IN MONETARY CASES THE DECISION MAY BE REVERSED etc. But the following contradicts this: 'If a man judged a case [by himself] and pronounced him who was liable, "not liable", or vice versa; the clean, "unclean," or the reverse: his decision stands, but he must pay an indemnity2 out of his own pocket'?3 — R. Joseph answered: This presents no difficulty: here it [our Mishnah] refers to a Mumheh;4 there, to one who is no Mumheh.5 But in the case of a Mumheh, do we reverse [the decision]? Have we not learned: If he was recognised by the Beth din as a Mumheh, he is exempted from paying [compensation]! — 6 R. Nahman answered: Here [in our Mishnah] the circumstances are that there is a court superior to this one in learning and numbers;7 whereas in the other Mishnah there is no court available superior to this in learning and numbers.8 R. Shesheth said: Here it treats of a case where he [the judge] erred regarding a law cited in a Mishnah;9 there, of a case where he erred in the weighing of [conflicting] opinions. For R. Shesheth said in R. Assi's name: If he erred in a law cited in the Mishnah, the decision is reversed; if he erred in the weighing of [conflicting] opinions, the decision may not be reversed.
Rabina asked R Ashi: Is this also the case if he erred regarding a teaching of R. Hiyya or R. Oshaia?10 — Yes, said he, And even in a dictum of Rab and Samuel?11 Yes, he answered. Even in a law stated by you and me? Are we then reed cutters in the bog?12 he retorted.
How are we to understand the phrase: 'The weighing of [conflicting] opinions'? — R. Papa answered: If, for example, two Tannaim or Amoraim are in opposition, and it has not been explicitly settled with whom the law rests, but he [the judge] happened to rule according to the opinion of one of them, whilst the general practice;13 follows the other, — this is a case of [an error] in the weighing of [conflicting] opinions.
R. Hamnunah refuted R. Shesheth: It once happened that R. Tarfon ordered a cow [belonging to Menahem],14 whose womb had been removed, to be given to dogs.15 When the matter was brought before the Sages in Jabneh, they permitted [her as human food], for Theodos16 the Physician stated that no cow or sow was allowed to leave Alexandria in Egypt unless her womb had first been cut out, so as to prevent her from having issue.17 Thereupon R. Tarfon exclaimed: Thy ass is gone, Tarfon!18 But R. Akiba said to him: You are not bound to make compensation, since he who is publicly recognised as a Mumheh is free from liability to pay.19 Now if it [your dictum] is correct,20 she should have said to him: You erred regarding a law cited in a Mishnah,21 and he who errs in a law cited in the Mishnah, may revoke his decision! — He22 meant two things:23 Firstly, you have erred in a law cited in the Mishnah, and he who errs in a law cited in the Mishnah may reverse his decision. Secondly: even if you had erred in the weighing of [conflicting] opinions, you are a publicly recognised Mumheh, and such are free from liability to pay [compensation].
R. Nahman b. Isaac said to Raba: What objection did R. Hamnunah raise against R. Shesheth from the case of the cow? Surely, the cow had already been given as food to dogs, and was no longer available for return to its owner!24 — He meant this: Should you say, that he who errs regarding a law cited in the Mishnah may not reverse the decision, it is correct: seeing that his decision stands, R. Tarfon was apprehensive, whereupon [R. Akiba] said to him: You are recognised by the Court as a Mumheh, and free from liability to refund. But if you say that he who errs in a law stated in the Mishnah may revoke his decision, then [R. Akiba] should have said to him: Since if the cow were still in existence, your decision would have been invalid and you would have done nothing, so too now, [that the cow has been consumed] you have done nothing.25
