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Moed Katan, 17

1) TAKING THE LAW INTO ONE'S OWN HANDS

OPINIONS: The Gemara quotes Rav Yosef who says that a Talmid Chacham (a Tzurba m'Rabanan) may exact "do justice on his own if the matter is clear to him."

What does this mean? If it means that he is allowed to take something that someone stole from him without going to Beis Din, then in what way is this Halachah unique to a Talmid Chacham? The Gemara in Bava Kama (27b) says that *any* person is entitled to reclaim what someone else stole from him without going to Beis Din! On the other hand, when there is a dispute over a monetary matter, it cannot mean that a Talmid Chacham may analyze the case on his own and issue a Halachic ruling for himself, because one is not allowed to be a Dayan, or even a witness, for a relative, much less for one's self!

(a) The RA'AVAD, cited by the ROSH and the TUR (YD 334), and RABEINU CHANANEL, say that this Gemara is not discussing the right to issue a Halachic ruling for oneself or the right to take back something that belongs to him. Rather, it is referring to the authority granted to a Talmid Chacham to declare someone to be in Niduy who has acted disrespectfully to the Talmid Chacham.

We learned earlier on this Daf that a Talmid may be Menadeh someone who disgraced him, but the Niduy is not absolute; only the other Talmidim have to observe it, but not their rebbi. Rav Yosef is now adding that if a person disgraced the Talmid in a manner for which Chazal specifically prescribe Niduy (for example, he called him a slave, which the Gemara says in Kidushin (28a) is to be punished with Niduy), then it is considered a "matter that is clear" (Milsa d'Pesika) that the person deserves to be put in Niduy. In such a situation, when the Talmid declares the person to be in Niduy, that Niduy must be observed by everyone, even the rebbi, for it is as if the Beis Din itself placed the person in Niduy.

(b) However, RASHI (as cited by the TOSFOS HA'ROSH and the TUR (see also SHILTEI GIBORIM)) says that the Gemara is indeed referring to a situation where someone owes the Talmid Chacham money. The Gemara means that a Talmid Chacham may not only take back the money that is owed to him (like every other person may also do, even someone who is not a Talmid Chacham), but he may even enforce his right to the money by putting the other person in Niduy until he gets back the money. (A layperson, though, does not have this authority.) This is also the explanation of the CHIDUSHEI HA'RAN.

The ROSH, however, rejects this explanation based on the argument mentioned above -- how can a Talmid Chacham judge the case by himself -- his judgment is biased! (See however TESHUVOS HA'ROSH 6:25,26, where he seems to accept Rashi's interpretation of this Gemara as Hagaon Rav Yisroel Zev Gustman points out in KUNTRESEI SHI'URIM 15:5.)

Rashi apparently holds that the Halachah that a Talmid Chacham may put someone in Niduy in order to get his money back is just an *extension* of the Halachah that allows a person to do justice for himself and take back a stolen item. Just like anyone, even a layperson, may take back something that belongs to him, a Talmid Chacham is trusted to go further and even enforce it through a Niduy. The problem of being biased does not affect the Halachah of doing justice for oneself.

Rashi and the Rosh might be arguing over a basic understanding of the nature of the Halachah that one may do justice for himself to return a stolen object. The Rosh maintains that this Halachah of "Avid Inish Dina l'Nafshei," one may reclaim what is his own, means that the person does not need to go to Beis Din to take something that he knows is his, because he does not need an official Psak Din, a court-ruling, to give him the right to reclaim his object. To create a Niduy, though, requires a Psak Din, and a person is not invested with the authority to issue a Psak Din on his own (especially not for his own benefit), even a Talmid Chacham. Rashi, though, seems to hold that the Halachah of "Avid Inish Dina l'Nafshei" means that a person is invested with the authority of a *Beis Din * with regard to reclaiming something that is his. In other words, he is authorized to issue a Psak Din allowing him to take back an object that was taken from him unlawfully (as described by RAV GUSTMAN, zt'l, in Kuntresei Shi'urim on Bava Kama 15:2,3,7). If so, just as he may issue a ruling enabling him to take back the object, he may also issue a ruling of Niduy.

