1) HALACHAH: THE NUMBER OF JUDGES REQUIRED FOR A DIVORCE
OPINIONS: The Mishnah lists many areas of Halachah and the number of judges that each one needs. Divorce, however, is conspicuously absent from the Mishnah's list. Does this imply that giving a Get does not require a Beis Din at all? (See also Insights to Yevamos 25:1.)
(a) The NODA B'YEHUDAH (EH 2:105, 114, 118) quotes the OR ZARU'A who states that the giving of a Get indeed is considered a "Din" (judgment). This status of "Din" requires that a Get be given during the day and not at night, as Beis Din may convene only during the day. He proves this from the Gemara in Yevamos (104a) which explains that Chalitzah cannot be done at night, because through Chalitzah the woman may demand payment of her Kesuvah from her deceased husband's estate. Certainly, then, the giving of a Get -- which immediately obligates the husband to pay the Kesuvah -- cannot be done at night. This also implies that the giving of a Get must be done with three judges in a Beis Din.
The Noda b'Yehudah initially expresses confusion about the Or Zaru'a's ruling and asks many questions on it. He concludes, however, in support of the Or Zaru'a's ruling, and he cites proof for it from the words of RASHI on the Mishnah here. After Rashi explains the concept of Mi'un (see Background to the Daf here), Rashi (DH Mi'unin) writes that Mi'un must be done with three judges, even though Mi'un itself is an enactment of the Rabanan. Rashi writes that the Rabanan enacted their decrees (such as Mi'un) with characteristics that are similar to their d'Oraisa counterparts, "k'Ein d'Oraisa Takun." What is the d'Oraisa counterpart of Mi'un to which Rashi refers? Rashi apparently refers to the d'Oraisa law of Get, as that is most similar to the d'Rabanan concept of Mi'un. Rashi implies that the giving of a Get must be done in the presence of three judges. The Noda b'Yehudah adds that, logically, if the Mishnah requires three judges for Mi'un, then certainly the giving of a Get, which is mid'Oraisa, needs three judges. However, he later questions his proof from the Mishnah and remains with the proof from the words of Rashi that a Get needs three judges. This is also the view of Rashi according to REBBI AKIVA EIGER (on the Mishnayos).
As further support for the Noda b'Yehudah's ruling, the URIM V'TUMIM (9:2) cites the Targum Yonasan on the verse, "v'Kasav Lah Sefer Kerisus" -- "he shall write for her a deed of separation" (Devarim 24:1), who interprets the verse to mean that "he shall write a Get in front of Beis Din."
However, the Acharonim point out that the Noda b'Yehudah's ruling that a Get requires a Beis Din seems untenable. An entire Masechta (Gitin) discusses the details of the laws of divorce, as does many chapters in the Shulchan Aruch, and yet no mention is made that a Get must be given in front of Beis Din. On the contrary, the Gemara in a number of places makes the statement, "Do you think that everyone who divorces his wife does so in front of Beis Din?" (Bava Basra 174b, Erchin 23a).
Although the Noda b'Yehudah addresses these questions, the Acharonim reject his proofs that a Get must be given in front of Beis Din. They write that the reason why a Get may not be given at night is unrelated to the law that a Beis Din may convene only during the day (see BEIS SHMUEL EH 123:9).
(b) The CHASAM SOFER (Teshuvos CM 2:65-6) and RASHASH explain Rashi's intention differently. The d'Oraisa law to which Rashi intends to compare Mi'un is Chalitzah, and not Get. Chalitzah and Mi'un are similar in that both annul a marriage bond through words alone. RAV YOSEF ENGEL in GILYONEI HA'SHAS adds that Mi'un more closely resembles Chalitzah than it does a Get, because it requires an action on the part of the woman, like Chalitzah, while in the procedure of a Get the woman is passive, as she does and says nothing. (See also MAHARAM SHIF here.)
RAV YITZCHAK ISAAC CHAVER explains the reason for this difference. Both Chalitzah and Mi'un must have a Beis Din since there is no written document which can later be shown as evidence. In contrast, a woman who receives a Get can always produce the Get itself as proof, and thus there is no need for a Beis Din.
The PISCHEI TESHUVAH understands Rashi in another way. When Rashi writes that Mi'un must be done in front of Beis Din because of "k'Ein d'Oraisa Takun," he does not mean that the enactment of Mi'un is like the Halachah d'Oraisa of Get, but rather that it is like the Halachah d'Oraisa of a Get Me'usah -- a forced Get which the husband gives against his will. Such a Get must be given in front of Beis Din in order to be effective, as the Gemara in Gitin (88b) states.
The Acharonim refute the Noda b'Yehudah's proof from the Targum Yonasan and explain that the Targum does not mean that the Get must be given in front of Beis Din. The Targum says only that the Get must be written in Beis Din. The Targum means that a husband may not write any arbitrary text of a deed of separation that he chooses. Rather, he must write a specific text. He writes the Get in Beis Din so that the judges can instruct him how to write it correctly.
