Sanhedrin 82a - Heter to Kill the Goy

The gemara discusses the din of קנאין פוגעין בו and its parameters. Although the gemara doesn't identify the source of the heter, Rashi in the mishna 81b and the Rambam (Hil. Issurei Biah 12:4) both write that it is a halacha l'moshe m'sinai. The gemara itself hints to this (82a bottom) that Pinchas recalled this as a halacha that Moshe taught him after descending from Har Sinai. However, the halacha l'moshe misinai seems to only be a heter to kill the Jew who violated the chilul Hashem of publicly having relations with the goy. Actually, Pinchas was only allowed to kill Zimri without consulting his Rebbi, Moshe, because it was a situation of chilul hashem (as rashi explains d.h. shmuel - שכל מקום שיש חילול השם אין חולקין כבוד לרב לפיכך הורה בנחס הלבה בפני רבו ולא המתין ליטול רשות ממשה, שלא יראו הרואים וילמדו להתיר את כותית). But, what is the heter to kill kazbi (the non-jewish woman)?

Rav Moshe (Igros Moshe, Even Ha'Ezer 1:38/39) discusses this question. In a teshuva to his eldest son in law, Rav Shisgal, he explains based on the Rambam (Hil. Issurei Biah 12:10) who writes:

אבל ישראל הבא על הכותית וכו' כיון שבא על הכותית בזדון הרי זה נהרגת מפני שבא לישראל תקלה על ידיה כבהמה, ודבר זה מפורש בתורה שנאמר "הן הנה היו לבני ישראל בדבר בלעם וכל אשה יודעת איש למשכב זכר תהרוגו - רמב"ם הל' איסורי ביאה פרק י"ב הל' י

The Rambam holds that just as an animal that was a Nirvah is killed because of the embarrassment of the Ro'veia, so too the adulterous shiktza who caused תקלה to the Jew is also killed. Rav Moshe struggles with why the Rambam has to search for a source for this din using the pasuk of b'nos midyan, and not just cite the pasuk by Pinchas where we know that he killed kazbi along with zimri. Rav Moshe understands that had the Rambam used Pinchas as a source, it would only be a heter to kill her at the time of the act, when there is a heter to kill him, but by citing a pasuk by the daughters of midyan we learn that even afterward they can be killed. Rav Moshe explains that it is possible that the adulterous woman (i..e kazbi) can be killed after the fact, even without a beis din. Rav Moshe explains that the gemara implies that the limitation of the din קנאין פוגעין בו being only at the time of the act and the din that the ka'nai is not allowed to consult with a beis din, are fundamentally connected (ולא עוד אלא שאם וכו). The fundamental connection is that the Torah has some level of compassion on the adulterer, therefore beis din won't give permission to kill him and he can only kill at the time of the act. However, the concept of kana'us would technically extend even after the act. Therefore, the gentile woman, who the Torah doesn't have the same level of compassion on, can be killed even after the act is over (under the heter of קנאין פוגעין בה and would not require a court proceeding).

Rav Moshe's approach to the Rambam leaves one aspect difficult. The language of the Rambam implies that any situation of a Jewish man having relations with a shiktza, she can be killed because of the "taka'la" she is causing him. The Rambam doesn't limit this to a public display where we apply the din of קנאין פוגעין בו, and seems to hold that it would apply to even a private relationship. Rav Moshe who understands that the basis for the heter to kill her is also קנאין פוגעין בה because he holds it can be done even without a beis din, is forced to say that she is only allowed to be killed when done publicly, not privately. Limiting the ability to kill her after the fact to a situation where the aveira was done publicly is against the simple reading of the Rambam? Perhaps we can explain based on the Nimukei Yosef that I mentioned yesterday on this blog, that the din קנאין פוגעין בו when done in public, is indicative of the severity of the aveira even when done in private (יהרג ואל יעבור). Therefore, if we are able to kill her when it is done in public because of the "taka'la" she caused, similar to the animal that is killed, she can even be killed based on this rationale when the aveira was done in private.

Sanhedrin 81b - Jew Having Relations with a Goy

R. Yakov Kaminetzky (Parshas Vayechi) tries to explain the difference between the kana'us of Shimon and Levi. They were both involved in killing out shechem, and were chastised by Yakov. Levi learned how to control their kana'us and use the Torah to moderate when it is appropriate. Shimon on the other hand never controlled his kana'us. In the episode with Zimri, it was the Torah controlled kana'us of Pinchas (shevet levi) who killed the uncontrolled behavior of Zimri who was from Shimon. His point is that the din of הבועל ארמית קנאין פוגעין בו, is exactly that. As Rashi writes, it is a halacha reserved for בני אדם כשרין המתקנאין קנאתו של מקום, not a more hotheaded approach to venting personal anger.

R. Yakov illustrates the idea of an uncontrolled kana'aus that is not within the confines of Torah. The question is sometimes asked, which is worse - to marry a goy or marry a woman who won't keep hilchos nidah? The kana'us of a תלמיד שלא שימש כל צרכו would surely be to respond based on the associated punishment - relations with a nidah is kareis, therefore worse. However, R. Yakov points to the Rambam (Hilchos Issurei Bi'ah 12:7-8) who writes about the severity of even having relations with a goy.

The Rambam writes:

עון זה, אע"פ שאין בו מיתת ב"ד אל יהיה קל בעיניך, אלא יש בו הפסד שאין בכל העריות כמותו, שהבן מן הערוה בנו הוא לכל דבר ובכלל ישראל נחשב אע"פ שהוא ממזר, והבן מן הכותית אינו בנו וכו' ודבר זה גורם להדבק בעכו"ם שהבדילנו הקב"ה מהם ולשוב מאחרי ה' ולמעול בו

The Rambam points to the child born from the illegal relationship as a more accurate litmus test to the severity of the relationship. A child born from adultery is a mamzer, but retains status of a Jew, whereas a child born to a non-jewish woman from a Jewish man doesn't even retain the status of a Jew. Furthermore, marriage out of the faith leads to the deterioration of the very fabric that holds the Jewish people together by causing attachment to the goyim and reject Hashem. Based on this Rambam, Rav Yakov writes that it is obvious that it is better to marry a Jewish woman and violate an issur kareis regularly, than to marry a non-jew.

