Who Pays for the Clock?

By: Meoros HaDaf HaYomi

The Forgers’ Scheme

A person who wants to show a specimen of his signature to a Beis Din should not sign at the bottom of a blank page. A few years ago the Torah community in Yerushalayim was outraged when a claim was presented to a Beis Din against a respected Torah scholar. The claimant produced a promissory note for a huge amount signed by the supposed debtor and the latter certified his signature but denied borrowing the money. The dayanim appointed a special investigative team who revealed that the claimant belonged to a group of swindlers who had managed to misuse the defendant’s signature. They had discovered that he was accustomed to sign his name in the middle of the front page of every book in his large library and all they had to do was just borrow one of his books, remove the blank page and compose a promissory note above the signature.

Indeed, in our sugya Abaye recommends that anyone required to demonstrate his signature should do so at the top of a page to prevent anyone from adding a fraudulent text above it. Commenting on our sugya, the Ritva clarifies that Abaye’s warning stems from an understanding of people and foreseeing their spontaneous reaction at unexpected times. Abaye’s suspicion, after all, is actually unfounded as a person may claim he has paid a debt, even if a signed promissory note is produced against him, and he is believed unless the note is signed by witnesses. The Ritva explains, though, that Abaye foresaw a typical person’s behavior: By the nature of things, when someone is faced with a false document, his spontaneous reaction is to deny there having been any loan and subsequently he is not believed to assert that he paid the debt. The best thing to do, then, is to prevent any untoward use of one’s signature (Bava Basra 6a, Kesubos 88a, and see Shulchan „Aruch, C.M. 69:2, and the Shach, ibid, S.K. 10).

A claim based on a promissory note with no indicated amount: HaGaon Rav Mordechai Yafeh, author of the Levushim, cites an unusual event in his Levush Ir Shushan (section 48). About 420 years ago a person claimed to a Beis Din that another owed him a certain sum and, as proof, presented a blank promissory note signed by the supposed debtor, with no indicated amount. “The debtor,” he asserted, “gave me this note because he trusted me to fill in the amount he owes me.” The claimant added that were he a liar, he could have written in any sum he wanted and therefore the Beis Din should believe his demand. Still, the “Levush” immediately rejected the claim as “even a fool” would never give another a signed blank promissory note and we must assume that the defendant had lost the note, which was later found by the claimant. Concluding with a sharp warning, he declares that anyone giving another such a blank note is “merely a witless person willing to believe anyone, or insane and defined as a shotah, whose actions have no validity.”

Claiming money with a blank check: Nonetheless, the situation is different today and the above topic is relevant as people do give others signed checks with no specified amount, such as when paying a sum to be determined according to the future rate of exchange of some foreign currency. The practice is most common when borrowing from a free loan fund if the loan is repaid in installments and linked to a foreign currency. Moreover, most Gemachim lending medical apparatus or other equipment require a blank signed check. Indeed, what is the halachic validity of a monetary claim based on a signed check lacking any indicated amount?

Halachic authorities assert that if people are accustomed to give others such “open” checks, the holder of the check is believed to demand any amount. This regulation is also supported by Paragraph 19a of the national ordinance for promissory notes, which states that if a note lacks an essential detail, the holder may fill in the detail as he wishes. It follows, then, that the holder is believed to present a claim against the signer of a check missing a specified amount (see Mishpatecha LeYa‟akov, I, 22:6).

Who should Pay
for a Clock for the Teacher?

Our Mishna states the regulation that the person benefiting from a document must defray the costs of its being written. A borrower pays the expenses of drawing up a promissory note as he benefits from the loan and a purchaser defrays the costs of a bill of sale or deed, which is delivered to him as proof of his purchase and protects his rights. The author of Meshech Chochmah (at the end of Parashas Behar) supports this halachah with a passage from Yirmiyahu (32:10), recounting that the prophet bought a field from his cousin Chanamel ben Shalum, attesting “And I wrote the document and signed” even though the seller is generally assumed to write the bill of sale. The verse indicates, then, that Yirmiyahu paid the scribe, as stated in our Mishna.

An obligation to contribute to charity used as bail: The scope of the above halachah is seen from a question asked of the Rosh by his son Rabbi Yechiel. A certain Beis Din suspected that Shimon would not appear for a Din Torah scheduled for a particular time and commanded him to submit a guarantee. Shimon’s friend then signed a document before the Beis Din that if Shimon failed to appear as demanded, he would donate 1,000 coins to charity. The question arose, though, as to who should pay the costs of writing the document: Shimon, his litigant, or the guarantor. At first, the Rosh ruled that Shimon’s litigant must pay as the guarantee is to his benefit. He later discovered, though, that there was no other litigant but that “Shimon had sinned and the community wanted to imprison him till his punishment will be decided.” The Rosh then changed his decision and ruled that Shimon, as the one benefiting from the guarantee, must pay the price of the writing (Responsa of the Rosh, Kelal 13:2-3).

About 500 years ago an argument arose between a teacher and a certain pupil’s parent. The teacher was hired to instruct the child for a few hours each day and needed a clock in the room to know when the session ended (pocket watches had not yet been invented). The father claimed that the teacher must pay for the clock but the teacher insisted that the father bear the expense. Rabbi Yisrael Isserlin, author of Terumas HaDeshen, ruled that the father should buy the clock, but his student, Rabbi Yisrael bar Rav Chayim of Bruna, questioned the decision: Apparently, just as one who hires a tailor to sew a garment need not buy him a needle, and just as one who hires a scribe need not provide him with a pen as all artisans are hired with their tools, the teacher should pay for the clock required for his work.

The difference between teachers and tailors: Rav Yisrael of Bruna clarified his mentor’s ruling by explaining the difference between a teache r’s clock and a tailo r’s needle. A tailor without a needle is no tailor and a penless scribe is no scribe, as they cannot practice their trades without such tools. A teacher needs no clock for his work, as he only requires the ability to speak and explain. A clock is merely meant to tell him when to finish his task. We cannot force him to pay for it as he can claim that he can estimate the elapse of time without it. If the father refuses to believe him, says Rav Yisrael of Bruna, “Buy a clock and I’ll teach by it.”

The Collection of Legal Costs

In civil courts the losing party is charged for legal expenses, generally including the court costs and the winning party’s lawye r’s fees, etc. How does the Torah view such costs and how does a Beis Din act according to halachah?

