Mishnayos Rosh HaShanah with Running Commentary Mishna 1:1 through 3:1 (מהדורת שניה)

This Peirush was originally written in 2016. I have reworked the first chapter; expanding the commentary and editing the translation. I hope to continue revising this version in the future. The original version can be found here

This running commentary is an amalgam of various commentaries, including my own. Text of the Mishna is from Sefaria. Translations and commentaries used include: Sefaria, R"AV, Tosfos Yom Tov, Peirush HaRamBam L'Mishnayos, Mishna im peirush Siyata D'ishmaya, Yochin uBoaz, Mishna Mefureshes; Mishna with commentary by Chanoch Albeck, Artscroll/Yad Avrohom, Mishnayos im Biur HaMishna, Mishnayos Tosfos Yom Tov HaMevuar, Mishnas Eretz Yisroel (Safrai), Mishnat Yomi by Rabbi Dr. Joshua Kulp, Yaakov Nagen, Nishmat HaMishnah (Hebrew), R' Yosef Shlomo Zevin, Hamoadim B'Halacha (Hebrew), J. Tabory, Moadei Yisroel B'Tekufas HaMishna v'Hatalmud (Hebrew), Saul Lieberman, Tosefta Kepshutah. In addition, I have made use of numerous articles by Rav Prof. Avram Walfish on Mesechtas Rosh HaShana. All mistakes are my own. Any comments and/or questions can be sent to [email protected] If you would like the accompanying powerpoint presentation please email me as well.

Mesechtas Rosh HaShana concerns itself with two main topics. The first two פרקים (chapters) and the first משנה of the third chapter*^ describe the procedures by which the main Beis Din (Jewish Court) may declare Rosh Chodesh, the start of the new Jewish month. The second half of the Mesechta, the third and fourth chapters, discuss the mitzvah most asscoaited with Rosh HaShanah, the Shofar, and the Tefilos (Prayers) of Rosh HaShanah.

Both topics speak to the rhythm of the year, nevertheless, the juxtaposition of these two topics, the New Year and the New Moon, is curious and has been the subject of much discussion by both the classic commentators as well as academics. Some suggest that these topics are tied together since one needs the commencement of the new month of Tishrei to celebrate Rosh HaShanah. Others suggest that each of these topics on a stand alone basis would be too small to fill an entire Mesechta and were, therefore, grouped together.

Yehudah Shaviv, Mesechtas Rosh HaShanah: Problems and Solutions, Neutim Vol. 1 (Michlelet Herzog, Teves 5754) (Hebrew) pp. 11-18, posits a deeper connection between the two. Shaviv suggests that despite the importance of declaring the new month all year round, the Rosh Chodesh ceremony was particularly significant on Rosh HaShana. Rosh HaShana is the only holiday that begins on Rosh Chodesh and, more importantly, is imbued with a deeper meaning than other holidays as it is also designated as the Day of Judgment. Therefore, Shaviv posits that on the eve of Rosh HaShanah the entire populace actively engaged in seeking out the new moon--so as to create the New Year. The New Year, like the New Moon, required a sanctification (Kiddush--see Walfish) to ordain the day. And, as the Tosefta teaches, it was this sanctification that initiates the Day of Judgment.* This creates a direct link between Kiddush HaChodesh and Rosh HaShanah. Hence, he says, it makes abundant sense to group these two Mitzvos together and to even place the discussion of Rosh Chodesh first.**

*^ On the placement of this Mishnah, see our discussion ad. loc. below.

* Shaviv goes so far as to suggest that because people wanted to bring about the Kiddush of the New Year, they may have viewed the declaration of Rosh Chodesh as a quasi-Mitzvas Hayom of Rosh HaShanah, similar to Shofar. Placing the Mitzvos in chronological order is a common practice in the Mishna, see. Pesachim and Yoma.

** Notably, many of the Mishnayos dealing with the declaration of Rosh Chodesh take place on Rosh HaShana (see e.g., Mishnayos 1:4, 2:7-8) .

Chapter 1

Mishnah 1:1

The first two Mishnayos of the Mesechta serve as an introduction-- describing the various new years and days of judgment throughout the year.* Though the Torah calls Nissan** the "first month" and for many Halachik (ecclesiastical) purposes it is, in fact, the first month, our Mishna identifies four*** dates treated as the New Year, i.e., specific dates that act as a Halachik cut off or demarcation line--separating the treatment of what happens before and after that date.

As the ecclesiastical new year, Nissan marks the start of the festival/holiday season beginning with Pesach followed by Shavuous and Sukkos, collectively the three pilgrimage festivals. Aside for its stand-alone importance, the Talmud suggests a Halachik significance to this order. Specifically, the Torah enjoins a persons to timely fulfill his vows and promises to bring sacrifices to the Beis HaMikdash. This injunction, the Talmud says, would not be violated, until after the passage of the Three Festivals in their correct order.**** In addition, the Mishnah says that the First of Nissan was used to count the years of ascension for Jewish Kings.

Two of the New Years, in Elul and Shevat (the Mishnah cites a dispute as to their exact dates) pertain to agricultural laws. Specifically, when grouping animals and/or produce for Ma'aser (tithing) purposes you cannot combine items born/grown in different "years" when calculating how much Ma'aser to give. In addition, one may not use "last years" produce as the tithe portion for this year's crop and vice versa. Rather, each year must be dealt with separately. So the dates listed in the Mishnah act as a cutoff date to prevent mixing and matching of these tithes.*****

The final date mentioned is the First of Tishrei, or what we today colloquially call Rosh HaShanah. This is the start of the civil new year by which the year count advances. Designating a date as the start of a new year also allows for tracking the passage of time. A solar calendar has a naturally recurring "new year" upon the completion of the earth's orbit around the sun. A purely lunar calendar has no natural or identifiable "year," but convention is that a lunar year consists of twelve lunations (or months). The Torah itself recognizes the passage of years and, in fact, notes that Sukkos takes place at the changing of the year (Tekufas HaShana).

