקְרַב בַּעַל הַבַּיִת אֶל הַשּׁוֹפֵט״. מַאי ״אֶל הָאֱלֹהִים״? שְׁמַע מִינַּהּ לְמִנְיָינָא.

Let us say that Rabbi Yoshiya and Rabbi Yonatan disagree with regard to whether one derives tallies for halakhic matters from the first mention of a term in the Torah. As one Sage, Rabbi Yoshiya, holds that one derives tallies from the first mention of the term in the Torah, and one Sage, Rabbi Yonatan, holds that one does not derive tallies from the first mention of the term. The Gemara rejects this suggestion: No, actually everyone holds that one does not derive tallies from the first mention of the term, but in this case there is a separate source for the derivation, as Rabbi Yoshiya could have said to you: If it is true that no halakha is derived from the first mention, let the verse say: The owner of the house shall come near to the judge [ hashofet ]. What, then, is the significance of the unique expression: “To the court [ haelohim ]”? Conclude from it that the term elohim was chosen to count toward the tally.

וְרַבִּי יוֹנָתָן, לִישָּׁנָא דְּעָלְמָא נְקַט, כִּדְאָמְרִי אִינָשֵׁי: מַאן דְּאִית לֵיהּ דִּינָא – לִיקְרַב לְגַבֵּי דַּיָּינָא.

The Gemara asks: And how would Rabbi Yonatan respond to this analysis? The Gemara answers: He would say that the verse employed the common language of the world, as people say: One who has a case, a claim against another, should approach the regular judge, the one who generally judges cases and can be referred to by the term elohim . Consequently, no unique halakha can be derived from this first usage.

וְרַבִּי יֹאשִׁיָּה לֵית לֵיהּ בֵּית דִּין נוֹטֶה? וְהָתַנְיָא: רַבִּי אֱלִיעֶזֶר בְּנוֹ שֶׁל רַבִּי יוֹסֵי הַגְּלִילִי אוֹמֵר, מָה תַּלְמוּד לוֹמַר ״לִנְטֹת אַחֲרֵי רַבִּים לְהַטֹּת״? הַתּוֹרָה אָמְרָה: עֲשֵׂה לְךָ בֵּית דִּין נוֹטֶה.

But doesn’t Rabbi Yoshiya accept the principle that a court must be composed of an odd number of judges? And isn’t it taught in a baraita : Rabbi Eliezer, son of Rabbi Yosei HaGelili, says: What is the meaning when the verse states: “To incline after a multitude to pervert justice” (Exodus 23:2)? The meaning is that the Torah is saying to you: Make for yourself a court that is composed of an odd number of judges, that will perforce incline in one direction, so that there will always be a majority that can be followed.

סָבַר לַהּ כְּרַבִּי יְהוּדָה, דְּאָמַר: שִׁבְעִים. דִּתְנַן: סַנְהֶדְרִי גְּדוֹלָה הָיְתָה שֶׁל שִׁבְעִים וְאֶחָד, רַבִּי יְהוּדָה אוֹמֵר: שִׁבְעִים.

The Gemara answers: Rabbi Yoshiya does not accept this halakha but instead holds in accordance with the opinion of Rabbi Yehuda, who says: A Great Sanhedrin is composed of seventy judges. As we learned in the mishna: The Great Sanhedrin was composed of seventy-one judges, and Rabbi Yehuda says: It is composed of seventy judges. Clearly, Rabbi Yehuda does not accept the principle that a court must be composed of an odd number of judges.

אֵימַר דְּשָׁמְעַתְּ לֵיהּ לְרַבִּי יְהוּדָה בְּסַנְהֶדְרִי גְּדוֹלָה, דִּכְתִיבִי קְרָאֵי. בִּשְׁאָר בֵּי דִינָא מִי שָׁמְעַתְּ לֵיהּ?

The Gemara asks: Say that you heard that Rabbi Yehuda said this halakha with regard to the Great Sanhedrin, about which specific verses are written, and he derives from these verses that the Great Sanhedrin must be composed of exactly seventy judges. Have you heard him say with regard to the rest of the courts, those whose composition is not explicitly addressed in the Torah, that these courts can also be composed of an even number of judges?

וְכִי תֵּימָא: לָא שְׁנָא, וְהָתְנַן: סְמִיכַת זְקֵנִים וַעֲרִיפַת עֶגְלָה בִּשְׁלֹשָׁה, דִּבְרֵי רַבִּי שִׁמְעוֹן. רַבִּי יְהוּדָה אוֹמֵר: בַּחֲמִשָּׁה.

