Sanhedrin 46a - Beis Din's Power to Punish Even When Not Warranted By The Torah

The gemara quotes a braisa that gives beis din the power to punish even against din torah, meaning to impose stricter punishments than the Torah demands for specific violations, if it is done in a time and place when people are being lax about this issur and the breach must be fixed. The braisa quotes some examples. A. Someone was stoned on shabbos for riding a horse which is only a Rabbinic violation. B. Someone was given malkus for having relations with his wife in public under a fig tree. C. The Mishna says that R. Shimon Ben Shetach judged 80 witches on one day, and hanged them (even though women are generally not hanged) because women were very involved in keshafim. The Rambam (Sanhedrin 24:4) adds that R. Shimon Ben Shetach was lax about the d'risha v'chakira (cross examining the witnesses against the witches) and killed them without them being warned, and without meeting the requirements of witnesses. It is not clear how the Rambam knows that R. Shimon Ben Shetach was lax in so many areas. Perhaps he learns it from the story that is quoted by rashi on 44b where the beis din accepted false witnesses against his son, indicating that it was a midah k'neged midah for R. Shimon Ben Shetach being too lax in accepting witnesses.

There seems to be a machlokes Rashi and Rambam regarding the interpretation of one line in the braisa. The braisa says - ולא לעבור על דברי תורה אלא כדי לעשות סייג לתורה. Rashi explains that when the beis din imposes a stricter punishment than is mandated by the Torah, they are not allowed to intend to violate the Torah and create new punishments that the Torah doesn't require. They can only impose these punishments with the mindset of הוראת שעה and making a s'yag l'torah. Although the Rambam (halacha 4) agrees with rashi in principal and writes that they cannot establish this to be a halacha for generations, it seems to me that he has a different reading of this line. The Rambam (halacha 10) writes:

כל אלו הדברים לפי מה שיראה הדיין שזה ראוי לכך וכו' ובכל יהיו מעשיו לשם שמים, ואל יהיה כבוד הבריות קל בעיניו שהרי הוא דוחה את ל"ת של דבריהם וכ"ש כבוד בני אברהם יצחק ויעקב המחזיקין בתורת האמת שיהיה זהיר שלא יהרס כבודם, אלא להוסיף בכבוד המקום בלבד, שכל המבזה את התורה גופו מחולל על הבריות והמכבד את התורה גופו מכובד על הבריות, ואין כבוד התורה אלא לעשות על פי חוקיה ומשפטיה

The Rambam writes that Beis Din shouldn't jump to impose harsh punishments beyond the Torah's requirements, because they must take the kavod ha'briyos aspect very seriously, especially since this isn't just a creature of Hashem, but a descendant of the avos. The only reason that they are allowed to do this is because the kavod of Hashem trumps their personal kavod. Why? Because one who degrades the Torah is inherently degraded and loses stature in the kavod habriyos spectrum, therefore it is more essential to restore the honor of the Torah than be concerned for his personal honor.

Where does the Rambam get this from? The Kesef Mishneh says that these are the words for the Rambam and they are fit to be said by him. This implies that the Rambam has no source for this approach. I would like to suggest that the Rambam actually reads this into the braisa. When the braisa says - ולא לעבור על דברי תורה אלא לעשות סייג לתורה, the Rambam interprets that the issur of kavod habriyos which is a violation of the Torah, can only be violated for the sake of making a s'yag l'torah, meaning restoring the kavod hatorah to its place.

Sanhedrin 44b - Cutting off a limb to save a life

The Rambam (Rotzei'ach 7:8) writes that someone who killed accidentally and is presently protected by an ir miklat, doesn't leave even to save a life because as soon as he leaves the go'el ha'dam can kill him. The Ohr Samei'ach points out that the Rambam is coming to explain that since the go'el hadam can kill him, we can't impose on him to leave even if it is for pikuach nefesh. The Rambam seems to hold that a person isn't required to place himself in sakana to save someone else.

The Ohr Sameiach then continues to write that the Radvaz holds that a person is chayev to lose a limb in order to save the life of another jew. The Ohr Sameiach disagrees with the Radvaz and cites a brilliant proof from our gemara. The gemara says that witnesses who testify about a murderer and he is convicted based on their testimony, have no ability to retract. Rashi quotes an elaborate story with R. Shimon Ben Shetach who killed 80 witches, and to revenge their death, their relatives testified about his son that he is chayev misah. Although the witnesses eventually felt bad and regretted their false testimony, they had no way of retracting. The Ohr Sameiach questions, why weren't they obligated to amputate their arms, thereby being unable to fulfill the din of יד העדים תהיה בו בראשונה, based on Shmuel 45b who says that if the eidim lose their arm after the g'mar din prior to misah, the person is acquitted. Shmuel holds that if the eidim originally had arms and lost them, the convict is exempt since they must be able to carry out the punishment with the arms, as the Torah describes. The Ohr Sameiach proves from here that one isn't required to lose a limb to save the life of another, even if they are the cause of his death, and certainly if they are simply innocent bystanders.

Sanhedrin 42a - Kiddush LeVana

There seems to be a very interesting paradox that we find in the bracha of kiddush le'vana. On one hand the bracha focuses on the predictability of the moon and its obedience to the will of Hashem - חוק וזמן נתן להם שלא ישנו את תפקידם. Yet, there is an excitement - ששים ושמחים לעשות רצון קונם. Beyond the excitement, there is even a focus on the renewal, the chiddush - וללבנה אמר שתתחדש. The moon on one hand symbolizes absolute robotic devotion without any slight deviation, but at the same time it symbolizes hischadshus. It represents an ability of renewal and rejuvenation, that is accompanied with a simcha and rejoicing. How can the two concepts co-exist?

