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Sanhedrin, 5

1) DOES EVERYONE AGREE THAT A KNOWN HALACHIC EXPERT MAY JUDGE ALONE?

OPINIONS: The Gemara quotes a Beraisa which states that monetary matters are to be judged by a Beis Din comprised of three judges, but a known expert can judge alone. Rav Nachman and Rebbi Chiya commented that they, as experts, judged alone.

The Gemara earlier (3a) records an argument regarding whether the Torah requires three judges or one judge in cases of monetary law. How does this Beraisa relate to that argument?

(a) RASHI comments that this Beraisa maintains that even one judge is valid mid'Oraisa. He quotes the verse that was quoted earlier (3a) by the opinion which says that one judge is valid mid'Oraisa: "b'Tzedek Tishpot Amisecha" (Vayikra 19:15), with "Tishpot," in the singular form, implying a single judge. Rashi continues and says that this opinion also maintains that the words in the Torah indicating that an expert judge is required do *not* apply to all cases of judging (through "Eiruv Parshiyos," see Background to Bava Basra 2:43), and thus even ordinary people may judge.

(b) TOSFOS questions Rashi's opinion from the Gemara (6a) which quotes Rebbi Avahu who says that everyone agrees that two ordinary people may not judge monetary matters. According to Rashi, why does the Gemara not question Rebbi Avahu's statement from this Beraisa?

Furthermore, the Gemara here continues by questioning whether a judgement rendered by a lone, expert judge is valid if he did not receive permission to judge from the Reish Gelusa. If even one ordinary person is allowed to judge, then why would the judgement of an expert not be valid? It must be that this Beraisa does concur with Rebbi Avahu's opinion that one ordinary person may not judge, but, nevertheless, a lone expert judge *is* allowed to judge.

Tosfos therefore states that this Beraisa is stating a Halachah with which everyone agrees. Even the opinion that holds that mid'Oraisa three expert judges are necessary agrees that the Chachamim instituted that one *known* expert can judge alone. The ensuing question of the Gemara -- is an expert's judgement valid when he did not have the permission of the Reish Gelusa -- is only according to Rebbi Chiya, because this question is only a question if one indeed holds that there is a requirement mid'Oraisa of three judges (which Rav Nachman does *not* hold). After the Gemara mentions that even Rebbi Chiya recognizes the enactment mid'Rabanan to allow an expert to judge by himself, the Gemara is unsure whether this applies only with permission of the Reish Gelusa or even without such permission. Tosfos then states that when the Gemara (6a) questions Rebbi Avahu's opinion from a different Beraisa, which teaches that one judge is allowed to judge alone, and it answers that the Beraisa is referring to a case in which the litigants decided to accept the judgement of an ordinary person, it also could have answered that Rebbi Avahu understands that the Beraisa is discussing an expert judge.

The MAHARSHAL and MAHARAM, though, challenge this answer. The same Beraisa continues and says that if the person judging was a known expert, then he is not responsible to pay if he erred in his judgment. The first case in the Beraisa, then, is apparently dealing with an ordinary person and not an expert. Moreover, Tosfos himself (DH v'Iy Lo) asks a question on Rashi based on this assumption.

They answer that Tosfos is saying that the first case of the Beraisa is discussing a "regular" expert who judges without permission, while the second case is discussing an expert who has Semichah and permission to judge from the Reish Gelusa. The Gemara, however, does not want to give this different as an answer to its question, since the first case in the Beraisa makes no mention that the person judging had any expertise whatsoever.

The MAHARSHA suggests a similar answer. Tosfos' alternative answer for the question from the Beraisa is that the judge in the first case was an expert who was not accepted by the litigants, while the second case was dealing with a known expert who is accepted by all. (Y. Montrose)

QUESTION: The Gemara states that in order for a judge who errs in judgement to be exempt from paying, he must have obtained permission to judge from the leader of the Jews in his country. He may judge anywhere in that country and retain the status of a judge that has permission. The Gemara continues and says that a judge who received permission in Bavel may judge with impunity in Eretz Yisrael (but not the other way around). The reason for this is because the verse states "Lo Yasur Shevet mi'Yehudah, u'Mechokek mi'Bein Raglav" (Bereishis 49:10). The words "Shevet mi'Yehudah" refer to each Reish Gelusa in Bavel who lead the people with the "stick" ("Shevet"), while the term "u'Mechokek" refers to the grandsons of Hillel who taught Torah in public.

