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Rambam

Rambam

Rabbi Yitzchok Etshalom
Talmud Torah 7:7

[*Hedyot* literally means "commoner" or "non-expert". In the structure of Beit-Din, certain cases may be heard by three *Hedyotot* and there is no need for a *Mumcheh* (expert). mod.]

7. How many people are needed to lift a ban of Nidui (ostracism) or Herem (a stronger form of ostracism)? Three people are needed - [but they can be] even Hedyotot. A single Mumcheh may lift the ban of Nidui or Herem on his own. A student may lift a ban of Nidui or Herem, even in the place of his teacher. [RABD: this is not the case, rather, the same amount of people who ostracized is needed for lifting the ban - and the same level of importance. Perhaps that is only the case if they want to lift the ban during the time of the Nidui, however, if he completes the time period, any three or an individual Mumcheh may lift it for him. Alternatively, if an individual - even a non-Mumcheh - declared the ban due to a transgression, then when the time is completed, any three people or an individual Mumcheh may lift the ban; however, if he was ostracized by the public [i.e. Beit-Din], he needs the same number to lift the ban.]

Q1: What is the definition of a Mumcheh?

YE (Yitz Etshalom): The Gemara in Sanhedrin (4b-5a) states: Civil matters demand three [judges], but if [one] was a Mumcheh of the public, he may even judge alone. R. Nachman said: I, for example, may judge civil matters alone; similarly, R. Hiyya said:, I for example, may judge civil matters alone. The question was asked: "I for example" - since I have learned (Rashi: traditions of laws from my teachers) and can reason (Rashi: I am able to add and resolve concepts with my own reasoning) and I have the permission [of the court] - but without that permission, [I may] not? - or, perhaps, even without this permission, his ruling is valid?

Rambam (MT Sanhedrin 2:11) ruled that either if someone is a Mumcheh _or_ has the permission of the court, he may judge alone. The Tur (Choshen Mishpat 3) quotes R. Sherira Gaon, who defines a Mumcheh as "one who is like R. Nachman in his generation, fluent in Mishna and Talmud and also fluent in balanced reasoning and judgement, studying the laws for several years, who has been tested several times and never made a mistake [in his rulings] " The Tur clearly states that such a person is a Mumcheh for the public, even without the permission of the court.

It seems that, with the passing of time and the exponential growth of legal literature, a Mumcheh would have to be fluent in all areas of law (at least those which pertain to the given case) - including "modern" responsa and codes and their discussions and reasoning.

RAN (Nedarim 8b s.v. veShamta) records an opinion (which he rejects) that, in order for a Mumcheh to act alone in lifting a ban of Nidui, he must be a *Samukh* - ordained in the chain of ordination dating back to Moshe.

Nemukei Yosef (Nedarim, 2a in RIF pages, s.v. veYachid) disagrees with Rambam here and rules that a Mumcheh may act alone only if the original ban was declared by an individual who, since that time, died. The Mumcheh acts in a role akin to that assigned to the Nasi by Rambam below (7:10).

Q2: Why is there a need for a "Beit-Din" structure for lifting bans of Nidui and Herem?

YE: Step 1: The sugya in BT Sanhedrin 68a, describing the death of R. Eliezer (who was under Nidui - see Bava Metzia 59b) refers to the lifting of the ban of Nidui as the lifting of a *Neder* (s soon as R. Eliezer died, R. Yehoshua declared: "The Neder has been lifted, the Neder has been lifted). A Neder is a vow of abstinence which, although declared privately, must be "permitted" by a court or a Mumcheh. Since the lifting of the ban was referred to as the lifting of a Neder, we can reasonably apply the same parameters.

Step 2: The sugya in BT Nedarim 8b, records that, although a Neder may not be lifted by a student in the place of his teacher (see below, Q3), a ban of Nidui may be lifted by such a student. In addition, the Gemara records that an individual Mumcheh may lift such a ban. From here, it is clear that lifting a ban is a *Ma'aseh Beit-Din* - an act which requires a formal Beit-Din structure (for which the individual Mumcheh may be valid).

Now, as to _why_ this is the case, it seems that the Beit Din functions not only in a legislative and/or judicial fashion - they also act as representatives of the community and representatives of Torah. Not only do they represent the current expression of legal rulings, they also bear the brunt of - and act to defend against - violations against the honor of the Torah. Since, as we pointed out in an earlier posting (6:14, Q8), many of the violations which lead to Nidui are challenges to - or disgrace for - the authority of Torah and/or the court, it is appropriate that the court is needed to lift it. In addition, the nature of Nidui is a public distancing - that is its chief impact. In order to properly alter and announce the complete rehabilitation of the Menudeh, it must be done in a public forum - the Beit Din.

Q3: What is the meaning of "in the place of his teacher" - is it "in his presence" or "in his town"?

YE: The Gemara in Nedarim (8b) states: "Ravina's wife made a vow. He came before Rav Ashi and asked: "May a husband operate as his wife's agent to declare [her] regret [in front of the court] (necessary for annulling a vow)? He responded: If they are gathered [for the court session], yes, but if not, no. We may infer three laws from here: (a) A husband _may_ operate as his wife's agent for declaring regret; (b) A person may not "permit" a vow in his teacher's place; (c) Only if the members of the court are already assembled may they "permit" the vow.

Regarding ostracism, even in the place of his teacher [he may lift the ban]."

The Gemara inferred that a student may not permit a vow in his teacher's place from the fact that Ravina came before R. Ashi (his teacher) and didn't permit the vow on his own. Clearly then, "in his place" means "in his town" - otherwise, Ravina could have permitted the vow at home - or by assembling two other court-members for that purpose. Since the Gemara distinguishes between loosing a vow and lifting a ban (which may be done in the place of his teacher), we must conclude that it is also "in his town" but not "in his presence". It may still be forbidden to lift a ban in the actual presence of one's teacher, as that is degrading to the teacher. See MT Talmud Torah 5:2-3 and our discussions there.

Q4: Is RABD totally rejecting Rambam's approach, or is he mitigating it?

YE: He seems to be mitigating it - Rambam's position may be accepted, says RABD, in reference to lifting the ban after the declared or assumed time (usually thirty days) is complete. RABD proposes another possibility: that we are referring to a ban which was declared by an individual. It may even be that Rambam accepts RABD's approach in toto - see below at Halakha 9, Q2.

Q5: What is the basis for their disagreement?

YE: The Mishna in Eduyot (1:5) rules that no court may nullify the words of a previous court unless they are greater in number (or, as RABD explains, years of experience) and wisdom than the original court. Perhaps RABD maintains that if a court lifts a ban before the requisite time is complete, that is a reversal of the original court's ban, and cannot be accomplished without at least the same stature of court. Therefore, if the time is complete - or, as RABD offers in his second possibility, if the ban was declared by an individual - that may be done by any court. Rambam may agree - see below, Halakha 9, Q2.

Rambam, Copyright (c) 1999 Project Genesis, Inc.

 






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