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because he does not learn anything from the letter vav. Rather, what is the Merciful One saying in the Torah with the phrase “and your judges”? He is referring to the distinguished that are among your judges. The Gemara raises an objection: However, if that is so, if every plural form in the verse adds another two judges, then when it later states: “And they shall go out,” this should indicate another two. And: “And they shall measure” (Deuteronomy 21:2), should indicate yet another two. This means that according to the reasoning of Rabbi Yehuda there are nine judges enumerated here, while according to the reasoning of Rabbi Shimon there are seven judges enumerated here.

The Gemara responds: He requires that verse: “And they shall go out…and they shall measure,” for that which is taught in a baraita: “And they shall go out,” serves to emphasize that they themselves go out, and not their agents, i.e., they may not appoint an agent to measure the distance but must do it themselves. “And they shall measure,” teaches that even if the corpse was found clearly near to a particular city they would nevertheless measure the distance, as it is a mitzva to engage in this act of measurement.

§ The Gemara comments: The mishna is not in accordance with the opinion of Rabbi Eliezer ben Ya’akov, as it is taught in a baraita: Rabbi Eliezer ben Ya’akov says: “Your Elders,” this is the Sanhedrin; “your judges,” this is the king and the High Priest. According to Rabbi Eliezer ben Ya’akov, the king and the High Priest need to participate in the ritual of breaking the neck of the heifer. From where is it learned that they are called judges? A king is called a judge, as it is written: “A king by justice establishes the land” (Proverbs 29:4). A High Priest is called a judge, as it is written: “If there arise a matter too hard for you in judgment…And you shall come to the priests the Levites, and to the judge who shall be in those days” (Deuteronomy 17:8–9).

A dilemma was raised before the Sages: Is it so that Rabbi Eliezer ben Ya’akov disagrees only with regard to a king and a High Priest, contending that they too must be present at the measurement, but that with regard to the Sanhedrin he holds either in accordance with the opinion of Rabbi Yehuda that five Elders are needed or in accordance with the opinion of Rabbi Shimon, that three suffice? Or, perhaps he also disagrees with regard to the Sanhedrin and claims that the ritual is not performed unless there is the entire Sanhedrin participating.

Rav Yosef said: Come and hear a proof from a baraita: If a rebellious Elder found the Sanhedrin not in the Hewn Chamber, which was their usual place, but in Beit Pagei, near Jerusalem, and he rebelled against them there, by teaching in opposition to their ruling, one might have thought his rebellion should be considered a rebellion, rendering him liable to punishment. The verse therefore states: “And you shall arise and go up to the place” (Deuteronomy 17:8), which teaches that it is the place where the Sanhedrin resides that causes the halakha of a rebellious Elder to take effect.

The Gemara analyzes this statement: In this case, how many members of the Sanhedrin were there who went out to Beit Pagei? If we say that only a minority of them went out, why should he be considered a rebellious Elder? Perhaps those judges who are inside the Hewn Chamber hold in accordance with his opinion, which would mean that the Elder in question ruled with the majority. Rather, it is obvious that they all went out.

The assumption that they all went out leads to the following question: And for what purpose did they all leave the Hewn Chamber? If it was for an optional matter, may they leave? But isn’t it written: “Your navel [shorerekh] is like a round goblet, let no mingled wine be wanting” (Song of Songs 7:3). This verse is interpreted as referring to the Sanhedrin, the ministers [sarei] of Israel who sit in a semicircle, like half of a round goblet. The words “let no mingled wine be wanting” teach that if one of the great Sanhedrin needed to leave, then if there are still present in the Hewn Chamber twenty-three members, corresponding to the number of a lesser Sanhedrin, he may leave; and if not, he may not leave. This indicates that it is prohibited for the entire Sanhedrin to leave for an optional matter.

Rather it is obvious that they left for a matter of a mitzva. For what particular mitzva did they venture out? Is it not for the measurement associated with the ritual of the heifer, and it is in accordance with the opinion of Rabbi Eliezer ben Ya’akov? This would prove that Rabbi Eliezer ben Ya’akov holds that the entire Sanhedrin goes out to measure the distance from the corpse to the nearby cities. Abaye said to Rav Yosef: No, this is not a proof, as perhaps they went out for a different mitzva, to expand the city of Jerusalem or the courtyards of the Temple, as we learned in a mishna (Sanhedrin 2a): They may expand the sanctified area of the city of Jerusalem or of the Temple courtyards only with the court of seventy-one.

