Monday, February 22, 2010

Motzi Sheim Ra

The Gemora discusses what the dispute between the Sages and Rabbi Meir about the number of judges for a case of motzi sheim ra is actually about. Ulla and Rava explain that the dispute is not an inherent dispute of how many judges are needed for this case, but rather depends on an external concern that the Sages have. Ulla says the Sages are concerned with la’az – a rumor, while Rava says that the Sages are concerned with the honor of the originally convened court.

Rashi explains that according to both of these explanations, the issue brought before the court is the husband’s demand to void the wife’s kesuvah, since she was not a virgin at the time of marriage. Rashi explains that the husband is believed to void the kesuvah, as the Gemora in Kesuvos (10a) states, since the Sages, who instituted kesuvah, assumed that a man would not lie about this, since he stands to lose the money spent on his wedding meal.

Ulla is explaining that the Sages are concerned that when this case is brought to court, although the husband is not claiming infidelity, witnesses to infidelity may indeed hear of the case and come forward, transforming this to a capital case. We therefore begin with a court of twenty-three, to account for that possibility.

Rava says the case is where the husband did claim infidelity, but wasn’t able to produce witnesses to prove it. When the court then dispersed, the husband requested that the remaining judges void the kesuvah. The Sages are concerned that adjudicating that with the partial court that remains would be disrespectful the original judges, and therefore they must reconvene.

The Gemora cites a braisa, which states that if t’va’o mamon – he claimed from him money, only three judges are needed, but if t’vao nefashos – he claimed from him a capital crime, twenty-three are needed. According to Rava, the first clause is a case where there was no claim of capital infidelity, and therefore there is no issue of the judges’ honor, leaving a monetary case for three judges. However, according to Ulla, even if the case began as monetary, we should be concerned about witnesses arriving later.

Rava answers that the braisa is a case where the husband produced witnesses that testified to her infidelity, but these were fully refuted by the father’s witnesses, who put the original witnesses in a different place at the time of their testimony. The husband is now liable 100 sela to the father for his false claim. The braisa is stating that to adjudicate the father’s monetary claim, only three witnesses are necessary. According to Rashi, the Gemora is introducing the aspect of the father claiming his monetary damages only at this point in the Gemora. All earlier discussions of monetary judgment were purely of the husband’s claim to void the kesuvah.

Tosfos (8a Motzi) cites Rabbeinu Tam, who disagrees with Rashi’s reading of the Gemora’s first two answers. Rabbeinu Tam challenges Rashi’s reading based on the following points:
1. Motzi sheim ra is listed in the Mishna along with fines paid by a rapist and a seducer, indicating that it similarly is a case of a fine. The husband’s voiding the kesuvah does not fit this pattern, as it is purely a monetary case.
2. Generally, motzi sheim ra is used to refer to the money paid by the husband when his claim is found to be false.
3. The three judges required in the Mishna are experts. However, cases of voiding a kesuvah are routinely judged by non expert judges, outside of Eretz Yisroel, indicating that the Mishna is not discussing such a case.
4. Rashi’s reading translates the la’az of Ulla as the witnesses hearing about the case and coming forward. Generally, la’az has a connotation of being a false rumor, not simply news spreading.
5. In Rava’s explanation, the husband says to the remaining judges, “At least judge the monetary aspect.” According to Rashi, all the husband wants to do is not have to pay the kesuvah, not collect any money. As long as the wife is not claiming it, he has no urgency to adjudicate the matter.
6. The Gemora’s explanation of the braisa according to Rava’s opinion is that the first clause is referring to a husband who is only adjudicating the kesuvah. The braisa says tva’o mamon – if he claimed from him money. According to Rashi, it should say he claimed from her (the wife), and in fact, the husband is not claiming anything, but simply refusing to pay.
7. Finally, when Rava explains the braisa according to Ulla’s opinion, he explains that the second clause of the braisa is stating that at the outset of a husband’s claim – at which point, it may lead to a capital case – twenty-three judges are needed. The simple reading of the Gemora, however, is that it is a different circumstance of the same case as the first clause, not a new case.
8. Rabbeinu Peretz points out that Rabbi Meir, one the opinions discussed, holds that a husband is obligated from the Torah to pay a kesuvah. The Gemora is Kesuvos that states that husband is believed to void his wife’s kesuvah is based on the assumption that the obligation of kesuvah is purely Rabbinic. Therefore, Rabbi Meir may not even agree that a husband may void the kesuvah, so he cannot be disputing how many judges are needed to deal with such a claim.