A very strong proof the severity of the issur to have relations with a goy is the Nimukei Yosef at the end of perek ben sorer u'moreh. In the context of giving up one's life to avoid prohibited sexual relationships, the Nimukei Yosef writes:

מיהו נכרית דאנסה ליה לישראל לבא עליה יהרג ואל יעבור שזו ודאי בכלל עריות חמורות היא, דהא זימנין דחייב מיתה כגון בפרהסיא וכמעשה שהיה דקנאין פוגעין בו, ואם לא פגעו בו קנאין חייב כרת, הלכך אפילו בצנעא דליכא כרת יהרג ואל יעבור מדין אבזרהא דהא אשה זו פעמים שהיא ערוה גמורה וחייב עליה כרת

The Nimukei Yosef says that one would be obligated to sacrifice their life to avoid having relations with a goy. Even in a situation where one isn't able to be killed, such as in private, they must give up their life to avoid the prohibition.

Sanhedrin 76b - The Mitzvah to Kill a Killer

The mishna lists murder among the capital punishments. In actuality they are specifically commanded to kill a murderer.

The Ramban in his additions to Sefer HaMitzvos (mitzvah 13) says that there is a specific mitzvah to not have compassion on one who murdered. The concept of the mitzvah is that Beis Din is obligated to carry out the judgement on the killer, not just as a positive mitzvah, but even as a lo ta'aseh as we find by a michasheifa.

The Brisker Rav (Hilchos Rotzei'ach) is troubled why the Ramban needs to count this as a separate mitzvah, since the Rambam (mitzvah 279) mentions this exact la'v of "lo ta'chos ei'necha a'lav" within the context of a judge not having compassion on one who committed a crime. The Brisker Rav proves from the Rambam in that he understands the nature of the issur very differently than the Ramban. In Hilchos Sanhedrin (14:3) the Rambam writes that a beis din who doesn't kill those who are chayev mi'sah are in violation of an a'seh of "u'bi'arta ha'ra" but not in violation of a lo ta'aseh. It is only by a mechasheif that we find a specific lo ta'aseh that the beis din would be in violation of if they fail to kill him. The pasuk of "lo ta'chos ei'necha" is mentioned by the Rambam in Hilchos Dayanim (20:4) in the context of their sentencing of a murderer. The beis din is not allowed to have compassion and say that a life has already been lost, so what use is there to take another life. Rather, they must overcome their misplaced compassion and sentence the murderer to death.

According to the Rambam the prohibition of "lo ta'chos ei'necha" is in the sentencing stage. That is why the Rambam places the halacha in hilchos dayanim. The violation is not by their refusal to kill him, rather by the compassion that they exhibit in the sentencing. This is also apparent from the Rambam incorporating other penalties under the same heading of this l'av, because the nature of the prohibition is not to have compassion in their sentencing. The Ramban, on the other hand considers this to be a l'av that compliments the a'seh of "u'biarta ha'ra" which applies after he is already sentenced. The Ramban holds that if the beis din fails to carry out the sentence, they are in violation of this l'av. The Ramban adds a separate mitzvah which is not counted by the Rambam, which is not to have compassion in carrying out capital punishment after it is decided.

Sanhedrin 66b - Returning a Lost Object to a Goy

The gemara says that one who returns an aveida to a goy is violating the pasuk of למען ספות הרוה את הצמאה. It may not be a mitzvah of hashavas aveida, but what is the problem with returning an aveida to a goy? Rashi explains that by doing so he is showing that the mitzvah of hashavas aveida is not important to him because it is the will of Hashem, rather because he is doing a good deed and therefore does it even for a goy.

רש"י - ומראה בעצמו שהשבת אבדה אינה חשובה לו מצות בוראו, שאף לכותי הוא עושה כן שלא נצטווה עליהם

Rashi is offering a very insightful lesson which is expounded upon by the maharal in B'er Ha'Gola (page 31 in the standard printing). The Maharal discusses the mitzvah of hashavas aveida, and explainst that according to din torah it only applies until the owner is me'yaesh (gives up hope). Surely, etiquette would dictate that one should return an object to its poor owner who really wants it back even after 12 months have past, yet the din torah is lenient that he need not do that. Sometimes the etiquette is more demanding than din torah, sometimes it is less demanding, but the point is that it is an entirely different system. The Maharal explains that etiquette is based on societal norms that constantly change and evolve, and is not based on absolute truthful logic. Din Torah isn't established based on emotions or proper social behavior, rather it is absolute logic -וכאשר ראוי לפי השכל כך ראוי לעשות. The Torah is too perfect to be distorted by societal norms and is dependent solely on the wisdom of Hashem. The emotional connection that a previous owner has to his money isn't relevant so long as that connection has been severed through yi'ush which deems it no longer belonging to him.

In light of the Maharal, we have a better appreciation of what Rashi is attempting to teach. Mitzvos are above and beyond human emotions. Particularly in the realm of bein adam l'chaveiro type mitzvos, there is a concern that one doesn't associate the actions with the will of Hashem and does them only because they feel right. This slippery slope leads to a distortion of the Torah, and a distortion of what the Torah recognizes as logical absolute truth. The Ramban in parshas ki teitzei (by shi'luach hakan) explains that many of the mitzvos that relate to compassion are misunderstood as G-d trying to show compassion. The Ramban explains that the perspective is wrong. We don't do mitzvos out of compassion, we do mitzvos because it is the will of Hashem. It may be true that adherence to mitzvos will have a positive impact on our nature and teach us to be more compassionate, but the mitzvos of the Torah cannot be reduced to acts of compassion which remain completely subjective to the whims of society. Torah and Mitzvos are far above that as being the firm will of Hashem. This is the point that Rashi is expressing. One cannot do the mitzvah of hashavas aveida to a goy because although it may be a good deed and generally proper, it indicates that he recognizes the mitzvah as nothing more than a good deed. Mitzvos cannot be perceived as good deeds, rather as the מצות בוראו, command of the creator.

