1) COMPARING "PESHARAH" TO "DIN"

QUESTION: The Gemara discusses the argument between Rebbi Meir and the Chachamim regarding "Pesharah," judicially arbitrated compromise. Rebbi Meir maintains that compromise may be done only with three mediators, while the Chachamim require only one. The Gemara says that the argument is based on whether Pesharah is compared to Din. Rebbi Meir maintains that such a comparison may be made, and therefore compromise requires three mediators just as Din requires three judges. The Chachamim do not make this comparison, and therefore one judge may mediate a compromise.

The view of the Chachamim is understandable -- compromise and Din are entirely different concepts and thus there is no grounds for comparing them. Why, though, does Rebbi Meir equate the Halachos of compromise with the Halachos of Din? What is his source for comparing the two concepts?

ANSWERS:

(a) RASHI explains that the verse itself compares compromise to Din. The verse relates that David ha'Melech performed "Mishpat u'Tzedakah" (Shmuel II 8:15). "Mishpat" is Din, exact judgment, and "Tzedakah" refers to compromise, as the Gemara later explains. Since the Torah itself associates the two concepts, they presumably have Halachic similarities.

TOSFOS questions Rashi's source for the comparison of compromise with Din. The Gemara later records a dispute about whether it is a Mitzvah to make a compromise, or whether it is just permissible to make a compromise. The Beraisa there records the view of the Tana who maintains that compromise requires three judges, and it says that the same Tana maintains that making a compromise is permissible but is not a Mitzvah (Rebbi Yehoshua in the Beraisa maintains that making a compromise is a Mitzvah). If the source for comparing compromise to Din is the verse "Mishpat u'Tzedakah," then it certainly should be a Mitzvah, since the verse calls it "Tzedakah." Tosfos therefore rejects this verse as the source for comparing compromise to Din. Tosfos adds that the source for the comparison cannot be the verse, "Emes u'Mishpat Shalom Shiftu b'Sha'areichem" (Zecharyah 8:16), which compares "Shalom" (compromise) to "Mishpat" (Din), with "Shalom" referring to compromise, because making "Shalom" is also a Mitzvah.

(b) The MAHARAM SHIF suggests that the source for comparing the two concepts is the verse, "Tzedek Tzedek Tirdof" (Devarim 16:20). The Gemara later (32a) derives from the extra word "Tzedek" that one "Tzedek" refers to Din and the other "Tzedek" refers to compromise, while the word "Tzedek" itself does not imply a Mitzvah. (Y. MONTROSE)

6b----------------------------------------6b

2) THE DIFFERENCE BETWEEN MOSHE AND AHARON

QUESTION: The Gemara quotes Rebbi Eliezer who says that it is forbidden to offer a compromise to the litigants in a dispute, and one who does so is called a sinner. Rebbi Eliezer continues and says that Moshe Rabeinu never made a compromise. However, his brother Aharon, who "loved peace and pursued it," would make peace between people by negotiating compromises.

The Gemara is difficult to understand. Why would Aharon act contrary to the Halachah, according to Rebbi Eliezer?

ANSWERS:

(a) RASHI explains that Aharon did nothing wrong. This opinion maintains that it is forbidden to make a compromise only when the two disputing parties have already come to Beis Din to receive a Din Torah. Aharon would always try to placate the parties involved in a dispute from the moment he heard them arguing, *before* they came to Beis Din.

(b) TOSFOS seems to have a different opinion. He says that because Aharon was not a Dayan and people did not go to him to be judged (as they when to Moshe), he was permitted to make a compromise when two litigants came to him.

Tosfos implies that Moshe would *not* have been allowed to make a compromise even if the litigants came to him for a compromise and not for a Din Torah, since he was a Dayan. Rashi, on the other hand, would not prohibit a Dayan from making a compromise out of court.

According to Rashi, though, a question remains. Why indeed did Moshe not make compromises out of court?

Also, according to Tosfos, why does Rebbi Eliezer say that Moshe never made compromises because he said, "Yikov ha'Din Es ha'Har" ("the judgment should pierce the mountain")? It seems that regardless of whether he said that, Moshe was not allowed to make a compromise since he was a Dayan.

1. Perhaps one may suggest an answer based on the words of the NETZIV and MARGOLIYOS HA'YAM, who explain that Moshe Rabeinu was different from all other Dayanim. Moshe Rabeinu was capable of accurately knowing the exact judgment to make once he started to hear the details of an argument. Consequently, for him it was not possible to make a compromise, because the Gemara later states that only when a judge is uncertain about the ruling in a case is he permitted to make a compromise. This is why Moshe Rabeinu could never make a compromise (even out of court, according to Rashi), and why (according to Tosfos) Rebbi Eliezer explained that Moshe Rabeinu said that "the judgment should pierce the mountain" -- to him, in every case the judgment was clear. The Netziv points out that this is why Moshe Rabeinu made no compromises between litigants, even though the Halachah in practice follows the next opinion in the Gemara which says that it is a Mitzvah to make a compromise.

2. An alternative answer may be suggested based on TOSFOS in Yevamos (62a). The Gemara there relates the reason why Moshe Rabeinu separated from his wife. Hash-m commanded that before the Jewish people hear His voice at Har Sinai, they are to separate from their wives for three days in order to be absolutely pure and fit to hear His voice. Moshe Rabeinu reasoned that if the Jewish people must separate from their wives for this reason, then certainly one who hears the voice of Hash-m constantly (i.e. Moshe himself) must separate from his wife at all times. The Gemara relates that Hash-m agreed with Moshe's reasoning.

