1) MAY A KNOWN HALACHIC EXPERT JUDGE ALONE?
OPINIONS: The Gemara quotes a Beraisa which states that monetary matters are to be judged by a Beis Din comprised of three judges, but a known expert may judge alone. Rav Nachman and Rebbi Chiya commented that they, as experts, judged alone.
The Gemara earlier (3a) records an argument about whether the Torah requires three judges or one judge in cases of monetary law. How does this Beraisa relate to that argument?
(a) RASHI comments that this Beraisa maintains that even one judge is valid mid'Oraisa. He quotes the verse that was quoted earlier (3a) by the opinion which says that one judge is valid mid'Oraisa: "b'Tzedek Tishpot Amisecha" (Vayikra 19:15), with "Tishpot," in the singular form, implying a single judge. Rashi continues and says that this opinion also maintains that the words in the Torah which imply that an expert judge is required do *not* apply to all cases of judging (through "Eiruv Parshiyos," see Background to Bava Basra 2:43), and thus even ordinary people may judge.
(b) TOSFOS questions Rashi's opinion from the Gemara (6a) which quotes Rebbi Avahu who says that everyone agrees that two ordinary people may not judge monetary matters. According to Rashi, why does the Gemara not question Rebbi Avahu's statement from this Beraisa?
Furthermore, the Gemara here continues by questioning whether a judgment rendered by a lone, expert judge is valid if he did not receive permission to judge from the Reish Galusa. If even one ordinary person is allowed to judge, then why would the judgment of an expert not be valid? It must be that this Beraisa *does* concur with Rebbi Avahu's opinion that one ordinary person may *not* judge, but, nevertheless, a lone expert judge *is* allowed to judge.
Tosfos therefore states that this Beraisa is teaching a Halachah with which everyone agrees. Even the opinion that mid'Oraisa three expert judges are necessary agrees that the Chachamim instituted that one *known* expert can judge alone. The ensuing question of the Gemara -- is an expert's judgment valid when he did not have the permission of the Reish Galusa -- is only according to Rebbi Chiya, because this question is only a question if one indeed maintains that there is a requirement mid'Oraisa of three judges (which Rav Nachman does *not* maintain). After the Gemara mentions that even Rebbi Chiya recognizes the enactment mid'Rabanan to allow an expert to judge by himself, the Gemara is unsure whether this applies only with permission of the Reish Galusa or even without such permission. Tosfos then states that when the Gemara (6a) questions Rebbi Avahu's opinion from a different Beraisa which teaches that one judge is allowed to judge alone, and it answers that the Beraisa refers to a case in which the litigants agreed to accept the judgment of an ordinary person, it also could have answered that Rebbi Avahu understands that the Beraisa is discussing an expert judge.
The MAHARSHAL and MAHARAM, however, challenge this answer. The same Beraisa continues and says that if the person judging was a known expert, then he is not responsible to pay if he erred in his judgment. Accordingly, the first case in the Beraisa apparently refers to an ordinary person and not an expert. Moreover, Tosfos himself (DH v'Iy Lo) asks a question on Rashi based on this assumption.
The Maharshal and Maharam answer that Tosfos is saying that the first case of the Beraisa is discussing an "ordinary" expert who judges without permission, while the second case is discussing an expert who has Semichah and permission to judge from the Reish Galusa. The Gemara, however, does not want to give this difference as an answer to its question, since the first case in the Beraisa makes no mention that the person judging had any expertise whatsoever.
The MAHARSHA suggests a similar answer. Tosfos' alternative answer for the question from the Beraisa is that the judge in the first case was an expert who was not accepted by the litigants, while the second case refers to a known expert who was accepted by all. (Y. MONTROSE)
2) HALACHAH: MAY A FOREIGN GOVERNMENT APPOINT A "DAYAN"?
QUESTION: The Gemara states that in order for a judge who errs in judgment to be exempt from paying, he must have obtained permission to judge from the leader of the Jews in his country. He may judge anywhere in that country and retain the status of a judge who has permission to adjudicate. The Gemara continues and says that a judge who received permission in Bavel may judge with impunity in Eretz Yisrael (but not vice versa). The reason for this is that the verse states, "Lo Yasur Shevet mi'Yehudah, u'Mechokek mi'Bein Raglav" (Bereishis 49:10). The words "Shevet mi'Yehudah" refer to each Reish Galusa in Bavel who leads the people with the "stick" ("Shevet"), while the term "u'Mechokek" refers to the grandsons of Hillel who taught Torah in public.
