THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Moed Katan, 17
MOED KATAN 17 (October 24) - In honor of the birthday of Simcha Klein of
Yonkers, NY, from the Leichmans of Teaneck, NJ. Ad Meah V'Esrim!
1) TAKING THE LAW INTO ONE'S OWN HANDS
OPINIONS: The Gemara quotes Rav Yosef who says that a Talmid Chacham (a
Tzurba m'Rabanan) may exact "do justice on his own if the matter is clear to
2) PERMISSION TO SIN
What does this mean? If it means that he is allowed to take something that
someone stole from him without going to Beis Din, then in what way is this
Halachah unique to a Talmid Chacham? The Gemara in Bava Kama (27b) says that
*any* person is entitled to reclaim what someone else stole from him without
going to Beis Din! On the other hand, when there is a dispute over a monetary
matter, it cannot mean that a Talmid Chacham may analyze the case on his own
and issue a Halachic ruling for himself, because one is not allowed to be a
Dayan, or even a witness, for a relative, much less for one's self!
(a) The RA'AVAD, cited by the ROSH and the TUR (YD 334), and RABEINU
CHANANEL, say that this Gemara is not discussing the right to issue a
Halachic ruling for oneself or the right to take back something that belongs
to him. Rather, it is referring to the authority granted to a Talmid Chacham
to declare someone to be in Niduy who has acted disrespectfully to the Talmid
HALACHAH: Regarding a Talmid Chacham placing a person in Niduy for
*disgracing* him, the SHULCHAN ARUCH (YD 334:45) rules like the RA'AVAD and
says that a Talmid may be Menadeh a person if he called him a slave, and his
Niduy takes effect just as if Beis Din had put him in Niduy.
As far as *monetary* matters are concerned, the Shulchan Aruch (YD 334:46)
rules like the OR ZARUA, that anyone may put his opponent in Niduy if he
refuses outright to pay. The REMA, though, is stringent and rules like the
ROSH, that neither a layperson nor a Talmid Chacham may put his opponent in
Niduy if he does not want to pay.
We learned earlier on this Daf that a Talmid may be Menadeh someone who
disgraced him, but the Niduy is not absolute; only the other Talmidim have to
observe it, but not their rebbi. Rav Yosef is now adding that if a person
disgraced the Talmid in a manner for which Chazal specifically prescribe
Niduy (for example, he called him a slave, which the Gemara says in Kidushin
(28a) is to be punished with Niduy), then it is considered a "matter that is
clear" (Milsa d'Pesika) that the person deserves to be put in Niduy. In such
a situation, when the Talmid declares the person to be in Niduy, that Niduy
must be observed by everyone, even the rebbi, for it is as if the Beis Din
itself placed the person in Niduy.
(b) However, RASHI (as cited by the TOSFOS HA'ROSH and the TUR (see also
SHILTEI GIBORIM)) says that the Gemara is indeed referring to a situation
where someone owes the Talmid Chacham money. The Gemara means that a Talmid
Chacham may not only take back the money that is owed to him (like every
other person may also do, even someone who is not a Talmid Chacham), but he
may even enforce his right to the money by putting the other person in Niduy
until he gets back the money. (A layperson, though, does not have this
authority.) This is also the explanation of the CHIDUSHEI HA'RAN.
The ROSH, however, rejects this explanation based on the argument mentioned
above -- how can a Talmid Chacham judge the case by himself -- his judgment
is biased! (See however TESHUVOS HA'ROSH 6:25,26, where he seems to accept
Rashi's interpretation of this Gemara as Hagaon Rav Yisroel Zev Gustman
points out in KUNTRESEI SHI'URIM 15:5.)
Rashi apparently holds that the Halachah that a Talmid Chacham may put
someone in Niduy in order to get his money back is just an *extension* of the
Halachah that allows a person to do justice for himself and take back a
stolen item. Just like anyone, even a layperson, may take back something that
belongs to him, a Talmid Chacham is trusted to go further and even enforce it
through a Niduy. The problem of being biased does not affect the Halachah of
doing justice for oneself.