And if you would say: There is no difference; Rabbi Yehuda does not differentiate between the Great Sanhedrin and lower courts, but didn’t we learn in the mishna: The laying of hands by the Sages and the breaking of the heifer’s neck are performed in front of a panel of three judges; this is the statement of Rabbi Shimon. Rabbi Yehuda says: These rituals are performed in front of five judges.

וְאָמְרִינַן: מַאי טַעְמָא דְּרַבִּי יְהוּדָה? ״וְסָמְכוּ״ – שְׁנַיִם, ״זִקְנֵי״ – שְׁנַיִם, וְאֵין בֵּית דִּין שָׁקוּל, מוֹסִיפִין עֲלֵיהֶן עוֹד אֶחָד, הֲרֵי כָּאן חֲמִשָּׁה.

And we say with regard to this halakha : What is the reasoning of Rabbi Yehuda? The verse states: “And the Elders of the congregation shall lay their hands upon the head of the bullock” (Leviticus 4:15). The term: “Shall lay their hands,” which is in the plural, indicates that there are two, and the word “Elders,” which is also plural, indicates another two, meaning a total of four. And since a court may not be composed of an even number of judges, we add another one to them, and there are five judges here. Consequently, Rabbi Yehuda does accept the halakha that a court may not be composed of an even number of judges.

דְּרַבִּי יֹאשִׁיָּה עֲדִיפָא מִדְּרַבִּי יְהוּדָה, דְּאִילּוּ רַבִּי יְהוּדָה בְּסַנְהֶדְרִי גְּדוֹלָה הוּא דְּלֵית לֵיהּ, הָא בִּשְׁאָר בֵּי דִינָא אִית לֵיהּ. וְרַבִּי יֹאשִׁיָּה בִּשְׁאָר בֵּי דִינָא נָמֵי לֵית לֵיהּ. וְאֶלָּא הַאי ״לִנְטֹת״ מַאי עָבֵיד לֵיהּ? מוֹקֵים לֵהּ בְּדִינֵי נְפָשׁוֹת.

The Gemara answers: It can be explained that Rabbi Yoshiya holds in accordance with the opinion of Rabbi Yehuda but goes further than he does. This is because Rabbi Yehuda does not accept the principle that a court must be composed of an odd number of judges in connection with a Great Sanhedrin, but with regard to other courts he does accept it. And Rabbi Yoshiya also does not accept it with regard to other courts. The Gemara asks: And what does he do with this verse: “To incline after a multitude to pervert justice”? The Gemara answers: Rabbi Yoshiya interprets it in relation to cases of capital law. In such cases he agrees that the court must be composed of an odd number of judges, in order that it will be possible to exonerate the accused on the basis of a majority of one judge.

אֲבָל בְּדִינֵי מָמוֹנוֹת – לָא? אֶלָּא הָא דִּתְנַן: שְׁנַיִם אוֹמְרִים זַכַּאי וְאֶחָד אוֹמֵר חַיָּיב – זַכַּאי, שְׁנַיִם אוֹמְרִים חַיָּיב וְאֶחָד אוֹמֵר זַכַּאי – חַיָּיב. נֵימָא דְּלָא כְּרַבִּי יֹאשִׁיָּה?

The Gemara asks: But does Rabbi Yoshiya not accept the requirement for an odd number of judges with regard to cases of monetary law? But there is that which we learned in a mishna (29a): If two judges say the defendant is exempt from payment and one says he is liable, he is exempt; if two say he is liable and one says he is exempt, he is liable. Let us say that this mishna is not in accordance with the opinion of Rabbi Yoshiya, as Rabbi Yoshiya does not accept the requirement for an odd number of judges concerning cases of monetary law, and therefore perhaps he holds that the verdict must be agreed upon unanimously by all the judges.

אֲפִילּוּ תֵּימָא רַבִּי יֹאשִׁיָּה, מַיְיתֵי לַהּ בְּקַל וָחוֹמֶר מִדִּינֵי נְפָשׁוֹת: וּמָה דִּינֵי נְפָשׁוֹת דַּחֲמִירִי, אָמַר רַחֲמָנָא ״זִיל בָּתַר רוּבָּא״, דִּינֵי מָמוֹנוֹת לֹא כׇּל שֶׁכֵּן?

The Gemara rejects this possibility: You may even say that the mishna is in accordance with the opinion of Rabbi Yoshiya. Although he does not accept the requirement for an odd number of judges in cases of monetary law, he does allow for a decision on the basis of a majority. He derives this principle based on an a fortiori inference from cases of capital law: If concerning cases of capital law, which are strict, the Merciful One states in the Torah: Follow the majority, and does not require a unanimous ruling, concerning cases of monetary law, which are more lenient, is it not all the more so clear that a majority ruling is sufficient?

