סנהדרין דף ג ע"א

As it is stated: “You shall have one manner of law” (Vayikra 24:22).^[1]

שנאמר משפט אחד יהיה לכם - Monetary cases are like capital cases: since derishah vachakirah is written for capital cases, as it says (Devarim 13), “and you shall inquire and investigate,” the same applies to monetary cases.

Then why did they say that in monetary cases we do not require derishah vachakirah?^[2]

So as not to lock the door in the face of borrowers.

שלא תנעול דלת - That people will refrain from lending, fearing that the borrower will deny it, the witnesses will slip and their testimony will not match, and he will lose; and here too [if experts were required], lest he not find expert judges^[3] to compel [the borrower] to come to court.

But if so, if [lay judges] erred, they should not have to pay!^[4]

אלא מעתה טעו - Laymen in monetary cases should not pay, for since they come down [to judge] with the Rabbis’ authorization they are like experts; and any judge who is an expert for the court is exempt from paying if he errs, as below in [perek] Echad Dinei Mamonos (33a) — implying that one who is not an expert is liable.

All the more so you would be locking the door in the face of borrowers!

כל שכן שאתה נועל דלת - For [the lender] thinks: perhaps the court will err and exempt [the borrower], and I will lose.

If so,^[5] [the Mishnah] teaches two rules: monetary cases with three laymen; theft and injury cases with three experts.

אי הכי - That for admissions and loans we need three [only to keep the door open] — why then did Rabbi Abahu need to explain our Mishnah as teaching “which are they”?

תרתי קתני - It could say: monetary cases, namely admissions and loans, with any three; and theft and injury with three experts; and because they differ in their laws, it did not include them in a single rule.

And furthermore, why do I need “three” [stated] twice?

ועוד - If it teaches one rule, why do I need to teach “three” twice? It should have taught: monetary cases, which are theft and injury, with three.

Rather, Rava said: It teaches two rules, because of Rabbi Chanina’s teaching.

תרתי קתני - Certainly three are needed, for the “mixing of passages”^[6] is written here; but laymen suffice, because of Rabbi Chanina’s [reasoning]. And this is what it means: monetary cases, namely admissions and loans, with three laymen; and theft and injury with three experts.

Rav Acha the son of Rav Ika said: By Torah law even one [judge] is valid,

מדאורייתא חד נמי כשר - In admissions and loans, for it is written “you shall judge” in the singular, and there is no mixing of passages here; and the Mishnah certainly teaches two rules, as we said, but three for admissions and loans is not Torah law, only rabbinic.

as it is stated: “In righteousness shall you judge your fellow” (Vayikra 19:15).

Rather, [three are needed] because of the corner-sitters.

גזירה משום יושבי קרנות - Merchants who are not versed in the nature of the laws, and would acquit the guilty and convict the innocent.

But among three, are there not corner-sitters too?

It is impossible that there will not be one among them who has learned.

דגמיר - Who has heard from the Sages and from judges the laws of judging a loan.

But if so, if they erred they should not have to pay!

טעו לא ישלמו - For they come down [to judge] with authorization, even by Torah law.

All the more so, since the corner-sitters are many!

כל שכן דנפישי יושבי קרנות - For they would not care to learn.

What is the difference between Rava and Rav Acha the son of Rav Ika?

The difference between them is what Shmuel said: “Two who judged — their judgment is a judgment, except that they are called an impudent court.”

בית דין חצוף - For they transgressed the enactment of the Sages.

Rava does not hold of Shmuel’s ruling; Rav Acha the son of Rav Ika does hold of Shmuel’s ruling.^[7]

לרבא - Who says that by Torah law we need three, does not hold of Shmuel, who says their judgment is a judgment.

“Damages and half-damages” etc.^[8]

Damages — that is the same as injuries!

היינו נזק היינו חבלות - What does it call “damages” and what does it call “injuries”? Damages is one of the five items of injury payment; let it teach “injuries” and it would not need “damages.”

Since it wanted to teach half-damages, it also taught full damages.

Half-damages too — that is the same as injuries!

חצי נזק נמי היינו חבלות - For a tam ox that injured pays only half-damages, and since it taught “injuries,” half-damages is included.

It taught monetary compensation, and it also teaches a fine.^[9]

חבלות ממונא הוא דאפחתיה לדמי' - [Injury payment is monetary compensation, for he reduced the victim’s value;] half-damages is a fine, for ordinary oxen do not gore, and the owners had no need to guard it as long as it was not forewarned, and he should not have had to pay anything; rather it is a fine that the Merciful One imposed on him, so that people will be more careful in guarding oxen.

That works for the one who says “half-damages is a fine,” but for the one who says “half-damages is monetary compensation,” what is there to say?

פלגא נזקא ממונא - In perek Arba’ah Avos (Bava Kamma 15a) they dispute this: [this view] holds that ordinary oxen are gorers, and by law he should pay all of it, for he should have guarded it, and it is the Merciful One who spared him.

Rather, since it wanted to teach double payment and fourfold and fivefold payment,^[10] which [are beyond] money … (continued on the next amud)

Tosfos

שנאמר משפט אחד וגו' - And if you ask: why is the verse needed? The main [source] of derishah vachakirah is written about zomemim witnesses in Parashas Shoftim, for both monetary and capital cases. One can answer: nevertheless we would not have required derishah vachakirah in other monetary cases, only with zomemim witnesses, were it not written “one manner of law.”

שלא תנעול דלת בפני לווין כו' - Theft and injury, a wife’s kesubah, inheritances and gifts — in all these too we do not require derishah vachakirah, so that you shut the door on robbers. And if you ask: by this reasoning, let us not require experts for theft and injury, as for admissions and loans? One can say that regarding experts this concern does not apply in the same way: over a small worry a person refrains from lending to his fellow if he will not find judges ready to collect his debt, but in theft and injury the robber knows that the victim will take the trouble to seek out experts until he finds [them] to judge the robber. Alternatively, theft and injury too require derishah vachakirah, and we exclude only admissions and loans. And as for what it establishes at the start of [perek] Echad Dinei Mamonos (32b), that the Mishnah requiring derishah vachakirah refers to cases of fines — not specifically cases of fines, for theft and injury are also called fines, as we find below (13b) regarding “had it not been for him, the laws of fines would have been abolished,” which refers to all the cases that require three experts. However, a wife’s kesubah, inheritances, gifts and damage of ox to ox fall in the category of admissions and loans, as do all those concluded in perek HaChovel (Bava Kamma 84b), where we act as [the Sages’] agents and collect them in Bavel without requiring experts. And if you ask: we find in many places that they judged theft and injury in Bavel — in the second perek of Bava Kamma (21a), regarding the man who built a mansion on the ruins belonging to orphans, and Chanan the Wicked (ibid. 37a), who struck his fellow, and so in many places? One can say that in all those cases they may have pressed one another, by the victim seizing [property], or by his saying “set me a time for judgment in Eretz Yisrael,” as found at the end of the first perek of Bava Kamma (15a). And some explain [that the limitation is] specifically theft that comes about through injury, as when two quarrel and strike each other until one overpowers and robs the other, for such a case is uncommon and we do not act as their agents. And if you ask: how did they judge cases of theft, and in [perek] Eizehu Neshech (Bava Metzia 61b) how did they judge cases of interest? We say at the start of [perek] HaGozel Kamma (Bava Kamma 94b) that from robbers and lenders at interest who returned [what they took] we do not accept it! One can say: we say there that this Mishnah was taught in the days of Rebbi, and Rabbeinu Tam explains: specifically in his days, not before or after, because of the incident there; and that is why it challenges there not from several Mishnayos but only from beraisos that Rebbi taught to Rabbi Chiya.

אלא מעתה טעו לא ישלמו - The Kuntres^[11] explains: since they act with authorization, the non-expert is like an expert. But the wording “all the more so you lock…” does not fit this, for then it should not have said “all the more so,” but “if so, you [lock]…”. Rather, the wording “all the more so” implies that the challenge is on the strength of locking the door, and this is the meaning: since you are concerned about locking the door, we ought to say that if they err they do not pay, for if you obligate them to pay, they will not agree to step in and judge. And if you ask: what is the difficulty? He is not liable to pay unless he took and gave with his own hand, as stated in Echad Dinei Mamonos (33a). One can say that the challenge is according to the one who holds him liable even without having taken and given.

ועוד שלשה שלשה למה לי - There are places where [the Gemara] infers in this way, and places where it does not.

ומדאורייתא חד נמי כשר - The Kuntres explains that he holds there is no mixing of passages here. But this is difficult: if so, why is “in righteousness shall you judge” needed? Therefore it appears that he says this even according to the one who holds of the mixing of passages.

אי אפשר דלית בהו חד דגמיר - For one who has not learned is disqualified from judging, as is evident in [perek] Zeh Borer (23a), where we learned: “this one disqualifies the other’s judge,” and the Gemara asks: can he simply disqualify judges? And it answers: [it refers] to the courts of Syria, and the Kuntres explains there that they are corner-sitters. And although the Rabbis dispute and say “When? When he brings proof against them that they are relatives or disqualified,” implying that otherwise he cannot disqualify — that applies only to courts that were appointed to be judges.