Sanhedrin 74b - Kiddush Hashem

The gemara has 2 main categories when a person would have to give up their lives (based on Ran):

1. Three severe aveiros (avoda zara, arayos, murder) - The gemara implies clearly that this applies even in private and even when there is not gezeira of sh'mad. The Ran explains that this even applies when they are doing it for their own pleasure because that distinction only applies to when the requirement of giving up one's life is kiddush hashem, but not when the requirement is the severity of the issur. Even for what is considered אביזרייהו, meaning that they are connected to these three such as pleasure from arayos and avoda zara one must give up their life. The only exception within the realm of these three aveiros is when the aveira is violated passively, קרקע עולם. One is only required to give up their life to avoid an active violation, but not to avoid a passive violation.

2. All other aveiros - One must only give up their life if it is public which means in the presence (or awareness) of 10 Jews, or if it is a time of sh'mad. Even when it is done publicly, and/or a time of sh'mad there are two exemptions. First, if the aveira is violated passively, even if violated publicly at a time of sh'mad one doesn't need to give up their life. Secondly, if their purpose is for their own pleasure not just for the sake of causing a Jew to do an aveira, one doesn't have to give up their life.

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It is important to fully understand the exemption of קרקע עולם. Although the gemara only uses it within the context of permitting a public violation, not to be matir the prohibition of adultery itself, Tosafos and the Ran both understand that it would be matir even the violation of adultery. This essentially means that the rationale of קרקע עולם is not only a "matir" in the realm of kiddush hashem, but even for the big 3 aveiros which are prohibited due to their severity. What is the rationale behind this exemption? Tosafos seems to focus on the aspect of קרקע עולם being שב ואל תעשה, meaning that the prohibition is being violated passively rather than actively and understands that even murder which is violated passively (although Rav Chaim takes issue with the example Tosafos offers), would be subject to this heter. Tosafos seems to understand that when a prohibition is violated passively it is far less severe than one violated actively, and therefore doesn't demand sacrificing one's life for it. The Ran explains this somewhat differently. The Ran considers the exemption of קרקע עולם not to just be a passive violation, but a situation where it wouldn't help to give up your life because they could anyway force you to commit the prohibition. For example, when a woman is threatened to be killed if she doesn't commit adultery, she doesn't need to give up her life since they could decide to rape her regardless of her decision. The difference between the Ran and Tosafos is a hypothetical situation where a woman is being threatened to commit adultery or they will kill her, but for whatever reason they wouldn't be able to rape her against her will. According to Tosafos the exemption of קרקע עולם would apply since the issur will only be violated passively, whereas according to the Ran it will not apply since without her consent they couldn't force her to violate the issur.

I would suggest that this machlokes would be dependent on a machlokes Rashi and Tosafos how exactly to understand the logic of מי יימר דדמא דידך סומק טפי, דילמא דמא דהוא גברא סומק טפי. Tosafos holds that one cannot murder to save their life since they have no reason to assume that their life is more valuable than their friend. In a predicament of my life vs. his life, the Torah demands being passive. It follows that if the murder can theoretically be violated passively, I can commit a passive murder to save my own life. From this Tosafos extrapolates that for any passive violation one need not give up their life. Rashi on the other hand seems to explain the logic somewhat differently. Rashi understands that the exemption of וחי בהם - ולא שימות בהם, which is normally the concept that allows someone to violate an issur to save their life, doesn't apply to a situation where a life is going to be lost one way or the other. Therefore, the heter to violate an issur to save one's life doesn't apply to a situation where one is being threatened to kill. Based on the approach of Rashi, the logic of allowing oneself to be killed is not "be passive", rather the logic is that he has not heter to violate the issur of murder to save his life. It should follow that even if the issur of murder is being violated passively (which may only be theoretical), or even if the issur of adultery is being violated passively, one must still give up their life in order to avoid it. Perhaps the Ran understands like Rashi and therefore has to come up with another logic to explain the exemption of קרקע עולם, such as they could have raped her anyway.

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GOYIM AND KIDDUSH HASHEM

Sanhedrin 73a - How much is necessary to invest to save someone's life?

The gemara learns out from the fact that the mitzva of hashavas aveida would require someone to save someone's life, that the explicit pasuk of לא תעמוד על דם רעך would demand even the spending of money (which would not be required by the mitzvah of hashavas aveida). The Rosh points out that if I indeed spend money to save someone's life, he is obligated to reimburse me, but even if he can't I am obligated to spend the money in order to save him. The Rosh learns this out from the gemara on 74a which says that if the "nirdaf" (one being chased to be killed), breaks the vessels of the "rodef" (chaser) in the process of escaping, he does not have to reimburse the loss of property, but if the nirdaf breaks the vessels of someone else, he must reimburse him. This shows that a bystander isn't obligated to pay for the saving of the nirdaf at his own expense when the nirdaf has money, because if the bystander would be obligated to pay to save the nirdaf, then he doesn't deserve to be reimbursed for the vessels that the nirdaf used to save himself.