The Gemara's intention does not seem clear. How does the Gemara learn from this verse that the authority of the ruling party in Bavel is greater than the authority of the ruling party in Eretz Yisrael?
(a) RASHI states that the authority of the leaders of the Jews in Bavel was greater because the king of Persia authorized them to judge as they deemed fit.
According to Rashi, this is the difference between Bavel and Eretz Yisrael. In Bavel, the Reish Galusa had governmental backing to enforce his rulings, while in Eretz Yisrael the Nasi did not have that extra authority.
(b) TOSFOS explains that the difference is expressed by the Yerushalmi which says that "the Rosh Golah [in Bavel] was descended from the males of the house of David ha'Melech, while the Nasi in Eretz Yisrael was descended from the females." Tosfos understands that the greater degree of authority depends on whether the leader is descended from David ha'Melech patrilineally or matrilineally. (See MAHARAM SHIF here who explains how this is derived from the verse of "Lo Yasur Shevet.") As the verse states, the authority to judge comes from Yehudah and from being part of the family of David ha'Melech. Since the Reish Galusa was descended patrilineally from David ha'Melech, he was considered the one who retained the ultimate permission to judge.
HALACHAH: The RIVASH (Teshuvos #271) issues a practical ruling based on the explanation of Rashi. In the times of the Rivash, one of the most eminent Talmidei Chachamim in France appointed a certain Rav to be the chief Dayan of all of France. This eminent Talmid Chacham also proclaimed that if any judge issues a ruling in France without the permission of the newly appointed chief Dayan, then all of the divorces that the judge has performed will be considered invalidated. The government of France, however, had already appointed a different Dayan as the presiding judge in France (to take the place of his father who had filled that position).
Was the eminent Talmid Chacham correct in circumventing the government's appointment?
The Rivash rules that the Talmid Chacham indeed acted improperly. The Rivash quotes the words of Rashi here (among many other sources) as proof for his ruling. As Rashi says, the government's granting of authority gives a greater degree of power to its appointed Dayan than that of a Dayan who does not have the backing of the government. Therefore, one cannot overrule that power. The BACH (CM 3) concurs with the Rivash.
The TUMIM (CM 3:6) takes issue with this interpretation of the Gemara and Rashi. He asserts that since the king of Persia had no authority in Eretz Yisrael (which was ruled by the Roman Empire), it should have had no bearing on a judge's authority in Eretz Yisrael. Furthermore, Rebbi definitely had permission from his own friend, the Roman Emperor, Antoninus, to do whatever he wished in Eretz Yisrael. Moreover, at that time Rome was the most powerful empire in the world, and thus, according to the logic of Rashi, the Halachah should be that one who obtained permission to judge in Eretz Yisrael certainly should be permitted to judge in Bavel!
The Tumim therefore proposes that even Rashi agrees that the Gemara's determining factor is the lineage of the leader. He explains that when Rashi says that the kings of Persia gave them permission to judge, he means to explain merely how they were able to judge even though they were ruled by a foreign power.
The REMA (CM 3:2) cites a dispute about whether a Dayan appointed by a foreign kingdom has Halachic authority. He quotes the TUR who disagrees with the Rivash. The BI'UR HA'GRA points out that these two opinions are based on the different explanations given by Rashi and Tosfos to the Gemara here. The Vilna Ga'on's words clearly imply that he does not agree with the Tumim's interpretation of Rashi. (Y. MONTROSE)
3) "BEITZAH" OR "BEI'A"
OPINIONS: The Gemara relates that Rebbi visited a town and saw everyone kneading dough in impure vessels. When he inquired about their actions, the people of the town told him that "a certain Talmid told us that Mei Betza'im (water of swamps) does not have the ability to make a food susceptible to Tum'ah." They assumed, therefore, that since their dough was made with such water it could not become Tamei from their vessels.
