רב ששת אמר כאן שטעה בדבר משנה כאן שטעה בשיקול הדעת דאמר רב ששת אמר רב אסי טעה בדבר משנה חוזר טעה בשיקול הדעת אינו חוזר
there, of a case where he erred in the weighing of [conflicting] opinions. For R. Shesheth said in R. Assi's name: If he erred in a law cited in the Mishnah, the decision is reversed; if he erred in the weighing of [conflicting] opinions, the decision may not be reversed. Rabina asked R Ashi: Is this also the case if he erred regarding a teaching of R. Hiyya or R. Oshaia?<span class="x" onmousemove="('comment',' I.e., does the above ruling regarding an error in a law cited in Mishnah apply also to an error in a law cited in the Tosefta: a collection of Halachoth the redaction of which is attributed to R. Hiyya and R. Oshaia? The authority of the Tosefta is not equal to that of the Mishnah.
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Sefer HaChinukh
And it is practiced in every place and at all times by males, since judgement is for them. And one who transgresses it and vitiates a judgement - meaning to say, he consciously judges not like the law of the Torah - has violated this negative commandment. But we do not administer lashes for it, as we do not administer lashes for a negative commandment that does not have an act [involved] with it, but rather only speech - except for those that we mentioned above (Sefer HaChinukh 239). And also behold, anyone who judges not according to the law of the Torah, his decision is overturned; and hence we do not administer lashes for it. And [it is] as we say in Sanhedrin 33a in the chapter [entitled] Echad Dinei Mammonot, that anyone who errs in the matter of Mishnah is always overturned. And the matter is to say that there is no doubt that the judgement of anyone who errs to make a judgement which is the opposite of the Torah's intent is completely negated - and behold, it is as if it was never said. And there, it is elucidated that there are situations in which if he judged a case opposite to the truth, his decision [stands]; but he is obligated to pay from his estate to the one to whom he vitiated the judgement. And [even] with all this, he does not become liable for lashes - and even if he did an act with it, such as giving and taking [property in question] with [his own] hand - due to the rule that is in our hands, that we do not administer lashes for anything that is given to repayment.
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