Wednesday, May 21, 2014

when is a beis din not a beis din

The first Mishna in Sanhedrin lists all areas in halacha that require a beis din and discusses how may judges are needed in each type of case.  Among the halachos mentioned in the Mishna is the din that assessing the value of property requires a group of ten people.  This is based on the fact that the word “kohen” appears ten times in the context of the pidyon of property discussed in last week’s parsha. 

Tosfos (Megillah 23b) is bothered by this number, ten.  We have a rule that “ain beis din shakul,” that a court cannot have an even number of members.  How then can a beis din consist of ten people?

The Rashba answers that the case of assessment is different.  Here the Torah specifically designates ten people as the required number of participants in the process.  When it comes to monetary judgments or capital cases, there is no pasuk in the Torah that counts out exactly how many judges are needed.  (See Turei Even who already challenges this assertion based on other sugyos).  Therefore, in those cases we avoid having an even number.  However, here the Torah itself counts off exactly ten people, repeating the term "kohen" ten times, to indicate that is the exact number required.  

The Rashba then adds a “ta’ama l’milsa” that really can stand as its own answer and is a nice lomdus.  The rule of “ain beis din shakul” applies to only to courts.  When ten people gather to assess the value of property, they are not acting as a beis din – there is no judgment of right or wrong, chayav or patur being handed down.  They are not a court, but are just a group of people coming together to arrive at some consensus of value.    

12 comments:

  1. Baruch shekivanti, i was thinking that svara when i was reading it. Its a bes din lkyuma milsa, to create a halachic reality, as in the moon.

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    1. Sorry, but I don't think that's what the Rashba means - not a beis din means not a beis din. Estimating the value of property is just a giluy milsa. You don't need to say more than that.

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    2. Indeed, it is more akin to the idea of a minyan. [A little more than a giluy milsa given the back-and-forth (i.e., ribui achar ribui) re kohanim]

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  2. I understand your point, but then why do you need ten dayanim? Just get an appraiser to estimate it! It seems like the same logic r chaim uses in chalitza and kidushin, that their presense is a kiyuma milsa

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    1. Because the appraisal of one person is just that -- one person's view. The Torah wants more of a consensus of opinion. You need ra'ayos to say something is l'kiyum ha'davar, and just the question of why (especially in R' Chaim's world) is not a ra'aya.

      Minyan is a good analogy in light of the Turei Even's chiddush that there is no din of rubo k'kulo in putting together the 10 opinions to come to a consensus. Same with a minyan: you can't get 6 people together and say rubo k'kulo and count it as a minyan. (Yes, you can be mechaleik.)

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    2. The emphasis on kohain implies some kind of kedusha beyond consensus.

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  3. The Rav gave a different explanation in the name of his the Beis Halevi - normally the din of ain b"d shakul avoids a tie (5 say chayav and 5 say patur), but there's no requirement of bais din noteh in shuma (evaluation), because there are theoretically any number of possibilities for the value, so the additional person anyway might have a different valuation than the original 10, so there's no advantage in not having a b"d shakul. (See Shiurei Harav Sanhedrin end of 5b.) I believe the footnotes on the Ritva there in Megilla quote this answer from the Brisker Rav, but the Rav said it in the name of the Bais Halevi.

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    1. How do you know the din that ain B"D shakul is just to avoid a tie and is not a din in yeshivas B"D? Nafkah minah: if you convene a B"D for the purpose of kabbalas eidus alone, can you have a B"D shakul in that circumstance?

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    2. I hear the question...presumably the Beis Halevi and Brisker Rav would base themselves on the Yad Rama (mentioned below and Tos Yevamos 101a - see below) and their answer only works acc that deiah.

      A similar question to your question would be why do you need a b"d noteh by a maase b"d/kiyum hadavar. The Rav addressed this (Shiurei Harav Sanhedrin 13b) and suggested (based on the Yad Rama there and Tos Yevamos 101a) that it's bc it might come to a case that requires horaa (ie it's reallya din in horaa) or it's a din in b"d and every b"d needs it.

      As far as kabbalas eidus, I would say either as above, or slightly differently (based on the Rav in Kovetz Chiddushei Torah, and Shiurei Harav Sanhedrin 8a and 17b) that Kabbalas Eidus already has the chalos shem masa umatan of the beis din (the Rav there wa answering the Michas Chinuch's question as to why you don't need 71 for kabbalas eidus of ir nidachas.)

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  4. >>>it's a din in b"d and every b"d needs it.

    Doesn;'t this undermine your previous point, as it brings us back to the Rashba's sevara that we are not dealing with a b"d here?

    I don't have the Rav's shiurim on Sanhedrim, but I am familiar with the piece in Koveitz Ch Torah.

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  5. In other words, the Beis Halevi would work according to the Yad Rama and the one deiah in Tosfos, according to the other deiah, yes you probably need to come on to the Rashba's answer.

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