HALACHAH: The SHULCHAN ARUCH (EH 133) rules that the Get should be given in front of two witnesses. The Shulchan Aruch adds that the custom is to give a Get in front of ten people (if possible) in order for it to become publicized. (See BI'UR HA'GRA there.)
The Poskim discuss the ruling of the Noda b'Yehudah at length, but they conclude that the Halachah does not follow his ruling because none of the earlier authorities mention the practice to give a Get in front of Beis Din. Nevertheless, the practice is to be stringent and to require that a Get be given in front of Beis Din, both out of respect for the ruling of the Noda b'Yehudah and because the writing and giving over of a Get involve many complicated Halachos, and thus the procedure should be performed in the presence of Beis Din to ensure that it is done properly.
(A lengthy discussion of this topic and a list of the many authorities who deal with it is found in the PISCHEI TESHUVAH in the beginning of Seder ha'Get, #8, printed in the Shulchan Aruch after Hilchos Gitin, EH 154.) (Y. Montrose)
2) BEIS DIN'S JURISDICTION OVER CASES OF THEFT NOWADAYS
QUESTION: The Gemara explains that the Mishnah omits from its list of categories of judgment cases of admission of money owed, and cases of loans, because those cases do not require three expert judges. An "expert" judge is defined as a judge who has received Semichah from someone in the line of tradition of Semichah and from one of the original Batei Dinim in Eretz Yisrael. This clearly indicates that cases of robbery, which the Mishnah does mention, do need to be judged by three expert judges. The Gemara adds further that only expert judges in Eretz Yisrael are empowered to judge cases of penalties, as well as cases of robbery. Since the line of Semichah has been broken and no one qualifies today as an expert judge, how can Beis Din today judge cases of robbery?
ANSWERS:
(a) TOSFOS (3a, DH she'Lo) asks this question and points out a number of incidents in the Gemara in which the Chachamim in Bavel judged cases of robbery, even though they did not have Semichah from a Beis Din in Eretz Yisrael. He answers that perhaps the litigants involved merely took back the items that were stolen from them without Beis Din's enforcement of the law. Tosfos also quotes an opinion that maintains that when the Mishnah lists cases of "robbery and damages for bodily harm," it refers specifically to robbery that occurred as a result of a fight, and not to an ordinary case of theft. Such a case is uncommon and does not require the sanction of Semichah to judge.
(b) The NIMUKEI YOSEF in Bava Kama (84b) discusses the Gemara there which states that the judges in Bavel are empowered to rule in cases of penalties because they are considered the representatives of the judges in Eretz Yisrael who have Semichah. This applies only when the case being judged is a common case. Robbery, he suggests, is very common. He proposes that the Gemara here in Sanhedrin prohibits a regular Beis Din (of non-experts) from judging only a case of outright theft (that is, the type of theft defined by the verse, "And he stole the spear from the hand of the Mitzri, and he killed him with his spear" (Shmuel II 23:21), which teaches that "stealing" means brazen, outright theft), because such a case is not common.
(c) However, the RAMBAM (Hilchos Sanhedrin 5:13) rules that Beis Din may judge all cases of theft, but Beis Din may not impose the extra penalty of paying double the value of the item (Kefel). The Rambam apparently understands that the Gemara here excludes non-experts from judging only the aspect of Kefel. This also seems to be the opinion of the SHACH (CM 1:8).
The KEHILOS YAKOV is perplexed by this explanation. Among other questions, he points out that the term used by the Gemara is "Gezeilos." This implies outright stealing, which never requires a payment of Kefel since everyone knows that this person stole the object and he will not deny it if brought to trial. (The obligation to pay Kefel is imposed only when there is an initial denial of the claim.) The term associated with Kefel is "Geneivah," stealing clandestinely. Hence, the Gemara cannot be referring to the payment of Kefel when it says that non-experts may not judge "Gezeilos."
(d) The KEHILOS YAKOV explains that when the stolen object still exists, the owner may claim it in Beis Din just as he may claim money that fell accidentally into his neighbor's home. The Gemara states only that Beis Din does not judge uncommon cases of "Gezeilah," and it does not intend to include a case in which a person says that someone else owes him a certain object.
Alternatively, one may claim his money based on the law of damages, Nezikin. A thief is like one who damages the property of another person, in that one who damages someone's property essentially takes the money out of the owner's reach by rendering his object unusable. The Mishnah, accordingly, teaches that one cannot claim (in a Beis Din of non-experts) his money through the claim of robbery, but he can claim it through the claim of Nezikin. The Kehilos Yakov says that the claim that is used actually makes a Halachic difference. For example, if someone stole an object and then told the owner to take it back, the thief no longer has the status of a damager, a Mazik. In such a case, if the item was damaged before the owner was able to take it back, the thief has no liability for it (according to the laws of Nezikin; he cannot be judged with the laws of robbery, since non-experts cannot judge the laws of robbery).