LIABILITY FOR KIDNAPPING
(A reciter of Beraisos - R. Shimon): "Me'Echav" teaches that he must remove him from his brother's premises. He is exempt for selling to relatives!
(Rav Sheshes): Indeed, Beraisa #2 should say that he is exempt for selling to relatives.
Question: Why change the Beraisa? Perhaps it is like Chachamim who argue with R. Shimon!
Answer: The Beraisa is part of Sifri (which expounds verses in Bamdbar and Devarim). We may assume that it is like R. Shimon;
(R. Yochanan): A Stam Mishnah is assumed to be R. Meir;
A Stam Tosefta is assumed to be R. Nechemyah;
A Stam Sifra (i.e. Toras Kohanim, which expounds verses in Vayikra) is assumed to be R. Yehudah;
A Stam Sifri is assumed to be R. Shimon;
All of these are assumed to be according to R. Akiva (all of these were his Talmidim).
(Mishnah): If one kidnaps his son...
Question: What is Chachamim's reason (to exempt)?
Answer (Abaye): "Ki Yimatzei" excludes one who is normally found by the kidnapper (e.g. his son).
Question (Rav Papa): If so, does "Ki Yimatzei Ish Shochev Im Ishah Be'ulas Ba'al" exclude the house of Ploni (a certain house) in which men and women cohabit?
Answer (Abaye): I learn from "v'Nimtza b'Yado."
(Rava): Children and Talmidim are normally by their Rebbi, therefore he would be exempt for kidnapping them.
(Mishnah): If one kidnaps a half-slave...
(Mishnah - R. Yehudah): Embarrassment does not apply to slaves.
Question: What is R. Yehudah's reason?
Answer: "Ki Yinatzu... Ish v'Achiv" refers to people who have (Halachic) brothers. It excludes slaves.
Chachamim disagree. Since also a slave is commanded to keep Mitzvos, he is called a brother of a Yisrael.
Question: What is R. Yehudah's source to obligate for kidnapping a half-slave?
Answer: "Me'Echav" excludes a slave. "Bnei Yisrael" excludes a half-slave. Also "mi'Bnei Yisrael" excludes a half-slave;
Two exclusions, one after the other, always come to include.
Chachamim say, "me'Echav" does not exclude a slave, for he is a brother in Mitzvos;
"Bnei Yisrael" excludes a slave, and "mi'Bnei Yisrael" excludes a half-slave.
THE WARNING NOT TO KIDNAP
Question: Which verse forbids kidnapping?
Answer #1 (R. Yoshiyah): It is "Lo Signov (in the 10 utterances)."
Answer #2 (R. Yonason): It is "Lo Yimachru Mimkeres Aved."
They do not argue. R. Yoshiyah gives the Lav not to kidnap, and R. Yonason gives the Lav not to sell.
(Beraisa #1): "Lo Signov" forbids kidnapping.
Question: Perhaps it forbids stealing money!
Answer: One of (R. Yishmael's) 13 methods of expounding is to learn from the context. The previous Mitzvos (murder and adultery) are Chayavei Misos, so presumably "Lo Signov" is also.
(Beraisa #2): "Lo Tignovu (in Parshas Kedoshim)" forbids stealing money.
Question: Perhaps it forbids kidnapping!
Answer: One of the 13 methods of expounding is to learn from the context. The verse is followed by monetary laws.
TESTIMONY ABOUT A CHATZI-DAVAR
(Chizkiyah): If two witnesses testified that Reuven kidnapped, and two others testified that he sold, and all were Huzmu, they are not killed (therefore, the testimony is Iy Efshar Lehazimo. Even if they are not Huzmu, Reuven is not killed);
(R. Yochanan): They are killed.
Chizkiyah holds like R. Akiva, who says that testimony must be a (full) Davar (matter), and not a half-Davar;
R. Yochanan holds like Chachamim, who say that testimony can even be a half-Davar.
Chizkiyah admits that if witnesses who testified about the second time a Ben Sorer u'Moreh stole and ate (for which he is killed) were Huzmu, they are killed;
Since the witnesses who testified about the first theft suffice to lash him, also the testimony of the latter witnesses is considered a (full) 'Davar.'