Our sugya explains that the secretaries of a Beis Din would record the litigants’ claims, as Rashbam comments, “so that they would not change their claims” (s.v. Shitrei ta’anta) and our Mishna rules that the expenses involved in writing the records must be shared equally by both litigants. The Ribash deducts from there (Responsa, 222) that the general costs of a Beis Din should also be equally shared by the litigants rather than be borne exclusively by the losing party. Both the claimant and defendant need the services of the Beis Din and should divide the expenses entailed by their case.

An uncooperative defendant pays the extra costs he causes: Still, the Ribash emphasizes that if the defendant is uncooperative and causes the claimant to suffer needless expenses, such as the issuance of a “notice of refusal” (kesav seiruv), he is regarded as guilty of causing damage by negligence and must defray such expenses. Moreover, if the Beis Din discovers that a claim is baseless and only intended to hassle the defendant, the latter is exempt from all court costs and they are then borne exclusively by the claimant (Yeshuos Yisrael by the Gaon of Kutna, C.M. 14, in Ein Mishpat, s.k.14). Nonetheless, we have yet to clarify if in such cases a defendant may also demand the claimant to defray his own costs, such as payment to a rabbinical court advocate (to’en rabani) or the like. Halachic authorities indicate that the claimant should not be so charged as such expenses are not unavoidable and a defendant may represent himself. Hiring a to’en rabani is optional and the costs involved are not considered damage caused by the claimant.

A practical implication of the above discussion is that if a Beis Din allows a person to present a claim at a civil court and he wins his case, resulting in the defendant’s obligation to pay for the claimant’s lawyer, then the claimant must return to Beis Din to ask whether he may collect that sum from the defendant.

The Tree That Wasn’t

HaGaon Rav Aharon Kotler zt”l, Rosh Yeshivah of Lakewood, was known to be extremely heedful to guard the truth. Once he was shown an advertisement with a sketch of the Yeshivah including the surrounding trees. He counted the trees, though, and found that three had been drawn instead of the actual two and not wanting to lend a hand to the misrepresentation, banned the picture. “It’s a falsification,” he said, “and the Torah is a Torah of truth and any method to maintain it must rely on the strict truth.”

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Shavyah A'nafshei - Kiddushin 65

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The Mishna stated: If a man said to a woman, “I betrothed you,” and she said, “You did not betroth me,” he is forbidden to marry her relatives, but she is permitted to marry his relatives.

Rashi explains the man is forbidden to marry her relatives because of the principle of “shavya anafshei chaticha d’issura” i.e. she has made for herself a forbidden piece; she is compelled to abide by her declaration.

There are several explanations to this: The Ketzos Hachoshen explains that this is based upon “believability.” A person is believed with regards to himself, when it is disadvantageous to him. He cites a Rashi on our Daf that this is comparable to the halachah of “the admission of the litigant is like the testimony of a hundred witnesses.”

The Terumas Hakeri says that this is not because he is believed, but rather, it is based upon the following logic: Since he knows that something is forbidden to him, it is incumbent upon him to distance himself from this. Accordingly, Beis Din is obligated to ensure that he does not violate any prohibition that according to his words he knows to be forbidden, for Beis Din acts with him in the same manner that he acts with himself.

The Shaar Hamelech quotes the Mahari Assad that the reason why one can render the object forbidden with the principle of “shavya a’nafshei” is not because he is believed in respect to himself; rather, it is because it is regarded as an oath. The witness is taking a vow forbidding himself from this particular object.

The Maharit writes that this cannot be the reason, for if so, he should be able to annul this prohibition in the same manner that one can have his oath annulled!

The Noda Beyehudah writes that “shavya a’nafshei” cannot function like an oath because it is obvious that if one says on a Monday that “today is Shabbos,” it will not be forbidden for him to perform any labor. This is because there is no believability in this case. But, if it would be like an oath, it should be forbidden for him like any other oath!

The Chasam Sofer writes that there would be the following difference in halachah based upon the different reasons: If someone would tell Beis Din something that he knows to be false. If “shavya a’nafshei” is because he is believed in respect to himself, here, where he knows it to be false, he would be able to “transgress” his words in private. However, if it is based upon an oath, it will still be forbidden to him.

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Compliance with the Rabbis - Gittin 73

Rabbah and Rava did not agree with Rav Huna (and they hold that if a deathly ill person gives a get and recovers, it is a valid get), as they were afraid it might lead people to think that a get could be given after death.

The Gemora asks: Since the get is void in accordance with Biblical law, how can we allow a married woman, owing to the authority of Beis Din, to marry anyone in the world?

The Gemora answers: Yes! Anyone who betroths a woman does so in implicit compliance with the ordinances of the Rabbis, and the Rabbis have in this case retroactively revoked the original betrothal. (They accomplished this by transforming retroactively the money of the betrothal given to the woman at her first marriage into an ordinary gift. Since the hefker of money comes within the authority of Beis Din, they are thus fully empowered to cancel the original betrothal, and the divorcee assumes, in consequence, the status of an unmarried woman who is permitted to marry any stranger.)

Ravina said to Rav Ashi: This is a satisfactory explanation where betrothal was effected by means of money; what, however, can be said in a case where betrothal was effected by cohabitation?

Rav Ashi replied: The Rabbis have assigned to such cohabitation the character of a promiscuous cohabitation. (From the moment a divorce is annulled in such a manner, the cohabitation, it was ordained, must assume retroactively the character of a promiscuous cohabitation, and since her original betrothal is thus invalidated, the woman resumes the status of the unmarried and is free to marry whomsoever she desires.)

The Rashba asks: Why don’t we apply this rule in the case in Yevamos where a man fell into water that has no end? There, we rule that the wife will remain an agunah because the husband might have exited the water from a place that was not visible to us. Why don’t we say that the Chachamim revoked the original kiddushin from him, and she may remarry another man?

He answers: It is only applicable in certain cases. If, for example, there was a get, except that it was written with a condition, and an uncertainty arose regarding the condition, the Chachamim can revoke his kiddushin. Another example where the Chachamim would revoke the kiddushin is where one witness is testifying on the woman’s behalf (that her husband died). However, when there is no get and no witness, the Chachamim did not go ahead and revoke a kiddushin.

