THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
1) HALACHAH: HOW MANY JUDGES ARE REQUIRED TO JUDGE CASES OF MONETARY MATTERS
OPINIONS: Shmuel rules that a judgement passed by two people acting as a
Beis Din is a valid judgement, but the judges are considered brazen. The
Gemara says that Shmuel's ruling is not accepted by everyone. Rava does not
agree with Shmuel's ruling, while Rebbi Acha does. What is the Halachah?
(a) TOSFOS quotes the BAHAG who rules in accordance with Shmuel. He supports
this conclusion with the Gemara later (5a) in which Rav Nachman says that he
ruled as a judge alone because he was an expert. This indicates that Rav
Nachman holds that it is not necessary to have three judges in a Beis Din
(as the Gemara concludes here (3a) according to Rebbi Acha, who says that
one person may judge alone). The ROSH points out that we normally follow the
opinion of Rav Nachman in cases of monetary law.
HALACHAH: The SHULCHAN ARUCH (CM 3:2) follows the opinion of the Rif and the
Rambam who rule that unless the people involved accepted this Beis Din upon
themselves, or if the judge was an expert, the judgment is invalid. (Y.
(b) The RIF writes that the Halachah does not follow the view of Shmuel,
since a number of other Amora'im argue (Rebbi Avahu (6a), Reish Lakish,
Rebbi Yochanan). The Gemara also seems to hold this way, as it states later
(6a) in a different discussion that everyone holds that three judges are
(c) The RAMBAM (Hilchos Sanhedrin 2:10) seems to contradict himself. As
mentioned above, if one holds that one judge is valid, then he probably also
holds that two non-expert judges are certainly valid. However, the Rambam
rules that one judge is valid, but *two* judges are not valid!
The RAN, ME'IRI, and others are bothered with this question. The Ran answers
that even though the Gemara itself expresses the logic mentioned above (that
if one judge is valid, then two certainly are valid), this might apply only
mid'Oraisa. It is possible that the Chachamim decreed that two judges (who
are not experts) are *not* valid. The LIVYAS CHEN quotes the Gemara that
says that even Rebbi Acha essentially requires three judges in order to
ensure that at least one is an expert. When the Gemara states that Rebbi
Acha is lenient and says that two judges are valid, that is only when we are
*absolutely certain* that one of the two is an expert. The Rambam, he
explains, is discussing a case in which we are not certain that either of
the two judges is an expert. In such a case even Rebbi Acha would agree that
this is not a valid Beis Din.
2) THE FIRST TIME A WORD IS MENTIONED IN A VERSE
OPINIONS: The Gemara records an argument regarding the source of the
requirement of three judges to judge a case. Rebbi Yoshiya says that the
repetition of the word "Elohim" (referring to judges) in the verses teaches
that three judges are required. Rebbi Yonasan says that we do not expound
the first occasion of the mention of a word ("Ein Dorshin Techilos"), and
thus we are left with only two words "Elohim," teaching that two judges make
a Beis Din. However, since a Beis Din cannot have an even number of judges,
we must add another judge, and thus the Torah is teaching that three judges
are required for a Beis Din.
3) THE SEVENTY-FIRST JUDGE
The Gemara then says that Rebbi Yoshiya agrees that we do not derive
anything from the first occasion of the word "Elohim." However, since the
verse could have said simply "ha'Shofet" ("the judge") instead of using the
less common word, "ha'Elohim," it indicates that we should count this word
as well and expound it (even though normally we would not expound the first
word). Rebbi Yonasan maintains that it is normal to use such an expression,
and therefore there is no reason to count it, because "Ein Dorshin
What is the reason for why we do not expound the first mention of "Elohim?"
(a) RASHI explains that the reason we do not expound the first occasion that
a word appears in this case is because the first "ha'Elohim" is needed to
teach us that an expert judge may judge alone.
(b) TOSFOS argues that this cannot be the reason, because Rebbi Yoshiya
later states that the Torah could have said "ha'Shofet," which would not
have told us that an expert is fit to judge alone. Tosfos therefore says
that "Ein Dorshin Techilos" means that we always need the first mention of a
word in order to teach us the actual law (in this case, that judges are
necessary in the first place). After the basic law is taught, we can begin
expounding laws from subsequent, extra words.