Rav Gustman himself (ibid. 15:5) suggests that the Rosh, too, agrees that the Halachah of Avid Inish Dina l'Nafshei grants a person the status of a Beis Din. However, the Rosh refuses to accept the possibility that Avid Inish Dina l'Nafshei is expressed differently between a Talmid Chacham and a layman. Therefore, he assumes that the Gemara is discussing a situation in which the rule of Avid Inish Dina l'Nafshei does not apply at all. His question is that just as Avid Inish Dina l'Nafshei does not apply in this situation (for whatever reason), making a Niduy against one's opponent is not permitted in this situation.

(c) The SHITAS RIVAV (the nephew of the Ba'al ha'Me'or), in his second answer, explains the Gemara to mean that a Talmid Chacham can not only reclaim an object that is his, he can even decide for himself that the Halachah is in his favor, and then reclaim the object based on his understanding of the Halachah. That is, he can offer a Psak Din on his own (as long as he later presents his arguments before the court and they are accepted -- Kuntresei Shi'urim ibid.)

The Rivav was apparently not bothered by the question of the Rosh that a person cannot rule on a case that he is involved in. Rav Gustman (ibid.) explains that the Rosh and Rivav argue how far the rule of "Avid Inish Dina l'Nafshei" goes: The Rosh understood that it only gives a person the right to *reclaim* an object by force, but not the status of Beis Din to *rule* on its ownership. Rivav understood that the rule of Avid Inish Dina l'Nafshei even allows a person to *rule* on the matter, if he is a Talmid Chacham. (Others understand that even a *layman* is given the right to "pass a ruling" on the matter, if he can uphold it later in court -- ibid. 15:6)

(d) The RITVA explains that the Gemara is referring to the normal Halachah of doing justice for oneself. Why, then, does it specifically mention a Talmid Chacham, when this Halachah applies to everyone? The Gemara is teaching that *even* a Talmid Chacham may do justice for himself. We might have thought that it is below the dignity for a Talmid Chacham to do such a thing and a Talmid Chacham is expected to act more respectably. Therefore, the Gemara is teaching that a Talmid Chacham may reclaim something that was taken from him and it is not a Chilul Hashem to do so. This also appears to be the view of the OR ZARUA cited by the HAGAHOS ASHIRI, who says that both a layperson and a Talmid Chacham may reclaim something that rightfully belongs to them through this Halachah, and *both* may even make a Niduy to enforce it (even a layperson).

When the Gemara says that one may do justice for himself "when the matter is clear," it means that he may only put the other person in Niduy if he outright refuses to pay him, but not if he just delays or procrastinates.

(Rav Gustman, ibid. 15:5, cites and explains a BI'UR HA'GRA in CM 4, who also understands the Gemara to mean that a Talmid Chacham can grab what is his, but he suggests that there is a difference between a Talmid Chacham and a layman. A Talmid Chacham may grab the object even if he could not *prove* that the object is his at the time that he grabbed it -- as long as he later finds evidence that can be brought before a court. A layman, however, who grabs something *before* he has valid evidence that can be brought before a court, must return what he grabs even if he *later* finds valid evidence that the object is his.)

HALACHAH: Regarding a Talmid Chacham placing a person in Niduy for *disgracing* him, the SHULCHAN ARUCH (YD 334:45) rules like the RA'AVAD and says that a Talmid may be Menadeh a person if he called him a slave, and his Niduy takes effect just as if Beis Din had put him in Niduy. As far as *monetary* matters are concerned, the Shulchan Aruch (YD 334:46) rules like the OR ZARUA, that anyone may put his opponent in Niduy if he refuses outright to pay. The REMA, though, is stringent and rules like the ROSH, that neither a layperson nor a Talmid Chacham may put his opponent in Niduy if he does not want to pay.

QUESTION: The Gemara quotes Rebbi Ila'i who said that if a person sees that his Yetzer ha'Ra is overcoming him, he should go to a place where nobody knows him, dress in black clothing, wrap himself in black, and then do what his heart desires, in order not to be Mechalel Shem Shamayim in public. How could Rebbi Ila'i give permission to a person to sin?

ANSWERS:

(a) RABEINU CHANANEL explains that Rebbi Ila'i is not actually permitting a person to sin. Rather, he is referring to a person who has an urge to drink wine while listening to alluring songs in order to make himself merry in a way that will arouse his Yetzer ha'Ra to want to sin. In such a situation, Rebbi Ila'i directs to do the merry-making activities, which are not themselves sins per se, in private and dressed in black, to prevent Chilul Hashem. Rabeinu Chananel adds that even these actions Rebbi Ila'i does not permit one to do, but rather Rebbi Ila'i is saying that by going to a foreign place and wearing black, one's heart will be humbled and his desire to engage in this merry-making activities will be broken.

