THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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1) A WOMAN IN A "DIN TORAH"
OPINIONS: The Gemara records three Beraisos which prove from verses in the Torah that
a woman generally may not serve as a witness. The third Beraisa states that this is
learned from the verse, "The two men shall stand" (Devarim 19:17), which presumably
refers to two witnesses, because if it refers to the plaintiff and defendant, then it
would not use the term "men," since women also may come to court as plaintiff and
defendant. The Gemara rejoins that perhaps women may not come to court as plaintiff
and defendant, because the verse says, "Kol Kevudah Vas Melech Penimah" -- "All of
the glory of the princess is within" (Tehilim 45:14), implying that the princess, the
Jewish woman, is honored by staying within her home. Nevertheless, we still can
deduce that the verse is referring to witnesses from the usage of the word "two;"
just as the word "two" is used elsewhere to refer to witnesses, so, too, the word
"two" in this verse is referring to witnesses.
I. According to the Gemara's explanation of the Beraisa, the Beraisa seems to
maintain that women should not come to court, even as plaintiff or defendant. Does
this mean that women are exempt from being present at a Din Torah?
(a) The RI MI'GASH writes that based on this Gemara, it is fitting for a woman not to
appear before Beis Din as a litigant. Rather, a woman who is summoned to a court case
may have the court appoint an agent on her behalf. This agent then relays the court
proceedings to the woman, and return to the court with her response. When the Gemara
later (30b) mentions that Rav Huna's wife did come to Beis Din, this was because she
wanted to represent herself. The Ri mi'Gash writes that this was the practice
followed by his teacher, the RIF.
II. The argument above deals only with having a messenger relay the woman's responses
to Beis Din. Does the Halachah allow for the woman to have an agent represent her in
Beis Din, making claims on her behalf, without traveling back to the woman to get her
(b) The RITVA argues that there is no proof from our Gemara to this practice. He
agrees that when the woman is the defendant, she does not have to come to court if
the plaintiff agrees to litigate with her representative. However, if the plaintiff
insists that she come (perhaps because he assumes that she will be less inclined to
lie in his presence), then she must oblige. Our Gemara is not teaching the rule, but
rather it is stating the common practice -- people usually do not make women come to
The ARUCH HA'SHULCHAN (CM 124) writes that, in practice, we follow a compromise
between these two opinions. The woman may have a messenger come to her home so that
she does not have to go to Beis Din. At the same time, the plaintiff is allowed to be
present when she is stating her claims.
(a) The RI MI'GASH and the RIF agree that appointing a full representative is not
allowed. The Gemara in Bava Kama (70a) states that a plaintiff may turn over a case
to another person by transferring the rights to the money if he wins the case. This
procedure essentially makes the plaintiff's representative equal to the plaintiff, as
he is now a partner in the plaintiff's interest. However, in the case of a
*defendant*, who stands only to lose money (see Bava Kama ibid.), the defendant
cannot give anyone a share in the money in order for that person to represent him.
Since a representative cannot be considered like the defendant himself, his presence
does not fulfill the requirement of the verse, "The two men... shall stand before
Hashem" (referring to standing before Beis Din, who represents Hashem). In contrast,
in the case of a simple messenger conveying messages between the Beis Din and the
woman, the messenger is considered like the woman herself, based on the principle of
"Shelucho Shel Adam k'Moso."
The RAMBAN and other Rishonim give an additional reason why a representative cannot
be appointed to represent the defendant. It is possible that the representative will
lie and add his own claims in order to win the case. The RITVA adds that there is the
additional problem that the defendant will be more inclined to send lies through his
representative, since the defendant himself does not have to face his opponent in
person (this problem, though, applies equally to a case of a messenger, as mentioned
(b) The ARUCH and RABEINU CHANANEL maintain that a defendant may appoint a
representative to take his place in court. The representative is considered a
Shali'ach of the defendant, and thus it is considered as though the defendant himself
is standing in court.
They argue that we are not concerned that the representative will lie and add his own
claims, because there is an accepted principle that a person is not suspected of
lying when he will not benefit ("Ein Adam Chotei v'Lo Lo"). However, they write that
one may appoint a representative only for the normal proceedings in the court case;
one may *not* appoint a representative to take an oath on his behalf.
They prove that the defendant may appoint an agent to represent him in court from the
Yerushalmi in Sanhedrin (2:1). The Mishnah there states that a Kohen Gadol may be
judged in Beis Din. The Gemara asks why must he be judged? He should be able to
appoint an agent to represent him in Beis Din! The Gemara answers that the Kohen
Gadol might be required to take an oath, and his agent would not be able to take an
oath for him. This implies that an agent *is* acceptable for the rest of the
The RAMBAN refutes this proof. He explains that the Yerushalmi's statement applies
only to a Kohen Gadol, whose honor we must be very careful to guard. In the case of a
Kohen Gadol, even sending a messenger to his home would be disgraceful to him.
Therefore, he is permitted to appoint an agent to represent him in court. This
allowance applies only to a Kohen Gadol and not to any other defendant.
Although the RITVA rejects the proof from our Gemara, he understands that the
Yerushalmi is a proof to the Aruch. First, he points out that the wording of the
Yerushalmi implies that anyone can appoint an agent to represent him in court.