There seems to be an obvious answer to Tosfos' question on Rashi. Unlike
Tosfos, Rashi holds that Rebbi Yoshiya is also able to learn from
"ha'Shofet" that an expert judge is necessary. It appears that Tosfos had an
earlier edition of Rashi, which indicated (as Tosfos states) that we would
not have known the law of an expert from "ha'Shofet." The RAN understands
this answer from the words of Rashi, although he is uncertain how we know
that "ha'Shofet" would also indicate an expert. The Ran further understands
that according to Rashi, the question of whether or not we can derive the
law of an expert judge is the basis of the argument between Rebbi Yoshiya
and Rebbi Yonason (assuming that they both hold "Ein Dorshin Techilos").
The NETZIV (in MEROMEI SADEH) answers the Ran's uncertainty in Rashi. He
says that "ha'Shofet" certainly can refer to an expert judge, as we find in
the verse dealing with Edim Zomemim, "v'Darshu *ha'Shoftim* Heitev" -- "The
judges shall inquire well" (Devarim 19:18). This clearly indicates that
"Shoftim" refers to experts.
This answer, however, leaves us with another question. Why does Rebbi
Yonason argue with Rebbi Yoshiya and say that "Shofet" does *not* imply an
expert? The Ran says this is the basis of their argument! In addition,
Tosfos maintains that "Shofet" does not imply an expert judge. How, then,
does he understand the verse with regard to Edim Zomemim?
Perhaps we may suggest an answer based on the Gemara in Rosh Hashanah (25b).
The Gemara cites the verse that says that when a person has a Halachic
question which requires a judge, he should go "to the Shofet who will be in
those days" (Devarim 17:9). The Gemara asks, "Would we have thought that one
should go to a judge who is *not* alive in his days?! Rather, the verse is
teaching that one should go willingly to the Shofet in his days and not say
that the judges in the earlier days were better." We see from here that a
Shofet does not have to mean an expert, but rather it can refer to anyone
who is filling the position of Dayan even though he is not as competent as
one would like him to be. (It is interesting to note that the verse there
does not say that one should go to the "Elohim who will be in those days,"
but rather to the "Shofet.") Consequently, it is reasonable that there is an
argument whether "ha'Shofet" would imply an expert judge or not. (Y.
QUESTION: The Gemara discusses an argument between the Rabanan and Rebbi
Yehudah. The Rabanan maintain that there were seventy-one judges in the
Great Sanhedrin, while Rebbi Yehudah states that there were seventy. TOSFOS
asks that Rebbi Yehudah seems to contradict himself. In Sukah (51b) he
states that in Alexandria there were *seventy-one* golden vessels
corresponding to the seventy-one judges of the Great Sanhedrin. Tosfos
answers that Rebbi Yehudah agrees that there was an overseer over the Great
Sanhedrin, just like Moshe Rabeinu oversaw the seventy judges.
The MAHARSHA has difficulty with this explanation. The Mishnah (2a)
explicitly states that according to the *Rabanan*, Moshe Rabeinu oversaw the
Sanhedrin, and he was thus the seventy-first judge. How, then, can Tosfos
apply that view to Rebbi Yehudah, if Rebbi Yehudah is arguing with the
Rabanan? The Gemara later (16b, 17a) says that Rebbi Yehudah maintains that
although it was through Moshe that the Divine Presence guided the Beis Din,
Moshe was *not* included in their number. How are we to understand Tosfos'
(a) The RASHASH answers that Tosfos learns the argument differently than the
Maharsha. The Rabanan hold, as mentioned above, that Moshe was an integral
part of the Beis Din and was included in their number of seventy-one. Moshe
sat with the Sanhedrin and judged every matter with them. Rebbi Yehudah
argues and maintains that Moshe only sat with the Sanhedrin for important
matters, such as for the establishment of leap years, which may be done only
with the consent of the Nasi. Hence, Moshe did serve in the capacity of
overseeing the Beis Din, and we can understand the symbolism (in Sukah 51b)
of a golden vessel representing his service.
The Rashash, though, still finds a slight difficulty in the answer of the
Gemara that Moshe only represented the Divine Presence, as the Gemara should
have stated this explicitly.
(b) The MAHARATZ CHAYOS and the NETZIV (in MEROMEI SADEH) explain that
Tosfos does not mean that Moshe was actually an overseer of the Sanhedrin.
Rather, Tosfos is merely expressing that there was a body of seventy judges
which had a Nasi overseeing them. The expression Tosfos uses that "Moshe was
over them" does not literally mean Moshe. It is just a way of saying that
there was another elder who oversaw the Sanhedrin in his role as Nasi.
Indeed, the BACH in Sukah changes the wording there to read that the vessels
corresponded to the "seventy-one elders," removing the phrase "of the Great
Sanhedrin." According to this Girsa, there obviously is no question on Rebbi
Yehudah, for Moshe was definitely an elder even though he was not part of
the Great Sanhedrin. (Y. Montrose)