The Gemora in Yevamos (110a) records an incident in Narsh where a girl was married off when she was a minor. When she became an adult, they sat her by a Chupah (wedding canopy, in order to validate the first marriage), and someone else snatched her away before the “wedding” (and made her his wife)! Rav Bruna and Rav Chananel, students of Rav, were present when this happened, and they did not even require her to have a get from the second “husband” (as his kiddushin is invalid).

Rav Ashi explains that being that the wife snatcher acted improperly, the Chachamim therefore acted improperly with him and removed the validity of his kiddushin. (This is following the opinion of Rav, who maintains that for the marriage of a minor to become valid, she must have marital relations with her husband when she becomes an adult, and if not the marriage is invalid.)

The Chachamim were empowered to remove the kiddushin in this case because he acted improperly in the beginning of the kiddushin.

Reb Yosef Engel in Gilyonei Hashas cites a Teshuvos haRashba who writes that we only apply the principle of “Since he acted improperly, the Chachamim acted improperly with him” in places that are specifically mentioned in Chazal. The Sages did not annul the marriage in every case where one acts with trickery. This can be proven from a Gemora in Kiddushin (58b). The Gemora states: One who instructs his fellow to marry a woman for him (as an agent), and the agent goes ahead and marries her for himself, she is married to the second one. We do not say that since he acted improperly, the Chachamim invalidated his marriage.

This can also be proven from the fact that even if one betroths a woman who is subject to a negative prohibition, kiddushin, nevertheless takes effect. This is also true if someone marries a woman who is a secondary ervah to him. Obviously, sometimes this principle is applied, and sometimes, it isn’t.

The Chasam Sofer asks: Why, in these cases (where he betroths a woman subject to a negative prohibition, or a secondary ervah) do we not say that the Chachamim revoked his kiddushin?

He answers, based upon Tosfos, who says that it is for this reason that the groom tells the bride that he is betrothing her according to the laws of Moshe and all of Israel. The kiddushin is only effective if Israel, i.e. the Chachamim consent to the marriage. However, one who is violating the Torah, or the sages, is obviously not marrying with such a stipulation and therefore, the marriage can still be effective. [According to the Chasam Sofer, not every marriage has that stipulation attached to it.]

The Shiltei Giborim states that this principle applies by a get as well. Anyone who divorces a woman does so in implicit compliance with the ordinances of the Rabbis, and the Rabbis may, in certain cases retroactively revoke the divorce.

Based upon this, the Taamei Yaakov answers the following famous question on Rabbeinu Gershom’s decree: Since the Torah expressly permits one to divorce his wife without her consent, how can this be banned? The Taz lais down a rule that the Rabbis do not have the authority to prohibit something which is explicitly permitted by the Torah!?

He answers that since the Rabbis forbid giving a get in such a manner, it is automatically nullified, for one’s betrothal and divorce can only be effective if he is compliance with the Rabbis’ ordinances. In these cases, the Rabbis did not consent to such a get.

[I am uncertain as to how this answers the question. Granted, the get will be ineffective since it is prohibited to give a get without the woman’s consent; but how did the Rabbis have the authority to issue such a decree? If the Torah expressly permits it, they cannot forbid it!?]

Path to Sanctity

The Gemora states: Whoever betroths a woman in Jewish marriage, betroths her subject to the will of the Rabbis.

The baalei mussar say: One who wants to sanctify and purify himself in his service to his Creator, should do so subject to the will of the Rabbis. He should go to the Rabbis and the righteous people of his generation, and they shall guide him in his quest. One who tries to forge a path himself is apt to stumble and make mistakes; nothing substantive will result from it.

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From their Mouth's and not from their Writings

The Gemora (Gittin 71) states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

Reb Akiva Eiger discusses some other practical applications for this principle.

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Decree when the reason no longer applies

Tosfos (Daf Yomi: Gittin 18a) asks: One of the reasons mentioned for the decree that the date should be recorded on a get is because perhaps the husband will want to save his niece from capital punishment if she committed adultery. Nowadays, Tosfos asks, when we do not execute anyone, why is there still a necessity to write the date in the get?

The Avnei Neizer (E”H: 188) cites a challenge to Tosfos’ question: Although the reason may not be applicable, the sages’ decree should still apply unless a greater Beis Din comes and nullifies it!

He answers that Tosfos understood that the initial decree was only established in a time and a place where they administered capital punishment. Accordingly, if nowadays, it is universal that we do not execute anyone, we are not nullifying the decree; rather, the enactment was never instituted for such cases. This is why it is not necessary for another Beis Din to annul the initial decree.

This would be comparable to that which Tosfos in Beitzah (6a) states: Tosfos writes that a matter that was only prohibited because of a specific concern will be permitted when the concern no longer exists. This principle justifies why we do not have to be concerned for water that was exposed at night and one is allowed to drink from it because in modern times snakes are not frequent in our homes.

The Gemora (Beitzah 30a) cites a Mishna that states that one is not allowed to clap or dance on Shabbos or Yom Tov. Rashi explains that the reason that one is prohibited from performing any of these actions is because they can lead to one fixing musical instruments. Tosfos states that this prohibition only applied in those days when they were experts in fashioning musical instruments. Presently, however, the decree does not apply, because we do not know how to fashion these instruments.

The Rema (O.C. 339:3) rules in accordance with Tosfos. Teshuvos HaRema (125) writes that there was an incident where a marriage occurred on Friday night and the people were not concerned that the groom would write the kesuvah, marriage contract on Shabbos. The reason for this permit was because it is not common in our times for the groom to write his own kesuvah.

Rav Shlomo Zalman Auerbach zt”l poses an interesting question. The halacha is that presently we do not have a legally qualified reshus harabim and for this reason one would be permitted to walk in a public thoroughfare on Shabbos while wearing various ornaments. According to this ruling, then, why are we still forbidden to blow shofar, shake a lulav and read the Megillah. Regarding these mitzvos there is a concern that one may come to carry the shofar, lulav or Megillah in the reshus harabim. Yet, the halachah is that our public thoroughfares are not deemed to be a legal reshus harabim, so we should no longer have these concerns.

Reb Shlomo Zalman also questions the opinion of the Raavad who maintains that muktzah is forbidden on account of a rabbinical decree that one should not come to carry into a reshus harabim. Why should this decree still apply when there is no longer a legally qualified reshus harabim?

