THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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SANHEDRIN 2 - The opening Daf of Sanhedrin has been dedicated by Yair
Trebitsch of Brooklyn, NY.
1) HALACHAH: THE NUMBER OF JUDGES REQUIRED FOR A DIVORCE
OPINIONS: The Mishnah lists many areas of Halachah and the number of judges
that each one needs. Divorce, though, is conspicuously absent from the list
in the Mishnah. Does this imply that giving a Get does not require a Beis
Din at all?
3) A BEIS DIN JUDGING CASES OF THEFT NOWADAYS
(a) The NODA B'YEHUDAH (Mahadura Tinyana EH 114) quotes the OR ZARU'A who
states that the giving of a Get is indeed considered a "Din" (judgement).
This status of "Din" requires that a Get be given during the day, and not at
night, as Beis Din may convene only during the day. He proves this from the
Gemara (Yevamos 104a) which explains that Chalitzah cannot be done at night,
because through Chalitzah the woman may demand payment of her Kesuvah from
her deceased husband's estate. Certainly, then, the giving of a Get -- which
immediately obligates the husband to pay the Kesuvah -- cannot be done at
night. This also implies that the giving of a Get must be done with three
judges in a Beis Din.
HALACHAH: The SHULCHAN ARUCH (EH 133) rules that the Get should be given in
front of two witnesses. The Shulchan Aruch writes that the custom is to give
a Get in front of ten people (if possible) in order for it to become
publicized (see BI'UR HA'GRA there). (Y. Montrose)
The Noda b'Yehudah at first is perplexed by the Or Zaru'a's ruling, and he
asks many questions on it. He concludes, however, in support of the Or
Zaru'a's view, and cites proof for it from the words of RASHI in our
Mishnah. After Rashi explains the concept of Mi'un (see Background here,
#16), Rashi (DH Mi'unin) says that Mi'un must be done with three judges,
even though Mi'un itself is an enactment of the Rabanan. Rashi says that the
Rabanan enacted their decrees (such as Mi'un) to have similar
characteristics to their d'Oraisa counterparts. What is the d'Oraisa
counterpart of Mi'un to which Rashi refers? It seems that Rashi is referring
to Get, as that is most similar to Mi'un, and Rashi is implying that the
giving of a Get needs three judges. The Noda b'Yehudah adds that, logically,
if the Mishnah requires three judges for Mi'un, then it makes sense that the
giving of a Get, which is mid'Oraisa, needs three judges. However, he later
questions his proof from the Mishnah alone, and he remains with the proof
from the words of Rashi that a Get needs three judges. This is also the
understanding of Rashi according to REBBI AKIVA EIGER (on the Mishnayos).
(b) The CHASAM SOFER (Teshuvos CM 2:65-6) and RASHASH explain that this is
not the intention of Rashi. The d'Oraisa law to which Rashi intends to
compare Mi'un is *Chalitzah* and not Get. Chalitzah and Mi'un are similar in
that they both annul a marriage bond through words alone. RAV YOSEF ENGEL in
GILYONEI HA'SHAS adds that the giving of a Get is also different in that the
woman does and says nothing. RAV YITZCHAK ISAAC CHAVER agrees and explains
the reason for this difference: Both Chalitzah and Mi'un must have a Beis
Din as there is no written document which can later be shown as evidence.
Therefore, the procedures of Chalitzah and Mi'un must be done in front of a
Beis Din. A woman receiving a Get, in contrast, can always produce the Get
itself as proof, negating the need for a Beis Din.
QUESTION: The Gemara explains that the Mishnah omits from its list of
categories of judgement cases of admissions of money owed, and cases of
loans, because those cases do not require three *expert* judges. An "expert"
judge is defined as a judge who has received Semichah, from someone in the
line of tradition of Semichah, from one of the original Batei Dinim in
Eretz Yisrael. This clearly indicates that cases of robbery, which the
Mishnah does mention, *do* need to be judged by three expert judges. The
Gemara adds further that only expert judges in Eretz Yisrael are empowered
to judge cases of penalties, as well as cases of robbery. Since the line of
Semichah has been broken and no one qualifies today as an expert judge, how
can we judge cases of robbery?
(a) TOSFOS (3a, DH she'Lo) asks this question, pointing out that we find
incidents in the Gemara which relate that the Chachamim in Bavel judged
cases of robbery, even though they did not have Semichah from a Beis Din in
Eretz Yisrael. He answers that perhaps the litigants involved merely took
back the items that were stolen from them without Beis Din actually
enforcing the law. He also quotes an opinion that maintains that when the
Mishnah lists cases of "robbery and damages for bodily harm," it is
referring specifically to robbery that occurred as a result of a fight, and
not a normal case of theft. Such a case in uncommon and does not require the
sanction of Semichah to judge.
(b) The NIMUKEI YOSEF in Bava Kama (84b) discusses the Gemara there which
states that the judges in Bavel are able to rule in cases of penalties
because they are considered to be acting as the representatives of the
judges in Eretz Yisrael who have Semichah. This applies, he explains, only
when the case being judged is a common case. Robbery, he suggests, is very
common. He proposes that the Gemara here in Sanhedrin prohibits a regular
Beis Din (of non-experts) only from judging a case of outright theft (that
is, the type of theft defined by the verse, "And he stole the spear from the
hand of the Mitzri, and he killed him with his spear" (Shmuel II 23:21),
which teaches that "stealing" means brazen, outright theft), because such a
case is not common.
(c) However, the RAMBAM (Hilchos Sanhedrin 5:13) rules that we judge all
cases of theft, but we do not include the extra penalty of paying double the
value of the item (Kefel). The Rambam seems to be saying that our Gemara is
excluding non-experts from judging only the aspect of Kefel. This also seems
to be the opinion of the SHACH (CM 1:8).
The KEHILOS YAKOV is perplexed by this explanation. Among other questions,
he points out that the term used in our Gemara is "Gezeilos." This indicates
outright stealing which never requires a payment of Kefel, as everyone knows
that this person stole the object and he will not deny it if brought to
trial (the obligation to pay Kefel is imposed only when there is an original
denial of the claim). The term associated with Kefel is "Geneivah," stealing
in secret. Hence, the Gemara cannot be referring to the payment of Kefel
when it says that non-experts may not judge "Gezeilos."
(d) The KEHILOS YAKOV explains that when the stolen object still exists, the
owner may claim it in Beis Din just as he may claim money that fell
accidentally into his neighbor's home. The Gemara states only that we do not
judge uncommon cases of "Gezeilah," and it is not including a case in which
a person says that someone else owes him a certain object.
Alternatively, one may claim his money based on the law of damages, Nezikin,
as the "thief" essentially took the money out of the owner's reach, which is
like damaging the object in that it renders the object unusable. The
Mishnah, accordingly, is teaching us that one cannot claim (in a Beis Din of
non-experts) his money through the claim of stealing, but he *can* claim it
through the claim of Nezikin. The Kehilos Yakov says that the claim that is
used actually makes a Halachic difference. For example, if someone stole an
object and then told the owner to take it back, the thief no longer has the
status of a damager, a Mazik. In such a case, if the item was damaged before
the owner was able to take it back, the thief has no liability for it (from
the laws of Nezikin; he cannot be judged with the laws of robbery, since
non-experts cannot judge the laws of robbery).