The case under discussion is a מוֹצִיא שֵׁם רַע–“The mishna records a dispute concerning the number of judges required to judge the case of a defamer (see Deuteronomy 22:13–19), which generally involves a man defaming his wife by falsely accusing her of having committed adultery while she was betrothed. Rabbi Meir says the case must be tried by three judges, and the Rabbis say: An accused defamer is judged by a court of twenty-three judges. It is obvious that in a case in which the husband’s accusation has the potential to result in the woman’s execution, Rabbi Meir agrees that as this is a case of capital law, it must be tried by twenty-three judges. Therefore, the dispute in the mishna must involve a lesser claim, such as a case where there are no witnesses to the alleged adultery, but the husband claims she was not a virgin when they married and is suing for monetary compensation.” (TB Sanhedrin 8a,Sefaria.org translation) The rabbis and Rabbi Meir disagree how many judges need to sit to deliberate this lesser monetary claim because there are no witnesses. The rabbis say 23 judges are still necessary while Rabbi Meir holds only three are required. The Gemara starting on daf TB Sanhedrin 8 and continuing on today’s daf TB Sanhedrin 9 suggests eight different solutions to explain the rabbis and Rabbi Meir’s position.
1. The underpinning issue for Ulla is חוֹשְׁשִׁין לְלַעַז. “Ulla said: Rabbi Meir and the Rabbis disagree with regard to the question of whether one needs to be concerned with the possibility of rumors, meaning that if the husband raises the claim that his wife committed adultery, although he has no witnesses and there is no potential for a capital conviction, should the court be concerned with the possibility that the publicity generated by the proceedings may lead to the emergence of witnesses, which would make it a capital case? Rabbi Meir holds that one need not be concerned with the possibility of rumors. And the Rabbis hold that one does need to be concerned with the possibility of rumors.” Rabbi Meir isn’t concerned that this case will transform into a capital case and holds that on the outset only three judges are needed to adjudicate need to sit in this case. The rabbis are concerned that this case might become a capital case; consequently, 23 judges should sit at the outset of the case.
2. Rava is concerned for the judges honor. This case of defamation looks like a capital case; however, the witnesses never show up. All we have is a monetary case. Rabbi Meir isn’t concerned to dismiss 20 of the 23 judges. The sages are concerned about the honor due judges; consequently, all 23 judges should adjudicate this monetary case.
3. Abaye understands the argument between Rabbi Meir and the sages concerns an incomplete warning. “the dispute between Rabbi Meir and the Rabbis, here we are dealing with a case where the witnesses to the adultery warned her that adultery is a capital transgression without specification as to the exact manner of death penalty she would receive And the matter is in accordance with this tanna, whose statement follows: As it is taught in a baraita: With regard to all the others, those who are liable for the various death penalties stated in the Torah other than the inciter to idol worship, the court executes them only when the following elements are present: The congregation, represented by the court; and witnesses; and forewarning just before the defendant commits the transgression. And the court does not execute him unless the witnesses had informed the defendant that he is liable to receive the death penalty from the court.” (Sefaria.org translation) Rabbi Meir holds an incomplete warning turns the capital case into a monetary case where only three judges are needed. The sages hold that an incomplete warning is still a valid warning. The case is still a capital case and 23 judges are required.
4. Rav Pappa says the case under discussion concerns a knowledgeable woman (חֲבֵירָה). “Rav Pappa said a similar explanation: Here we are dealing with a woman who is a ḥaveira, meaning that she is knowledgeable with regard to Torah matters. And they disagree with regard to the issue that is the subject of the dispute between Rabbi Yosei bar Yehuda and the Rabbis. As it is taught in a baraita: Rabbi Yosei bar Yehuda says: A ḥaver, as he is knowledgeable in Torah, does not need to be issued a forewarning by the witnesses, because forewarning is given only to distinguish between unintentional sin and intentional sin, and in the case of a ḥaver it is clear that he is aware of the halakha. The Rabbis maintain that even a ḥaver may not be punished unless he has been forewarned. Rav Pappa suggests that Rabbi Meir holds that a ḥaveira must be forewarned, and the mishna discussed a case where this forewarning did not take place, and consequently the trial of her alleged defamer could not lead to capital punishment.” (Sefaria.org translation)
5. The wrong warning underpins the disagreement between the sages and Rabbi Meir according to Rav Ashi, “The dispute in the mishna concerns a case where the witnesses warned her that she would be liable to receive lashes, but they did not warn her that she would be liable to receive the death penalty. In that case, the court would try her for adultery, and if found guilty she would receive lashes and not the death penalty. And they disagree with regard to the issue that is the subject of the dispute between Rabbi Yishmael and the Rabbis, as we learned in the mishna: One who is accused of violating a prohibition that would render him liable to receive lashes must be judged by three judges. In the name of Rabbi Yishmael it was stated: Cases involving lashes must be adjudicated by twenty-three judges. Therefore, Rabbi Meir holds that the case of the defamer may be adjudicated by three judges, because he holds that a court of three may administer lashes. The dissenting opinion, which holds that lashes may be administered only by twenty-three judges, also holds that this case must be adjudicated by a court of twenty-three.” (Sefaria.org translation)
6. According to Ravina the disagreement concerns a case where there are three witnesses, but one becomes ineligible either because he is a relative or is disqualified for other reasons. If one of the three witnesses is found disqualified, does that disqualify the entire testimony or do we just disqualify that one individual witness. Rabbi Meir holds the entire testimony is disqualified; consequently, the case turns into a monetary case where only three judges are required. The sages hold that only the individual witness is disqualified and we still have a capital case which needs 23 judges. There are lots of steps to reach this conclusion. If you’re interested how the bottom line is arrived, study the Gemara.
7. Who has to issue the warning underpins the disagreement between Rabbi Meir and the sages. Who has to issue the warning? Do the witnesses themselves after issue the warning? Rabbi Meir holds that they do. If the witnesses don’t issue the warning even though others do, the case is a monetary case and only three judges are required. As long as there is a warning, the rabbis hold that the capital case can proceed with 23 judges.
8. “And if you wish, say instead
a different explanation: The mishna discusses a case where the testimony
about the adultery was found to be contradictory with regard to the examinations
concerning minor details of the incident, but the testimony was not
found to be contradictory with regard to the interrogations
concerning the time and place of the incident, which is the primary substance
of the testimony
“And Rabbi Meir and the Rabbis disagree
with regard to the issue that is the subject of the dispute between
Rabban Yoḥanan ben Zakkai and the Rabbis. As we learned in a mishna
(40a): An incident occurred, and Rabban Yoḥanan ben Zakkai
examined the witnesses with regard to the stems of figs, as to their
color and shape, in order to expose a contradiction between the witnesses. When
he found a discrepancy in their reports about the figs, he dismissed the
testimony. Rabbi Meir adopts this opinion, and therefore a woman cannot be
tried for adultery if the witnesses disagree about details like these. The
Rabbis accept such testimony, and consequently, they require a court of
twenty-three judges.” (Sefaria.org translation)
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