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Bechoros, 29

1) HALACHAH: MONEY PAID TO A JUDGE

OPINIONS: The Mishnah states that when a judge accepts money from litigants as compensation for judging a case, his ruling is invalid. Is he also required to return the money?

(a) The BACH (CM 9 and Teshuvos #51) rules that only money given as a bribe must be returned to the one who paid it. Since the Torah forbids a judge from accepting a bribe, the money is considered stolen money which must be returned. In contrast, when a judge accepts payment for judging (such as from both parties involved in the case), the judge is merely failing to comply with the obligation of "Mah Ani b'Chinam" -- just as Hashem judges in return for no payment, so must a mortal Dayan judge for free. Since the judge does not transgress an Isur of stealing by accepting compensation, he does not have to return it.

(b) The MISHNEH L'MELECH (Hilchos Sanhedrin 23:5) quotes the RITVA in Kidushin (58b, DH Amar Abaye) who writes, "Since nothing was accomplished (since his ruling is annulled), it is not fitting that he should take payment (and thus the judge must return the money)." The Mishneh l'Melech explains that the Ritva disagrees with the Bach. The MACHANEH EFRAIM (Hilchos Sechirus #16) also quotes the Ritva and says that he disagrees with the Bach. He adds that since the judge accomplished nothing, the money that was given is considered to be a Mekach Ta'us, given on mistaken grounds, and thus the judge should not be allowed to keep it.

(c) The DIVREI CHAIM (CM 3) suggests a compromise. The judge may keep the money in a case in which both litigants choose to abide by the judge's ruling, since the judge will have performed a service to them and the payment will not be for nothing. When the litigants do not accept the litigation, the judge must return the money. (The BACH, however, states clearly (in Teshuvos) that the judge may keep the payment even if the litigants choose not to abide by his ruling.)

OPINIONS: The Mishnah teaches that a judge may not receive a wage for judging a case. The Gemara derives this from the verse, "See that I have taught you..." (Devarim 4:5); just as Hashem teaches Torah, and judges, for no payment, so, too, we must do the same.

In what circumstances is it permitted to receive a wage for teach Torah?

(a) In the Gemara in Nedarim (37a), Rebbi Yochanan rules that it is permitted to receive a wage for teaching the "Pisuk Ta'amim" (the cantillational notes on the words in the Chumash), since those notes are not mid'Oraisa. We see from here that one is permitted to take wages for teaching Halachos or Mitzvos that are mid'Rabanan. The HAGAHOS MAIMONI (Hilchos Talmud Torah 1, cited by the REMA in YD 246:5) writes that it is therefore permitted to take wages for teaching rabbinical enactments.

(b) The Gemara (Nedarim 37a) says that one who teaches small children who need to be watched may receive a wage for teaching them, since the salary is not being paid for the teaching, but for the supervision. The Gemara assumes that adults and even young girls (who tend to be more mature and independent than young boys) do not need to be watched. (See the ROSH in Nedarim, who says that little children have to be kept off the streets so that they will not cause damage and become accustomed to doing bad things.) Obviously, in a place where young girls and older children need to be supervised, their teachers may take a wage.

(c) The RAN in Nedarim and other Rishonim quote a Yerushalmi that says that one who chooses to teach Torah at the expense of working in a profession may receive wages for the loss of work that he endures as a result of teaching. In such a case, he is not taking money for the teaching, but for not working.

(d) TOSFOS here (DH Mah Ani) and the ROSH say that one who has no other source of income may receive a wage for teaching.

HALACHAH: The SHULCHAN ARUCH (YD 246:5) rules that nowadays, teachers may receive salaries for teaching Torah for the abovementioned reasons. (See also Insights to Nedarim 37:1.)

29b

QUESTION: The Mishnah states that one may not buy deer meat or untanned leather from a person who is suspect with regard to the laws of Bechor. RASHI (DH he'Chashud) explains that the person is suspected of deliberately making a Mum in a Bechor. Rashi (DH Basar) writes further that because this person is suspected of making a Mum in a Bechor, one may not buy even deer meat from him, because deer meat is red and it might get mixed with the meat of a calf. The seller might sell the meat of a calf that is actually a Bechor without a Mum, saying that it is a deer in order to convince people to buy from him.

The Gemara infers from the Mishnah that one may buy *tanned* leather from the person suspected of transgressing the laws of Bechor. We are not concerned that the leather might be the leather of a Bechor, because a person will not trouble himself to tan a Bechor's hide out of fear that the Chachamim might hear about it and make him lose the leather. Rashi (DH Sham'i Rabanan) explains that the Chachamim might hear that the animal from which the hide was taken is a Bechor without a Mum and must be buried.

There seems to be a contradiction in the words of Rashi. Rashi first explains that the seller is a person who is suspected of deliberately making a Mum in a Bechor. This implies that the Mishnah is not referring to one suspected of actually slaughtering a Bechor without a Mum. However, Rashi then writes that the seller is suspected of selling the meat of a Bechor without a Mum! In his comments on the Gemara, Rashi also writes that the person is suspected of selling the leather of a Bechor without a Mum.

What exactly is the person suspected of -- slaughtering and selling a Bechor without a Mum, or making a Mum in a Bechor and then slaughtering and selling it?

ANSWER: The MAHARIT ALGAZI (#31) answers that it cannot be that the person is suspected of actually slaughtering an unblemished Bechor. He cites two proofs for this assertion.

First, it is unusual that one would be suspect of transgressing such a severe transgression. Slaughtering an unblemished Bechor outside of the Beis ha'Mikdash constitutes a transgression of Shechutei Chutz, slaughtering Kodshim outside of the Beis ha'Mikdash, for which one is Chayav Kares. We find that Rashi (36a, DH Aval Hacha) writes that a Kohen is not suspected of eating Kodshim without a Mum outside of the Beis ha'Mikdash. However, we do suspect a Kohen of making a Mum in the Bechor, since this act involves transgressing only a Lo Sa'aseh.

Second, one who wants to eat an unblemished Bechor can alleviate the severity of the Isur by simply making a Mum in the Bechor before he slaughters it. There is a principle that we assume a person does not commit a severe transgression when he has the opportunity to achieve the same result by doing a less severe transgression. Thus, we assume that one who slaughtered a Bechor made a Mum in it before he slaughtered it.

In addition, the Maharit Algazi points out that, mid'Oraisa, there is no prohibition against slaughtering a Bechor with a Mum even when the Mum was inflicted intentionally. It is forbidden only mid'Rabanan. In contrast, it is Asur mid'Oraisa to slaughter an unblemished Bechor, as well as to eat the meat afterwards. Therefore, there is a Chazakah that a person would choose to commit an Isur d'Rabanan rather than an Isur d'Oraisa.

Consequently, the Maharit Algazi asserts that the second statement of Rashi in the Mishnah (that the person is suspected of selling an unblemished Bechor), does not mean that it was unblemished at the time that he slaughtered it. Rather, Rashi means that it was unblemished *before he inflicted a Mum* in it. Similarly, when Rashi writes that the Chachamim might hear that the leather comes from an unblemished Bechor, this means that they hear that it came from an unblemished Bechor *before* the owner made a Mum in it.

(See RASHASH to Rashi DH Basar, who also answers that the words "Bechor Tam," an unblemished Bechor, in the last two statements of Rashi do not mean that it was unblemished at the time of the Shechitah. See also SHAI L'MOREH.) (D. Bloom)