This was an outright mistake, as the Talmid actually had said "Mei Beitzim" (the liquid of eggs), and not "Mei Betza'im," swamp water. The people did not realize their mistake, and they even cited support for it from the Mishnah in Parah (8:10). The Mishnah there states that certain types of waters cannot be used for the Mei Chatas, the sprinkling of the ashes of the Parah Adumah, because they are swamp waters. They erroneously reasoned that the Mishnah there was the source for the Talmid's ruling: since such water is not usable for the Parah Adamah, it also must not be suitable to make something capable of becoming Tamei. As a result of that incident, the Chachamim decreed that a Talmid may not issue a ruling unless he has received permission from his Rebbi to do so.
The Acharonim cite this Gemara when they discuss whether it is preferable to pronounce the word "Beitzah" (egg) as "Bei'a" (the Aramaic word for "egg").
(a) The MAGEN AVRAHAM (end of OC 156) in the name of the MAHARSHAL (Yam Shel Shlomo, Bava Kama 4:11) writes that "it is proper to say ['Bei'a' or] 'Bei'im' instead of ['Beitzah' or] Beitzim,' in order to maintain a high standard of purity of speech." (The word "Beitzah" is used by the Chachamim to connote part of the male reproductive system, and thus it is improper to utter it unnecessarily, as the Gemara in Pesachim (3a) teaches that one should accustom himself not to speak in an improper manner.) Based on this, many people have the custom to refer to Maseches Beitzah as "Bei'a," which is the Aramaic term for "egg."
(b) The IYEI HA'YAM (cited by the Likutim on the Mishnayos), however, refutes this practice. He points out that there is no source anywhere in Shas that indicates that the Chachamim refrained from pronouncing the word as "Beitzah" or that they classified the word as improper speech. In fact, the Chachamim even used the word to describe many oblong objects (such as "Beitzas ha'Gir," Beitzah 15a).
Furthermore, he argues, what does one gain by merely translating the Hebrew word to Aramaic if it has the same meaning in both languages? (See, however, BEIS EFRAIM, Teshuvos OC 15.) As clear proof that the word was pronounced "Beitzim" in the times of the Chachamim, he cites the Gemara here in Sanhedrin. Had the Talmid, when he referred to the liquid of eggs, not used the term "Betza'im" but rather "Bei'im," no mistake would have resulted. The townspeople would not have confused "Bei'im" with "Betza'im." (TOSFOS even has difficulty with how the townspeople confused the word "Beitzim" with "Betza'im." He explains that they thought that they heard the Talmid say "Bitzim" which they assumed was "Betza'im." Nonetheless, they would never have made this mistake had the Talmid said, "Bei'im.")
(c) These arguments prompt the TIFERES YISRAEL (introduction to Beitzah) to suggest that the practice of not pronouncing the word as "Beitzah" is unrelated to concern for improper speech. Rather, he explains that since an error in Halachah was made because of the similarity between the words "Beitzim" and "Betza'im," the practice arose to pronounce the word "Bei'a" when used in a Halachic context in order to prevent such mistakes from happening again.
Nowadays, the generally-accepted practice is to pronounce the word "Beitzah," except in reference to the name of the Maseches, which some refer to as "Bei'a." Although the Iyei ha'Yam quotes the son of the Vilna Ga'on who testifies that the Vilna Ga'on called the Maseches "Beitzah" in contrast to the practice of the Magen Avraham, many continue to pronounce it "Bei'a" today. In defense of this practice, it may be suggested that the source for this pronunciation is the Gemara in Bava Kama (3b) which explains that the word "Mav'eh" (from the root "Ba'a") has two meanings: it connotes either *praying* or *eating*. The Gemara in Beitzah (15b) quotes Rebbi Yehoshua who maintains that one must divide the day of Yom Tov into two parts and dedicate half of the day "Lachem" ("for you," for culinary pleasure) and half of the day "la'Hashem" ("for Hash-m," for spiritual pursuits such as prayer and Torah study). Since both of these practices are alluded to in the word "Bei'a" as described by the Gemara in Bava Kama, it is an appropriate name for the Maseches which discusses the laws of Yom Tov. (M. KORNFELD)