Rav Shlomo Zalman explains that Tosfos is only referring to musical instruments. In previous times, everyone was capable of playing and repairing musical instruments. For this reason there was a decree prohibiting clapping and dancing. In our times, however, only a minority of people is capable of fixing musical instruments and because it is uncommon for people to fix musical instruments, there is no necessity for the decree against clapping and dancing.

Rabbah (Beitzah 5a) maintained that Rabban Yochanan Ben Zakkai rescinded the prohibition against accepting witnesses after the offering of the afternoon tamid sacrifice, and subsequently an egg that was laid on the first day of Rosh HaShanah was permitted to be eaten on the second day. Rav Yosef challenged Rabbah’s ruling because if the Chachamim assembled to render a ruling, they would need to reassemble to revoke their ruling. Rav Yosef added that one could not say that Rabban Yochanan Ben Zakkai convened with his colleagues to permit one to eat the egg, because their decision was only to accept the testimony after the offering of the afternoon tamid sacrifice, but they never took a vote on permitting the egg to be eaten.

Tosfos HaRosh in Avodah Zara (2a) rules that one is permitted to conduct business with gentiles during their holiday season as initially this was prohibited because gentiles in the past worshipped idols and now that gentiles do not worship idols, the decree is irrelevant.

Tosfos in Brachos (53b) writes that people are not scrupulous regarding mayim acharonim, washing the hands at the end of a meal, because we no longer have melach sedomis, salt from Sodom. Tosfos notes that although the practice of washing mayim achronmim was instituted by an assembly of a Bais Din, this institution was not unanimously accepted and thus this institution is not categorized as a ruling that is irrevocable unless a Bais Din reassembles and rescinds the ruling.

Reb Shlomo Kluger in Elef Lecho Shlomo (116) rules that one is permitted to learn by candlelight on Shabbos and we are not concerned that he may come to move the wick which will cause the fire to burn brighter, thus violating a biblical prohibition, because one does not need to move the wick of our present-day candles.

Teshuvos HaRosh (klal 2:8) rules that one is permitted to tie strings of linen on a four-cornered garment that is made from linen to fulfill the mitzvah of tzitzis and we are not concerned that one might tie strings of wool to the garment. The reason for this ruling is because all know that techeiles, a blue-dyed wool used for tzitzis, is not prevalent, thus there is no permit to tie strings of wool to a linen garment.

Teshuvos HaRosh writes that if is common knowledge why a decree was instituted and the rationale no longer applies, then the decree is considered irrelevant. Teshuvos HaRosh draws a contrast of this supposition to the case in our Gemora regarding the egg that was laid on the first day of Rosh HaShanah, because some people are not aware whey the egg was initially prohibited, nor do they understand why the reason to prohibit no longer applies.

Shearim Mitzuyanim B’Halachah rules that if necessary, one is permitted to take medicine on Shabbos. Taking medicine on Shabbos was initially forbidden as there was a concern that one would violate the prohibition of grinding. Now that medicine is prepared by the manufacturer and most people are not even aware of the process involved in manufacturing the medicine, there is no longer a concern that one who wishes to take medicine will violate the Shabbos prohibition of grinding herbs or spices.

[END]

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INFALLIBILITY

The Gemora cites a braisa: Rabbi Elozar bar Tzadok said: I testified once in my life regarding the genealogical status of a person, and through that testimony, I elevated a slave to the genealogically qualified.

The Gemora asks: Do you think that he actually elevated a slave to the genealogically qualified? Hashem does not even allow the animal of a righteous person to transgress (referring to the animal of Rabbi Pinchas of Yair, who would not eat untithed produce); certainly Hashem would not bring a stumbling block to the righteous person himself!

The Gemora answers: Rather, Rabbi Elozar bar Tzadok wanted to elevate a slave to the genealogically qualified, but he realized at the end that he was in fact a slave. The Gemora explains the incident: Rabbi Elozar was in the city of Rabbi Yosi when he observed them giving terumah to a slave in the granary. He went and testified regarding his lineage in the city of Rabbi Yehudah. (He then realized that he could not testify regarding his genealogy, for even though, in Rabbi Yehudah’s locale, they would elevate one’s status on the evidence of having received a share of terumah, that was only because they didn’t give a slave terumah when he wasn’t in the presence of the master, whereas, in Rabbi Yosi’s locale, they did give terumah to a slave in absence of the master, but they didn’t testify regarding his genealogy based on that evidence.)

Tosfos s.v. salka da’atach states that the text of our Gemora should not have the challenge from the fact that Hashem does not even allow the animal of a righteous person to transgress; certainly Hashem would not bring a stumbling block to the righteous person himself. This principle is applicable only to the inadvertent consumption of forbidden foods. (The reason for this is because it is degrading for the righteous to eat forbidden foods.) Here, the scholar did not violate any prohibition by elevating the status of the slave; this would not be included in the protection that Hashem provides for the scholars.

Reb Dov Zupnik from Kollel Iyun Hadaf discusses this Tosfos at length.
THE DAFYOMI DISCUSSION LIST
brought to you by Kollel Iyun Hadaf of Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld

Tzvi Ben Gedalyahu asked:

I understand that a chacham can decide if the Bet Din has erred. If he knows it erred but nevertheless goes by its decision to allow something forbidden, he is guilty. But in the Torah we are commanded that we must follow decisions, even if we are told "left is right and right is left". In Horayot, the chacham is deciding whether to follow the bet din or not, thereby putting himself above the bet din. Please clarify.
Shvua tov--Tzvi

Tzvi Ben Gedalyahu, Bet Yatir Israel

Shmuel K. asked:

Our Mishna states that if the individual knew the the Psak of Bet Din was wrong, and yet follows their Psak, he is liable. Yet we see many cases in Shas that individuals are forced to follow the majority, Rov, and do things that they feel is Asur. In these cases the individual knew the Bet Din was wrong, and yet we see it is a Mitzvah to follow them. I.e.. 1 - Bava Metziah 59B, R. Eliezer Ben Horkanis, and the oven 2 - Rosh Hashana 25B, and the debate as to which day is Yom Kippur. Are we to say that our Mishna is referring to a case, where the individual did not share his information with the Bet Din. But had he shared his information, and they don't accept it. Then he is obligated to follow the Bet Din, even though it is against his beliefs?

Thank You,
Shmuel Katz

Aurel Littmann asked:

How could beis din err? Did they not have daas torah that would have prevented them from erring? The donkey of a rabbi would not eat food that was not tithed...certainly these rabbis? Many stories are said of R.Moshe how he did not err in permitting agunos....where it was easy to err as people got separated during the war...but he had siyato d'shmayo.