Question (Rav Papa): If so, Chizkiyah should admit also about kidnapping! Since the witnesses who testify about the kidnapping suffice to lash him, also the testimony about the sale is a 'Davar'!
Suggestion: Perhaps Chizkiyah holds that one is not lashed for kidnapping (without selling).
Rejection: Chizkiyah and R. Yochanan argued whether or not Edim Zomemim who testified about kidnapping are lashed;
We concluded that Chizkiyah must say that they are lashed. According to R. Yochanan, they could be killed (if witnesses will testify that he sold, and all will be Huzmu after the final verdict) for Lo Sa'aneh, which forbids false testimony);
One (in this case, a witness) is not lashed for a Lav that can obligate Misah!
(Rav Papa): Rather, all agree that witnesses of the sale are killed (if they are Huzmu after the final verdict). They argue about witnesses of the kidnapping:
Chizkiyah says that they are not killed. Kidnapping is considered an independent matter. It is not a transgression of Misah;
R. Yochanan says that they are killed. Kidnapping is the first half of the transgression (which culminates with the sale).
R. Yochanan admits that if witnesses who testify about the first time a Ben Sorer u'Moreh stole were Huzmu, they are not killed, for they can say that they only intended to lash him.
(Abaye): All agree about Ben Sorer u'Moreh (sometimes, the witnesses are exempt), all agree about Ben Sorer u'Moreh (sometimes, the witnesses are liable), and they argue about (liability of the witnesses in a third scenario of) Ben Sorer u'Moreh:
All agree that the first witnesses (who testify about the first time he stole and ate) are not killed, for they can say that they intended only to lash him;
All agree that the latter witnesses (who testify about the second time he stole and ate) are killed, for the first witnesses can say that they intended only to lash him, so the Chiyuv Misah is totally due to the latter witnesses;
The argument about Ben Sorer u'Moreh is when two witnesses say that they saw him steal the second time, and two others say that they saw him eat the second time. (Chidushei ha'Ran - Chizkiyah holds like R. Akiva, who says that the testimony of the theft is invalid, for it is a half-Davar, for it does not obligate even lashes without the latter testimony. It does not obligate money, for it is considered part of capital testimony. R. Yochanan holds like Chachamim, who accept the testimony.)
(Rav Asi): If witnesses testify that Reuven sold someone (and they were Huzmu), they are exempt, for he can say that he sold his slave.
(Rav Yosef): This is like R. Akiva, who invalidates testimony about a half-Davar.
Rejection (Abaye): Rav Asi said that they are exempt because he can say that he sold his slave. Chachamim agree with this. The case is, there are no witnesses that he kidnapped.
Question: If so, obviously they are exempt!
Answer: The case is, witnesses of kidnapping came later (and Reuven was convicted, and later the witnesses were Huzmu).
Question: Still, it is obvious that they are exempt, for when they testified, there were no witnesses of kidnapping!
Answer: The case is, the witnesses gestured to each other;
One might have thought that this shows that they collaborated with each other (and the witnesses of the sale are also liable). Rav Asi teaches that this is not so.
(Mishnah): Zaken Mamrei is one who rebels against the Great Sanhedrin - "Ki Yipalei... (v'Alisa El ha'Makom... v'El ha'Shofet)." The verse discusses three Sanhedriyos;
One sits at the entrance to Har ha'Bayis, one sits at the entrance to the Azarah, and one sits in Lishkas ha'Gazis.
If a Chacham opposed the Beis Din of his city, they go to the Sanhedrin at the entrance to Har ha'Bayis. He says 'this is how I expounded. This is how they expounded. This is how I learned. This is how they learned.' If the Sanhedrin has a tradition for the law, they give it. If not, they go to the Sanhedrin at the entrance to the Azarah.
If also this Sanhedrin has no tradition, they all go to the Great Sanhedrin in Lishkas ha'Gazis which teaches Torah to Yisrael - "Min ha'Makom Asher Yivchar Hash-m." (The Great Sanhedrin rules on the issue.)
If the Chacham returns to his city and learns as he did before, he is exempt. If he rules (for others to follow in practice) he is liable. "Asher Ya'aseh v'Zadon" shows that he is liable only if he teaches for others to follow.
If a Talmid (not qualified to rule) rules for others to follow, he is exempt;
His disqualification exempts him.