Hi Rabbi Kornfeld,
It was an honor for me ask questions to someone of your stature. I and everyone who attended that chabura thank you.
I will send regards to Baruch and Ben.
I wasn't going to ask you about this but since you've emailed me... I'm giving another chabura in two weeks. The topic is the apparent stira between the mitzvah of lo tasur and the first mishnayos in horiyos (actually the first mishna and the one on 4b).
The first mishna in horiyos says that a member of beis din who knows that beis din is wrong (BD says that a certain chelev or dam is mutar and he knows they are wrong), if he consumes that chelev he is chayav to bring a chatas. The gemara in horiyos 2b says his shgaga is that he was "taah bimitzvah lishmoa bdivrei chachamim". As the rashash there points out, we would think he is supposed to follow the psak of BD because of lo tasur; if he doesn't he would be a zaken mamre.
The only rishon that I know that deals with this explicitly is the ramban in his hasagos to the sefer hamitvos in shoresh Aleph (in the regular rambams it's on 7b). The question is what exactly does the ramban mean- The Maharatz Chayos has a lengthy discussion in the fourth perek of his Ateret Tzvi on this issue (and a short one in his chidushim on the gemara there). In the end the MC says (I think) that it is only when the majority of BD reject the opinion of the minority that the minority must accept their psak. But if the majority can't/doesn't want to reject the minority position, than the minority must follow its own psak (and that's the case in horiyos).
My question:
1. if you have a chance to look at it, I'm curious if you think my reading of the Maharatz Chayos is accurate
2. Does the MC's answer make sense? What he's saying is that a majority opinion in a BD is not enough to make psak (if there is a vocal minority). The majority in BD not only has to believe it is right but it has to reject the minority opinion. That seems to me a big chidush- (the one other person that I asked who is holding in this sugya thought the MC's resolution to this problem was a stretch).
3. do you know of any other resolutions to this apparent stira
Again, thank you for helping me in my learning and teaching of torah.
Gur Berman
Below, please find what we wrote in answer to a previous question regarding this issue:
Let us first refer to the words of the RAMBAN in Sefer ha'Mitzvos la'Rambam, Shoresh Rishon:
"And one who transgresses the words of the Sanhedrin of his generation, and relies on his own opinion, has transgressed this Lo Sa'aseh (of Lo Sasur) and this Aseh. Even if Beis Din is divided on the issue, we follow the majority as it it is said in Sanhedrin 88.... And one who transgresses and relies on his own opinion is a Zaken Mamrei... and this is what is said in the verse regarding one who acts 'b'Zadon' not to heed the Kohen. For the Written Torah which was given to us by Moshe Rabeinu A"H clearly will not be understood in the same way by each person, and therefore Hash-m decreed that we follow the Sanhedrin in whatever they say, whether they have received the interpretation through transmission or whether they interpret the Torah as they understand it, for the Torah was given according to the understanding of the Sanhedrin.
"And this is what is written in the Sifri: 'Even if they tell you regarding right that it is left.' For that is the Mitzvah of the Giver of the Torah -- that a dissenter should not say, 'I shall permit this to myself for I know clearly that they are mistaken,' for we will reply to him, 'It is this that you are commanded (i.e. to follow the Torah according to the Sanhedrin's interpretation), as Rebbi Yehoshua conducted himself with Raban Gamliel on the Yom Kipur of the latter's calculation, as related in the Gemara in Rosh Hashanah.
"However, there is a contingency, as can be seen in the Gemara in Horayos 2, which is that if there was in the time of the Sanhedrin a scholar who had reached the level of Hora'ah and the Sanhedrin ruled to allow an Isur, and this scholar thinks that they have made a mistake, he may not listen to them and be lenient with himself, but rather he should observe the stringency with regard to his own conduct, and surely if he was actually a member of the Sanhedrin... he must come before them and voice his objections, and if they all agreed to dismiss his objection and his reasoning, he must then follow their ruling."