כ"ש דנפישי יושבי קרנות - Here too the challenge is on this basis: since you are concerned about corner-sitters, we ought to say that if they err they do not pay, so that those who have learned will not keep away, and then it is impossible that there will not be one who has learned. And it answers: all the more so, since they are many — therefore they pay, so that they will learn monetary law and not err, lest they become liable to pay.

לרבא לית ליה דשמואל - The Behag^[12] rules like Shmuel, although Rava disagrees with him, because Rav Nachman stands with him below (5a). And as for what it says in the second perek of Kesubos (22a), regarding three who sat to authenticate a document and one of them died — “but perhaps the Rabbis of Rav Ashi’s academy hold like Shmuel,” implying that the halachah is not like Shmuel — this is the meaning: they hold like Shmuel’s general view also for authentication, and in this the halachah is not like them; for even Rav Nachman, who stands with Shmuel that two who judged — their judgment is a judgment, agrees that authenticating documents requires three, as stated in Chezkas HaBatim (Bava Basra 40a). And likewise what it says in Zeh Borer (30a) regarding a written admission — “but perhaps the Rabbis of Rav Ashi’s academy hold like Shmuel” — there too this is the meaning: they hold like Shmuel’s general view also for a written admission, and wrote it on an admission made before two without a kinyan; and in this the halachah is not like him, as it says there: “before two, if they made a kinyan from him, they write it; and before three they write it even if they did not make a kinyan,” and as it explains there, that they fix a place, and send for and summon him.

נזק היינו חבלות - It does not mean an ox that damaged an ox, for it is stated in HaChovel (Bava Kamma 84b) that we collect that in Bavel without requiring experts; rather, an ox that damaged a person. And what it says, “because it wanted to teach half-damages,” is not like Rabbi Akiva, who says (ibid. 33a): “even a tam that injured a person pays full damages from the excess.” However, it appears that it refers to every case, even an ox that damaged an ox, for it concludes in HaChovel (ibid. 84b) that what we collect in Bavel for ox-to-ox damage is specifically damage of tooth and foot, which are forewarned from the start; but regarding damage of the horn, we say there that there is no forewarning in Bavel.

Notes

1. 1. Rabbi Chanina (2b) holds that by Torah law monetary cases, like capital cases, require derishah vachakirah; this pasuk, which gives one law to both, is his source.
2. 2. Derishah vachakirah – the formal cross-examination of witnesses: the seven chakiros on time and place, and the bedikos on details. Where the witnesses contradict each other, the testimony is void. The Rabbis waived this in monetary cases.
3. 3. Mumchin – expert judges ordained with semichah, handed down from Moshe; hedyotos are lay judges without it. Theft, injury and fines require mumchin.
4. 4. A judge who errs in a monetary case is exempt if he is a recognized expert, but a non-expert must pay (33a). Since laymen judge with the Rabbis’ leave, the question is why they should not count as experts.
5. 5. On 2b Rabbi Abahu read the Mishnah as one rule: monetary cases with three — and which are they? Theft and injury. If loans need three only to keep the door open, the Mishnah can simply be read as two rules.
6. 6. Eruv parshiyos – the view (3b) that the passage of the guardians (Shemos 22:6–8), which says “Elohim” (judges) three times, also covers loans and admissions; on this view three judges are required by Torah law even for loans.
7. 7. For Rava three judges are Torah law, so a ruling of two is void; for Rav Acha one judge suffices by Torah law and three is only rabbinic, so a ruling of two stands, though the court is called “impudent.”
8. 8. The Mishnah (2a): damages, half-damages, double payment and fourfold and fivefold payment – with three [expert judges]. Full damages are paid by a person who injures and by the owner of a mu’ad (forewarned) ox; half-damages by the owner of a tam ox that gored.
9. 9. Mamon is compensation for an actual loss; knas, a fine, is a payment fixed by the Torah and not measured by the loss. A fine is judged only by mumchin and is not paid on one’s own admission.
10. 10. Kefel – a thief pays double (Shemos 22:3); arba’ah vachamishah – one who steals a sheep or an ox and slaughters or sells it pays fourfold or fivefold (Shemos 21:37). Both are fines.
11. 11. “The Kuntres” – Tosfos’s name for Rashi’s commentary.
12. 12. Behag – the Halachos Gedolos, a halachic code from the period of the Geonim.