MOED KATAN 16 - This Daf has been dedicated l'Iluy Nishmas Esther Chaya Rayzel (Friedman) bas Gershon Eliezer, whose Yahrzeit is 30 Av, by her daughter and son-in-law, Jeri and Eli Turkel of Raanana, Israel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.

1)

BEIS DIN CAN PUNISH UNLIKE TORAH LAW

(a)

Gemara

1.

Moed Katan 16a - Question (Rava): What is the source that Beis Din can contend with people (who do not obey Beis Din), curse them, hit them, tear out their hair and impose oaths on them?

2.

Answer: "Va'Ariv Imam va'Akalelem va'Akeh Mehem Anashim va'Emretemva'Ashbi'em bEilokim..."

3.

Question (Rava): What is the source that Beis Din can tie up (to lash) and do Hardafa?

4.

Answer: "Hen l'Mos Hen li'Shroshi Hen La'anosh Nichsin v'Le'esurin".

i.

(Rav Yehudah): "Li'Shroshi" is Hardafa.

5.

(Rav Yehudah brei d'Rav Shmuel): Hardafa is to excommunicate immediately.

6.

Bava Kama 96b: A man stole a yoke of oxen; he plowed and seeded with them, then returned them.

7.

Rav Nachman: Evaluate the increased value (the owner receives half). This man has stolen many times, so I want to fine him.

8.

Sanhedrin 46a (Beraisa - R. Eliezer ben Yakov): I heard that Beis Din can lash or punish not according to Torah law. They do not intend to change Torah law, rather, to make a fence (to deter transgressors). A case occurred in the days of the Yevanim, a man rode on a horse on Shabbos. Beis Din killed him. It once occurred that a man had Bi'ah with his wife under a fig tree, and Beis Din lashed him. These people did not deserve to be killed and lashed, but at the time it was necessary.

9.

27a: A case occurred in which Bar Chama killed someone. The Reish Galusa asked Rav Acha bar Yakov to investigate, and if he surely killed, to gouge out his eyes.

10.

Rav Acha was about to rule that he killed based on the testimony of two witnesses. Rav Papi proved to him that the witnesses were invalid for capital cases.

11.

52b: A Bas Kohen was Mezanah. Rav Chama bar Tuvya burned her in a fire of sticks.

12.

Rav Yosef: He made two mistakes. He erred about Rav Masnah's teaching (that the Pesilah for Sereifah is molten lead), and about a Beraisa:

i.

(Beraisa): "U'Vosa El ha'Kohanim ha'Leviyim v'El ha'Shofet Asher Yihyeh ba'Yomim ha'Hem" - we judge capital cases only at a time when there are (Shoftim, i.e. the Sanhedrin in Lishkas ha'Gazis, near the) Kohanim.

13.

58b: Rav Huna cut off the hand of a man who was accustomed to hit people.

(b)

Rishonim

1.

Rif and Rosh (Bava Kama 34a and 9:5): Rav Nachman was in Chutz la'Aretz. This teaches that even in Chutz la'Aretz we may impose fines. R. Eliezer ben Yakov taught that Beis Din may fine greater than Torah law.

i.

R. Efrayim: R. Eliezer ben Yakov's teaching is greater, for it allows even killing. We fine for the insult to Hash-m. For Kavod ha'Briyos we do not fine more than the Mishnah says.

2.

Rosh (ibid.): Stam judges cannot impose fines above Torah law. This is only for a Gadol ha'Dor like Rav Nachman, who was the Reish Galusa's son-in-law, or someone appointed to judge by the Nasi or Tuvei ha'Ir that the Rabim accepted on themselves. Some say that this applies even to a Beis Din of three commoners.

i.

Question: Why does it say that Rav Chama erred about judging capital cases when there is no Kohen? Beis Din can punish not according to Torah law!

ii.

Answer (Nimukei Yosef Sanhedrin 16a DH Garsinan): Only the Great Sanhedrin is authorized to do so. Even though Rav Huna cut off a man's hand, and the Reish Galusa was prepared to gouge out his eyes of a murderer (Sanhedrin 58b and 27a), this is to give some of the Torah punishment. Only the Great Sanhedrin can give the full punishment.

iii.

Birkei Yosef (CM 2:3 DH v'Hinei Mah): The Nimukei Yosef means that only the Great Sanhedrin can give the full punishment of death. The limitation to part of the punishment (for smaller Batei Din) does not apply to non-capital punishments.

iv.

Note: Perhaps cutting off a man's hand is not considered more than the Torah says, for Rav Huna expounded (Sanhedrin 58b) that if one raises his hand to strike someone, it should be cut off - "U'Zro'a Ramah Tishaver".

v.

Rebuttal (and Answer #2 - Hagahos ha'Bach 3): Even nowadays we give severe punishments when necessary at the time (Rivash 251)! It seems that Rav Yosef knew that Rav Chama did not intend for this, rather, to execute Torah law.

3.

Rambam (Hilchos Sanhedrin 24:4): Beis Din can lash or kill someone who is not liable to receive lashes or death, not to transgress Torah law, rather, to make a fence for Torah. If Beis Din sees that people wantonly transgress a matter, they should fence and fix it as they see fit. This is a Hora'as Sha'ah (a temporary ruling). The Halachah is not fixed like this for all generations.

4.