The Gemara's intention does not seem clear. How does the Gemara learn from this verse that the authority of the ruling party in Bavel is greater than the authority of the ruling party in Eretz Yisrael?

ANSWERS:

(a) RASHI states that the authority of the leaders of the Jews in Bavel was greater because the king of Persia authorized them to judge as they deemed fit.

According to Rashi, this is the difference between Bavel and Eretz Yisrael. In Bavel, the Reish Gelusa had governmental backing to enforce his rulings, while in Eretz Yisrael the Nasi did not have that extra authority.

(b) TOSFOS, however, states that the difference is based on the Yerushalmi which says that "the Rosh Golah [in Bavel] was descended from the males of the house of David ha'Melech, while the Nasi in Eretz Yisrael was descended from the females." This means that the greater degree of authority depends on whether the leader is descended patrilineally from David ha'Melech or whether he is descended matrilineally (see MAHARAM SHIF here who explains how this is derived from the verse of "Lo Yasur Shevet.") As the verse states, the power of judgement comes from Yehudah, through being part of the family of David ha'Melech. Since the Reish Gelusa was descended patrilineally from David ha'Melech, he was considered to be the one retaining the ultimate permission to judge.

The RIVASH (Teshuvos # 271) issues a practical ruling based on this explanation of Rashi. In the times of the Rivash, one of the most eminent Talmidei Chachamim in France appointed a certain Rav to be the chief Dayan of all of France. In addition, this eminent Talmid Chacham proclaimed that if anyone judges in France without the permission of this Dayan, then all of the divorces that he has performed will be considered invalidated. However, the government had already given a different Dayan permission to be the presiding judge in France (and to take the place of his father who had filled that position). Was the eminent Talmid Chacham correct in circumventing the government's appointment?

The Rivash, quoting among other sources the words of Rashi here, rules that the Talmid Chacham indeed acted improperly. As Rashi says, the government's granting of authority gives a greater degree of power to its appointed Dayan than that of a Dayan that does not have the backing of the government. Therefore, one cannot overrule that power. The BACH (CM 3) concurs with the Rivash.

The TUMIM (CM 3:6) takes issue with this interpretation of the Gemara and Rashi. He asserts that since the king of Persia had no authority in Eretz Yisrael (which was ruled by the Roman Empire), it should have no bearing on a judge being accepted in Eretz Yisrael. Furthermore, Rebbi definitely had permission from his own friend, the Roman Emperor Antoninus, to do whatever he wished in Eretz Yisrael. Moreover, at that time Rome was the most powerful empire in the world. In fact, if we follow the logic of Rashi, then the Halachah should be that one who obtained permission to judge in Eretz Yisrael should certainly be permitted to judge in Bavel!

The Tumim therefore proposes that even Rashi agrees that the Gemara's determining factor is the lineage of the leader. He explains that when Rashi says that the kings of Persia gave them permission to judge, he simply is explaining how they were able to judge even though they were ruled by a foreign power.

The REMA (CM 3:2) cites a Machlokes regarding whether a judge appointed by a foreign kingdom has Halachic authority. He quotes the TUR as disagreeing with the Rivash. The BI'UR HA'GRA points out that these two opinions are based on the different explanations given by Rashi and Tosfos in our Sugya, indicating that he does not agree with the Tumim's interpretation of Rashi. (Y. Montrose)

5b

OPINIONS: The Gemara relates that Rebbi visited a town and saw everyone kneading dough in impure vessels. Upon inquiring, the people of the town told him that "a certain Talmid told us that Me'i Betzai'm (water of swamps) does not have the ability to make a food liable to become Tamei." They assumed, therefore, that since their dough was made with such water it could not become Tamei from their vessels.

