Jewish Audio on Chabad.org. Today's שיעור will be in מסכת סנהדרין, דף י', but we will start on דף ט' עמוד ב', five lines from the bottom of the עמוד. אמר רב יוסף, רב יוסף said: If someone comes to בית דין and says, פלוני רבעני לאונסי, that another man had relations with him by force, did the עבירה with him of משכב זכר, but it was done by force, the other person forced him, so הוא ואחר מצטרפין להורגו, so this person and somebody else can be combined, and they can have the other person killed. In other words, he is considered a witness to testify against that person, and if there is another witness with him, together it is considered a group of עדים, and they are able to have the other person killed. But if he said it was done לרצוני, that that person committed this sin with him willingly, he agreed to it, so then, רשע הוא, so then this person is considered a רשע, because when a person does this עבירה, he's automatically considered a wicked man, a רשע. But תורה, and the תורה says, אל תשת רשע עד, you cannot make a רשע into a witness, so therefore his testimony is not accepted, because we do not accept testimony of a רשע. And since he admits that he did this עבירה, so he admits he is a רשע, so we cannot accept his testimony, and therefore he, even if he would be מצטרף, combined with another person, cannot be the cause of the other person to get killed because he is not considered a witness. רבא אמר, רבא

says, אדם קרוב אצל עצמו, a person is a relative to himself, and the דין is that a relative is not believed as an עדות against a relative of his. So if you cannot testify concerning a relative of yours, you also cannot testify concerning yourself. And therefore, ואין אדם משים עצמו רשע, a person cannot make himself into a רשע, since he is a relative to himself, so his testimony concerning himself is not accepted. So automatically, he is not considered a רשע, because how do we know that he did the עבירה? Because he says so, but we do not accept his testimony concerning himself. And therefore, what we do say is that we do accept the testimony that he said concerning the other person. And we call it פלגינן דיבורא, we divide, we separate his words. When he comes and says that that person had relations with him לרצוני, willingly, so what we say is, we believe him that that person had relations with him, but the fact that he says that it was done with his own will, that we can't believe, because then he is testifying on himself, and a person is not believed to testify on himself. So therefore, we do not accept this testimony on himself, so he is not considered a רשע, because we have no testimony that he did an עבירה. So then, since he is not a רשע, his testimony concerning the other person is accepted. So therefore, we do say that he and somebody else would be able to have that other person killed even if he comes and says that it was done לרצונו, to his will. Then the גמרא

says another דין: אמר רבא, רבא said, פלוני בא על אשתי, someone comes to בית דין and says that this and this person had relations with my wife, committed adultery with my wife, הוא ואחר מצטרפין להורגו, that he and if another person will come and testify the same, together they will be combined and they could have that person killed. Since that person committed adultery, he had relations with an אשת איש, with a married woman, so he is חייב מיתה, so the husband of the wife and somebody else together can have him put to death. אבל לא להורגה, but he is not accepted to have her killed, because לכאורה, according to his testimony, she who is an אשת איש, a married woman, also deserves to die, because she also is חייב מיתה. Nevertheless, we cannot accept his testimony on her, but we do accept his testimony on him. And we say again פלגינן דיבורא, we divide his words, and we say, we believe him that that person committed adultery with an אשת איש, with a married woman, but when he says it was done to my wife, that we don't believe, because he is not believed concerning his wife. And the

גמרא asks: מאי קא משמע לן? What is רבא trying to tell us with this דין? דמפלגינן דיבורא, that we divide his words, that we accept part of what he says and not the other part, we believe him that that person committed adultery, but we don't believe the other half of the statement that it was done with his wife, היינו הך! Isn't this the same as the דין he said before? He said that already. In the previous דין he said that if someone comes and says that the other person did an עבירה with me, לרצוני, willingly, I agreed to it. We say פלגינן דיבורא, and we believe him that that person did the עבירה, but we don't believe him it was done with him willingly. So it's self-understood that the same thing would apply here, that concerning his wife we can't believe him because he is a relative of his wife, so he cannot testify for his wife, and nevertheless, we believe him on the first part of the statement that that man did the עבירה. So it's the same thing, why did רבא have to repeat it? And the גמרא answers, מהו דתימא, I would have thought אדם קרוב אצל עצמו אמרינן, that a person is a relative to himself we do say, but אצל אשתו לא אמרינן, that a person is considered a relative to his wife we do not say. קא משמע לן, and that's what רבא had to tell us, that even concerning his wife we still say that, and therefore, we do not accept his testimony concerning his wife, and nevertheless, we accept his testimony concerning that person because we say פלגינן דיבורא. And as תוספות explains that לכאורה why should there be a הוה אמינא that a person is not considered a relative to his wife? Isn't there a משנה in פרק זה בורר where it says that בעל כאשתו, that concerning testimony, concerning being a witness, a husband is like his wife, and anybody who's a relative to his wife is considered a relative to him and he is פסול to testify for them? So we see that a husband is considered one with his wife, so why should we think here that we do not say a husband is a relative of his wife? So תוספות and רא״ש explain that we would have thought that when do we say a husband is a relative of his wife? Normally. But in a case of פלגינן דיבורא, in a case where part of his statement is accepted, that there we would think that since we accept it concerning one part we should also accept it concerning his wife. In other words, concerning this דין only we should have not said that בעל is a קרוב to his wife, and therefore רבא had to tell us that nevertheless we say a husband is a relative to his wife, and we do not accept his testimony concerning his wife, and we do accept his testimony concerning the other person. Then the גמרא continues, ואמר רבא,

also did רבא say a דין, פלוני בא על נערה המאורסה. If two people come to בית דין and they testify that this and this person had relations with a נערה המאורסה, with an engaged girl, they didn't say who that girl was, but they knew for sure it was an engaged girl. And at that time when a girl was engaged, she would be considered an אשת איש because the engagement was through קידושין, the husband would give her קידושין, say הרי את מקודשת לי, so she would become an אשת איש through the קידושין. And even though she was still forbidden to live with her husband till after the נישואין, until after the חופה, but nevertheless, she was considered already an אשת איש. And therefore, if somebody would be מזנה with this נערה המאורסה, with this engaged girl, he would deserve the death penalty. Another thing that would happen, the girl loses the כתובה. Like this, as soon as she is engaged, she deserves the כתובה. But when we find out that she was מזנה, so she loses her כתובה. So here's a case when two witnesses come to בית דין and say, we know that this and this man had relations with a נערה המאורסה. So what they wanted to do was to have the man killed, not the woman, not the girl because they