What is the halacha of lo sosuru min... where if the rabbis tell you something that you may not fully understand, still follow them...in the first mishnah in horeyos ... if one suspects that the beis din paskened wrong he should not follow them!? Does the first mishnah show that we don't have a concept of papal infalibility? But, again...when is one to follow daas torah?

The Kollel replies:

(a) Let us first refer to the words of the RAMBAN in Sefer ha'mitzvos la'Rambam, Shoresh ha'Rishon (p. 24 in Frankel edition):

"And one who transgresses the words of the Sanhedrin of his generation, and relies on his own opinion, has transgressed this Lo Saa'seh (of Lo Sasur) and this Aseh. Even if Beis Din is divided on the issue, we follow the majority as it is said in Sanhedrin 88.... And one who transgresses and relies on his own opinion is a Zaken Mamrei... and this is what is said in the verse regarding one who acts 'b'Zadon' not to heed the Kohen. For the Written Torah which was given to us by Moshe Rabeinu A'H clearly will not be understood in the same way by each person, and therefore Hashem decreed that we follow the Sanhedrin in whatever they say, whether they have received the interpretation through transmission or whether they interpret the Torah as they understand it, for the Torah was given according to the understanding of the Sanhedrin.

"And this is what is written in the Sifri: 'Even if they tell you regarding right that it is left.' For that is the Mitzvah of the Giver of the Torah -- that a dissenter should not say, 'I shall permit this to myself for I know clearly that they are mistaken,' for we will reply to him, 'It is this that you are commanded (i.e. to follow the Torah according to the Sanhedrin's interpretation), as Rebbi Yehoshua conducted himself with Raban Gamliel on the Yom Kipur of the latter's calculation, as related in the Gemara in Rosh Hashanah.

"However, there is a contingency, as can be seen in the Gemara in Horayos 2, which is that if there was in the time of the Sanhedrin a scholar who had reached the level of Hora'ah and the Sanhedrin ruled to allow an Isur, and this scholar thinks that they have made a mistake, he may not listen to them and be lenient with himself, but rather he should observe the stringency with regard to his own conduct, and surely if he was actually a member of the Sanhedrin... he must come before them and voice his objections, and if they all agreed to dismiss his objection and his reasoning, he must then follow their ruling."

(b) We do not believe in infallibility, nor do we believe in the pope. Tosfos throughout Shas (Shabbos 12b, Gitin 7a, Yevamos 99b, etc.) says in the name of Rabeinu Tam that "Ein ha'Kadosh Baruch Hu Mevi Takalah Al Yedeihem" applies only to where the Chacham eats something Asur, but not with regard to a ruling that a Chacham makes for someone else or with regard to a transgression that does not involve eating. (Everywhere the Gemara seems to cite this principle with regard to another type of mistake, Rabeinu Tam changes the Girsa.)

(c) As for the rulings regarding Agunos, although in general there is Siyata d'Shemaya in any Pesak Halachah and mistakes are rare, the Agunah situation is something else entirely. If the husband were to arrive, it would not be because the Rav erred in his understanding of the Torah's laws; he may have ruled correctly, in accordance with the Torah, and decided that the evidence that was presented sufficed to permit the woman to get married. However, the husband may actually be alive (because the Torah does not require 100% certain evidence to remarry; a near certainty will suffice). Rav Moshe says about such situations that a Rav has Siyata d'Shemaya that since his Pesak was correct according to the parameters of the Torah, nothing wrong will come about because of his correct Pesak (and the husband will not be alive).

Here, in contrast, we are talking about a mistaken Pesak, where the judges erred in their interpretation of the Torah's laws. Such a mistake may have come about because the Sanhedrin were not on the impeccable level that Hashem expected of them, or because the people of the generation were not fit.

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DOCTORS AND THEIR ROLE IN HALACHIC RULINGS - Yevamos 92 - Daf Yomi

The Rogatchover Gaon was writing a letter (in a 1933 letter to Rabbi Shimon Schwab, deciphered by Rabbi Aryeh Carmell) regarding the issue of a father learning with his son other studies. He cites a Gemora in Sanhedrin (78) regarding a case where one man hit another with a stone or a fist, and caused injury to the other. The victim was initially assessed to be viable, and then died. The halacha is that the murderer is exempt from capital punishment. We say that either the victim's health worsened afterwards (not directly due to the striking), or that one cannot be found guilty of a murder after he had been previously acquitted of it. This, says the Rogatchover, is unlike the Gemora in Yevamos (92), which states that we would say that this was not a legitimate legal ruling, but rather, a blunder. If it would be regarded as an error on Beis Din’s part, they should have the ability of ruling again, and convicting the murderer. It emerges from here that the Torah assigns the authority to evaluate and to rule to the expert doctors.

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ERRONEOUS RULINGS- Yevamos 91 - Daf Yomi

Rav Papa desired to decide a case on the principle of “What should she have done?” (He permitted a woman who remarried based on the testimony of two witnesses to return to her husband after he reappeared.) Rav Huna the son of Rabbi Yehoshua asked to Rav Papa: How can you rule like this? But surely all those Mishnayos were taught that challenged this ruling?

Rav Papa replied: Were they not explained?

Rav Huna the son of Rabbi Yehoshua said in return: Shall we then rely on explanations in order to render a lenient decision?

Rav Papa accepted this argument and retracted his ruling.

Shulchan Aruch (E”H 17:26) rules accordingly that a woman who remarried based on the testimony of two witnesses, and then her husband reappears, she must leave both of them.

The Rashba in his teshuvos (Vol. I, 1,189) writes regarding a woman who marries based on the ruling of the Beis Din, for example, there was a question regarding the effectiveness of the kiddushin, and Beis Din ruled that the kiddushin did not take effect. She married to another man and then Beis Din realized that they had erred in their previous ruling, and she is actually a married woman to the first man. The halacha is that she is permitted to her first husband because it was an unavoidable circumstance. What should she have done? There is no reason to penalize her.

The Rama (E”H, 17:58) rules in accordance with the Rashba.

The Taz (ibid. 71) and the Beis Shmuel (ibid. 172) are bewildered regarding this ruling. Why is this case different than the ruling from our Gemora regarding the woman’s remarriage based on two witnesses? It is clearly ruled upon that she is penalized and is forbidden to return to her first husband.

