Babylonian Talmud: Tractate Sanhedrin

Folio 33a

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

1. Since Scripture begins with the negative. Thus, Rabbi too understands by this that the 'opening for acquittal' is an assurance to the accused that he has nothing to fear if he is innocent.
2. For any loss caused by his erroneous decision.
3. Mishnah, Bek. 28b. Thus it is evident that in monetary cases the decision cannot be reversed.
4. V. Glos. To such authority was given to retract his first decision.
5. Who, though his decision stands, must pay compensation in case of error.
6. For an erroneous judgment, whilst his decision holds good. Thus, even if the judge is a Mumheh, his decision is not reversed.
7. Which can act, in a sense, as a court of appeal to reverse the lower court's decision.
8. And hence the desire to reverse the decision may be opposed by one of the parties. But in reality, both instances, viz., that of the Mishnah here, and that of the latter part of the Mishnah there, treat of a case where the decision is given by a Mumheh.
9. In which case his decision may be revoked.
10. I.e., does the above ruling regarding an error in a law cited in Mishnah apply also to an error in a law cited in the Tosefta: a collection of Halachoth the redaction of which is attributed to R. Hiyya and R. Oshaia? The authority of the Tosefta is not equal to that of the Mishnah.
11. Whose ruling is not so authoritative as the traditional law in the Tosefta.
12. I.e., insignificant, of no importance.
13. Adopted by a majority of judges. So the text as given in Rashi and elsewhere. Our reading is: and the general trend of the (Talmudic) discussion thereon, v. supra 6a.
14. The bracketed phrase is absent in Bek. 28b, whence this Mishnah is quoted.
15. I.e., he declared her unfit for human consumption
16. Or, Theodoros.
17. The Egyptian breed was unique in its quality, and so they took this measure in order to limit its breeding to that country. Such a mutilation did not, however, affect them.
18. I.e., shall now have to sell my ass to compensate the owner of the cow for my erroneous decision!
19. Bek. 28b and infra 93a.
20. That an error in a law cited in Mishnah justifies rescinding.
21. Cf. Hul. 54a. An animal whose womb has been removed may be used for food.
22. R. Akiba
23. Lit., He meant, 'One thing and yet another.'
24. What purpose, then, could the reversal of the decision serve?
25. I.e., you personally did not throw it to the dogs: it was the owner's misfortune to follow your ruling. (V. B.K. 100a.) Seeing therefore that R. Akiba did not argue in the manner, it can be inferred that if one errs regarding a law cited in the Mishnah, the decision may not be reversed.
26. In answering the contradiction.
27. The Mishnah in Bek.
28. Then the decision cannot be reversed.
29. Our Mishnah.
30. In that case, an erroneous judgment was reversed.
31. For he is confirming the defendant in the possession of the money claimed from him by the plaintiff.
32. Then he can subsequently revise his verdict.
33. And now declares that he is.
34. In which case judgment cannot be reversed according to R. Hisda, and yet it is taught that the verdict may be upset.
35. Sc., the defendant, who had previously been pronounced liable.

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

1. I.e., it does not cause damage to anyone else, e.g in the ease of the intentional desecration of the Sabbath, or of adultery.
2. V. Num. XXXV, 19. It is a duty of the avenger of blood, the victim's nearest relative, to call the murderer to account (v. Mak. 12a; infra 45b; Mains. Yad, Rozeah I, 2), therefore in case the verdict were reversed for acquittal he would lose the opportunity of avenging his relative's blood.
3. Surely it will not be argued that in order to soothe the kinsman's wrath we are to abide by the decision to execute the accused, even where there are reasons for reversing it.
4. In the words of the Mishnah; BOTH FOR CONDEMNATION AND FOR ACQUITTAL; this proves that two statements are made, not one.
5. R. Hisda's statement above, that where he found the guilty innocent, the decision cannot be reversed for condemnation, for that would mean actually a taking from the one and giving to the other.
6. And had given it to the defendant on finding him not liable.
7. In a case where there was a doubt as to the cleanness of a certain object, and the judge established his decision by actually making it unclean.
8. As a demonstration of its cleanness. These are illustrations of the possibility of the judge himself causing loss through his verdict.
9. For re-trial.
10. [H], not guilty of the crime so long as there are still arguments in his favour unheard.
11. Ex. XXIII, 7.
12. [H], found righteous in court, though not necessarily innocent, seeing that there is still evidence against him to be heard.
13. Ex. XXIII, 7.
14. Deut. XIII, 9.
15. I.e., that it is the reserve in the case of a Mesith.
16. Ibid. 10.
17. For unintentional homicide. Cf. Num XXXV, 11ff. Is his trial similar in procedure to trials in capital, or monetary cases?
18. [H]; 'murderer', as used in connection with murder (Num. XXXV, 16), where he is punished by death, and as used in connection with unintentional homicide (ibid. 11) which shows that the procedure with regard to reversing decisions is the same in both cases.
19. [H]. Flagellation: If the guilty is worthy to be beaten, Deut. XXV, 2; capital punishment: Who is guilty of death. Num. XXXV, 31.
20. Tosef. Sanh. VII.
21. [H]. A party holding views directly opposite to those of the Pharisees. They regarded only those observances obligatory which are contained in the written Word, and did not recognise those derived from Rabbinical interpretations; but v. p. 239, n. 9.
22. E.g., the prohibition in marriage of a father-in-law's mother (Cf. infra 75a) which is transmitted by oral law.
23. Such as a law found in the Biblical text.
24. I.e., Since he erred in a Biblical law, his decision must be reversed.
25. Whereas other criminal cases lend themselves to mistakes in judgment, owing to the investigation of the manifold details accompanying the act, in cases of illicit intercourse, once the act is done, there is no room for error (Rashi). According to R. Hananel, the question is, what if the judge erred by deciding that liability falls only on the male transgressor against whom alone Scripture provides, (cf. Lev. XVIII, 20), and not on the woman?
26. I.e., when engaged in your lesson pursue it further, it will save you from asking questions, for the law provides against an adulteress in Lev. XX, 10.
27. Cf. Mishnah. Decisions in capital cases (including adultery) may not be reversed for condemnation.
28. Which is derived from an interpretation of Lev. XVIII, 22, which the Saducees do not agree. V. infra 54a.
29. Num. XXXV, 30.
30. I.e., A witness who has testified in a case may not come again to bear other testimony in favour of, or against the accused, in the same case.
31. I.e., with the Rabbis too.