How does the gemara know that the pasuk of לא תעמוד על דם רעך demands the spending of money (even if the person wouldn't have the financial ability to reimburse)? Rashi writes that the pasuk of לא תעמוד על דם רעך says, do not stand on yourself and hold yourself back from saving someone, rather - חזור על כל צדדין שלא יאבד דם רעך. The pasuk demands to do everything that is within your power to save someone's life, even if it will cost a lot. Rav Moshe (Igros Moshe Y.D. 1:223) points out that the normal limit of how much one has to spend on a mitzvah doesn't apply here. Rashi holds that the pasuk is specifically addressing how much one has to spend and is demanding that one spend whatever necessary to save someone else's life.

From the fact that Rashi had to darshen the pasuk and interpret it to be specifically addressing the expense, Rav Moshe has an amazing insight. There is a lot of discussion regarding the limitation of 20% that we are required to spend on positive mitzvos. The Rama in Hilchos Sukkah seems to hold that it only applies to positive mitzvos, but regarding negative mitzvos there is no limit to how much one must spend to avoid doing an issur. Rav Moshe proves from Rashi that the primary distinction is not whether it is a positive mitzvah or negative one, rather whether it is violated actively or passively. If the halacha was that for any negative mitzva, even if violated passively, one would have to spend everything then there would be no need for rashi to darshen the pasuk of לא תעמוד על דם רעך to demand spending money. The very fact that he would be in violation of a negative commandment would require the spending of money. From the fact that Rashi finds it necessary to darshen the pasuk to be saying explicitly that money must be spent, the implication is that for this type of lo ta'aseh he wouldn't have to spend more than 20%. Why? It must be that Rashi holds that a lo ta'aseh that is violated passively, similar to most positive commandments, only demands a maximum spending of 20%. It is only because Rashi darshens the pasuk to be explicitly demanding חזור על כל הצדדין שלא יאבד דם רעך, that he would be required to spend more than the 20% maximum.

Sanhedrin 72b - Rodeif Kattan

The gemara says that since a rodeif doesn't require warning, even a rodeif who is a child can be killed. Based on this, a 3 year old child holding a loaded gun aimed at someone with his finger on the trigger, can be killed even though the child isn't aware of what he is doing. The question is whether this idea applies only to a rodeif who is trying to kill, due to the significance of pikuach nefesh, or would it even appy to a'rayos? Meaning, if a child or sho'teh would be trying to rape a woman, would a bystander be able to kill the rodeif to prevent violating the victim?

The Ohr Samei'ach (Rotzeiach 1:13) writes this would be dependent on what the heter is to kill a rodeif after a woman to rape her. According to R. Yehuda 83b who considers a rape victim to be life threatening since she will try to save herself and may lead to him killing her, a bystander can certainly kill the rodeif as he would be able to kill a rodeif who is trying to kill. But, according to the Rabbonon that the Torah heter to kill a rodeif after ara'yos is that the Torah cares about the degradation caused to her, this would only apply to an adult who is a rodeif, not a child (or sho'teh). The Ohr Sameiach does acknowledge that the Rambam in sefer hamitzvos (lo ta'aseh 293) explicitly writes that one may kill a child who is rodeif after ara'yos to rape her. Clearly, the Rambam understands the degradation associated with rape that entitles the bystander to take the life of the rodeif (rapist), would apply even if the rodeif is a child and that is why a bystander may kill him to protect the victim.

Sanhedrin 70a - Ben Sorer U'Moreh: Eating of Mitzvah or Issur

The mishna says that the only type of eating that qualifies him as a ben sorer u'moreh would be an optional eating, to the exclusion of a seudas mitzvah and to the exclusion of eating things that are assur. The gemara 70b clearly says that the source for eating of issur not qualifying is the pasuk which says איננו שומע בקולנו which we darshen to mean - בקולינו ולא בקולו של מקום. Rashi explains that the only type of rebellion that he can become a ben sorer u'moreh on, is when he rebels ONLY against his parents, to the exclusion of one who doesn't even listen to the voice of Hashem.

There are 2 difficulties with this gemara: 1. The source of the gemara works well to explain eating of issur, but what is the source for eating of mitzvah not qualifying him as a ben sorer u'moreh? 2. The gemara includes in eating of issur even the eating on a ta'anis tzibur which is only d'rabonon. How does the torah itself recognize an eating that is only forbidden m'drabonon as not being included in the optional eating to qualify him as a ben sorer u'moreh, since m'doraysa it is an optional eating?

Regarding the second question, the maharatz chiyus writes that according to the Rambam (hil. mamrim 1:2) that there is a mitzvah to listen to the chachamim and one who violates a d'rabonon essentially violates an issur Torah, it is understandable that the Torah can recognize even an issur d'rabonon to qualify as "issur" and not render him a ben sorer u'moreh. It is far more difficult to work this out with the Ramban in sefer hamitzvos who argues on the Rambam and holds that violating d'rabonons is not a d'oraysa violation. According to the Ramban how does the Torah recognize issurei d'rabonon to qualify as issur that wouldn't render him a ben sorer u'moreh? Perhaps the drasha doesn't come to exclude the eating of issur, rather the pasuk comes to exclude any type of rebellion that is provoked or motivated by something other than rebelling against his parents. The eating of an isssur d'rabonon is also not provoked by rebelling against his parents alone, but is also provoked by a will to rebel against the Rabbonon. This is very meduyak in the Rambam (pirush hamishna) - לפי שנאמר "איננו שומע בקולנו" ועד שלא יהיה באותו המעשה שלו אלא המרות אביו ואמרו בלבד ולא המרות התורה. The pasuk isn't just excluding rebelling against the torah, but is excluding any eating that is not JUST a rebellion against his parents such as issurei d'rabonon. This approach would work even for the Ramban who disagrees with the Rambam.

