Hi Rabbi Kornfeld,
It was an honor for me ask questions to someone of your stature. I and everyone who attended that chabura thank you.
I will send regards to Baruch and Ben.
I wasn't going to ask you about this but since you've emailed me... I'm giving another chabura in two weeks. The topic is the apparent stira between the mitzvah of lo tasur and the first mishnayos in horiyos (actually the first mishna and the one on 4b).
The first mishna in horiyos says that a member of beis din who knows that beis din is wrong (BD says that a certain chelev or dam is mutar and he knows they are wrong), if he consumes that chelev he is chayav to bring a chatas. The gemara in horiyos 2b says his shgaga is that he was "taah bimitzvah lishmoa bdivrei chachamim". As the rashash there points out, we would think he is supposed to follow the psak of BD because of lo tasur; if he doesn't he would be a zaken mamre.
The only rishon that I know that deals with this explicitly is the ramban in his hasagos to the sefer hamitvos in shoresh Aleph (in the regular rambams it's on 7b). The question is what exactly does the ramban mean- The Maharatz Chayos has a lengthy discussion in the fourth perek of his Ateret Tzvi on this issue (and a short one in his chidushim on the gemara there). In the end the MC says (I think) that it is only when the majority of BD reject the opinion of the minority that the minority must accept their psak. But if the majority can't/doesn't want to reject the minority position, than the minority must follow its own psak (and that's the case in horiyos).
My question:
1. if you have a chance to look at it, I'm curious if you think my reading of the Maharatz Chayos is accurate
2. Does the MC's answer make sense? What he's saying is that a majority opinion in a BD is not enough to make psak (if there is a vocal minority). The majority in BD not only has to believe it is right but it has to reject the minority opinion. That seems to me a big chidush- (the one other person that I asked who is holding in this sugya thought the MC's resolution to this problem was a stretch).
3. do you know of any other resolutions to this apparent stira
Again, thank you for helping me in my learning and teaching of torah.
Gur Berman
Below, please find what we wrote in answer to a previous question regarding this issue:
Let us first refer to the words of the RAMBAN in Sefer ha'Mitzvos la'Rambam, Shoresh Rishon:
"And one who transgresses the words of the Sanhedrin of his generation, and relies on his own opinion, has transgressed this Lo Sa'aseh (of Lo Sasur) and this Aseh. Even if Beis Din is divided on the issue, we follow the majority as it 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 Hash-m 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."
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 Meivi Takalah Al Yedeihem" applies only to where the Chacham himself eats something Asur, but not with regard to a ruling that a Chacham makes for someone else. Anywhere the Gemara cites this principle with regard to a mistake, Rabeinu Tam changes the Girsa.
As for the rulings regarding Agunos, although in general there is Siyata d'Shemaya in any Psak and a mistake is rare, the Agunah situation is something else entirely. If the husband were to arrive, it would not be because the Rav erred; the Rav ruled in accordance with the Torah. Still, it would be possible that the husband is actually alive. For that Rav Moshe says that there is a Siyata d'Shemaya that nothing should go wrong with a correct Psak. Here, in contrast, we are talking about a mistaken Psak.
D. Zupnik
The first mishna in horiyos says that a member of beis din who knows that beis din is wrong (BD says that a certain chelev or dam is mutar and he knows they are wrong), if he consumes that chelev he is chayav to bring a chatas. The gemara in horiyos 2b says his shgaga is that he was "taah bimitzvah lishmoa bdivrei chachamim". As the rashash there points out, we would think he is supposed to follow the psak of BD because of lo tasur; if he doesn't he would be a zaken mamre.
The only rishon that I know that deals with this explicitly is the ramban in his hasagos to the sefer hamitvos in shoresh Aleph (in the regular rambams it's on 7b). The question is what exactly does the ramban mean- The Maharatz Chayos has a lengthy discussion in the fourth perek of his Ateret Tzvi on this issue (and a short one in his chidushim on the gemara there). In the end the MC says (I think) that it is only when the majority of BD reject the opinion of the minority that the minority must accept their psak. But if the majority can't/doesn't want to reject the minority position, than the minority must follow its own psak (and that's the case in horiyos).
My question:
1. if you have a chance to look at it, I'm curious if you think my reading of the Maharatz Chayos is accurate
2. Does the MC's answer make sense? What he's saying is that a majority opinion in a BD is not enough to make psak (if there is a vocal minority). That seems to me a big chidush- (the one other person that I asked who is holding in this sugya thought the MC's resolution to this problem was a stretch).
3. do you know of any other resolutions to this apparent stira
Again, thank you for helping me in my learning and teaching of torah.
Shalom, Rav Gur!
The Chinuch (Mitzvah #496) and the Chidushei ha'Ran (Sanhedrin 87a) also cite the Ramban you mentioned. (The latter cites the Yerushalmi at the beginning of Horayos as a source for the Ramban. However, the Yerushalmi simply confirms that there are times that one should not listen to Sanhedrin's ruling; it does not say when not to listen, as the She'elas David points out (Kuntrus ha'Chidushim, Hashmatos to Sanhedrin ibid., noted in the footnotes to the Mechon Yerushalayim Chinuch).)
