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Sanhedrin 33a

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Babylonian Talmud · folio map

Sanhedrin 33a

Sanhedrin 33a. The full printed text of this folio side — 17 numbered segments, about 437 words — with the classic commentaries printed on the page.

Original text

Segment 1

מִיכָּן שֶׁפּוֹתְחִין בְּדִינֵי נְפָשׁוֹת תְּחִלָּה לִזְכוּת.

From here it is derived that in cases of capital law, the court opens the deliberations by first raising a claim to acquit the accused. This baraita corresponds to the explanation of Abaya and Rava that the court notifies the accused that he has nothing to fear if he is innocent.

Segment 2

דִּינֵי מָמוֹנוֹת מַחֲזִירִין כּוּ׳. וּרְמִינְהוּ: דָּן אֶת הַדִּין, זִיכָּה אֶת הַחַיָּיב, חִיֵּיב אֶת הַזַּכַּאי, טִימֵּא אֶת הַטָּהוֹר, טִיהֵר אֶת הַטָּמֵא – מַה שֶּׁעָשָׂה עָשׂוּי, וִישַׁלֵּם מִבֵּיתוֹ.

§ The mishna teaches that in cases of monetary law, the court brings the accused back to be judged again if new evidence arises, whether with a claim to exempt him or with a claim to find him liable. In cases of capital law, the court brings the accused back to be judged again with a claim to acquit him, but does not bring him back to be judged with a claim to find him liable. And the Gemara raises a contradiction from a mishna ( Bekhorot 28b): If a judge issued a judgment and erred, so that he exempts a liable party or finds an innocent party liable, or if he ruled that a pure item is impure or ruled that an impure item is pure, and by doing so he caused a litigant a monetary loss; what he did is done, i.e., the judgment stands, and the judge must pay damages from his home, i.e., from his personal funds. This indicates that the court does not bring the accused back to be judged again if new evidence arises.

Segment 3

אָמַר רַב יוֹסֵף: לָא קַשְׁיָא, כָּאן בְּמוּמְחֶה, כָּאן בְּשֶׁאֵינוֹ מוּמְחֶה. וּבְמוּמְחֶה מַחְזִירִין? וְהָקָתָנֵי: אִם הָיָה מוּמְחֶה לְבֵית דִּין – פָּטוּר מִלְּשַׁלֵּם!

Rav Yosef says: This is not difficult. The mishna here, which teaches that the court does bring the accused back to be judged again if new evidence arises, is stated with regard to a judge who was an expert, whereas the mishna there in tractate Bekhorot , which teaches that what he did is done, is stated with regard to a judge who was not an expert. The Gemara asks: And does one bring the accused back in the case of a judge who was an expert? But that mishna in tractate Bekhorot teaches: If he was an expert accepted by the court he is exempt from liability to pay. This indicates that the court does not bring the accused back to be judged again if new evidence arises, even if the judge is an expert; otherwise there would be no need to state that the judge is exempt from liability to pay.

Segment 4

אָמַר רַב נַחְמָן: כָּאן שֶׁיֵּשׁ גָּדוֹל הֵימֶנּוּ בְּחָכְמָה וּבְמִנְיָן, כָּאן שֶׁאֵין גָּדוֹל הֵימֶנּוּ בְּחָכְמָה וּבְמִנְיָן.

Rav Naḥman says a different explanation: The mishna here, which teaches that the court does bring the accused back to be judged again if new evidence arises, is stated with regard to a case where there is a court greater than this one in wisdom and number of students that can judge the case again. The mishna there, which teaches that what he did is done, is stated with regard to a case where there is no court greater than his in wisdom and number of students that can judge the case again. If this judge erred, the error will not be corrected.

Segment 5

רַב שֵׁשֶׁת אָמַר: כָּאן שֶׁטָּעָה בִּדְבַר מִשְׁנָה, כָּאן שֶׁטָּעָה בְּשִׁיקּוּל הַדַּעַת. דְּאָמַר רַב שֵׁשֶׁת אָמַר רַב אַסִּי: טָעָה בִּדְבַר מִשְׁנָה – חוֹזֵר, טָעָה בְּשִׁיקּוּל הַדַּעַת – אֵינוֹ חוֹזֵר.

Rav Sheshet says a different explanation: The mishna here, which teaches that the court does bring the accused back to be judged again if new evidence arises, is stated with regard to a case where the judge erred in a matter that appears in the Mishna, i.e., he forgot an explicit mishnaic ruling, in which case the verdict is void. The mishna there, which teaches that what he did is done, is stated with regard to a case where the judge erred in his deliberation. As Rav Sheshet says that Rav Asi says: In the case of a judge who erred in a matter that appears in the Mishna, the decision is revoked, but in the case of a judge who erred in his deliberation, the decision is not revoked.