Human nature is to always seek excitement which is defined as something novel, that has never been explored before. The simcha comes from the ability to create or reveal a concept or idea that was previously hidden. Very little joy is found in the monotonous repetition and revisiting a road that is well traveled and fully explored. The moon teaches us that this may be human nature and a self serving method of serving our creator, but in the eyes of Hashem, chiddush is not the be all and end all. The moon manages to find it's joy in the service of Hashem. The ששים ושמחים is not self-serving, it is not happiness that emanates from a feeling of accomplishment, rather, it is completely tied and dependent on the לעשות רצון קונם. The moon finds joy in thwe awareness that it is doing the ratzon of it's creator day in and day out. Surely, chiddush is important and Hashem want man to be a creator, but that is only a possibility after the basics have been established. Chiddush in Torah for example can only exist after a mastery of the basic material that has been learned a thousand times before. The true avodas hashem is to master the original material so that we have the tools to build and be me'chadesh with. Furthermore, the moon represents a chiddush that emanates directly from a very predictable existence. The moon serves as an example for klal yisroel that only through complete and total devotion to Torah and Mitzvos, to a point where we are לא ישנו את תפקידם, will Hashem reward us with an עטרת תפארת לעמוסי בטן, renew our existence by taking us out of the galus that we are in to be לפאר ליוצרם על שם כבוד מלכותם, and restore the glory to the great name of Hashem.

Sanhedrin 40b - Purpose of Warning

The gemara cites various pesukim as the source for the requirement of hasra'ah (warning). The maharatz chiyus points out that there are two source for hasra'ah. The first is a sevara, is to make sure the person is aware of the severity and consequences of his actions. Included in the hasra'ah is both the education of the halacha, and the awareness of the action that he is about to do. The second source is the pesukim that the gemara quote which serve as a gezeiras hakasuv, whether they apply or not, that no punishment can be carried out unless there is a warning. The maharatz chiyus deduces this from Tosafos who is bothered why the gemara has to find a source for hasra'ah, to which they answer that a non-chaver (someone who isn't educated to know the din) it is obvious from logic that he requires hasra'ah because otherwise he would have no idea whether the action that he is doing is prohibited by the Torah - להבחין בין שוגג למזיד. But, a chaver, who is well educated, knows very well what he is doing and understands the consequences. He shouldn't require hasra'ah if not for the fact that the Torah would demand it as a gezeiras hakasuv. The pesukim is the rationale for requiring the details of hasra'ah such as killing him within תוך כדי דיבור (and perhaps having to accept the hasra'ah).

Based on this, he points out that Tosafos 41a who ask what is the source for hasra'ah by an עיר הנדחת, is difficult. Who says that עיר הנדחת has the gezeiras hakasuv requirement of hasra'ah that would involve the details, perhaps it would only have the sevara aspect of hasra'ah to differentiate between intentional and unintentional, so that no source is necessary. Clearly, tosafos assumes that the type of hasra'ah necessary by עיר הנדחת is the gezeiras hakasuv type with all the details and not just the determination that he was aware of the consequences of his actions.

The Rambam doesn't seem to follow this same approach. The gemara 8b and 41a quote R. Yossi Bar Yehuda who says that a talmid chacham doesn't require hasra'ah since the sole purpose of hasra'ah is to differentiate between shogeig and meizid. This would imply that the Rabbonon who hold that even a talmid chacham requires hasra'ah, would hold that hasra'ah is a gezeiras hakasuv, and NOT just to distinguish between shogeig and meizid. However, the Rambam (Sanhederin 12:2) writes:

אחד תלמיד חכם ואחד עם הארץ צריך התראה, שלא ניתנה התראה אלא להבחין בין שוגג למזיד, שמא שוגג היה

This seems to be very strange. The Rambam cites the rationale of R. Yossi Bar Yehuda, yet requires hasra'ah even for a chaver (talmid chacham). Why? The kesef mishna and lechem mishneh explain that the according to the Rambam, the Rabbonon don't disagree with R. Yossi in principal, rather they hold that because of his concern we require hasra'ah even by a chaver who knows the law, since he may not be aware of the action he is about to do. The Rambam clearly learns that the concept of hasra'ah is only meant to make him aware of his actions, and educate him about the halacha, not just a gezeiras hakasuv. Nevertheless, the Rambam requires hasra'ah within ki'dei dibur of the action, implying that this concept isn't merely a gezeiras hakasuv but an actual concern that he may have a very short term memory. It seems that the Rambam doesn't buy into the 2 sources for hasra'ah approach, rather he understands that the rationale for the sources of hasra'ah cited in the gemara is כדי להבחין בין שוגג למזיד - to educate and inform.

