Sanhedrin 33a (לג.) — the Talmud in English

From here

the Sages learned that

in capital cases, one begins with grounds for acquittal.

And it is evident that this is how one opens with grounds for acquittal, in accordance with the words of Abaye and Rava, who address the person liable to conviction and present to him the side by which he could be acquitted, had he not sinned.

We learned in the Mishna:

“In monetary cases, the verdict may be reconsidered,” etc.

And they raised a contradiction

to this from what we learned in the Mishna in tractate Bekhorot [28b]:

As we learned:

A judge who

judged a case

and erred in the ruling, for example, if he erred in monetary cases, and

acquitted one who was liable,

or

found one who was acquitted liable.

And likewise, a Sage whom people came to ask about matters of ritual purity, who erred in his ruling and

declared pure that which was impure,

or

declared impure that which was pure,

and his ruling caused a financial loss—if he rendered the pure item impure by his own action after ruling that it was impure, or if he mixed the impure item with the pure item after mistakenly ruling that the impure item was pure, and the pure item became impure through contact with the impure one—

what he did remains done, and he shall pay

the judge to the person who suffered the loss

from his own pocket!

And it is evident that the judgment is not reconsidered in monetary cases; rather, what he did remains done, and the judge must pay from his own pocket.

And the Gemara brings several answers from the amoraim:

Rav Yosef said: It is not difficult:

Here,

our Mishna is speaking

of an expert

who erred. He may reconsider the judgment and take the money from the person who won the case, and the winner cannot claim that the judge should act in accordance with his original opinion, because his second opinion is the mistaken one.

Here,

the Mishna in tractate Bekhorot is speaking

of one who is not an expert,

for if he comes to reconsider the judgment, the winner can say that the judge’s original opinion was correct and that the reconsideration is the error.

And the Gemara wonders:

But

if so,

in the case of an expert, the judgment is reconsidered

as well?

But it was taught: If the judge was

an

expert appointed by the court—

he is exempt from payment!

And it is evident that the expert’s original ruling remains in force and the judgment is not reconsidered. For if the judgment is reconsidered and the winner returns the money to his opponent, there would be no need to exempt the judge from payment on account of his expertise.

Rav Naḥman said: Here,

the case in which an expert’s judgment is reconsidered is where

there is someone greater than he in wisdom and in number,

for the greater scholar has the power to annul this judge’s ruling and reconsider it.

Here,

the case in which we learned that if the judge was an expert appointed for the public he is exempt from payment is where

there is no

one greater than he in wisdom and in number,

and therefore the judgment remains as he ruled.

Rav Sheshet said: Here—

where the judge erred

in

a matter stated in the Mishna,

for then this is not a ruling at all, but merely an error; therefore, the judgment is reconsidered.

Here—

where he erred in judgment.

For Rav Sheshet said that Rav Asi said: If he erred with regard to a matter stated in the Mishna—

the judgment is reconsidered. If he erred in judgment—

the judgment is not reconsidered.

Ravina said to Rav Ashi:

Is “he erred with regard to a matter stated in the Mishna” specifically referring to the Mishnayot arranged by Rabbi, since all the members of the academy were present before him and clarified them, and therefore one who errs in them has not issued a valid ruling; or

even if he erred in

the words of the baraitot edited by

Rabbi Ḥiyya and Rabbi Oshaya,

despite the fact that they were less well known, is the judgment nevertheless reconsidered?

He said to him: Yes.

Indeed, even one who errs with regard to a matter found in those baraitot is one who “errs with regard to a matter stated in the Mishna.”

Ravina said to Rav Ashi:

Even

if his error was

in a ruling of Rav and Shmuel,

in matters they stated on the basis of their own reasoning, which are not a Mishna but merely an argument?

He said to him: Yes.

Ravina said to Rav Ashi:

Even

if he erred

in a ruling of ours,

in something that I or you said on the basis of reasoning?

He said to him: What,

are

we merely cutters of reeds in a marsh,

cutters of reeds in an open field,

are we?

The point is that once I told you that even one who errs in the words of amoraim such as Rav and Shmuel is one who errs with regard to a matter stated in the Mishna, then one who errs in our words is no different from one who errs in their words, and the judgment is reconsidered.

And now the Gemara discusses:

What are the circumstances of an error in judgment?

Rav Pappa said: For example, there are two tannaim or two amoraim who disagree with one another, and no

ruling of

halakha

was stated concerning the matter

neither in accordance with this one nor in accordance with that one. And it happened that he acted in accordance with one of them,

and the judge happened to rule in accordance with the opinion of one of the disputants,

but

the

discussion of the matter

—the majority of the judges studying this discussion—

follow the other,

and hold in accordance with the opinion of the second disputant—

that is

an error in

judgment.

Rav Hamnuna raised an objection to Rav Sheshet,

who maintains that if one errs with regard to a matter stated in the Mishna, the judgment is reconsidered, from what we learned in the Mishna in tractate Bekhorot [28b]:

There was an incident involving a cow

(belonging to the house of Menaḥem) whose womb

had been removed

from it.

And they asked Rabbi Tarfon what its status was, whether it had thereby become a tereifa or not, and he ruled that it was a tereifa, because he reasoned that it could not continue to live for twelve months after its womb had been cut out.

And Rabbi Tarfon fed it to the dogs.

That is, because of his ruling that it was a tereifa, its owners fed it to the dogs.

And the case came before the Sages in Yavne, and they permitted it,

because

Todוס the physician said: No cow or sow leaves Alexandria in Egypt unless its womb is cut out, so that it will not give birth

elsewhere. The Egyptian cattle were superior and were sold at high prices to other countries, and the Egyptians did not want these cattle outside their land, but only in their own country. It is therefore evident that the animal lives even after its womb is removed and is not a tereifa.

