Torah Community Connections

Week 112 - Monday - 14 January 2002

SANHEDRIN: CHAPTER 3: MISHNAH 8

Whenever he brings proof, it may invalidate the judgment. If they said to him, "Bring all your proofs within thirty days," and he found within thirty days, he invalidates; after thirty days, he does not invalidate. Rabban Shimon ben Gamliel said, what shall he do who did not find within thirty days, but only thereafter? If they said to him, "Bring witnesses," and he said, "I have no witnesses"; if they said, "Bring a proof," and he said, "I have no proof," and after some time he brought a proof, or found witnesses - then this changes nothing. Rabban Shimon ben Gamliel said, what shall he do if he did not know that he has witnesses, and found witnesses? He did not know that he has proof, and he found proof? They said to him, "Bring witnesses," he said, "I have no witnesses"; "Bring proof," and he said, "I have no proof"; he saw that he would lose, so he said, "Come close so-and-so and so-and-so and testify for me," or he brought forth a proof from his afunda - then this changes nothing.

Kehati

After the previous mishnah taught how the Court concludes the lawsuit, this mishnah discusses the right of the litigant who has been found liable to bring proof to invalidate the verdict.

Whenever he brings proof - even after the conclusion of the lawsuit, if the litigant who was judged liable found witnesses or sufficient proof that he is not liable, it may invalidate the judgment - this cancels the verdict, and the Court reconvenes to discuss his case. If they - the Court, said to him - when it announced the verdict to him, "Bring all your proofs that you have within thirty days" - i.e., it established for him a time limit within which to bring witnesses or proof and he found within thirty days, he invalidates - the verdict; if, however, he brought proof after thirty days, he does not invalidate - the verdict, for he brought his proof after the period set by the Court, and his right of appeal has expired.

Rabban Shimon hen Gamliel said, What shall he do who did not find within thirty days, but only thereafter - should he lose his right because he found only after the time set for him by the Court? Rather, even if he brought witnesses or proof after that time, his right should not expire, and he may invalidate the verdict. This is the halakhah. If they - the Court, said to him - before the conclusion of the case, "Bring witnesses" - to confirm your arguments, and he - the litigant, said, "I have no witnesses" - except those which I brought before you; or if they said - to him, "Bring a proof” - such as a writ, or similar proof, and he said, "I have no proof” - and the Court concluded the case in accordance with his statement, and after some time he brought a proof, or found witnesses - since the Court asked and he clearly replied that he has no proof or witnesses, then this -that he brought proof or witnesses after the verdict - changes nothing - one suspects these witnesses are false or the proof is forged.

Rabban Shimon ben Gamliel said, What shall he do if he did not know - at the time that the Court asked him, that he has witnesses - and therefore replied that he has none, and - afterwards - found witnesses - in his favor? Or if he did not know that he has proof, and he found proof? I.e., Rabban Shimon ben Gamliel disagrees even in this case with the First Tanna, and holds that he may invalidate the verdict. The halakhah in this case, however, is not in accordance with Rabban Shimon ben Gamliel. They - the judges, said to him - the litigant, prior to the conclusion of the case, "Bring witnesses" - to confirm your words, he - the litigant, said, "I have no witnesses"; or they said to him, "Bring proof” - sufficient proof for your claims, and he said, "I have no proof”- only that which I brought before you"; he saw that he would lose - the Court was about to announce to him that he is liable, so he said - to two people who were present there, "Come close so-and-so and so-and-so and testify for me" - and they testified in his behalf, or he brought forth a proof from his afunda - from his girdle, i.e., he took out from the pocket of his girdle something which serves as proof for his claims, then this changes nothing - since he had witnesses or he had a proof, and he lied and said that he had none, it is obvious that these are false witnesses or that the proof is forged, and even Rabban Shimon ben Gamliel agrees in such a case.

SANHEDRIN: CHAPTER 4: MISHNAH 1

Monetary and capital cases alike require inquiry and examination, as it is written, "You shall have one manner of law" (Lev. 24:22). What is the difference between monetary and capital cases? Monetary suits by three, and capital cases by twenty-three. Monetary suits, they open either for non-liability or for liability; but capital cases, they open for acquittal, and not for conviction. Monetary suits are decided by one, whether for non-liability or for liability; but capital cases are decided by one for acquittal, and by two for conviction. Monetary suits return, whether for non-liability or for liability; capital cases return for acquittal, and do not return for conviction. Monetary suits - all argue non-liability and liability; capital cases - all argue acquittal, and not all argue conviction. Monetary suits - the person who argues liability argues non-liability, and the person who argues non-liability argues liability; capital cases - the person who argues conviction argues acquittal, but the person who argues acquittal may not return and argue conviction. Monetary suits are judged during the day and are completed during the night; capital cases are judged during the day and are completed during the day. Monetary suits are completed on the same day, whether for non-liability or for liability; capital cases are completed on the same day for acquittal, and on the following day for conviction. Therefore they do not judge, neither on the eve of a Shabbat nor on the eve of a Festival.

Kehati

This mishnah lists the differences between monetary and capital litigation.