(b) RASHI in the name of Rav Hai Ga'on says that Rebbi Ila'i is indeed referring to doing actual sins of immorality. He is not giving permission to do them, though. Rather, he is saying that if the would-be sinner goes to a foreign place and dresses in black, Rav Ila'i guarantees that the person will become humbled and his urge to sin will leave him.

(c) RASHI in his other explanation says that Rebbi Ila'i's words are to be taken at face value. If a person feels compelled to sin, he should do so in private so that he not be Mechalel Shem Shamayim in public. Sinning in private removes some aspect of the severity of the sin.

(d) The RIF writes that the Halachah does not follow Rebbi Ila'i, but even if a person has the urge to sin, he is not permitted to go to a far-away place and dress in black. Rather, he should make every effort to break his urge to sin, for it is certainly within his ability to refrain from sinning. We rule, as the Gemara in Berachos (33b) says, that "ha'Kol b'Yedei Shamayim, Chutz m'Yir'as Shamayim" -- "everything is in the hands of Hashem, except for [a person's own choice to acquire] fear of Hashem."

The Rif's words imply that he understands Rebbi Ila'i to disagree with the cardinal principle of free choice, and that is why he says that if a person is unable to choose to refrain from sinning, he should sin in private and not be Mechalel Shem Shamayim in public. How can this be? Bechirah, free choice, is the most fundamental principle of Torah observance! RAV ELCHANAN WASSERMAN raises this question and leaves it unanswered (KOVETZ MA'AMARIM 7:8 ).

Apparently, the Rif means that there are times when a person's desire is so strong that he does not have the willpower to overcome it. His level of Bechirah has fallen to such a realm that choosing not to sin in this particular sin is not part of his Bechirah (see MICHTAV M'ELIYAHU, I:2:2, p. 113), like an addiction. However, since he cannot know for certain that he is unable to overcome his urge, he must put forth every effort to overcome the desire.

QUESTION: Reish Lakish was put in Niduy because he pronounced an undeserved Niduy on someone else. He was told to go to the Nasi who would be able to annul his Niduy. From the Gemara, it seems that Reish Lakish was able to remove the Niduy right away and did not have to wait thirty days.

However, the Gemara earlier (16a) quotes Abaye who says that if a person was put in Niduy for a non-monetary matter, the Niduy must last for at least thirty days. In addition, the Gemara there cites a Beraisa that says that a Niduy does not last less than thirty days. How, then, could Reish Lakish have his Niduy annulled immediately, without waiting for thirty days to pass?

ANSWERS:

(a) The RIF explains that the Halachah does not follow Abaye's ruling, and a Niduy, even one that is not for a monetary matter, can be removed immediately and one does not have to wait thirty days.

How does the Rif understand the Beraisa that says that a Niduy must last for thirty days? If it is discussing a person who went to Beis Din to have the Niduy removed, then he should not have to wait thirty days. On the other hand, if it is discussing a person who did not go to Beis Din to remove the Niduy, then even after thirty days have passed, he will still be in Niduy (such as the person whom Rav Yehudah put in Niduy and who died in his state of Niduy)! The RA'AVAD cited by the Rosh (3:7) explains that the Beraisa is referring to a person who goes to Beis Din to remove the Niduy. If he wants to remove the Niduy before thirty days have passed, he must first *appease* the person whom he sinned against. If he does not appease the person, then he may still go to Beis Din *after* thirty days and have the Niduy removed. Even though he did not appease the person, his Niduy can be removed because he has suffered enough already for his sin. (This is similar to a person who receives Malkus, who is not punished any more, even though he did not appease his victim.)

(b) The RITVA says that when the Gemara earlier says that one must wait thirty days, it means that the Niduy is automatically rescinded after thirty days if the person does not go to Beis Din earlier to have it removed. But if the person goes to Beis Din to ask them to remove it, then it can be removed within thirty days. That is why Reish Lakish was able to remove his Niduy before thirty days had passed.

(According to this explanation, in the case of the person whom Rav Yehudah put in Niduy, Rav Yehudah must have specified that the Niduy would last longer and not be removable after thirty days.)

17b