THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) COMPARING "PESHARAH" TO "DIN"
QUESTION: The Gemara discusses the argument between Rebbi Meir and the
Chachamim regarding Pesharah, judicially arbitrated compromise. Rebbi Meir
maintains that compromise can be done only with three mediators, while the
Chachamim require only one. The Gemara says that the argument is based on
whether we compare Pesharah to Din. Rebbi Meir says we that we do make such
a comparison, and, therefore, compromise requires three mediators just as
Din requires three judges. The Chachamim do not make this comparison, and,
therefore, one judge can mediate a compromise.
What is the source for comparing compromise to Din, according to Rebbi Meir?
The view of the Chachamim is understandable -- compromise and Din are
entirely different concepts and thus there is no grounds for comparing them.
Why does Rebbi Meir equate the Halachos of compromise with the Halachos of
(a) RASHI says that the verse itself compares compromise to Din. We are told
that David ha'Melech performed "Mishpat u'Tzedakah" (Shmuel II 8:15);
"Mishpat" is Din, exact judgement, and "Tzedakah" refers to compromise, and
the Gemara later explains. Since the Torah itself associates the two
concepts, we may assume that they have Halachic similarities.
TOSFOS questions this source for comparing compromise with Din. The Gemara
later records a Machlokes whether it is a Mitzvah to make a compromise, or
whether it is just permissible to make a compromise. The Beraisa later
records the view of the Tana who maintains that compromise requires three
judges, and it says that the same Tana maintains that making a compromise is
permissible, but it is not a Mitzvah (Rebbi Yehoshua in the Beraisa
maintains that making a compromise is a Mitzvah). If the source for
comparing compromise to Din is the verse "Mishpat u'Tzedakah," then it
should certainly be a Mitzvah, since the verse calls it "Tzedakah!" Tosfos
therefore rejects this verse as the source for comparing compromise to Din.
Tosfos also points out that we cannot learn the comparison from the verse,
"Emes u'Mishpat Shalom Shiftu b'Sha'areichem" (Zecharyah 8:16), which
compares "Shalom" (compromise) to "Mishpat" (Din), with "Shalom" referring
to compromise, because making "Shalom" is also a Mitzvah.
(b) The MAHARAM SHIF suggests that the source for comparing the two concepts
is from the verse, "Tzedek Tzedek Tirdof" (Devarim 16:20). The Gemara later
(32a) derives from the extra word "Tzedek" that one "Tzedek" refers to Din,
and the other "Tzedek" refers to compromise, while the word "Tzedek" itself
does not imply a Mitzvah. (Y. Montrose)
2) THE DIFFERENCE BETWEEN MOSHE AND AHARON
QUESTION: The Gemara quotes Rebbi Eliezer who says that it is forbidden to
offer a compromise to the litigants in a dispute, and one who does so is
called a sinner. Rebbi Eliezer continues and says that Moshe Rabeinu never
made a compromise. However, his brother Aharon, who "loved peace and pursued
it," would make peace between people by negotiating compromises.
3) AGADAH: PRAISING YEHUDAH'S SALE OF YOSEF
The Gemara is difficult to understand. Why would Aharon act contrary to the
Halachah, according to Rebbi Eliezer?
(a) RASHI explains that Aharon did not do anything wrong. This opinion
maintains that it is forbidden to make a compromise only when the two
disputing parties have already come to Beis Din to receive a Din Torah.
Aharon would always try to placate the parties involved in a dispute from
the moment he heard them arguing, *before* they came to Beis Din.
(b) TOSFOS seems to have a different opinion. He says that because Aharon
was not a Dayan and people did not go to him to be judged (as they when to
Moshe), he was permitted to make a compromise when two litigants came to
Tosfos seems to indicate that Moshe would *not* have been allowed to make a
compromise even if the litigants came to him for a compromise and not for a
Din Torah, since he was a Dayan. Rashi, on the other hand, does not seem to
prohibit a Dayan from making a compromise out of court.
