Sanhedrin 3b (ג:) — the Talmud in English

money

that is not paid at the outset -

therefore

the tanna also taught half-damage, because it too is money that is not paid at the outset,

as it does not pay the principal in full, but only less than that; and both are alike in that they are “money that is not paid at the outset.” Therefore, the tanna taught them together, even though with regard to half-damage there is no novelty in the Mishna.

And since

because

he wanted to teach half-damage,

he also taught damage.

We learned in the Mishna: With three

and they must be experts,

and the Gemara discusses this:

Three— from where do we derive this!?

From which verse in the Torah do we learn that cases must be adjudicated by three expert judges?

The Gemara explains:

As the Sages taught:

It is written in the Torah, in the passage concerning bailees [Exodus 22]: “

And the owner

of the house

shall approach the judges” [in this context, “judges” is an expression referring to a judge],

here “the powers” is an expression for a judge],

here there is

one judge

.

And it is further written [there]: “

The case of both parties shall come before the judges,”

here there are two.

And it is further written [there]: “

whom the judges shall condemn”; here there are three—these are the words of Rabbi Yoshiya.

Rabbi Yonatan says: The first

verse

is stated first, and we do not expound first occurrences,

the first verse cannot be expounded as teaching the number of judges, since it is expounded to teach us the substance of the law: that expert judges are required, because the term “judges” denotes eminence and authority.

Rather,

from what exposition do we know that three are required? From the verse

“The case of both parties shall come before the judges,”

here there is one,

and from the verse

“whom the judges shall condemn,” here there are two; and

since

a court may not be evenly divided,

as a court may not be constituted with an even number of judges, since the court must be “inclined,” with a decisive majority, as it is stated: “After the majority to incline”; therefore,

one more judge is added to them; here there are three.

The Gemara now discusses the dispute between Rabbi Yoshiya and Rabbi Yonatan: Do they disagree about a general dispute throughout the entire Torah, whether “first occurrences are expounded or first occurrences are not expounded”?

Shall we say

that we should conclude that

they disagree with regard to whether first occurrences are expounded—

As one Master says,

Rabbi Yoshiya

holds that first occurrences are expounded,

so the first verse can also be expounded.

And the other Master says,

Rabbi Yonatan

holds that first occurrences are not expounded.

The Gemara rejects this:

No.

It is not necessary to say this. Rather,

everyone,

according to all opinions throughout the entire Torah,

holds that first occurrences are not expounded.

And as for Rabbi Yoshiya’s exposition here of the first verse, “And the owner of the house shall approach the judges,”

he would say to you

—Rabbi

Yoshiya

would explain—that this verse necessarily comes to teach the number of judges.

For if so,

if it does not come to be expounded,

let the verse say

it in the ordinary wording: “And the owner of the house shall approach the judge.” What is the reason

it says, “the judges”?

Why did the verse change its wording and say

“the judges”? Learn from it: for a number,

to learn from it the number of judges and include this verse among the three verses from which we learn that three judges are required.

The Gemara now explains what Rabbi Yonatan answers Rabbi Yoshiya’s claim:

And Rabbi Yonatan

holds that there is no change of wording here. The fact that the Torah said, “the judges,”

is ordinary usage,

the language spoken among people,

as people say,

as in the saying of people:

“One who has a case,

a claim,

should approach the judge.”

That is, people do not call a judge “the judge” in this expression, but use the term “judge,” and “judges” likewise denotes a judge. Therefore, there is no change of wording from which to derive anything.

Therefore

Rabbi Yoshiya and Rabbi Yonatan disagree

whether the term “judges” in the first verse can be expounded, even though throughout the entire Torah they hold that “first occurrences are not expounded.”

It follows that Rabbi Yonatan holds that there are two verses concerning two judges, and the third is learned from the principle that “a court may not be evenly divided.” It would appear that Rabbi Yoshiya, who holds that three verses are needed, maintains that an evenly divided court can be constituted—for otherwise, why did the Torah write an additional verse to include the third judge? Rather, it follows that had the Torah written only two, we would have constituted a court of two. Therefore, the Gemara asks—

And

if

Rabbi Yoshiya does not hold,

does he not maintain that one must establish a

court with a decisive majority,

so that one judge’s opinion will decide the matter if one judge acquits and the other convicts?!

That is, although according to Rabbi Yoshiya a court of fewer than three cannot be constituted, since he learned that at least three are required from the three occurrences of “judges” written in the passage, does Rabbi Yoshiya nevertheless permit adjudication by an even-numbered court, of four or six judges?

But it was taught

in a beraita that we derive from the Torah that specifically a court with a decisive majority must be established: As it was taught,

Rabbi Eliezer, son of Rabbi Yosei HaGelili, says: What is the meaning of the verse

“Nor shall you bear witness concerning a dispute

to incline, following the majority to incline”?—

The Torah said: Establish for yourself a court with a decisive majority!

Thus, a court with a decisive majority is required.

The Gemara answers: Rabbi Yoshiya does not hold like Rabbi Eliezer, son of Rabbi Yosei HaGelili [and in his view the verse “to incline” is expounded differently, as will be stated below in the Gemara]. Rather,

he follows

Rabbi Yoshiya

the view of Rabbi Yehuda, who says

that the number of judges of the Great Sanhedrin is

seventy,

which is an even number.

And similarly

we learned

in our Mishna:

The Great Sanhedrin consisted of seventy-one,

these are the words of the Sages;

and Rabbi Yehuda says:

It consisted of

seventy.

Thus, Rabbi Yehuda holds that an evenly divided court can be constituted, even though the seventy judges might be divided equally, with thirty-five against thirty-five.

But the Gemara raises an objection: Even Rabbi Yehuda himself holds that “a court may not be evenly divided.”

You may say that you heard Rabbi Yehuda say

that an evenly divided court may be constituted only

with regard to the Great Sanhedrin,

because

the verses are written

in the Torah: “Seventy men,” which is an even number. But

with regard to other courts,

other courts in which the number of judges is not explicitly stated,

did you hear him say that they may be evenly divided? How, then, could it be said that Rabbi Yoshiya follows Rabbi Yehuda?

And if you would say

that perhaps you wish to answer that Rabbi Yoshiya holds that according to Rabbi Yehuda

there is no distinction,

but one learns from the Great Sanhedrin that in all courts an evenly divided court may be constituted—this cannot be correct, for we find a Mishna and a beraita concerning other courts in which Rabbi Yehuda agrees that an evenly divided court is not constituted.

But didn’t we learn

in our Mishna:

The laying on of hands by the Elders

the judges of the Sanhedrin, on the bull brought for an unwitting communal transgression,

and the breaking of the heifer’s neck are performed by three, according to Rabbi Shimon. And Rabbi Yehuda says: By five.

And we said

in a beraita:

What is the reason of Rabbi Yehuda

for requiring five in these cases? Because it is stated in the passage concerning the bull brought for an unwitting communal transgression: “And the Elders of the assembly shall lay their hands upon the head of the bull.” Rabbi Yehuda expounds:

“And they shall lay,”

an expression in the plural;

here there are two.

“The Elders”

is also an expression in the plural;

here there are

another

two; and

since

a court may not be evenly divided,

therefore

one more is added to them; here there are five.

Thus, Rabbi Yehuda himself holds that a court may not be evenly divided.

The Gemara answers:

Rabbi Yoshiya

is more expansive than Rabbi Yehuda.

That is, Rabbi Yoshiya strengthened his position even more than Rabbi Yehuda.

For whereas Rabbi Yehuda, it is only with regard to the Great Sanhedrin that he does not hold

that a court with a decisive majority is necessary,

with regard to other courts,

all other courts,

he does hold

that specifically a court with a decisive majority is necessary.

But

whereas

Rabbi Yoshiya

even

with regard to other courts does not hold this.

But the Gemara asks: How will Rabbi Yoshiya expound the verse “to incline”? [For granted, Rabbi Yehuda expounds it with regard to all other courts except the Great Sanhedrin.]

Rather, this phrase “to incline,”

which indicates that a court with a decisive majority is required,

what does he do with it?

What will Rabbi Yoshiya expound from it?

The Gemara answers:

He applies it

—he interprets the verse as applying

to capital cases,

where a court of twenty-three, which is a Lesser Sanhedrin, when adjudicating capital cases, must have a decisive majority.

But with regard to monetary cases, it is not

necessary for the court to have a decisive majority; it is also possible to adjudicate with an evenly divided court, of four or six judges, and the like.

But now the Gemara asks: Granted, according to Rabbi Yonatan, the case is decided according to the majority of opinions, since a court with a decisive majority is required, and the opinions are therefore divided, with the decision following the majority. But according to Rabbi Yoshiya, who does not require a court with a decisive majority, and for whom the requirement of at least three judges is learned from the three verses containing “judges,” if so, should we say that in order to acquit or convict, the opinion of all three judges is required!?

