1) TAKING THE LAW INTO ONE'S OWN HANDS
OPINIONS: The Gemara quotes Rav Yosef who says that a Talmid Chacham (a Tzurba m'Rabanan) may "exact justice on his own if the matter is clear to him."
Rav Yosef's ruling is difficult to understand. If he means that a Talmid Chacham is permitted to seize an object which someone stole from him, in what way is this Halachah unique to a Talmid Chacham? The Gemara in Bava Kama (27b) says that any person is entitled to reclaim an object which someone stole from him and he is not required to go to Beis Din. On the other hand, Rav Yosef certainly does not mean that a Talmid Chacham, when involved in a dispute over a monetary matter, may analyze the case on his own and issue a Halachic ruling for himself. One is not allowed to serve as a Dayan (judge) or even a witness in a case which involves his relative, and certainly not in a case which involves himself!
(a) The RA'AVAD (cited by the ROSH and the TUR YD 334) and RABEINU CHANANEL explain that Rav Yosef does not refer to the right to issue a Halachic ruling for oneself or the right to reclaim a stolen object on one's own accord. Rather, he refers to the authority granted to a Talmid Chacham to issue a declaration of Niduy on someone who acted disrespectfully towards him.
The Gemara earlier teaches that a Talmid may declare Niduy on someone who disgraced him but the Niduy is not absolute; only the other Talmidim are required to observe it, but not their Rebbi. Rav Yosef now adds that when a person disgraces a Talmid in a manner for which the Chachamim specifically prescribed Niduy (for example, he called the Talmid a slave, an act which is punishable with Niduy, as the Gemara in Kidushin (28a) teaches), it is a "matter which is clear" ("Milsa d'Pesika") that the perpetrator deserves to be placed in Niduy. When the Talmid declares the person to be in Niduy in such a situation, that Niduy must be observed by everyone, even by the Rebbi, for it is considered as though Beis Din itself placed the person in Niduy.
(b) However, RASHI (as cited by the TOSFOS HA'ROSH and the TUR; see also SHILTEI GIBORIM) explains that the Gemara indeed refers to a situation in which someone owes money to the Talmid Chacham. Rav Yosef rules that not only may a Talmid Chacham take back the money owed to him (as every person may do, even one who is not a Talmid Chacham), but he may even enforce his right to the money by declaring the other person to be in Niduy until the money is returned. (A layman, in contrast, does not have this authority.) This is also the explanation of the CHIDUSHEI HA'RAN.
The ROSH rejects this explanation based on the argument mentioned above: a Talmid Chacham should not be allowed to judge his own case by himself because his judgment is biased. (See, however, TESHUVOS HA'ROSH 6:25-26, where the Rosh apparently accepts Rashi's interpretation of the Gemara, as HAGA'ON RAV YISRAEL ZEV GUSTMAN zt'l points out in KUNTRESEI SHI'URIM 15:5.)
Rashi apparently maintains that the Halachah that a Talmid Chacham may place someone in Niduy in order to get his money back is merely an extension of the Halachah that allows a person to do justice for himself and take back a stolen item. Just as any person, even a layman, may take back something that belongs to him, a Talmid Chacham is entitled to do even more and to enforce his right to reclaim his object through a Niduy. The fact that he is biased does not affect the Halachah that permits a person to do justice for himself.
The dispute between Rashi and the Rosh may depend on a basic understanding of the nature of the Halachah that one may do justice for himself to reclaim a stolen object. The Rosh maintains that this Halachah of "Avid Inish Dina l'Nafshei" ("a person may do justice for himself") means that the person is not required to go to Beis Din in order to reclaim something which he knows is his, because he does not need an official verdict ("Psak Din") to give him the right to reclaim his object. The proclamation of a Niduy, however, requires a Psak Din; a person is not vested with the authority to issue a Psak Din on his own (and especially not for his own benefit), even a Talmid Chacham. Rashi, on the other hand, may understand that the Halachah of "Avid Inish Dina l'Nafshei" means that a person is vested with the authority of a Beis Din with regard to reclaiming something that is his. In other words, he is authorized to issue a Psak Din allowing him to take back an object that was taken from him unlawfully (as described by Rav Gustman zt'l in Kuntresei Shi'urim to Bava Kama 15:2-3 and 7). Accordingly, just as one may issue a ruling enabling him to take back his object, he also may issue a ruling of Niduy (if he is a Talmid Chacham).
Rav Gustman zt'l himself (ibid. 15:5) suggests that the Rosh agrees that the Halachah of "Avid Inish Dina l'Nafshei" grants a person the status of a Beis Din. However, the Rosh does not accept the possibility that "Avid Inish Dina l'Nafshei" is expressed differently for a Talmid Chacham than for a layman. Therefore, he assumes that the Gemara refers to a situation in which the rule of "Avid Inish Dina l'Nafshei" does not apply at all. His question is that just as "Avid Inish Dina l'Nafshei" does not apply in this situation (for whatever reason), making a Niduy against one's opponent is not permitted in this situation.
(c) The SHITAS RIVAV (the nephew of the Ba'al ha'Me'or) explains (in his second answer) that the Gemara means that not only may a Talmid Chacham reclaim an object that is his, but he may even decide for himself that the law is in his favor and reclaim the object based on his interpretation of the law. That is, he may issue a Psak Din on his own (as long as he later presents his arguments before the court and they are accepted; Kuntresei Shi'urim ibid.).
The Rivav apparently is not bothered with the Rosh's question of why a person is permitted to rule in a case in which he is personally involved. Rav Gustman (ibid.) explains that the Rosh and Rivav argue about the extent of the applicability of the rule of "Avid Inish Dina l'Nafshei." The Rosh understands that this rule merely gives a person the right to reclaim an object by force, but it does not give him the status of Beis Din to rule on its ownership. The Rivav understands that the rule of "Avid Inish Dina l'Nafshei" even allows a person to rule on the matter, if he is a Talmid Chacham. (Others understand that even a layman has the right to "issue a ruling" on the matter, provided that he can uphold it later in court; ibid. 15:6.)
(d) The RITVA explains that Rav Yosef refers to the principle of "Avid Inish Dina l'Nafshei." Why does Rav Yosef mention a Talmid Chacham if this principle applies to every person? Rav Yosef's intention is to teach that even a Talmid Chacham may carry out justice for himself. One might have thought that it is below the dignity for a Talmid Chacham to take the law into his own hands; a Talmid Chacham is expected to act more respectably. Rav Yosef teaches that a Talmid Chacham may reclaim an object that was stolen from him and no Chilul Hash-m is involved in doing so. This also appears to be the view of the OR ZARU'A cited by the HAGAHOS ASHIRI, who says that this principle permits both a layman and a Talmid Chacham to reclaim objects that rightfully belong to them, and both may even proclaim a Niduy to ensure the return of their objects.
When the Gemara says that one may do justice for himself "when the matter is clear," it means that one may declare the other person to be in Niduy only when he outright refuses to pay him, but not when he merely procrastinates.
(Rav Gustman zt'l (ibid. 15:5) cites the words of the BI'UR HA'GRA (CM 4) who also understands that the Gemara means that a Talmid Chacham may seize what rightfully is his, but he suggests that there is a difference between a Talmid Chacham and a layman. A Talmid Chacham may seize the object even if he is unable to prove that the object belongs to him at the time he seizes it; he may seize it as long as he finds evidence later that may be brought before the court. A layman who seizes an object before he has valid evidence that the object belongs to him must return the object even if he later finds evidence that the object is his.)
HALACHAH: With regard to one who disgraces a Talmid Chacham, the SHULCHAN ARUCH (YD 334:45) rules like the RA'AVAD that a Talmid may declare that person to be in Niduy, and the Niduy takes effect as though Beis Din had declared it.
With regard to monetary matters, the SHULCHAN ARUCH (YD 334:46) rules like the OR ZARU'A that anyone may place his disputant in Niduy when he outright refuses to pay. The REMA, however, is stringent and rules like the ROSH that neither a layman nor a Talmid Chacham may place his disputant in Niduy when he refuses to pay.
2) PERMISSION TO SIN
QUESTION: The Gemara quotes Rebbi Ila'i who says that if a person has an urge to sin and feels that his Yetzer ha'Ra is going to overcome him, he should go to a place where nobody knows him, dress in black clothing, wrap himself in black, and then do what his heart desires, in order not to desecrate Hash-m's name in public.
The advice of Rebbi Ila'i is very difficult to understand. Regardless of how strong a person's urge to sin is, there are never grounds to permit a person to surrender to his Yetzer ha'Ra. How can Rebbi Ila'i give permission to a person to sin?
(a) RABEINU CHANANEL explains that Rebbi Ila'i does not actually permit a person to sin. Rather, he refers to a case in which a person has an urge to drink an intoxicating beverage while he listens to alluring songs in order to make himself merry in a way that will arouse his Yetzer ha'Ra to entice him to sin. In such a situation, Rebbi Ila'i instructs the person to perform the merry-making activities -- which are not sins themselves -- in private and while dressed in black, to prevent Chilul Hash-m. Rabeinu Chananel adds that Rebbi Ila'i does not intend to permit the person to do even these actions. Rather, Rebbi Ila'i means that when one goes to a foreign place and dresses in black, his heart will be humbled and his desire to engage in merry-making activities will be broken.
