Sanhedrin 41a — the Talmud in English

It must be expounded and said that

if

this teaching

does not concern karet ![](pamud.bmp "

Exact page location")

make it concern

the obligation of warning

for lashes,

which is a punishment applicable in the case of his sister.

The school of Hezekiah taught

to learn the law of warning from elsewhere, as it is stated [Exodus 21:14]:

“But if a man acts intentionally against his fellow to kill him by cunning”

and it is difficult: From where do we know that he acted intentionally? Rather, it certainly refers to a case

where they warned him, and he was still acting intentionally.

The school of Rabbi Ishmael taught

to learn the law of warning from elsewhere, as it is stated [Numbers 15:33]: “And those who found him

gathering wood brought him” -

It is not stated, “who gathered wood,” but “gathering wood”; that is, they saw him and found him, and after they found him he was gathering wood. And why must it be so? Rather, the verse comes to inform us

that they warned him and he was still

gathering

wood

after they warned him.

The school of Rabbi taught

to learn the law of warning from elsewhere, as it is stated concerning one who has intercourse with a betrothed young woman [Deuteronomy 22:24]: “You shall bring them both out to the gate of that city, and you shall stone them with stones and they shall die—the young woman because she did not cry out in the city, and the man

because he violated

his fellow’s wife.” The word “matter” is superfluous for expounding, because they are killed

for matters of speech

for which they were warned.

And it is necessary—

and we require all the expositions through which the obligation of warning is derived.

For if the Merciful One had written

only the exposition concerning the nakedness of

his sister,

that warning is required in order to become liable for lashes,

I would have said:

that only

those liable for lashes—

yes—

require warning in order to become liable, but

those liable for execution,

who are more severe—

no,

do not require warning in order to become liable. Therefore

the Merciful One wrote

also concerning those liable for execution, in order to expound

“acts intentionally”

as establishing the obligation of warning.

And if the Merciful One had written

only the exposition of

“But if a man acts intentionally”

concerning a murderer, establishing the obligation of warning,

I would have said—

we would have thought that

these words

the obligation of warning applies only where one is liable for a lenient execution, such as a murderer, who is liable for execution by

the sword, which is lenient,

which is a lenient execution,

but

those liable for execution by

stoning, which is severe, I would say

that

do not

require warning in order to become liable for it. Therefore

it is necessary

to write all the expositions establishing the obligation of warning.

And two in cases of those stoned

—and concerning the fact that the Torah wrote two expositions establishing the obligation of warning, concerning those liable for execution by stoning: both concerning the gatherer of wood and concerning the betrothed young woman—

why do I need them?

According to Rabbi Shimon—

the additional exposition comes

to include those burned,

to include those liable for execution by burning, for in his view it is a more severe execution than stoning, and it cannot be learned from those liable for execution by stoning, which is lenient. Therefore the Torah wrote an additional exposition concerning those liable for stoning, so that we would expound it concerning those liable for the more severe execution by burning, since the exposition is not needed for its own subject.

But

according to the Sages,

who hold that execution by burning is more lenient than execution by stoning, and that those liable for execution by burning can be learned by a kal va-chomer from those liable for execution by stoning, who require warning,

they hold that even

a matter that comes

—a matter that is learned—

through a kal va-chomer, the verse took the trouble and wrote it

explicitly.

And we raise an objection: Why did the Torah write the expositions establishing the obligation of warning concerning lashes and concerning execution by the sword?

Let the Merciful One write

only the exposition

concerning those stoned, and let these come and be learned from it!

And we would learn by a kal va-chomer the obligation of warning for these punishments.

And we answer:

Here too,

these expositions concerning lashes and execution by the sword were written despite the possibility of learning them by a kal va-chomer from those liable for execution by stoning, because also

a matter that comes

—a matter that is learned—

through a kal va-chomer, the verse took the trouble and wrote it

in such a way that we expound it explicitly.

We learned in the beraita above that the witnesses are asked: Did the murderer

make himself liable to execution?

When you warned him, “Do not transgress this offense, for you will become liable for such-and-such an execution,” did he say, “I am doing it on that condition”?

From where do we know

that the accused is liable for execution only if he made himself liable to execution?

Rava said, and some say Hezekiah: The verse says [Deuteronomy 17]: “By the mouth of two witnesses or three witnesses

shall the dead man be executed.”

But he has not yet died. Rather, it follows that he is already considered dead before he comes to the court, and that is because with his mouth he made himself liable for execution. And from here we derive that he is not liable for execution

until he makes himself liable

with his mouth

for execution,

and says, “I am doing it on that condition” .