Rabbi Tarfon said: The halakha requires that your donkey be sold, Tarfon!

Rabbi Tarfon reasoned that he was required to pay for the damage he had caused through his mistaken ruling, and to sell his donkey for that purpose.

Rabbi Akiva said to him: You are exempt, because anyone who is an expert appointed for the public,

who erred in his ruling,

is exempt from payment.

And Rav Hamnuna proves from here to Rav Sheshet:

But if it is so,

if what you said is correct—that one who errs with regard to a matter stated in the Mishna may reconsider the judgment—

let him say to him,

let Rabbi Akiva say to Rabbi Tarfon:

You have erred with regard to a matter stated in the Mishna, and one who errs with regard to a matter stated in the Mishna may reconsider the judgment!

And Rav Sheshet answers: Indeed, Rabbi Akiva said this to him, but

he said, “One reason, and furthermore.”

One reason:

one reason is

that you have erred with regard to a matter stated in the Mishna, and one who errs with regard to a matter stated in the Mishna may reconsider the judgment.

And furthermore, even if you erred in judgment—

you are an expert appointed for the public, and anyone who is an expert appointed for the public is exempt from payment.

Rav Naḥman bar Yitzḥak said to Rava: What is Rav Hamnuna raising as an objection to Rav Sheshet from the case of the cow?

The cow had already been fed to the dogs, and there is no possibility of reconsidering its case,

as it no longer exists, and it is impossible to reconsider its judgment!

And Rava answered him:

This is what he said to him: Granted, if you say that one who errs with regard to a matter stated in the Mishna may not reconsider the judgment—

it follows that “the judgment stands,”

that the judgment remains valid in every respect, and even if the cow had been before us, your ruling would have remained in force and you would have had no possibility of declaring it fit, because one who errs with regard to a matter stated in the Mishna may not reconsider the judgment; therefore, the judge must pay from his own pocket—

that is why Rabbi Tarfon was frightened,

because he would have to pay.

And he said to him,

Rabbi Akiva said to Rabbi Tarfon:

You are an expert appointed by the court, and you are exempt from payment.

But if you say

as you maintain, that

one who errs with regard to a matter stated in the Mishna may reconsider the judgment,

the difficulty is:

Let him say to him: Since, if the cow had been present,

if the cow were still in existence,

your judgment would not be a judgment, and you would have done nothing,

as this mistaken ruling is not considered a ruling at all,

now too—

you have done nothing.

Even now, when it has already been fed to the dogs, you are not liable, since it was not fed on the basis of your judicial ruling, but because of your error, which is not a judicial ruling. For, as stated, before it was fed, the judgment could have been reconsidered, since it was not a judgment but merely an error.

And now the Gemara returns to resolve the contradiction between our Mishna and the Mishna in Bekhorot:

Rav Ḥisda said: Here,

the Mishna in Bekhorot is speaking of a case in which

the judge took

the money from one party

and placed it in the hands of

the other. Since he performed an act with his hands, what he did remains done, and he must pay for it from his own pocket.

Here,

our Mishna is speaking of a case

in which he did not take and place the money in anyone’s hands,

but merely ruled that so-and-so must pay so-and-so; therefore, the judgment is reconsidered, and the winner himself returns the money to the person from whom it was taken.

And the Gemara discusses:

Granted, with regard to “he found one who was acquitted liable,”

it is fitting to establish this as a case

in which he took and placed the money in the hands of the other party.

But with regard to “he acquitted one who was liable,” what are the circumstances?

Where can you find a situation in which the judge performed an act with his hands, so that you would obligate him to pay for it!?

The Gemara explains:

He said to him,

to the defendant,

“You are exempt”

from payment.

The Gemara wonders:

But he did not take and place the money in anyone’s hands!—

The Gemara explains:

Since he said to him, “You are exempt,”

and thereby enabled the defendant to retain the plaintiff’s money in his possession,

it is considered as though he took and placed it in the other’s hands.

The Gemara wonders:

But as for our Mishna, which teaches: “In monetary cases, the verdict may be reconsidered, both for acquittal and for conviction”—

Granted,

the verdict may be reconsidered

for acquittal—

you can find this

in a case

where he initially said to him, “You are liable,” and he neither took nor placed the money in anyone’s hands,

and therefore he can reconsider the judgment in favor of the defendant and exempt him.

But

reconsidering the judgment from acquittal

to conviction—what are the circumstances?

In what manner do we find that he can reconsider the judgment? For it must be a case

where he said to him,

the defendant, initially,

“You are exempt,”

and afterward he told him that he was liable.

But you said: Since he said to him, “You are exempt,” it is considered as though he took and placed the money in the other’s hands!

If so, how can the judgment be reconsidered!?

The Gemara answers: Indeed, the judgment may not be reconsidered from acquittal to conviction, because once he acquitted him, it is as though he took and placed the money in the other’s hands, and the judge must pay from his own pocket. And our Mishna

teaches one matter,

the Mishna stated only one rule, as follows:

“In monetary cases, the verdict may be reconsidered in favor of ‘the acquittal that is a liability.’”

That is, if he initially found him liable but did not take or transfer the money, the judgment may be reconsidered in favor of the defendant, which is a liability for the plaintiff.

And once we have established that in monetary cases the judgment is reconsidered only from liability to acquittal [which is an acquittal for one party and a liability for the other], and we likewise said that in capital cases the judgment is reconsidered only from liability to acquittal and not from acquittal to liability—and the Mishna distinguishes between monetary cases and capital cases—it necessarily follows that

similarly,

in an analogous manner,

with regard to

capital

cases,

we must interpret the words of the Mishna,