Monetary and capital cases alike require inquiry and examination - the Court is obliged, by Torah law, to examine the witnesses, as will be explained in 5:1, below, as it is written, "You shall have one manner of law" - and it is written, regarding capital cases, "Then shall you inquire and make search" (Deut. 13:15). The Sages decreed, however, that there should be inquiry and examination in capital cases but not in monetary ones (see 3:6), 'so that the door would not be shut before borrowers' (Gemara), for such a stringency of inquiry and examination in monetary claims might inhibit lending.

What is the difference between monetary and capital cases? I.e., even though Torah law equates them in inquiry and examination, as it says, "You shall have one manner of law," there are nevertheless differences in arguing the defendant's case. In capital cases we make a special effort to acquit the defendant, in order to save him from the death penalty, as it is written, "And the congregation shall deliver the manslayer" (Num. 35:25). This does not apply in monetary suits, however, because if one litigant is favored his opponent is disadvantaged (Tosefot; Hameiri). The following are the differences between the two types of lawsuit: Monetary suits by three, and capital cases by twenty-three – as was explained in the first chapter (mishnayot 1, 4, 6). In Monetary suits, they - the judges, open - the legal discussion - either for non-liability - matters to the advantage of the defendant, or for liability - matters to his disadvantage for the non-liability of the defendant is the liability of the plaintiff, as was explained above; but in capital cases, they open - only with matters - for - the defendant's - acquittal, and not for conviction - for the Torah, in the section about the sotah, declares that the priest should begin with matters of acquittal: "If no man has lain with you, and if you have not gone aside to uncleanness, being under your husband, be you free from this water of bitterness that causes the curse" (see Num. 5:19).

Monetary suits are decided by - a majority of - one - vote, whether for non-liability or for liability - e.g., if two say, "Liable," and one says, "Not liable," then he is liable; but capital cases are decided by one for acquittal - if twelve find him not guilty and eleven find him guilty, then he is not guilty, and by two for conviction - a decision to convict may be made only if there are at least two more judges finding "guilty" than those finding "not guilty," as was explained in 1:6, above.

Monetary suits return - if after the completion of the case it becomes clear to the Court that they erred, they return the lawsuit, i.e., they cancel the verdict and the Court re-opens the proceedings, whether for non-liability or for liability; capital cases return for acquittal, and do not return for conviction - the Gemara quotes a baraita: "If a defendant leaves the Court liable, and somebody said, 'I can argue in his favor,' whence do we learn that we return him? From the passage, 'and the innocent slay you not' (Ex. 23:7) - 'innocent' means, innocent from sin, even though he was judged guilty (Rashi). But if one leaves the Court not liable, and somebody said, 'I can argue against him,' whence do we learn that we do not return him? From the passage, 'and the righteous slay you not' (ibid.) - 'righteous' means he was declared righteous in the case, even though he is not innocent."

Monetary suits - all argue non-liability and liability - even one of the pupils sitting in the rows before the judges; capital cases, - all argue acquittal, and not all argue conviction - only the judges may do so; and if one of the pupils says, "I can argue to his disadvantage," he is not heeded. Monetary suits - the person who argues liability - the judge who initially brought proofs for the liability of the defendant, argues non-liability - is permitted to retract and argue in his favor, and vice versa: and the person who argues non-liability argues liability; capital cases - the person who argues conviction - the judge who argued against the defendant, argues acquittal - may retract and argue in his favor, but the person who argues acquittal may not return and argue conviction - the Gemara, explains: this applies to the time of the discussion, for if you tell him he may not retract, he searches for proofs to support his position, and perhaps might find support to argue for acquittal, but after the verdict, when he has already reviewed all aspects, and it seems to him that he has erred, then he may retract and argue for conviction (Sanh. 34a; Rashi on the mishnah).

Monetary suits are judged - the lawsuit begins - during the day and are completed - the Court is permitted to complete even - during the night; capital cases are judged during the day and are completed during the day - for the verdict in a capital case may be reached only during the day. Monetary suits are - may be - completed - i.e., the verdict is delivered, on the same day - in which they are begun, whether for non-liability or for liability; capital cases are completed on the same day for acquittal - a verdict of "Not guilty" is delivered on the same day, and - but - on the following day for conviction - if the Court is about to find him guilty, the case is not completed the same day, but rather is adjourned overnight, perhaps something will be found in his favor.

Therefore they do not judge, neither on the eve of a Shabbat nor on the eve of a Festival - For if he is found guilty, then execution, being delayed to the following day, will have to take place on Shabbat or on the Festival. They will not be able to put him to death on these days, for the execution of a Court-imposed death penalty does not override Shabbat or Festival; nor may the death sentence be postponed until after Shabbat or Festival, because of the prohibition of inui din (see 11:4, below). Nor may he be put to death on Motzei Shabbat (the night following the conclusion of the Shabbat), or the night following the conclusion of the Festival, for it is written, "and hang them up unto the Lord in the face of the sun" (Num. 25:4), i.e., execution must be carried out in the daytime. The Gemara explains that the Court may not begin the case on the eve of the Shabbat and postpone the verdict until Sunday, lest the judges forget their arguments and reasons in the meantime, even though the secretaries of the judges record the words for acquittal and conviction (see Sanh. 35a).

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives