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Avodah Zarah, 36

1) "CHOCHMAH" AND "MINYAN"

QUESTIONS: The Gemara quotes the Mishnah in Eduyos (1:5) that states that one Beis Din (Sanhedrin) cannot annul the enactments of a previous Beis Din unless it is greater than the previous Beis Din in Chochmah (wisdom) and Minyan (number).

The RAMBAM (in Perush ha'Mishnayos) and the BARTENURA in Eduyos explain that Chochmah is not determined by the total degree of wisdom of the entire Beis Din. Rather, it means comparing the wisdom of the two heads of the two courts and determining who is greater in wisdom.

What, though, does the Mishnah mean by "Minyan?" Every Sanhedrin has the same number of judges (71)! (See Background to Avodah Zarah 7:12b.)

ANSWERS:

(a) The RAMBAM (Hilchos Mamrim 2:2) explains that the Beis Din which instituted the original decree can have many other Sages "added" to its numbers by those other Sages accepting the decree of the Beis Din. This means that if there are many Sages in that generation who were not members of the Beis Din but nevertheless agreed to the Beis Din's enactment, then these Sages are considered as part of the Minyan of the Beis Din. Consequently, a subsequent Beis Din can annul the enactment only if it is greater in number than the total number of Sages who were involved in the original institution of the enactment.

(b) The RA'AVAD (in Eduyos) argues with the Rambam's definition. He explains that "Minyan" refers to the number of *years* of the Beis Din; i.e. the age of the members. The Ra'avad, however, does not explain whether this refers to the age of all of the members of the Beis Din, or only to the age of the head of each Beis Din.

We find that age is a factor in determining the importance of a Beis Din with regard to the law concerning the order of seating of the Beis Din. The Rambam (Hilchos Sanhedrin 1:3) writes that the members of the Beis Din are seated in front of the Av Beis Din "according to their ages and according to their positive attributes." We see that age is a factor in determining importance in the Beis Din. (There is, however, a variant Girsa in the Rambam, according to which there is no indication that age is a factor.)

(c) The BARTENURA in Eduyos explains that the Mishnah is not referring to the members of the Beis Din themselves. Rather, it is referring to the number of students who sit before the Beis Din, learning from the proceedings of the court (see Sanhedrin 17b). If the amount of students that sat before the first Beis Din was more than the amount sitting before the second Beis Din, then the second Beis Din cannot override the enactment of the earlier Beis Din.

(d) The MELECHES SHLOMO in Eduyos quotes RASHI in his commentary to Avos as explaining that "Minyan" has a double meaning. He understands that both the requirements of the Ra'avad (age) and the Bartenura (students) must be met in order for the second Beis Din to be considered greater in "Minyan."

(e) RAV REUVEN MARGOLIYOS (in YESOD HA'MISHNAH V'ARICHASAH, Birurim 5) suggests a different interpretation. He suggests that the "Minyan" of the two courts is determined by how many votes were in favor and how many were against. For example, if the enactment of the first Beis Din was passed by a vote of sixty against eleven, then to annul the enactment, the second Beis Din (in addition to being greater in Chochmah) must have a greater number of judges (i.e. sixty-one) voting *against* the enactment.

He explains that this is the meaning of the Gemara in Zevachim (11b). The Mishnah there quotes Ben Azai as stating a Halachah that he received from seventy-two elders. The Gemara asks why is it important for us to know the number of elders from whom Ben Azai received this Halachah? The Gemara answers that it is important for us to know that they all agreed to this Halachah (see SHITAH MEKUBETZES for a slightly different text which could also bear this explanation). The Gemara's answer, though, does not seem to address the question. Even if all of the elders agreed to the Halachah, why is this significant? Why do we have to know that?

Rav Reuven Margoliyos explains that we must know how many elders agreed to the Halachah in order to know how to *annul* that enactment. More than seventy-two elders must agree to annul the enactment in order to repeal it (apparently, it is only possible for seventy-*three* elders to decide to annul the enactment when the decision is made outside of Sanhedrin, as apparent from his next proof, as written below).

Rav Reuven Margoliyos explains that this explanation is consistent with a statement of the ME'IRI in Sanhedrin (86b; see Insights there). The Me'iri quotes an opinion that states that every judge of the Sanhedrin must agree that a Zaken is in error in order to establish him as a "Zaken Mamrei." Most opinions disagree with this statement. Indeed, why should the opinion of *all* of the judges be necessary, when, normally, we follow the decision of the majority ("Rov")?

