QUESTION: The Gemara teaches that when a judge acquits a defendant who in truth is guilty, sentences the innocent, declares Tamei something which is Tahor, or declares Tahor something which is Tamei, his verdict is final ("Mah she'Asah Asuy") and he must pay from his own funds to compensate for the damage caused by his incorrect ruling.

TOSFOS (DH Ma she'Asah) asks that the Gemara's ruling does not apply in the case of a judge who rules that something is Tahor when it is actually Tamei? Why is his ruling accepted ("Mah she'Asah Asuy")? The object should be considered Tamei, and not Tahor. Moreover, if the judge's ruling is considered final, then why must the judge pay anything at all? The Gemara, at this point, is discussing a judge who merely made an incorrect ruling about something which was Tamei. (The Gemara has not yet introduced its final explanation that the case involves a judge who actively mixed the Tamei fruit with a minority of Tahor fruit.)

The question of Tosfos, that the judge should not have to pay anything in such a case, is difficult to understand. Tosfos asks that if the judge's ruling is final, and his ruling of "Tahor" means that the object remains Tahor, he should not have to pay anything. If Tosfos assumes in his question that the judge should not have to pay because whatever he ruled is considered the law, then how does the Gemara's explanation later resolve this question? The judge obviously should not have to pay, since the case under discussion is one in which the judge made something *Tahor* and thus caused no damage!


(a) The MAHARAM explains that Tosfos' second question is not related to the case he discusses in the first question. In the first question, Tosfos discusses the case of a judge who made Tahor something that was in fact Tamei. In the second question, Tosfos' intention is to ask as follows: one cannot claim that when the Beraisa says "Mah she'Asah Asuy" it refers to a case in which the Tamei fruit (which the judge mistakenly declared Tahor) was mixed with a majority of Tahor fruit (and therefore no harm was done), and when the Beraisa says that "he pays from his own funds" it refers to a case in which the fruit was mixed with a *minority* of Tahor fruit (and therefore the Tahor fruit became Tamei), because this assumption is too far-fetched to make at this point in the Gemara. Tosfos answers that at this point, the Gemara indeed *does* make this assumption, but without one detail. At this point, the Gemara assumes that the *owner* of the fruit mixed the fruit (which he was told was Tahor) with other Tahor fruit. The fruit, however, is actually Tamei, and it causes the mixture to become Tamei (through Rov), and thus the judge should pay for causing the Tamei mixture. The Gemara's final answer is that *the judge* mixed the fruit together, and thus he is obligated to pay.

The Maharam clearly says this explanation only because of his question on Tosfos. This explanation is not consistent with the words of Tosfos, who makes no mention of the case of fruit at all.

(b) The YESHU'OS YAKOV (YD 111:6) has a different approach to the words of Tosfos. The Yeshu'os Yakov paraphrases Tosfos' question: Why should the judge have to pay from his own funds? On the contrary, he made something that was Tamei into something Tahor! The Yeshu'os Yakov writes that in his youth he gave a different answer (than that of Tosfos) to this question. The SHULCHAN ARUCH (YD 111:6) rules that when a piece of Isur falls into one of two kosher pots and renders the contents prohibited, and then a second piece of Isur falls into one of those two pots but it is unknown into which pot it fell, one may assume that it fell into the pot which is known to be prohibited. In contrast, when the first piece of Isur falls into one of two pots and it is unknown into which, and then a second piece of Isur falls into one of the pots (and it is known into which), both pots are prohibited. This Halachah answers Tosfos' question: If the judge mistakenly proclaims a pot as Tahor, when the second Tamei object falls into one of the pots (and it is unknown into which), both pots are proclaimed Tamei. If, in contrast, one of the pots had already been proclaimed Tamei, then one may assume that the Tamei object fell into that pot, and the other pot remains Tahor. Accordingly, in a case in which the judge mistakenly proclaimed the pot Tahor when the first object fell into it, when the second object falls into one of the pots (and it is unknown into which) and thus both pots are rendered Tamei, he must pay for his mistake.

This answer of the Yeshu'os Yakov shows that the question of Tosfos is logically sound, and that a judge might have to pay not only for a mistaken ruling that something is Tamei, but also for a mistaken ruling that something is Tahor. (See MARGOLIYOS HA'YAM for a similar answer to Tosfos' question.) (Y. MONTROSE)



OPINIONS: The Mishnah (32a) states that in monetary cases, "anyone" ("ha'Kol") may introduce proofs regarding who is innocent and who is guilty, in contrast to capital cases, in which one may introduce only a proof that the defendant is innocent. To whom does the Mishnah refer when it says "ha'Kol"? Obviously, the Dayanim are the ones who rule the case. Rav Papa answers that the Mishnah means that even one of the Talmidim (students) may offer a proof. RASHI (DH Amar Rav Papa) explains that Rav Papa refers to the Talmidim who would sit in front of the Beis Din when they were judging cases. These Talmidim may offer proofs for the case. What is the extent of the students involvement in the court case, according to Rav Papa?

(a) The CHIDUSHEI RABEINU YONAH explains that a Talmid who is convinced that a person is innocent may attain the status of a Dayan in the case. For example, if, in a monetary case, two Dayanim maintain that Reuven is correct, and one Dayan and one Talmid maintain that Shimon is correct, another Dayan must be added to determine the outcome of the case. The Chidushei Rabeinu Yonah cites support for this explanation from the Gemara later (34a). Rebbi Yosi bar Chanina there says that if one of the Talmidim who acquits dies, he is considered as though he is still alive. This clearly shows that the Talmid's opinion attains the status of the opinion of a Dayan.

(b) The CHIDUSHEI HA'RAN quotes an opinion which argues that the Talmid does not become a Dayan, but remains merely an observer whose ideas are considered by the Beis Din. According to this explanation, what is the meaning of Rebbi Yosi bar Chanina's statement that the Talmid is considered as though he is still alive? The Chidushei ha'Ran explains that Rebbi Yosi bar Chanina refers to a case in which one of the Talmidim said that he had a reason to acquit the defendant, but he became sick and died before he revealed reasoning. In such a case, the defendant is deemed innocent because of the doubt that the Talmid's reasoning indeed might have been sufficient to acquit the defendant.

The Chidushei ha'Ran rejects this explanation. If Rebbi Yosi bar Chanina is introducing a new law to acquit a defendant, he should say merely, "Potrin Oso" -- "we acquit him." Why does he say that "we view the Talmid as though he is alive and standing in his place"? This wording clearly implies that the Talmid remains posthumously in his position as a Dayan.

The Chidushei ha'Ran therefore gives another explanation, similar to that of Rabeinu Yonah. He points out that this addition of Talmidim to a Beis Din occurs only when there is disagreement among the Dayanim. However, when all of the Dayanim agree that a person is guilty, even if all of the Talmidim disagree, the opinion of the Talmidim is meaningless. Only when there clearly are two sides among the Dayanim do the Talmidim also become Dayanim. (Y. MONTROSE)