Shabbat Parashat Terumah | 5770
Hemdat HaDaf HaYomi: A Judge who Made a Mistake (6a)Rav Ofer Livnat
Shevat 30- Adar 6, Sanhedrin 2-8
This week in the Daf Hayomi we begin to learn Masechet Sanhedrin, which deals mainly with the laws of judges. One of the issues the Gemara deals with is that of a judge who erred and ruled incorrectly. This issue is very complex and has many details, and we will only address a certain point.
The Gemara distinguishes between two types of mistakes. The first is a "taut bedvar mishna"- when the judge rules against a clear and explicit Halacha. The second type of mistake is a "taut beshikul hada'at"- when an issue is in dispute between the sages, and the Halacha has not been explicitly ruled in favor of one opinion. However, common practice is like one of the opinions, and the judge ruled like the other opinion.
In a case of a "taut bedvar mishna," the ruling is nullified, and the judge must rule again. However, in a case of a "taut beshikul hada'at," the ruling usually stands, and in certain situations the judge must compensate the one who was damaged by the judge's error.
The Rishonim disagree as to the possibility of a "taut beshikul hada'at" in our days. According to the Rambam (Perush Hamishna Bechorot 4, 4 and Hilchot Sanhedrin 6, 2), the possibility of a "taut beshikul hada'at" in our days is extremely limited. According to his opinion, any ruling which is against the Gemara is considered a "taut bedvar mishna." However, any ruling which cannot be refuted from the Gemara is not considered as mistaken. The only possibility of a "taut beshikul hada'at" is if there is a dispute in the Gemara itself and the Halacha wasn't ruled in accordance with one opinion, but common practice is like one opinion.
However, according to the Rosh (Sanhedrin 4, 6), even in our days a "taut beshikul hada'at" is probable. He claims that if there is a dispute between the Poskim after the Talmud, if the judge is able to determine which opinion he believes to be correct, then he may do so. However, if he cannot decide, and one opinion is more accepted amongst the judges, and he ruled like the other opinion, then it is considered a "taut beshikul hada'at."
Summary and Ruling:
The Shulchan Aruch (Choshen Mishpat 25, 2) rules like the opinion of the Rambam that a "taut beshikul hada'at" is possible only when there is a dispute in the Gemara, and the Halacha was not ruled in accordance with one opinion, but common practice is like one opinion. The Shach (7) rules like the Rosh that a "taut beshikul hada'at" exits also when there is a dispute amongst later Poskim when the judge cannot decide between the opinions, and one opinion is more accepted.
Top of page
Print this page
Send to friend
More articles from this issue:
Hemdat Yamim is dedicated In memory of