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Kollel Iyun Hadaf, Jerusalem

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Horayos 4

HORAYOS 3-4 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.



(a) Rebbi Zeira compares Rebbi Elazar (who refers to a Yachid who acted by the Beis-Din's ruling after they had retracted as 'Safek' to - someone who ate Safek Cheilev Safek Shuman, who is obligated to bring an Asham Taluy, when he discovers his mistake.

(b) And when he adds that this even speaks according to those who hold that it is the Beis-Din (and not the Kahal) who brings the Korban - he means to say that even though the sin is not common knowledge (in which case he ought to be Patur (because he is Toleh be'Da'as Beis-Din), he is nevertheless Chayav an Asham Taluy.

(c) And the reason that he is not considered 'Toleh be'Beis-Din' is - because he could easily have discovered that Beis-Din had erred, by asking someone why they had brought a Korban.

(a) We learn from the Pasuk "be'Yom Tzavoso" - that a Korban can only be brought in the day (but not at night).

(b) Rebbi Yossi bar Avin (or Rebbi Yossi bar Z'vida) compares the ruling of Sumchus (who refers to the same Yachid as 'Taluy') to someone who brought his Korban during the period of Bein ha'Shemashos - which are similar in that both do not atone properly, yet they are Patur from an Asham Taluy.

(c) And this speaks even according to those who hold that it is the Kahal who bring the Korban. In spite of the fact that the mistake is public knowledge, and anybody would have told him why they are bringing a Korban, he is nevertheless not considered 'Toleh be'Da'as Atzmo' - because maybe he had no-one to ask (i.e. it never occurred to him to ask, and at the end of the day, his actions were based on the ruling of the Beis-Din at the time).

(a) When ben Azai asked Rebbi Akiva why a Yachid who went overseas is Patur any more than one who stayed at home, Rebbi Akiva replied that whereas the latter might have heard about the error, the former would not. Rebbi Akiva's answer seems obvious. So they must be arguing in a case - where the Yachid had left home, but was still within the town's borders (leaving him with a slight chance of still making the necessary discovery).

(b) Rebbi Akiva holds - that once he leaves the house, he is busy with his travels, and is unlikely to discover that Beis-Din had erred; whereas according to ben Azai, as long as he is still in town, it is as if he is still at home, and he should have found out that Beis-Din erred.

(a) After informing us that if Beis-Din negate an entire Mitzvah, they are Patur from a Chatas, the Beraisa continues (in connection with where they only negated part of the Mitzvah) 'Yachol Yehu Peturin'. What is strange about this suggestion is - the fact that, if they are Patur from a Korban for negating part of a Mitzvah, as well as for negating an entire one, then when are they Chayav?

(b) We answer that what the Tana really means is that perhaps "Ve'ne'elam Davar" refers to the whole Mitzvah and not to part of it (the reverse of the way we actually learn). Ula rejects this proposition by referring to the same words "Ve'ne'elam Davar" - linking the 'Mem' in "Ve'ne'elam" to the word that follows it, "Davar" (to read "mi'Davar", implying 've'Lo Kol Davar'), as well as to "Ve'ne'elam" that precedes it.

(c) Chizkiyah learns it from the latter part of the Pasuk "Achas mi'Kol Mitzvos", implying 've'Lo Kol Mitzvas'. This D'rashah is based on the fact - that "Mitzvos" is written without a second 'Vav' (giving it singular connotations).

(d) According to Rav Ashi, the Tana learns it from Zakein Mamrei, where the Torah writes "Ki Yipalei Mimcha Davar, Lo Sasur min ha'Davar Asher Yagidu Lecha ... " - which we Darshen "Miktzas ha'Davar", 've'Lo Kol ha'Davar', from which we learn Hora'as Beis-Din with a 'Gezeirah-Shavah' "Davar" "Davar".

(a) In defining part of a Mitzvah, Rav Yehudah Amar Shmuel explains that Beis-Din are not Chayav unless they negate something which the Tzedokim do not agree with - because any D'rashah with which the Tzedokim agree is so obvious, that whoever transgresses it is not a real Shogeg. It is so easy to arrive at the truth, that he is considered a Meizid.

(b) We query this from our Mishnah, which gives the example (with reference to Nidah) of Shomeres Yom Keneged Yom, which even the Tzedokim agree with. The Pasuk in Tazri'a that serve as the source for Shomeres Yom Keneged Yom is - "Ve'safrah Lah".

