Again Raba said: [If witnesses testify] that so and so committed adultery with a betrothed woman1 and their evidence is refuted, they are liable to capital punishment, but not to the indemnification of the Kethubah.2 If, however, they say, 'with the [betrothed] daughter of so and so,'.3 they are liable to both capital punishment and the indemnification of the Kethubah. The money fine for intended injury to one person, and the death penalty for intended death to another.
Raba said further: [If witnesses testify] that so and so committed an unnatural crime with an ox, and the evidence is afterwards refuted, they are liable to capital punishment, but not to be mulcted in respect of the ox.4 If, however, they say, 'with the ox of so-and-so,' they must pay the fine and are put to death; the fine because of the loss they intended to inflict on one person, and death because they sought to bring about the death of another person. Why is it necessary to state this latter law? Is not the underlying principle the same as in the previous case? — It had to be stressed because Raba propounded in connection with it a question as follows: If witnesses declare that 'so-and-so has committed an unnatural crime with my ox,' what would in this case be the law?5 While adopting the principle, 'one is considered a relative to himself', do we admit the principle, 'one is considered related to his property', or do we not? After propounding the problem, he later solved it. We accept the principle as affecting his own person, but not as affecting his property.6
CASES OF FLOGGING BY THREE, etc. Whence do we infer this? — R. Huna said: Scripture says: They [the judges] judge them,7 indicating [at least] two, and since no Beth din can consist of an even number, another judge is added, giving a total of three.
But now, according to our exegesis, the verb 'vehizdiku' — [and they shall justify] — should also denote two, and so likewise the verb 'vehirshi'u' [and they shall condemn]8 an additional two, [so making, together with, the above three], a total of seven in all? — These verbs are to be explained according to 'Ulla. For 'Ulla said: Where in the Torah do we find an allusion to the treatment of witnesses attested as Zomemim? Where is there found any allusion to Zomemim [witnesses]! Do we not read, Then shall ye do unto him as he had purposed to do to his brother?9 What is required is some allusion supporting infliction of stripes upon Zomemim.10 This we find where it is written: And they shall justify the righteous, and shall condemn the wicked.11 Now [assuming that this refers to the judges], how, since the judges justify the righteous and condemn the wicked, does it follow that the wicked man deserves to be beaten?12 — [The text cannot therefore refer to judges;] rather it must refer to witnesses who have incriminated a righteous man, after whom other witnesses came and justified the righteous, and rehabilitated his [the injured man's] character, and thus condemned the wicked, that is, established the wickedness of the witnesses, in which case, if the wicked man [the false witness] deserve to be beaten, the judge shall cause him to lie down and be beaten. But why, could not this be deduced from the commandment: Thou shalt not bear false witness against thy neighbour?13 — No! Because that is a prohibition involving no material action, and the transgression of a prohibition involving no material action is not punishable by flogging.
IN THE NAME OF R. ISHMAEL IT IS SAID, BY TWENTY-THREE. Whence is this deduced? — Said Abaye: It is derived from the word rasha', which occurs alike in connection with flogging and with capital punishment. In the one case it is written: If the wicked [guilty] man [ha-rasha'] deserve to be beaten,14 and in the other, it is written, that is guilty, [rasha] of death.15 Just as in the case of the extreme penalty twenty-three are needed, so in the case of flogging. Raba says: Flogging is considered a substitute for death.16 R. Aha son of Raba said to R. Ashi: If so, why then the need of medical opinion as to the amount of lashes the condemned can stand? Let him be beaten, and, should he die, well, let him die!17 — R. Ashi answered: Scripture says: Then thy brother should be dishonoured before thine eyes,18 to indicate that when the lashes are applied, they must be applied to the back of a living person. But in this case [how explain what] has been taught: If in their [the medical] opinion he can stand no more than, say, twenty lashes, he is to be given a number of lashes divisible by three; namely, eighteen?19
1 that is to say, after the last lash has been administered, he must still be 'thy [living] brother.'