Sanhedrin 37a - Chometz and Times Zones (Post #1000)

The gemara learns from the pasuk שררך אגן הסהר, that the Sanhedrin sat בטבורו של עולם. We consider Yerushalayim and more specifically the beis hamikdash to be the center of the world, as rashi explains. This is actually the primary source for R. Tuchechinsky's approach in establishing the international dateline. If we view Yerushalayim as the center of the world, it is logical to assume that the globe which is 360 degrees, begins by Yerushalayim and expands out in both directions 180 degrees. Therefore, 180 degrees from Yerushalayim would be the "end of the world", which would be the point that by traveling west you would jump ahead 24hrs, and by traveling east you would jump back 24hrs. This approach would place the dateline between california and hawaii, which is east of the standard secular dateline which is between hawaii and asia. It is also unlike the chazon ish who places the dateline on the coast of China (with the exception of Australia which is drawn west toward asia).

Obviously, the ramifications of the dateline is enormous, and would make a big difference when it comes to owning chometz on Pesach. In truth, the discussion of owning chometz on Pesach would be relevant even before discussing the dateline, because a person can easily be in a different time zone than the chometz which he owns. R. Moshe (Igros Moshe O.C. 4:94) holds that for owning chometz we follow the individual, not the location of the chometz since the prohibition is on the individual, not on the chometz. The Oneg Yom Tov disagrees and holds that we follow the location of the chometz, not the person. If one would be in NY and have chometz in CA, Pesach begins for them before it begins for their chometz - R. Moshe would holds that the sale must be done early, whereas the Oneg Y"T would hold that it can't be purchased back until Pesach ends in CA. R. Tzvi Pesach Frank (Mikraei Kodesh 55) cites the Chesed l'avraham who holds that it is dependent on the person, like R. Moshe. He cites an interesting proof from the gemara in Pesachim 7a that discusses someone who is learning and realizes that he has chometz at home, he can just be mevatel, "even on Yom Tov". The gemara asks, how can he be mevatel on yom tov, since the z'man of bitul has already arrived. Why doesn't the gemara say that it is speaking when the chometz is in a time zone that yom tov has not yet arrived, so he can be mevatel? From here we see that since Yom Tov arrived in the location where he is, he cannot be mevatel since it is all dependent on the person.

Now, the dateline makes things far more confusing because even if we assume that it is dependent on the individual, even if he is in the same location as his chometz, it is not clear when he would have to rid himself of chometz. The ambiguous locations are Hawaii, which according to C'I follows the secular day, but according to R. Tuchechinsky Pesach begins a day earlier. Similarly, in New Zealand, which according to R. Tuchechinsky would follow the secular day, but according to C"I pesach would begin a day later. Therefore, if someone from NY visits Hawaii for Pesach and leaves chometz behind in NY, aside from the issue of violating Shabbos and Yom Tov that would exist according to R. Tuchechinksy (which some people are machmir not to do d'oraysa violations on Friday and Erev Yom Tov), he would have to make sure that the chometz is sold a day earlier (according to R. Moshe who holds that it is dependent on the person).

Sanhedrin 35a - Why not do the g'mar din on Shabbos?

The gemara goes through the possibilities of when we can judge a capital case, with the understanding that we require a ha'lanas hadin (sleeping on it), and to avoid inuy hadin. The gemara asks why can't we judge on Friday, announce the verdict on shabbos and carry out the punishment on shabbos? The gemara answers: אין רציחה דוחה את השבת. The gemara then goes on to prove why beis din cannot carry out capital punishment on shabbos, and ultimately concludes that the issur that would be violated with capital punishment doesn't push off shabbos.

Tosafos asks, how can the gemara suggest that the verdict should be issued on shabbos; woudn't this violate the mishna in beitzah 36a which says that there is an issur sh'vus to judge on shabbos? Tosafos answers that the problem with judging on shabbos only applies to monetary cases because it will lead to writing, but by a capital case this is not a concern.

Tosafos' question seems very strange. The gemara explains that issuing the verdict on shabbos would require us to carry out capital punishment on shabbos which we cannot do. The gemara seems to hold that it would be an issur d'oraysa to issue the verdict since it would inevitably cause either a inuy ha'din or violation of shabbos. Why does Tosafos sugggest that it should be assur based on a sh'vus d'rabonon that it may lead to writing? In truth, the Ran says exactly that to answer Tosafos' question - יש לומר דהא עדיפא ליה דאסור מדאורייתא כדילפינן ממושבותיכם וכו' לומר שאין מיתת ב"ד דוחה שבת, ומתניתין נמי דינא דאורייתא קתני. Being that there is a din d'oraysa that would make it assur, which is what the gemara actually says, why is Tosafos asking that we should say it is assur due to a violation of a sh'vus? Perhaps Tosafos is asking rhetorically to point out the the issur sh'vus only applies to dinei ma'monos and not dinei nefashos.

Sanhedrin 33a - Treifos that have a Refuah

The Chazon Ish (Y.D. Treifos 5:3) discusses that there are many treifos nowadays that can be healed through surgery or other means and wouldn't die within 12 months. Would this undermine chazal's assumptions and allow us to consider many of their treifos to be kasher? The short answer is: absolutely not. The long answer is: Chazal were put in charge of establishing the treifos in the first 2,000 years of the world, and this would establish the dinim of treifos for all generations. All illnesses and injuries that at the time of chazal were not able to be healed, were considered treifos and forbidden by the Torah for all future generations. He then goes on to say that there may have been physical changes in the anatomy that would explain why the problems of then would not be problems now, and perhaps the modern day surgeries would not have even worked then. With this he explains the Rambam who on one hand legitimizes the claims of doctors to be able to heal many of the 18 treifos listed by chazal, yet holds that they remain assur to eat even today.