We do not believe in infallibility, nor do we believe in the pope. Tosfos throughout Shas (Shabbos 12b, Gitin 7a, Yevamos 99b, etc.) says in the name of Rabeinu Tam that "Ein ha'Kadosh Baruch Hu Meivi Takalah Al Yedeihem" applies only to where the Chacham himself eats something Asur, but not with regard to a ruling that a Chacham makes for someone else. Anywhere the Gemara cites this principle with regard to a mistake, Rabeinu Tam changes the Girsa.
As for the rulings regarding Agunos, although in general there is Siyata d'Shemaya in any Psak and a mistake is rare, the Agunah situation is something else entirely. If the husband were to arrive, it would not be because the Rav erred; the Rav ruled in accordance with the Torah. Still, it would be possible that the husband is actually alive. For that Rav Moshe says that there is a Siyata d'Shemaya that nothing should go wrong with a correct Psak. Here, in contrast, we are talking about a mistaken Psak.
D. Zupnik
The first mishna in horiyos says that a member of beis din who knows that beis din is wrong (BD says that a certain chelev or dam is mutar and he knows they are wrong), if he consumes that chelev he is chayav to bring a chatas. The gemara in horiyos 2b says his shgaga is that he was "taah bimitzvah lishmoa bdivrei chachamim". As the rashash there points out, we would think he is supposed to follow the psak of BD because of lo tasur; if he doesn't he would be a zaken mamre.
The only rishon that I know that deals with this explicitly is the ramban in his hasagos to the sefer hamitvos in shoresh Aleph (in the regular rambams it's on 7b). The question is what exactly does the ramban mean- The Maharatz Chayos has a lengthy discussion in the fourth perek of his Ateret Tzvi on this issue (and a short one in his chidushim on the gemara there). In the end the MC says (I think) that it is only when the majority of BD reject the opinion of the minority that the minority must accept their psak. But if the majority can't/doesn't want to reject the minority position, than the minority must follow its own psak (and that's the case in horiyos).
My question:
1. if you have a chance to look at it, I'm curious if you think my reading of the Maharatz Chayos is accurate
2. Does the MC's answer make sense? What he's saying is that a majority opinion in a BD is not enough to make psak (if there is a vocal minority). That seems to me a big chidush- (the one other person that I asked who is holding in this sugya thought the MC's resolution to this problem was a stretch).
3. do you know of any other resolutions to this apparent stira
Again, thank you for helping me in my learning and teaching of torah.
Shalom, Rav Gur!
The Chinuch (Mitzvah #496) and the Chidushei ha'Ran (Sanhedrin 87a) also cite the Ramban you mentioned. (The latter cites the Yerushalmi at the beginning of Horayos as a source for the Ramban. However, the Yerushalmi simply confirms that there are times that one should not listen to Sanhedrin's ruling; it does not say when not to listen, as the She'elas David points out (Kuntrus ha'Chidushim, Hashmatos to Sanhedrin ibid., noted in the footnotes to the Mechon Yerushalayim Chinuch).)
It is clear from all of these Rishonim that we differentiate between before the Talmid has presented his view to the Sanhedrin (and since they do not know what his arguments are, there is still a chance that he may convince them that he is right), and after his view has been presented and vetoed by the majority of the Sanhedrin. I looked up the Maharatz Chayos both in his notes on Horayos and in the Ateres Tzvi (and found that he also cites the Chinuch and Ran), but could find nothing that implies otherwise.
You cited Maharatz Chayos as saying, "If the majority can't/doesn't want to reject the minority position, than the minority must follow its own psak... The majority in BD not only has to believe it is right but it has to reject the minority opinion."
It is pretty obvious that if the majority accepts the minority position, then the Halachic ruling changes and everyone must follow the Talmid Chacham's convincing argument. On the other hand, if the majority sticks to their ruling, I think Maharatz Chayos would agree that no special act of "rejecting the minority" is necessary. Thus, whether or not the Talmid Chacham should be Machmir depends entirely upon whether he has brought up his arguments before the Sanhedrin, or whether they are still unaware of the nature of his arguments.
Best wishes and Hatzlachah Rabah!
Mordecai Kornfeld