OPINIONS: The Gemara cites a Beraisa that lists the laws relevant to a Zaken Mamrei and their sources in the Torah. One of the laws is that in order to be punished as a Zaken Mamrei, he must argue with a "Davar" (Devarim 17:8). The Gemara explains that this refers to a "Halachah." To what, though, does this "Halachah" refer?

(a) RASHI seems to have had a Girsa which read "Halachah l'Moshe mi'Sinai" instead of merely "Halachah." One might have thought that a Zaken Mamrei must argue with a law mentioned explicitly in the Torah. The Beraisa derives from the word "Davar" in the verse that even an argument about a Halachah l'Moshe mi'Sinai can make someone a Zaken Mamrei.

The RAN explains that this Beraisa teaches that one cannot become a Zaken Mamrei if he argues with a ruling concerning a Halachah which is mid'Rabanan, because if such an argument would make him a Zaken Mamrei, then the Gemara would have said that this is what the verse teaches, and it would have inferred from there that certainly arguing with a Halachah l'Moshe mi'Sinai would make him a Zaken Mamrei. Since the Beraisa says only that the verse refers to a Halachah l'Moshe mi'Sinai, it must maintain that arguing with a ruling concerning a Mitzvah d'Rabanan does not make one a Zaken Mamrei.

The Ran points out that when the following Mishnah (88b) says the words "Divrei Sofrim," it refers not to a Mitzvah d'Rabanan but rather to a Halachah l'Moshe mi'Sinai, such as adding another section to the Tefilin. Similarly, when Rebbi Shimon in the Gemara here says that one can become a Zaken Mamrei even by arguing with "Dikduk Echad mi'Dikdukei Sofrim," he refers to a Halachah that is derived through a Derashah, such as a Kal va'Chomer or a Gezeirah Shavah, which is a Halachah mid'Oraisa.

(b) The RAMBAM (Hilchos Mamrim 4:1) argues that one can become a Zaken Mamrei by arguing about a Halachah d'Rabanan which concerns a Mitzvah for which one is liable for Kares for intentional transgression, and liable to bring a Korban Chatas for unintentional transgression. An example of such a case is a Zaken Mamrei who argues that Chametz is permitted during the sixth hour of Erev Pesach. What is the Rambam's reasoning?

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The RAMBAN (in his commentary to Sefer ha'Mitzvos, Shoresh Rishon, p. 24) understands that the Rambam follows his own view as expressed elsewhere. The Rambam maintains that one who transgresses a Mitzvah d'Rabanan is also guilty for transgressing the Torah prohibition of "Lo Sasur" -- "Do not turn away from what they (the Chachamim) instruct you" (Devarim 17:11). Accordingly, the Rambam maintains that one who argues with a Mitzvah d'Rabanan can become a Zaken Mamrei, since a Mitzvah d'Rabanan is also of a Torah nature.

The KESEF MISHNEH explains the reasoning of the Rambam differently. He explains that the Rambam understands that one can become a Zaken Mamrei by arguing with a Mitzvah d'Rabanan because a Mitzvah d'Rabanan can have ramifications that are of a Torah nature. For example, if a man is Mekadesh a woman with Chametz after the sixth hour on Erev Pesach, and then another man attempts to be Mekadesh her by giving her money, the Zaken Mamrei's ruling will affect a Halachah d'Oraisa: if he argues that the Chametz is considered in the first man's possession, then the woman is married to the first man, and when the second man gives her money for Kidushin his act is meaningless. In truth, however, the first man's act of Kidushin is invalid (because the Chametz was forbidden), and the second man's Kidushin is binding, and when the first man lives with the woman he will be transgressing the Isur d'Oraisa of Eshes Ish. Therefore, arguing with this d'Rabanan law can make him a Zaken Mamrei.

The Ramban does not accept this explanation of the Rambam's ruling, because the Torah states that the Zaken Mamrei must argue with a law which is "Al Pi ha'Torah" (Devarim 17:11). Hence, any law which is mid'Rabanan does not fit that category.

The KIN'AS SOFRIM (on Sefer ha'Mitzvos) gives a third approach to understanding the Rambam. He explains that the Rambam simply rules in accordance with an explicit Gemara later on the page. The Gemara states that a person can become a Zaken Mamrei by arguing about whether Beis Din may establish a leap year during all of Adar or only until Purim. The Gemara adds that the ramifications of this argument can cause people to eat Chametz on Pesach; if no extra month is added to the year, then Pesach comes one month after Purim, and not two. The Gemara implies that merely arguing about whether or not this is a valid time to establish a leap year can make him a Zaken Mamrei. Although the Kin'as Sofrim maintains that this is a valid source for the ruling of the Rambam, he nevertheless explains how the Ramban understands this Gemara. He explains that although the specific question of the deadline for adding an extra month involves a Halachah mid'Rabanan, the Torah explicitly empowers Beis Din to establish the calendar. Therefore, this argument may be considered one that is of a Torah nature and not mid'Rabanan. (See Sefer ha'Mitzvos, Shoresh Rishon, and commentaries there for many proofs for both opinions.) (Y. MONTROSE)

QUESTION: The Gemara states that a person can become a Zaken Mamrei by arguing against the Sanhedrin with regard to whether Beis Din may establish a leap year during all of Adar or only until Purim. The Gemara adds that the ramifications of this argument can cause people to eat Chametz on Pesach; if no extra month is added to the year, then Pesach comes one month after Purim, and not two.

