Thursday, October 08, 2009

Kosher Judges the Entire Time

By: Reb Avi Lebowitz

The Gemora says that when a Sefer Torah is stolen from a city, the judges of that city may serve as judges to convict the thief so long as they would relinquish their portion in the Sefer Torah. However, the Gemora concludes that by a Sefer Torah where they will anyway be benefiting from the reading, it is not sufficient to relinquish their ownership since they will still be considered biased (nogei’ah b’davar) because they are ultimately benefiting from the Sefer being returned to the city.

Tosfos asks that the Gemora holds that for items other than a Sefer Torah, it would help to relinquish their ownership thereby removing their negi’os. Why don’t we require techilaso v’sofo b’kashrus? Meaning, we should require the judges to be kosher not only at the time of the judgment, but even at the time of the crime?

Tosfos answers that the requirement of techilaso v’sofo b’kashrus only applies to a passul in the guf, such as a relative, but doesn’t apply to a monetary passul.

Tosfos in Niddah (50a) makes a distinction between a witness where we have such a requirement, and a judge, where we don’t have such a requirement.

The Ramban explained by the Nemukei Yosef has a very interesting approach to this question. When one testifies on a monetary issue, he is not testifying on the money, rather he is testifying for the owner of the money. While it is true that we require techilaso v’sofo b’kashrus, and therefore one, who was a relative through marriage at the time he witnessed a crime, cannot testify on that crime even if he has divorced, since then and is no longer a relative. The rationale is that at the time one witnesses the crime he must be kosher for testimony. But with a monetary issue, such as a communal item that is stolen, he is considered kosher for testimony for all those that he is not related to, and passul for testimony for the share of all those he is related to, including himself. Therefore, by removing himself from this money, he is no longer testifying for himself, rather, he is testifying for others and for them he was kosher all along to serve as a witness.

The R"I Mi’gash answers that one who is passul as a nogei’a, is not considered a witness at all. He is not like a relative who is considered a passul witness, rather, he is not in the subject of testimony. Therefore, when he removes himself and becomes a valid witness, he is considered techilaso b’kashrus, since that is the first moment that he assumes a status as a witness. This seems to be an exact opposite logic from Tosfos. Tosfos considers the negi’ah of money so mild that we don’t apply the din of techilaso b’kashrus, whereas the R"I Mi’gash considers it so severe that we don’t even consider him to be a witness. [In truth, there is a lot of discussion as to why a nogei’ah is passul. He is only passul to testify l’zechuso, but kosher l’chovaso, so he is not like a regular passul who is passul for chov and zechus. Some say it is a din of karov eitzel atzmo, some say it is a chashash meshaker, and some say he is not an eid at all - the latter seems to be the opinion of the R"I Mi’gash.]