It is taught in a baraita in accordance with the opinion of Rav Yosef, that Rabbi Eliezer ben Ya’akov disagrees even with regard to the number of judges: If the rebellious Elder found the Sanhedrin in Beit Pagei and rebelled against them, for example, if they went out for the measurement of the ritual of the heifer or to expand the area of the city or that of the courtyards, one might have thought that his rebellion should be a rebellion. Therefore, the verse states with regard to the requirement to follow the rulings of the Sanhedrin: “And you shall arise and go up to the place” (Deuteronomy 17:8). This teaches that the place causes the halakha of a rebellious Elder to take effect, indicating that the entire Sanhedrin participates in the measurement of the distance from the corpse to the cities.

§ The mishna teaches: If the corpse was found concealed in a pile of stones or hanging on a tree, they would not perform the ritual of the heifer. The Gemara suggests: Let us say that the mishna is in accordance with the opinion of Rabbi Yehuda and not in accordance with the opinion of the Rabbis. This is as it is taught in a baraita with regard to the halakha that sheaves of grain forgotten in the fields must be left for the poor: “And you forget a sheaf in the field” (Deuteronomy 24:19). This excludes a concealed sheaf; it is not considered forgotten and it may be collected by the owner, even if he did forget it. This is the statement of Rabbi Yehuda. And the Rabbis say: The phrase “in the field” serves to include the concealed sheaves, and these must be left for the poor. Rabbi Yehuda holds, like the ruling in the mishna here, that when the verse states “in the field” it excludes a concealed corpse.

Rav said: You can even say that the mishna is in accordance with the opinion of the Rabbis, as here they expound the halakha based on the context of the verse, and there too they expound the halakha based on the context of the verse.

In this case, as it is written: “If one be found slain” (Deuteronomy 21:1), the default assumption is that the halakha applies no matter where it is found. When the verse then states: “In the ground,” it must be serving to exclude a matter, i.e., a concealed corpse. And similarly, there, in the case of forgotten sheaves, they also expound based on the context of the verse, as it is written: “When you reap your harvest in your field, and you forget a sheaf” (Deuteronomy 24:19). This indicates that forgotten sheaves are similar to those of the harvest: Just as the harvest is performed with revealed objects, i.e., the growing grain, so too, the halakhot of forgetting pertain to revealed sheaves. Consequently, when the Merciful One writes in the Torah “in the field,” it must be in order to include the concealed sheaves.

In light of this explanation, the Gemara asks: According to Rabbi Yehuda as well, let him derive that covered sheaves are not included from the fact that forgotten sheaves are similar to those of the harvest. Why does he have to derive it from the words “in the field”? The Gemara answers: Yes, it is indeed so, he does not derive that halakha from the phrase “in the field.”

The Gemara therefore inquires: But then why do I need the phrase “in the field,” which indicates either an exclusion or an inclusion? The Gemara answers: He requires it in order to include the forgotten stalks of standing grain. Produce that one forgot to reap is considered forgotten, even if it is still attached to the ground. The Gemara asks: And the Rabbis, from where do they learn the halakha of forgotten stalks of standing grain? The Gemara answers: They derive it from the verse: “When you reap your harvest in your field, and you forget,” which indicates that the halakha includes one who forgot to harvest part of his field.

The Gemara asks: And what does Rabbi Yehuda derive from this verse? The Gemara answers: It is necessary for him in order to learn that which Rabbi Abbahu says that Rabbi Elazar says, as Rabbi Abbahu says that Rabbi Elazar says: This verse excludes sheaves that floated through the air from his field into another’s field. Such sheaves are not classified as forgotten and may be retrieved later by the owner. And the Rabbis, from where do they derive this halakha? They derive it from the fact that the verse could have stated: In the field, but instead states “in your field,” to include sheaves situated only in one’s own field. The Gemara continues to ask: And what does Rabbi Yehuda learn from this phrase? The Gemara answers: He does not learn anything from the difference between: In the field, and “in your field,” as he holds it is not a significant difference.

Rabbi Yirmeya raises a dilemma: If sheaves floated into his field, i.e., if one sheaf landed on another sheaf or on another item, what is the halakha? Is the airspace of a field considered to be like it is the field itself, in which case one sheaf on top of another meets the legal requirements to be deemed forgotten? Or, is it not considered like the field, in which case one sheaf on top of another does not meet the legal requirements to be deemed forgotten?

