Sanhedrin 33a — the Talmud in English

Numbers 5 ]: “If no man has lain with you, be immune ! And if you have not gone astray,” and so on. From here

the Sages learned:

that one begins capital cases first with grounds for acquittal.

And it is proven that this is the opening with grounds for acquittal, in accordance with the words of Abaye and Rava, who turn to the one liable and mention before him the side by which he would merit acquittal, if he had not sinned.

We learned in the Mishna:

“Civil cases are returned, and so on.”

And he raises a contradiction

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

For we learned:

A judge who

judged the case

and erred in the determination of the judgment, for example, if he erred in civil cases, and

acquitted the liable one,

or

declared the one entitled liable.

And likewise, a sage whom they came to ask concerning matters of ritual purity, and he erred in his ruling, and

declared the pure impure,

or

declared the impure pure,

and his ruling caused monetary loss—if he rendered the pure impure with his hands after ruling that it was impure, or mixed the impure with the pure after ruling in error that the impure was pure, and the pure became impure through the impure—

what he did is done, and he shall pay

the judge to the one who suffered the loss

from his own house!

And it is proven that the judgment is not returned in civil cases; rather, what he did is done, and the judge shall pay from his own house.

And the Gemara brings several answers from amoraim:

Rav Yosef said: It is not difficult:

Here,

our Mishna is speaking

of an expert

who erred, for he can return the judgment and extract the money from the one who received it, and the recipient cannot claim that he will act according to the judge’s first opinion, because his second opinion is the error.

Here,

the Mishna in tractate Bekhorot is speaking

of one who is not an expert,

for if he comes to return the judgment, the recipient can say that the judge’s first opinion is the correct one, and the return is the error.

And the Gemara wonders:

A

rely

in the case of an expert they return

the judgment?

But it was taught: If the judge was

an

expert of the court—

he is exempt from paying!

And it is proven that the expert’s first judgment remains in force, and the judgment is not returned. For if the judgment is returned, and the recipient returns the money to his opponent, there is no need to exempt the judge on account of his expertise.

Rav Naḥman said: Here,

the law that, in the case of an expert, the judgment is returned applies where

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

for the greater one has the power to annul this judge’s judgment and return it.

Here,

the law that we learned—that if the judge was an expert for the public, he is exempt from paying—applies 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 he erred

the judge

concerning a Mishna,

for then this is not a judgment at all, but merely an error, and therefore the judgment is returned.

Here—

where he erred in judgment.

For Rav Sheshet said that Rav Asi said: If he erred concerning a Mishna—

it is returned. If he erred in judgment—

it is not returned.

Ravina said to Rav Ashi:

Is “he erred concerning a Mishna” specifically in the Mishnayot arranged by Rabbi, since all the members of the academy were present with him and clarified them, and therefore one who errs in them has no ruling at all, or

even if he erred in

the words of the baraitot edited by

Rabbi Hiyya and Rabbi Oshaya,

even though they were less well known, nevertheless the judgment is returned?

He said to him: Yes.

Indeed, even one who errs concerning a matter found in these baraitot is one who “erred concerning a Mishna.”

Ravina said to Rav Ashi:

Even

if his error was

in the rulings of Rav and Shmuel,

in matters that they stated based on their own reasoning, for this is not a Mishna but reasoning?

He said to him: Yes.

Ravina said to Rav Ashi:

Even

if he erred

in what I and you said,

in my words or in your words that we stated based on reasoning?

He said to him: What,

are

we, cutters of reeds in a marsh,

cutters of reeds in an open field,

we?

That is to say: Since I told you that even one who errs in the words of amoraim such as Rav and Shmuel is one who errs concerning a Mishna, then one who errs in our words too is no different from one who errs in their words, and the judgment is returned.

And now the Gemara discusses:

What are the circumstances of judgment?

Rav Pappa said: For example, two tannaim or two amoraim who disagree with one another, and it was not stated

—it was not said—

the halakha

in the matter

neither like this one nor like that one. And it occurred, and he acted according to one of them,

and the matter occurred and the judge acted according to the opinion of one of the disputants,

but

nevertheless,

the course of the discussion

the majority of judges studying this discussion

follow the other one,

hold the opinion of the second disputant—

that is

an error in

judgment.

Rav Hamnuna raised an objection to Rav Sheshet,

who holds that one who errs concerning a Mishna returns the judgment, from what we learned in the Mishna in tractate Bekhorot [28b]:

An incident involving a cow

(belonging to the house of Menaḥem) whose womb

was

removed.

And they asked Rabbi Tarfon what its status was, whether it had thereby become a terefah or not, and he ruled that it was a terefah, because he thought 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 to say, in accordance with his ruling that it was a terefah, its owners fed it to the dogs.