didn't know who the girl was, but they wanted to have the man killed, plus there would have been a loss of money. והוזמו, they became עדים זוממין, another group of witnesses came to בית דין and said that how can you testify that at this and this time, at this and this day, in this and this place you saw him do it, when at that time you were with us someplace else? And the דין by עדים זוממין is that ועשיתם לו כאשר זמם לעשות לאחיו, that you do unto them what they wanted to do to that person. So in this case, they wanted two things to happen: they wanted to have him killed and she to lose the כתובה. So we say נהרגין, they get killed, since they wanted to have him killed, so you do to them what they wanted to do, but ואין משלמין ממון, but there is no money they pay, even though they wanted to cause a loss of money, they wanted her to lose the כתובה, but nevertheless they don't pay, because since they didn't know who it was, so there was no person that actually would have lost the money, because they didn't specify who the girl was, and therefore, we do not consider it that they wanted somebody to lose money, so there is no דין that they have to lose money. But if they came and said בתו של פלוני, that this and this man had relations with the daughter of this and this man, the נערה המאורסה, and they specified which girl it was, והוזמו, and they became עדים זוממין, נהרגין, they get killed because they wanted to have them both killed. Now that they also said who she was, she would have gotten killed too if they would have been saying the truth. So now they get killed because they wanted to have the man killed, the man gets they claimed did the עבירה with her, and they wanted to have her killed. ומשלמין ממון, and they also pay money, since they wanted her to lose the כתובה, and there is a person specifically here that they claim should have lost the כתובה, so therefore now they have to pay that amount of money. It doesn't mean that they have to pay the exact amount of the כתובה, but they pay the טובת הנאה of the כתובה, because a כתובה really is paid only if the husband dies or if the husband divorces her, but otherwise the כתובה is not paid. But nevertheless, there is still a value to the כתובה, because if she would want, she would be able to sell her כתובה, and the price that a person would pay for the כתובה would be less than the value of the כתובה, because he's taking a risk, because maybe he will eventually get the full amount of the כתובה if he dies or he divorces her, but maybe he won't get anything if she dies first, then the one that bought the כתובה gets nothing because there is no כתובה to be paid. So if somebody buys a כתובה while she is alive and he is alive and they're not divorced, he is taking a risk, so therefore he would pay less than the value of the כתובה. But nevertheless, there is a value to the כתובה now. So when these עדים testified that she was מזנה, they wanted her to lose that value of the כתובה, so they have to pay that amount. איי we know a דין that if a person is חייב מיתה, and for the same thing he also is חייב ממון, has to pay money, we say קם ליה בדרבה מיניה, and we only give him the מיתה, and he doesn't have to pay the money. So how come here we say that they get killed and they also have to pay? Because it's ממון לזה ונפשות לזה. It is money to one person, the the loss they wanted to cause was to one person, and the death penalty they get is for somebody else. They are killed because they wanted to have the man and the woman killed, so it's because of them that they are חייב מיתה. The loss of money they wanted to cause was to a third person, that was to the father of this girl, because since this girl is still a נערה, so any money that she gets goes to her father, so if she would have gotten the כתובה it would have gone to her father. So at that point, the loss was a loss to her father. And according to this opinion, if the loss of money is to one person, and the reason you are killed is because of somebody else, then we don't say קם ליה בדרבה מיניה, and you get both. And therefore, these witnesses get both: they get מיתה, and they have to pay the loss of money. איי one might ask that לכאורה this contradicts what the גמרא said before, because the גמרא said before that רבי יוסף said that if the husband brings witnesses that she was מזנה at the time when she was engaged, and then the father brings witnesses and הזים the witnesses of the husband, so the witnesses of the husband get killed, because they wanted to have her killed, but they don't pay any money. And the reason they don't pay any money, even though they wanted to cause a loss of money, was because we say קם ליה בדרבה מיניה, they don't get both, they don't get killed and pay money. So we see before that רבי יוסף holds that they don't have to pay, and here רבא says they do have to pay. So it seems like it's a מחלוקת between רבא and רבי יוסף. So רש״י explains that it's not a מחלוקת, because before, in the case of רבי יוסף, it wasn't in a case where she was just a מאורסת, she was just engaged. When the husband brought the witnesses, it was already after she was already married. Now, in a case like that, the כתובה goes to her, not to her father. If the husband would have divorced her after already she was married with the חופה, then she would have gotten the money of the כתובה. So the value of the כתובה is for her. So the loss they wanted to cause was to her. So it comes out that the reason they get killed and the reason they have to pay money is for the same person. The reason they get killed, the עדים זוממין, is because they wanted to have her killed. The reason they should have to pay money is because they wanted to have her lose the money. So then it's for the same person מיתה and ממון. So that's what רבי יוסף said, that they don't have to pay, because we say קם ליה בדרבה מיניה. But the case of רבא, it's a case where she was still a נערה המאורסה. She was just engaged, and she was a נערה, so the כתובה goes to the father. So here, it is מיתה for one person, the reason they get killed is because of the man they claimed was מזנה and her, and the reason they have to pay money is because they wanted to cause a loss to the father, that's another person. And in a case like that, we don't say קם ליה בדרבה מיניה. Then the גמרא continues, ואמר רבא, also did רבא say: פלוני רבע השור, if two people come to בית דין and say that this and this person had relations with an ox, and they don't say whose ox it was, והוזמו, then they become עדים זוממין, נהרגין, they get killed, because by their testimony they wanted to have that person killed, because the דין is if a person has relations with an animal, he is חייב מיתה. So they wanted to have that person killed, and now that they are עדים זוממין, they have to get killed. ואין משלמין ממון, they don't pay any money, even though they wanted to cause a loss of money, too, because if it would have been true what they have said, then that ox should have been killed, because the דין is that when a person has relations with an animal, the person is killed, and the ox is killed. So then it would have been a loss to the owner of the ox. But still, since they didn't specify whose ox it was, so there is no person, actually, that they caused a loss to, and therefore they don't have to pay. But if they said שורו של פלוני, that this and this person did an עבירה with the ox that belongs to this and this person, והוזמו, they became עדים זוממין, נהרגין ומשלמין ממון, then they get killed and they also pay the money, the loss they wanted to cause to the owner of the ox. Because it's ממון לזה ונפשות לזה, because it is money to one, the loss they wanted to cause was to the person who is the owner of the ox, and the reason they get killed is because of the other person that they claimed did the עבירה with the ox. So therefore