1) THE DIFFERENCE BETWEEN THE TESTIMONY OF A TALMID CHACHAM AND A KING
QUESTION: The Gemara teaches that a Talmid Chacham who serves as a witness is exempt from the requirement that witnesses in Beis Din must stand. This apparently is an honorary exemption made out of respect to the Talmid Chacham.
TOSFOS (DH Meyushav) questions this ruling from the Gemara in Sanhedrin (19a). The Gemara there says that Shimon ben Shetach summoned King Yanai to Beis Din. Since one of King Yanai's servants had killed someone, the king was considered the defendant in the case. The Gemara in Shevuos (30a) teaches that a defendant (or the two parties in a monetary dispute) must stand in the presence of Beis Din, unless he is a Talmid Chacham. When Shimon ben Shetach saw that Yanai was sitting, he declared, "King Yanai, stand on your feet!" The law is that the honor due to a king is even greater than the honor due to a Talmid Chacham, as a Talmid Chacham may forgo his honor while a king may not. Since a Talmid Chacham does not have to stand in Beis Din, why did Shimon ben Shetach command King Yanai to stand?
ANSWERS:
(a) TOSFOS answers that a Talmid Chacham may forgo his honor, since it was through his own effort that he acquired his scholarship in Torah. A king is different in that his honor bestowed was bestowed upon him in order that he be feared and revered. This Gemara in Kedushin (32b) derives this from the verse, "Som Tasim Alecha Melech" -- "Place on yourself a king" (Devarim 17:15). The word "Alecha" teaches "that his fear should be upon you," "she'Tehei Eimascha Alecha." A king is not allowed to forgo his honor, since doing so will result in a lack of respect toward the king. However, if he forgoes his honor for the purpose of a Mitzvah, people will not fear and honor him less. Shimon ben Shetach knew that this would not result in a lack of respect for the king, and therefore he commanded the king to stand. The OLAS SHLOMO adds that Tosfos clearly means that a king must forgo his honor in such a situation, as is clear from Shimon ben Shetach's directive to Yanai that he should stand on his feet.
(b) In his second answer, Tosfos explains that the Gemara in Shevuos refers only to testifying about monetary matters, and not matters of life and death, such as was the case in the trial involving Yanai. In cases of life and death, even a Talmid Chacham must stand.
The RASHASH has difficulty with this answer of Tosfos. The Gemara attempts to prove that one who is sitting is always unfit for testimony, and the Gemara responds that this is not always the case, since a Talmid Chacham is an exception to this rule. If Tosfos' answer is correct, then there really is no one who is always exempt from standing during testimony. Why does the Gemara not respond that even a Talmid Chacham must stand when giving testimony of Dinei Nefashos? This would show that there is no absolute exemption from standing during testimony.
The Olas Shlomo answers that the Halachah that a Talmid Chacham must stand for testimony in Dinei Nefashos is only a stringency of the Rabanan. This is why the Gemara does not ask the question of the Rashash. (Y. MONTROSE)
16b----------------------------------------16b
2) WHEN IS SOMETHING "HUTAR MI'CHLALO?"
QUESTION: The Gemara quotes the opinion of Tana d'Vei Rebbi Yishmael, who derives through a Tzad ha'Shaveh from Zar and Ba'al Mum the law that an Onen who performs Avodah invalidates the Korban. Just as a Zar and Ba'al Mum are prohibited from performing Avodah, and if they perform the Avodah they invalidate the Korban, an Onen -- who is also prohibited from performing Avodah -- invalidates the Korban if he performs the Avodah.
The Gemara asks that a Zar and Ba'al Mum are not "Hutar mi'Chlalo" -- "permitted from their general rule." That is, there is no exception to the rule that prohibits a Zar or Ba'al Mum from performing Avodah. In contrast, there is an exception to the general rule that prohibits a Kohen from performing Avodah when he is an Onen: a Kohen Gadol who is an Onen is permitted to perform Avodah. Accordingly, the laws of an Onen should not be able to be derived from the laws of a Zar and Ba'al Mum.
