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 Shabbat Parashat Massei| 5766P’ninat MishpatMishpat Ve halacha Be Israel - Part XX - The Basis of a Contemporary Beit Din’s Authority - Part I - Harav Yedidya Kahane
We are switching our focus from specific procedures of batei din (and our beit din, in particular) to a deeper look at the underpinnings of a contemporary beit din’s ability to serve as such. We will develop the concept of shlichutayhu ka’avdinan (we do their agency), as found in a couple of places in the Talmud.
The mishna (Sanhedrin 2a) states that cases of hodaot and halvaot (roughly, monetary matters that stem from agreements) are judged by three dayanim who are not semuchim (fully ordained). (Note that full ordination has to be passed on from one to another from Moshe Rabbeinu and that this chain was broken during the Talmudic period.) There is a machloket among Amoraim about the reason. One says that three semuchim should have been needed, but since they are hard to find, the Rabbis waived the need for semuchim in order to not discourage people from lending. The other approach is that one, non-samuch judge should have sufficed, but the Rabbis required three in order to ensure that at least one of them would be knowledgeable.
But how do we judge nowadays, without semuchim, in those matters not based on agreement, which certainly should need semuchim? The gemara explains that shlichutayhu ka’avdinan (Bava Kamma 84b: Gittin 88b). In other words, it is considered that we are agents of the semuchim of previous generations.
The Rambam’s stance is confusing. On one hand, he says that from the Torah, one dayan should have been sufficient (Sanhedrin 2:10). Yet, he elsewhere invokes the concept of shlichutayhu in order to justify the use of non-semuchim by hodaot and halvaot (ibid. 5:8). This is difficult, as the aforementioned gemara assumes that shlichutayhu is needed only according to the stringent opinion, which the Rambam doesn’t seem to accept. The truth is that another gemara seems to contradict the former Rambam. Rav Yosef explains that he was able to coerce (under certain circumstances) the giving of a get, despite the absence of semuchim, based on shlichutayhu, just as it is by hodaot and halvaot.
To answer these questions, the Ktzot Hachoshen uses Tosafot (on Sanhedrin 2b) who points out that two different p’sukim are cited to require semuchim. Tosafot explains that different sources are needed to deal with simple adjudication and with judicial coercion. The K’tzot goes on to explain that the Rambam is talking on two different levels. The Rambam rules that the authority to render a ruling is given from the Torah to even a single, non-samuch. Yet, even according to this opinion, only three semuchim can impose their authority from the Torah, except where shlichutayhu is employed. Thus, in a case that a dayan acts alone as an agreed upon arbitrator, one is sufficient, even without semicha. To force adjudication, three are always required and it works without semuchim only where shlichutayhu is applicable.
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