[San 3b: We begin on the fourth line of 3b. The gemara will seek scriptural sources for the requirement of three judges.]

From where (do we learn) three? The rabbis taught [in a b'raita] "The master of the house shall come near unto God" (Ex 22:7, in which the "God" is taken to mean "a judge") -- that is one (judge). [The verse continues:] "the cause of both parties shall come before God" -- that it two (judges). [The verse continues:] "he whom God shall condemn" -- that is three (judges). These are the words of R. Yoshiah.

R. Yonatan says: The first [mention of the word "God"] is an initial description, and we do not interpret initial descriptions exegetically. Instead [R. Yonatan provides an alternative exegesis], "the cause of both parties shall come before God" -- one (judge). "He whom God shall condemn" makes two (judges). But we cannot have an even number of judges, so we add one, and we have three judges.

Shall we say [that the fundamental disagreement between R. Yoshiah and R. Yonatan] is whether we consider initial descriptions, so that one (R. Yoshiah) says that we do interpret initial descriptions exegetically, and the other (R. Yonatan) says that we do not interpret initial descriptions exegetically?

No. Perhaps everyone agrees that we do not interpret initial descriptions exegetically, but R. Yoshiah (would explain his position) by saying: If so [if the first occurence of the word "God" were simply for an initial description], Scripture should have read "the master of the house should come near unto the judge." Why "to God?" We learn from this (that, in this special case, the first use of the term) also counts.

[So how would R. Yonatan respond to R. Yoshiah's exegisis?] R. Yonatan [would say: Scripture was using the term "God"] as a common expression (for judge), as people say "A person with a lawsuit should bring it before a judge."

But doesn't R. Yoshiah require an court that can turn [i.e., one that had an odd number of judges, and can "turn" according to the opinion of the majority]? For we learned in a b'raita: R. Eliezer the son of R. Yosei haGlili says: Why does the Torah say "to turn after a multitude" (Ex 23:2) -- the Torah says to make a court that "turns".

[According to R. Yoshiah, the verse uses the term "God" three times to indicate three judges. But if all courts require an odd number of judges, the verse could have specified only two judges, and we would have known that we need three to make an odd number! So why, according to R. Yoshia, did the verse have to specify three?]

R. Yoshia hold like R. Yehuda, who says seventy (an even number of judges can serve in a court). As we learned in our mishna: The Great Sanhedrin was made up of 71. R. Yehuda says 70. [R. Yoshia thus would allow courts with even numbers of judges. Therefore, the verse had to specify three judges; otherwise, two could be acceptable.]

You heard R. Yehuda [say that] the Great Sanhedrin [has an even number of judges] because that is what is written in Scripture (Num 11:16), but have you heard (R. Yehuda say) this for other courts?

And if you are going to say that there is no distinction (between the Great Sanhedrin and other courts), we learned (in our mishna) that the leaning of the elders [on a communal sacrifice] and the decapitation of a calf [when a body is found between two towns -- see our explanation in the mishna] requires three judges; these are the words of R. Shimon. R. Yehuda says five. And we explained R. Yehuda's position: [Lev 4:15: "And the elders of the congregation shall lay their hands on the head of the bullock before the Lord"] - "shall lean" [in the plural] -- two. "Elders" - two. And there cannot be a court with an even number of judges, so we add one more to make a total of five (judges). [This shows that R. Yehuda requires an odd number of judges in courts other than the Great Sanhedrin. So where is the support for R. Yoshiah's position that _any_ court can have an even number of judges?]

[The gemara answers:] R. Yoshiah's position is better than [i.e., more consistent than] R. Yehuda's. R. Yehuda holds that only in the case of a Great Sanhedrin is there no requirement for an odd number of judges, but R. Yoshiah does not require this even for other courts.

But what does R. Yoshiah do with "turn" [the superfluous term cited above to require an odd number of judges in general]? He interprets it to apply in capital cases [which would always require an odd number of judges], but not in monetary cases.

But we learned [a mishna on San 29a]: "If two (judges) say he is not liable and one says he is liable, he is not liable. If two say he is liable and one says he is not liable, he is liable." Is this not inconsistent with R. Yoshiah? [Rashi: R. Yoshiah holds that the requirement of three judges is Scriptural {based on the three repetitions of "God" in the verse cited above], not on the general principle of majority ruling {based on the exegesis of "turn"}. Thus, R. Yoshiah should require a unanimous ruling, not a majority.]

[The gemara answers: The mishna on 29a] may even be consistent with R. Yoshiah, who derives it from a kal v'chomer: Just as in capital cases, which are more stringent, the Torah says follow the majority, even more so in monetary cases. [Thus, R. Yoshiah would hold that courts can consist of an even number of judges larger than three, but that the decision follows a majority rule.]

The rabbis taught [in a b'raita]: Monetary matters are judged by three. Rabbi (Yehuda the Prince) says by five, so that a final verdict can be reached by (a majority decision of) three.

But can't a majority verdict be reached by two [of a three-judge court]?

[The gemara answers:] This is what Rabbi means: _Because_ the final verdict must be by three [we need five judges]. Thus, Rabbi holds that when Scripture requires three, it is for the final decision. [In other words, the final verdict must have at least three judges in agreement, which means we must start with a court of five.]

R. Abahu ridicules this [interpretation of Rabbi's position]: [If so,] a Great Sanhedrin would require one hundred forty one judges, so that the final decision would have (a majority of) seventy one, and a Lesser Sanhedrin would require forty five judges, do that the final decision would have (a majority of twenty three). Instead, the Merciful One said (Num 11:16) "Gather unto Me seventy men" -- at the time of gathering there should be seventy [not at the time of final verdict]. And (Num 35:24-25) "Then the congregation shall judge ... and the congregation shall deliver" (referring to a Lesser Sanhedrin] -- at the time of judging [but not at the time of the final decision. Here too [in the case of monetary matters], (Ex 22:7) "And the master of the house shall come near unto God" [i.e., a court] -- at the time of approach there must be three [judges, but not at the time of final judgment].

[The gemara revises its explanation of Rabbi's position:] Instead, (Ex 22:8) "the cause of both parties shall come before Elohim, he whom Elohim shall condemn shall pay double to his neighbor." [We have translated "Elohim" as God, and the rabbinical exegesis takes the term to refer to judges.] It says Elohim below (i.e., the second time) and it says Elohim above (i.e., the first time). ["Elohim" is actually mentioned three times, once in Ex. 22.7 and twice in Ex. 22:8. However, as explained, the first time is assumed to be for the initial description, and is not used for exegesis]. Just as below it refers to two judges [since the verb "yarshi`un" (shall condemn) is plural, so does the term above refer to two judges [making a total of four judges]. But we cannot have an even number of judges, so we add one, for a total of five.

And the rabbis? [Why do they not agree with Rabbi's exegesis?] (The verb) "yarshi`un" is written "yod resh shin yod ayin nun." [The spelling is "defective," in that, in the plural, there should have been a "vav" before the "nun." Thus, the term could be treated exegetically as a singular verb].

[The legitimacy of basing exegesis on differences in spelling of words in the Tanakh and their pronunciation will be taken up next.]

[We end on the fourth line of 4a.]

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