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JUICE 2000 Jewish University in CyberspacE

The discussion this past Sunday began with a reaction to Ben Nannas (Last week's mailing) and the implications of his ruling.

As you recall, Ben Nannas had ruled elsewhere on a case where an employer promises to pay his worker with merchandise bought from a store on the employer's account. The worker comes back to the owner and says he never received his merchandise and the storekeeper says he paid him. The hakhamim said they take an oath. Ben Nannas said they cannot swear because [at least] one will be taking a false oath. Here, however, we have a different circumstance.

Our Gemara said even Ben Nannas might agree with our Mishnah here since it's possible both claimants believe they are telling the truth when each says "I found it" or "It is mine." .

We begin with a question on Ben Nannas' ruling. If the storekeeper and employee do not swear, we are left with a circumstance where the employer now has to pay both the storekeeper and his employee - and he seems to be the only clearly honest one in the group.

FROM THE CHAT ROOM, APRIL 2, 2000:

Avi> …I hate to think that BN didn't realize the unfairness of his halakhah.

Ilan> There is something I don't understand. Ben Nanas does not allow an oath because some one will not tell the truth. But you can say the same about the Mishna that gives the object to some one who is not the real owner. Actually any beit-din who decides on a compromise is doing the same It seems that Ben Nnanas prefers that no one will take a false oath before G-d and that reason does not appear in the Mishna

SSlivko> No, it does not. But the Gemara says that's because it's possible both parties here are telling the truth, therefore even Ben Nannas would say it's not swearing falsely. That is clearly not the case in the other Mishnah where it's impossible that the storekeeper and the worker are telling the truth

Avi> Actually, Steinsaltz brings another opinion that both would be uttering a "shvuat shav", one would be making a false oath and one would be making an unnecessary oath. Why not say the same thing here that both are making unnecessary oaths which is also an aveyra [sin]?

Werner> Good question. Maybe it's like what we've been saying all along. That these two have to take an active role in the decision, not that we need to have them swear.

Rachmiel> Maybe the oath does just that, forces them to be active in the decision, rather than forcing the beit din to make the decision

Ilan> .Maybe the reasons are different. Maybe Ben-Nannas thinks a false oath is worse than not finding the real owner

SSlivko> I think what Rachmiel and what Ilan says compliment each other

Avi> How so?

SSlivko> We said several weeks ago, that there is a mandate of "Tzedek tzedek", namely just justice, or justice which is righteous. That means, the beit din has to balance between due process & the "greater good". Just because it follows the right procedure [making the parties take an oath] doesn't mean the verdict is the right verdict. Sometimes, the beit din has to do the "wrong thing" for the right reasons.

Rachmiel> How is that?

Ilan> Is that like "Lasot syag Ltora" [to make a fence around the Torah - to protect Its violation by adding restrictions]?

SSlivko> Take the case of Ben Nannas. As Ilan says, a false oath may be worse that who is the right owner. Ben Nannas believes that the beit din has to do all in its power to avoid having these two (or one of them) swear falsely, so they say no oath, in other words, the keep the whole process out of the normal beit din procedure. In effect, they are saying we can't prove it, so we won't do anything legal. Let the litigants work it out. The "syag" to which Ilan alludes is we must keep the Torah safe, not try to put people in a position which will cause them to transgress.

Werner> But it's still unfair to the one who hired the workers.

Rachmiel> I cannot see how a false oath could advance a proper decision, especially if the beit din proceeded on the assumption it was not false.

SSlivko> That's the point. A false oath cannot advance the decision. That's why BN says administer no oath, because it will not advance the decision properly. Rather do nothing, that is, turn away than make someone swear falsely. That's what I mean by doing the wrong thing, in this case ..

Avi> Actually, he's no worse off than before according to BN.

SSlivko> And what happens is, according to BN, the beit din preserves the Torah and says this case is out of our jurisdiction. You litigants have to handle it yourselves. Just like in our Mishnah here. The only difference is that in addition here we say join us in the decision-making process.

Werner> So, as you said, Rachmiel & Ilan are actually two sides of the same coin. The oath has to be valid to bring the bet Din into the picture. Otherwise, they do nothing but stand back and say no oath, no process.

SSlivko> According to Ben Nannas, that is.

Avi> Im kein, mah hifsid ramai?

Werner> Which means...

Avi> ...which means the cheater gets away with it!

Rachmiel> But if the beit din does not have all information they cannot make a just decision. The individuals have a freedom to compromise that the beit din does not have

SSlivko> That is right. The Bet Din can only decide if they have all the information. Does Ben Nannas say decide against the owner or just that we can't make them swear, let each party approach the employer with his complaint

Avi> Now that you put it that way, it seem more like the latter.

CONCLUSION(?):
Although it seems that we have found a way to justify Ben Nannas, it does not mean that we support him. Spiritually, ethically and morally, Ben Nannas may have the edge over the more practical-minded hakhamim. On the other hand, his ruling does not necessarily represent the best way to handle it. The beit din has a mandate to bridge the distance between Heaven and earth, elevating all our behavior to a more Godly level. But the beit din also has a mandate to create laws which enable us to live together. This compromise sometimes requires the beit din to walk the line between the high moral road and the more mundane path. Perhaps his ruling takes the whole case out of the hands of beit din which cannot decide one way or the other on the basis of evidence. On the other hand, it widens the gap between the common man and the rabbi who decides. And while it is appropriate to have some professional distance, it may also drive a wedge between the Torah and the people we hope will keep and protect it.

