Sanhedrin 064
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BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel
RABIN MISHNAH STUDY GROUP
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אֶחָד דִּינֵי מָמוֹנוֹת וְאֶחָד דִּינֵי נְפָשׁוֹת בִּדְרִישָׁה וּבַחֲקִירָה, שֶׁנֶּאֱמַר: "מִשְׁפַּט אֶחָד יִהְיֶה לָכֶם".
מַה בֵּין דִּינֵי מָמוֹנוֹת לְדִינֵי נְפָשׁוֹת? דִּינֵי מָמוֹנוֹת בִּשְׁלשָׁה, וְדִינֵי נְפָשׁוֹת בְּעֶשְׂרִים וּשְׁלשָׁה. דִּינֵי מָמוֹנוֹת פּוֹתְחִין בֵּין לִזְכוּת בֵין לְחוֹבָה, וְדִינֵי נְפָשׁוֹת פּוֹתְחִין לִזְכוּת וְאֵין פּוֹתְחִין לְחוֹבָה. דִּינֵי מָמוֹנוֹת מַטִּין עַל פִּי אֶחָד בֵּין לִזְכוּת בֵּין לְחוֹבָה, וְדִינֵי נְפָשׁוֹת מַטִּין עַל פִּי אֶחָד לִזְכוּת וְעַל פִּי שְׁנַיִם לְחוֹבָה. דִּינֵי מָמוֹנוֹת מַחֲזִירִין בֵּין לִזְכוּת בֵּין לְחוֹבָה, דִּינֵי נְפָשׁוֹת מַחֲזִירִין לִזְכוּת וְאֵין מַחֲזִירִין לְחוֹבָה. דִּינֵי מָמוֹנוֹת הַכֹּל מְלַמְּדִין זְכוּת וְחוֹבָה, וְדִינֵי נְפָשׁוֹת הַכֹּל מְלַמְּדִין זְכוּת וְאֵין הַכֹּל מְלַמְּדִין חוֹבָה. דִּינֵי מָמוֹנוֹת הַמְלַמֵּד חוֹבָה מְלַמֵּד זְכוּת וְהַמְלַמֵּד זְכוּת מְלַמֵּד חוֹבָה, דִּינֵי נְפָשׁוֹת הַמְלַמֵּד חוֹבָה מְלַמֵּד זְכוּת, אֲבָל הַמְלַמֵּד זְכוּת אֵינוֹ יָכוֹל לַחֲזוֹר וּלְלַמֵּד חוֹבָה. דִּינֵי מָמוֹנוֹת דָּנִין בַּיּוֹם וְגוֹמְרִין בַּלַּיְלָה, דִּינֵי נְפָשׁוֹת דָּנִין בַּיּוֹם וְגוֹמְרִין בַּיּוֹם. דִּינֵי מָמוֹנוֹת גוֹמְרִין בּוֹ בַיּוֹם בֵּין לִזְכוּת בֵּין לְחוֹבָה, דִּינֵי נְפָשׁוֹת גּוֹמְרִין בּוֹ בַיּוֹם לִזְכוּת וּבְיוֹם שֶׁלְּאַחֲרָיו לְחוֹבָה; לְפִיכָךְ אֵין דָּנִין לֹא בְעֶרֶב שַׁבָּת וְלֹא בְעֶרֶב יוֹם טוֹב:
Both Dinei Mamonot and Dinei Nefashot require "examination" and "investigation", for the Torah [Leviticus 24:22] states that "You shall have but one judgment [procedure]".
What is the difference between Dinei Mamonot and Dinei Nefashot? Dinei Mamonot is before three, while Dinei Nefashot is before twenty-three. [The judges' discussion in a case of] Dinei Mamonot may start either for the claimant or for the defendant, while with Dinei Nefashot it must be started by an opinion in favour of the accused. In Dinei Mamonot a majority of one is sufficient in finding either for or against the claimant, while in Dinei Nefashot a majority of one is sufficient to acquit but a majority of at least two is required to convict. A retrial may be required in Dinei Mamonot regardless of whether it is to the benefit or to the detriment of the claimant, while a retrial may be required in Dinei Nefashot only if it is to the benefit of the accused. In Dinei Mamonot anyone may speak on behalf of acquittal or condemnation, while in Dinei Nefashot anyone may speak on behalf of acquittal but not everyone may speak on behalf of condemnation. In Dinei Mamonot [during the discussion] anyone can freely change their opinion as regards acquittal or condemnation, while in Dinei Nefashot only a judge who has expressed an opinion for condemnation may change his opinion and a judge who has expressed an opinion in favour of acquittal may not change his opinion. [A case involving] Dinei Mamonot may be started in the morning and concluded after nightfall while [a case involving] Dinei Nefashot may not be concluded after nightfall [but must be adjourned to the following day]. [A case involving] Dinei Mamonot may be concluded on the same day as it was started regardless of to whose benefit the verdict may be, while [a case involving] Dinei Nefashot may be concluded on the same day as it started only if judgment is for acquittal but it must be adjourned to the following day if judgment is for condemnation. That is why such cases may not be heard on Fridays or on the eve of festivals. EXPLANATIONS:
1:
And you shall investigate, examine and carefully question in order to establish that the accusation is correct and that this foul deed was actually committed in Israel…
Despite the fact that, as our mishnah states, the Torah requires this procedure to be observed in all forms of judgment, as we have already seen the rabbis relaxed the laws of evidence somewhat in the case of Dinei Mamonot in order not to make it too difficult for creditors to recover their debts. People are less likely to lend money to the needy when they suspect that it might be difficult for them to prove that the loan was indeed made.
2:
Halakhic jurisprudence basically recognizes two kinds of action at law. Court cases either belong to the category of "Dinei Mamonot" or to the category of "Dinei Nefashot". The former can be literally translated as "cases involving money" and the latter as "cases involving life". These literal translations have led to a mistaken identification of "Dinei Mamonot" with what is known in the Anglo-Saxon juridical tradition as "Civil Law", and of "Dinei Nefashot" with criminal law. As we shall see, this kind of categorization is very misleading. A better path to follow would be to categorize according to the possible outcome of the case. 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 ("Dinei Mamonot") or he will compensate for his act by forfeiting his life ("Dinei Nefashot").
3: 4:
The community shall judge between the [two of them …] and the community shall rescue the killer from the clutches of the Go'el ha-Dam… [Numbers 35:24-25]
We recall also that according to rabbinic hermeneutics, the minimum number of persons constituting a community or congregation is ten.
We may now return to the Tosefta. One "community shall judge" – that's ten judges who might condemn the accused; and another "community shall rescue" – that's another ten who might acquit. The remaining three are required to ensure a requisite majority. Later on our present mishnah states that "in Dinei Nefashot a majority of one is sufficient to acquit but a majority of at least two is required to convict". Thus, in order that at least ten judges can theoretically "judge" – condemn – the accused and eleven (ten plus one) acquit we need twenty one. However we must also allow for the other possibility: in order that at least ten judges can theoretically "rescue" – acquit – the accused and twelve (ten plus two) acquit we need twenty-two. But that would clash with another rule that no court may consist of an even number of judges, so we add one more and arrive at twenty-three. To be continued. Shabbat Shalom to everybody. |