ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Sanhedrin 85
(a) When they asked Rav Sheishes whether Beis-Din was permitted to appoint a
son to lash his father or to place him in Cherem, he replied - that a son
should be no different from anybody else, seeing as, like him, they are
forbidden to strike a fellow-Jew, yet the Torah's permits it when Kavod
Shamayim (to punish the evildoers) is at stake.
(b) We query Rav Sheishes' reply from a Beraisa 'u'Mah Mi she'Mitzvah
Le'hakoso, Mitzvah she'Lo Le'hakoso; Mi she'Eino Mitzvah Le'hakoso Eino Din
she'Mitzvah she'Lo Le'hakoso'.
1. 'Mitzvah Le'hakoso, Mitzvah she'Lo Lehakoso' means - that where there is
a Mitzvah to lash him, it is nevertheless forbidden to administer even one
more stroke than the amount of lashes that he is due to receive.
(c) Initially we interpret 'Mi she'Mitzvah Le'hakoso' - to refer to anyone
else other than a father, and 'Mi she'Eino Mitzvah Le'hakoso' - to a father
(both in connection with a person who sinned [a Kashya on Rav Sheishes, who
draws no distinction between the two]).
2. 'Mi she'Eino Mitzvah Le'hakoso, Eino Din she'Mitzvah she'Lo Le'hakoso'
means - that where there is no Mitzvah to strike him, one may certainly not
strike a fellow-Jew.
(d) We resolve the problem by establishing 'Mi she'Mitzvah Le'hakoso' - as
pertaining to someone who sinned (irrespective of whether the Sheli'ach
Beis-Din is a stranger or the son), and 'Mi she'Eino Mitzvah Le'hakoso' by
someone who did not.
(a) To differentiate between the son and someone else, Rav Chisda interprets
the Beraisa 'ha'Yotze Le'hareg u'Ba B'no ve'Hikahu ve'Kilelo Chayav ... Ba
Acher ... Patur' - when they were trying to make the Chayav go, but he
refused, and he holds that a son is not permitted to become a Sheli'ach
Beis-Din to force his father to go.
(b) This poses a Kashya - on Rav Sheishes, who does not differentiate
between a son and anybody else.
(c) Rav Sheishes will explain - that the Beraisa is not speaking in a case
where the Chayav is refusing, but where they struck him Stam.
(a) The problem with Rav Sheishes' explanation is - that if they struck him
Stam, why is a stranger Patur?
(b) We cannot answer that the stranger Patur because it is as if he killed a
dead man, because Rav Sheishes also ruled - that if someone shamed a
sleeping person who subsequently died in his sleep, he is Chayav to pay ...
(c) ... because of the shame sustained by his children; sand that is equally
applicable to someone who shamed a man who is about to be killed, even if he
*is* considered like a dead man.
(d) So we try to establish the Beraisa when he struck the culprit a blow
that caused less than a Shaveh-Perutah. The problem with this answer is a
ruling of Rebbi Ami Amar Rebbi Yochanan, who ruled that if Reuven strikes
Shimon a blow that causes less than a Shaveh-Perutah - he receives Malkos
(so why should the stranger be Patur)?
(a) The problem with then interpreting Patur (in the case of a stranger
striking the culprit) to mean Patur from paying (even though he receives
Malkos) is - that it would imply that the son is Chayav to pay (what, less
than a Shaveh Perutah?)
(b) So we suggest that the stranger is Patur because the Torah writes
"ve'Nasi be'Amcha Lo Sa'or" - from which we learn that someone who curses a
Jew who does not behave like a Jew, is Patur.
(c) That is why he is Patur for cursing him. And we learn that he is Patur
for striking him - from the Din of cursing (either by means of a 'Mah
Matzinu' or from a 'Hekesh', seeing as they occur in Mishpatim close to one
another (even though there is a Pasuk in between them).