there is no דין of קם ליה בדרבה מיניה. But then the גמרא asks, פשוטה למה לי, why did רבא have to tell us this second דין concerning the ox? היינו הך, isn't it the same דין as that he said before concerning the נערה המאורסה? And the גמרא answers, משום דקבעי בעיא ליה, because really there was a question that רבא had concerning this דין. דבעי רבא, רבא asked a question: פלוני רבע שורי, מהו? But if someone comes to בית דין, and says that this and this person had relations with my ox, what is the דין? Is he believed concerning the ox or not? מי אמרינן, do we say אדם קרוב אצל עצמו, a person is considered a relative to himself, and therefore when he says that that person did an עבירה with me, with my רצון, willingly, we said before we do not believe him on himself because he's a relative to himself. So he's not believed on himself, and we say פלגינן דיבורא and he's believed concerning the other person. But ואדם קרוב אצל ממונו, but concerning a person's property, we do not consider him a relative, and therefore he is believed even concerning his property. So when he says that that person did an עבירה with my ox, we believe him on the whole statement, and that person would be killed if there is another witness with him, and his ox would be killed. או דילמא, or maybe אמרינן אדם קרוב אצל ממונו, we do say a person is considered a relative to his property, and therefore he would not be believed concerning the ox, we'd only believe him concerning that person. And therefore, if somebody else would be with him, they would be able to have that person killed, but the ox, he would not believe them. And he says, בתר דבעי, after he asked the question, הדר פשטה, then he resolved it, and he came to a conclusion that אדם קרוב אצל עצמו, a person is considered a relative לגבי himself, ואין אדם קרוב אצל ממונו, but a person is not considered a relative concerning his property, and therefore he would be believed on his ox. And this answers why רבא had to also say the דין. If two witnesses come and they testify that somebody had relations with the ox and the whole discussion whether they have to pay money too in addition to getting killed or not, because he wanted to continue after that with a question he had, that what happens if he himself says about his ox, is he believed concerning the ox or not? And it came ready to the conclusion that a person is believed on his animal because he is not considered a relative to his property. Then the גמרא continues, we learned in the משנה, מכות בשלשה, וכולי, that in order to give a person מלקות, you have to have a בית דין of three people. And the גמרא asks, מנא הני מילי, where do we know that from? From which פסוק do we learn this out? אמר רב הונא, רב הונא said, אמר קרא, the פסוק says, ושפטתם, speaks about מלקות, and it says that they should judge him. When it says they should, automatically, it's שנים, it's two. And since ואין בית דין שקול, you can't have an even בית דין, מוסיפין עליהן עוד אחד, you add one more, הרי כאן שלשה, so we have three. So from here we know that you have to have three concerning מלקות. The גמרא asks, אלא מעתה, if so, concerning מלקות, there it says another פסוק: והצדיקו את הצדיק והרשיעו את הרשע, it says that they should make the righteous one right, and the wicked one, they should make wrong. So here also says they should make him righteous, and they should make him wicked. So it says twice the word they. So why don't we say, והצדיקו, שנים, they should make him righteous, two already; והרשיעו, they should make him wicked, שנים is another two. So here we have another four, and since we said before that we have to have three from the previous לימוד, הרי כאן שבעה, so we have seven. So לכאורה we should learn now that you have to have seven when you judge a person concerning מלקות. And the גמרא says, no, ההוא מיבעי ליה לכדעולא, that that פסוק, והצדיקו and והרשיעו cannot be used to tell us that we have to have this amount of people for a בית דין, because we use that פסוק for another thing, for what עולא said. דאמר עולא, עולא said: רמז לעדים זוממין מן התורה, where is a רמז, a hint in the תורה, to the דין of עדים זוממין? And before the גמרא concluded yet what עולא answered, the גמרא stopped right away and asked, מנאין רמז לעדים זוממין, what do you mean where is there a hint in the

תורה to עדים זוממין? והכתיב, doesn't it say clearly in the תורה, בפירוש a פסוק, כאשר זמם, that you should do to them what they intended to do to the person they testified about? So the דין of עדים זוממין is a clear דין in the תורה? What do you mean, where do we have a hint to עדים זוממין? אלא, what did he mean? רמז לעדים זוממין שלוקין מניין? Where is there a hint in the תורה that עדים זוממין get מלקות? Normally the דין is that you do to them what they wanted to do to the other person, but not always can we do that. For instance, if two עדים come and testify on a certain כהן that he is a פסול כהן, that he's a בן גרושה או בן חלוצה, he is a son of a כהן, but his mother was a גרושה, was a divorcee, so when the כהן married a divorcee, automatically the child is a חלל, is a כהן which is not כשר. So if they testify on a person that he is a פסול כהן, and then they're found to be זוממין, so the דין is we do not say that in turn they become חללים, even if they are כהנים, but instead we say that they get מלקות. And that's his question: Where do we see in the תורה a רמז, a hint, that עדים זוממין get מלקות for testifying false? And he learns it out דכתיב, because the פסוק says: והצדיקו את הצדיק והרשיעו את הרשע, that you should make righteous the צדיק and they should make wicked the wicked one. And

what does the פסוק mean? Its simple פשט would mean that this refers to the judges, to the שופטים, that the דיינים have to make the one that's right right, and the one that's wrong, he's a רשע, to make him a רשע. And then the פסוק continues: והיה אם בן הכות הרשע, that if they will understand, they will give מלקות to the רשע. So משום דוהצדיקו את הצדיק והרשיעו את הרשע והיה אם בן הכות הרשע? But is it because they made this one right and that one wrong, that's why the one that's wrong gets מלקות? What does the fact that the other one is right have to do with this one that is wrong and his getting מלקות? So why does the תורה give in this as an introduction to the fact that the other one gets מלקות, that the first one is right? So therefore we must say that the פסוק is not referring only to the judges, but that the תורה is hinting us also concerning to the witnesses. אלא what does the פסוק mean? That the case is as follows: עדים שהרשיעו את הצדיק, the first witnesses came and they made the righteous one wrong. They were false witnesses, and the person who was right, they made him wrong, they testified false against him. ואתו עדי אחריני, and then other witnesses came, והצדיקו את הצדיק דמעיקרא, they made the righteous one from before, the one that was really right, they made him right again. They went against the first group of witnesses who wanted to make the righteous one wrong, and they were מזים them, and they made the righteous one right. ושוינהו להנך רשעים, and they made these, meaning the first group of witnesses, into רשעים because they were מזים them. So then the תורה says: והיה אם בן הכות הרשע, that now you have to give מלקות to the רשע. So who's the רשע now? The first group of witnesses. So here in the תורה we see a רמז that there is a possibility when the second group turns the first group into רשעים, which is the case of הזמה, so then the first group get מלקות. So we see from here that even though normally by הזמה the דין is that you do unto them what they wanted to do to that person, nevertheless there is a hint in the תורה that sometimes the עדים זוממין get מלקות, and that is in a case where you cannot do unto them what they wanted to do to that person. But then the גמרא asks: ותיפוק ליה let's learn this out מלא תענה?