Segment 6

אֲמַר לֵיהּ רָבִינָא לְרַב אָשֵׁי: אֲפִילּוּ טָעָה בְּרַבִּי חִיָּיא וְרַבִּי אוֹשַׁעְיָא? אֲמַר לֵיהּ: אִין. אֲפִילּוּ בִּדְרַב וּשְׁמוּאֵל? אֲמַר לֵיהּ: אִין. אֲפִילּוּ בְּדִידִי וְדִידָךְ? אֲמַר לֵיהּ: אַטּוּ אֲנַן קָטְלֵי קְנֵי בְּאַגְמָא אֲנַן?

Ravina said to Rav Ashi: Does the category of: Erred in a matter that appears in the Mishna, include even one who erred concerning a statement of Rabbi Ḥiyya and Rabbi Oshaya, who were among the last of the tanna’im ? Rav Ashi said to him: Yes. Ravina asked him: Does it include even one who erred concerning a statement of the first-generation amora’im Rav and Shmuel? Rav Ashi said to him: Yes. Ravina asked him: Does it include even one who erred concerning statements of mine and yours, as we are of the final generation of amora’im ? Rav Ashi said to him: Is that to say that we are reed cutters in the pond? That is, our statements are in this category as well.

Segment 7

הֵיכִי דָּמֵי שִׁיקּוּל הַדַּעַת? אָמַר רַב פָּפָּא: כְּגוֹן תְּרֵי תַּנָּאֵי אוֹ תְּרֵי אָמוֹרָאֵי דִּפְלִיגִי אַהֲדָדֵי, וְלָא אִיתְּמַר הִלְכְתָא לָא כְּמָר וְלָא כְּמָר, וְאִיקְּרִי וַעֲבַד כְּחַד מִינַּיְיהוּ, וְסוּגְיָא דִּשְׁמַעְתָּא אָזְלִי כְּאִידַּךְ – הַיְינוּ שִׁיקּוּל הַדַּעַת.

The Gemara clarifies: What is considered an error in a deliberation? Rav Pappa says: For example, two tanna’im or two amora’im who disagree with each other, and the halakha was not stated in accordance with this Sage or in accordance with that Sage, and it occurred that the judge acted in accordance with one of them, and the discussion of the halakha goes in accordance with the other opinion, i.e., most judges rule in accordance with the opposing opinion; this is an error in a deliberation.

Segment 8

אֵיתִיבֵיהּ רַב הַמְנוּנָא לְרַב שֵׁשֶׁת: מַעֲשֶׂה בְּפָרָה שֶׁל בֵּית מְנַחֵם שֶׁנִּיטְּלָה הָאֵם שֶׁלָּהּ, וְהֶאֱכִילָהּ רַבִּי טַרְפוֹן לִכְלָבִים.

Rav Hamnuna raised an objection to Rav Sheshet from the continuation of the mishna cited earlier ( Bekhorot 28b): There was an incident involving a cow of the household of Menaḥem whose womb was removed, and when Rabbi Tarfon was consulted he ruled that it is an animal with a wound that will cause it to die within twelve months [ tereifa ], which is forbidden for consumption. And based on the ruling of Rabbi Tarfon, the questioner fed it to the dogs.

Segment 9

וּבָא מַעֲשֶׂה לִפְנֵי חֲכָמִים בְּיַבְנֶה, וְהִתִּירוּהָ. שֶׁאָמַר תּוֹדוֹס הָרוֹפֵא: אֵין פָּרָה וַחֲזִירָה יוֹצֵאת מֵאֲלֶכְּסַנְדְּרִיָּא שֶׁל מִצְרַיִם אֶלָּא אִם כֵּן חוֹתְכִין הָאֵם שֶׁלָּהּ, כְּדֵי שֶׁלֹּא תֵּלֵד. אָמַר רַבִּי טַרְפוֹן: הָלְכָה חֲמוֹרְךָ, טַרְפוֹן! אָמַר לוֹ רַבִּי עֲקִיבָא: פָּטוּר אַתָּה, שֶׁכׇּל הַמּוּמְחֶה לָרַבִּים פָּטוּר מִלְּשַׁלֵּם.