(c) We also reject the suggestion that they ruled that Ha'ara'ah or she'Lo ke'Darkah (an unnatural Bi'ah) is permitted. 'Ha'ara'ah' is - a partial Bi'ah (whose exact definition is a matter of dispute).

(d) We learn from the Pasuk ...

1. ... "es Mekorah He'erah" - that Ha'ara'ah is considered Bi'ah with regard to a Nidah.
2. ... "Mishkevei Ishah" - that there are two ways of committing adultery or incest 1. with a Bi'ah ke'Darkah 2. a Bi'ah she'Lo ke'Darkah.
(a) The objection to the suggestion that the 'part of the Mitzvah' of a Shomeres Yom Keneged Yom refers to Ha'ara'ah by Bi'ah she'Lo ke'Darkah (which Beis-Din permitted) is - that in that case, why does the Tana cite the example of Shomeres Yom Keneged Yom, seeing as it pertains equally to a Nidah.

(b) So we revert to the first suggestion. And the reason that the Tzedokim do not agree with the ruling that Ha'ara'ah is forbidden by a Shomeres Yom Keneged Yom is - because it is written by Nidah, and not by a Zavah at all.

(c) Alternatively, we explain the case, based on the Pasuk "Kol Yemei Zovah" - which implies that she is only Tamei if she saw blood by day, which is what Beis-Din ruled. And this mistake pertains only to a Shomeres Yom Keneged Yom, where "Kol Yemei" written (but not to a Nidah, where it is not, and where the Tzedokim would therefore agree).

(d) It does not however preclude a Zavah, which we (and even the Tzedokim) would equate with a Shomeres Yom Keneged Yom.

(a) We also query Rav Yehudah Amar Shmuel from our Mishnah, which gives the example of part of a Mitzvah of Shabbos as when Beis-Din permitted carrying from one domain to the other. But surely - this too, is obvious, seeing as the Pasuk writes "Lo Sotzi'u Masa mi'Bateichem", a clear-cut Pasuk forbidding carrying, posing a Kashya on Shmuel?

(b) We answer the Kashya ...

1. ... based on the wording of the Pasuk itself - by confining it to carrying from the house to the street ('Hotza'ah'), but not to Hachnasah (carrying from the street into the house, a separate prohibition), which is what the Tana is referring to.
2. ... even if the Pasuk incorporates Hachnasah (carrying from the street into the house) - by establishing our Mishnah when Beis-Din permitted handing or throwing from one domain to the other, which is not specifically mentioned.
(c) Our Mishnah also gives as an example of part of a Mitzvah by Avodah-Zarah as prostrating oneself in front of an Avodah-Zarah. In spite of the fact that the Torah specifically writes "Lo Sishtachaveh le'Eil Acher", the Tzedokim might not agree that Hishtachavayah is forbidden - because they will argue, the Pasuk is confined to an idol that is specifically worshipped by means of Hishtachavayah (ke'Darkah), to preclude one that is not (and that is precisely what Beis-Din permitted in our Mishnah).

(d) They might not even agree by ke'Darkah either though - because they might argue that Hishtachavayah is only forbidden if one prostrates oneself completely, but not if one does so without stretching out ones feet and hands (which is what Beis-Din permitted in our Mishnah).




(a) Rav Yosef asked what the Din will be if Beis-Din permit plowing on Shabbos. This might not be considred 'part of Shabbos' - because it negates a complete Melachah.

(b) They queried Rav Yosef from Nidah in our Mishnah, which the Tana established by 'Shomeres Yom Keneged Yom' (and Shabbos, by 'carrying ... ', and Avodas-Kochavim, by 'Hishtachavayah'). The negation of plowing on Shabbos might well be worse than the negation of these three - according to the previous Sugya, where we just established each of them when he only negated part of the Mitzvah ('Shomeres Yom Keneged Yom' by Ha'ara'ah or night-time, 'carrying' on Shabbos by handing over or throwing, and 'Hishtachavayah' by Avodah-Zarah by Hishtachavayah she'Lo ke'Darkah).

(a) Rebbi Zeira asked whether it would be considered a partial negation if Beis-Din issued a ruling that Shabbos did not take effect in the Sh'mitah year or a complete one. The source of such an error would be - the Pasuk in Ki Sisa "be'Charish u'va'Katzir Tishbos", which implies that in a year when there is no plowing or reaping, Shabbos does not apply.

(b) The two sides of the She'eilah are - that, on the one hand, during that year, the negation is total, whereas on the other, it is only temporary.