Why do you have to have a special לימוד that the עדים זוממין get מלקות? Why don't they get מלקות because of לא תענה? The תורה says in עשרת הדברות: לא תענה ברעך עד שקר, do not answer in your friend false testimony, and since the תורה says it in the form of a לאו, do not do it, the rule is that for every לאו you get מלקות, so then these false witnesses, the עדים זוממין, would get מלקות anyway because they are עובר on the עבירה of לא תענה. Why do we have a special פסוק that if you cannot do to them what they wanted to do to that person, they get מלקות? They would get מלקות anyway because of לא תענה! And the גמרא answers: משום דהוה ליה לאו שאין בו מעשה, because this לאו of לא תענה is a לאו that has no actual act, וכל לאו שאין בו מעשה אין לוקין עליו. The rule is that anytime you are עובר on a לאו, but it's a לאו that has no act, you are not עובר it by doing something, you do not get מלקות for it. And therefore the עדים זוממין would not get מלקות for the לאו of לא תענה, so we have to have the פסוק of והצדיקו את הצדיק והרשיעו את הרשע to tell us that the עדים זוממין do get מלקות. Then the גמרא continues, we

learned in the משנה: משום רבי ישמעאל אמרו, in the name of רבי ישמעאל said, בעשרים ושלשה, that to judge דינים of מלקות, you have to have a בית דין of 23. And the גמרא says: מאי טעמא דרבי ישמעאל? What is the reason of רבי ישמעאל? אמר אביי, so אביי said: אתיא he learns out a גזירה שוה of רשע רשע מחייבי מיתות, the word רשע from the word רשע that says by חייבי מיתות, by the דין of the death penalty. כתיב הכא, here it says concerning מלקות, והיה אם בן הכות הרשע You will see to understand to hit the רשע. וכתיב התם, it says concerning a person who's חייב מיתה: אשר הוא רשע למות, that he is a רשע to die. So we compare the two, and we say: מה להלן בעשרים ושלשה, just like concerning מיתה you have to have a בית דין of 23, אף כאן בעשרים ושלשה, so too, when you judge the דין of מלקות, you have to have a בית דין of 23. רבא אמר, but רבא says he gives another reason for the opinion of רבי ישמעאל: because מלקות במקום מיתה עומדת. מלקות is in the place of מיתה. באמת, whenever a person is עובר an עבירה, he should get killed for it. Since he goes against the will of השם, he's a מורד במלכות, then he should get killed for it. It is only the תורה said, instead of killing him, you should give him מלקות. So really מלקות is another form of מיתה. Just like within מיתה we have four types of מיתה, so too, we have another type which is in the category of מיתה, which is instead of מיתה, which is for somebody who really should get מיתה, and that is מלקות. So therefore, the same amount of people you have to have in the בית דין for דינים of מיתה, you also have to have when you judge the person for מלקות. תוספות brings two more פשטים in the words of רבא, that מלקות is in the place of מיתה. One פשט is, because by בני נח, we know by גוים, whenever the תורה says that they're not allowed to do something, the warning itself is מיתה. Meaning, that even though the תורה just warned them not to do it, and the תורה doesn't say they get killed for it, nevertheless, that is that is enough that they should get killed for it. When the תורה was given to the אידן, it was changed. And when there is a לאו, instead of מיתה, you get מלקות. So that's what רבא meant when he said that מלקות is instead of מיתה. Another פשט תוספות says is, because sometimes through מלקות a person could die. As we find a דין, that if the שליח בית דין gave מלקות, and the person died through the מלקות, the שליח בית דין is פטור, because he only did his job. So we see that there's a possibility for a person to die through the מלקות. So that's what he meant, that מלקות instead of מיתה, מלקות could bring to מיתה. But תוספות says that the פשט that רש"י gives is much better, because according to the other two פשטים, the קשיא that the גמרא is going to ask now will not fit, but according to רש"י's פשט, the קשיא will fit. אמר רב אחא בריה דרבא לרב אשי, so רב אחא the son of רבא said to רב אשי: אי הכי, if the reason is because מלקות is in place of מיתה, אומדנא למה? Why do we have to estimate the person before we give him מלקות? Because the דין is that before you give him מלקות, the doctor has to see if he will be able to take all 39 lashes. And if he is not able to take, then you give him as much as he is able to take. But why should we do that? נמחייה, let's give him all of them. ואי מיית, לימות, and if he will die, let him die! Anyway, he really should get killed. It is just a favor, so to speak, that we do to him, that the תורה does to him, and gives him only מלקות. So then let's give him all the מלקות, and if he'll die, he'll die. אמר ליה, so he said to him, אמר קרא, the פסוק says: ונקלה אחיך לעיניך, concerning מלקות it says that your brother should be embarrassed in your eyes, so that means that כי מחיס, אגבא דחיי מחיס, that when you give מלקות, you have to give on a live person. So if he is going to die, so then you will continue giving מלקות to a dead person. And the תורה says clearly you have to give מלקות to a live person. Therefore, we have to estimate how much he is able to take, and that's how much we give him, because that's when he'll be alive. But if we don't estimate, we might give him מלקות and he'll die, so we'll be giving מלקות to a dead person. But then the גמרא asks: אלא, if so, הא דתניא, we learn in a ברייתא: אמדוהו לקבל עשרים, if they estimated that he cannot accept all 39, he can only accept less, for instance, he could accept 20, אין מכין אותו אלא מכה הראויה להשתלש, you only give him מלקות that you're able to divide by 3. וכמה הן, how much would you give him? שמונה עשרה, 18. If he only could take 20, which means he cannot take 21, but we can't give him 20 either, because we have to give him an amount that is able to be divided by 3, so therefore, we give him instead of that 18. Now the