And an incident came before the Sages in Yavneh, and they permitted it,

because

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

elsewhere, because the Egyptian cows were superior and were sold to other countries at a high price, and the Egyptians did not want these cows to be outside the land, but only in their country. And it is proven that it lives even after its womb has been removed, and it is not a terefah.

Rabbi Tarfon said: The halakha is: your donkey, Tarfon!

Rabbi Tarfon thought that he had to pay for the damage he had caused through his erroneous ruling, and sell his donkey for this purpose.

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

who erred in his ruling,

is exempt from paying.

And Rav Hamnuna proves from here to Rav Sheshet:

And if it is so,

if what you said is correct, that one who errs concerning a Mishna returns the judgment,

let him say to him,

let Rabbi Akiva say to Rabbi Tarfon:

You are one who erred concerning a Mishna, and one who errs concerning a Mishna returns the judgment!

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

he said, “one thing, and furthermore.”

One thing,

one reason:

for you are one who erred concerning a Mishna, and one who errs concerning a Mishna returns the judgment.

And furthermore, even if you erred in judgment—

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

Rav Naḥman bar Yitzḥak said to Rava: What is Rav Hamnuna raising as an objection to Rav Sheshet from “a cow”?

The cow—he already fed it to the dogs, and there is no way for it to be returned,

it is no longer present, and it is impossible to return its judgment!

And Rava answered him:

This is what he said to him: It is understandable if you say that one who erred concerning a Mishna does not return the judgment—

it follows that “the judgment stands,”

that the judgment remains in every respect, and even if the cow had been before us, your ruling would remain in force, and you would have had no possibility of declaring it permitted, because one who errs concerning a Mishna does not return the judgment, and therefore the judge must pay from his own house—

this is why Rabbi Tarfon was frightened,

that he would have to pay.

And he said to him,

Rabbi Akiva to Rabbi Tarfon:

You are an expert of the court, and you are exempt from paying.

But if you say

as you say, that

one who erred concerning a Mishna returns the judgment,

the difficulty is:

let him say to him: Since, if the cow had existed,

if the cow had still been present,

your judgment would not be a judgment, and you did nothing,

for this erroneous ruling is not considered a ruling at all, therefore

now also—

you did nothing.

Even now, when they have already fed it to the dogs, you are not liable, for they did not feed it on the basis of your judgment, but because of your error, which is not a judgment. For, as stated, before they fed it, the judgment would have been returned, since it was not a judgment but an error.

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

Rav Ḥisda said: Here,

in tractate Bekhorot it is speaking in a case such as one in which the judge

took

the money from this one

and placed it into the hand of

that one. Since he performed an action with his hands, what he did is done, and he must pay for it from his own house.

Here,

our Mishna is speaking in a situation

where he did not take and place into the hand,

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

And the Gemara discusses:

It is understandable that “he declared the one entitled liable,”

that it can properly be established in a case

such as where he took and placed into the hand.

But “he acquitted the liable one”—how can you find this?

Where can you find a situation in which the judge performs an action with his hands, so that you make him liable to pay for it?!

And the Gemara explains:

That he said to him,

to the defendant,

you are exempt

from paying.

And the Gemara wonders:

But he did not take and place into the hand!—

And the Gemara explains:

Since he said, “You are exempt,”

and he held the plaintiff’s money in the defendant’s hands,

it is considered as though he took and placed into the hand.

And the Gemara wonders:

But the Mishna, which teaches: “Civil cases are returned, whether for acquittal or for conviction.”

It is understandable

that they return

for acquittal—

you can find it

in a case such as

where he initially said to him, “You are liable,” and he neither took nor placed into the hand,

and therefore he can return the judgment for acquittal and exempt him.

But

returning from acquittal

to conviction—how can you find it,

in what manner do we find that he can return the judgment? For it must necessarily be speaking in a case such as one in which

the judge said to him

to the defendant initially,

“You are exempt,”

and afterward said to 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 into the hand!

And if so, how can he return the judgment?!

And the Gemara answers: Indeed, from acquittal to conviction they do not return the judgment, because once he acquitted him, it is as though he took and placed into the hand, and the judge pays from his own house. And our Mishna

teaches one matter,

the Mishna stated only one law, and this is what it said:

“Civil cases are returned to ‘acquittal that is a conviction.’”

That is to say, if they initially declared him liable, and did not take and place into the hand, the judgment is returned for the benefit of the defendant, which is a conviction for the plaintiff.

And since we have established that in civil cases they return only from conviction to acquittal [which is an acquittal for this one and a conviction for that one], and in capital cases too we said that they return only from conviction to acquittal and not from acquittal to conviction. Yet the Mishna distinguishes between civil cases and capital cases. Therefore, necessarily,

similarly,

in a similar manner,

with regard to

civil

cases,

we must interpret the words of the Mishna,