Furthermore, the Beis Shmuel asks: The Rama contradicts himself! He rules (ibid. 31:10) in accordance with the Maharik, who states: A woman who married another man based on a faulty ruling of a Sage regarding her first marriage is prohibited from returning to her initial husband. What is the difference between Beis Din’s mistake and the Sage’s mistake?

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NATURE IS SUBJUGATED TO THE TORAH AND ITS CHACHAMIM - Yevamos 42 - Daf Yomi

Meoros HaDaf Yomi Vol. 296 brings the Gemara in Niddah which states something astounding. The nine months of pregnancy become shorter or longer according to how the Sanhedrin determines the calendar! The Gemara says that the shofar blown at the start of the month to announce the new month as determined by the beis din causes a new calculation concerning everything connected with calculating various dates.

The Rashba writes (Toras HaBayis, bayis 7, sha’ar 3,amud 9): “Certainly the shofar is the cause, because everything that beis din below does, the beis din on High agrees, as we are told: ‘(the appointed times) that you (beis din) shall call them’.” Hashem gave power to the beis din below and gave them authority and responsibility to decide the length of months and declare leap years by adding a month.

The Rashba says that if beis din declares a leap year, they delay Pesach by a month: on the days that originally would have been Pesach it is allowed to eat chametz, and they fixed a new Pesach.

The Rashba continues that the beis din above behaves according to the rulings of the beis din below. Even nature changes according to their decisions. We have gathered a few interesting examples to demonstrate this wonderful connection between people and the Heavenly beis din, by means of the Torah.

An infant suckles: A nursing mother is forbidden to re-wed till her infant becomes two years old (Yevamos 42a; Shulchan ‘Aruch, E.H. 13:11) lest she become pregnant and cut off the source of her infant’s sustenance while her husband, who is not the infant’s father, won’t see to alternative food. In a leap year, the author of Terumas HaDeshen writes (Responsa, 216), she must wait 25 months, as the Gemara explains that the suckling period is two years and in the leap year the suckling period is prolonged according to the year! (We should point out that the Remo ruled the halachah only “to worry as a first preference” while others disagree; see Pischei Teshuvah, ibid, S.K. 16, and Responsa Chasam Sofer, E.H. 137).

Treifah: A treifah animal (whose body is defective such that it cannot live longer than 12 months) doesn’t live longer than 12 months but some say that in a leap year it can live 13 months! (Shach, Y.D. 57, S.K. 18, and see Pri Chadash, ibid).

An animal’s life depends on the chacham’s ruling: The Chazon Ish zt”l writes (O.C. 39, os 15) wonderful things about the power of Torah: “But deciding the measure of an individual treifah was given to the chacham and what appears to him, is the root of the halachah said to Moshe at Mount Sinai… and it’s possible that its life depends on the chacham’s ruling, if the ruling was made during its life.” Worms live long: Certain fruits have worms in them only while they’re still attached to the tree. These fruits must be examined during 12 months after picking as the worm lives for six months and its body disintegrates after six more months and then there is no prohibition to eat it (Shulchan ‘Aruch, Y.D. 84:8, and ‘Aroch HaShulchan, ibid, se’if 66). However, in a leap year the worms live longer and the fruit should be examined for 13 months! (See Pri Megadim, ibid, and Gilyon Maharsha, ibid).

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CONVERSIONS BY REB JAY - Yevamos 28 (actually 24) - Daf Yomi

A conversion must be done lishma, i.e, with the desire of accepting the Torah and joining Klal Yisroel. Therefore, one cannot convert for marriage or any other external reason.

Because of this, during certain periods in Jewish history, converts were not accepted. For example, during the reign of Dovid Hamelech, converts were not accepted due to a concern that their acceptance was based on fear (due to the strength of Dovid’s army). Similarly, during the days of Shlomo Hamelech there were no conversions due to a concern that the conversions were based on a desire for prestige (as Klal Yisroel at that time was considered to be the jewel of the world).

The Rambam notes that although technically converts were not accepted at these times, there were Beis Din Hedyotos (Common Courts) that did accept converts. How was the status of these converts resolved?

The Rambam writes that their status was pending; if they saw after a period of time that these converts were still keeping the mitzvos, it could be assumed that their conversion was legitimate, and they were considered to be Jews retroactive to their conversion (meaning, for example, if it was a woman who had a child during the waiting period, the child was considered to be Jewish).

Perhaps we can use this principle to understand a difficulty in MegilasRus. Boaz married Rus as a redeemer of the property of Noami (and Rus was an extension of this due to her being the wife of the cousin of Boaz--Machlon). However, if Rus was a converts, then we know that a converts is regarded like a newborn baby, and any prior status - which in the case of Rus would include her marriage to Machlon - should be negated?

Using the principle of the Rambam we can say that Rus initially converted prior to marrying Machlon; however, there were doubts regarding her conversion (as it appeared that it was done for marriage). Therefore, her conversion had a probation period, and once she decided to follow Noami, it was retroactively revealed that her initial conversion (at the time of her marriage) was legitimate, and she fell under the category of things that could be redeemed by a redeemer (Boaz).

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Daf Yomi - Moed Katan 15 - IMMERSION OF A BAAL KERI

The Gemora cites a braisa: It is written [Devarim 4:9]: Make them known to your children and your children's children and the next verse states: The day that you stood before Hashem, your G-d in Choreb. We derive from the juxtaposition of the two verses that just as when the Jews stood at Mount Sinai and received the Torah, they did so in dread and awe, with trembling and fear, so too, when torah is being studied in all future generations, it must be learned with dread and awe, with trembling and fear. It is learned from here that a baal keri, one who experienced a seminal emission, is prohibited from reading the Torah, Prophets and Writings, nor can he study the Medrash, Talmud, Halacha and any Aggadic teachings. This is because the baal keri developed a tumah which occurred through levity and this is in contrast to the feelings of awe which are required when studying Torah.

The Gemora in Brochos (22a) states that one who is a baal keri should immerse himself in a ritual bath before studying Torah or praying. This is known as Tevilas Ezra.

The Gemora (ibid) states that nowadays Tevilas Ezra has been nullified. The Rif explains: Some say that it was nullified completely and a baal keri is not required to immerse himself in a mikvah prior to studying Torah or praying and others say that it was limited to studying Torah, but one would still be required to immerse himself in a mikvah prior to praying. He concludes: It is not required to immerse in a mikvah; nine kavin of water poured on his body will be sufficient.