Regarding the first question, the source for mitzvah eating not rendering him a ben sorer u'moreh, the gemara says that we limit the din of ben sorer u'moreh to cases where he is likely to be drawn after it. Any eating of a mitzvah will not be likely to draw him after it to continue stealing to indulge. The rationale seems to be that since the eating for mitzvah purpose is constructive, not for indulgence alone, it will not draw him to become a glutton. However, the Rambam (hilchos mamrim 7:2) groups the mitzvah eating together with the aveirah eating and writes - נאמר "איננו שומע בקלנו" שאינו עובר באכילה זו אלא על קולם, יצא זה שעבר בה על דברי תורה או שאכלה בדבר מצוה

The Radvaz in his commentary points out that the Rambam doesn't take the simple reading fo the gemara that we are only concerned of eating that will instigate more stealing. Rather, the Rambam understands that the very same pasuk which excludes an aveira also excludes a mitzvah. As we were medayek from the Rambam on the mishnah, the pasuk teaches that he only becomes a ben sorer u'moreh when the impetus to eat is for the sake of rebellion against his parents, to the exclusion of one who does an aveira who is also motivated to violate the will of the Torah AND excludes one who eats for a mitzvah where the eating is provoked and motivated by the intention of doing a mitzvah (this would include even a mitzvah d'rabonon).

Sanhedrin 69b - Only a Son, Not a Daughter

The mishna says that only a son can become a בן סורר ומורה. The gemara quotes a braisa that really it should apply to a daughter as well because if she steals as a young girl, she is more likely to resort to prostitution as she grows older to support her expensive taste. But, since the Torah says "ben", we understand it to be to the exclusion of a daughter. The gemara seems to imply that there is no logical reason to limit the situation to a son, but that is the gezeiras ha'kasuv.

However, the Meiri writes that this situation only applies to a son, not a daughter because:

שלא הקפידה תורה אלא על מי שדרכו להמשך אחר תאוותיו ולהשתקע בהן ואין זה בבת אלא בבן

The meiri seems to hold that a son would have more of a tendency to be drawn after his desires, rather than give them up when he has no money, more than a daughter would. He seems to understand the gemara to be saying that the gezeiras hakasuv to limit it to a son is also logical, just that withou the explicit limitation we would have expanded it to a daughter as well.

The maharatz chiyus says that Rav Shimon is the one who is speaking in the braisa because he is the opinion who generally darshens טעמא דקרא and would therefore expand the issur to a girl as well. The difficulty with this approach is that R. Shimon should then darshen the reason and expand it the concept to a daughter even after the Torah explicitly says a son. Why does he limit it? Based on the Meiri we can say that the reason Rav Shimon limits it is because we have another rationale that a boy would be more prone to being drawn after his desires more than a daughter so there is a ta'am to limit just as there is a ta'am to expand, therefore we follow the simple reading of the pasuk.

Sanhedrin 65b - Doing Magic

The gemara says that מעונן refers to אחיזת עינים, meaning it refers to making something look like magic, even though it is just an illusion. Based on this, the Chochmas Adam (89:6) writes that this would include illusions such as turning a rope into a snake, or throwing a ring up and make it look like it is being spit up by someone. He continues to write:

ומזה תראה שאותן הבדחנים שעושין כדברים אלו על החתונות ונקראין טאשין שפילער, עוברים בלאו דאורייתא והמצוה לעשותן עובר משום לפני עור, ולכן מי שבידו למחות צריך למחות וכ"ש שאסור להסתכל ולראותם, אבל אם הוא גוי שעושה נ"ל דמותר לראות

Based on this it would be an issur d'oraysa to hire a Jewish magician, and certainly to be a jewish magician, but one may watch (and maybe even hire) a non-jewish magician. Perhaps the chochmas adam would permit hiring birthday party magicians who don't do any spectacular copperfield style tricks. Rashi writes that the issur is that - ומראה להם כאילו עושה דברים של פלא. It would seem from rashi that if to the average person the trick doesn't seem supernatural, it would not be a violation. See also Igros Moshe (y.d. 4:13:1) where he explains based on the teshuvos ha'rama (he tries to be work out the contradiction in the Rambam whether there is malkus for achizal aynayim by saying that there are 2 types, one through kishuf and one using some other means that is actually doing something), that אחיזת עינים doesn't refer to quick movements that merely give the illusion of tricks as the shach and chochmas adam explain. With this he justifies the minhag of using badchanim at weddings, against the p'sak of the chochams adam.

In general regarding the sorcery prohibitions discussed in the gemara, the Rambam (Hil. oved chochavim 11:16) writes that they are all nonsense and were only used as tool to gather followers - ואין ראוי לישראל שהם חכמים מחוכמים להמשך בהבלים אלו ולא להעלות על לב שיש תועלת בהן וכו' כל המאמין בדברים האלו וכיוצ"ב ומחשב בלבו שהן אמת ודבר חכמה אבל התורה אסרתן, אינן אלא מן הסכים ומחסרי הדעת ובכלל הנשים והקטנים שאין דעתן שלימה, אבל בעלי החמכה ותמימי הדעת ידעו בראיות ברורות שכל אלו הדברים שאסרה תורה אינם דברי חכמה אלא תוהו והבל

The Rambam takes a very strong position that anyone who believes in magic is essentially a fool. But the GR"A (y.d. 179:13) writes that there are many sources in shas, including our gemara where the amoraim ate the calf that they created which confirm the power of this magic. The Rambam denies this only because he was convinced by the philosophers of his time. The gr"a prefers to understand the gemara literally, not allegorically and therefore holds that the Torah forbade this types of magic even though they actually work.

Sanhedrin 63b - Saying Mumbai

My brother raised an issue a few years back, after the terrible murders in the chabad house in mumbai, India. Jews began talking about the city, and he was concerned that this was a violation of ושם אלהים אחרים לא תזכירו based on our gemara that even to refer to the city kalnavo was a problem, if not for the fact that it is an avoda zara mentioned in the Torah and therefore permitted to say. The question was presented to Rav Shternbach, and I had some thoughts of my own. I am posting both emails below.

