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Sanhedrin 2

SANHEDRIN 2 - The opening Daf of Sanhedrin has been dedicated by Yair Trebitsch of Brooklyn, NY.


OPINIONS: The Mishnah lists many areas of Halachah and the number of judges that each one needs. Divorce, though, is conspicuously absent from the list in the Mishnah. Does this imply that giving a Get does not require a Beis Din at all?
(a) The NODA B'YEHUDAH (Mahadura Tinyana EH 114) quotes the OR ZARU'A who states that the giving of a Get is indeed considered a "Din" (judgement). This status of "Din" requires that a Get be given during the day, and not at night, as Beis Din may convene only during the day. He proves this from the Gemara (Yevamos 104a) which explains that Chalitzah cannot be done at night, because through Chalitzah the woman may demand payment of her Kesuvah from her deceased husband's estate. Certainly, then, the giving of a Get -- which immediately obligates the husband to pay the Kesuvah -- cannot be done at night. This also implies that the giving of a Get must be done with three judges in a Beis Din.

The Noda b'Yehudah at first is perplexed by the Or Zaru'a's ruling, and he asks many questions on it. He concludes, however, in support of the Or Zaru'a's view, and cites proof for it from the words of RASHI in our Mishnah. After Rashi explains the concept of Mi'un (see Background here, #16), Rashi (DH Mi'unin) says that Mi'un must be done with three judges, even though Mi'un itself is an enactment of the Rabanan. Rashi says that the Rabanan enacted their decrees (such as Mi'un) to have similar characteristics to their d'Oraisa counterparts. What is the d'Oraisa counterpart of Mi'un to which Rashi refers? It seems that Rashi is referring to Get, as that is most similar to Mi'un, and Rashi is implying that the giving of a Get needs three judges. The Noda b'Yehudah adds that, logically, if the Mishnah requires three judges for Mi'un, then it makes sense that the giving of a Get, which is mid'Oraisa, needs three judges. However, he later questions his proof from the Mishnah alone, and he remains with the proof from the words of Rashi that a Get needs three judges. This is also the understanding of Rashi according to REBBI AKIVA EIGER (on the Mishnayos).

(b) The CHASAM SOFER (Teshuvos CM 2:65-6) and RASHASH explain that this is not the intention of Rashi. The d'Oraisa law to which Rashi intends to compare Mi'un is *Chalitzah* and not Get. Chalitzah and Mi'un are similar in that they both annul a marriage bond through words alone. RAV YOSEF ENGEL in GILYONEI HA'SHAS adds that the giving of a Get is also different in that the woman does and says nothing. RAV YITZCHAK ISAAC CHAVER agrees and explains the reason for this difference: Both Chalitzah and Mi'un must have a Beis Din as there is no written document which can later be shown as evidence. Therefore, the procedures of Chalitzah and Mi'un must be done in front of a Beis Din. A woman receiving a Get, in contrast, can always produce the Get itself as proof, negating the need for a Beis Din.

HALACHAH: The SHULCHAN ARUCH (EH 133) rules that the Get should be given in front of two witnesses. The Shulchan Aruch writes that the custom is to give a Get in front of ten people (if possible) in order for it to become publicized (see BI'UR HA'GRA there). (Y. Montrose)
QUESTION: The Gemara explains that the Mishnah omits from its list of categories of judgement cases of admissions of money owed, and cases of loans, because those cases do not require three *expert* judges. An "expert" judge is defined as a judge who has received Semichah, from someone in the line of tradition of Semichah, from one of the original Batei Dinim in Eretz Yisrael. This clearly indicates that cases of robbery, which the Mishnah does mention, *do* need to be judged by three expert judges. The Gemara adds further that only expert judges in Eretz Yisrael are empowered to judge cases of penalties, as well as cases of robbery. Since the line of Semichah has been broken and no one qualifies today as an expert judge, how can we judge cases of robbery?


(a) TOSFOS (3a, DH she'Lo) asks this question, pointing out that we find incidents in the Gemara which relate that the Chachamim in Bavel judged cases of robbery, even though they did not have Semichah from a Beis Din in Eretz Yisrael. He answers that perhaps the litigants involved merely took back the items that were stolen from them without Beis Din actually enforcing the law. He also quotes an opinion that maintains that when the Mishnah lists cases of "robbery and damages for bodily harm," it is referring specifically to robbery that occurred as a result of a fight, and not a normal case of theft. Such a case in uncommon and does not require the sanction of Semichah to judge.

(b) The NIMUKEI YOSEF in Bava Kama (84b) discusses the Gemara there which states that the judges in Bavel are able to rule in cases of penalties because they are considered to be acting as the representatives of the judges in Eretz Yisrael who have Semichah. This applies, he explains, only when the case being judged is a common case. Robbery, he suggests, is very common. He proposes that the Gemara here in Sanhedrin prohibits a regular Beis Din (of non-experts) only from judging a case of outright theft (that is, the type of theft defined by the verse, "And he stole the spear from the hand of the Mitzri, and he killed him with his spear" (Shmuel II 23:21), which teaches that "stealing" means brazen, outright theft), because such a case is not common.

(c) However, the RAMBAM (Hilchos Sanhedrin 5:13) rules that we judge all cases of theft, but we do not include the extra penalty of paying double the value of the item (Kefel). The Rambam seems to be saying that our Gemara is excluding non-experts from judging only the aspect of Kefel. This also seems to be the opinion of the SHACH (CM 1:8).

The KEHILOS YAKOV is perplexed by this explanation. Among other questions, he points out that the term used in our Gemara is "Gezeilos." This indicates outright stealing which never requires a payment of Kefel, as everyone knows that this person stole the object and he will not deny it if brought to trial (the obligation to pay Kefel is imposed only when there is an original denial of the claim). The term associated with Kefel is "Geneivah," stealing in secret. Hence, the Gemara cannot be referring to the payment of Kefel when it says that non-experts may not judge "Gezeilos."

(d) The KEHILOS YAKOV explains that when the stolen object still exists, the owner may claim it in Beis Din just as he may claim money that fell accidentally into his neighbor's home. The Gemara states only that we do not judge uncommon cases of "Gezeilah," and it is not including a case in which a person says that someone else owes him a certain object.

Alternatively, one may claim his money based on the law of damages, Nezikin, as the "thief" essentially took the money out of the owner's reach, which is like damaging the object in that it renders the object unusable. The Mishnah, accordingly, is teaching us that one cannot claim (in a Beis Din of non-experts) his money through the claim of stealing, but he *can* claim it through the claim of Nezikin. The Kehilos Yakov says that the claim that is used actually makes a Halachic difference. For example, if someone stole an object and then told the owner to take it back, the thief no longer has the status of a damager, a Mazik. In such a case, if the item was damaged before the owner was able to take it back, the thief has no liability for it (from the laws of Nezikin; he cannot be judged with the laws of robbery, since non-experts cannot judge the laws of robbery).


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