1) WHO SPEAKS FIRST IN DECISIONS OF BEIS DIN
QUESTION: The Gemara says that when Beis Din adjudicates in matters of capital punishment the less experienced judges should voice their opinions first, but in matters of monetary law the head of the Beis Din should voice his opinion first. What is the reason for this difference?
(a) RASHI explains that there is concern that the head of the Beis Din will say that the defendant deserves the death penalty, and the other judges will refrain from disagreeing with him because of the precept that one should not voice an opinion against that of a greater authority, as derived from the verse, "Lo Sa'aneh Al Riv" (Shemos 23:2), which is interpreted to mean "Lo Sa'aneh Al Rav." (See Rashi, Sanhedrin 36a and 18b.)
Rashi writes that this law is a unique law which applies to cases of capital punishment (as implied by the Gemara in Sanhedrin 2b). In contrast, in cases of monetary matters there is no need to have the less experienced judges voice their opinions first, since the younger judges are permitted to express their opinions even after the head judge has voiced his.
Rashi uses this approach to explain the next part of the Gemara, which says that in the days of Rebbi the younger judges voiced their opinions first in all cases. Why was this the protocol in the days of Rebbi?
Rashi explains that Rebbi was of the opinion that the prohibition against voicing an opinion against that of a greater Rav applies to monetary law as well. Therefore, in his days, the younger judges voiced their opinions first in all cases.
(b) The RAN writes that a younger judge is always permitted to voice his opinion, even after the head of the Beis Din has voiced his. The Torah requires that younger judges voice their opinions first in cases of capital punishment, because there is a concern that they will not want to voice their opinion in disagreement with the head of the Beis Din. In contrast, in cases of monetary law, the Torah is not concerned that the younger judges will refrain from voicing their opinions after the head of the Beis Din has voiced his, and therefore the head of the Beis Din voices his opinion first.
The Ran explains that the reason why, in the days of Rebbi, the younger judges expressed their views first in all cases, is that since Rebbi was a very great and personality, there was a concern that when he served on the Beis Din the younger judges would not voice their opinions after his even with regard to monetary cases. Although in general there is no concern that the younger judges will not voice there opinions in cases of monetary law, when the head of the Beis Din is such a great sage like Rebbi, there is a concern even in cases of monetary law.
(TOSFOS explains that although Rebbi agrees that the head of the Beis Din voices his opinion first in cases of monetary law, Rebbi had the younger judges express their opinions first out of his great humility.)
2) ACQUISITIONS OF MINORS ABOVE THE AGE OF TEN
OPINIONS: The Gemara states that minors may acquire movable objects (Metaltelin). The Gemara discusses the minimum age at which a minor may make a Kinyan. The Gemara concludes that the age depends on each child's level of intelligence. A sharp child may make a Kinyan at the age of six, while a less intelligent child may make a Kinyan only at a later age.
The Gemara discusses the assessment of a child's intellectual maturity only up to the age of ten years. May a child older than ten make a Kinyan even without Beis Din's assessment of his intellectual maturity?
(a) The ROSH infers from the Gemara that once a child is ten years old, Beis Din assumes that he is sharp enough to make a Kinyan and there is no need to assess his acumen. Only when a ten-year-old clearly lacks the normal intelligence for that age is he not able to make a Kinyan. (See REMA CM 235:1.)
(b) The RAMBAM (Hilchos Mechirah 29:6) rules that child under the age of thirteen must be assessed in order to be able to make a Kinyan. (See SHULCHAN ARUCH CM 235:1 and VILNA GA'ON there, #2.) (D. BLOOM)
3) ACQUISITIONS OF THE DEAF
QUESTION: The Mishnah teaches that the gestures and signs which a deaf person makes are valid indications of his desire in cases of acquisitions of movable objects (Metaltelin). Accordingly, the RAMBAM (Hilchos Mechirah 29:2) rules that a deaf-mute may sell only Metaltelin, but not Karka (land), even if he is deaf and not mute. (Support for the notion that there is a different standard of intelligence with regard to the ability to buy and sell land may be adduced from the Gemara later (65a) that states that even an adult (above the age of Bar Mitzvah) may not sell land until he is twenty years old.)
The Rambam's ruling is difficult to understand in light of the Gemara in Chagigah (4b) which states that only a deaf-mute is treated like a Shoteh (without the intellectual capacity to make a Kinyan). A deaf person who is able to speak is considered like an ordinary adult.
(a) The BEIS YOSEF (CM 235) answers that the Rambam understands that the Gemara in Chagigah means that a deaf person who can speak is like a normal adult only with regard to specific Halachos. His status with regard to making Kinyanim, however, differs from that of a normal adult.
The Beis Yosef adds that perhaps the Rambam maintains that the Gemara in Chagigah refers to one who is able to hear, but only with difficulty. Such a person has the status of a normal adult. In contrast, one who cannot hear at all does not have the status of a normal adult even if he can speak.
(b) The NESIVOS HA'MISHPAT (235:20) rejects the Beis Yosef's explanations. He points out that the Gemara in Chagigah states that "in every place" one who can speak is treated like a normal adult, which implies that he is treated like an adult for all matters. The Nesivos ha'Mishpat points out that the ROSH rules that the Halachic definition of a Cheresh (deaf person) is one who cannot hear or speak at all (in contrast to the Beis Yosef's second answer, that one who can hear with difficulty is considered a Cheresh if he cannot speak).
