Tuesday, January 05, 2010

Baba Basra 138b - Concerned for Beis Din Making Mistakes

The gemara discusses whether or not we are concerned that a beis din will make a mistake. The type of mistake that the gemara is referring to is that a later beis din may make an assumption based on the ruling of a previous beis din. Therefore, we can't allow a beis din to do chalitzah without first checking in to make sure that he is the yaveim and she is the yevama, because a later beis din may marry her off assuming that the earlier beis din had already looked into it, when in actuality the halacha requires the later beis din who marries her off to look into it, not the earlier beis din. Even by that type of mistake, the gemara concludes that a beis din will not assume that eidim who signed a contract looked into the matter, rather the beis din themselves will look into it.
This gemara seems to undermine a halacha in Shulchan Aruch (c.m. 33:4). The Rama writes that 2 witnesses who are related but are technically kasher to testify together, shouldn't sign a contract together because we are afraid that the beis din who reviews the contract will not know the halacha and passul the contract based on their relationship to one another. The Gr"a on that halacha points to our gemara which says clearly that the only kind of mistake a beis din will make is to rely on an assumption that an earlier beis din looked into the people before doing a chalitzah, but we never are concerned that a beis din will make an outright mistake and not know the halacha of "sheini b'sheini" with 2 ba'al k'ishto being kasher?
It seems that the Rama will hold that although we wouldn't make a takana (such as demanding of the beis din doing a chalitzah to check into the yaveim and yevama) out of fear that a beis din will make an outright mistake, we are able to advise 2 witnesses who are distant relatives not to sign together because they are unnecessarily jeopardizing the lenders ability to collect with this contract on the slight chance that a beis din will make such a mistake.

No comments: