[Avodah] Masneh al Mah Shekassav baTorah

[Chana Luntz]

RRW wrote:

> >In a recent daf [BB 126] it is quite clear that anyone who makes a tnai
> >upon what is written in the Torah, that t'nai is batteil.
> 
> >I'm looking at Rema Choshen Mishpat 8:1
> 
> >"Any tzibbur may accept upon themselves a beth din that is not worthy
> >according to the Torah" source givenBeth Yosef in the name of Shu"t
Rashba [sefer toldos adam 290]
> 
>> How can that be so?

And then further elaborates:

>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?

First, I think it would be helpful to understand exactly what the issur from
the Torah being discussed is.

The Mechaber on which this Rema is commenting states:

Kol Hammeamid dayan sheano hegon v'aino chacham bechachmat hatorah vaino
reui lehiot dayan af al pi she hu kulo machmadim v'yesh bo tovot acharot
harey zeh shehamido over b'lo ta'aseh.

This language is taken directly from the Rambam in Hilchot Sanhedrin perek 3
halacha 8 with some important additions:

Kol Sanhedrin or melech or rosh gola she hamido lehen l'yisrael dayan
sheaino hegon v'aino chacham bechachmat hatorah vaino reui lehiot dayan.  Af
al pi she hu kulo machmadim v'yesh bo tovot acharot harey zeh shehamido over
b'lo ta'aseh.  Shenemar  lo takiru panim b'mishpat.  Mipi hashamuah lamdu
shezeh medaber kneged hamamonah l'hoshiv dayanin ...

Ie note that the Rambam limits the application of this halacha to "Kol
Sanhedrin or melech or rosh gola", while the Mechaber drops these words (and
specifies what the lo ta'aseh is, there is more detail there, by the way -
the Rambam goes not to say that the risk is that he will mezakeh et hachayav
umechayav et hazakai, lo mpnei shehu rasha ele mipnei hu lo yodea lkach
yomar lo takiru panim b'mishpat).

OK then let us go onto the language of the Rema that RRW was referring to:

Iriyot she ain behem chachamim hareuim l'hiot dayanim or she kulan amei
ha'aretz u'tztrichim lhem dayanim sheyishpotu beneyhem shelo yavoh lifnei
archot shel akum mamonim hatovim v'hachchamim shebatam (l'dat anshei hair)
af al pi sheaino rauin l'dayanim, v'kivan shekabel alehem benei hair ain
acher yachol l'posllan v'chen kol tzibbur yacholin l'kabel alehem beit din
sheino reuin min hatorah (beit Yosef beshem teshuvat haRashba).

Now if you go to the Beit Yosef and see what he quotes regarding this
teshuva of the Rashba (I would have liked to see it in the original, but the
Beit Yosef quotes it in the name of the Toldot Adam l'Rashba, and I neither
have this, nor could I find it on Bar Ilan or Hebrew Books) a few
interesting points emerge.

Firstly there is more detail about the case. Apparently the cities in
question did not contain anybody who "knew even one letter" - ie you were
talking about a community that was totally illiterate.  And the person
asking the Rashba stated that they needed to appoint somebody who was able
to coerce the baalei denim and if nobody was appointed the litigating
parties would, as you can see already from the Rema, go off to the secular
courts.  And the Rashba responded that: shurat hadin e' efshar l'amid
dayanim sheinam mumchim ele me'daat ba'alei denim .. but that the questioner
needed to go and appoint dayanim  "shehakol l'fi tzorech hasha'ah v'kol
ma'asecha l'shem shamayim"

That is, the Rashba's first response was to cites hora'at hasha'ah.

But it is the second part that is more interesting and which seems to be the
source of the Rema, because the Rashba (as quoted by the Beit Yosef) goes on
to say:
 V'im kibelum alehem anshei hair mutar, v'ain ached mehem yachol l'poslam
d'haynu archot d'ita b rosh perek the borer (23a)."

And he the brings another teshuva of the Rashba in which he writes hatzibbur
yacholim l'manot alehem beit din sheino reui midin torah k'archot
shebesuria.

These courts of Suria are given merely a passing mention in Sandedrin 23a -
with Rashi explaining that these were courts that were not baki b'din torah,
but it does evidence that such courts existed and were accepted (albeit a
bit begrudgingly, see the sugya) in the times of the Talmud.

So what it seems to me the Rashba is saying is this.  There is a lo ta'aseh
for a person in authority (even though in his times there was no Sanhedrin
or melech or Rosh Gola, to use the language of the Rambam) to appoint
somebody who was not suitable according to the Torah, and the only way to
justify such an imposition is by invoking hora'at hasha'ah.  BUT, if the
appointment, instead of being top down, is bottom up, then it changes and
the matter is mutar.

Now I did just want to point out that this discussion parallels a certain
other discussion that we have had on this list in the past, under the
heading Women/Psak  particularly my post at
http://www.aishdas.org/avodah/vol04/v04n032.shtml#13.  That discussion was,
of course, about Devorah judging the people, and I gave three explanations
as per Tosphos.  Please note also the Rashba and the Ramban quoted there as
versions of the third reason "mekablim osah alehem".  Note the similarity in
understanding of the Rashba there and the Rashba here regarding unsuitable
judges.

Again, going back to my earlier post today, I think that the Ran would
understand this as political power going back to the people, but it actually
seems stronger than that, because this indicates that the people as a whole
by accepting something on themselves can do what a king cannot do.

It also to my mind hints and the underlying reason that minhag is so
powerful, particularly when we are discussing minhag that is actually about
deciding between different halachic positions, I don't know though whether
perhaps I am in this last statement trying to reconcile too much.

Kind Regards

Chana

PS MSS also asked: 
> 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...
...
> Good question: What happens when they paskened in a state of lack of 
> knowledge and then a TC comes to town? 

Well there are a couple of issues that come into play.  The first is the
concept of hefker beis din hefker, which means that, at least vis a vis
property, even if they posken wrongly the property is deemed to be taken
legitimately from the one person and given to the other.  And the second is
the concept that is discussed extensively in the beginning of masechet
Sanhedrin (see eg 3a) that if a mumcha does not judge the case, then if the
judge judges wrongly, he can be sued and be require to pay damages. See
there. [Note the whole assumption running through that daf regarding the
existence and judging permissibility of a non expert judge, giving a further
reason as to why the Rambam felt it necessary to specifically state
Sanhedrin or Melech or Rosh Hagola]


PPS again masneh al mah she kassav baTorah is the wrong term to be using in
this context, as tnai is not the correct construct here.