(d) But then it is unclear why his son is Chayav. The answer 'be'she'Asah
Teshuvah' (like Rav Pinchas explained in a different context) is
unacceptable - because then why is a stranger Patur.
(a) We finally answer that the stranger is Patur because one is only Chayav
for 'Mekuyam she'be'Amcha', by which we mean - somebody who is destined to
carry on living among the people, and not someone who is about to be killed.
(b) A son is nevertheless Chayav - because this is no worse than after his
father's death, where he is also Chayav.
(c) That explains why he is Chayav for cursing him. And he is Chayav for
striking his father, even though he would be Patur if he struck him after
his death - because that is only due to the fact that technically, it is not
possible to make a wound after death (not because the Torah precludes it).
(a) In conclusion, we cite the opinion of Rabah bar Rav Huna, who holds -
that a son can never be appointed a Sheli'ach to strike or curse (i.e. place
a Cherem on) his father, unless he (the father) is a Meiosis.
(b) We will accept the opinion of Rabah bar Rav Huna rather than that of Rav
Sheishes - because it enjoys the support of a Beraisa.
(a) Our Mishnah is more strict with regard to cursing one's father than
striking him - where the son does so after his father's death ...
(b) ... because one is only Chayav for striking a father when one causes a
wound, and this is not possible when the father is already dead.
(c) We learn from the Pasuk "Aviv ve'Imo Kilel", which is superfluous - that
one is Chayav even for cursing parents after their death.
(d) Besides learning a *'Binyan Av*' from Makeh, we might have thought
otherwise - by learning a 'Kal va'Chomer' from Makeh; because if Makeh is
Patur after death, in spite of the fact that the Torah did not make 'she'Lo
be'Amcha like ke'Amcha', how much more so Mekalel, which it exempts by
(e) In spite of the fact that Haka'ah is written near K'lalah, this Tana
does not learn Haka'ah from K'lalah with a Hekesh - because there is a Pasuk
in between, as we discussed earlier.
(a) Rebbi Yashiyah in a Beraisa, learns from "Aviv ve'Imo Kilel" - that one
is Chayav for cursing either parent (and it is not necessary to curse them
both in order to be Chayav). And he explains the Pasuk this way - because
now with this extra phrase, "Aviv" is closer to the first "Yekalel", and
"Imo" next to the second "Kilel".
(b) According to Rebbi Yonasan, this D'rashah is unnecessary, since "Asher
Yekalel es Aviv ve'es Imo" implies either one or the other (as long as the
Torah has not written "Yachdav" like it does by Sha'atnez).
(c) The problem according to Rebbi Yashiyah is - from where does he know
that one is Chayav for cursing his parents after their death?
(d) If Rebbi Yashiyah now learns Mekalel Aviv ve'Imo le'Achar Miysah from
the Pasuk "Mekalel Aviv ve'Imo Mos Yumas", whereas Rebbi Yonasan learns from
this Pasuk - to include the daughter of a Tumtum and Androginus (the Rambam
appears to have the text 'to include a Tumtum and an Androginus') who
strikes her father.
(a) Rebbi Yashiyah does not learn bas Tumtum ve'Androginus from "Ish Ish
(Asher Yekalel)", like the Tana Kama of the Beraisa - because he holds
'Dibrah Torah ki'Leshon B'nei Adam' (the double Lashon is purely
(b) According to the Beraisa, Makeh has a Chumra over Mekalel - inasmuch as
it applies even to someone who is not 'Oseh Ma'aseh Amcha'.
(c) Our Mishnah (which discusses the Chumra of Mekalel over Makeh) does not
mention it - because, he learns Makeh from Mekalel (either from a 'Mah
Matzinu' or from the Hekesh (in spite of the intervening Pasuk).
(a) One Beraisa permits cursing and striking a Kuti. A second Beraisa -
permits cursing him, but forbids striking him.