Rabbeinu Hai Gaon states: Since it is not explicit in the Gemora, a baal keri must follow the custom of all the Jewish people and he should not commence to pray until he washes himself.

The Raavad in Sefer Haeshkol asked Rabbeinu Hai Gaon as to what should be done if one becomes a baal keri on Shabbos or on a festival when he cannot immerse himself in a mikvah. He responded that he remembers many Shabbosos being by Rav Aharon Gaon when they prayed in his house and Rav Aharon Gaon would not pray at all.

The Rambam (Hilchos Krias Shema) writes that Ezra’s enactment did not spread throughout Klal Yisroel and a majority of the community was not able to maintain it, therefore it became nullified. It has become the custom throughout Klal Yisroel to study Torah and recite Kerias Shema even while they are a baal keri since Torah is not susceptible to becoming tamei.

The Rambam in Hilchos Tefillah (4:4) writes that Ezra instituted that a baal keri should not study Torah until he immerses himself in a mikvah and a later Beis Din extended this decree to include tefillah. This was not on the account of tumah, but rather because they did not want the Talmudic scholars to be constantly with their wives like roosters. The decree regarding tefillah became nullified because the original enactment did not catch on throughout Klal Yisroel and a majority of the community was not able to maintain it. It has become the custom in certain areas for a baal keri not to pray until he washes his entire body with water based on the verse: One should prepare himself before greeting Hashem, the G-d of Israel.

The sefer Brocha Mishuleshes writes that it only became nullified in instances where one cannot locate a water source, however where water is accessible, a baal keri should not study Torah or pray until he washes himself. He concludes that one Beis Din does not have the power to nullify the decrees of a previous Beis Din.

It is written in Shailos V’teshuvos min Hashamayim (5): It is this fact (the people who are a baal keri and pray without immersing themselves) that has caused the exile to be so long. If Klal Yisroel’s tefillah would be in the proper way, our prayers would have been accepted years before.

He concludes: Perhaps we cannot accomplish that every baal keri should immerse himself in a mikvah prior to his tefillah, but at least the chazzan (leader of the services) should immerse himself and it will be in this merit that will hasten the Redemption.

Shulchan Aruch (O”C 88) rules that Ezra’s decree has been nullified and a baal keri can pray and study Torah without immersing himself. The Magen Avraham writes: Even though that one Beis Din does not have the power to nullify the decrees of a previous Beis Din unless they are greater in wisdom or numbers, since this enactment never caught on throughout Klal Yisroel, it can become nullified.

The Mishna Berura writes that one who has the custom to purify himself through immersion should only do so if he will not neglect the correct time to recite kerias shema and tefillah He adds that possibly, if immersing in the mikvah will result that he will not be able to pray along with a minyan, it is preferable not to go to the mikvah.

It is written in the sefer Meor V’shemesh: It is impossible to comprehend the true meaning of fearing Hashem if one is not careful in regards to this immersion. If one studies Kabbalah without purifying himself, the learning will result in heresy. He cites from the Baal Shem Tov and the Rebbe Reb Elimelech that one who wishes to comprehend Torah and mitzvos must be careful in this immersion, otherwise they will not be capable of reaching the heights they wish to attain.

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Daf Yomi - Megillah 12 - A Boor Leaps to the Front

It is written [1:16]: Memuchan declared before the king and the ministers. The Gemora states that Memucan is Haman, and he was called Memucan because he was destined for punishment.

Rav Kahana said: From here we see that an ordinary man (by the fact that he was mentioned last, it is obvious that he was the least important amongst them) always pushes himself in front.

My brother, Reb Ben asked me: we say by dinei nefashos maschilin min hatzad (min hakatan), meaning that by capital punishments, Beis Din begins debating with the smallest. Accordingly, what was wrong with Memuchan speaking first?

I saw from the Sha'ar bas Rabim an answer: Haman is the one who said (3:8): There is one nation, scattered and dispersed among the nations throughout the provinces of your kingdom, whose laws are unlike those of any other nation and who do not obey the laws of the King. It is not in the King's interest to tolerate them. Haman is stating that we do not follow the Jewish laws. If he doesn't follow the Jewish laws, then evidently he jumped first to state his opinion out of haughtiness and not because the halacha is that way. (It is a bit drushy though.)

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Daf Yomi - Megillah 11 - Food for Thought

1. Why is Mordechai's name associated with a pleasant fragrance?

2. What was the significance of the fact that Vashti was related to Nebuchadnezzar? Why was this considered pivotal to the story of Purim, according to Rav Shmuel bar Nachmeini? (Shem M'Shmuel)

3. Neither will I loathe them is referring to the times of the Greeks, as I appointed for them Shimon Hatzaddik, the Chashmenoi and his sons and Matisyahu the Kohen Gadol to save them. Shimon Hatzaddik was in the times of Alexander the Great and in his time there were no decrees against the Jews. What does the Gemora mean that Shimon Hatzaddik was appointed to save them from the decrees; there weren't any at the time? (Rav Nosson Vachtfogel)

4. Why didn't Achashverosh die because he used the vessels of the Beis Hamikdosh? (Maharal, Sfas Emes)

5. Is there a factual argument between Rav and Shmuel as to the locations of Hodu and Cush?

6. "My handiwork is drowning in the sea and you should sing songs of praise?" When does this principle apply and when doesn't it?

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Daf Yomi - Rosh Hashana 21 - Levi in Bavel

The Gemora relates that Levi visited Bavel on the eleventh of Tishrei. Levi notified the people residing there that it was actually the tenth of Tishrei since Beis Din made Elul thirty days instead of the usual twenty-nine. They asked Levi to testify that Beis Din had made Elul thirty days and then they would be willing to fast again on the correct day. Levi responded that since he didn’t actually hear Beis Din proclaim the thirty-first day to begin the new month, he is unable to testify in this regard. The messengers were not permitted to go out in the months of Nissan and Tishrei until they heard Beis Din announce that the day has been sanctified as Rosh Chodesh.