Rav Kahana said to Rav Pappi, and some say Rav Kahana said it to Rav Zevid: Let him resolve the dilemma from the statement of Rabbi Abbahu, who says that Rabbi Elazar says: This excludes sheaves that floated into another’s field. If they floated into another’s field, yes, Rabbi Elazar said that they are not deemed forgotten, but if they floated into his own field, they are not discussed by Rabbi Elazar, and therefore they are deemed forgotten.

The Gemara refutes this proof: And according to your reasoning that the halakha of the baraita is limited to the case stated, one could infer: In a case where the sheaves drifted into another’s field, then if they were floating, yes, they are not deemed to be forgotten, but if they were resting directly on the ground in another’s field, no, they are deemed to be forgotten. But this cannot be the halakha, as we require the sheaves to be “in your field,” and these sheaves are not in his field.

Rather, you must admit that the words: Into another’s field, include not only those sheaves which are lying on other items, but even those resting directly on the ground. And the reason that Rabbi Abbahu states: Floated, is that you find a situation where sheaves end up in the field of another only in a case where they floated through the air and fell there. Since the term floated was not used to teach a halakha, no inference can be made from this baraita with regard to sheaves that floated in one’s own field.

The Gemara again attempts to resolve the dilemma: Come and hear a proof from a baraita (Tosefta, Pe’a 3:7): In the case of a sheaf that had been held by its owner in order to take it to the city, and he placed it on top of another sheaf, and he forgot both sheaves, the lower sheaf is deemed to be a forgotten sheaf, and the upper one is not deemed to be a forgotten sheaf. Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: Both of them are not deemed to be forgotten sheaves; the lower one because it is concealed, and the upper one because it is floating and not directly touching the field. The Gemara points out: They disagree only with regard to the lower sheaf, but with regard to the upper one all agree that it is not deemed a forgotten sheaf. This demonstrates that a sheaf located in the airspace of the field is not deemed to be forgotten.

The Gemara rejects this proof: There it is different, as, since the owner had held it to take it to the city, he acquired it. The reason it is not deemed to be a forgotten sheaf is not because it is not touching the field but because the owner had already acquired that particular sheaf before forgetting it. The Gemara raises an objection to this explanation: If so, why specifically state the case of a sheaf that was placed on top of another? The same would hold true in a case where one put the sheaf down directly in the field as well, as he has already acquired it. The Gemara answers: Yes, it is indeed so, and the reason that the baraita teaches: On top of another, is due to the lower sheaf rather than the upper one, in order to teach the dispute concerning the lower sheaf.

The Gemara asks: But Rabbi Shimon said: Because it is floating. How can one then say that the reason for his ruling is because the owner of the field has acquired it? The Gemara answers: Say instead: Because it is like it is floating. In other words, it is as though the upper sheaf had not been put down at all, but remains in the owner’s hands.

The Gemara tells of a related incident. On one occasion Abaye said: I am hereby as sharp and expert as ben Azzai, who taught Torah in the markets of Tiberias, and am ready to answer any question that might be posed to me. One of the Sages said to Abaye, with regard to the ritual of the heifer whose neck is broken: If there were two slain people found one on top of the other not precisely aligned, from where does one measure the distance to the surrounding cities?

The various aspects of the dilemma are as follows: Is a substance in contact with the same type of substance considered to be concealed, and is a substance in contact with the same type of substance not considered to be floating, which would mean that the lower, concealed corpse is ignored because one does not measure the distance from a concealed corpse, as taught in the mishna, and one measures the distance from the upper one? Or perhaps a substance in contact with the same type of substance is considered to be floating, and a substance in contact with the same type of substance is not considered to be concealed, and he measures the distance from the lower one, because it is not considered to be concealed, but not from the upper one, which is considered to be floating.

Or perhaps a substance in contact with the same type of substance is considered to be concealed, and a substance in contact with the same type of substance is considered to be floating, and he therefore does not measure the distance from the lower one nor does he measure the distance from the upper one. According to this last option, in such a situation no measuring is done, and the ritual is not performed.

Abaye said to him:

Talmud - Bavli - The William Davidson digital edition of the Koren No=C3=A9 Talmud
with commentary by Rabbi Adin Steinsaltz Even-Israel (CC-BY-NC 4.0)
אדם סלומון
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