question is: נמחייה עשרים וחד, let's give him 21. וכי מיית בההיא, לימות, if he will die with that last one, with that 21st, let him die! איי, we said before we have to give מלקות to a live person, but here, he's not going to die before we give him that 21st. When we give, when we give him the 21st, he is still alive, because 20 we said he was able to take, so after the 20 he is still alive. Now when we give him the 21st, he is still alive. He's only going to die after he gets the 21st. דהא כי מחיס, אגבא דחיי קמחיס, when you hit him with that extra one, you're giving it over a live person. So then why shouldn't we give him 21, why should we give him 18 instead? אמר ליה, so he said to him, אמר קרא, the פסוק says: ונקלה אחיך לעיניך, that your brother should be embarrassed in your eyes, which means אחר שלקה אחיך הוא, that after he gets the מלקות, then we still have to have him your brother. In other words, not only when we give him the מלקות he has to be alive, but he has to be your brother, a live person, even after you give him the מלקות. Well that, that we don't have if we're going to give him 21, so when we're giving the 21st, he'll still be alive, but since that will be the one that will kill him, so as soon as the מלקות will be over, he won't be alive. And the תורה says that you have to have him alive even after the מלקות, and therefore we cannot give him. But as we understand that this קושיא only fits according to רש''י's פשט. According to רש''י's פשט, that when רבא said that מלקות instead of מיתה, he meant to say generally, that really he should get מיתה, and the תורה said you give him מלקות instead. So then the גמרא's קושיא is a good קושיא. So then in that case, when you can't get מלקות because he'll die, let him die. Anyway he deserves to die. But according to תוספות's both פשטים, that it doesn't mean that he deserves to die, it just means that מלקות was instead of מיתה, that for something that originally used to get מיתה, and later the תורה said you get מלקות, or מלקות could bring it to מיתה. According to these two פשטים, what kind of קושיא does the גמרא have then let's give him more than he could take and let him die? Therefore תוספות says that רש''י's פשט is the better פשט. Then the גמרא continues, we

learn in the משנה: עיבור החודש בשלשה, when it comes to make the month מעובר, that the month should have an extra day, you have to have three people for that. And the גמרא says: חישוב לא קתני, קידוש לא קתני, אלא עיבור. Now concerning the setting up of the calendar, it is as follows: The calendar is based on the cycle of the moon. Now the moon has a cycle of 29 and a half days and 793 חלקים. That's the complete cycle every month of the moon. But the דין is that we cannot have a month of half days, and therefore we can't say that every month should be 29 and a half days and תשצ''ג חלקים. We have to have complete days in a month. So therefore, it comes out generally speaking that within two months we have 59 days. And therefore, the way we have it now, when everything works according to the חשבון, one month is מעובר, one month has 30 days, and the other month has 29 days, and then the next month again has 30 days, and then the next month again 29 days. But the way it used to be then was that they were מקדש החודש על פי ראיה. To know whether the month should have 29 days or 30 days, that would depend on witnesses. On the 30th day, which was always the ספק whether that day should be the 30th of the past month, or really it should be already considered the first day of the new month, the בית דין would wait. If witnesses would come and testify that they already saw the new moon, then this day would be considered the first day of the new month. So the month before had 29 days, and the 30th day really was day number one of the next month. If no witnesses would come, then this would be considered the 30th day of the previous month, and the next day, which is the 31st, would be the first day of the new month. So on one hand, it seems that at that time there was no calculation needed. If the witnesses would come, then the month was not מעובר, the month was חסר we call it, if it is only 29 days, was missing the extra day. If the witnesses would not come, then that month was a מעובר, was 30 days. But on the other hand, there are certain rules of how many months a year we could have מעובר and how many we can't. And the גמרא says in ערכין that we should have at least four months a year מעובר, and not more than eight months a year מעובר, because if we would have different than that, then it would come out sometimes that the לבנה would be seen, the new moon would be seen a few days away from ראש חודש, because if you have so many months a year מעובר, then it'll get moved up, then the לבנה will be seen a few days before ראש חודש. So therefore it comes out that even though generally speaking it all depended on the witnesses, but still there was a חשבון, there was a certain calculation they had to make. In the משנה it said that עיבור החודש בשלשה, which the פשוט'ער פשט seems to be saying that if a month was מעובר, if a month had 30 days, and just the next day, the 31st, would be the new month, so then the בית דין would have to say that the month is מעובר. And that's what the משנה means, עיבור החודש בשלשה, that when it comes to make the month מעובר, you have to have a בית דין of three, and they have to be the ones to say that this month is מעובר, has the extra day. So the גמרא asks: חישוב לא קתני, it doesn't say in the משנה that the calculations of whether to make it מעובר or not needs three. קידוש לא קתני. It doesn't also say that when it comes to be מקדש the חודש, that means that if the month is 29 days and the next day is the first of the new month, so then בית דין would have to say on the 30th day, מקודש החודש מקודש, that this day is a holy day, is ראש חודש. Because if בית דין doesn't say it, if they just leave it the way it is, this month would be a continuation of the previous month, and would be considered the 30th of the past month. If the בית דין wants that this day should be the first of the new month, בית דין has to say מקודש. But nevertheless, it doesn't say in the משנה that קידוש החודש needs three. All it says, אלא עיבור, that if they want to make it מעובר, if they want to make the 30th day as the 30th day of the past month, then they have to have three people. But the