Dear Aryeh,
Rav Shternbach read through the e-mail. He holds it isn't a problem for us to say because the Gemara is only referring to a case where it is commonly known that the name is for an avodah zara. However, in a case where the common person has no idea what the name is and it is just used to describe a day, month, or place. There in no problem. I told him that I thought you anticipated such a heter and that is why you reiterate more than once that you think it is common knowledge. 1- The information is readily available to anyone that looks into it. 2- The name was changed so recently that people know why it was changed. However, Rav Shterbach feels that only people that look into it will know this. the common person living outside India has no idea what the name is for - as Rav Moshe said "I had no idea until I read the e-mail - Did you? Ask anyone you know and see what they say." He thinks this is the real heter for the months and days of the week.
I asked him what about a person who goes to India and there everyone knows why it was named Mumbai. Is it considered common knowledge there? I didn't get a straight answer and he had to run so I will try to push him on that.
In short - he disagrees with the premise that it is well known. We don't Judge by the actual place but the general common knowledge in the world even if it is information that is easily attainable. I assume this response/svara won't excite you that much and I haven't time to re-read the e-mail to see if there are any proofs against this Sevara. I Will also Bli neder ask him if there is a Proof for this definition of the Halacha.
Let me know if you have any other follow up questions.
Kol tuv,
Tani
--
Rabbi N. Lauer

My Response:
aryeh,
regarding the sevara of r' shternbach - i think it is definitely plausible and would like to build on it. Rather than distinguishing between how many people know it is avoda zara, i think there is an additional distinction. Rashi explains in sanhedrin 63b that the city "kalnabo" was assur to say (if not for the fact that it is mentioned in the torah) because "the city is called after the avoda zara inside of it". Meaning, that it is not speaking of a case where a city is named after an avoda zara, rather it is speaking where the city is ta'fel to the avoda zara. It would be similar to the way we refer to yeshivos - like "lakewood" or "baltimore" [or washington heights :)], just the reverse. the city isn't named after the yeshiva, but in the reference you make the city is ta'fel to the yeshiva. Here too, rashi says that when you refer to the city you are in actuality referring to the avoda zara since the entire city is tafel to the avoda zara. But, in mumbai the city is not tafel to the avoda zara, it was just named after an avoda zara. For example, if they renamed New York and started calling it Jesus, it would still be permitted to refer to the city by its new name.
R' Avi Lebowitz
Jewish Study Network
Palo Alto

When I presented this to Rav Nota Greeblatt he pointed out that rashi is difficult. How did rashi know that kalnavo was called that because of the avoda zara that was inside of it? Rashi most likely didn't know the metzi'us, rather he knew the halacha that it is only assur when the reference is to the avoda zara that is IN the city, so that the entire city becomes subordinate to that avoda zara. Rashi holds that if a city was simply named the name of an avoda zara to show kavod to an avoda zara that exists somewhere else, it would not be assur to refer to the city by that name. That is how rashi knows that kalnavo must have contained an actual idol inside it, to which the entire city was referred to.

Sanhedrin 62b - Mis'aseik by Chalavim and Arayos

The gemara makes a contrast between one who is מתעסק in חלבים ועריות and one who is מתעסק in hilchos shabbos. Regarding חלבים ועריות the rule is that even a mis'aseik is chayev because he is receiving hana'ah. The principal is that although one who is misa'seik is generally exempt and not regarded as doing an issur, somehow the pleasure that they receive from the action allows us to attribute the action to them and make them liable. The gemara contrasts this to hilchos shabbos where mis'aseik is exempt because מלאכת מחשבת אסרה תורה. Tosafos raises a fundamental question, why does the gemara cite the special rule of shabbos of mi'leches mach'sheves which indicates that intent plays a more significant role in hilchos shabbos, rather than simply say that in all other issurei torah (except for when one receives hana'ah), mis'aseik is patur? Tosafos offers 2 approaches. Their second approach is that there are 2 types of mis'aseik, one which is exempt from the standard pasuk of mis'aseik but is considered mileches machsheves because he accomplished his goal (i.e. trying to pick up a vegetable thinking it was detached and then realizing that it was attached). The other which is exempt based on mileches ma'chsheves such as when one tries to pick one vegetable and ends up picking another. However, in Tosafos first approach they offer a very interesting answer:

והכי קאמר, בשבת פטור אף על פי שנהנה משום מלאכת מחשבת

Tosafos is saying that the standard exemption of mis'aseik doesn't apply to a case where one benefits, as we see by חלבים ועריות where one is chayev even as a mis'aseik because of the benefit they receive. Therefore, when one violates shabbos as a mis'aseik but receives a hana'ah in the process, they should be chayev if not for the fact that the Torah has a special requirement of mileches machsheves.

This approach of Tosafos only makes sense if we assume that the concept of שכן נהנה would apply to hilchos shabbos and be mechayev one who is mis'aseik. However, it seems that the concept of hana'ah being mechayev even one who is mis'aseik doesn't apply to hilchos shabbos. The gemara picks 2 examples of where שכן נהנה applies, both eating cheilev (animal fats) and arayos (forbidden relations) because the nature of the prohibition is an issur of receiving a forbidden benefit. Within the realm of issurei achila, the rambam considers the general concept of issur achila to be an issur hana'ah (sefer hamitzvos #187 to explain why achila and hana'ah of meat and milk aren't counted separately), just that the Torah only assurs a very specific type of hana'ah, eating. Similarly, arayos is in essence an issur of receiving pleasure from a relationship with someone off limits. It is by these types of issurim where we say that the hana'ah can make up for the lack of awareness and be me'chayev one who is misa'seik. But, in hilchos shabbos where the nature of the prohibition is an act of melacha, rather than an issur of hana'ah, why does Tosafos assume that the pleasure he receives would make up for a lack of awareness to be mechayev one who is mis'aseik?