Rashi and the Rosh might be arguing over a basic understanding of the nature
of the Halachah that one may do justice for himself to return a stolen
object. The Rosh maintains that this Halachah of "Avid Inish Dina l'Nafshei,"
one may reclaim what is his own, means that the person does not need to go to
Beis Din to take something that he knows is his, because he does not need an
official Psak Din, a court-ruling, to give him the right to reclaim his
object. To create a Niduy, though, requires a Psak Din, and a person is not
invested with the authority to issue a Psak Din on his own (especially not
for his own benefit), even a Talmid Chacham. Rashi, though, seems to hold
that the Halachah of "Avid Inish Dina l'Nafshei" means that a person is
invested with the authority of a *Beis Din * with regard to reclaiming
something that is his. In other words, he is authorized to issue a Psak Din
allowing him to take back an object that was taken from him unlawfully (as
described by RAV GUSTMAN, zt'l, in Kuntresei Shi'urim on Bava Kama 15:2,3,7).
If so, just as he may issue a ruling enabling him to take back the object, he
may also issue a ruling of Niduy.
Rav Gustman himself (ibid. 15:5) suggests that the Rosh, too, agrees that the
Halachah of Avid Inish Dina l'Nafshei grants a person the status of a Beis
Din. However, the Rosh refuses to accept the possibility that Avid Inish Dina
l'Nafshei is expressed differently between a Talmid Chacham and a layman.
Therefore, he assumes that the Gemara is discussing a situation in which the
rule of Avid Inish Dina l'Nafshei does not apply at all. His question is that
just as Avid Inish Dina l'Nafshei does not apply in this situation (for
whatever reason), making a Niduy against one's opponent is not permitted in
(c) The SHITAS RIVAV (the nephew of the Ba'al ha'Me'or), in his second
answer, explains the Gemara to mean that a Talmid Chacham can not only
reclaim an object that is his, he can even decide for himself that the
Halachah is in his favor, and then reclaim the object based on his
understanding of the Halachah. That is, he can offer a Psak Din on his own
(as long as he later presents his arguments before the court and they are
accepted -- Kuntresei Shi'urim ibid.)
The Rivav was apparently not bothered by the question of the Rosh that a
person cannot rule on a case that he is involved in. Rav Gustman (ibid.)
explains that the Rosh and Rivav argue how far the rule of "Avid Inish Dina
l'Nafshei" goes: The Rosh understood that it only gives a person the right to
*reclaim* an object by force, but not the status of Beis Din to *rule* on its
ownership. Rivav understood that the rule of Avid Inish Dina l'Nafshei even
allows a person to *rule* on the matter, if he is a Talmid Chacham. (Others
understand that even a *layman* is given the right to "pass a ruling" on the
matter, if he can uphold it later in court -- ibid. 15:6)
(d) The RITVA explains that the Gemara is referring to the normal Halachah of
doing justice for oneself. Why, then, does it specifically mention a Talmid
Chacham, when this Halachah applies to everyone? The Gemara is teaching that
*even* a Talmid Chacham may do justice for himself. We might have thought
that it is below the dignity for a Talmid Chacham to do such a thing and a
Talmid Chacham is expected to act more respectably. Therefore, the Gemara is
teaching that a Talmid Chacham may reclaim something that was taken from him
and it is not a Chilul Hashem to do so. This also appears to be the view of
the OR ZARUA cited by the HAGAHOS ASHIRI, who says that both a layperson and
a Talmid Chacham may reclaim something that rightfully belongs to them
through this Halachah, and *both* may even make a Niduy to enforce it (even a
When the Gemara says that one may do justice for himself "when the matter is
clear," it means that he may only put the other person in Niduy if he
outright refuses to pay him, but not if he just delays or procrastinates.
(Rav Gustman, ibid. 15:5, cites and explains a BI'UR HA'GRA in CM 4, who also
understands the Gemara to mean that a Talmid Chacham can grab what is his,
but he suggests that there is a difference between a Talmid Chacham and a
layman. A Talmid Chacham may grab the object even if he could not *prove*
that the object is his at the time that he grabbed it -- as long as he later
finds evidence that can be brought before a court. A layman, however, who
grabs something *before* he has valid evidence that can be brought before a
court, must return what he grabs even if he *later* finds valid evidence that
the object is his.)
QUESTION: The Gemara quotes Rebbi Ila'i who said that if a person sees that
his Yetzer ha'Ra is overcoming him, he should go to a place where nobody
knows him, dress in black clothing, wrap himself in black, and then do what
his heart desires, in order not to be Mechalel Shem Shamayim in public.
How could Rebbi Ila'i give permission to a person to sin?
3) THE DURATION OF A "NIDUY"
(a) RABEINU CHANANEL explains that Rebbi Ila'i is not actually permitting a
person to sin. Rather, he is referring to a person who has an urge to drink
wine while listening to alluring songs in order to make himself merry in a
way that will arouse his Yetzer ha'Ra to want to sin. In such a situation,
Rebbi Ila'i directs to do the merry-making activities, which are not
themselves sins per se, in private and dressed in black, to prevent Chilul
Hashem. Rabeinu Chananel adds that even these actions Rebbi Ila'i does not
permit one to do, but rather Rebbi Ila'i is saying that by going to a foreign
place and wearing black, one's heart will be humbled and his desire to engage
in this merry-making activities will be broken.