Rav Hanan said: The witnesses concerning a betrothed young woman,

who testified concerning a betrothed young woman that she committed adultery and is liable for execution,

who

were proven conspiring

and became liable under the law, “You shall do to him as he schemed to do to his brother”—

are not executed, because

of the fact

that they can say:

We came only

to prohibit her to her husband,

and not so that she would be executed through our testimony . And since they did not scheme to have her executed, they are not liable for execution. And we raise an objection: How is it possible to accept their claim that they did not scheme to have her executed,

but they warned her!

For the witnesses warned her; if so, through their testimony she became liable for execution because they warned her.

And we answer: It concerns a case

where they did not warn her.

And if they did not warn her—

how could she be executed?

How would she have been executed on the basis of their testimony? And if in fact she would not have been executed on the basis of their testimony, there is no novelty in the fact that the witnesses are not executed, for it is written, “as he schemed,” and the witnesses are not liable for a punishment greater than what they schemed to impose on the accused through their testimony.

And we answer: It concerns a case where they testified

about a learned woman,

who knows the laws and does not require warning. Therefore she would have been executed on the basis of their testimony. Nevertheless, since the witnesses did not warn her, they can claim that they did not intend to have her executed through their testimony, but only to prohibit her to her husband.

But in a case where the witnesses said in their testimony that they warned her, since the law of warning applies only with regard to liability for execution, they can no longer claim that they did not intend to have her executed through their testimony.

And this law, that a learned person knowledgeable in the laws does not require warning in order to become liable for the punishment of lashes or execution, is

according to Rabbi Yosei son of Rabbi Judah.

For it was taught

in a beraita:

Rabbi Yosei son of Rabbi Judah says: A learned person

does not require warning, because warning was given only to distinguish between an inadvertent act and an intentional act,

and the learned person knows this himself without being warned.

And we raise an objection: How could they accept the testimony of the witnesses testifying concerning that betrothed young woman who committed adultery without having warned her, in order to execute her on the basis of their testimony? For

since they themselves are not executed,

for they are not executed if they are found to be conspiring, if so

how could she be executed?

How could they execute her on the basis of the testimony?

It would be

that this is

testimony that you cannot render conspiring,

for it is impossible to do to the witnesses what the testimony obligates for the accused.

And every testimony that you cannot render conspiring—

is not called testimony!

Here too,

indeed she too is not executed on the basis of their testimony, because the testimony cannot be rendered conspiring, to make them liable for execution on the basis of the testimony.

And this is what Rav Hanan

said,

Rav Hanan:

Because they are not executed, since they can say

that they came only for the purpose of

prohibiting her to her husband

to testify, and they did not scheme to have her executed—

she too is not executed

on the basis of their testimony,

for it would be

that this is

testimony that you cannot render conspiring .

And we raise an objection:

But concerning a learned woman, as we hold

that she is executed according to Rabbi Yosei son of Rabbi Judah, how can one find such a case?

How is it possible, according to Rabbi Yosei, for them to testify concerning a learned woman that she committed adultery and become liable for execution on the basis of their testimony? For every time this would be testimony that you cannot render conspiring ?

And we answer: There is a situation in which she becomes liable for execution on the basis of their testimony, such as

when she committed adultery and then committed adultery again ,

for the witnesses testifying about the second adultery cannot say that they came only to prohibit her to her husband, since she had already become prohibited to her husband through the first adultery. If so, through their testimony they came only to have her executed.

And we refute:

But they can say:

that they came only

to prohibit her to

her second paramour

to testify, since we learned in tractate Sota [26b] from the words “and she became impure” and “and she became impure” written twice, that just as she becomes prohibited to her husband, so she also becomes prohibited to her paramour. If so, through the second adultery she became prohibited to the second paramour, and the witnesses can claim that they came to testify for this purpose, and they would not become liable for execution if they were proven conspiring. And since that is so, she too would not be executed through their testimony, since the testimony does not make the witnesses liable for execution if they are proven conspiring .

And we answer: The situation in which she becomes liable for execution on the basis of their testimony is, for example, if they testify

that she committed adultery

a second time

with the first paramour,

for she had already become prohibited to him through the first adultery;

alternatively, that she committed adultery

a second time

with one of her relatives,

for she is already prohibited to them because of a forbidden relationship. In such a case the witnesses cannot claim that they came to testify in order to prohibit her to her husband or to her paramour, for she is already prohibited to them. If so, through their testimony they came only to have her executed, and if they were proven conspiring, they would be executed, and she too is executed on the basis of their testimony.