The mishna continues: And the incident came before the Sages of the court in Yavne, and they ruled that such an animal is permitted and is not a tereifa . As Theodosius [ Todos ] the doctor said: A cow or pig does not emerge from Alexandria of Egypt unless the residents sever its womb so that it will not give birth in the future. The breeds of cows and pigs in Alexandria were of exceptional quality and the people of Alexandria did not want them reproduced elsewhere. The fact that these animals lived long lives after their wombs were removed proves that the hysterectomy did not render them tereifot . Upon hearing this, Rabbi Tarfon said: Your donkey is gone, Tarfon, as he believed he was required to compensate the owner for the cow that he ruled to be a tereifa . Rabbi Akiva said to him: You are exempt, as any judge accepted as an expert for the public is exempt from liability to pay.

Segment 10

וְאִי אִיתָא, לֵימָא לֵיהּ: טוֹעֶה בִּדְבַר מִשְׁנָה אַתָּה, וְטוֹעֶה בִּדְבַר מִשְׁנָה חוֹזֵר.

Rav Hamnuna states his objection to Rav Sheshet: And if it is so that there is a distinction between the two types of judicial errors, let Rabbi Akiva say to Rabbi Tarfon: You err in a matter that appears in the Mishna, as the ruling that an animal whose womb has been removed is permitted is recorded in a mishna (see Ḥullin 54a), and in the case of one who errs in a matter that appears in the Mishna, the decision is revoked.

Segment 11

חֲדָא וְעוֹד קָאָמַר: חֲדָא, דְּטוֹעֶה בִּדְבַר מִשְׁנָה אַתָּה, וְטוֹעֶה בִּדְבַר מִשְׁנָה חוֹזֵר. וְעוֹד: אִי נָמֵי בְּשִׁיקּוּל הַדַּעַת טָעִיתָ – מוּמְחֶה לָרַבִּים אַתָּה, וְכׇל הַמּוּמְחֶה לָרַבִּים פָּטוּר מִלְּשַׁלֵּם.

The Gemara answers: Rabbi Akiva states one reason and adds another reason. One: As you err in a matter that appears in the Mishna, and in the case of one who errs in a matter that appears in the Mishna, the decision is revoked. Another: Even if you erred in a deliberation, you are a judge accepted as an expert for the public, and any judge accepted as an expert for the public is exempt from liability to pay.

Segment 12

אָמַר רַב נַחְמָן בַּר יִצְחָק לְרָבָא: מַאי קָא מוֹתֵיב רַב הַמְנוּנָא לְרַב שֵׁשֶׁת מִפָּרָה? פָּרָה הֲרֵי הֶאֱכִילָהּ לִכְלָבִים, וְלֵיתָא דְּתֶהְדַּר.

Rav Naḥman bar Yitzḥak said to Rava: What was the objection raised by Rav Hamnuna to Rav Sheshet from the incident of the cow? After all, the owner had already fed the cow to the dogs, and it is not possible to revoke the ruling and judge the case again.

Segment 13

הָכִי קָאָמַר לֵיהּ: אִי אָמְרַתְּ בִּשְׁלָמָא טָעָה בִּדְבַר מִשְׁנָה אֵינוֹ חוֹזֵר, אַלְמָא קָם דִּינָא – הַיְינוּ דְּקָא מְפַחֵיד רַבִּי טַרְפוֹן, וְקָאָמַר לֵיהּ אִיהוּ: מוּמְחֶה לְבֵית דִּין אַתָּה וְאַתָּה פָּטוּר מִלְּשַׁלֵּם. אֶלָּא אִי אָמְרַתְּ טָעָה בִּדְבַר מִשְׁנָה חוֹזֵר, לֵימָא לֵיהּ: כֵּיוָן דְּאִילּוּ הֲוַאי פָּרָה, דִּינָךְ לָאו דִּינָא וְלָא כְּלוּם עֲבַדְתְּ, הַשְׁתָּא נָמֵי לָא כְּלוּם עֲבַדְתְּ.

Rava answered: This is what Rav Hamnuna was saying to Rav Sheshet: Granted, if you say that in the case of a judge who errs in a matter that appears in the Mishna, the decision is not revoked, which evidently indicates that the verdict stands as it is, that is why Rabbi Tarfon feared that he would have to pay, and Rabbi Akiva said to him: You are an expert accepted by the court, and are exempt from liability to pay. But if you say that in the case of a judge who erred in a matter that appears in the Mishna, the decision is revoked, let Rabbi Akiva say to Rabbi Tarfon: Since if the cow were to be here, your verdict is not a verdict and you did nothing, now as well, you did nothing and you are not liable to pay. It was the action of the owner that caused the loss, as he fed the cow to the dogs.

