THOUGHTS ON THE DAILY DAF
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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?
2) ACQUISITIONS OF MINORS ABOVE THE AGE OF TEN
(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
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
3) ACQUISITIONS OF THE DEAF
(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!
(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
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.)
3) HALACHAH: THE RIGHT OF THE FIRST ALIYAH
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
(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.
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.)
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.