According to Rashi, though, we remain with a question. Why indeed did Moshe
not make compromises out of court?
Also, according to Tosfos, why does Rebbi Eliezer say that Moshe never made
compromises because he said, "Yikov ha'Din Es ha'Har" ("the judgement should
pierce the mountain")? It seems that regardless of whether he said that,
Moshe would not be allowed to make a compromise, since he was a Dayan.
Perhaps we may suggest an answer based on the words of the NETZIV and
MARGOLIYOS HA'YAM, who explain that Moshe was different from all other
Dayanim. Moshe Rabeinu was capable of accurately knowing the exact judgement
to make once he started to hear the aspects of an argument. Consequently,
for him it was not possible to make a compromise, because the Gemara later
states that only when a judge is uncertain about the ruling in a case is he
permitted to make a compromise. This is why Moshe could never make a
compromise (even out of court, according to Rashi), and why (according to
Tosfos) Rebbi Eliezer explained that Moshe said that "the judgement should
pierce the mountain" -- to Moshe, in every case the judgment was clear. The
Netziv points out that this is why Moshe did not make any compromise, even
though we rule in practice like the next opinion in the Gemara which says
that it is a Mitzvah to compromise.
We may suggest an alternative answer based on TOSFOS in Yevamos (62a). The
Gemara there relates the reason why Moshe separated from his wife. Hashem
commanded that before the Jewish people hear His voice at Har Sinai, they
are to separate from their wives for three days in order to be absolutely
pure and fit to hear His voice. Moshe Rabeinu reasoned that if the Jewish
people must separate from their wives for this reason, then certainly one
who hears the voice of Hashem constantly (i.e. Moshe himself) must separate
from his wife at all times. The Gemara relates that Hashem agreed with
Tosfos there (end of DH d'Chesiv) asks that we find that Aharon and Miriam
did not agree with Moshe's decision to separate from his wife. If Hashem
agreed with Moshe, then how could Aharon and Miriam disagree? Tosfos answers
his question, but the answer is not clear. He says that we know that there
is a principle that "in the way that a man wants to go, he is led" (Makos
10b), and that Hashem helps someone who puts forth the effort to purify
himself. How, though, does this answer the question of Tosfos?
The CHASAM SOFER offers an explanation for the words of Tosfos. A person can
direct and focus his potential to do Mitzvos in many ways. After all, there
are many Mitzvos to do and we must do all of them. However, on which Mitzvos
should a person focus his energy? This was the argument between Moshe and
Aharon. Moshe felt that although all of the Mitzvos are important, one
should focus primarily on the Mitzvos "Bein Adam la'Makom," between man and
Hashem. For that reason, Moshe held that it was essential for him to
separate from his wife in order to better serve Hashem. Although Aharon and
Miriam realized that Moshe was doing this for the purpose of serving Hashem,
and they realized that Hashem agreed with Moshe's desire to serve Him
better, they maintained that Hashem's agreement with Moshe was a result of
the path that Moshe had chosen for himself. They argued that Moshe was
incorrect in concentrating so exclusively on Mitzvos between man and Hashem,
and that if Moshe would focus more on Mitzvos "Bein Adam la'Chaveiro,"
Mitzvos between man and his fellow man, and make that his primary means of
serving Hashem, then Hashem would *not* agree to Moshe's separation from his
This is what Tosfos means. Aharon and Miriam viewed Hashem's agreement with
Moshe as a result of Moshe's own desire to prioritize Mitzvos Bein Adam
la'Makom, because Hashem helps a person to walk in the path that he chooses
for himself. Aharon and Miriam argued that Moshe's decision to take that
path was not correct.
