Monetary Cases are Judged by a Beis Din of Three – Sanhedrin 2


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By: Meoros HaDaf HaYomi

Should a get be delivered only before a beis din?

This week the Daf HaYomi learners have concluded Bava Basra and started tractate Sanhedrin and we take this opportunity to address an important topic connected with the beginning of Sanhedrin and the end of Bava Basra.

One of the striking subjects we most perceive as needing a beis din is divorce but, to our surprise, not all halachic authorities accept this assumption. The first posek to devote a broad discussion to this basic question was the Chief Rabbi of Prague, HaGaon Rav Yechezkel Landau, famed as the author of Responsa Noda’ BiYehudah (2nd edition, E.H. 114). The gaon was asked to judge the validity of a bill of divorce (get) arranged by a certain rabbi who had enlisted his son-in-law and another person to form a beis din. As the rabbi and his son-in-law were relatives, the group of three cannot be defined as a beis din and the question remains if the get is valid though not having been delivered in the presence of a beis din. The poskim point out that the Talmud never indicates that a divorce should be enacted only in a beis din but the Or Zarua’ (cited in Terumas HaDeshen, I, 248) states that a beis din is required, and later halachic authorities began to search the Talmud for proof for either opinion.

Bava Basra (174b) quotes Abayei’s question to Rava – “Indeed, does everyone divorce in a beis din?” – giving us to understand that there is no need for a beis din. Still, Rabeinu Gershom’s commentary, printed alongside the Gemora, offers a different text – “Indeed, does everyone divorce in a reputable beis din? One can divorce in an ordinary beis din” – and according to this version, every get must be delivered in a beis din. On the other hand, the Gemora in Bava Basra 176a rules that a get without the signatures of witnesses is valid as long as the wife received it in the presence of witnesses. Apparently, though, asserts the Noda’ BiYehudah, if a get must be delivered in a beis din, why does the Gemora omit that important detail? We must assume, then, that there is no need for a beis din.

The Noda’ BiYehudah proves, however, that a beis din is required from Rashi’s commentary at the beginning of Sanhedrin. Our Mishna lists the procedures that become valid only if performed before a beis din, such as financial or property decisions, chalitzah or mi’un (the refusal of a girl under bas mitzvah age to stay with her husband). Rashi explains the need for a beis din in the case of mi’un as “everything that the chachamim instituted (i.e., all regulations derabanan) they instituted in a form approximating that required by the Torah.” In other words, the regulation derabanan, that a girl under bas mitzvah age married off by her brother may object to the marriage and leave her husband, is performed without a get, but as mi’un resembles divorce, it must be performed before a beis din. The Noda’ BiYehudah therefore deducts that a get must surely be delivered in the presence of a beis din (see Responsa Beis HaLevi, end of Part I; Maharam Schiff, Rashash and Hagahos Rav Y.A. Chaver at the end of the Shas; and Hagahos Chasam Sofer on Noda BiYehudah, at the end of the book, who explains that Rashi intended to compare mi’un only to chalitzah, which requires a beis din).

However, some poskim try to prove the opposite from our Mishna. The Mishna, after all, lists all the procedures requiring a beis din without including divorce. Still, the Noda’ BiYehudah rejects this proof as the need for a beis din in divorce cases is based on the financial and property aspects of divorce and our Mishna states explicitly that “financial cases are judged by a beis din of three.” Referring to the specific question of the rabbi and his son-in-law, he ruled that the divorce should be performed again before a valid beis din because of the various halachic authorities requiring a beis din. Most Acharonim, however, believe that a couple is considered divorced even if the procedure was not enacted before a beis din (see a lengthy discussion of the topic in Pischei Teshuvah, 154; Seder HaGet, S.K. 8; and Sedei Chemed, Ma’areches Get, 1).

The Original City Limits of Yerushalayim

No additions should be made to Yerushalayim or the courtyards of the Temple unless approved by a beis din of seventy-one.

As we all know, Eretz Yisroel has a special sanctity and the observation of many commandments depends on one’s being there. Yerushalayim was even more sanctified for certain mitzvos decreed by the Torah to be performed in the vicinity of the Temple, such as eating ma’aser sheni, and our Mishna explains that only a beis din of seventy-one – the Great Sanhedrin – can annex and sanctify more territory to the original area of Yerushalayim. The Mishna in Shevuos (14a) adds that the Sanhedrin also requires the consent of the king, a prophet and the Urim VeTumim on the breastplate of the Kohen Gadol. According to our known historical sources, the area of the original city of Yerushalayim was enlarged only once and in the opinion of certain researchers, including HaGaon Rav Yechiel Michel Tikotchinski zt”l, this was accomplished during the reign of King Chizkiyahu (‘Ir HaKodesh VeHaMikdash, II, Ch. 5).