The Gemara answers that the law that an Onen who performs the Avodah invalidates the Korban is derived through a Tzad ha'Shaveh from a Zar, Ba'al Mum, and a Kohen Tamei. Just as a Kohen who is Tamei may not perform Avodah, and if he does it is Pasul, so, too, an Onen who may not perform Avodah invalidates the Korban if he does perform the Avodah.
The Gemara asks that although the category of Tum'ah has an exception, it is not as exceptional as Onen. Tum'ah has an exception only in the case of a public Korban, when most of the public is Tamei (in which case the Kohen should do the Avodah because "Tum'ah Hutrah b'Tzibur" or "Tum'ah Dechuyah b'Tzibur"). In contrast, the law of an Onen has an exception even for individual (non-public) Korbanos, since the Kohen Gadol may offer private Korbanos when he is an Onen. Accordingly, the prohibition of an Onen may more be lenient than that of a Kohen who is Tamei, and therefore the law that an Onen renders the Korban Pasul cannot be derived from the law that a Kohen Tamei renders the Korban Pasul. The Gemara answers that the fact that both contain exceptions for Tum'ah suffices to enable us to derive Onen from Kohen Tamei, despite the fact that the law of an Onen has a slightly greater degree of leniency.
TOSFOS (DH she'Ken) asks that the Gemara says that the law of an Onen has an exception, while Zar and Ba'al Mum do not. However, the law of a Zar also has an exception, since he may perform the Avodah at a Bamah!
ANSWER: TOSFOS quotes RASHI who explains that the words "Hutar mi'Chlalo" mean that there was a rule that was permitted in one category. Since a Zar was never prohibited from doing Avodah at a Bamah, he cannot be considered "Hutar mi'Chlalo" in the Beis ha'Mikdash simply because he may do Avodah at a Bamah.
Tosfos quotes RABEINU CHAIM who questions this definition of "Hutar mi'Chlalo." The Gemara in Menachos (25a) teaches that the Pesul of Yotzei (when a Korban is taken out of its designated area, it becomes unfit) was "Hutar mi'Chlalo" because there is no Pesul of Yotzei at a Bamah. If Rashi's assertion that a Zar is not called "Hutar mi'Chlalo" at a Bamah, then why does the Gemara consider the Pesul of Yotzei to be "Hutar mi'Chlalo" at a Bamah?
1. Rabeinu Chaim gives two answers to his question on Rashi. One answer is that the Gemara in Menachos (25a) means that the Tzitz atones for something which, at other times, is permitted. Tosfos later (23b, DH Ha Eino) points out that this is based on the verse which says the Tzitz is "l'Ratzon Lahem" -- "for appeasement for them" (Shemos 28:38), which implies that the Tzitz atones for a sin which, in other places, is not considered a sin. After the Gemara suggests that this refers to public Korbanos offered when the people are Tamei, Rebbi Zeira asks that this may also refer to the Pesul of Yotzei, since Yotzei is "Hutar mi'Chlalo" at a Bamah. This does not mean that Yotzei is technically "Hutar mi'Chlalo," but rather that since Yotzei is permitted in a different situation (at a Bamah), it therefore fits the description of "l'Ratzon Lahem."
2. Alternatively, Rabeinu Chaim answers that the words "Hutar mi'Chlalo" generally mean that there is an entire category where the law does not apply, such as the fact that a Zar may do Avodah at a Bamah, but not in the Beis ha'Mikdash. However, the Gemara here uses these words in a more specific context: "Hutar mi'Chlalo" here means that there is an exemption even within one category. The Gemara differentiates between Zar and Onen because Onen has an exemption within a specific category.
3. The MEKOR BARUCH (1:2, DH v'Habet) answers that Rashi correctly states that the fact that a Zar may do Avodah at a Bamah is not called "Hutar mi'Chlalo" because "Hutar" means that there is a "permission" to do something a certain way, as opposed to the regular way that it is done. Since there is no preference with regard to who performs the Avodah at a Bamah, the fact that a Zar may do it is not a "permission," but rather the way it is supposed to be done. This differs from the Pesul of Yotzei, since taking the meat out of the confines of the Bamah is not something that must be done with the meat. It happens to be that if one brought the meat out, the meat remains permitted. This can be called "Hutar mi'Chlalo," since it is a leniency which is not essential to the bringing of the Korban. This fits the description of a "permission." (Y. MONTROSE)