[intro1: Within the Halakhic system, there are two types of social
exclusion: *Nidui* (ostracism) and *Herem* (excommunication). The
practices which apply to someone under one of these bans are
presented in TT 7:4-5] [intro2: Any court-based punishment has a
requirement of testimony. The witnesses must not only testify
that the perpetrator committed the transgression, they must also
testify that he was warned immediately prior to the transgression
(the witnesses themselves may do the "warning"). This warning
must include the transgression and its penal consequences. The
perpetrator must verbally acknowledge this warning in order to be
liable for the punishment. This warning is known as *Hatra'ah*.]
12. Even though someone who degrades *Talmidei Hakhamim* has no
share in *Olam haBa* (the hereafter), if witnesses testified that
someone degraded [a scholar] - even if only verbally, he is
liable for *Nidui* and the *Beit-Din* (court) declares the
*Nidui* publicly and they fine him a litra of gold *B'khol maqom*
(anywhere) which is given to the *Hakham*.
Someone who verbally degrades a *Hakham*, even posthumously, the
*Beit-Din* puts him in *Nidui*, which they lift when he does
However, if the *Hakham* was alive, they do not lift the *Nidui*
until he appeases the [offended scholar] on whose account he was
placed in *Nidui*.
Similarly, the *Hakham* may himself declare *Nidui* to protect
his honor - against a commoner who abused him - without witnesses
or *Hatra'ah*. And, [in such a case], we do not lift the ban
until he appeases the [offended] *Hakham*.
If the *Hakham* dies (pursuant to the offense), three people lift
the *Nidui*. If the *Hakham* wishes to forgive [the offender]
and not to declare *Nidui*, he has that right.
Q1: "Even though someone..." - why this preface? What does his
losing his share in Olam Haba have to do with *Nidui*?
RD(Rick Dinitz): We might think that losing
one's share in Olam Haba is sufficient punishment for degrading a
Talmid Hakham. Apparently it is not. Since the offense is
two-fold, the punishment must also have two components. For
insulting the Torah (which the scholar represents) one loses
one's share in Olam Haba. Nidui is the punishment for insulting
the scholar as a person. Because the Talmid Hakham embodies the
community's respect for Torah, the community ostracizes a person
who denigrates this value.
A second interpretation: Respect for the Torah is basic to the
health of the community. The community must isolate itself from
the influence of anyone who threatens that foundation by
insulting the Torah. So "even though" Hashem punishes the
offender, the community still enforces Nidui in self-defense.
A third interpretation is more of a stretch, but I'll voice it
anyway. Perhaps Nidui is an incentive to do Teshuvah while the
opportunity still exists. If we consider Nidui as a preview of
the ostracism one would suffer by being excluded from Olam Haba,
the Menudeh should be eager to correct the offense (and
presumably reclaim some place in Olam Haba). In this reading,
"Even though someone ...has no share in Olam Haba," we must still
help that person toward Teshuvah, in this case by enforcing
HH (Harald Helfgot): We could think that
since he is already punished by losing his share in Olam Haba, he
does not need further (earthly) punishment.
Q2: "...even if only verbally..." Why would I think that verbal
disgrace is less of an affront?
HH: We have learned that people honor a Hakham especially through
deeds (standing up, serving etc.) In the same way, an affront
through deeds is especially serious.
YE (Yitz Etshalom): The Halakha of degrading
a scholar is a convergence of two areas of Halakha - respect for
scholars and the ramifications of damage done to another person.
In the "world" of damages, there are five types of payments due
in cases of assault - damage, loss of work, pain, medical
expenses and shame (Mishna Bava Kamma 8:1). There are, of
course, cases where not all five payments apply. It is even
possible to "only" shame someone and be liable for that payment.
However, the Gemara in Bava Kamma (91a) rules that *Biy'sho
bid'varim patur mik'lum* - (if he shamed him with words he is
exempt from any payment). Therefore, in the world of "damages"
alone, there is no legal consequence to verbal shaming. (see MT
Hovel uMaziq 3:5) This is why R has to point out that in our
case, verbal shaming does have legal ramifications.