question is, for that, why do you בכלל need a בית דין? לא לקדשו, let them not be מקדש it at all, וממילא לעבר, and automatically it'll become מעובר. Because if בית דין does not say on the 30th day that it is ראש חודש, then it's not ראש חודש. And if it's not ראש חודש, it's automatically the 30th of the past month. So why do we need a בית דין? And it has to be said in front of the בית דין that this month is מעובר? Let them not say anything, and then automatically it'll be מעובר. On the contrary, if they want to make it into ראש חודש, then they have to say something, that today is ראש חודש, מקודש. But if they don't say anything, it's automatically מעובר for past month. So what does the משנה mean that for עיבור החודש you have to have three? אמר אביי, אביי said, תני קידוש החודש, that you should טאקע change it, we should learn the משנה not עיבור החודש, but קידוש החודש. That when you want the 30th day to be ראש חודש, so then you have to have a בית דין of three, when the בית דין will be מקדש the חודש in front of the three and say that this day, this 30th day, is ראש חודש, is the beginning of the new month. ותנינא נמי הכי, we טאקע learn in a ברייתא that way, קידוש החודש ועיבור השנה בשלשה, דברי רבי מאיר, that when you're מקדש the חודש, and when you want to make a leap year, an extra month to the year, that's when you have to have three people. That's the opinion of רבי מאיר. And that's what he said should be said in the משנה also. אמר רבא, but רבא said, והא עיבור קתני! How could you say that the משנה means קידוש, and that's what we're supposed to write in the משנה when it says עיבור? Sometimes we find that it says one word and the גמרא says it's supposed to say a different word. But that's only when the two words sound alike, so then we're able to say that the one that wrote it down didn't hear exactly what it was supposed to say, and he made a mistake and wrote the wrong word. But when you have two words that don't sound alike, how can you say that he meant one and it says the other? In this case, if it was supposed to say קידוש, how could a mistake come out and the word עיבור should be written? So you can't say that עיבור really was a mistake for the word קידוש. So therefore it טאקע has to say עיבור, רבא says. אידך קשיא is, for עיבור why do we need three people? Why do we בכלל need a בית דין for עיבור? Let them not say anything and automatically it'll become מעובר! אלא אמר רבא, so רבא said, what does it mean? קידוש ביום עיבור, that is בשלשה. That if בית דין wants to be מקדש the חודש on the day of עיבור, the day of עיבור is the 30th day. That is the day that or it'll become מעובר, or it'll become the last day, the extra day so to speak, to the past month, or it'll become the first day of the new month. So בית דין wants to be מקדש the day of עיבור, the day which could have been an עיבור, so that's when you have to have three. אחר עיבור, but if it's going to go after עיבור, in other words the next day will be ראש חודש, then ליכא קידוש. Then there is no קידוש, בית דין doesn't have to say anything. So the word עיבור in the משנה is only referring to the day when they are מקדש, not that they make it into an עיבור. It is the day that could have been a day of עיבור, if they wanted not make it into עיבור, but they want to make it into ראש חודש, so then you have to have three. ומאן, and who does this go according to? This goes according to רבי אלעזר ברבי צדוק היא. This is רבי אלעזר ברבי צדוק. דתניא, because we learn in a ברייתא: רבי אלעזר ברבי צדוק אומר, רבי אלעזר ברבי צדוק said, אם לא נראה בזמנו, אין מקדשין אותו. If the לבנה was not seen in its proper time, in other words, there are no witnesses that say that they saw the לבנה on the 30th day, so then automatically ראש חודש is on the 31st, and בית דין doesn't have to be מקדש it. בית דין doesn't have to say on the 31st day that it is ראש חודש, שכבר קידשוהו בשמים, because in שמים, in heaven, they already made it קודש. Which means that one thing is for sure: a month cannot have more than 30 days. So if the 30th is part of the last month, so automatically the next day is not part of the last month, automatically it is a new month. So the בית דין doesn't have to say מקודש on that day, because it is automatically

מקודש. And the way the גמרא expresses it is that כבר קידשוהו שמים, in heaven they already made it מקודש. And as רש''י said, it means that the בית דין של מעלה already yesterday made it מקודש. But תוספות explains, what does that mean? That when it comes to the 30th day, the בית דין של מעלה, the בית דין in heaven waits for the בית דין של מטה, for the בית דין down here, to see what they will do, whether they will turn that day into ראש חודש or not. If the בית דין של מטה turns it into ראש חודש, then the בית דין של מעלה also considers it ראש חודש. If the בית דין של מטה does not turn it into ראש חודש, so automatically it is known that tomorrow will be ראש חודש. So right away in the morning of the 31st day, the בית דין של מעלה makes it into ראש חודש. So before even the בית דין של מטה has a chance to say מקודש, it is already said מקודש by the בית דין של מעלה. That's what the גמרא means שכבר קידשוהו שמים, because that is an automatic thing. So in שמים, right away, they made it into ראש חודש, so the בית דין של מטה doesn't have to say anything. Then the גמרא says, רב נחמן אמר, רב נחמן says just the opposite, that what does the משנה mean עיבור החודש בשלשה? קידוש אחר עיבור בשלשה, that the בית דין is מקדש the day after the עיבור. If the thirtieth day is from the past month, and the day afterwards is ראש חודש, that's when you have to have three people for בית דין to be מקדש that day. ביום עיבור, ליתיה קידוש, but if ראש חודש is the day of the עיבור, is the thirtieth day, then you don't have to be מקדש, then you don't need the בית דין to be מקדש.

ומאן תנא, and who is the תנא of this משנה? פלימו הוא, the תנא is פלימו. דתניא, we learn in a ברייתא, פלימו אומר, פלימו said, בזמנו, אין מקדשין אותו. If ראש חודש is in its time, the thirtieth day is ראש חודש, the past month has twenty-nine days, and the thirtieth day is ראש חודש, then בית דין doesn't have to be מקדש it. שלא בזמנו, מקדשין אותו, if ראש חודש is not in its time, if ראש חודש is the thirty-first day, then בית דין has to be מקדש it. And the reason for that is because if it's in its time, then it's a common thing, that is the right way, the normal way for it to happen, so for that you don't need a special thing to make it into ראש חודש, to make it into קדוש. But if it is on the next day, which is not the normal regular standard way to do it, so then you have to have a special thing to turn it into ראש חודש. So therefore, בית דין has to say מקודש on that day, and that's what the משנה means, that you have to have three people when they do that. רב אשי אמר, רב אשי says, לעולם חישוב תנא. That באמת what does the משנה mean עיבור החודש בשלשה? That when it comes to calculate to see whether they are able to make the עיבור or not, that's when you have to have three people. ומאי עיבור? What does the משנה mean with the word עיבור? חישוב דעיבור, the calculation of the עיבור, when they calculate to see whether that should be מעובר or not. אי, why does it use the לשון עיבור, not the לשון חישוב? But ואיידי דקבעי למתני עיבור שנה, since he wants to use the term further, עיבור שנה, when you make the year into a leap year, when you add the extra month, so there the לשון is עיבור, תני נמי עיבור חודש. Therefore, he also used the לשון עיבור חודש. Because concerning the year, it has to say the לשון עיבור שנה, because there we're talking about actual making it into a leap year. There we have to have a בית דין that they should say that this year will be a leap year, because if they don't say anything, automatically, when אדר is finished, it'll become ניסן. In order to have the next month אדר שני instead of ניסן, they actually have to say that it should be a leap year, it should be a second אדר. So there, the משנה must use the לשון עיבור, because for the making of the leap year, you need the בית דין. So there it has to say the לשון עיבור שנה, and since it has the לשון עיבור שנה, therefore it also has the לשון עיבור חודש. But really, what does it mean? Not for עיבור חודש do you need the בית דין, you need the בית דין for the חישוב דעיבור, for the calculations whether you should make an עיבור or not. So חישוב חודש, אין, so only for calculating whether the month should be a extra day or not, for that you need a בית דין. קידוש חודש, לא, but to be מקדש the חודש, to make the day into ראש חודש, you don't need a בית דין at all. Not if the thirtieth day will be ראש חודש and not if the thirty-first day will be ראש חודש. ומני? And

who is this? רבי אלעזר היא, this is רבי אלעזר. דתניא, because we learn in a ברייתא, רבי אלעזר אומר, רבי אלעזר says, בין בזמנו, בין שלא בזמנו, אין מקדשין אותו. Whether the ראש חודש will be in its time, whether the thirtieth day is ראש חודש or the thirty-first day is ראש חודש, אין מקדשין אותו, בית דין doesn't have to be מקדש it. שנאמר, because the פסוק says, וקדשתם את שנת החמשים שנה. This is concerning יובל. Every fifty years, the fiftieth year is יובל. So the תורה says you should make holy the fiftieth year, so we learn out, שנים אתה מקדש, that years you have to be מקדש, that the year of יובל, that's where there is a דין that בית דין has to say that this year is מקודש for the sake of יובל, ואי אתה מקדש חדשים, but there is no דין that you have to be מקדש months. And therefore, he holds that קידוש never needs a בית דין. It is only the calculations whether you should be מעבר or not, that's where you need the בית דין. Then the גמרא continues, we learned in the משנה, רבן שמעון בן גמליאל אומר, בשלשה וכולי, רבן שמעון בן גמליאל said that concerning what we said before, that עיבור החודש needs three and עיבור השנה needs three, that was the opinion of רבי מאיר. But רבן שמעון בן גמליאל said that you start with three and then five discuss it, and when it comes to the conclusion, you have to have seven. So the גמרא says, תניא, we learn in a ברייתא, כיצד אמר רבן שמעון בן גמליאל? What is the meaning in what רבן שמעון בן גמליאל said, that בשלשה מתחילין, that you start with three, ובחמשה נושאין ונותנין, and with five you discuss, וגומרין בשבעה, and you finish with seven? Now, what does that mean? So he says it means as follows: אחד אומר לישב ו שנים אומרים שלא לישב, you have a בית דין of three, and they talk whether is it important to sit down and discuss to see whether we should make the עיבור or not. So one of the three says, "Yes, let's discuss it, let's sit down to discuss it," and two say we don't even have to sit down to discuss it, because there is no question that we don't have to make that make the עיבור. So then בטל יחיד במיעוטו. So then this one is בטל because he's the minority. And obviously no discussion takes place, and the month is not מעובר. But if שנים אומרים לישב ואחד אומר שלא לישב, if two of the three say, "Yes, let's sit down to discuss it," and one says, "Let's not sit down," so here we have the majority saying we should sit down. So that is the פשט, we start with three, that two out of three say we should sit down, so that is enough to continue. ומוסיפין עליהם עוד שנים, we add two more. Now we have five. ונושאין ונותנין בדבר, and they discuss this thing whether they should be מעבר or not, and they see: שנים אומרים צריכה ושלשה אומרים אינה צריכה, two out of the five say that we should be מעבר, three out of the five say we shouldn't. בטל שנים במיעוטן, so the two are בטל in the מיעוט, and since the majority says that we don't have to be מעבר, so we are not מעבר, finish, and they leave. If שלשה אומרים צריכה שנים אומרים אינה צריכה, if three out of the five say, "Yes, we have to be מעבר," and two out of the five say we shouldn't be מעבר, so now the majority says we should. So now we have to be מעבר. Since the majority says yes, we have to be מעבר. So now when it comes to be מעבר, we said before we have to have seven to conclude, so ומוסיפין עליהם עוד שנים, we add two more, שאין המנין פחות משבעה, because the count should not be less than seven, and then we are מעבר with seven. So that's the פשט: we start with three, we see out of the three what does the majority hold whether we should discuss it, and then if the majority holds we should discuss it, we get two more for five for the discussion, and then we see what the majority of the five say whether we should be מעבר, and if they say we should be מעבר, we add two more, now we have seven, and we're מעבר with the seven. Then the גמרא continues: הני שלשה חמישה ושבעה כנגד מי? These three, five, and seven, what do they correspond? We said we start with three, we discuss with five, and we finish with seven. Now what do these correspond? So the גמרא says, פליגי בה רב יצחק בר נחמני וחד דעימיה. רב יצחק בר נחמני and someone that was with him have an argument. ומנו, who is that other person that was with him? רב שמעון בן פזי. ואמרי לה, some say, that רב שמעון בן פזי וחד דעימיה, רב שמעון בן פזי had an argument with someone that's with him. ומנו, רב יצחק בר נחמני, and who is that? רב יצחק בר נחמני. The difference between these two opinions is which one was the עיקר, the main one, and which one was the one that was with him. And the מחלוקת was, חד אמר, one says, כנגד ברכת כהנים, it corresponds the ברכות of the ברכת כהנים. The three פסוקים of ברכת כהנים, the first פסוק has three words, the second פסוק has five words, and the third פסוק has seven words. The first one is יברכך ה' וישמרך, the second one is יאר ה' פניו אליך ויחנך, and the third one is ישא ה' פניו אליך וישם לך שלום, and that's why we have these three numbers: three, five, and seven. וחד אמר, and