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Gitin, 59

1) WHO SPEAKS FIRST IN COURT DECISIONS

QUESTION: The Gemara says that when adjudicating matters of capital punishment, the less experienced judges should voice their opinions first, while in matters of monetary law, the head of the Beis Din should voice his opinion first. Why is this so?

ANSWERS:

(a) RASHI says that there is concern that the head judge will say that the person who is on trial deserves the death penalty, and the other judges will refrain from disagreeing with him, based on the verse, "Lo Sa'aneh Al Riv" (Shemos 23:2), which is interpreted to mean "Lo Sa'aneh Al *Rav*" -- one should not voice an opinion against the greater Rav. (See Rashi in Sanhedrin 36a and 18b.)

Rashi says that this rule is one of the special laws that apply to capital punishment (as implied by the Gemara in Sanhedrin 2b). Hence, when dealing with monetary matters, there is no need to start from the younger judges, since the younger judges can express their opinions even after the head judge has voiced his opinion.

Rashi uses this approach to explain the next part of the Gemara, which says that in the days of Rebbi, in all court cases the younger judges voiced their opinions first. Why was this the protocol in the days of Rebbi?

Rashi explains that Rebbi was of the opinion that the prohibition against voicing an opinion against a greater Rav applies to monetary law as well, and therefore, in his days, the younger judges voiced their opinions first in all the court cases.

(b) The RAN says that a younger judge is always permitted to voice his opinion, even if the head judge has already voiced his. The Torah requires that younger judges voice their opinions first when deciding cases of capital punishment, because there is concern that they will not *want* to voice their opinion in disagreement with the head of Beis Din. In contrast, regarding decisions of monetary law, the Torah was not concerned that the younger judges would not want to voice their opinions after the head of the Beis Din has voiced his, and therefore the head of the Beis Din voices his opinion first.

Regarding why, in the days of Rebbi, the younger judges expressed their views first in all cases, the Ran explains that since Rebbi was a very powerful and great personality, there was a concern that when he was serving on the Beis Din, the younger judges would not voice their opinions after hearing his opinion, even with regard to monetary cases. Although, generally, we are not concerned that the younger judges will not voice there opinions in cases of monetary law, we *are* concerned for this when there is such a great sage like Rebbi serving on the Beis Din.

(TOSFOS explains that although Rebbi agrees that the head judge voices his opinion first in cases of monetary law, out of Rebbi's great humility he had the younger judges express their opinions first.)

OPINIONS: The Gemara says that minors can acquire movable objects (Metaltelin). The Gemara discusses the minimum age at which a minor may make acquisitions. The Gemara concludes that it depends on each child's level of intelligence. A sharp child may make acquisitions at the age of six, while a less adroit child may make acquisitions only at a later age. The Gemara discusses assessing a child's intelligence only up to the age of ten years. Do we need to assess his intelligence even if he is older than ten years old?

(a) The ROSH understands that the Gemara implies that once a child is ten years old, we assume that he is sharp enough to make acquisitions and we do not have to assess him. Only if he is clearly lacking the normal intelligence for that age do we say that he is not able to make acquisitions. (See REMA, CM 235:1.)

(b) The RAMBAM (Hilchos Mechirah 29:6) maintains that any child under the age of thirteen must be assessed in order to be able to make acquisitions. (See SHULCHAN ARUCH, CM 235:1, and VILNA GA'ON there, #2.)

QUESTION: The Mishnah states that the gestures and signs that a deaf person makes are valid indications of his desire with regard to acquisitions of movable objects (Metaltelin). Accordingly, the RAMBAM (Hilchos Mechirah 29:2) rules that a deaf-mute, and even one who is deaf and not mute, can sell only Metaltelin, but he cannot sell land. (Support for the concept that there are higher standards of intelligence with regard to the ability to buy and sell land is from the fact that even an adult (above the age of Bar Mitzvah) cannot sell land until he is twenty years old (65a).)

This is difficult to understand, though, in light of the Gemara in Chagigah (4b) which states that only a deaf-mute is treated like a Shoteh. A deaf person who is able to speak is considered like any normal adult!

ANSWERS:

(a) The BEIS YOSEF (Choshen Mishpat 235) answers that the Rambam understands that the Gemara in Chagigah means to say that a deaf person who can speak is like a normal adult only with regard to specific Halachos, and therefore his status with regard to making acquisitions differs from that of a normal adult.

The Beis Yosef says further that perhaps the Rambam maintains that the Gemara in Chagigah is referring to one who has a limited ability to hear and can hear only with difficulty. Such a person has the status of a normal adult. In contrast, if he cannot hear *at all*, then even if he can speak, he does not have the status of a normal adult.

(b) The NESIVOS HA'MISHPAT (235:20) rejects the Beis Yosef's explanations, pointing out that the Gemara in Chagigah states that "in every place," one who can speak is treated like a normal adult, which implies that we treat him like an adult in respect to *all* Halachos. The Nesivos points out that the ROSH says that a Halachicly-defined Cheresh is one who cannot hear nor speak at all (in contrast to the Beis Yosef's second answer, that even if he cannot hear well, he is considered a Cheresh if he cannot speak).