R. Hisda said:26 The one [Mishnah]27 treats of a case where he [the judge] took [from one] and gave [to the other] with his own hand;28 the other [Mishnah],29 where he did not take and give with his own hand.30 Now, that is correct in regard to pronouncing him who is not liable, 'liable'; when he might have taken [from the defendant] and given [to the plaintiff] with his own hand; but how is it conceivable in the reverse case [except] where he said to him: 'Thou art not liable'? Then he did not take [from one] and give [to the other] with his own hand! — Since he declared, 'Thou art not liable,' it is really as though he had taken [from one] and given [to the other] with his own hand.31 Then what of our Mishnah, which teaches: IN MONETARY CASES THE DECISION MAY BE REVERSED BOTH FOR ACQUITTAL, AND FOR CONDEMNATION? As for acquittal, it is correct: this is conceivable where he [the judge] originally said to him, 'Thou art liable,' but did not actually take [from him] and give [to the other] with his own hand.32 But how is it possible [to make any reversal] for condemnation, [except in the case] where the judge has first said to him: 'Thou art not liable'?33 But you maintain that when he said to him: 'Thou art not liable,' it is as though he had taken and given with, his own hand!34 — The Mishnah really states [only] one ruling. Viz., IN MONETARY CASES A DECISION MAY BE REVERSED IN FAVOUR [OF THE ONE],35 WHICH IS [TO THE OTHER'S (i.e.. THE PLAINTIFF'S)] DISADVANTAGE. Then by analogy, in regard to capital charges, [the statement,] THE VERDICT MAY BE REVERSED FOR ACQUITTAL ONLY
Sanhedrin 33bBUT NOT FOR CONDEMNATION, must mean, it can be reversed for acquittal, provided this involves only acquittal.1 BUT NOT FOR CONDEMNATION. i.e., [there must be no reversal] in favour [of one] which is detrimental [to the other]. But to whose detriment can it possibly be? — That is no difficulty: It means to the detriment of the avenger of blood.2 Because it is detrimental to him, are we to execute a man!3 Moreover, how explain, BOTH … AND?4 This remains a difficulty.
Rabina explained it5 thus: E.g he [the plaintiff] had a pledge [from the defendant] and he [the judge] had taken it from him:6 He declared the clean, 'unclean', means that he brought it into contact with a reptile;7 he declared the unclean,'clean', by mixing it with his [the questioner's] own fruit.8
IN CAPITAL CHARGES etc. Our Rabbis taught: Whence [do we infer] that if the accused leaves the Beth din guilty, and someone says: 'I have a statement to make in his favour,' he is to be brought back?9 — Scripture reads: The guiltless10 slay thou not.11 And whence [do we infer] that if he leaves the Beth din not guilty, and someone says: 'I have something to state against him,'he may not be brought back? — From the verse, And the righteous,12 slay thou not.13
R. Shimi b. Ashi said: It is the reverse in the case of a Mesith, for it is written: Neither shalt thou spare, neither shalt thou conceal him.14 R. Kahana derived it15 from the words: But thou shalt surely kill him.16
R. Zera asked of R. Shesheth: What of those condemned to exile?17 — Identical law is inferred from the use of rozeah in both cases.18 What of those liable to flagellation? Identical law is derived from the use of rasha' [guilty] in both cases,19 it has been taught likewise: Whence [do we infer the same procedure] for those liable to exile? — Identify of law is derived from the use of 'murderer' in both places. And in the case of those liable to flogging? — From the fact that 'guilty' is used in both places.20
BUT NOT FOR CONDEMNATION. R. Hiyya b. Abba said in R. Johanan's name: Proving that he erred in a matter which the Sadducees21 do not admit.22 But if he erred in a matter which even they admit,23 let him go back to school and learn it.24
R. Hiyya b. Abba asked R. Johanan: What if he erred in a law regarding an adulterer or an adulteress?25 — He answered: While thy fire is burning, go, cut thy pumpkin and roast it.26 It has been stated likewise: R. Ammi said in R. Johanan's name: If he erred in the case of an adulterer, the decision must be reversed. Then in what cases are decisions not reversed?27 — R. Abbahu said in R. Johanan's name: E.g., If he erred in respect to unnatural intercourse.28
IN MONETARY CASES, ALL etc. 'ALL' [implies] even the witnesses. Shall we say that our Mishnah represents the view of R. Jose son of R. Judah, and not that of our Rabbis? For it has been taught: 'But one witness shall not testify against any person29 — both for acquittal and condemnation.30 R. Jose son of R. Judah said: He may testify for acquittal, but not for condemnation'? — Said R. Papa: ['ALL'] refers to [even] a single one of the disciples, and thus it agrees with all.31
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