Sunday, March 07, 2010

Sanhedrin 24b - Are Gamblers Invalid for Witnesses and Judges?

The Mishna lists gamblers among those who are unfit to judge, and as rashi points out, unfit to testify since they are regarded as re'shaim. There is a discussion in the gemara as to why a gambler is unfit to testify/judge. Rami Bar Chama holds that it is an issue of אסמכת, which means that the money he wins is regarded as stolen. Rav Sheishes disagrees and attributes the p'sul to not being involved in ישובו של עולם. The gemara points out that the difference between the two opinions would be a situation where he has another job aside from gambling. The issue of אסמכת would apply regardless of whether he has another means of support, whereas the issue of ישובו של עולם would only apply if he has no other means of support.
Tosafos points out that both opinions in the gemara agree that the p'sul is only Rabbinic, because even the opinon who considers it theft due to אסמכת, since he doesn't realize the severity of the prohibition, he is not invalidated as a witness on a d'oraysa level. Regardless, we pasken like R. Sheishes that the p'sul is attributed to him not being involved in ישובו של עולם which would surely be d'rabonon.
There is a machlokes Rambam and Rashi as to the nature of the p'sul of not being involved in ישובו של עולם. The Rambam associates this with a gezel problem. Since the looser isn't willingly forfeiting his money to the winner, it is considered avak gezel. The S"MA (c.m. 34:40) explains the position of the Rambam - since it is not technically theft, the Rabbonon only considered it to be a problem if his main livelihood was coming from his gambling earnings. When the gemara stipulates that he is only passul if he doesn't have another אומנות, the gemara really means to say that he doesn't have another source of income. If he has another source of income, or is wealthy so that he doesn't need the gambling earnings for support, he would be kasher as a witness. However, if he had another income but required the earnings from gambling to support himself, he would be passul. The Gr"a (c.m. 203:44) disagrees with the approach of the sm"a and explains that the Rambam actually paskens like rami bar chama that אסמכת isn't ko'neh, and therefore considers it to be a gezel issue. But, the gr"a holds that even though it is a gezel problem, the rabbonon only invalidated him when he has no other livelihood.
Rashi considers the issue of not being involved in ישובו של עולם to have nothing to do with theft. Rashi writes - דהואיל ואין עסוקין בישובו של עולם, אינן בקיאין בטיב דינין ומשא ומתן ואינן יראי חטא. Rashi considers the issue to be an indication of a very low level of yir'as shamayim. The SM"A explains that this only applies to someone who doesn't work and doesn't realize the difficulties involved in earning money and would be prone to testify falsely (because he associates money as easy come easy go, and doesn't take it seriously). But someone who works, even if he can't support himself without the added income from gambling, wouldn't be passul for eidus since he realizes the challenges of earning a living.
The Shulchan Aruch who follows the Rambam and considers the problem of gambling to be associated with theft, goes lishitaso (c.m. 370:3) where he writes that one who gambles with gentiles would not be in violation of gezel (since only actual and direct theft is forbidden from a gentile, but not when he looses in gambling and agrees to give the money). Rashi would certainly not make this distinction and would hold that even one who gambles with gentiles would be passul to testify. Even according to the Rambam, the Shulchan Aruch frowns upon gambling and writes:
אבל יש בו איסור עוסק בדברים בטלים שאין ראוי לאדם שיעסוק כל ימיו אלא בדברי חכמה ויישובו של עולם

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