The Nesivos therefore answers that the Rambam understands that the Gemara in Chagigah is referring only to places in which the term "Cheresh" is mentioned *together with the term "Shoteh". Our Mishnah, on the other hand, is discussing a Cheresh and *not* a Shoteh, and thus the term "Cheresh" includes one who is deaf but not mute. (See also VILNA GA'ON, CM 235L54.)

59b

QUESTION: The Gemara says that, mid'Oraisa, a Kohen should be given the first Aliyah when reading the Torah, because it is a Mitzvah to give honor to Kohanim. When the Mishnah says that this is only a rabbinical enactment for the sake of preserving peace among people, it is referring to the rule that the Kohen always gets the first Aliyah even where the Kohen himself prefers to defer the honor to his teacher. Since he prefers to defer, there is no longer a Mitzvah d'Oraisa to give the honor to him.

The Gemara relates that Rav Huna received the first Aliyah since he was the greatest Torah authority of his time. This implies that in the case of a normal person who happens to be more learned than the Kohen who is present, the more learned person does *not* precede the Kohen. The Kohen is given the honor of the first Aliyah even though the other person is more learned.

However, the Gemara in Horiyos (13a) seems to contradict our Gemara. The Gemara there says that giving honor to a Talmid Chacham takes precedence over giving honor to a Kohen who is an Am ha'Aretz! How are these Gemaras to be reconciled?

ANSWERS:

(a) The RAMBAM (Perush ha'Mishnayos) writes that when our Mishnah says that a Kohen gets the first Aliyah, it is only referring to a situation where there is no one present who is a greater Talmid Chacham than the Kohen. The Rambam writes that there is no requirement for a Talmid Chacham to honor a Kohen who is less learned than he, as implied by the Gemara in Horiyos. The Rambam understands that our Gemara stresses the greatness of Rav Huna. because Rav Ami and Rav Asi -- who were the greatest Kohanim of the time -- were present at that Minyan and only a Talmid Chacham who was greater than they could receive the Aliyah before them.

However, the Rambam's opinion is problematic. The Gemara quotes a Beraisa that states that when one recites the Berachah for bread and has in mind to recite the Berachah for others who are present, the one who recites the Berachah dips his slice of bread before the others. If he is a Kohen and wants to honor his teacher, he may let his teacher dip first. This implies that the Kohen has the privilege to be first even though his teacher, who is more learned than he, is present. This seems to contradict the Rambam's view that honoring a Talmid Chacham takes precedence over honoring a Kohen!

The PRI CHADASH answers that the rule that one who recites the Berachah dips his bread first applies even if he is not a Kohen and not a Talmid Chacham. Therefore, there is no implication from this Gemara that the honor of a Kohen takes precedence to the honor of a Talmid Chacham, since the reason he has the right to dip before the Talmid Chacham is not because he is a Kohen, but because he is the one who recited the Berachah over the bread.

(b) The TUR cites RAV AMRAM GA'ON and RAV NOTRANA'I GA'ON who say that when there is a Kohen in the Minyan, he receives the first Aliyah even if he is ignorant and there is a great Torah scholar present. They seem to learn that although a great Talmid Chacham has precedence over a Kohen with regard to other Mitzvos (such as giving Tzedakah to one before the other when both are poor), as the Gemara in Horiyos teaches, with regard to the reading of the Torah, the Chachamim instituted an enactment to prevent arguments and therefore established that the Kohen *always* reads first even if he is less learned than others.

(c) The RITVA has a third opinion. He writes that the Kohen receives the first Aliyah even when there are others present who are more learned than he, but only when the Kohen is not an Am ha'Aretz. When the Kohen is an Am ha'Aretz, the Talmid Chacham precedes him.

The Ritva seems to learn that the nature of the enactment that a Kohen must be given the first Aliyah applies only when the Kohen possesses qualities for which he deserves to be honored, besides the fact that he is a Kohen. In such a case, the Kohen may not relinquish his honor to others.

Accordingly, the Ritva maintains that when both the Kohen and a non-Kohen are Talmidei Chachamim, even if the Yisrael is a greater Talmid Chacham than the Kohen, the Kohen receives the first Aliyah (as implied by our Gemara; see the Rambam's opinion above), but if the Kohen is an Am ha'Aretz, the Talmid Chacham has precedence (as implied by the Gemara in Horiyos), and therefore there was no enactment that such a Kohen precede a Talmid Chacham.

HALACHAH: Our practice follows the opinion of the Ge'onim, who say that a Kohen always receives the first Aliyah, for the sake of preserving peace. The BI'UR HALACHAH (OC 135:3) quotes the CHAYEI ADAM who says that when there is an eminent Talmid Chacham present and there is also a Kohen who is learned as well as a Kohen who is not learned, it is preferable to give the first Aliyah to the Kohen who is a Talmid Chacham and not to the one who is an Am ha'Aretz. (Nevertheless, one must be careful with this Chumra and not cause a Machlokes.)