(b) RASHI in the name of RAV HAI GA'ON explains that Rebbi Ila'i indeed refers to actual sins of immorality. However, he does not give permission to commit them. Rather, he means that if the would-be sinner goes to a foreign place and dresses in black, he guarantees that the person will become humbled and his urge to sin will depart.
(c) In his other explanation, RASHI writes that Rebbi Ila'i's words are to be understood in their literal sense. If a person feels compelled to sin, he should do so in private so that he will not desecrate Hash-m's name in public. Sinning in private removes some degree of the severity of the sin.
(d) The RIF writes that the Halachah does not follow Rebbi Ila'i. Rather, a person who has an urge to sin is not permitted to go to a foreign place, dress in black, and fulfill his desires. Rather, he should make every effort to break his urge to sin, because it is within every person's ability to refrain from sinning. The Gemara in Berachos (33b) states that "ha'Kol b'Yedei Shamayim Chutz m'Yir'as Shamayim" -- "everything is in the hands of Hash-m except for fear of Hash-m," which is within the ability of a person to achieve.
The Rif implies that he understands Rebbi Ila'i's advice -- that a person who feels unable to refrain from sinning should sin in private and not desecrate Hash-m's name in public -- to be in disagreement with the fundamental principle of free choice. How, though, can the Rif ascribe such a view to Rebbi Ila'i? The belief that man has free choice is the fundamental principle of Torah observance. RAV ELCHANAN WASSERMAN Hy'd raises this question and leaves it unanswered (KOVETZ MA'AMARIM 7:8).
Apparently, the Rif means that there are times when a person's desire is so strong that he does not have the willpower to overcome it. It is not within his threshold of Bechirah, free choice, to choose not to sin in this particular way (see MICHTAV ME'ELIYAHU I:2:2, p. 113); his urge to sin is like an addiction. However, he also does not know for certain that he will not be able to overcome his urge, and therefore he must put forth every effort to overcome it.
3) THE DURATION OF A "NIDUY"
QUESTION: The Gemara relates that Reish Lakish was put in Niduy because he pronounced an undeserved Niduy on someone else. He was told to go to the Nasi who would be able to annul his Niduy.
The Gemara implies that Reish Lakish did not need to wait thirty days before his Niduy could be annulled, but that he could have his Niduy removed right away.
However, the Gemara earlier (16a) quotes Abaye who rules that when a person is put in Niduy for a non-monetary matter, the Niduy must last for at least thirty days. Moreover, the Gemara there cites a Beraisa which says that a Niduy does not last less than thirty days. How, then, could Reish Lakish have his Niduy annulled immediately without waiting for thirty days to pass?
(a) The RIF explains that the Halachah does not follow the ruling of Abaye. A Niduy, even one pronounced for a monetary matter, may be removed immediately.
How does the Rif understand the Beraisa which says that a Niduy must last for thirty days? If the Beraisa refers to a person who went to Beis Din to have his Niduy removed, then why does he need to wait thirty days? If the Beraisa refers to a person who did not go to Beis Din to have his Niduy removed, then even after thirty days have passed he remains in Niduy (like the person whom Rav Yehudah put in Niduy and who died while in Niduy).
The RA'AVAD (cited by the Rosh 3:7) explains that the Beraisa refers to a person who goes to Beis Din to remove his Niduy. However, in order to remove the Niduy before thirty days have passed, he must first appease the person whom he offended. If he does not appease the victim of his offense, he nevertheless may go to Beis Din after thirty days have passed and have the Niduy removed. Although he did not appease his victim, his Niduy may be removed because he has suffered enough (thirty days) for his sin. (This is similar to a person who receives Malkus who is not punished with more than the prescribed amount of lashes, even though he did not appease his victim.)
(b) The RITVA explains that when the Gemara earlier says that one must wait thirty days, it means that the Niduy is automatically removed after thirty days. If, however, the person goes to Beis Din earlier to request that his Niduy be removed, it can be removed within thirty days. That is why Reish Lakish was able to remove his Niduy before thirty days had passed.
(According to this explanation, in the case of the person whom Rav Yehudah put in Niduy, apparently Rav Yehudah specified that the Niduy would last longer so that it not be lifted automatically after thirty days.)