Sanhedrin 005

25:
The charge of defamation also has its origin in the Torah [Deuteronomy 22:13-19]. Unlike the western concept of defamation [of character], the Torah only legislates in this instance concerning a husband's claim that his newly-wedded wife was not a virgin when they married.

In ancient times (and well into the Amoraic period) there were two stages in the process of matrimony. Firstly the woman would accept "Kiddushin" from the man, which created a matrimonial link between the two that only death or divorce could bring to an end. However, the couple did not start living together as man and wife until some time later (usually a year). During the intervening period the woman would continue living in her father's home, and the couple would only set up their mutual home after "Nissu'in" ['Nuptials']. (All this was discussed at length, over many months, during the study of our first Tractate, Kiddushin, from November 1995 to December 1996. Check this out from our web-site archives). According to rabbinic understanding, the husband's claim (in the topic under discussion) is that during the interval after Kiddushin and before Nissu'in, the woman committed adultery.

26:
In our mishnah there is a "maĥloket" [difference of opinion] between Rabbi Me'ir and the rest of the sages. Rabbi Me'ir, viewing the issue as a monetary one (will the man have to pay the fine or not), holds that such cases are to be heard by a panel of three judges – like all other Dinei Mamonot. The rest of the sages, seeing the possibility that the case could develop into a capital one if the charge is proven, hold that the suit must be heard before a panel of twenty-three judges – like all other Dinei Nefashot. (Presumably, Rabbi Me'ir assumes that if the charges are found to be substantiated, a second and separate trial will be called on the capital charge of adultery.) In this case, as is almost invariably the case, the halakhah is according to the majority opinion, that of the sages.

On January 19th I wrote that "the halakhic juridical process basically recognizes only two possible outcomes for a case tried by Torah law: either the accused will compensate for her act by paying a fine… or he will compensate for his act by forfeiting his life".

Uri Sobel asks:

Where does the punishment of lashes fit in to this catagorization?

I respond:

Please wait patiently for the next mishnah!

I also wrote that "there can be no public prosecutor, and in that sense all suits are civil suits – charges that one citizen brings against another – be the charge one of causing damage to limb or property (in an automobile accident, for instance) or one of homicide…. In all cases … it is the citizens making the charge that constitute the prosecution.

Again Uri Sobel asks:

Who brings the charge in the case of a ritual transgression? Can these be tried at all?

I respond:

Torah law does not really recognize any difference between what our modern sophistication would see as "civil law" and "ritual law". Most certainly they could be tried, and they were heard before the appropriate court: if the ritual infringement involved a fine the case was heard before a panel of three; it it was a capital case – Sabbath desecration, let's say – then it was heard before a panel of twenty-three. However, broadly speaking, this only applies to transgressions between two human beings ["beyn Adam leĥavero"] or transgressions that are specifically within human jurisdiction; most transgressions of a ritual nature were "beyn Adam la-Makom" [between a person and God]. That's what Yom Kippur is all about!

On January 19th, in a parenthetical statement, I quoted Rambam as writing that "Every Hebrew-speaking person knows that the word "Elohim" is equivocal: sometimes designating the Deity, sometimes angels and sometimes rulers and judges".

Mark Lautman writes:

1. This is interesting in a linguistic sense. Are there other words in the Torah that are as equivocal? Is this the only example?
2. Does this not beg the question "how do we know to which entity the Torah is referring for each occurrence of the word Elohim?" Perhaps when Elohim created the world, it wasn't Hashem, but a council of angels?

I respond:

One of Rambam's major theses in his "Guide for the Perplexed" (especially in Part One) is that the Bible is replete with equivocal terms – terms that have a different meaning when applied to God than they have in any other instance. As for your second point – see Rashi on Genesis 1:26. (Alternatively, you might want to consult your local rabbi [grin].)

On January 21st I wrote: The ox here, obviously represents all animals, and the goring represents any human fatality directly caused by an animal in someone else's charge. As Rashi, quoting midrash points out: the Torah is merely using an "everyday" example… The owner of an animal that may be presumed harmless is liable for half the value of the damage caused, in order to encourage him to look after the animal. Once the animal has been "indicted" for a third time it can no longer be viewed as harmless, and the owner is required to pay compensation at the full value of the damage sustained.

Ed Frankel writes:

I was wondering about a modern application and was not sure how others would view it. Generally speaking an "ox" is not considered dangerous (shor mu'ad) until it has gored. However, what of an animal trained to be dangerous, or an animal that is naturally dangerous, even if domesticated? Would it be considered in this category? I do not refer to obviously dangerous animals, e.g. fighting bulls or fighting cocks, but to animals that are known to be risky even if they are kept as pets and considered harmless by their owners. An example would be a pit bulldog. Would it always be considered dangerous whether or not it already bit a victim?

I respond:

I think we shall understand the situation better if we try to get away from stereotypical English renditions. Ed refers to "shor mu'ad" as an animal that is considered dangerous. This is not a halakhic definition. I deliberately translated the Hebrew term "indicted". Thus all oxen (and similar domesticated animals) are considered to be "tam" [innocuous] until they have been "taken to court" three times for goring (or similarly dangerous behaviour). They then become "mu'ad". The term "mu'ad" does not mean "dangerous" but someone or something that has had evidence given against it in court. ("Ed" [a witness] and "edut" [testimony] come from the same root.) Such an animal (or rather, its keeper) is thus in the category of having been warned, and if it is not kept under appropriate restraint its keeper will be held liable for full damages. But where it is not reasonable to assume that the animal is innocuous, it would never be considered 'tam' and would be indictable from the very start. The most obvious example of an animal that is never to be considered 'tam' is – man! Our sages have decided that "Adam le'olam mu'ad", a person is permanently in an indictable status. A human being can never claim that it was not to be expected that he or she could behave in this or that dangerous way. If this is the case with the human animal (who must always be kept under restraint because it is always capable of doing damage to others), it seems to me all the more obvious that this would be the case with other animals who may be considered dangerous 'lekhatĥilah', from the start.

More of your comments and queries in our next shiur.