The Rambam writes:

רמב"ם פ"י מהל' שחיטה הל' י"ג - וכן אלו שמנו ואמרו שהן טריפה אע"פ שיראה בדרכי הרפואה שבידינו שמקצתן אינן ממיתין ואפשר שתחיה מהן, אין לך אלא מה שמנו חכמים שנאמר "על פי התורה אשר יורוך

Based on this, the Chazon Ish explains that although at the time of the gemara where the 18 treifos would die within 12 months, if a man had one of these ailments and then disappeared we would allow his wife to remarry on the assumption that he died. Nowadays, there would be a distinction between allowing his wife to remarry and eating a treifa - we could not eat the treifa, but recognize that it could be healed and wouldn't allow his wife to remarry.

The gemara in todays daf tells that the uterus was removed from a cow and R. Tarfon paskened that it was a treifa, until he was proven wrong by the Chachamim in Yavneh who sided with the testimony of "Tudos the doctor" that such an animal can live. Based on the Chazon Ish, why is the testimony of Tudos a clear proof that R. Tarfon is wrong? Why can't we assume that the removal of the uterus is a treifa, just that they later figured out a way to remove it without rendering the animal a treifa, similar to the suggestion of the Chazon Ish? This gemara would force us to say that until the seal of the Mishna, any cure that they were able to devise and introduce that would be effective, would be evidence that it was never meant to be included in the list to treifos. The Chazon Ish's principal would only apply to surgeries and remedies that were developed after the close of the mishna.

Sanhedrin 32b - Judging Unscrupulous people

The gemara says that when the judges get a feeling that the litigant is unscrupulous he should take precautions to do drishos v'chakiros and thoroughly investigate the witnesses. But if he doesn't have any reason to suspect the litigants, there are no drishos v'chakiros necessary by dinei ma'monos. Tosafos asks that we find in shavuos 30b that the beis din should abstain from judging when the litigant isn't a decent person based on מדבר שקר תרחק. Tosafos answers that the gemara in shavuos is speaking when the beis din knows with certainty that he is crooked, but here we are speaking about they merely suspect a din me'rumah. The Rosh offers another approach to answer Tosafos' question. The gemara in shavuos is speaking when the claimant is suspected of being unscrupulous, therefore it is best for beis din to abstain from judging the case at all, thereby preventing him from unjustly taking money from the defendant. But our gemara is speaking where the defendant is unscrupulous, so the beis din is required to get involved to protect the claimant, but they have to be careful to cross examine the witnesses properly.

Rashi doesn't seem to fit with either approach. Rashi says that we are speaking here when the beis din knows that the claimant is a thief (ra'mai) or they understand from his claim that he is deceitful. Rashi can't hold of Tosafos answer because we even speaking about a case where they recognize him as a known deceitful person. Rashi also can't hold of the Rosh's approach because he says that we are speaking when the claimant is known to be deceitful, not the defendant.

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To be mekayem שלשים יום קודם לחג שואלין ודורשין בענינו של חג, the maharatz chiyus points out that we find in the gemara that R. Akiva was from b'nei berak, and R. eliezer from Lod. They were too far from one another to travel on yom tov. Being that R. Eliezer had a well documented opinion (succah 27b) that one may not leave their home for yom tov (since they are required to be mi'samei'ach their family), how can the Haggadah tell us that R. Eliezer spent Pesach night in B'nei Berak with R. Akiva telling the story of yetzias mitzrayim?

Perhaps the Ba'al Hagaddah is trying to prove that the mitzvah of sippur yetzias mitzrayim is not all or nothing, but can be fulfilled at different levels. One who is more capable of darshening in detail and depth is obligated to do so, whereas one who is not capable can be yotzei with a more minimal discussion. This is clear in the Rambam when he discusses the mitzvah of sippur. R. Eliezer realized that in Lod he couldn't fulfill the mitzvah of sippur at the level that he was required to and therefore was willing to forfeit staying at home (and lose out on that mitzvah) in order to properly fulfill the mitzvah of sippur yetzias mitzrayim.

Sanhedrin 29a - Kol HaMosif Gorei'ah

The gemara learns out the concept of כל המוסיף גורע from chava who told the snake that she wasn't allowed to even touch the tree and as a result misled her into eating from the eitz hada'as by pushing her into the tree and showing her that there is no consequence from touching the tree. In my sefer, Nasiach B'Chukecha (page 267) I quoted the Minchas Chinuch who proves from this gemara the opinion of the Rambam against the Ra'avad. The Rambam and Ra'avad argue about when the the Rabbonon institute a gezeira, whether it is necessary for them to make it clear that the nature of the prohibition is only d'rabonon and not d'oraysa. The Rambam insists that the Rabbonon be clear that gezieros such as not eating chicken and milk together, are only Rabbinic in origin, but by claiming it has d'oraysa sources they would be in violation of ba'al tosif. The M.C. explains that if adam sinned by telling chava not to touch the tree, it makes sense that we derive from the episode a concept of כל המוסיף גורע, but if we consider the safeguard implemented by Adam to be a positive contribution, why does the gemara consider it an aveira? Nonetheless, even within the opinion of the Rambam it isn't clear that there would be a violation for NOT saying that it is d'rabonon. The violation of ba'al tosif may only be when you claim explicitly that it is d'oraysa. Presumably Adam didn't claim that Hashem told him not to touch it, rather just told chava not to touch it, so even according to the Rambam it is difficult why we consider this to be a violation.