Based on this, we can understand why Moshe and Aharon were different with
regard to compromising in judgement. It is a great Kidush Hashem when people
see that every dispute can be resolved by a clear solution based on Torah
law. Moshe Rabeinu was able to make decisions like these constantly, thereby
showing the truth of the Torah. He therefore said that "the judgement should
pierce the mountain," for why should he attempt to make compromises when he
could make a tremendous Kidush Hashem with every judgement which he issued?
Aharon, in contrast, served Hashem primarily through creating harmony among
people. Therefore, he always pursued the path of compromise. (Y. Montrose)
QUESTION: Rebbi Meir interprets the verse, "u'Votze'a Berech Ni'etz Hashem"
(Tehilim 10:3), as referring to someone who blesses Yehudah's act of selling
Yosef as a slave. Why is blessing Yehudah's act of selling Yosef singled out
for such censure? Moreover, why should the one who blesses Yehudah be
described as angering Hashem, while Yehudah himself is not depicted as
angering Hashem through his act? (MAHARSHA)
(a) The MAHARSHA answers that we might have thought that since many good
things developed from the sale of Yosef as a slave (such as Yosef's ultimate
rise to power in Egypt and his saving the world from famine, including his
family), it is appropriate to praise Yehudah's act. Rebbi Meir therefore
teaches that such a person angers Hashem, as he implies that Hashem was
behind the evil plan to sell Yosef. Hashem never requires someone to do a
misdeed (with evil intent) in order to fulfill His divine plan, and thus
someone who makes such a suggestion angers Hashem.
(b) The EIN YAKOV says that one who praises Yehudah for selling Yosef angers
Hashem, because it would have been better had Yehudah left Yosef in the pit
to be killed.
What does the Ein Yakov mean? On the contrary, Yehudah saved Yosef's life!
The Maharsha explains that according to the Ein Yakov, the one who blesses
Yehudah for selling Yosef and saving his life is saying that Yehudah did so
only for monetary gain. Such a statement angers Hashem, because, in truth,
Yehudah did not do it for monetary gain, but out of pure motives and fear of
Hashem. Rebbi Meir is interpreting the verse to be saying, "Botze'a
Berech" -- one who praises Yehudah for making money ("Botze'a") from the
sale of Yosef, "Ni'etz Hashem" -- angers Hashem, because he thereby
belittles a Tzadik.
(c) The Maharsha offers a third explanation, which he admits is unlike the
explanations offered by the earlier commentaries. The phrase "Mevarech
Hashem" is sometimes used as a euphemism in the Gemara to refer to someone
who curses Hashem. The Maharsha suggests that here, too, the "blessing"
actually refers to a curse. Rebbi Meir is saying that someone who *curses*
Yehudah's initiative in the sale of Yosef is not acknowledging Yehudah's
good intention, which was to save Yosef's life. His brothers would not allow
Yehudah to return Yosef to his home, so he did whatever he could to spare
Yosef's life. By cursing Yehudah a person angers Hashem, because Yehudah's
name contains the four letters of the Name of Hashem.
(d) The NETZIV (in HA'EMEK DAVAR, Parshas Vayeshev, ha'Rechev Davar) quotes
a different explanation in the name of RAV REFAEL VOLOZHINER. The Gemara in
Bava Basra (8b) states that captivity is worse than death. However, it is
apparent from the verses quoted there that this applies only to a Jewish
person taken captive by Nochrim. This is because the Jew must struggle to
maintain his observance of Mitzvos among the Nochrim. In contrast, the
captivity of a Nochri is certainly better than his death, since he has no
struggle but merely assimilates into the culture of his captors.
When one blesses Yehudah for selling Yosef as a slave, he is essentially
praising Yehudah for saving Yosef from death, a fate worse than captivity.
However, death is only worse than captivity for someone who does not
struggle to observe the Mitzvos. Hence, one who praises Yehudah is saying
that it is not so important to observe the Mitzvos, and thus captivity was
better for Yosef than death. A person who says such a thing certainly angers
Hashem. (Y. Montrose)