This was an outright mistake, as the Talmid actually had said "Mei Beitzim" (the liquid of eggs), and not "Me'i Betzai'm," swamp water. They did not realize their mistake, and they even supported it based on a Mishnah in Parah (8:10). The Mishnah there states that certain types of waters cannot be used for the Mei Chatas, the sprinkling of the ashes of the Parah Adumah, because they are swamp waters. They deduced that this was the logic behind the Talmid's ruling. As this water is not usable for the Parah Adamah, it is also not suitable to make something capable of becoming Tamei. They were completely mistaken, though, as explained above. As a result of that incident the Chachamim decreed that a Talmid may issue a ruling unless he has received permission from his Rebbi to do so.

The Acharonim cite this Gemara in their discussion of whether or not it is preferable to pronounce the word "Beitzah" (egg) as "Bei'a" (the Aramaic word for "egg.")

(a) The MAGEN AVRAHAM (end of OC 156) in the name of the MAHARSHAL (Yam Shel Shlomo, Bava Kama 4:11) writes that "it is proper to say ['Bei'a' or] 'Bei'im' instead of ['Beitzah' or] Beitzim,' in order to maintain a high standard of purity of speech." (The word "Beitzah" is used in Chazal to connote part of the male reproductive organs, and thus it is improper to utter it, as the Gemara in Pesachim (3a) teaches that one should accustom himself not to speak in an improper manner.) Based on this, many people have the custom to refer to Maseches Beitzah as "Bei'a," which is the Aramaic term for "egg."

(b) The IYEI HA'YAM (cited by the Likutim on the Mishnayos), however, refutes this practice, pointing out that there is no source anywhere in Shas that the Chachamim refrained from pronouncing the word as "Beitzah" or that they classified it as improper speech. In fact, we find that the Chachamim even borrowed the term and described many oblong objects as "Beitzah" (such as "Beitzah ha'Gir" in Beitzah 15a). Furthermore, what is gained by translating the word to Aramaic? It means the same thing in any language! (See, however, BEIS EFRAIM, Teshuvos OC 15.)

As a clear proof that the word indeed was pronounced "Beitzim" in the days of Chazal, he cites our Gemara. The mistake occurred because the Talmid said "Mei Beitzim." The townspeople would not have confused "Bei'im" with "Betza'im!" TOSFOS even has difficulty with how the townspeople could confuse the word "Beitzim" with "Betza'im," and thus he explains that they thought that they heard the Talmid say "Bitzim" which they then assumed was "Betza'im." Nonetheless, they would never have made this mistake had the Talmid said, "Bei'im."

(c) The TIFERES YISRAEL (introduction to Beitzah) says that the reason one *should* say "Bei'a" and not "Beitzah" is based on our Gemara. He asserts that when the incident occurred in which the people confused the word "Beitzim" with "Betza'im," the custom developed to say "Bei'a" in order to prevent such a mistake from happening again.

In practice, the Iyei ha'Yam writes that he asked the son of the VILNA GA'ON how the Vilna Ga'on pronounced the word, and the son told him that the Vilna Ga'on called the Maseches "Beitzah," in contrast to the words of the Magen Avraham. This is the generally accepted practice today -- to pronounce the word "Beitzah." Nevertheless, many people still have the practice of pronouncing the name of the Maseches as "Bei'a." In defense of this practice, it may be suggested that the source for it is the Gemara in Bava Kama (3b) which explains that the word "Mav'eh" (the root of which is "Ba'a") may mean one of two things: Either it has a connotation of *praying* or of *eating*. On Yom Tov, we are told to divide the day between "Lachem" (i.e. partaking in a Se'udah) and "la'Hashem" (i.e. praying and learning), as the Gemara tells us in Beitzah (15b). Since both of these practices are hinted at in the word "Bei'a," it is an appropriate name for the Maseches devoted to the laws of Yom Tov! (M. Kornfeld)