Segment 14

רַב חִסְדָּא אָמַר: כָּאן – שֶׁנָּטַל וְנָתַן בַּיָּד, כָּאן – שֶׁלֹּא נָטַל וְנָתַן בַּיָּד.

Rav Ḥisda says that the contradiction between the mishna here and the mishna in tractate Bekhorot as to whether or not the court brings the accused back to be judged again if new evidence arises can be answered as follows: The mishna there in tractate Bekhorot is stated with regard to a case where a judge took the item in question from one litigant and gave it to the other litigant with his hand. In this case, the judge is liable to pay. The mishna here is stated with regard to a case where a judge of the court did not take the item in question from one litigant and give it to the other litigant with his hand. The court merely issued a ruling, and the litigants executed the verdict on their own. Therefore, the court is not liable to pay, and the judges retry the case.

Segment 15

בִּשְׁלָמָא חִיֵּיב אֶת הַזַּכַּאי, כְּגוֹן שֶׁנָּטַל וְנָתַן בַּיָּד. אֶלָּא זִיכָּה אֶת הַחַיָּיב, הֵיכִי מַשְׁכַּחַתְּ לַהּ? דַּאֲמַר לֵיהּ: ״פָּטוּר אַתָּה״, וְהָא לֹא נָטַל וְנָתַן בַּיָּד! כֵּיוָן דְּאָמַר ״פָּטוּר אַתָּה״, כְּמוֹ שֶׁנָּטַל וְנָתַן בַּיָּד דָּמֵי.

The Gemara asks: Granted, one can explain the clause from the mishna in tractate Bekhorot : He finds an innocent party liable, in a case where the judge took the item in question from the innocent party and gave it to the other litigant with his hand. But how can you find him giving the item from one to another with regard to the clause of: He exempts a liable party? As, the judge said to the litigant only: You are exempt from liability to pay, but the judge did not take the item in question from one litigant and give it to the other litigant with his hand. The Gemara explains: Once he says: You are exempt from liability to pay, it is considered as if he took the item in question from the innocent party and gave it to the other litigant with his hand, as there is no need for any further action.

Segment 16

אֶלָּא מַתְנִיתִין דְּקָתָנֵי: דִּינֵי מָמוֹנוֹת מַחְזִירִין בֵּין לִזְכוּת בֵּין לְחוֹבָה, בִּשְׁלָמָא לִזְכוּת מַשְׁכַּחַתְּ לַהּ, דַּאֲמַר לֵיהּ מֵעִיקָּרָא: ״חַיָּיב אַתָּה״, וְלֹא נָטַל וְלֹא נָתַן בַּיָּד. אֶלָּא לְחוֹבָה הֵיכִי מַשְׁכַּחַתְּ לַהּ? דְּאָמַר לֵיהּ: ״פָּטוּר אַתָּה״? וְהָאָמְרַתְּ: כֵּיוָן דְּאָמַר לֵיהּ ״פָּטוּר אַתָּה״, כְּמוֹ שֶׁנָּטַל וְנָתַן בַּיָּד דָּמֵי!

The Gemara asks: But what of the mishna, which teaches: In cases of monetary law, the court brings the accused back to be judged again if new evidence arises, either with a claim to exempt the accused, or with a claim to find him liable? Granted, you can find the example of: To exempt, where the court says at the outset to one litigant: You are liable to pay, and a judge did not take the item in question from one litigant and give it to the other litigant with his hand, as Rav Ḥisda holds that the verdict is revoked and the court does not pay. But how can you find the example of judging the case again to find him liable? As once the court says to the litigant: You are exempt, the case cannot be judged again. But you said that once a judge says: You are exempt from liability to pay, it is considered as if he took the item in question from the innocent party and gave it to the other litigant with his hand. If so, the court must pay and the judgment will not be revoked.

Segment 17

חֲדָא קָתָנֵי: דִּינֵי מָמוֹנוֹת מַחְזִירִין לִזְכוּת, שֶׁהִיא חוֹבָה. דִּכְוָותַהּ גַּבֵּי נְפָשׁוֹת: מַחְזִירִין לִזְכוּת,

The Gemara answers: The mishna teaches only that one statement, and it should be understood as follows: In cases of monetary law, the court brings the litigant back to be judged again to exempt that litigant, which is to the liability of the other litigant, while in the corresponding situation with regard to cases of capital law, the court brings the accused back to acquit him,

Sanhedrin 33a

Sanhedrin 33a

Rashi

Tosafot

Rabbeinu Chananel

Meiri

Maharsha (Chidushei Halachot)

Maharam

Gilyon HaShas

Ben Yehoyada

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