Sanhedrin 28a - Chart for P'sul Kurva (a little sloppy)

Sanhedrin 28a - Passul Witnesses with Ba'al K'ishto

הסמ"ע (ס' ל"ג, ס"ק ט"ו - ט"ז) כתב כיון שאיש עם אשתו נחשב כראשון בראשון ולא כגוף אחד, לכן מותר להעיד לבן בנה לדעת הרמב"ם שמתיר ראשון בשלישי וכסתימת המחבר (ס"ב). אבל הט"ז השיג ע"ז דכיון שבן בנה אסור להעיד לו משום דלגבי דידיה הוי ראשון בשני בבעל כאשתו, לא דיינינן ליה כראשון בשלישי אלא כראשון בשני. הנתהמ"ש (ס"ק ח') הכריע שהעיקר כהט"ז לפסול בזה, אבל הגר"א (ס"ק כ"ג) מיישב דעת הסמ"ע דכבר מצינו בגמ' בב"ב קכט ע"א שהתיר מר בר רב אשי להעיד לבן בנו ופרשו התוס' דנהי דשני בשני פסול וזה הוי ראשון בשני, כיון דאיתפליג דרא יש להתיר [וכ"כ התוס' בסנהדרין לגבי משה שפסול להעיד לפנחס בן אלעזר בן אחרן, דהוי ראשון בשלישי, אבל לאשת פנחס מותר משום דאיתפלג דרא]. ולכן אע"פ דלא קיי"ל כמר בר רב אשי, מ"מ מועיל סברתו אף לדידן להתיר להעיד לבן בנה של אשתו או לאבי אביה של אשתו, דכיון דאתפליג דרא דיינינן ליה כראשון בשלישי ולא כראשון בשני בבעל כאשתו.

Sanhedrin 27a - Eid Zomeim is a Chiddush

Rava holds that if one testifies in nissan and becomes an eid zomeim in tishrei, he is not invalidated as a witness retroactively from nissan and is only invalid from tishrei and on. The rationale according to the first version of the gemara is that eid zomeim is a chiddush so he would only be invalid from the time that the chiddush is introduced, namely tishrei. Rashi explains that the chiddush of eidim zomemin is that the second two who claim "you were with us elsewhere" have the ability to invalidate the first two. Tosafos struggles with this because in Baba Basra 31b, Rava himself entertains the notion that even when two groups of witnesses contradict one another, they are all invalid for other testimonies. Clearly, the sevara is that when there is a contradiction both pairs should be void. Why then is the invalidation of the first group considered a chiddush? Tosafos offers two approaches. In the second approach, Tosafos suggests that the chiddush of eidim zomemin is not that the first group becomes invalid, but rather that the second group remains kasher. The logic of Tosafos is, just as we invalidate two groups who contradict one another about an event, we should invalidate both groups when they contradict one another about the plausibility of the first group witnessing the event.

Tosafos struggles with their second approach - Since the chiddush is that the second group remains valid, but it is not at all a chiddush that the first group is passul, what is the justification of the gemara to only invalidate them from hereon in and not retroactively from the date that they testified? Tosafos asnwers that since there is a chiddush regarding the leniency of eidim zomemin that the second group remains valid, we cannot learn even from the invalidation of the first group. Tosafos draws a parallel from chulin 99 where the gemara says that we can't learn the concept of ta'am k'ikar from meat and milk because ba'sar v'chalav is a chiddush. Although the chiddush of basar b'chalav is a leniency that they don't become assur unless they are cooked together, we cannot learn from the stringency.

R. Akiva Eiger (Gilyon HaShas) asks, what is the comparison between eidim zomemin and ba'sar v'chalav? By basar v'chalav there is a chiddush in the leniency of it, so we are concerned that the stringency of ta'am k'ikar is also a chiddush, therefore we cannot learn from there to elsewhere. But by eidim zomemin, the stringency of invalidating the first group is a sevara, and not part of the chiddush of the din. Therefore, the chiddush in the leniency of the second group remaining valid shouldn't have any bearing on the first group. The invalidation of the first group is a sevara that is not sourced in eidim zomemin and applies even in cases of contradictory witnesses, so why should it be regarded as a chiddush? Perhaps Tosafos holds that since we find a chiddush regarding the leniency of eidim zomemin that the second group is valid, the din should have been that the first group is also kasher. The contrast of the first group being passul in comparison to the second one being kasher is reflective of a chiddush even in the invalidation of the first group.

Sanhedrin 26b - Excuse to Prevent Becoming Passul for Eidus

The gemara says that gravediggers who worked on yom tov were at first invalidated as witnesses by Rav Papa, but Rav Huna Brei D'rav Yehoshua was machshir them because "they think that they are doing a mitzvah". This din is paskened in Shulchan Aruch 34:4, that anyone who violates even an issur torah but justifies it by thinking that they are doing a mitzvah, wouldn't become passul l'eidus. The gemara then asks and answers: והא קא משמתינא להו? סברי כפרה קא עבדי לן רבנן. According to Rashi the question is: We put them in cheirem and they violate the same prohibition a second time so they can't justify that they are doing a mitzvah? To this the gemara answers: Even though we put them in cheirem they still convince themselves that they are doing a mitzvah, just that they think that the cheirem is necessary for atonement of being mechalel yom tov. Rashi seems to explain the justification of the gravediggers to be similar to one who fasts a ta'anis for a dream no shabbos who is doing the right thing, yet needs to fast again for atonement for fasting on shabbos. Here too, they think that they are doing the right thing by burying the dead on yom tov, just that they require the cheirem to serve as a kappara for their actions.