According to this explanation, though, we can understand this opinion in the Me'iri. The Zaken Mamrei is punished with death only for arguing with a clear, indubitable ruling. If the ruling with which he argues is able to be overturned by a later Sanhedrin, then it would be possible that an injustice would be perpetrated, for it would turn out that the Zaken Mamrei was *not* wrong! Only when all of the members of the Sanhedrin agree does the verdict remain permanent, and it is not possible that a future Sanhedrin will have more members voting against the Halachah. (Y. Montrose)

36b

OPINIONS: The Gemara teaches the various opinions regarding the nature of the Torah prohibition against marital relations with a Nochri. The Rabanan maintain that the Torah prohibition of "Lo Sischaten" in (Devarim 7:3) applies only to the seven nations that resided in Eretz Yisrael at the time of Yehoshua's conquest of the land. The prohibition to marry Nochrim from all other nations is mid'Rabanan. Rebbi Shimon bar Yochai argues and maintains that the Torah prohibition to marry a Nochri applies to a Nochri from any nation, as he derives from the following verse, "For they will turn away your son from following Me, and they will serve other gods" (Devarim 7:4); this teaches that it is prohibited for a Jew to marry anyone who will turn his heart away from Hashem. Which view is accepted as the Halachah?

(a) The RAMBAM (Hilchos Isurei Bi'ah 12:1) states that the Torah prohibits having marital relations in the context of marriage with any Nochri man or woman. One who transgresses this prohibition receives Malkus. It is clear that the Rambam rules in accordance with the view of Rebbi Shimon bar Yochai.

The TUR (EH 16) asks two questions on the Rambam's ruling. First, the rule is that when Rebbi Shimon bar Yochai argues with the Rabanan, we do not follow the view of Rebbi Shimon bar Yochai. Second, the Gemara in Yevamos (76a) quotes Rava who explains that the prohibition of "Lo Sischaten" means literally that one may not marry a Nochri, but it cannot be prohibiting such a marriage because such a marriage is not Halachicly binding or valid. Hence, the verse must be referring to marrying a Nochri *after* he has converted, and it is stating that one may not marry a convert from these nations even after he has converted (when it would be Halachicly possible to marry him). How, then, can the Rambam say that this prohibition applies even before the Nochri converts?

The BEIS YOSEF answers the Tur's question and rules like the Rambam. He explains that the Gemara in Kidushin (68b) asks how we know that the child of a Nochri woman is a Nochri (even when the father is Jewish). Rebbi Yochanan answers in the name of Rebbi Shimon that we know this from the verse, "For they will turn away your son from following Me" (ibid.), which implies that "your son" married a Nochri woman, causing the offspring to be Nochrim. This applies to Nochrim from any nation (and not just from the seven nations), since they all will turn a Jew's heart away from Hashem. The Gemara there says that this source is logical according to Rebbi Shimon, who is the Tana who delves into the reasoning of the verses (and uses that reasoning to determine the Halachah). What, though, is the source for this law according to the Rabanan?

From the Gemara's question there we see that the Gemara accepts Rebbi Shimon's approach, and the Halachah follows his view. In addition, it is Rebbi Shimon who says that the reason for the prohibition against marrying a Nochri is that the Nochri will lead the Jew away from Hashem, and thus it follows that the prohibition is referring to the type of person who is likely to lead a Jew astray -- that is, a full-fledged Nochri, and *not* a convert.

The Gemara in Yevamos (76a) from which the Tur questions the Rambam's ruling must be following the view of the Rabanan, and not Rebbi Shimon. Alternatively, even though Rava concludes that the prohibition of "Lo Sischaten" refers to a Nochri after conversion, it is possible that we do not agree with Rava's conclusion, but rather we follow the earlier assumption of the Gemara there that the verse is referring to marrying Nochrim while they are still Nochrim.

(b) The TUR (EH 16) says that the Torah prohibition applies only when the Nochri is from the seven nations and then converts. How, then, does the Tur understand our Gemara? Our Gemara is discussing specifically a case in which the Nochri from the seven nations is still a Nochri (he has not converted) and yet it states that there is a Torah prohibition against having marital relations with such a Nochri!

TOSFOS (DH d'Chsiv), who agrees with the Tur, explains that the Gemara does not mean that the prohibition is from the words "Lo Sischaten," but rather from the end of the verse, "Lo Sikach" -- "[Your daughter you shall not give to his son,] nor his daughter shall you take to your son." The Tur concludes that a person is not punished with Malkus because of this verse until he has relations with the Nochri.

It is not clear whether the Tur understands that the verse of "Lo Sikach" applies only in the context of marriage, or whether prohibits relations even without marriage. The RAMBAN in Yevamos (78b) states that this prohibition applies only in the context of marriage. This is evident by the wording of the verse, "Lo Sikach," which implies *taking* a woman as a wife (similar to the verse, "Ki Yikach Ish Ishah" (Devarim 22:13)). However, the BACH, PERISHAH, BEIS SHMUEL, and MINCHAS CHINUCH (427:1) all comment that the Tur understands that this prohibition applies even to casual relations with a Nochri from the seven nations, even outside of the context of marriage. (Y. Montrose)