The Tosefta to Sanhedrin (3:4) cites Aba Shaul, that “there were two pools in Yerushalayim: the lower and the upper; the lower pool was sanctified with all these requisites but the upper pool was sanctified only with the arrival of the exiles (in Ezra’s era) without a king and without the Urim VeTumim.” (A “pool” obviously means the environs around the pool). Many researchers, Jewish and non-Jewish, have pondered the location of the Lower Pool both from the halachic and -lehavdil- the historical/archaeological viewpoints. As for the halachah, it is vital to know the boundaries of sanctified Yerushalayim as even today there are several halachos that apply only within its limits, such as the following:

i) Ma’aser sheni must not be redeemed – i.e., exchanged for money or other produce – in sanctified Yerushalayim.
ii) Human bones are not to be moved through sanctified Yerushalayim (Rambam, Hilchos Beis HaBechirah, 7:14, based on Avos deRabbi Nasan, Ch. 38).
iii) It is forbidden to bury the dead in Yerushalayim (Rambam, ibid, based on Avos deRabbi Nasan, ibid). Some poskim hold that this halachah still applies (‘Ir HaKodesh VeHaMikdash, III, Ch. 13 – in disagreement with Pe’as HaShulchan, 23 – see his discussion of the graves of the Sambuski family on the southeastern slope of Mount Zion).
iv) Bodies of the deceased must not stay in Yerushalayim overnight (Bava Kama 82b) – a halachah in practice today (Pe’as HaShulchan, Ch. 3, S.K. 23; ‘Ir HaKodesh VeHaMikdash, III, Ch. 14 – in disagreement with the Responsa Radbaz, II, 633).

We have no solid information on the original boundaries of Yerushalayim. Most of the present wall was built by the Turks and researchers rely on archaeological digs revealing older walls. The age of those walls is determined according to the artifacts found near them or by the approximate antiquity of their stones. It is only natural, then, that many opinions have been expressed but in our limited framework we shall focus on that of Rav Tikotchinski in his ‘Ir HaKodesh VeHaMikdash.

The “Old City” is not that old: All researchers agree that the area originally sanctified and walled by King David and King Shlomo (Melachim I, 9:15; Divrei HaYamim I, 11) is not contiguous with the area now called the “Old City.” The latter includes the Temple Mount and territory to the north whereas King David’s city was built to the south. A large area south of the present wall, therefore, bears the original sanctity of Yerushalayim. Between 5654-57 researchers discovered a wall far from the present one, judged to have been built in the era of the First Temple. If this estimate is correct, the pools of Shiloach and El Khamrah and the streets called Maalot Ir David, Wadi Khilwah, Malkitzedek and Ma’aleh HaShalom are within the borders of sanctified Yerushalayim. Another wall was found 16 meters east of the Old City and some therefore believe that the city’s original sanctity extends that far to the east.

Where, though, is the Lower Pool annexed to Yerushalayim by King Chizkiyahu? Rav Tikotchinski maintains that it is somewhere north of the Temple but south of the present northern wall and, in his opinion, all of the Old City bears the original sanctity of Yerushalayim. Others, however, disagree because of the presence of a few graves in the Old City from the Second Temple era discovered after Rav Tikotchinski’s demise. As it is forbidden to bury the dead in Yerushalayim, the entire Old City cannot be included in the originally sanctified area though there is the possibility that the graves were dug in opposition to the halachah (see Entziklopedia Talmudis, Vol. 25, Appendix to the article on Yerushalayim, column 707, footnotes 32 and 106). All this pertains to the sanctity of Yerushalayim as decreed by the Torah but according to the Maharit (II, Y.D. 37), we should extend its sanctity by rabbinical decree to include the Upper Pool, added to Yerushalayim without the Urim VeTumim. In his opinion, then, the sanctity of Yerushalayim stretches out to the Third Wall, near the Mandelbaum Gate west of the Old City, to the valley known as Jurat-il-Anab.

The Mi’un of Sulka, the Sister-in-law of Rabbi Yaakov Polak

Chalitzah and mi’un are performed in a beis din of three.

