Bais HaVaad on the Parsha, Parshas Matos-Masei

Justice Deportment

August 1, 2024

Excerpted and adapted from a shiur by Dayan Yitzhak Grossman

Or with any stone by which one could die, without seeing, and caused it to fall upon him and he died, and he was not his enemy and did not seek his harm.

Bemidbar 35:23

The Gemara in Sanhedrin (29a) says that one may not serve as a dayan for a litigant that he loves (oheiv) or hates (sonei).[1] In this context, oheiv means a friend close enough that he would help prepare his wedding (shoshbin), and sonei means a person he hasn’t spoken to for three days out of hatred (Sanhedrin 27b). The Gemara derives the halacha from this pasuk, which allows someone who killed unintentionally to be sent to galus (exile) if he was not a sonei, and the Gemara assumes that oheiv would be similar to sonei in this regard.[2]

The Gemara in Ksubos (105b) gives a different reason for the disqualification: A dayan will be unable to see any defense for his sonei or anything incriminating about his oheiv. Some Rishonim, including Tosfos and the Rosh, say that the Gemara in Sanhedrin is speaking only of oheiv gamur and sonei gamur—which are invalid mei’ikar hadin—but the Gemara in Ksubos is discussing a lesser oheiv and sonei. These Rishonim explain that it is only a chumra or a din lechat’chilah not to serve as a dayan in this case, but bedi’eved, the ruling would be valid.

According to the Rambam, there is only one type of oheiv and sonei. The Bais Yosef understands him to hold that lechat’chilah, a dayan may not judge any oheiv or sonei, but bedi’eved his ruling stands. The Lechem Mishneh, however, maintains that the Rambam invalidates such rulings. The Shulchan Aruch rules in accordance with the Rambam (without specifying), while the Rama follows Tosfos and the Rosh.

[1] R’ Yehudah and the Chachamim argue in the Mishnah (Sanhedrin 27b) whether a witness who loves or hates someone may testify about him in bais din, but the Gemara says they both agree that a dayan may not judge in such cases.

[2] Although the simple meaning of the pasuk is that the inadvertent killer didn’t hate his victim, the Gemara understands it to teach about a dayan too.