QUESTION: The Beraisa states that if Beis Din rules that there is no such thing as Nidah, Shabbos, or Avodah Zarah in the Torah, this is not a ruling which can warrant the obligation to offer a Par He'elem Davar. The obligation to bring a Par He'elem Davar exists only when Beis Din rules that one specific aspect of those areas of Halachah (Nidah, Shabbos, or Avodah Zarah) is not in the Torah.

The CHIDUSHIM U'VI'URIM asks that the phrasing of the case is strange -- "Beis Din says that there is no Shabbos in the Torah." The concept of Shabbos is written explicitly in the Torah numerous times. Why would Beis Din say that there is no such thing as Shabbos in the Torah? Moreover, this terminology seems to be unnecessarily lengthy. Instead of saying that "there is no Nidah in the Torah," it should say simply that "Nidah is permitted."

(a) The CHIDUSHIM U'VI'URIM answers that the Beraisa intends to teach that even if Beis Din permits a prohibition that is not explicitly written in the Torah, it is considered as though Beis Din is uprooting the entirety of the Halachah. For example, if Beis Din rules that a Nidah does not need to go the Mikvah, this would be considered as though Beis Din is uprooting all of Nidah, and not just some of Nidah. Although this law is not explicitly written in the Torah, it effectively uproots all of the laws of Nidah, as a woman would never stop being a Nidah without the law of Tevilah in a Mikvah.

(b) An alternative answer may be suggested. Some may err and think that the Mitzvos are to be observed based solely on the perceived reasons behind them. For example, one might permit violating Melachos of Shabbos in order to get to a synagogue on Shabbos, since the violation of the Melachos is for the sake of Shabbos. Perhaps when the Beraisa discusses a Beis Din that rules that "there is no Shabbos in the Torah," it refers to a Beis Din that says that the Halachos of Shabbos are not stated explicitly in the Torah and therefore they may be suspended for the sake of Shabbos; Beis Din certainly maintains that the concept of Shabbos is stated in the Torah.

(c) Perhaps the Beraisa uses the wording "there is no Nidah in the Torah" because this wording is appropriate in the case of Shabbos. The Beraisa could not say that Beis Din rules that "Shabbos is permitted," because Shabbos is not the title of a prohibition per se. Since the Beraisa must use the wording of "there is no Shabbos in the Torah" with regard to Shabbos, it also uses that wording with regard to Nidah. (Y. MONTROSE)

OPINIONS: The Mishnah teaches that a Par He'elem Davar is not brought when certain types of individuals were part of the Beis Din when the mistaken ruling was issued. This is derived through a Gezeirah Shavah from the word "Edah," stated with regard to Beis Din's judgment of an accused murderer (Bamidbar 35:24) and with regard to the law of Par He'elem Davar (Vayikra 4:13). Just as the word "Edah" in Bamidbar refers to Dayanim who are fit to rule, the Beis Din which issues the mistaken ruling must be comprised of Dayanim who are fit to rule. Among those who are fit to rule is a "Zaken," an elder, who never had children. RASHI (DH O Zaken) writes that he is in doubt about why such a person may not rule. What is the reason?

(a) The RAMBAM (in Perush ha'Mishnayos) and BARTENURA explain that an elderly judge who never had children lacks the requisite degree of mercy that comes from the personal experience of child-raising, and therefore he may not judge matters of life and death. (The CHIDUSHIM U'VI'URIM explains that although a Par He'elem Davar is generally brought due to a mistake in matters of Isur v'Heter and not in matters of Dinei Nefashos, the Beis Din that issues the ruling must be fit to judge in any situation in order to be obligated to bring a Par He'elem Davar.)

(b) The TOSFOS YOM TOV points out that the Gemara in Sanhedrin (36a) expresses this ruling in a different way than the Mishnah here does. The Gemara there states that a "Zaken, Seris, or one who has no children" cannot sit on the Sanhedrin. The RAMBAM (Hilchos Shoftim 13:1) also lists two separate categories: an elderly judge and one who has no children. RASHI in Sanhedrin (36a, DH Zaken) explains that the reason why such a person may not sit on the Sanhedrin is that he has forgotten the experience of child-raising, and therefore he does not have the requisite degree of mercifulness.

In light of Rashi's words in Sanhedrin, the BE'ER SHEVA is perplexed by Rashi's remark here, where he writes that he does not know why a Zaken is unfit to sit on the Sanhedrin. The Be'er Sheva suggests that Rashi in Sanhedrin refers to a Zaken who is very old, while Rashi here understands that the Mishnah refers not to a Zaken who is very old, but merely to one who can no longer have children. Accordingly, Rashi here writes that he does not know why such a person should be disqualified from being on the Sanhedrin. Rashi's question is strengthened by the statement of Rebbi Yochanan in Sanhedrin (17a) that a candidate for the Sanhedrin must be from the "Ba'alei Ziknah," those who have reached old age.

The Be'er Sheva writes that he later saw that the LECHEM MISHNEH in Hilchos Sanhedrin (2:3) gives this explanation for the words of Rashi. Accordingly, if Rashi's text of the Mishnah would have read "Zaken v'she'Lo Ra'uy l'Banim" -- "A old person and one who cannot have children," he would have understood that the Mishnah refers to a Zaken who is very old. The MELECHES SHLOMO says that this indeed is the proper text of the Mishnah. (Y. MONTROSE)