Instead, Rabbeinu Tam says that the whole discussion of Motzi sheim ra is of the 100 sela the husband must pay when his claim is disproven. Ulla says the case is when the husband brought witnesses, who were contradicted by the father’s witnesses.

Rabbeinu Tam says that although the witnesses were not refuted (by being placed at a different place at the time of testimony), but simply contradicted in the details of their testimony, the husband still must pay, since his claim was dismissed by the court. (See Tosfos 8b v’haivi for further discussion of this position).

If the father’s witnesses refuted the husbands’ by putting them in a different place at the time of their testimony, we assume no further witnesses will come forward. However, since they only contradicted them, other witnesses may still come. The Sages are concerned that if the twenty-three judges are disbanded, and then a new court of twenty-three will be necessary if new witnesses come, it will lead to la’az - false rumors that the first court was incompetent and replace with the new court. We therefore leave the first court in place. Rabbi Meir is not concerned about such rumors.

Rava says that the case is where the father produced witnesses to refute the husband’s witnesses. Since the husband’s witnesses were trying to kill the wife, they are liable to the same punishment as aidim zomemim – conspiring witnesses. However, the case of the Mishna is where the court of twenty-three dispersed, due to some external event (fear of the government, or another urgent matter they needed to attend to). At that point, the father requested that the remaining judges adjudicate his monetary claim. Rabbi Meir allows this, but the Sages say that this will disrespect the original twenty-three, and they must therefore be reconvened.

Rabbeinu Tam’s reading of the Gemora addresses all of his issues with Rashi’s:
1-3: As it usually does, motzi sheim ra in the Mishna refers to the money paid by the husband to the father, which is a fine. It is therefore listed with rape and seduction, and requires three expert judges.
4: The la’az is the false rumor people may spread about the original court.
5: The request to “At least judge the monetary aspect” is made by the father, who is trying to collect money from the husband.
6: The father is claiming from him (the husband) the money of the fine of motzi sheim ra.
7: The braisa’s first clause is where the father’s witnesses refuted the husband’s before the verdict, and the husband’s false witnesses are therefore not punished by death. However, the second clause is a similar case, but instead of the witnesses being refuted, they are contradicted, leaving the possibility that new witnesses will come, and establish infidelity.
8: Since we are not discussing the kesuvah, whether it is Rabbinic or from the Torah is irrelevant.


Birchas Zimun

The Gemora mentions that zimun needs at least three people. The Gemora in Brachos (47a) derives the concept of zimun from the verses of “gadlu lashem iti”... and “ki shem Hashem ekra havu godel leilokeinu,” and from there, we also learn that a minimum of three is required (since the singular is speaking to the plural and together they equal three).

The person that received the honor of bentching starts off by saying “rabbosai nivarech” (some have the minhag to say it in yiddish “rabbosai mir velen bentchin”), and everyone else responds with “y’hi sheim Hashem mivorach mei’atah v’ad olam.” This originated with the Zohar. (Magen Avraham).

Immediately after that, he continues with “nivarech she’achalnu m’shelo” and the rest answer “baruch she’achalnu m’shelo uv’tuvo chayinu.” After that, he too repeats “baruch she’achalnu m’shelo uv’tuvo chayinu” (Orach Chaim 192:1). There is a machlokes Achronim if the other people bentching should answer amen, the Mishna Berurah writes that the minhag is not to answer.

If there are ten or more people that are bentching together then we add Elokeinu (nivarech Elokeinu, baruch Elokeinu). If he forgot to say Elokeinu and the others didn’t yet respond, then he may say it again properly; once they answered, however, he does not repeat it (ibid).