(b) RASHI in the name of Rav Hai Ga'on says that Rebbi Ila'i is indeed
referring to doing actual sins of immorality. He is not giving permission to
do them, though. Rather, he is saying that if the would-be sinner goes to a
foreign place and dresses in black, Rav Ila'i guarantees that the person will
become humbled and his urge to sin will leave him.
(c) RASHI in his other explanation says that Rebbi Ila'i's words are to be
taken at face value. If a person feels compelled to sin, he should do so in
private so that he not be Mechalel Shem Shamayim in public. Sinning in
private removes some aspect of the severity of the sin.
(d) The RIF writes that the Halachah does not follow Rebbi Ila'i, but even if
a person has the urge to sin, he is not permitted to go to a far-away place
and dress in black. Rather, he should make every effort to break his urge to
sin, for it is certainly within his ability to refrain from sinning. We rule,
as the Gemara in Berachos (33b) says, that "ha'Kol b'Yedei Shamayim, Chutz
m'Yir'as Shamayim" -- "everything is in the hands of Hashem, except for [a
person's own choice to acquire] fear of Hashem."
The Rif's words imply that he understands Rebbi Ila'i to disagree with the
cardinal principle of free choice, and that is why he says that if a person
is unable to choose to refrain from sinning, he should sin in private and not
be Mechalel Shem Shamayim in public. How can this be? Bechirah, free choice,
is the most fundamental principle of Torah observance! RAV ELCHANAN WASSERMAN
raises this question and leaves it unanswered (KOVETZ MA'AMARIM 7:8 ).
Apparently, the Rif means that there are times when a person's desire is so
strong that he does not have the willpower to overcome it. His level of
Bechirah has fallen to such a realm that choosing not to sin in this
particular sin is not part of his Bechirah (see MICHTAV M'ELIYAHU, I:2:2, p.
113), like an addiction. However, since he cannot know for certain that he is
unable to overcome his urge, he must put forth every effort to overcome the
QUESTION: Reish Lakish was put in Niduy because he pronounced an undeserved
Niduy on someone else. He was told to go to the Nasi who would be able to
annul his Niduy. From the Gemara, it seems that Reish Lakish was able to
remove the Niduy right away and did not have to wait thirty days.
However, the Gemara earlier (16a) quotes Abaye who says that if a person was
put in Niduy for a non-monetary matter, the Niduy must last for at least
thirty days. In addition, the Gemara there cites a Beraisa that says that a
Niduy does not last less than thirty days. How, then, could Reish Lakish have
his Niduy annulled immediately, without waiting for thirty days to pass?
(a) The RIF explains that the Halachah does not follow Abaye's ruling, and a
Niduy, even one that is not for a monetary matter, can be removed immediately
and one does not have to wait thirty days.
How does the Rif understand the Beraisa that says that a Niduy must last for
thirty days? If it is discussing a person who went to Beis Din to have the
Niduy removed, then he should not have to wait thirty days. On the other
hand, if it is discussing a person who did not go to Beis Din to remove the
Niduy, then even after thirty days have passed, he will still be in Niduy
(such as the person whom Rav Yehudah put in Niduy and who died in his state
of Niduy)! The RA'AVAD cited by the Rosh (3:7) explains that the Beraisa is
referring to a person who goes to Beis Din to remove the Niduy. If he wants
to remove the Niduy before thirty days have passed, he must first *appease*
the person whom he sinned against. If he does not appease the person, then he
may still go to Beis Din *after* thirty days and have the Niduy removed. Even
though he did not appease the person, his Niduy can be removed because he has
suffered enough already for his sin. (This is similar to a person who
receives Malkus, who is not punished any more, even though he did not appease
(b) The RITVA says that when the Gemara earlier says that one must wait
thirty days, it means that the Niduy is automatically rescinded after thirty
days if the person does not go to Beis Din earlier to have it removed. But if
the person goes to Beis Din to ask them to remove it, then it can be removed
within thirty days. That is why Reish Lakish was able to remove his Niduy
before thirty days had passed.
(According to this explanation, in the case of the person whom Rav Yehudah
put in Niduy, Rav Yehudah must have specified that the Niduy would last
longer and not be removable after thirty days.)