The Ran seems to have a different approach in this question and answer. The Ran seems to understand that if they were to repeat the aveira again after being put in cheirem, they would certainly become passul because they should understand from the cheirem that they did an aveira. The question of the gemara is that since we put them in cheirem and they don't bother coming to beis din to justify their actions, we should assume that they are intentional violators and passul for eidus? To this the gemara answers that the reason that they don't come to justify is because as soon as they are put in cheirem they realize that they did an aveira and want the punishment of cheirem to serve as an atonement.

We are left with a machlokes between Rashi and the Ran if they would bury someone a second time after being put in cheirem, whether they would be passul. But, all agree that the justification of מצוה קא עבידנא, is not just a rationale to make them kasher m'doraysa, but would even make them kasher m'drabonon. Why is this different than all those who are listed in the mishna 24b who become passul m'drabonon even though they can justify their actions such as a gambler where tosafos writes that even according to the opinion that they violate theft m'doraysa, they are only passul m'drabonon because they don't realize the severity of their actions? Also one who lends with interest and violates an issur d'oraysa, Tosafos writes would only be passul m'drobonon since he justifies taking the money with the consent of the borrower? The answer seems to be that when they justify their actions by saying that they are doing a mitzvah then they aren't even passul m'drabonon, but if they merely justify by not realizing the severity of the issur then they would still be passul m'drabonon. However, this wouldn't explain סוחרי שביעית where Tosafos says that even if they violate an issur d'oraysa they would only be passul m'drabonon since they consider themselves to be providing livelihood to the poor in the shemittah year. Clearly, they justify by saying that they are doing a mitzvah, yet they are passul m'drabonon, so why are the gravediggers not even passul m'drabonon? I would suggest that there is a distinction between the gravediggers who think that the act of burying is a mitzvah, and those who do business with fruits of shevi'is, who know that making money with the fruits of shevi'is isn't a mitzvah, but think that the benefit of the mitzvah of providing parnasah to the poor would offset the aveira. When they think that their action is a mitzvah, they aren't even passul m'drabonon, but when they just think that their aveira is offset by a mitzvah, they are still passul m'drabonon.

Sanhedrin 25b - Lo Tachmod: With or Without Paying

The braisa lists a "chamsan" on to the list of the mishna of people who are passul for eidus m'drabonon. The gemara explains that it wasn't on the original list of the mishna because originally they thought that since money was being given, it is only אקראי בעלמא הוא, but then they saw that people were grabbing the items so they added it to the list. Tosafos is troubled why a chamsan isn't passul for eidus m'doraysa, since he is in violation of לא תחמוד. Tosafos offers two approaches:

1. Although the gemara in Baba Metzia 5b implies that people understand לא תחמוד to apply without paying, which implies that it actually applies even when money is paid, the truth is as they think that it only applies when money is not paid. Therefore, a chamsan who pays isn't in violation of לא תחמוד.

2. The implication of the gemara in Baba Metzia that לא תחמוד applies even when no money is paid, is in fact accurate. However, since people think that it only applies when no money is paid, the violator wouldn't be passul for eidus, since they don't realize that they are doing an issur.

The interpretation of our gemara is subject to these two approaches of Tosafos. According to the first approach that לא תחמוד doesn't apply when money is paid, the gemara is saying that originally since they were paying, they didn't become passul, but when they started grabbing without paying then they became passul for violating לא תחמוד. But according to the second approach that they were actually in violation of לא תחמוד even when they were paying, the gemara has to be saying that originally they were convincing the seller to sell albeit reluctantly, so there wasn't any violation of לא תחמוד, but later they were forcefully taking it without convincing the seller to sell so they were in violation of לא תחמוד even though they were paying for it.

Rashi seems to explain the gemara similar to the second approach of Tosafos, that originally they were not grabbing from the owner, rather convincing him to sell although he was never fully convinced to do so, but later they started grabbing and throwing the money in front of him.

Regardless of the approach, Tosafos holds that even if there is a d'oraysa violation of לא תחמוד, he wouldn't become passul on a d'oraysa level because people don't realize that this is a violation of לא תחמוד. This is clear from Tosafos 24b where he writes that as long as they don't realize that they are doing an issur, they wouldn't become passul m'doraysa.

Sanhedrin 24b - Are Gamblers Invalid for Witnesses and Judges?

The Mishna lists gamblers among those who are unfit to judge, and as rashi points out, unfit to testify since they are regarded as re'shaim. There is a discussion in the gemara as to why a gambler is unfit to testify/judge. Rami Bar Chama holds that it is an issue of אסמכת, which means that the money he wins is regarded as stolen. Rav Sheishes disagrees and attributes the p'sul to not being involved in ישובו של עולם. The gemara points out that the difference between the two opinions would be a situation where he has another job aside from gambling. The issue of אסמכת would apply regardless of whether he has another means of support, whereas the issue of ישובו של עולם would only apply if he has no other means of support.

Tosafos points out that both opinions in the gemara agree that the p'sul is only Rabbinic, because even the opinon who considers it theft due to אסמכת, since he doesn't realize the severity of the prohibition, he is not invalidated as a witness on a d'oraysa level. Regardless, we pasken like R. Sheishes that the p'sul is attributed to him not being involved in ישובו של עולם which would surely be d'rabonon.