Furthermore, R. Akiva Eiger (teshuvos) assumes that the concept of שכן נהנה would apply to wearing sha'atnez and be me'chayev one who is mis'aseik in the wearing of sha'atnez (doesn't know it is ke'laim). The Imrei Bina (Dinei Shabbos end of siman 7) asks on R. Akiva Eiger:

ולא זכיתי להבין דבריו, הא כיון דשמואל נקט רק חלבים ועריות משמע דדוקא באלו דהוי אכילת איסור דנכנס תוך הגוף ועריות שפועל כל הגוף, בזה חייב שכן נהנה ולא בשאר הנאות

The Imrei Bina assumes that it is only a certain type of hana'ah, one that affects the entire body, would qualify as שכן נהנה to be mechayev a mis'aseik. His source for this limitation is the choice of חלבים ועריות as examples. He further proves this from the Rambam in hilchos shegagos (2:7) who writes the the שכן נהנה concept applies to arayos and forbidden foods, clearly indicating that it doesn't apply to other pleasures such as one who is mis'aseik in smearing themselves with שמן המשחה, since the benefit is minor they would be exempt.

To me it seems that the Rambam is not coming to the exclusion of more minor benefits, but rather to the exclusion of cases where the nature of the issur is an issur ma'aseh, not "pleasure". The Rambam holds that only in regard to arayos, ma'achalos asuros and things similar where the nature of the issur is to prohibit pleasure or benefit, are we mechayev a mis'aseik שכן נהנה. But when the nature of the issur is not benefit, rather an issur to do something, such as melacha on shabbos, even one who receives pleasure would be exempt as a mis'aseik. This will answer his question on R. Akiva Eiger. Sha'atnez is an issur hana'ah. It is not a typical issur hana'ah because only certain types of hana'ah are assur, but it is an issur hana'ah to be warmed by the garment, therefore one who receives this hana'ah would be chayev even when they are mis'aseik.

Sanhedrin 61b - Serving Avoda Zara out of Love and Fear

The gemara quotes a machlokes between abaye and rava whether one who worships idolatry out of "love or fear" receives capital punishment. Rashi defines the situation to be a case where one is worshiping the idol because he loves someone or fears someone who is pushing him to bow to the idol, but in his heart doesn't accept the idol as a G-d. Tosafos seems to assume like rashi that the case is where the push to worship the avoda zara is the love or fear of a person. Therefore, Tosafos asks, how can rava exempt someone who worships out of fear (and kal v'chomer out of love), it should be no worse than one who is threatened with his life to worship avoda zara where we pasken יהרג ואל יעבור? Tosafos has 2 approaches: 1. Although one has to give up their life and not bow to an avoda zara (even if they will be thinking in their mind that they don't accept the avoda zara as a deity), if he does decide to bow to the avoda zara he is considered an o'nes and therefore exempt. This is consistent with the Rambam's opinion (yesodei ha'torah 5:4) that any time the din is יהרג ואל יעבורand he decides to violate the issur, he isn't killed since he is an o'nes. 2. Tosafos offers another approach which seems to assume that anytime the din is that one must be killed and not violate, he would be chayev misah if he were to violate. The gemara is speaking about a type of avoda zara that isn't typical and is only worshiped out of love or fear similar to the bowing to haman (which was out of fear for achashveirosh who commanded it), and only then would rava exempt him from mi'sah. According to this approach, any "real" avoda zara that is generally worshiped willfully, one would be killed when they worship out of fear or even threat to their life.

The Rambam (avoda zara 3:6) has an entirely different peshat in worshiping avoda zara out of "love and fear". The Rambam says that it is not an external love or fear, rather it is a love for the avoda zara itself or a fear that the avoda zara may cause you harm. The rambam writes that if the he actually accepts the avoda zara as a G-d, he is gets stoned, but if he he worships it just out of the love of IT or the fear of IT, he is exempt. The kesef mishna explains that the Rambam doesn't agree with rashi's p'shat because then the "fear" would mean fear for life, which is an o'nes and he wouldn't be chayev misah even according to abaye, as the rambam holds in hilchos yesodei ha'torah. Based on this, both the first peshat of Tosafos and the Rambam agree that one who worships out of o'nes doesn't receive capital punishment, just that the rambam considers this to be even according to abaye, whereas Tosafos would limit it to rava.

The difficulty with the Rambam's approach to "love and fear" is pointed out by the kesef mishna in the name of the Rivash, that all avoda zara is worshiped out of love of it or fear of it causing harm. That is classic avoda zara for which one is certainly chayev misah! The Rivash therefore explains the gemara similar to rashi. Regarding the question of the Rambam that even abaye should agree that o'nes is not responsible, the Rivash says that "yir'ah" doesn't mean a threat of death which would reach the level of o'nes, rather just fear of harm.

Sanhedrin 58b - 59a - Goy who keeps Shabbos or Studies Torah

The gemara says that a goy who keeps shabbos and a goy who studies Torah is chayev misah. The simple reading of the gemara seems to indicate that they actually receive capital punishment. Regarding a goy who keeps shabbos the gemara asks that it should be added in the 7 mitzvos given to Noach, to which the gemara responds that since it demands of the goy to do something active such as work, it isn't part of the list. The gemara seems to hold that for technical reasons we don't include it, but it would have the same consequence as the other mitzvos for which he gets capital punishment. Similarly, the gemara says that a goy who studies torah is in violation of either theft or adultery, both of which a goy receives capital punishment.

