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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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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RULING ON HASHKAFA - Yevamos 86 - Daf Yomi

Tosfos discusses the penalty that Ezra established regarding the Levi’im and their ma’aser. In the middle of this discussion, Tosfos issues the following statement: We have ruled that Malachi is the same person as Ezra.

The Maharatz Chayus asks: How can Tosfos rule regarding this issue? The entire discussion of who Malachi was, is a historical fact, and the issue is one of Aggadata, and not halacha. It seems strange to issue a ruling on a historical fact.

(http://divreichaim.blogspot.com/2007/07/psak-on-hashkafa-and-formulating-torah.html) Divrei Chaim discusses this issue at depth. Can there be a ruling on hashkafic matters?

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HOW SHOULD WE RULE? - Yevamos 83 - Daf Yomi

The Gemora cites a Mishna which states that if one plants a tree within thirty days of Rosh Hashanah prior to a Shemitah year, the tree must be uprooted. Rabbi Yehuda maintains that a tree takes root within three days. Rabbi Yosi and Rabbi Shimon hold that a tree takes root within two weeks of its being planted.

The Rambam and other poskim all rule in accordance with Rabbi Yosi and Rabbi Shimon. The Sfas Emes questions as to why the Rambam does not rule regarding lands outside of Eretz Yisroel in accordance with Rabbi Yehuda who holds that three days is sufficient. There is a principle that we rule outside of Eretz Yisroel in accordance with the viewpoint which is most lenient in Eretz Yisroel.

The Shagas Aryeh (14) and the Noda Beyehuda (kamma Y”D 88) answer that whenever the Gemora rules explicitly like the Tanna who is stringent, the principle of ruling in Chutz La’aretz in accordance with the lenient opinion does not apply.

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LEARNING ON TISHA B'AV

We learned in a braisa: All ordinances applicable to a mourner are effective for everyone on Tisha B’Av. One must not eat, drink, anoint himself, wear leather shoes, or engage in marital relations. One is not permitted to read from the Torah, Prophets or the Writings. The Mishna, Gemora, Medrash, Halachos and Aggados may not be discussed. One may read from Scriptures or study from the Talmud in a place that he is not familiar with. He is allowed to read from Lamentations, Iyuv and from the unpleasant verses in Yirmiyah. Schoolchildren must not learn on that day because it is written: "The precepts of Hashem are upright, rejoicing the heart." Rabbi Yehuda disagrees and maintains that one may not even read nor study anything that he is not familiar with.

It is said in the name of the Maharsham that if a person thought of a novel idea in Torah on Tisha B’Av, he is permitted to write it down in an abbreviated manner in order that he does not forget it by the time nightfall arrives.

Aruch HaShulchan (554:5) rules that one is permitted to rule on a Torah related issue that is necessary for that day and he is allowed to settle a dispute after midday, where the litigants are advocating for an immediate resolution.

Maharil Diskin writes that even though the Rav is permitted to issue a ruling on Tisha B’Av, he is forbidden to accept payment.

The Maharsham writes that he compelled himself to conclude a response regarding a heter agunah on Tisha B’Av since the Bach writes: “Kol hamatir agunah achas ke’ilu banah achas mi’churvos Yerushalayim” – Whoever releases one agunah, it is regarded as if he built one of the ruins of Yerushalayim. (Sheorim Mitzuyanim B’halacha)

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HOW TO RULE - Yevamos 66 - Daf Yomi

Rabbah and Rav Yosef were sitting before Rav Nachman at the conclusion of his lecture, and they said: A braisa was taught which supports Rav Yehudah’s opinion, and a braisa was taught which support Rav Ami’s opinion. The Gemora cites those two braisos.

Rava said in the name of Rav Nachman: The halacha is in accordance with Rav Yehudah.

Rava asked Rav Nachman: But there is a braisa supporting the viewpoint of Rav Ami (why are you ruling in accordance with Rav Yehudah)?

Rav Nachman replied: Although there is a braisa that supports Rav Ami, Rav Yehudah’s reasoning is more logical, since he had stated: (the wife has a valid claim to take the tzon barzel properties back) because these properties represent the assets of her father’s house, and she has a valid claim to take them back.