THE INTERCALATION2 OF THE MONTH BY THREE. [The Tanna of the Mishnah] mentions neither the 'calculation'3 nor the 'sanctification',4 but the INTERCALATION of the month. [Why then the need of three for this?] Suppose it is not sanctified [on the thirtieth day] it will then be automatically intercalated! — Abaye therefore said: Read then, THE SANCTIFICATION OF THE MONTH. It is also taught to the same effect: The sanctification of the month and the intercalation of the year is to be determined by three. So R. Meir holds. But, asked Raba, does not the Mishnah say, the INTERCALATION? — Hence, said Raba, the Mishnah means that the sanctification made on INTERCALATION, that is on the intercalary day,5 is determined by three; but on the day after it there is to be no sanctification. And this represents the opinion of R. Eliezer b. Zadok, as it has been taught: R. Eliezer b. Zadok says: If the new moon has not been visible in time, there is no need for the Sanctification next day, as it has already been sanctified in Heaven.6
R. Nahman said: [The Mishnah means] that Sanctification is held on the day after INTERCALATION [that is after the intercalary day] by three; but on the day itself, there is to be no Sanctification. And whose view is this? — Polemo's, as it was taught: Polemo says, [If the new moon has appeared] at its due time,7 there is not to be Sanctification; but if it has not appeared at its due time, Sanctification is to be proclaimed.
R, Ashi said: In reality, the Mishnah refers to the 'calculation', and as for THE INTERCALATION, it means the calculation relating to THE INTERCALATION. But having to state [explicitly] THE INTERCALATION OF THE YEAR,8 the Tanna also employs the phrase THE INTERCALATION OF THE MONTH.
The Mishnah thus holds that only 'calculation' is required in fixing the length of the month, but no formal 'sanctification'. Whose view is this? — R. Eliezer's; as it has been taught: R. Eliezer says: Whether the moon appears at its due time or not, no sanctification is needed, for it is written, Ye shall sanctify the fiftieth year9 [from which it is to be inferred that] thou art to sanctify years10 but not months.
R. SIMEON B. GAMALIEL SAYS, BY THREE etc. It has been taught: How [are we to understand] R. Simeon b. Gamaliel when he says, THE MATTER IS INITIATED BY THREE, DISCUSSED BY FIVE AND DETERMINED BY SEVEN? — If, for example, one holds a meeting [for the purpose of considering the question of intercalation] to be necessary, but two hold that it is unwarranted, the opinion of the single one, being in the minority, is overruled. If, however, two are in favour of the meeting and one is not, two more are co-opted, and the matter is then discussed. Should then two [of the five] find intercalation necessary, and three not, the opinion of the two, being in the minority, is overruled. If, however, three favour intercalation and two not, an additional two are co-opted, as not less than seven form a quorum to determine an intercalation [where there is a division of opinion].
To what do these numbers, three, five and seven, correspond? — R. Isaac b. Nahmani, and an associate of his, namely, R. Simeon b. Pazi; or according to others [who invert the order], it was R. Simeon b. Pazi and an associate of his, namely. R. Isaac b. Nahmani, differ in the matter. One said [that the numbers, three, five and seven] correspond to [the respective number of Hebrew words] in [the three verses of] the Priestly Benediction;11 the other said, they correspond to the three keepers of the threshold,12 the five of them that saw the king's face,13 and the seven … who saw the king's face.14
R. Joseph learned: [The numbers] three, five and seven, correspond [as follows]: Three, to the keepers of the threshold, five, to those of them that saw the king's face, and seven, to those who saw the king's face. Whereupon Abaye asked him: 'Why has the Master not explained it to us hitherto?' He answered: 'l knew not that you needed it. Did you ever ask me to interpret anything and I refused to do it?'
(Mnemonic: Appointment, Nasi, Necessary, Kid.)
Our Rabbis taught: The year can be intercalated only by a Court
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