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Sotah, 45

1) HOW TO BECOME A "ZAKEN MAMREI"

QUESTION: Rebbi Eliezer ben Yakov maintains that the procedure of Eglah Arufah requires the presence of the king and Kohen Gadol, as well as the Beis Din. The Gemara questions whether Rebbi Eliezer ben Yakov requires that the entire Sanhedrin leave the Lishkas ha'Gazis to be present at the site of the Eglah Arufah, or whether only three members (like Rebbi Yehudah holds) or five members (like Rebbi Shimon holds) of the Sanhedrin must be present.

Rav Yosef attempts to prove that Rebbi Eliezer ben Yakov holds that the entire Sanhedrin goes out from a Beraisa which discusses a Zaken Mamrei who meets the Sanhedrin outside of the Lishkas ha'Gazis, hears their ruling, and then he returns to his own community and rules differently from the ruling of the Sanhedrin. How can the Beraisa say that the Zaken Mamrei hears a ruling from the Sanhedrin outside of the Lishkas ha'Gazis? We know that one-third of the members of the Sanhedrin must always be present in the Lishkas ha'Gazis during court hours, as derived from the verse, "Al Yechsar ha'Mazeg" (Shir ha'Shirim 7:3). If only some of the members of the Sanhedrin leave the Lishkas ha'Gazis and the Zaken Mamrei meets them outside of the Lishkas ha'Gazis, he cannot be convicted for ruling differently from them, since the remaining members of the Sanhedrin might have agreed with him had they heard his ruling. It must be that the Beraisa is expressing the view of Rebbi Eliezer ben Yakov and maintains that the entire Sanhedrin is permitted to leave the Lishkas ha'Gazis under certain circumstances, such as in order to measure the distance in the case of an Eglah Arufah.

Why does the Gemara assume that a Zaken Mamrei cannot be convicted when he meets most of the Sanhedrin (two-thirds of its members) outside of the Lishkas ha'Gazis and they present him with a Halachic ruling? Even if the remaining members would have agreed with the Zaken Mamrei, nevertheless their vote would have been overruled by the majority! Consequently, the Zaken Mamrei -- when he rules differently than the majority of the Sanhedrin -- is still issuing a ruling that is contrary to the ruling of the entire Sanhedrin! (ARUCH LA'NER, Sanhedrin 14b)

ANSWER: The BE'ER SHEVA, MAHARIT (1:68), and HE'OROS B'MASECHES SOTAH answer that a Zaken Mamrei can only be convicted when he hears the entire Sanhedrin as a whole pass a ruling ("Ein Hamarah l'Chatza'in" -- it is not considered a Hamarah (rebellion) when one contradicts an incomplete Sanhedrin). Why, then, does the Gemara say that the reason he is not considered a Zaken Mamrei if he hears a ruling from some members of the Sanhedrin outside of the Lishkas ha'Gazis is because some of the remaining members might have agreed with him? The Gemara should have said that the reason he is not a Zaken Mamrei is because he did not contradict the entire assembly of the Sanhedrin!

The answer is that the Gemara is giving a logical reason for why a Zaken Mamrei must contradict the entire assembly of the Sanhedrin. If some members (even a minority) of the Sanhedrin are not present, then the remaining opinions are not considered a reliable representation of the opinion of the entire Sanhedrin. Had they all been together, they would have discussed the matter between them, and perhaps one of the members of the minority would have succeeded in convincing one of the members of the majority to agree with his opinion. Even if the Zaken Mamrei first hears a ruling from two-thirds of the Sanhedrin outside of the Lishkas ha'Gazis, and then he returns to the Lishkas ha'Gazis and hears the same ruling from the remaining members, he still cannot be convicted, because had the entire Sanhedrin been together, perhaps through the group's discussion other issues would have been taken into consideration and they would have come to a different conclusion. (MAHARIT)

45b

QUESTION: The Torah teaches that when a corpse is found between two cities (in Eretz Yisrael), the city nearest to the corpse must bring an Eglah Arufah. Why is the nearest city responsible to bring an Eglah Arufah?