But

if so,

as for that which we learned,

that which we learned in the Mishna [below, 29a]:

If two say: Acquitted, and one says: Liable—

he is

acquitted.

If two say: Liable, and one says: Acquitted—

he is

liable,

because the decision follows the majority—should

we say

that this Mishna is

not in accordance with Rabbi Yoshiya?

The Gemara answers: Rabbi Yoshiya also agrees that the decision follows the majority, and the opinions of all three are not required.

You may even say

that this Mishna is in accordance with

Rabbi Yoshiya,

because he too holds that the majority’s decision is sufficient.

And he derives it

by means of a

kal va-chomer

exposition of

from capital cases:

Just as

in the case of

capital cases, which are more severe,

nevertheless the decision does not require the opinion of all twenty-three judges needed for capital cases; rather,

the Merciful One said: Follow the majority,

so that the opinions of a majority of the judges are sufficient to decide the case—

monetary cases,

which are less severe,

all the more so!

Surely the decision follows the majority, and the opinions of all three judges are not required!

In summary: Rabbi Yoshiya holds that a court with a decisive majority is required only in capital cases, since only with regard to them is the phrase “to incline” stated in the verse, but not in monetary cases. And the majority’s decision is also determinative in monetary cases, by means of a kal va-chomer from capital cases.

We learned in the Mishna: Monetary cases are adjudicated by three.

The Gemara cites a beraita containing the view of Rabbi, who holds that they are adjudicated by five.

The Sages taught: Monetary cases are adjudicated by three.

Rabbi says: By five

they begin the adjudication,

so that the case will be concluded by three.

This is so that there will be a decisive majority [of three judges], and we will follow the majority.

But the Gemara asks:

Is that so?

If the case begins

with three, will it not be concluded by two,

who constitute a majority?

The Gemara explains:

This is what he is saying:

Rabbi means:

Because

it is necessary

that the final decision

must be

by three.

The Gemara infers:

Apparently, Rabbi holds that

Rabbi

when three are written,

the three occurrences of “judges” written in the Torah

are written with regard to the final decision,

and not with regard to the adjudication itself. Therefore, one must begin with five, so that the majority’s decision will be made by at least three.

Rabbi Abbahu gestures in rejection

of this reasoning:

But if that is so,

if you hold that the verses concern the final decision, then

the Great Sanhedrin

should require

at the beginning of the adjudication

one hundred forty-one, so that the case will be concluded by

a majority of

seventy-one.

And

likewise,

the Lesser Sanhedrin should require

at the beginning of the adjudication

forty-five, so that the case will be concluded

at least

by

a majority of

twenty-three.

Yet we do not find that Rabbi disagrees in these cases as well.

Rather,

necessarily, Rabbi agrees, since

“Gather for Me seventy men

to judge,”

the Merciful One said,

it is evident that

from the time of the gathering

there must be

seventy,

and not one hundred forty-one. And likewise with regard to the Lesser Sanhedrin, where the Torah says,

“And the assembly shall judge, and the assembly shall acquit,”

the meaning is

that from the time the assembly judges,

from the beginning of the trial, the number must be twenty-three [the condemning assembly and the acquitting assembly].

And if so, Rabbi Abbahu argues,

so too

in monetary cases, what the Torah wrote,

“And the owner of the house shall approach the judges,”

means that

from the time of approaching

three are required, and five are not necessary!

And according to Rabbi Yonatan, “The case of both parties shall come before the judges”—from the time of coming, there are two; and since a court may not be evenly divided, one more is added to them.

If so, the question returns: What is the reason Rabbi requires five judges at the beginning of the case?

The Gemara answers:

Rather, this is Rabbi’s reason:

because he expounds the verse

“whom the judges shall condemn,”

where “they shall condemn” is in the plural; therefore,

there are two.

“Judges” is stated below,

at the end of the passage, “whom the judges shall condemn,”

and “judges” is stated above,

“The case of both parties shall come before the judges.”

Just as

the judges stated

below

are

two

[for “they shall condemn, the judges” is stated in the plural],

so too

the “judges” stated in the verse

above

are

two.

That makes four here.

And

since

a court cannot be evenly divided, they add one more judge to them; there are therefore five.