(b) Assuming that both Beraisos consider the Kutim true Geirim, based on the
fact that they later began to worship idols (and are therefore precluded
from 'Oseh Ma'aseh Amcha') they argue over - whether we learn Haka'ah from
K'lalah or not.
(a) Alternatively, we try to base their Machlokes upon - whether the Kutim
were true Geirim (the second Beraisa), or not (the first Beraisa), and both
Tana'im hold in principle that 'we learn Haka'ah from K'lalah'.
(b) We refute this explanation however - on the basis of the first Beraisa
adding that the Dinim of Mazik (with regard to full payment for a Mu'ad and
half for a Tam), apply to the Kutim just as they do to the ox of a
(c) If the Kutim were Geirei Arayos (and not genuine Geirim) - then a
Yisrael would be exempt from paying at all if his ox gored theirs, whereas
they would have to pay full damages, even if a Shor Tam of theirs damaged
the property of a Jew.
(d) The basis of their Machlokes therefore - must be whether we compare
Haka'ah to K'lalah or not (as we explained in the original explanation).
(a) The Tana Kama of our Mishnah requires a kidnapper to actually take the
person he is kidnapping into his domain before he becomes Chayav Miysah. He
derives this from the Pasuk in Ki Seitzei "ve'Nimtza be'Yado", from ...
1. ... "be'Yado" - that the kidnapped person must be taken into the
(b) Based on the Pasuk there "ve'His'amer Bo u'Mecharo", Rebbi Yehudah adds
to this - that the kidnapper must also work with the kidnapped person before
2. ... "ve'Nimtza" - that witnesses must actually see the kidnapped person
in the kidnapper's domain.
(c) Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah subjects a father
who kidnaps his own son - and Rebbi Yehudah someone who kidnaps a Chatzi
Eved ve'Chatzi ben Chorin, to the Din of Gonev Nefesh ...
(d) ... whereas the Rabbanan (of both Rebbi Yishmael B'no shel Rebbi
Yochanan ben Berokah and of Rebbi Yehudah) - preclude both.
(a) We learned in our Mishnah that Rebbi Yehudah requires the kidnapper to
work with the person he kidnapped. This does not mean that the Tana Kama
does not (because he cannot argue with a Pasuk "ve'His'amer Bo") - but that
he does not require a Perutah's-worth of work, whereas Rebbi Yehudah does.
(b) Rebbi Yirmiyah asks whether someone who kidnaps a sleeping person and
sells him - is Chayav, whether the work he does with him is considered
conventional work (at least in this regard) or not.
(c) The second case that he incorporates in his She'eilah is - one where the
kidnapper kidnapped a pregnant woman for her baby.
(d) The 'Imur' referred to by Rebbi Yirmiyah is - leaning on the sleeping
person, and using the woman together with her baby to block a draft.
(e) The outcome of Rebbi Yirmiyah's She'eilos is 'Teiku' (Tishbi Yetaretz
(a) Having written ...
1. ... "Ki Yimatzei Ish Gonev Nefesh ... ", the Torah needs to add "ve'Gonev
Ish u'Mecharo ... " - to teach us that a woman kidnapper is Chayav, too.
(b) And a second Beraisa (based on the first of the above Pesukim) rules -
that someone who steals a Ger, an Eved Meshuchrar or a Katan - is Chayav.
2. ... the above, the Torah nevertheless adds "u'Meis *ha'Ganav* ha'Hu" - to
teach us that even a woman who kidnaps a woman is Chayav.
(c) The Tana of the first Beraisa learns his Din from the 'Hey' in
"ha'Ganav". The Sifri uses "ha'Hu" - to preclude someone who kidnaps an
(d) The second Beraisa rules that a kidnapper who ...
1. ... did not sell the person whom he kidnapped or who sold him without
first taking him into his domain - is Patur.
2. ... sold his own father, brother or any other relation - is Chayav.
3. ... kidnapped an Eved and sold him - is Patur.