תָּנוּ רַבָּנַן: דִּינֵי מָמוֹנוֹת בִּשְׁלֹשָׁה, רַבִּי אוֹמֵר: בַּחֲמִשָּׁה, כְּדֵי שֶׁיִּגָּמֵר הַדִּין בִּשְׁלֹשָׁה. אַטּוּ בִּתְלָתָא מִי לָא גָּמַר דִינָא בִּתְרֵי? הָכִי קָאָמַר: מִפְּנֵי שֶׁגְּמַר דִּין בִּשְׁלֹשָׁה. אַלְמָא קָסָבַר: תְּלָתָא כִּי כְּתִיבִי – בִּגְמַר דִינָא כְּתִיבִי.

§ The Sages taught: Cases concerning monetary law are adjudicated by three judges. Rabbi Yehuda HaNasi says: They are adjudicated by five judges, so that a verdict can be issued with three judges. The Gemara asks: Is that to say that with a court of three judges a verdict cannot be issued by two judges? The Gemara answers: This is what Rabbi Yehuda HaNasi is saying: Cases of monetary law are adjudicated by five judges, due to the fact that a verdict must be issued by three. In other words, according to Rabbi Yehuda HaNasi the judges who form the majority that decides the verdict must themselves be eligible to constitute a court. Evidently, Rabbi Yehuda HaNasi holds that when the requirement for three judges is written in the Torah, it is written with regard to the number of judges necessary to issue the verdict.

מְגַדֵּף בַּהּ רַבִּי אֲבָהוּ: אֶלָּא מֵעַתָּה, תְּהֵא סַנְהֶדְרִי גְּדוֹלָה צְרִיכָה מֵאָה וְאַרְבָּעִים וְאֶחָד, כְּדֵי שֶׁיִּגָּמֵר הַדִּין בְּשִׁבְעִים וְאֶחָד? וּתְהֵא סַנְהֶדְרִי קְטַנָּה צְרִיכָה אַרְבָּעִים וַחֲמִשָּׁה, כְּדֵי שֶׁיִּגָּמֵר הַדִּין בִּשְׁלֹשָׁה וְעֶשְׂרִים?

Rabbi Abbahu would ridicule [ megaddef ] this suggestion. If that is so, then the Great Sanhedrin would need to consist of 141 judges, so that the verdict can be issued by seventy-one, and a lesser Sanhedrin would need to consist of forty-five judges, so that the verdict can be issued by twenty-three. But these assertions contradict the halakha as derived from the verses.

אֶלָּא ״אֶסְפָה לִּי שִׁבְעִים אִישׁ״ אָמַר רַחֲמָנָא, מִשְּׁעַת אֲסִיפָה שִׁבְעִים. ״וְשָׁפְטוּ הָעֵדָה וְהִצִּילוּ הָעֵדָה״ נָמֵי, מִשְּׁעַת שְׁפִיטַת הָעֵדָה. הָכִי נָמֵי: ״וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים״, מִשְּׁעַת קְרִיבָה שְׁלֹשָׁה.

Rather, the Merciful One states: “Gather Me seventy men of the Elders of Israel” (Numbers 11:16), and this means that from the time of gathering, there must be seventy. Likewise, the verse states: “And the congregation shall judge…and the congregation shall save” (Numbers 35:24–25), from which it is derived that cases of capital law are adjudicated by twenty-three judges, and this also means that from the time that the congregation judges there must be twenty-three. Similarly, with regard to a case of monetary law, the verse states: “The owner of the house shall come near to the court” (Exodus 22:7), and this means from the time of coming near to judge the cases there must be three judges. Consequently, there is no requirement that the verdict be decided by a majority who could themselves form a court.

אֶלָּא, הַיְינוּ טַעְמָא דְּרַבִּי: ״אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים״ – תְּרֵי. נֶאֱמַר ״אֱלֹהִים״ לְמַטָּה וְנֶאֱמַר ״אֱלֹהִים״ לְמַעְלָה. מָה לְמַטָּה שְׁנַיִם, אַף לְמַעְלָה שְׁנַיִם. וְאֵין בֵּית דִּין שָׁקוּל – מוֹסִיפִין עֲלֵיהֶם עוֹד אֶחָד. הֲרֵי כָּאן חֲמִשָּׁה.

Therefore, the previous explanation must be rejected. Rather, this is the reasoning of Rabbi Yehuda HaNasi: It is stated in the next verse: “He whom the court shall condemn” (Exodus 22:8) in the plural, which means there must be two judges. Consequently, it is stated: “The court,” in the verse below and it is stated: “The court,” in the verse above. Just as below it is referring to two judges, as the word: “Shall condemn,” is written in the plural, so too above it is referring to two judges, making a total of four. And since a court may not be composed of an even number of judges, they add another one to them, so there are five judges here.