Our sages instituted a regulation whereby a girl whose father had died could be wed in certain circumstances, though still under bas mitzvah age (see Tur Shulchan ‘Aruch, E.H. 155). Such a girl may refuse to stay with her husband as long as she has not attained bas mitzvah age. Her marriage becomes void with no need for a get and our Mishna asserts that she must declare her mi’un (“refusal”) before a beis din of three. Mi’un occupies many sugyos throughout the Talmud and a chapter of 22 paragraphs in Shulchan ‘Aruch (E.H. 155).

In our era the custom to marry off young girls has ceased except in Yemen, where it persisted to save them from certain decrees. One the other hand, till 500 years ago poskim discussed questions involving such marriages and, first and foremost, mi’un. Six hundred years ago there was a posek in Germany called Rabbi Menachem of Miersburg, author of Me’il Tzedek and sometimes known as Rabbi Menachem HaMeili for his masterwork. Accoding to HaGaon Rav Shlomo Luria (Yam shel Shlomo, Yevamos, ch. 13, #17), “he instituted several regulations to protect the Torah and was a great expert and his regulations and decrees were accepted throughout Ashkenaz (Germany and the neighboring lands).” One of his decrees did away with mi’un and required any wife to leave her husband only with a get in order to prevent people from saying that couples could part without a get, eventually leading to some disregard for the mitzvah. In addition, there was the suspicion that a girl would declare mi’un in the presence of unlearned persons who would not ascertain that she was still a minor, not requiring a get.

Five hundred and ten years ago, in 5252, an orphaned girl by the name of Sulka was married off by her mother and brother to a Torah scholar, Rabbi David Tzenner. After a while, and still being under bas mitzvah age, she expressed the wish to leave him and since her husband refused to divorce her with a get, her relatives instructed her in the procedure of mi’un and she performed that requirement. Her sister’s husband was Rabbi Yaakov Polak, the founder of the pilpul method of Talmudic study, one of the leading Torah scholars of that generation and a rosh yeshivah in Prague, where he taught thousands of students. He agreed to the mi’un and allowed Sulka to remarry without a get.

Many leading halachic authorities vehemently objected to Rabbi Polak’s decision, including one of his teachers – HaGaon Rav Y. Margalios, author of Seder HaGet – and MaharY Mintz (Responsa, §13) who insisted that the procedure of mi’un should be discarded according to the regulation of Rabbi Menachem of Miersburg. They forbade Sulka to remarry without a get and even imposed excommunication (niduy) on anyone opposing their decision. Still, Rabbi Polak ignored their ruling, proved that the regulation against mi’un had not been accepted and that mi’un had been in practice since the era of Rabbi Menachem of Miersburg and married off Sulka without requiring her to receive a get. Rabbi Polak left Prague as a result of the stormy altercation and settled in Krakow, where he stayed for 35 years and established a large yeshivah which contributed greatly to turning Poland into the most important center for Torah study in Europe for hundreds of years.

How was the halachah eventually decided regarding mi’un? Maharshal (Yam shel Shlomo, ibid) offers a short description of the above event, which occurred in the previous generation, and relates that according to his knowledge, Sulka’s second marriage failed due to the annoyance of the leading Torah authorities. He holds that mi’un must no longer be performed and if enacted, the girl must not remarry without a get unless instructed otherwise by a beis din and even so, such a beis din should be thereafter discredited.

There is no “custom” regarding a rare occurrence: On the other hand, the Remo was a student of the disciples of Rabbi Polak and devotes a brief discussion to mi’un at the end of the relevant chapter in Shulchan ‘Aruch (E.H. 155). In his opinion, mi’un may be practiced even now, “as performed by Rabbi Yaakov Polak z”l in his era.” Rabbi Shneiur Zalman of Liadi, author of Tanya, explains the Remo’s reason in the responsa at the end of his Shulchan ‘Aruch (§22, based on Rambam). We cannot, he asserts, speak of an established custom regarding instances which occur only rarely, especially where an attempted regulation commands us to refrain from performing a previously accepted procedure (see ibid). We cannot claim, then, that there was a “custom” to refrain from mi’un (see Pischei Teshuvah and ‘Aroch HaShulchan, ibid). The ‘Aroch HaShulchan has doubts about the Remo’s ruling and concludes “when I was young I heard that in the previous generation there had been a mi’un and that the leading Torah authorities objected vigorously but I don‟t know how the matter ended; in our era we have never heard of any mi’un at all.”