However, the Rambam (Melachim 10:9) holds that for both of these violations the goy doesn't receive capital punishment. The Rambam groups both the issur on a goy to keep shabbos and the issur on a goy to study Torah together. He then writes:

כללו של דבר, אין מניחין אותן לחדש דת ולעשות מצוות לעצמן מדעתן, אלא או יהיה גר צדק ויקבל כל המצוות, או יעמוד בתורתו ולא יוסיף ולא יגרע. ואם עסק בתורה או שבת או חדש דבר מכין אותו ועונשין אותו ומדיעין אותו שהוא חייב מיתה ע"ז אבל אינו נהרג

The Rambam seems to hold that these 2 things are just examples, but the same would be for other mitzvos that a goy keeps - או חידש דבר. The Rambam holds that the nature of this prohibition is not the activity of torah study or the keeping of shabbos, rather it is a fundamental issue. The 613 mitzvos are a unit and cannot be broken apart. The acceptance of some mitzvos and the rejection of others is essentially a new religion. The prohibition of a goy to accept some mitzvos and not others is essentially the start of a new religion, and therefore forbidden similar to the prohibition for jews of adding or subtracting from the mitzvos of the Torah.

What is the source of the Rambam that the goy doesn't actually receive captial punishment? The lechem mishna says that Tosafos asks on the gemaras rule that we don't find anything that is permitted for a Jew and forbidden for a goy, what about shabbos and torah? Tosafos answers that things which are mitzvos for Jews can be forbidden to goyim, it is only things which are permitted to Jews that must be permitted for goyim. The explanation for Tosafos' logic is that a goy can be stricter than a Jew, so if it is permitted for a Jew it must be permitted to a goy. But, if the nature of the prohibition on a goy is BECAUSE it is given as a special privilege to Jews, then it makes sense that it can be assur for a goy and a mitzvos for a Jew. However, the Rambam maintains that the logic of the gemara that anything permitted for a Jew should be permitted for a goy applies to shabbos and torah as well. Therefore the Rambam holds that the issur on a goy to keep shabbos and study torah cannot be a Torah prohibition, it must only be rabbinic.

The difficulty with the approach of the lechem mishna is that he understands that according to the Rambam it is only prohibited m'drabonon, which doesn't seem to be the case from the language of the Rambam or from stating the severity of the issur as a chiyuv mi'sah? It seems to me that the Rambam is bothered by Tosafos question, but answers it slightly differently. The Rambam holds that the rule of things permitted to Jews must be permitted to goyim, only applies to specific actions. Shabbos and Torah are merely examples of something a goy can do to undermine the theology of the Torah by adopting certain mitzvos and rejecting others. The prohibition is not a specific action and is not limited to Shabbos and Torah, therefore doesn't undermine the rule of whatever specific actions is permitted to Jews is forbidden to goyim.

Sanhedrin 56b - Adam HaRishon Eating Meat

The gemara learns out from the pasuk that was said to Adam, all the 7 Noachide mitzvos, implying that these mitzvos applied to Adam as well. At the bottom of the page the gemara quotes the opinion of R. Yehuda who says that Adam was only commanded against Avoda Zara, and others add cursing Hashem and dinim, implying that the first opinion holds that Adam had to keep all 7. The gemara 59b says that Adam wasn't allowed to eat meat, he was only allowed to eat vegetation, until after the mabul when Hashem allowed Noach to consume the animals. Tosafos has 2 questions on that gemara. First, why is the prohibition against eating meat not counted as one of the 7 mitzvos given to Adam? Tosafos answers that commands such as this and eating from the eitz hada'as which only applied to Adam and not for future generations don't count. Tosafos also asks, how can there be an issur of 'ever min ha'chai', that Adam shouldn't eat a limb of an animal that was separated when it was alive, since it was forbidden for him to eat any meat? Tosafos answers that Adam was allowed to eat meat. He wasn't allowed to kill animals in order to eat them, but was able to eat animals that were found dead. Therefore, the issur of ever min ha'achai was to forbid even limbs that were severed by themselves, which isn't included in the issur of eating meat.

The Rambam (Hil. Melachim 9:1) answers Tosafos question by saying that Adam was commanded on 6 of the 7 mitzvos, but ever min ha'chai wasn't introduced until Noach after the mabul. The Maharatz Chiyus points out that the Rambam is saying this to deal with Tosafos' question.

Rashi 59b seems to hold that it was forbidden for Adam to eat meat until Noach, not just assur to kill the animals as Tosafos says. Rashi 57a clearly writes that Adam wasn't allowed to eat any meat. Rashi is therefore bothered why Adam had to be commanded in ever min ha'chai since he couldn't eat any meat, to which rashi says that a limb that was severed by itself wasn't included in the issur to eat meat, but is included in ever min ha'chai. The maharsha explains that Tosafos holds that if an animal that died by itself was assur, then even a limb that was severed by itself should be assur. Tosafos had to be mechadesh that if it died by itself it was mutar, and therefore when it is severed by itself it is mutar, if not for the issur of ever min ha'chai. Whereas Rashi seems to hold that even if an animal that dies by itself is included in the issur of eating meat, a limb that was severed by itself would not be included in the issur.

The Ramban (Breishis 1:29) quotes Rashi in chumash and in our gemara that says that Adam was supposed to share all plants and vegetation with the animals, but not to eat the animals. However, the Ramban himself holds that Adam was allowed to eat fruits and even seeds, but the animals were only allowed to eat the vegetation. He agrees with Rashi that Adam wasn't allowed to consume any meat, even if it died by itself, against Tosafos. The Ramban seems to agree with the Rambam that ever min ha'chai was only introduced to Noach. The Ramban writes that when Hashem permitted Noach to kill animals and eat them, He maintained the issur on eiver min ha'chai because Adam had permission to eat the animals after they were killed, but didn't have the right to eat the nefesh itself.

The Ramban concludes with cryptic words: וזה טעם השחיטה, ומה שאמרו צער בעלי חיים דאורייתא, וזו ברכתנו שמברך אשר קדשנו במצותיו וצונו על השחיטה

The Ramban holds that the issur of צער בעלי חיים and the mitzvah of shechita are all a result of the limitation of control on the nefesh of the animal.

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.