one of them says, that כנגד שלשה שומרי הסף, it corresponds the three keepers of the threshold, חמשה מרואי פני המלך, the five represent the five people who see the face of the king, and then שבעה רואי פני המלך, and you also have seven that see the face of the king. In other words, we find by a king down here that there are different categories in people who are close to the king: we have a category of three, and we have a category of five, and a category of seven. We find by צדקיהו that there were three שומרי הסף, three guardsmen that were called the three שומרי הסף. We also find over there that there were five רואי פני המלך, there were five people who were considered those that see the face of the king, and then we also find seven, that is by אחשורוש, in the story of אסתר, so there we find that there were שבעה שרי פרס ומדי, that there were seven שרים, seven princes of פרס ומדי. So we see that there is a חשבון of seven also. So just like we find it concerning a king down here, now setting up the calendar and making the dates is מתכסיסי מלכות שמים, רש"י says. It is also part of the of the governmental rule of שמים, of השם, and therefore, just like down here we have these three categories, so also concerning setting up the dates, we have to have these three numbers: so we have a group of three and a group of five and a group of seven. And תוספות says that even the number seven doesn't come from אחשורוש, because why should you make a תקנה because of שרים that we find by גוים, and he says that it's also because of יידן, because in ירמיה we find that there were שבעה אנשים מראי פני המלך. But they both agree that the פשט is that we see the way it is in the מלכות of this world, and the same חכמים היו מתקן concerning the מלכות שמים. Then the גמרא continues, תני רב יוסף, רב יוסף had learned, הני שלושה וחמשה ושבעה, these five, three, and seven, הני כנגד שלושה שומרי הסף, הני כנגד the three watchers of the threshold. חמשה מרואי פני המלך, five are the see those that see the face of the king. שבעה רואי פני המלך, the seven are the seven that see the face of the king. He taught them the same thing like we learned before. אמר ליה אביי לרב יוסף, אביי said to רב יוסף, עד האידנא מאי טעמא לא פירש לן מר הכי? Till now, why didn't you explain this to us? אמר להו, so he said to them, לא הוה ידענא דצריכיתו. I didn't know that you need it, I didn't know that you needed this explanation. מי בעיתו מינאי מילתא ולא אמרי לכו? Did you ever ask me anything and I didn't tell you? So the reason I didn't tell you was because I thought you didn't need this explanation. But now that I saw that you need the explanation, I told it to you. Concerning what we learned before that concerning עיבור שנה, the גמרא definitely had to mention עיבור שנה, because when it comes to make a leap year, רש״י says it means that you must say that it is for the sake of a leap year. Because if you will not say, if the בית דין will not say that this day is ראש חודש for אדר שני, automatically it'll become ראש חודש ניסן. So therefore there we must say that it is מעובר. So therefore it must say עיבור השנה, and that's what the גמרא said, since חודש is mentioned next to שנה, so it also says עיבור חודש. But תוספות says that one thing, when רש״י said that on that day, concerning a leap year, the בית דין has to say מקודש, that it is מקודש for the sake of אדר שני, not for ניסן, רש״י didn't mean exactly the wording the way he wrote it. Because now we're going according to the opinion that just to be מקדש the חודש you never have to. This is the opinion that not when it is בזמנו on the 30th day, and not when ראש חודש is on the 31st day, must they be מקדש. The only time they must be מקדש is יובל, but never do they have to מקדש a חודש. So why should they have to be מקדש ראש חודש of אדר שני to say it is מקודש for אדר שני? So what רש״י meant was that they have to say it is established for אדר שני, not מקודש, because you don't have to be מקדש it. But you do have to establish it for אדר שני, and therefore they have to say that it's קבוע for אדר שני. But then תוספות asks another question. According to רש״י, it comes out that they do this on the 30th day of אדר. So then they have to establish it to say that it is not for ניסן, but it is for אדר שני. But תוספות asks, the דין is that you're not allowed to be מעבר the שנה, you can't make it into a leap year to have an extra month on the 30th day of אדר. It must be done before. Because a day that could have been already a beginning of the month of ניסן, on that day you can't make it into a leap year, that's the דין. You can only do it before. So how could the דין be that on the 30th day, when that day is supposed to be ראש חודש ניסן, that's when they turn it into ראש חודש אדר שני? So therefore, תוספות learns that the פשט is, when does the גמרא mean that they have to say, by the case of עיבור השנה, you have to have a בית דין in front of which you say that it is מעובר? It means when they finish discussing that, and they come to a conclusion that they want to be מעבר the year, so that's when they have to say that the next month is going to be מעובר. It is not on the 30th day of אדר, it is earlier than that. But they say then that the next month, when we will make it into ראש חודש, so that should not be ראש חודש of ניסן, but it should be ראש חודש of אדר שני. But if they don't say that, then automatically the next month will become ניסן. It is also important to note, concerning the earlier גמרא that we learned in the דין of פלגינן דיבורא, that according to רבא, if a person makes a statement, and part of the statement is concerning himself, so we don't believe him on that part of the statement concerning himself, but on the other part of the statement that's not concerning himself, we could believe him. So תוספות brings that there is an opinion in יש נוחלין in בבא בתרא that this is only said if it is in two גופים. But if the whole thing is on one גוף, then we do not say פלגינן דיבורא. For instance, if someone says, 'I divorced my wife', so there we do not say that for the past we will not believe him, but let's believe him for the future, because then the פשט is that we're changing what he said. Either we believe him or we don't believe him. In a case where we're able to say that we believe him and part of it we don't believe him at all, for instance, he says, 'That person did an עבירה with my ox.' So in the גמרא there was a שאלה that maybe we should say פלגינן דיבורא. If we would have said פלגינן דיבורא, the פשט would have been that we believe him that that person had relations with an ox, but we don't say it was his ox, we say it was another ox. But in a case where we don't say that, but in the words itself we change what he said, not the פשט we don't believe him, but we change in the same גוף what he said, then we don't say פלגינן דיבורא. But according to that, in the case where he says פלוני רבעני לרצוני, that somebody had relations with me willingly, and we do say פלגינן דיבורא, so the פשט is also not that we say that we don't believe him what he said that it was willingly, but we assume it was לאונסי, that that person had relations with him, but we don't accept and say that it was with his רצון, but we assume it was against his will, that's not the פשט, because then the פשט is we're changing his words. What we mean is that we believe him that that person had relations with a man, but we don't accept that it was with him. We say it was not with him. So then everything that's concerning him is not accepted and is not there, so it's as if he just testified that somebody had relations with a man. But if we're going to say that we believe him even that it was with him, and in that with him גופא, in that same one body we say it wasn't the way he said, לרצון, but it was לאונס, then we wouldn't say פלגינן דיבורא according to that סברא.