The Nesivos ha'Mishpat answers instead that the Rambam understands that the Gemara in Chagigah refers only to places in which the term "Cheresh" is mentioned with the term "Shoteh." The Mishnah here mentions only a Cheresh and not a Shoteh, and thus the term "Cheresh" includes one who is deaf but not mute. (See also VILNA GA'ON, CM 235:54.) (D. BLOOM)
3) HALACHAH: THE RIGHT TO THE FIRST ALIYAH
QUESTION: The Gemara teaches that, mid'Oraisa, a Kohen should be given the first Aliyah at the reading of the Torah because it is a Mitzvah to give honor to Kohanim. When the Mishnah says that this is only an enactment of the Rabanan for the sake of preserving peace among people, it refers to the rule that the Kohen is given the first Aliyah even when the Kohen himself prefers to defer the honor to his teacher. Since he prefers to defer, there is no longer a Mitzvah d'Oraisa to give the honor to him.
The Gemara relates that Rav Huna received the first Aliyah since he was the greatest Torah authority of his time. This implies that in the case of an ordinary person who happens to be more learned than the Kohen who is present, the more learned person does not precede the Kohen. The Kohen is given the honor of the first Aliyah even though the other person is more learned.
The Gemara in Horayos (13a) seems to contradict the Gemara here. The Gemara there states that giving honor to a Talmid Chacham takes precedence over giving honor to a Kohen who is an Am ha'Aretz. How are these Gemaras to be reconciled?
(a) The RAMBAM (Perush ha'Mishnayos) writes that when the Mishnah says that a Kohen receives the first Aliyah, it refers only to a situation in which no greater Talmid Chacham is present. The Rambam writes that there is no requirement for a Talmid Chacham to honor a Kohen who is less learned than he, as implied by the Gemara in Horayos. The Rambam understands that the Gemara here stresses the greatness of Rav Huna because Rebbi Ami and Rebbi Asi -- who were the greatest Kohanim of that time -- were present and only a Talmid Chacham greater than would be given the Aliyah before them.
The Rambam's opinion is problematic. The Gemara quotes a Beraisa which states that when one recites the blessing for bread and has in mind to recite the blessing for others who are present, the one who recites the blessing dips his slice of bread before the others. If he is a Kohen and wants to honor his teacher, he may let his teacher dip first. This implies that the Kohen is entitled to be first even though his teacher, who is more learned than he, is present. This seems to contradict the Rambam's ruling that honoring a Talmid Chacham takes precedence over honoring a Kohen.
The PRI CHADASH answers that the rule that one who recites the blessing dips his bread first applies even if he is not a Kohen and not a Talmid Chacham. Therefore, there is no implication from this Gemara that the honor of a Kohen takes precedence over the honor of a Talmid Chacham, since the reason he has the right to dip before the Talmid Chacham is not because he is a Kohen, but because he is the one who recited the blessing over the bread.
(b) The TUR cites RAV AMRAM GA'ON and RAV NATRUNA'I GA'ON who maintain that when there is a Kohen present, he receives the first Aliyah even if he is ignorant and there is a great Talmid Chacham present. They apparently understand that although a great Talmid Chacham has precedence over a Kohen with regard to other Mitzvos (such as giving Tzedakah to one before the other when both are poor) as the Gemara in Horayos teaches, with regard to the reading of the Torah the Chachamim instituted an enactment to prevent disputes and therefore established that the Kohen always receives the first Aliyah even if he is less learned than others.
(c) The RITVA writes that the Kohen receives the first Aliyah even when there are others present who are more learned than he, but only when the Kohen is not an Am ha'Aretz. When the Kohen is an Am ha'Aretz, the Talmid Chacham precedes him.
The Ritva seems to understand that the requirement that a Kohen receive the first Aliyah applies only when the Kohen possesses qualities for which he deserves to be honored, besides the fact that he is a Kohen. In such a case, the Kohen may not relinquish his honor to others.
Accordingly, the Ritva maintains that when both candidates -- the Kohen and the Yisrael -- for the first Aliyah are Talmidei Chachamim, the Kohen receives the first Aliyah even if the Yisrael is a greater Talmid Chacham (as implied by the Gemara here). If, however, the Kohen is an Am ha'Aretz, the Talmid Chacham has precedence (as implied by the Gemara in Horayos); there was no enactment that such a Kohen should precede a Talmid Chacham.
HALACHAH: The common practice today follows the opinion of the Ge'onim who maintain that a Kohen always receives the first Aliyah, for the sake of preserving peace. The BI'UR HALACHAH (OC 135:3) quotes the CHAYEI ADAM who says that when there is an eminent Talmid Chacham present and there is also a Kohen who is learned as well as a Kohen who is not learned, it is preferable to give the first Aliyah to the Kohen who is a Talmid Chacham and not to the one who is an Am ha'Aretz. (Nevertheless, one must be careful with this Chumra and avoid causing disputes.) (D. BLOOM)