It is clear from all of these Rishonim that we differentiate between before the Talmid has presented his view to the Sanhedrin (and since they do not know what his arguments are, there is still a chance that he may convince them that he is right), and after his view has been presented and vetoed by the majority of the Sanhedrin. I looked up the Maharatz Chayos both in his notes on Horayos and in the Ateres Tzvi (and found that he also cites the Chinuch and Ran), but could find nothing that implies otherwise.
You cited Maharatz Chayos as saying, "If the majority can't/doesn't want to reject the minority position, than the minority must follow its own psak... The majority in BD not only has to believe it is right but it has to reject the minority opinion."
It is pretty obvious that if the majority accepts the minority position, then the Halachic ruling changes and everyone must follow the Talmid Chacham's convincing argument. On the other hand, if the majority sticks to their ruling, I think Maharatz Chayos would agree that no special act of "rejecting the minority" is necessary. Thus, whether or not the Talmid Chacham should be Machmir depends entirely upon whether he has brought up his arguments before the Sanhedrin, or whether they are still unaware of the nature of his arguments.
Best wishes and Hatzlachah Rabah!
Mordecai Kornfeld
Hi Rabbi Kornfeld,
THank you for your response. THe rashash on this sugya can be added to the list of achronim who read the ramban to distinguish between the obligations of a member of sanhedrin before and after he discusses his positon with the rest of his collegues.
The difficulty with this position is the mishna on dalet amud bet that says that even when the chacham says "toim atem" he (and everyone else) is chayav to bring a korban if they followed the mistaken horah of the sanhedrin- Rashi there says that there is no horah in that case. That is the difficulty that the Maharatz Chiyus in Ateres Tzvi discusses on p. 377 (if I'm understanding him correctly).
If you have the time, I'd appreciate if you could read that daf in the Ateres tzvi and see if my reading is accurate.
Thank you and Good Shabbos,
Gur
I looked over the interesting Maharatz Chiyus you cited. As I see it, he adds the following point to the Ramban:
What is considered a situation of "winning over" the majority? If the majority hears the arguments of the Talmid Chacham and they are not fully convinced by his ruling, but neither are they certain that his ruling is wrong, are they considered to be a Rov overriding his ruling?
The Maharatz Chiyus says that they are not considered to be a Rov overruling him, since the members of the Sanhedrin admit that they do not know the correct ruling in the matter. We look at it as though the entire Sanhedrin has come to the conclusion of "Eini Yode'a" - "I am not sure what is the Halachah." If even a single member of the Sanhedrin says "Eini Yode'a," we cannot come to a conclusive ruling (since it is as if that member is absent and we are missing a vote), so certainly if the entire court says "Eini Yode'a" there is no clear ruling!
Based on a Yerushalmi, the Maharatz Chiyus says that this is the case of the Mishnah on 4b, in which a Talmid Chacham says "To'in Atem" and that invalidates the ruling of the court. However, if the majority decides against the logic of the minority, whether or not they say why they reject the minority's view, a ruling has been passed and the minority is obligated to follow their ruling.
(I could suggest explaining differently the Yerushalmi that Maharatz Chiyus cites. The Yerushalmi says that the Mishnah on 4b is "b'she'Zeh Amad mi'Teshuvaso." It might mean that the Yachid who said "To'im Atem" did not yet get a chance to explain his logic to the rest of the Sanhedrin - "Amad" means "withheld" - exactly as the Ramban explained. Thus, this Yerushalmi would be a source for the Ramban. But the case the Maharatz Chiyus suggests is so obviously not a Hora'as Rabim - since the majority themselves are not confident in their opinion on the matter - that there is no need to mention that case in the Mishnah.)
Best wishes and Hatzlachah Rabah!
Mordecai Kornfeld
Just a few clarifications, Rav Gur:
1. The Maharatz Chiyus' point about the Mishnah on 4b is not related to the Chidush of the Ramban.
The Ramban discussed a situation where a Talmid Chacham who disagrees with the Sanhedrin can follow his own instincts (l'Chumra), contra to the ruling of Sanhedrin. The Mishnah on 4b is discussing a case when nobody has to listen to the ruling of Sanhedrin (since a member of the Sanhedrin told them that they are mistaken). The Maharatz Chiyus explains that in the Mishnah's case no ruling was actually passed and no verdict was reached.
2. My suggestion, that the Yerushalmi means to explain the Mishnah on 4b as per the Ramban's Chidush, would seem to contradict what I just wrote, since if the Mishnah on 4b is working with the Ramban's Chidush that should only allow the Talmid Chacham himself to be Machmir.
I might defend my explanation as follows. Once the Talmid Chacham has made clear publicly to the Beis Din that he has a point to make that will potentially overturn their ruling, then the entire ruling is left dubious, and everyone - members of Sanhedrin and laymen alike - may choose to follow either side. In other words, in such a case the Beis Din has indeed not reached a conclusive verdict due to the public announcement of the Talmid Chacham.
If my explanation of the Yerushalmi is correct, we have an answer for the question that so troubled the She'eilas David - what does the Chidushei ha'Ran mean when he says that the Yerushalmi supports the view of the Ramban (see my first reply).
Thanks and best wishes for Hatzlachah Rabah,
Mordecai Kornfeld