The flow of the Gemora is a bit problematic. Rava was not talking to Rav Nachman when he said that the halacha is in accordance with Rav Yehudah. He said that over in his name. It seems a bit odd that he would then ask Rav Nachman.

Furthermore, why was he asking from a braisa that supports Rav Ami when the Gemora just quoted a braisa that supported Rav Yehudah as well?

Reb Yissochar Dov from Buska explains this Gemora. He states: There is a principle that whenever the Gemora cites two explanations, and introduces the second one with the terminology “v’ibais eima,” “alternatively, you can say,” the halacha follows the second opinion. This is also an established principle in Shulchan Aruch. When the Shulchan Aruch cites two opinions, the halacha follows the second one. This applies also when the Gemora cites two braisos, one supporting one viewpoint, and a second supporting the other opinion; the halacha is in accordance with the second one.

When Rabbah and Rav Yosef were sitting before Rav Nachman, Rava was there as well. The Gemora had stated that they were sitting before Rav Nachman at the conclusion of his lecture. The Likutei Maharil (78) states that whenever the Gemora uses the terminology “b’shilhei pirkei,” “at the conclusion of his lecture,” it means that the Amora was extremely tired and weak from his lecture. The Targum of the word “oyef,” meaning tired, is “shilhei.” Rav Nachman was not involved in the discussion between Rabbah and Rav Yosef when they were citing the braisos. Rava, being a disciple of Rav Nachman, remembered that Rav Nachman had ruled according to Rav Yehudah. Upon hearing the discussion between Rabbah and Rav Yosef, and realizing that the second opinion cited was according to Rav Ami, Rava questioned Rav Nachman: “How can you rule according to Rav Yehudah when the second opinion cited was according to Rav Ami, and the halacha would follow the latter opinion?” Rav Nachman, who was extremely weak, did not respond at all, and Rava himself (or the Gemora) answered that the principle does not apply when the logic follows the other opinion. Since Rav Yehudah’s reasoning is more logical, we rule according to him, even though the braisa supporting Rav Ami was cited second.

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Daf Yomi - Chagigah 4 - HOW TO RULE IN CASES OF UNCERTAINTY

The Gemora continues to analyze the braisa. It is understandable why a verse is needed to exclude an androgynous from the mitzva of re’iyah. One might have thought that he should be obligated since he has a masculine side to him; the verse teaches us that he is considered a creature unto himself and is not obligated in this mitzva. The Gemora asks: Why is a verse needed to exclude a tumtum; it is undetermined if he is a male or a female, and a verse should not be necessary to exclude a case of doubt?

Rashi learns: Why would we think that a case of doubt would be obligated in the mitzva.

Turei Even asks: There is a principle that in matters of Biblical law, we rule stringently (safek d’oraysa l’chumra); wouldn’t this explain why we would think that a tumtum should be obligated in the mitzva of re’iyah?

Sfas Emes states: It would be evident that Rashi maintains that this principle is only true Rabbinically. The Torah would rule leniently in a case of doubt; The Rabbis decreed that we must rule stringently in these matters. (This is the opinion of the Rambam and other Rishonim.) This will explain the Gemora’s question. We should not need a verse to rule leniently on a tumtum if the Torah always rules leniently regarding cases of uncertainty.

There are those that are not satisfied with this explanation in Rashi, for Rashi in Kiddushin (73a) seems to hold that in a case of doubt, we rule stringently even from a Biblical point of view.

The Peri Megadim (O”C 17:2) differentiates between cases where one would be transgressing a commandment in a manner where he is committing an action against the Torah and one where he is sitting passively without performing an action against the Torah.

Using this principle, we can reconcile the contradiction in Rashi. (I found this in explanation in Kuntrus Kol Hamesifta.) In our instance, the Torah would dictate that the tumtum is not required to embark on the festival pilgrimage since we are uncertain of his status and the Torah rules leniently in cases of uncertainty and states, “One is not mandated to perform an action,” – only Rabinically, would he be obligated to ascend to the Beis Hamikdosh. However, Rashi in Kiddushin is referring to a case where the Torah rules stringently because there the Torah is instructing him not to perform an action (he is prohibited from marrying a safek mamzeres).

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