There is a machlokes Rambam and Rashi as to the nature of the p'sul of not being involved in ישובו של עולם. The Rambam associates this with a gezel problem. Since the looser isn't willingly forfeiting his money to the winner, it is considered avak gezel. The S"MA (c.m. 34:40) explains the position of the Rambam - since it is not technically theft, the Rabbonon only considered it to be a problem if his main livelihood was coming from his gambling earnings. When the gemara stipulates that he is only passul if he doesn't have another אומנות, the gemara really means to say that he doesn't have another source of income. If he has another source of income, or is wealthy so that he doesn't need the gambling earnings for support, he would be kasher as a witness. However, if he had another income but required the earnings from gambling to support himself, he would be passul. The Gr"a (c.m. 203:44) disagrees with the approach of the sm"a and explains that the Rambam actually paskens like rami bar chama that אסמכת isn't ko'neh, and therefore considers it to be a gezel issue. But, the gr"a holds that even though it is a gezel problem, the rabbonon only invalidated him when he has no other livelihood.

Rashi considers the issue of not being involved in ישובו של עולם to have nothing to do with theft. Rashi writes - דהואיל ואין עסוקין בישובו של עולם, אינן בקיאין בטיב דינין ומשא ומתן ואינן יראי חטא. Rashi considers the issue to be an indication of a very low level of yir'as shamayim. The SM"A explains that this only applies to someone who doesn't work and doesn't realize the difficulties involved in earning money and would be prone to testify falsely (because he associates money as easy come easy go, and doesn't take it seriously). But someone who works, even if he can't support himself without the added income from gambling, wouldn't be passul for eidus since he realizes the challenges of earning a living.

The Shulchan Aruch who follows the Rambam and considers the problem of gambling to be associated with theft, goes lishitaso (c.m. 370:3) where he writes that one who gambles with gentiles would not be in violation of gezel (since only actual and direct theft is forbidden from a gentile, but not when he looses in gambling and agrees to give the money). Rashi would certainly not make this distinction and would hold that even one who gambles with gentiles would be passul to testify. Even according to the Rambam, the Shulchan Aruch frowns upon gambling and writes:

אבל יש בו איסור עוסק בדברים בטלים שאין ראוי לאדם שיעסוק כל ימיו אלא בדברי חכמה ויישובו של עולם

Sanhedrin 20b - Asking For A King

The gemara quotes a braisa which has a machlokes regarding the legitimacy of appointing a king. R. Yehuda says that it is one of the 3 mitzvos that the Jews had when they entered E.Y. However, R. Nehorai says: לא נאמרה פרשה זו אלא כנגד תרעומתן. Rashi explains that R. Nehorai argues on R. Yehuda and holds that the "mitzvah" of appointing a king was never said as a mitzvah, and was never meant to be an ideal. The only reason that Hashem permitted the appointing of a king is to preempt the complaints of the Jews who would ask for a king. Finally, the third opinion is that of R. Eliezer who holds that the zekainim asked properly since they were looking for an authority to enforce the law, but the amei ha'aretz asked improperly since they were looking for someone to help them conquer land from their enemies.

Based on Rashi's understanding that R. Yehuda holds it is a mitzva, and R. Nehorai disagrees; if we were to pasken like R. Yehuda, we couldn't hold like R. Nehorai. However, the Rambam seems to have a different approach. The Rambam (Hil. Melachim 1:1-2) writes that there are 3 mitzvos when the Jews enter E.Y., to set up a king, destroy amalek, and build the beis hamikdash. The Rambam holds like R. Yehuda that there is a mitzvah to set up a king. Yet, the Rambam writes at the end of Halacha 2:

מאחר שהקמת המלך מצוה למה לא רצה הקב"ה כששאלו מלך משמואל? לפי ששאלו בתרעומת ולא שאלו לקיים המצוה אלא מפני שקצו בשמואל הנביא שנאמר כי לא אותך מאסו כי אותי מאסו

As the Radvaz points out, the Rambam seems to be paskening like R. Nehorai that the king was a result of תרעומת - complaints. How does the Rambam fit R. Yehuda together with R. Nehorai? He holds that even according to R. Nehorai there is a mitzvah to have a king but the intentions were bad. They should have been asking for a king with the intent of doing the mitzvah, but instead they wanted a king as a complaint about their present situation.

The Ran in his Drashos has a beautiful approach to the issue. He explains that there is a separation of powers between the judicial branch who were assigned with judging din torah, and the executive (king) branch that were assigned with maintaining law and order. They wanted a king who would fill the role of the "shofeit". They were looking to replace din torah (judged by the shofeit) which brings about השראת השכינה, with secular law that only serves the purpose of maintaining law and order. Their sin was in requesting: תנה לנו מלך לשפטנו. The king was meant to compliment the shofeit and fill in the gaps where the Torah acquits and he must be גודר גדר and convict to maintain law and order. The king was never meant to substitute din torah.

Sanhedrin 19a - Distinction Between Kings from Yehuda and Yisroel

The Mishna says that a king cannot judge nor can he be judged. The gemara explains that since he cannot be judged due to a lack of respect for him, he cannot judge. But, the gemara makes a distinction between Kings of Yisroel and Kings of beis David. The Mishna that doesn't allow for a king to be judged is speaking about a king of Yisroel who cannot be judged because of the catastrophic story that occurred with Yanai and Shimon Ben Shetach, but a king from beis david can be judged therefore he can judge.