The simplest answer to Avi's question is that Ben Nannas does not concern himself with the problem of the cheater getting away with it. He may hope that the participants will work things out among themselves. The Hakhamim, in their favor, may be arguing that the threat of an oath will actually force the one who is probably lying to confess. On the other hand, maybe the parties are really not lying, but are misinformed or perhaps one of them has forgotten. It would seem logical that the law is like the hakhamim, not Ben Nannas. Since, however, we know that the Gemara is not driven by logic but by its adherence to the spirit of the Torah, we need to understand better what the Torah wants from us.

All this goes back to the idea of 'Mahloket" or dispute in the Talmud.

The old canard "two Jews, three opinions" actually has a long and noble history which is firmly based in Talmud thinking. In the above-quoted discourse from Chat Room session, I left out (for the sake of flow and clarity) some sections in which the participants doubled back on what they wrote, or answered their own question. This is the nature of the spoken word, ideas on the fly which are subject to change as the conversation flows. In our own Talmud, we see that the opinions of the Hakhamim were recorded and listed, even the minority ones, with the same weight and validity. The phrase t"[Both] these and these are the words of the Living God" (Elu v'elu divrei Ehlohim hayim") means that it doesn't really matter which side of the dispute is right. Both sides are drawing from the same wellspring of Truth.

Therefore, both are "true".

This "Elu v'elu " statement originated in Yavneh, right after the destruction of the second temple, and was followed by the clause …"but the Halakhah is like Beit Hillel." In fact, it seems that only after the destruction of the second Temple do we have disputes over the halakhot which develop into competing traditions. Even the famous disputants, Hillel and Shammai and their first generation of disciples respected each others opinions and accepted each others rulings. In later generations we see their respective schools coming to blows over issues of halakhah and ideology. (A wonderful study on this theme can be found in Gedalia Aalon's Book Mehkarim b'Toldot Yisrael. The subject of Talmudic history and who argued with whom and why would make a fascinating course in itself. If there is interest in this, we can open a new course on this theme. Let me know)

Perhaps what the Torah wants most from us is to make Torah our starting point, our wellspring of Truth. The more we start to use the Torah as a weapon or as a rationalization for our behavior towards others, the further we are moving away from that Truth. It's a lesson which, if we do not learn it from our own history, we are doomed to repeat in our own time.

FOR NEXT WEEK:
Last week I mailed out the continuation of the Talmud as it tried to attribute authorship of the Mishnah either to Summakhos or those who argue with him. This coming Sunday, our last Chat session before the Pesah, we will discuss this in greater depth, including the issue of "drora d'mamona", which we translated as "an external doubt"

The text follows (quoted from last week's mailing for those of you who recently registered and did not receive it)

Bava Metzia*, 2b
Then say the Mishnah is not like Summakhos? For if the Mishnah were like Summakhos, doesn't he say "Money [whose ownership is] placed in doubt is divided between the claimants without an oath"? [ from Bava Kamma 46a, where a dead newborn calf is found next to an cow which has been gored by someone's ox. We do not know if the cow miscarried as a result of the accident or before. Summakhos says we divide the value of the calf between the owner of the cow and the owner of the ox. The Rabbanan say the owner of the cow has to prove calf was stillborn as a result of the damage from the ox.] Then you're saying the Mishnah follows the Rabbanan who argue with Summakhos. But don't they say "The burden of proof is on whoever tries to take the money out of someone else's property." [and here nobody needs to bring proof]

What is this! According to the Rabbanan, there, where both are not holding they say "The burden of proof is on whoever tries to take the money out of someone else's property." Here where both are holding, we divide it with an oath. But if you say Summakhos, there if neither hold on to the object we divide with no oath, here where both are holding on, how much more so!

But you can even say it follows Summakhos. When does Summakhos says divide without an oath, when it's an instance of "shema and shema" - perhaps and perhaps [that is, when even the claimants don't know whose it is and make no claim with certainty], but in a case "bari and bari - certain and certain he does not say divide it without an oath.

But according to Rabbah bar Rav Huna who says Summakhos holds his view even in a case of "certain and certain" what can we then say?

3a
Even then, we can say our Mishnah is in accordance with Summakhos. Summakhos stated his view in a case where there was an external doubt about the money[ that is, where there is doubt about the ownership independent of the claims]. Here, where there is no external doubt about the money, [the claims of the two put the object in doubt] he does not apply his view.

This week we do change the clocks in Israel (Thursday night/Friday morning, in fact). This means the Chat Room session begins an hour earlier for those of you who are join us from outside Israel. The time in Israel is still 4:00 PM.

PS: Do not forget, Wednesday night is the first night of Pesah. Check your local time zone for exact times for putting away or getting rid of hametz.

To all of you, a happy holiday.