Tosfos there (end of DH d'Chesiv) asks that the Torah teaches that Aharon and Miriam did not agree with Moshe's decision to separate from his wife. If Hash-m agreed with Moshe, then how could Aharon and Miriam disagree? Tosfos answers his question, but the answer is not clear. Tosfos refers to the principle that "in the way that a man wants to go, he is led" (Makos 10b), and that Hash-m helps someone who puts forth the effort to purify himself. How, though, does this answer the question of Tosfos?

The CHASAM SOFER offers an explanation for the words of Tosfos. A person can direct and focus his potential to do Mitzvos in many ways. After all, there are many Mitzvos to do and one must do all of them. However, on which Mitzvos should a person focus his energy? This was the argument between Moshe and Aharon. Moshe felt that although all of the Mitzvos are important, one should focus primarily on the Mitzvos "Bein Adam la'Makom," between man and Hash-m. For that reason, Moshe maintained that it was essential for him to separate from his wife in order to better serve Hash-m. Although Aharon and Miriam realized that Moshe was doing this for the purpose of serving Hash-m, and they realized that Hash-m agreed with Moshe's desire to serve Him better, they maintained that Hash-m's agreement with Moshe was a result of the path that Moshe had chosen for himself. They argued that Moshe was incorrect in concentrating so exclusively on Mitzvos between man and Hash-m, and that if Moshe would focus more on Mitzvos "Bein Adam la'Chaveiro," Mitzvos between man and his fellow man, and make that his primary means of serving Hash-m, then Hash-m would *not* agree with Moshe's separation from his wife.

This is what Tosfos means. Aharon and Miriam viewed Hash-m's agreement with Moshe as a result of Moshe's own desire to prioritize Mitzvos Bein Adam la'Makom, because Hash-m helps a person to walk in the path that he chooses for himself. Aharon and Miriam argued that Moshe's decision to take that path was not correct.

Based on this explanation, one can understand why Moshe and Aharon were different with regard to compromising in judgment. It is a great Kidush Hash-m when people see that every dispute can be resolved by a clear solution based on Torah law. Moshe Rabeinu was able to make decisions like these constantly, thereby showing the truth of the Torah. He therefore said that "the judgment should pierce the mountain," for why should he attempt to make compromises when he could make a tremendous Kidush Hash-m with every judgment which he issued? Aharon, in contrast, served Hash-m primarily through creating harmony among people. Therefore, he always pursued the path of compromise. (Y. MONTROSE)

3) AGADAH: PRAISING YEHUDAH'S SALE OF YOSEF

QUESTION: Rebbi Meir interprets the verse, "u'Votze'a Berech Ni'etz Hash-m" (Tehilim 10:3), as a reference to one who blesses Yehudah's act of selling Yosef as a slave. Why is blessing Yehudah's act of selling Yosef singled out for such censure? Moreover, why should the one who blesses Yehudah be described as angering Hash-m, while Yehudah himself is not depicted as angering Hash-m through his act? (MAHARSHA)

ANSWERS:

(a) The MAHARSHA answers that one might have thought that since many good things resulted from the sale of Yosef as a slave (such as Yosef's ultimate rise to power in Egypt and his saving the world from famine, including his family), it is appropriate to praise Yehudah's act. Rebbi Meir therefore teaches that such a person angers Hash-m, as he implies that Hash-m was behind the evil plan to sell Yosef. Hash-m never requires that one do a misdeed (with evil intent) in order to fulfill His divine plan, and thus someone who makes such a suggestion angers Hash-m.

(b) The EIN YAKOV says that one who praises Yehudah for selling Yosef angers Hash-m, because it would have been better had Yehudah left Yosef in the pit to be killed.

What does the Ein Yakov mean? On the contrary, Yehudah saved Yosef's life! The Maharsha explains that according to the Ein Yakov, the one who blesses Yehudah for selling Yosef and saving his life is saying that Yehudah did so only for monetary gain. Such a statement angers Hash-m, because, in truth, Yehudah did not do it for monetary gain, but out of pure motives and fear of Hash-m. Rebbi Meir is interpreting the verse to be saying, "Botze'a Berech" -- one who praises Yehudah for making money ("Botze'a") from the sale of Yosef, "Ni'etz Hash-m" -- angers Hash-m, because he thereby belittles a Tzadik.

(c) The Maharsha offers a third explanation, which he admits is unlike the explanations offered by the earlier commentaries. The phrase "Mevarech Hash-m" is sometimes used as a euphemism in the Gemara to refer to someone who curses Hash-m. The Maharsha suggests that here, too, the "blessing" actually refers to a curse. Rebbi Meir is saying that someone who *curses* Yehudah's initiative in the sale of Yosef is not acknowledging Yehudah's good intention, which was to save Yosef's life. His brothers would not allow Yehudah to return Yosef to his home, so he did whatever he could to spare Yosef's life. By cursing Yehudah a person angers Hash-m, because Yehudah's name contains the four letters of the Name of Hash-m.

(d) The NETZIV (in HA'EMEK DAVAR, Parshas Vayeshev, ha'Rechev Davar) quotes a different explanation in the name of RAV REFAEL VOLOZHENER. The Gemara in Bava Basra (8b) states that captivity is worse than death. However, it is apparent from the verses quoted there that this applies only to a Jewish person taken captive by Nochrim. This is because the Jew must struggle to maintain his observance of Mitzvos among the Nochrim. In contrast, the captivity of a Nochri is certainly better than his death, since he has no struggle but merely assimilates into the culture of his captors.

When one blesses Yehudah for selling Yosef as a slave, he essentially praises Yehudah for saving Yosef from death, a fate worse than captivity. However, death is only worse than captivity for someone who does not struggle to observe the Mitzvos. Hence, one who praises Yehudah is saying that it is not so important to observe the Mitzvos, and thus captivity was better for Yosef than death. A person who says such a thing certainly angers Hash-m. (Y. MONTROSE)

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