Tosafos limits the allowance for kings of beis david to judge. They can only judge monetary cases, but capital cases where there is an issue of לא תענה על ריב - לא תענה על רב, which forbids the other judges from disagreeing with the king, even kings of yehuda cannot judge.

The lechem mishna understands that the Rambam (Sanhedrin 2:4-5) disagrees with Tosafos. The Rambam holds that the drasha of לא תעשה על רב forbids a king from sitting on the sanhedrin, but doesn't disqualify him from judging privately. Therefore, a king of beis david can sit as a judge privately. To me it seems that the Rambam and Tosafos are both taking the same approach. Being that a king cannot be on the sanhedrin (even a sanhedrin of 23), he can never judge a capital case and will only be able to judge a monetary case.

There is a difficulty in the language of the Rambam. The Rambam in Hil. Sanhedrin (2:5) explains why a king of yisroel cannot judge:

לפי שאין נכנעים לדברי תורה שמא תבא מהן תקלה

The Rambam in Hil. Melachim (3:7) echoes this point:

מפני שלבן גס בהן ויבא מן הדבר תקלה והפסד על הדת

The Rambam provides a rational justification for a king being unfit to judge, and attributes it to their arrogance that will lead to a catastrophe similar to the story of Yanai. The Rambam is compelled to indicate that there is a difference between kings of beis david and kings of yisroel in their character, to explain why the concern of Yanai would be limited to kings of Yisroel.

The Kesef Mishneh seems to hold that the geziera was limited to kings of Yisroel because the Rabbonon were reluctant to make a decree forbidding kings of beis david from being judges, after the pasuk explicitly allows for it. But for kings of Yisroel where there is not explicit pasuk allowing for it, they were able to impose their gezeira (this is reminiscent of the taz y.d. 116 who says that the rabbonon don't make a gezeira that is against an explicit pasuk). But, the Rambam seems to make a very rationale distinction based on the different character traits of kings of beis david vs. kings of yisroel. In the commentary on the Mishna, the rambam is very clear about this character distinction:

זה במלכי ישראל בלבד, לפי שהיו עבריינין במלכותם לא היו משבחין השפלות, ולא היו נכנעין לדברי תורה. אבל מכלי בית דוד דנין ודנין אותם לפי שהם יודעים התורה ולא היה רע בעיניהם השפלות וההכנעה לדברי תורה לפי שמלכותם על פי התורה לא יגרע ממנו ענותנותם

The Rambam adds a line beyond the distinction in character. He explains why the tendency of kings of beis david is to be more humble. The malchus beis david is well deserved based on the Torah, therefore they don't need to enforce it with their arrogance. The Rambam gives a tremendous insight into human nature. When a person is confident about his status he doesn't need to enforce his kavod and is willing to be submissive to dinei torah. But, malchei yisroel who don't really deserve the status feel a need to enforce it, and therefore aren't willing to subjugate themselves to din torah.

Sanhedrin 18a - Kohen Gadol Following the Deceased

The Mishna quotes a machlokes regarding a kohen gadol walking behind the coffin in the funeral procession. R. Meir (as explained by Rashi) holds that he can't be within the same courtyard because he may come to touch the coffin and make himself ta'mei, thereby violating a l'av. The Gemara 19a says that according to R. Meir the pasuk of ומן המקדש לא יצא, means that he should not leave his status of kedusha. The gemara implies that the necessary distance is that they shouldn't be in the same alleyway, because the distance will serve as an indicator to prevent him from touching the coffin. The simple reading of the gemara implies that the Torah violation is only when he touches the coffin and makes himself ta'mei, just that the Rabbonon insist on a greater distance. However, Rashi in the mishna and the gemara clearly writes that the Torah violation of not leaving his kedusha demands that he create a safeguard to prevent the possibility of becoming ta'mei. This seems to be a situation where we have a mitzva d'oraysa that serves as a safeguard for another mitzva d'oraysa. The Torah requires that he take precaution to prevent tu'mah.

R. Yehuda argues and holds that the pasuk ומן המקדש לא יצא, means at it sounds literally that he shouldn't leave the mikdash at all to follow the deceased. Rashi on the Mishna writes that R. Yehuda reads the pasuk literally and rejects R. Meir's understanding of מקדושתו לא יצא. However, the gemara 19a seems to understand that R. Yehuda reads the pasuk exactly as R. Meir does, just that he considers it necessary to make a greater safeguard that completely prevents him from following after the deceased because in his depression over the loss he won't be so aware of how close he is to the dead. The Rashash also raises this question. It seems that Rashi in the mishna understands that R. Yehuda in the gemara is just responding to the opinion of R. Meir. Even if R. Meir is correct in how he understands the pasuk, there would still be an issur even to follow after the meis from a distance.

The Ramban in Chumash (21:12) disagrees with Rashi and understands that according to both opinions the entire prohibition of following after the coffin is only d'rabonon, as the language of the gemara implies. Therefore, the issur only applies to his own relative where he is likely to be drawn close to and come into physical contact with, but doesn't apply to others. The actual pasuk is coming to say that when the kohen gadol is doing the avoda, he cannot stop what he is doing and leave for a meis because it is degrading to the avoda. The Ramban writes explicitly that a kal v'chomer can be made to a kohen gadol leaving in the middle of the avoda for some other purpose.