[Avodah] Masneh al Mah Shekassav baTorah

[Samuel Svarc]

On Sun, Dec 27, 2009 at 11:47 PM,  <rabbirichwolpoe at gmail.com> wrote:
>
> OK - As per Shas:
> If Reuven makes a tnai in an agreement to disregard a torah law the condition is bateil.
>
> EG from 126 a father cannot make a tnai to disregard hilchos y'rushah
>
> -----------------------
>
> Now OTOH the Rema  pasqens that a tzibbur can - by mutual consensus -agree to disregard Torah laws when appointing a beis din. How can that be?  Since Torah laws may not be disregarded in an agreement therefore how can they be disregarded when appointing dayyanim?  Shouldn't those appointments be bateil?
>
> [Note: FWIW I would guess the Rema is referring to a community that has no better alternative.]

I think you have just answered your question. Their not making a tnai
against Torah - and in fact they can't pasken against anything in
Torah. They are agreeing to be bound by particular people in cases
were they don't know what the din is. E.g. If this BD knows dinnie
yerusha they can't pasken not in accordance. If they don't know then
their psak is valid.

Good question: What happens when they paskened in a state of lack of
knowledge and then a TC comes to town?

KT,
MSS