Mark Washofsky
fo] [2]
94.
86.
87.
88.
89.
90. 91. 92. 93.
He is joined in this view by R. Menachem Hameiri, Beit Habechirah, Sanhedrin 33a, who rejects the notion that a matter decided by the geonim enjoys the status of davar mishnah. This is significant in that Meiri is, in general, heavily influenced by the halakhic thought of Rabad, his Provencal forebear.
. Ein lo ladayan ela mah she eynav ro’ot; BT Bava Batra 131a. 84.
Joel Roth, The Halakhic Process: A Systemic Analysis(New York : Jewish Theo logical Seminary of America , 1986), 81-113. The quotations are found at 83 and 113.
. BT Sanhedrin 32a(= M. Sanhedrin 4:1) and 33a. The categories are intro
duced as part of a series of efforts to resolve a contradiction between the mishnah in Sanhedrin and M. Bekhorot 4:4. According to the former, an erroneous decision at monetary law is reversed and the case retried; the latter declares that such a decision stands, but the judge is liable for compensation to the losing party.
So Rambam , Yad, Sanhedrin 6:1, following the sugya on BT Sanhedrin 33a, which extends the circumference of devar mishnah beyond the Mishnah to cover legal matters determined by the sages of all Talmudic generations. See also Meiri , Beit Habechirah, BT Sanhedrin 33a.
Rashi , BT Sanhedrin 33a, s.v. to eh bedevar mishnah. See Hil. Harosh, Sanhedrin 4:5:“this decision does not deserve to survive,” and Tur CM 25:“there is no ‘ruling’ when the error concerns a matter so obvious.”
If, however, the dayan is a mumcheh, an“expert” judge, or if he has been appointed by a recognized Jewish political authority such as the Exilarch, or if the litigants agreed to abide by his ruling in all events, he is empowered to retry the case.
The text here follows the preferred reading in geonic, rishonic, and manuscript traditions; see Mesoret Hashas and Dikdukey Soferim(n. 6) to Sanhedrin 33a.
Yad, Sanhedrin 6:2-3.
Arukh Hashulchan, CM 25, par. 2.
Hil. Harosh, Sanhedrin 4:6.
Introduction to Shulhan Arukh. Did Karo see the Beit Yosef as the indispensable commentary to the Shulhan Arukh, in the sense that one must study the former in order to understand the latter and use it as a reliable code? He does not state this explicitly in his introduction, where he describes the Shulchan Arukh primarily as an aid to the study of the halakhah. On the other hand, the pattern of Karo’s work—the creation of a large compendium containing all the necessary material for the understanding of the halakhah, followed by the creation of a shorter, simpler work encompassing easy-to-memorize legal dictasuggests to some that he might see the Shulhan Arukh as a sort of“hornbook” to be read at the conclusion of the thorough study of the Beit Yosef. Some authors, at any rate, insist on the prior study of the Beit Yosef before one declares the halakhah in accordance with the Shulhan Arukh. Among these is R. Yom Tov Lipmann Heller in the wonderful introduction to his Tosafot Yom Tov commentary to the Mishnah . See as well Yad Malakhi, Kelalei HaShulhan Arukh, no. 1, and Sedei Chemed, Kelalei Haposkim, 13:2.
It is for this reason, Karo tells us, that he chose to make his Beit Yosef a commentary upon an existing compendium rather than a self-standing work. To collect all the materials by himself would have been a task without end. It is