One of the conditions necessary in order to punish a Zaken Mamrei is that the Zaken Mamrei conducts himself, or instructs someone else to conduct himself, in accordance with his deviant ruling. How is it possible to conduct himself in accordance with his ruling in the matter of establishing the leap year? Beis Din establishes the leap year, and not any individual. How is it possible for a Zaken Mamrei to make a leap year against the ruling of Beis Din?

(a) The TORAS CHAIM answers that the Gemara must be talking about a case in which the Sanhedrin and Nasi gave this person permission to establish a leap year. (See RAMBAM, Hilchos Kidush ha'Chodesh 5.)

The KLI CHEMDAH (Parshas Bo) states that the case is one in which the Sanhedrin gave permission to a smaller Beis Din to establish a leap year, and that Beis Din completed the establishment of the leap year only after Purim. The Sanhedrin, however, maintains that a leap year should not be established after Purim, and therefore the smaller Beis Din was not representing the Sanhedrin when it established the leap year. The Zaken Mamrei is of the opinion that a leap year may be established at any time throughout the entire month of Adar, until Nisan. Therefore, he expresses his opinion that the smaller Beis Din did fulfill its role as the appointee of the Sanhedrin and its establishment of the leap year is valid. (Y. MONTROSE)

OPINIONS: The Beraisa (87a) lists the categories of Halachah to which the law of Zaken Mamrei applies. If he argues with a ruling in any of those categories, he can be punished as a Zaken Mamrei. The Gemara gives specific examples of rulings in those categories. In the category of Tzara'as, the Gemara gives as an example the argument between Rebbi Yehoshua and the Rabanan. The Mishnah in Nega'im (4:11) states that when the Nega appeared before the white hair that grew inside of it, the Nega is deemed Tamei. When the white hair appeared first, the Nega is deemed Tahor. When there is a doubt about which appeared first, the Rabanan rule that it is Tamei, and Rebbi Yehoshua rules that it is Tahor.

In what way is this Halachah applicable to a Zaken Mamrei?

(a) RASHI (DH Kahah) explains that according to the Rabanan, if the person who is Tamei with Tum'as Nega'im enters the Beis ha'Mikdash, he is punished with Kares. If the Zaken Mamrei insists that the Halachah follows the opinion of Rebbi Yehoshua, he would permit this person to enter the Beis ha'Mikdash, and his argument would make him liable to punishment as a Zaken Mamrei.

(b) TOSFOS rejects Rashi's explanation. He contends that such an argument would not make the person guilty as a Zaken Mamrei. This is because a person who is Tamei with Tum'as Nega'im who accidentally enters the Beis ha'Mikdash does not bring a normal Korban Chatas. The Gemara in Horayos (9a) teaches that such a person brings a Korban Oleh v'Yored. The Gemara earlier (87a) says that a Zaken Mamrei is punished only when he rules contrary to Beis Din regarding a sin for which one must bring a normal Korban Chatas for its inadvertent transgression.

Therefore, Tosfos explains that the case is similar to the argument involving the laws of a Zavah. In a case in which the person with the doubtful Nega touches Terumah, and then another person uses that Terumah to be Mekadesh a woman, according to Rebbi Yehoshua the woman is married, while according to the Rabanan the woman is not married. According to the Rabanan, the person is considered Tamei and thus the Terumah is Tamei and has no value. When a Zaken Mamrei argues with the ruling of Beis Din (he rules in accordance with Rebbi Yehoshua), he declares the woman to be married to the first man when she really is not married to him. If a second man then gives her money for Kidushin, that Kidushin will be valid and the first man will be living with an Eshes Ish (a sin for which he must bring a normal Korban Chatas).

The ARUCH LA'NER suggests that perhaps Tosfos did not fully understand the intention of Rashi. Rashi means to say that because the sin of entering the Beis ha'Mikdash while one is Tamei is punishable with Kares when it is done intentionally, Beis Din would give lashes to such a transgressor. According to Rebbi Yehoshua, the Beis Din would wrongly be giving him lashes, since Rebbi Yehoshua maintains that such a Nega is not Tamei. Consequently, since Beis Din injured him unjustly, the members of the Beis Din owe him compensation. If Beis Din would pay him that money and then he would take that money and be Mekadesh a woman with it, then the same Halachic argument between the Rabanan and Rebbi Yehoshua would apply, as it applies in the case that Tosfos mentions. According to the Rabanan, the man deserved lashes and did not deserve the monetary compensation, and thus the money does not rightfully belong to him and the woman is not married to him, while according to Rebbi Yehoshua the woman is married to him. An obligation to bring a normal Korban Chatas would result from such a situation.

The Aruch la'Ner points out, however, that the RAMBAM (Hilchos Mamrim 4:2) rules that a sin for which one is obligated to bring a Korban Oleh v'Yored also qualifies as a sin to make someone into a Zaken Mamrei. Tosfos' understanding of Rashi is clearly the view of the Rambam.

The SANHEDRI KETANAH asks another question on the explanation of Rashi and the Rambam. In the case of a person with a doubtful Nega who enters the Beis ha'Mikdash, since the person has only a doubtful Nega, even the Rabanan agree that the person is neither Chayav Kares out of doubt nor must he bring a Korban Chatas out of doubt (whether he must bring a Korban Asham Taluy depends on a different Machlokes). Rather, the Rabanan are stringent only to forbid him from entering the Beis ha'Mikdash in the first place, while Rebbi Yehoshua permits him to enter. (Y. MONTROSE)