Tosafos asks that while it is true that Levi did not actually hear Beis Din proclaim the sanctity of the new month, how was he able to allow the Babylonians to ignore the fact that Yom Kippur is actually a day later. Tosafos answers based on the Scriptural verse “These are Hashem’s appointed [holy days] that you shall designate them as holy occasions,” and it is learned from there that Beis Din’s declaration of the new month is valid even if they choose the incorrect day through a mistake or even deliberately. Tosfos indicates that this is not only limited to the Beis din in Yerushalayim but even to a Beis Din in Bavel. If they rule that Rosh Chodesh is a certain day, it is indeed binding.

Turei Even asks many questions on Tosfos. His primary question is that it is illogical to assume that each Beis Din throughout the world can independently establish when Rosh Chodesh should be. This is only reserved to the Beis din in Yerushalayim.

The Turei Even learns different than Tosfos and states that Levi could not be believed since he is only one witness and one witness is not believed against a majority. Most of the time, Elul has only twenty-nine days and Levi couldn't testify that the Beis Din made it thirty days. If Levi would have actually heard Beis Din proclaim that the thirty-first day is Rosh Chodesh, they would have acted stringently (above the letter of the law) and they would have fasted again on the tenth of Tishrei.

Rav Elyashiv Shlita points out that the Turei Even's explanation is not consistent with the Rambam's viewpoint where he states in Hilchos Kiddush Hachodesh (3:14) that one witness is believed even in relevance to a Biblical matter, providing that it is something that will eventually be made public.

The Turei Even cites a Shiltos who relates the incident a little different than in our Gemora. The Shiltos states that Reb Ivo and Reb Chiya went to Bavel and remarked that Beis Din had made Elul thirty days. According to this, they would be believed since they are two witnesses.

Chazon ish learns that any place that is too far away from Yerushalayim and will not hear that Beis Din announced the sanctity of Rosh Chodesh, they establish the new months according to the calculation and not through witnesses. According to the Chazon Ish, I am not sure why it would make a difference if Levi heard the Beis Din establishing Rosh Chodesh.

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Daf Yomi - Rosh Hashana 20 - False Testimony

Rabbi Yochanan taught that on certain months, it is permitted to intimidate the witnesses regarding a new moon that was not seen in the proper time in order to establish Rosh Chodesh on the thirtieth and tell them to testify that they saw the new moon even though in fact they did not see it.

The commentators ask that it would seem that we are coercing witnesses to lie outright. Is this permitted?

Pnei Yehoshua writes that we are referring to a case where according to the calculation, the moon should have been seen and in order to establish the new month in the proper time the witnesses can testify that they saw the moon even thought they didn’t. It is not considered a lie because the knowledge that the moon should have been visible is regarded as if it was actually seen.

He offers an alternative explanation that the witnesses are reconsidering their original testimony and perhaps they saw a sliver of a cloud in the sky that resembled the moon; Beis Din allows the witnesses to testify that they saw the moon and they are not interrogated extensively on this. Rabbeinu Chananel also seems to understand the Gemora in a similar manner.

The commentators ask that this explanation is still not completely satisfactory since there is a halacha that Beis Din cannot make a “din merumeh” -a judgment based on deceiving evidence. How can Beis Din rule on the new month based on false testimony.

The Steipler Gaon (19) states that perhaps this is a proof to the viewpoint of some of the Acharonim who maintain that the witnesses required for testimony on the new month are distinctively different from other witnesses. Normally witnesses are needed in order to clarify to Beis Din regarding the particular issue being judged at the time. Sanctifying the new month does not require witnesses that will clarify to Beis Din anything since through the calculations of the lunar cycle, Beis Din already knows when the new month should begin. Witnesses are needed only because the Torah requires Beis Din to rule on the new month through witnesses. Perhaps it can be said that Beis Din after listening to witnesses testifying that they saw the moon can rule on the new month even thought they know that the witnesses did not actually see the moon. (He does conclude that this explanation will only be sufficient if it is not clear that the witnesses are lying because otherwise they are not considered witnesses at all.)

Tosfos HaRosh in Kesuvos (32) seems to indicate that witnesses for sanctifying the new month are valid even if they are false witnesses outright. He sites the Scriptural verse “These are Hashem’s appointed [holy days] that you shall designate them as holy occasions,” and it is learned from there that Beis Din’s declaration of the new month is valid even if they choose the incorrect day through a mistake or even deliberately.

The Chasam Sofer writes that these witnesses are not transgressing the prohibition of the Torah of bearing false testimony since it is being done with the knowledge of Beis Din and they are not deceiving anyone.

Rav Yosef Engel explains that these witnesses are not transgressing the prohibition of the Torah of bearing false testimony because the Torah explicitly states “Do not bear false testimony against your neighbor” and by testifying in regards to the moon, one is not testifying against his neighbor and therefore will not be included in the transgression.

Rav Elyashiv Shlita says something very similar to the Chasam Sofer. He states that there cannot be a transgression of bearing false testimony when Beis Din is aware that the witnesses are lying. They are not deceiving anyone and Beis Din is even intimidating them to do so. This is not a lie or false testimony at all.

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Daf Yomi - Rosh Hashana 18 - Informing the Public

The Mishna states that at the beginning of six months, messengers would be sent out to notify the Jewish communities as to which day was determined to be the first of the month. They were sent out in the month of Nissan because of the festival of Pesach. At the beginning of Av, they were sent out because of the fast. Messengers were sent in the month of Elul on the account of Rosh Hashanah. They were sent out during Tishrei because of Yom Kippur and Sukkos. Messengers were sent out during Kislev because of Chanukah and during Adar because of Purim.

Pnei Yehoshua questions the necessity of the messengers at all according to the opinion of those Tanaim who maintain that there is always a four day difference between the day that the festival falls out in one year and the day that the festival occurs in the following year. Since it is known which month will be thirty days and which month will be twenty-nine days, what is the purpose of the messengers? He answers that even according to that viewpoint, there are times that Beis Din will be forced to deviate from the regular cycle and change the amount of days in the month due to the seasons or because of a leap year. It is therefore still necessary to send out the messengers in the beginning of every month.

Reb Leib Mallin answers this question differently with a novel approach. There is a halacha based on pesukim in the Torah that Rosh Chodesh can only be established through Beis Din. There is a secondary halacha, based on that, which teaches us that informing the public when Rosh Chodesh was also must be accomplished through Beis Din . He learns this from the language of the Ranbam in Hilchos Kiddush Hachodesh (1:7). It emerges that even if it is known precisely when Rosh Chodesh was, there is nevertheless an obligation for Beis Din to notify the public.

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