It is appropriate to quote three Halakhot from MT Hovel uMaziq
which impact directly upon our Halakha:
3:5 - If someone verbally shamed his fellow - or spit on his
clothes - he is exempt from financial liability. The court,
however, has the right (and responsibility) to establish laws in
this regard in any place and at any time as they see fit. If he
shamed a *Talmid Hakham*, even verbally, we fine him...and we
have a tradition that this fine is collected in any place, in
Eretz Yisrael or outside of the Land.
3:6 - We always have cases in Spain, concerning *Talmidei
Hakhamim* who forgave this amount - and this is proper for them.
Sometimes, they would sue and reach an accomodation.
Nevertheless, the judges would say to the offender: "You are
obligated to pay one litra of gold".
3:7 - Even though someone who verbally shames a "regular person"
is not financially liable, it is a terrible sin. The only person
who curses and reviles people is an evil fool. The early sages
said: anyone who verbally embarrasses an upright citizen in
Israel (i.e. among the Jewish people) has no share in the
Q3: What is the implication of the phrase *B'khol maqom*
HH: Wherever the offender may be, i.e., immediately.
YE: The term, in reference to Beit-Din, means "not exclusively in
Israel." The reason for this distinction is that a Beit-Din
which does not include *S'mukhin* (members who received direct
*Semikha* - transmission of authority - in an unbroken chain
going back to Moshe Rabbenu) may not rule on fines (*Q'nasot*).
Since *Semikha* can only take place in Eretz Yisrael, R is
teaching that this particular fine (for shaming a Talmid Hakham)
may be administered anywhere - meaning, in a "regular" Beit-Din,
even without *S'mukhin*. See MT Sanhedrin Chapter 4 for a
detailed description and presentation of *Semikha*.
Q4: If the Hakham is dead when [his memory is] offended - we
lift the ban when the offender has done *Teshuvah*. Three
(a) How do we know that he has done Teshuvah?
YE: Someone who degrades people in general, and scholars in
particular, typically has an attitude towards learning and
towards fellows which is reflected in many other areas of his
behavior. The true test of Teshuva (MT Teshuva 2:1) is to be in
that same situation again and not fail - but even a smaller
change will probably be sensed by those around him.
(b) What does this *Teshuvah* accomplish vis-a-vis the Hakham?
(c) Why is this different from the later clause in which, if he
offended the Hakham while alive but the Hakham subsequently died
prior to appeasement, he needs three people to lift the ban?
HH: A dead Hakham can't actually be offended -- only his memory
JS (Jeffrey A. Supowit): The distinction
between the living and the deceased Hakham is interesting.
Traditionally under American (and probably English) common law,
there was no such thing as slander against the deceased since
they could not suffer damages. I think this is probably a matter
in which Teshuvah is effective because it is really an aveirah
between man and God. We know Teshuvah is ineffective for an
offense between men without the forgiveness of the aggrieved
party. There should be no offense so heinous that forgiveness is
not possible, which in this case must come from God.
Q5: Why do we allow a *Hakham* to act on his own behalf - and
to effect that which usually needs a court?
YE: (Jeffrey A. Supowit)
If he was offended in private (without witnesses), he must
bring this to the attention of the court and the people by
personally ostracizing the offender. Evidently, we are referring
to a great scholar whose integrity - as well as knowledge - is
beyond reproach or challenge. This is borne out in the comment of
REMA (R. Moshe Isserles); Yoreh Deah 243:8, that "today" (16th
century) scholars may not ostracize on their own. See Pitchei
Teshuva there (#7) for more details.
Q6: R repeats the law that we do not lift the ban until the
*Hakham* is appeased. Why mention it twice?
RD: The first mention is when a Beit-Din has declared Nidui after
hearing evidence from witnesses. The same court that imposed
Nidui uses appeasement of the Hakham as a criterion for lifting
The context for the second mention is when a Hakham declares
Nidui unilaterally. We might think that the Menudeh could come
to a Beit-Din for redress (claiming that the Hakham denied the
Menudeh due process, and that the declaration should be
overturned on that technicality). This repetition emphasizes that
the declaration of the Hakham stands, and the court does not
reverse it until the same criterion is satisfied -- the Menudeh
rights the offense against the Hakham.
HH: The first mention pertains to a Nidui imposed by a Beit-Din.
The second pertains to a Nidui imposed by the Hakham himself.