It seems from a number of sources that we assume that the unknown killer came from the nearest city to where the corpse was found. The purpose of the Eglah Arufah procedure is to determine the identity of the killer (for when the Beis Din of the city publicizes the killing through the procedure of Eglah Arufah, the people hear about it, and if anyone knows any information that leads to the prosecution of the murderer, he will come forth and inform Beis Din; see RABEINU BACHYE, Devarim 21:1, and TARGUM YONASAN, Devarim 21:8). This is evident from the Gemara in Bava Basra (23b) which attempts to prove from the laws of Eglah Arufah that when there is a case of a doubt and there are two opposing factors to resolve the doubt -- one factor being a "Rov" (majority) and the other being a factor of "Karov" (physical proximity) the factor of "Karov" is a stronger determining factor than "Rov." That is why the Eglah Arufah is brought from the nearest city -- because its proximity "proves" that the killer came from that city.

According to this understanding of the purpose of the procedure of Eglah Arufah, how can we understand our Gemara that says that if the nearest city has no Beis Din, we ignore that city and measure to the nearest city that has a Beis Din? If we assume that the murderer came from the nearest city, then what is gained by bypassing that city and measuring to a farther city that has a Beis Din? The killer did not come from that city! (TOSFOS, Bava Basra 23b, DH b'd'Leika)

ANSWER: Perhaps we assume that the townspeople from cities without a Beis Din frequent the cities that have a Beis Din, and therefore they also hear the talk of the town from that [larger] city. Therefore, the identity of the killer will be revealed when the elders of the larger city bring an Eglah Arufah. (If members of the city without a Beis Din would bring the Eglah Arufah, the rest of the city might not hear about it, since it was not done by Beis Din and thus was not publicized well.)

According to this, perhaps when the nearest city to the corpse has no Beis Din, we do not measure to the city that has a Beis Din that is nearest *to the corpse*, since that Beis Din might not be the one that serves the people of the city nearest to the corpse. Rather, we measure to the city with a Beis Din that is nearest to the city that is nearest to the corpse!

QUESTION: The Mishnah says that although the Eglah Arufah must be brought in Nachal Eisan (Devarim 21:4; see following Insights for definitions of "Eisan"), if it is brought in a Nachal that is not "Eisan," it is still valid. RASHI explains that if the Nachal is not "Eisan" it is nevertheless valid (that is, the quality of "Eisan" is not Me'akev), because the Torah does not say that it is Me'akev.

Why should the Torah have to say that it is Me'akev in order for it to be Me'akev? Whenever the Torah tells us to perform a procedure in a certain way, if we do not perform it in the specified manner it should not be valid! (KEREN ORAH; see Insights to 16b.)

ANSWERS:

(a) REBBI AKIVA EIGER cites the Sifri which infers that "Eisan" is not Me'akev from the fact that the Torah refers to it later (in verses 4 and 6) as simply "Nachal" and not "Nachal Eisan." This, too, is not clear. Why should the Torah have to repeat the word Eisan? The Torah omits a word when the point can be understood without the extra word!

Perhaps Rashi means that Eglah Arufah is in the category of Kodshim, since the verse uses the term "Kaparah" (Devarim 21:8) just like it says with regard to Kodshim (Rashi 47a, DH Kiprah; Kidushin 57a). There is a rule that in all areas of Kodshim, the procedure that is written in the Torah is Me'akev only when the verse repeats it, adding an additional verse (see Insights to Sotah 16b). Since Eglah Arufah is considered like Kodshim, and since the Torah writes only once that the Eglah Arufah must be brought to Nachal Eisan, "Eisan" is not Me'akev. (The MALBIM cites the VILNA GA'ON's Girsa of the Sifrei, which says "Shanah Alav ha'Kasuv l'Akev.")

(b) The RAMBAM (Perush ha'Mishnayos) explains the Mishnah differently. He explains that "Eisan" can mean "strong," describing the force of the stream, or "great," describing the amount of water in the stream. The Mishnah is teaching that there needs only to be a forceful flow of water in order to be valid, and it does not need a large quantity of water. The Rambam (in Mishnah Torah) indeed implies that if the stream is not strong it is not valid for Eglah Arufah (unlike Rashi); nowhere does he mention that the Nachal is valid if it is not "Eisan."