(a) Ravina cites a Beraisa regarding a Navi who prophesies to uproot a Mitzvah. There is no problem about not taking him seriously - since the Beraisa is talking about a genuine Navi who has issued a false prophesy only this time.

(b) The Tana there draws a distinction between a Navi who propesies to uproot an entire Mitzvah - who is Chayav Misah, and one who prophesies to negate part of one - who is Patur.

(c) The exception to this rule - when he prophies permitting Avodah-Zarah, either completely or in part.

(d) The ramifications of 'Chayav' in the case of a Navi Sheker are - Sekilah, according to the Rabbanan, Chenek, according to Rebbi Shimon.

(e) Ravina resolves the She'eilah from the Tana's example of part of a Mitzvah by Avodah-Zarah which is - to worship it today, but nullify it tomorrow, which is equivalent to our She'eilah (where the tempory aspect of the nullification has to do with its time limitation) and proves that this is considered a partial negation, for which Beis-Din would be Chayav.

(a) If a member of Beis-Din warned his colleagues that their ruling was in error, our Mishnah exempts Beis-Din from bringing a Chatas - because it is not a proper ruling (since not all members of Beis-Din agreed with the ruling, as we discussed earlier).

(b) Even if all seventy members were present, but the wisest Chacham was not - the Tana rules that they are Patur from a Korban.

(c) The Tana also considers the Beis-Din ha'Gadol deficient in this regard, if one of the Dayanim was a Ger - a Mamzer, a Nasin or an old man who could no longer father children (see Tosfos Yom-Tov).

(d) We learn this from the Pasuk in Shoftim "Ve'shaftu ha'Eidah, ve'Hitzilu ha'Eidah" (where these faults disqualify a Dayan, as we shall see shortly) - by means of a 'Gezeirah-Shavah' "Eidah" "Eidah".

(a) Beis-Din are Patur for issuing an erroneous ruling if the wisest Chacham was not present - for the same reason that Rav Sheishes and Tana de'Bei Rebbi Yishmael give for exempting them when they issue a ruling to which the Tzedokim agree, namely, because it is close to Meizid, seeing as they needed only to learn a bit more to discover the correct ruling.

(b) Rav Chisda learns that the faults mentioned in our Mishnah disqualify a Dayan from joining the Beis-Din ha'Gadol, from the Pasuk in Beha'aloscha "Ve'hisyatzvu Sham Imach" - which he Darshens "Imcha" (referring to Moshe) 'be'Domin Lach'.

(c) We ask on this Limud however 've'Eima Imach li'Shechinah', which might mean that it was only because they were going to experience Hashra'as ha'Shechinah that the above were disqualified (but not otherwise). Alternatively, it may mean that the Pasuk comes to warn the new Dayanim that they were to stand with Moshe, and not to venture closer to the Shechinah.

(d) So Rav Nachman bar Yitzchak finally learns it - from the Pasuk there "Ve'nas'u Itach" (implying the same as we initially inferred from the earlier Pasuk).

(e) We can also learn from here that the current Halachah is confined to the Beis-Din ha'Gadol - since we are speaking about the seventy elders who were chosen to sit on the Beis-Din of Moshe Rabeinu.

(a) Our Mishnah obligates Beis-Din to bring a Par He'elam Davar if both the Beis-Din's ruling and the Tzibur's actions were be'Shogeg. Assuming that Beis-Din ruled ...
1. ... be'Meizid and the Tzibur acted be'Shogeg - each individual sinner would have to bring a Kisbah or a Se'irah (since it does not conform with the Pasuk "ve'Im Kol Adas Yisrael Yishgu".
2. ... be'Shogeg and the Tzibur acted be'Meizid - they would be Patur from a Chatas.
(b) We try to extrapolate from the case in our Mishnah 'Shogegin ve'Asu Meizidin Patur' that in a case of 'Shogeg Dumya de'Meizid Chayav. The case is - where Beis-Din permitted Cheilev, and someone picked up a piece of Cheilev instead of Shuman (he erred in the same way as the Beis-Din, though he relied on himself and not on them).

(c) When we say that Beis-Din permitted Cheilev, we mean - that they permitted the Cheilev on the stomach say, but not that on the intestines (otherwise, it will be a complete Davar, and they will be Patur).

(d) Rami bar Chama, who asked earlier whether one is Chayav in such a case or not, will reject the proof from here that he is - because, he says, the Tana only presented the case in this way in order to balance the Reisha 'Meizidin ve'Asu Shogegin ... ', and not to extrapolate anything from the Lashon.

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