Warning

Sanhedrin (5:1) | Yisrael Bankier | 4 days ago

The Mishnah (5:1) lists the questions (derisha and chakira) with which the judges would interrogate the witnesses. One of the questions was whether they warned the accused prior to his committing the offence. We shall try to understand the necessity of a warning -- hatraah.

The Gemara (40b) probes the biblical source of the requirement of hatraah. It then brings four different biblical sources. The Tosfot (s.v minayin) provide two explanations for why the Gemara was looking for a biblical source. The first is that the Gemara is only asking for the source in the case of talmid chachamim. In all other cases, a source is not necessary, but rather self-evident. The role of a warning is to determine whether the person acted deliberately (mezid) or inadvertently (shogeg). The assumption is a talmid chacham would be aware that what he was doing was prohibited, and his violation would be considered mezid. The pasuk is therefore required to teach that the warning is required even in that case. The second answer the Tosfot provide is that the Torah source is required to teach the violation of the prohibition must be immediately after the warning -- toch kedei dibbur.

The first comment of the Tosfot is contrast to the opinion of R' Yossi (Makkot 9b). The Mishnah in Makkot records a debate regarding if one appears to inadvertently kill his enemy, whether he would go to the arei miklat. R' Yossi maintains that the individual does not and is executed instead because it assumed that the circumstances were deliberate. The Gemara however asks how he could be executed without a warning. The Gemara explains that R' Yossi is according to R' Yossi bar Yehuda who maintains that the reason for a warning is solely to determine whether the act was shogeg or mezid. For this reason, a talmid chacham would not require a warning.

The Rambam (Issurei Biah 1:2-3) appears to rule like both these opinions, which we explained above argue with one another. One the one hand he rules that even a talmid chacham requires hatraah. Yet, he explains that the purpose of the warning is to determine whether the act was shogeg or mezid. This appears to be the basis of R' Yossi's position that the talmid chacham would not require a hatraah.

The Ketzot (28:8) explains that while everyone may agree that the function of the hatraah is to discern whether the act was shogeg or mezid, the novelty of the pasuk that the Chachamim rely upon is that it must clearly be so. Despite the fact one might be dealing with a talmid chacham who would surely know that what he was doing was prohibited and the punishment that goes with it, the Chachamim understand that the Torah demands that it be absolutely clear, even to the extent that their can be no delay between the warning and the offence. Why?

The Avi Ezri (Sanhedrin 12:2) explains similarly. According to the Chachamim, the witnesses do not only need to testify regarding the offence that occurred, but also testify that it was deliberate and that he gave himself over to the punishment that the act entailed. Granted that a talmid chacham would likely be aware, nevertheless that fact is an umdana -- a strong assumption. That umdana would qualify as knowledge, but not as testimony. According to R Yossi bar Yehuda, with that knowledge and the act having been witnessed, that is sufficient to punish him. According to the Chachamim, an umdana alone is not enough to punish the individual. The punishment is only administered based on what they witnessed and not their knowledge, and the deliberate intent must also be part of the testimony.

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