Second, he asserts that sending a messenger from Beis Din to the home of the Kohen
Gadol is not disrespectful to the Kohen Gadol. Accordingly, the Ritva concludes that
any person may appoint an agent to take his place in court. He writes that this was
the common practice of his teacher, the RE'AH, and that the RASHBA also told this to
him (see footnotes of MOSAD HA'RAV KOOK edition). (Y. Montrose)
2) A TALMID CHACHAM'S REQUIREMENT TO TESTIFY IN A BEIS DIN OF INFERIOR JUDGES
QUESTION: The Gemara relates an argument regarding the obligation for a Talmid
Chacham to testify in front of a Beis Din of scholars whose scholarship is inferior
to his own. Rabah bar Rav Huna states that a Talmid Chacham in such a position is not
required to testify. Rav Shisha brei d'Rav Idi supports this by pointing out that it
is similar to his obligation to return a lost object; a Talmid Chacham is not
obligated to return a lost object when carrying it would be disrespectful to him, as
the Gemara in Bava Metzia (30b) derives from the verse, "v'His'alamta" (Devarim
22:1). The Gemara rejects Rav Shisha's proof, saying that this type of exemption from
a Mitzvah applies only in monetary matters. In a matter involving an Isur (such as
testifying that a woman is an Eshes Ish), the Talmid Chacham's superior scholarship
does not exempt him and he must testify.
Why, though, must he testify when doing so is an insult to his honor? The Gemara in
Berachos (19b) teaches that when Kavod ha'Beriyos, the honor of a person, is
involved, one may refrain from performing a Mitzvah through "Shev v'Al Ta'aseh,"
passively refraining from the Mitzvah. For example, when a person is on his way to
bring the Korban Pesach or to perform Bris Milah for his son, and he comes across a
Mes Mitzvah (a corpse with no one to take care of the burial), he is obligated to
bury the Mes Mitzvah, even though doing so will make him Tamei and cause him to
forfeit the Mitzvah of Korban Pesach or of circumcising his son at the proper time.
Since his forfeiture of the Mitzvah is done passively, through "Shev v'Al Ta'aseh,"
and not it is not an active transgression, the honor of a person takes precedence
over the Mitzvah. Why, then, must the Talmid Chacham testify when doing so will
insult his honor? By refraining from testifying, he is forfeiting a Mitzvah only
passively! (TOSFOS DH Aval Isura)
(a) TOSFOS answers that the Gemara in Berachos is talking about a case where there is
a tremendous disgrace to the dead person -- remaining without burial. In such a case,
a person is required to refrain, passively, from performing another Mitzvah in order
to bury the Mes Mitzvah. A Talmid Chacham testifying before an inferior Beis Din does
not entail such a great disgrace, and therefore his honor does not override the
obligation to testify.
(b) Alternatively, Tosfos answers that the ability to testify is not called
refraining from doing a Mitzvah. Since his refusal to testify could cause severe
prohibitions to be transgressed (such as in the case of an Eshes Ish who is trying to
get permission to marry someone else), it is not permitted to refrain from
testifying, even by passively refraining through "Shev v'Al Ta'aseh."
What is the logic behind Tosfos' second answer? Apparently Tosfos understands that
causing an insult to human honor has the same severity as other transgressions. When
faced with a situation in which one must choose one over the other, it follows that
one should do nothing to actively transgress any prohibition.
RAV ELCHANAN WASSERMAN (in DIVREI SOFRIM 3:28) explains that, normally, we understand
the logic that Kavod ha'Beriyos overrides other Mitzvos in a manner of "Shev v'Al
Ta'aseh" as follows. The sin of disgracing human honor has the same severity as other
transgressions. When a person is faced with two sins of equal severity -- disgracing
human honor or transgressing a different Mitzvah -- he should remain passive in order
not to transgress any Mitzvah in an active manner. This logic, though, does not apply
in the case of a Talmid Chacham who is asked to testify in court. Tosfos states that
the Talmid Chacham is required to testify in order to prevent a severe transgression
from being done by the person for whom the Talmid Chacham is called upon to testify.
According to the above logic, we should say that his choice of conduct should still
be inaction; instead of actively transgressing the sin of disgracing human honor, he
should be passive (and passively cause the other transgression to occur). It must be
that Tosfos maintains that a disgrace to human honor is *more* severe than a sin
transgressed passively, and is *less* severe than a sin transgressed actively.
Accordingly, Tosfos is telling us that even if that sin is going to be done by
someone else, since it will be an active transgression it overrides Kavod ha'Beriyos.
Rav Elchanan explains that this is logical; the Gemara states that one who is able to
stop someone else from sinning and does not do so is considered guilty of
transgressing that sin. If, by not testifying, the Talmid Chacham is allowing a sin
to be transgressed actively by someone else, it is considered as though he also
actively transgressed that sin. This is why Tosfos says that this is considered an
active sin which does not override Kavod ha'Beriyos.
The KEHILOS YAKOV offers an alternative explanation to the words of Tosfos. He agrees
that Tosfos holds that insulting human honor is more severe than a sin transgressed
passively, but less severe than a sin transgressed actively. When a sin is going to
be transgressed actively in order to uphold Kavod ha'Beriyos, then it does not matter
*who* transgresses the sin! Even if somebody else will transgress a sin in an active
manner, Kavod ha'Beriyos does not override the transgression. The Torah requires that
a person forego his honor when not doing so will cause *anyone* to actively
transgress a sin. Therefore, the Talmid Chacham must forego his honor and testify in
order to prevent someone else from actively transgressing a sin. (Y. Montrose)