What is different about a betrothed young woman that he stated it?

Why did Rav Hanan state a case in which they testified concerning a betrothed young woman who committed adultery? For

even a married woman as well!

The law is the same: If they testified concerning her that she committed adultery, the conspiring witnesses are not executed, since they can claim that they came to testify only to prohibit her to her husband and did not testify so that she would be executed through their testimony.

No—

yes, the law is the same even with a married woman;

rather,

the reason Rav Hanan stated this law concerning a betrothed young woman is to teach a novelty:

even this one who does not yet sit

beneath him,

for even this woman who had not yet sat under her husband but was only betrothed to him, and there is reason to say that the witnesses did not bring to mind prohibiting her to him, since they would not see her sitting under him, nevertheless

they can

the witnesses

say

that they came only for the purpose of

prohibiting her to her husband

to testify.

Rav Hisda said:

If one witness says,

“He killed him with a sword,”

the murderer,

and one

of the witnesses

says

that

with an ariran,

a spear used for stabbing,

he

killed him,

the murderer—

this is not correct,

the words of the witnesses do not correspond, their testimony is invalid, and the accused and the witnesses are immediately exempt, since their testimony is found to contradict itself.

But if one witness

says his garments

the murderer’s clothes were

black, and one

of the witnesses

says

that

his garments,

the murderer’s clothes, were

white—

this is correct,

and their testimony is accepted, since their words are not found to contradict one another in the substance of the testimony, but in a peripheral matter unrelated to the substance of the testimony.

He challenges

from a beraita that we learned: What is testimony that is

correct?

That it be correct,

that the words of the witnesses correspond.

And the beraita brings an example: For instance, if one witness

says: “He killed him with a sword,”

the murderer,

and one

of the witnesses

says

that

with an ariran,

a spear used for stabbing,

he

killed him, the murderer. Or if one witness

says: “His garments,

the murderer’s clothes, were

black, and one

of the witnesses

says: ‘His garments,

the murderer’s clothes, were

white”—

this is not correct!

The words of the witnesses do not correspond, and their testimony is invalid.

It is explained in the beraita that even if their words are not found to contradict one another in the substance of the testimony but in a peripheral matter unrelated to the substance of the testimony, their testimony is invalid.

Rav Hisda interpreted it

that the intention of the beraita is that the words of the witnesses were found to contradict one another concerning the murderer’s clothes—meaning

the scarf with which he strangled him,

which is part of the substance of the testimony: The witnesses testified that the murderer strangled his fellow with his scarf, and one of the witnesses testified that it was black while the other testified that it was white.

That is to say,

like the first case brought in the beraita, in which their words were found to contradict one another concerning

the sword and the ariran

with which the murderer killed him, which are part of the substance of the testimony. Therefore, if their words are found to contradict one another, their testimony is invalid.

Come and hear

to raise a difficulty from a beraita in which we find that even if the words of the witnesses contradict one another in examinations that are not part of the substance of the testimony, their testimony is invalid, as we learned: One witness

says his sandals

of the murderer

were black, and one says his sandals

were

white—

this is not correct!

Their words do not correspond, and their testimony is invalid.

And we reject this:

There as well,

there too, it is speaking of the substance of the testimony,

such as

that they testified

that he kicked him with his sandal and killed him,

and if so, the sandal is part of the substance of the testimony; therefore, if the witnesses’ statements contradict one another concerning the color of the sandal, their testimony is invalid.

Ta shma

to raise a difficulty from what we learned in our Mishna:

There was an incident, and ben Zakkai examined

the witnesses

concerning the stems of a fig,

that is, the ends by which the figs are attached to the tree—whether they were thick or thin, whether they were long or short, and the like. The stems of the fig are not part of the substance of the testimony, for he did not murder with the stems of the fig; nevertheless, if the witnesses’ statements contradicted one another, ben Zakkai would disqualify them, even though this is not part of the substance of the testimony.

Rami bar Hama said:

It is speaking

such as

that they testified

that he plucked a fig on Shabbat, for it was over this that he was being killed,

that the witnesses wished to make him liable to death because he violated the labor of plucking [harvesting] on Shabbat.

And we raise a difficulty: How is it possible to interpret the beraita in this manner,

but it was taught

in a beraita:

They said to him

the witnesses:

“Under a fig tree they killed him!”

And concerning this testimony ben Zakkai examined the witnesses regarding the stems of the fig.