Rambam (8): A judge can combat one whom it is proper to combat, curse him, hit him, tear out his hair and impose an oath with Hash-m's name on him against his will that he will not do something or that he did not do (something that he denies). We learn from "Va'Ariv Imam va'Akalelem..."

5.

Rambam (9): Beis Din can tie up a person's hands and feet, imprison, shove and drag on the ground. We learn from "Hen l'Maves Hen li'Shrushei..."

i.

Kesef Mishneh: The Rambam explains that Hardafa is shoving and dragging on the ground.

6.

Rambam (10): All these matters are according to what the judge deems fitting and needed for the time. All his actions must be l'Shem Shamayim. Kavod ha'Briyos should not be light in his eyes, for it overrides a Lav mid'Rabanan. This applies especially to descendants of Avraham, Yitzchak and Yakov who observe Torah. He should not destroy their honor, only to increased honor of Shamayim. Kavod of Torah is to do according to its laws.

i.

Kesef Mishneh: Because Kavod ha'Briyos overrides Lo Sasur, one may disgrace people only to uphold Hash-m's Kavod.

7.

Rambam (Hilchos Mamrim 3:7): In any case when a Zaken Mamrei is exempt, Beis Din should excommunicate him, isolate him, lash him and prevent him from teaching, according to what they deem necessary.

8.

Rosh (Moed Katan 3:5): Ge'onim explain that Hardafa is binding someone between sticks so he cannot move about or scratch himself.

i.

Nimukei Yosef (Moed Katan Reish 8b): Hardafa is different kinds of excommunication. R. Yeshayah says that it is cutting off his livelihood by setting up people of his trade near him.

(c)

Poskim

1.

Shulchan Aruch (CM 2:1): Any Beis Din, even if it is did not get Semichah in Eretz Yisrael, if it sees that people are Perutzim (wantonly transgress) a matter (and it is necessary at the time) they can impose death or any other punishment, even if there is not full testimony.

i.

Bedek ha'Bayis (citing Rikanti citing Zohar Mishpatim 112): A judge who is meticulous to acquit Resha'im will die before his proper time. Beis Din should punish more than the Torah says to make a fence for Torah!

ii.

SMA (3): Even if an individual is Parutz, Beis Din can punish him as they see fit. When the nation is Parutz, they can enact to punish everyone who transgresses, even one whom they did not see that he is Parutz.

iii.

Bach (DH u'Mah she'Chosav Kol): This is only if the person is a total Rasha who deserves this, or it is needed at the time because the generation is Parutz. If not, even Tuvei ha'Ir (the governors of the city) or the majority of the city cannot enact things that will harm some people.

2.

Shulchan Aruch (ibid.): If the person is powerful, they may beat him through Nochrim.

i.

Source (Beis Yosef DH u'Mah she'Chosav Rabeinu and DH Kosav ha'Rivash): Gitin 88b says that Beis Din can use Nochrim to force a man to divorce. We learn from this to all cases. The Rivash says that it is better to punish through Yisraelim and not to give Nochrim an opening to scrutinize our deeds, for many of them covet our money. However, if one does not obey our judges, he himself caused that he be put into their hands.

ii.

SMA (7): The Tur said that the Nochrim say 'do what Yisrael tell you.' The Shulchan Aruch omitted this, for it allows letting the Nochrim make the verdict, especially if it is a fine.

iii.

Rebuttal (Taz DH v'Omrim): They must say 'do what Yisrael tell you' when Beis Din ruled and the person does not obey. Here we discuss one who must be punished for what he did, or one on whom Beis Din could not rule because he did not heed them.

3.

Shulchan Aruch (ibid.): All their actions must be l'Shem Shamayim. Only the Gadol ha'Dor may do so, or Tuvei ha'Ir if Beis Din authorized them.

i.

Beis Yosef (DH v'Zeh Leshon): The Rosh says that if a city enacted a monetary fine and an Oni cannot afford it, they may lash him or use other methods to make him comply.

4.

Rema: This is the custom everywhere, that Tuvei ha'Ir in their city are like Beis Din ha'Gadol. They can lash, punish and make Hefker according to the custom. Beis Din can lash or take money as they see fit for Migdar Milsa (to prevent future transgression).

i.

Darchei Moshe (2): The Mordechai and Rashba say that the leaders of any Tzibur are like Ge'onim who made many enactments for all of Yisrael - 'Yiftach in his generation is like Shmuel in his generation.'

ii.

Bach (ibid.): Avi ha'Ezri says that if the city appointed leaders, they may enact matters even if it is not Migdar Milsa. This is even if they picked one leader and most people opposed his enactment - Yiftach in his generation is like Shmuel in his generation (Rosh Hashanah 25b). Even if Tuvei ha'Ir were not picked by the city, if they made an enactment in front of the city and only a minority protested, it is binding. R. Tam disagrees, but he agrees that a peerless Gadol ha'Dor has the power of Hefker Beis Din and he can enact new laws. If he is merely the Gadol in his region, even Avi ha'Ezri agrees that he cannot do so unless the city gave him such authority. Maharik says that even R. Tam does not allow the Gadol ha'Dor or Gedolim to enact something that helps some and harms others. They are no stronger than Tuvei ha'Ir authorized by the city.

iii.

SMA (425:2): We do not punish for what was done, only if there is concern lest it will be repeated.

iv.

Bach (425 DH v'Chen): The Tur brings a Gaon who says that Migdar Milsa is when there is concern lest others transgress similarly. He argues with others who say that it is only if Beis Din sees that many people are Perutzim.

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