Rather, Rami bar Hama said

it is speaking:

such as

that they testified

that they impaled him with a branch of a fig tree,

that he took a branch of a fig tree, impaled him with it, and killed him by stabbing. If so, the examinations that ben Zakkai conducted concerning the type of the fig stem were examinations belonging to the substance of the testimony.

Ta shma

to raise a difficulty from what we learned:

He said to them

Rabban Yohanan ben Zakkai to the witnesses:

“This fig tree,

were

its stems thin,

or perhaps were

its stems thick,

were

the figs black,

or were

the figs white?” And necessarily, it is impossible to interpret that he murdered with the figs themselves, for figs are soft; rather, certainly he also examined the witnesses concerning matters that are not part of the substance of the testimony, and if their statements contradicted one another, he would disqualify them.

Rather, Rav Yosef said: Can one raise an objection from ben Zakkai?

Is it from the words of ben Zakkai that one comes to raise a difficulty

?

Ben Zakkai is different,

the method of ben Zakkai is different,

for he treats examinations like interrogations,

for he equates examinations with interrogations. Just as with interrogations, if the witnesses contradict one another even concerning matters that are not connected to the substance of the testimony—such as this one says [it happened] in one particular place and that one says [it happened] in another particular place, where the place is not part of the substance of the testimony, for the place did not kill him—and nevertheless, if they are contradicted concerning this, their testimony is invalid, so too with examinations, ben Zakkai holds that if they are contradicted in the examinations, even concerning matters that are not part of the substance of the testimony, their testimony is invalid.

And Rav Hisda did not state his words according to the view of ben Zakkai, but according to the view of the other tannaim who disagree with him.

Who

is this

ben Zakkai?

If you say

that this is

Rabbi Yohanan ben Zakkai, -

there is a difficulty:

Was he present in the Sanhedrin?

Was he alive during the period of the Sanhedrin, when they judged capital cases?

But it was taught

in a beraita:

All the years of Rabbi Yohanan ben Zakkai were one hundred and twenty years.

Forty years

of his life’s first period,

he engaged in commerce,

in trade.

Forty years

of the middle period of his life,

he studied

Torah.

Forty years

of the final period of his life,

he taught

and became a judge and one who issued rulings.

And it was taught

in a beraita:

Forty years before the destruction of

the Temple, the Sanhedrin went into exile and sat in the shop,

which was a place in Jerusalem that was called “the shop.”

And Rabbi Yitzhak bar Avudimi said:

The reason that the Sanhedrin went into exile from the Chamber of Hewn Stone to “the shop” was

to say that they did not judge cases of fines.

And we examine this: Is it possible that it means

cases of fines?

Does one need the Sanhedrin to sit in the Chamber of Hewn Stone in order to judge cases of fines?

Rather,

to say

that they did not judge capital cases,

for capital cases are judged only when the Sanhedrin is located in the Chamber of Hewn Stone, as it is stated [Deuteronomy 17:8]: “And you shall arise and ascend to the place,” teaching that the place causes it to be possible to judge capital cases. And once the Sanhedrin saw that the murderers had multiplied and they were unable to judge all of them, they arose and went into exile from their place, to the place called “the shop.”

And we learned: After the Temple was destroyed, Rabban Yohanan ben Zakkai instituted.

It follows that Rabbi Yohanan was still alive after the destruction of the Temple. It emerges that during the final forty years of his life, in which he was a judge, they did not judge capital cases, for already forty years before the destruction they had ceased judging capital cases.

Rather,

it must be said that

ben Zakkai

mentioned in the Mishna as examining the witnesses was another ben Zakkai,

of the world.

This too is logical,

and so too it is logical,

for if it should enter your mind

that if it should enter your mind to say that the ben Zakkai in the Mishna is

Rabban Yohanan ben Zakkai,

there is a difficulty: would he

call him Rabbi,

would Rabbi, the arranger of the Mishnayot, call him

ben Zakkai

without mentioning his personal name, “Rabbi Yohanan”?

And we reject this: It is impossible to interpret that the ben Zakkai in the Mishna was another person, for

it was taught

explicitly in a beraita:

“There was an incident, and Rabban Yohanan ben Zakkai examined the stems of figs!”

If so, it is explained that this was Rabban Yohanan ben Zakkai, and there is a difficulty, for during the final forty years of his life, in which he was a judge, they did not judge capital cases.

Rather,

it must be said that the incident took place before he became a judge, and he was still

a student sitting before his teacher, and he stated a matter

before the judges, that the examinations of the witnesses should be increased,

and they found his reasoning convincing,

and his words were accepted,