The first day of Tishrei serves as the start of the year for a variety of purposes. First, is for the dating contracts--a necessary arrangement in a civil society.****** Second, for counting the seven-year Shmittah, fifty-year Yovel and four-year Orlah cycles. Finally, the First of Tishrei is the demarcation line for Ma'aser of vegetables.

* Yehuda Shaviv (loc. cited.) suggests that the first two Mishnayos are in fact introductions to each half of the Mesechta. Mishnah 1:1, he suggests, with its focus on "new years" falling mainly on Rosh Chodesh can be seen as an introduction to the idea of Rosh Chodesh and the cycle of the year. Whereas Mishnah 1:2, with its focus on days of judgment, can be seen as a general introduction to the more focused discussion about Rosh HaShanah in the second half of the Mesechta.

Yaakov Nagen, citing Walfish, expands on this theme noting (based on Midrash Vayikra Rabbah) the importance of seven (seven days, weeks, years and Shmittah cycles) it is not surprising that that the Torah discounts the notion of Rosh HaShana and instead refers to the holiday as the first day of the seventh month. The holiday is celebrating the Seventh month and the first day of the second half of the year. Doing so inextricably ties the new year to the new moon--a theme that runs throughout the Mesechta.

Abraham Goldberg (Tarbiz Vol. 29:4), suggests that the first two Mishnayos are in fact distinct from the rest of the Mesechta and can be attributed to the the School of Rabi Yishmael rather than the typical attribution to the school of Rabi Akiva.

** The names we currently use for the Jewish months were adopted by the Jews during their exile in Babylonia. The Torah simply uses the terms "first month," "second month" etc...

***Breaking topics into four parts or identifying four examples is a common tool used by the Mishnah. I have identified 17 such usages. See Source Sheet [Sources for Mishnah 1:1(1)]. Notably, the first four Mishnayos of the Mesechta open with a numerical reference.

**** The Tosefta notes that starting with Rosh Chodesh Nissan public sacrifices would be purchased using the newly collected Shekalim. See Shekalim 1:1 and 3:1. This example is similar to the other dates mentioned in the Mishnah in which the identified date acts as a tithing cutoff.

***** While our Mishnah identifies "Tu B'Shevat" as solely an Halachik date, over time, the date has taken on more significance and is seen as a de facto Judgment Date for trees and fruits. This is so, even though Mishnah 1:2 identifies Shavuous as the Judgment Date for fruits. See Avraham Ya'ari, Toldot Rosh HaShanah L'Ilan, Mahanaim 42 (1960) where he traces the history and transition of Tu B'Sehvat from a simply Halachik date, to a festival celebrated across Jewry from early Ashkenaz to post-17th century Sephardic sources. Available here. See also, R' Netanel Aryeh, ט"ו בשבט כראש השנה לאילן במסורת הדורות, HaMa'ayan, Teves 5778 Vol. 58:2 pp. 9-18) where he expands some of Ya'ari's findings that the transition represents the Jews' yearning for Eretz Yisroel. Available here.

****** In order to count sequential years, you must begin with a fixed reference point with each subsequent year being one year further from that point in time. Today, the Jewish calendar uses the creation of the world (i.e., the Anno Mundi epoch) as its origin point. So, for example, the new year beginning Sunday Evening, September 9th, 2018 will be the Jewish Year 5779 AM or from the creation of the world (the precise dating of Year 1 was the subject of much controversy but was subsequently settled to be the year prior to Creation--i.e., Adam was created on the first day of year 2).

The use of Creation as the origin point is of late development and likely was institutionalized around the time of the Rambam. Prior to that (and even later in some communities) other frameworks were used, including counting from ascension of kings (the most popular being the Minyan Shtaros i.e., the Seleucid era--counting from the time of Alexander the Great (this first year of this counting is approximately the year 3450 AM)) and counting from the destruction of the Second Beis Hamikdash (starting in the year 70 AD). See Mishnah Gittin 8:5 showing the various dating systems in use at that time and noting that they were not valid for use in a bill of divorce. Over time these other reference points were waylaid (the tradition is that the Radvaz decreed its disuse in Egypt and from there it dissipated entirely) and the entire Jewish population now uses Creation.

For brief summary of the controversies surrounding the fixing of the years and the evolution of the use of Creation as the origin point please see the following articles:

  1. Rav Dr. Shai Walter, Enumeration from the Creation of the World and the Beginning of Its Use, Hama'ayan Teves 5773 (Hebrew) available here.
  2. Rachamim Sar Shalom, Enumerations from the Creation of the World and the Order of
    Intercalation of Months, Hama'ayan Tishrei 5774 (Hebrew) available here.
  3. Shlomo Bamberger, Regarding the Calculation of Years, Hama'ayan Vol. 13 Issue 2 (Hebrew) available here.

ארבעה ראשי שנים הם.

  1. באחד בניסן ראש השנה למלכים. ולרגלים.
  2. באחד באלול. ראש השנה למעשר בהמה.(a) רבי אלעזר ורבי שמעון אומרים באחד בתשרי.
  3. באחד בתשרי ראש השנה לשנים. ולשמיטין. וליובלות. לנטיעה. ולירקות.
  4. באחד בשבט ראש השנה לאילן. כדברי בית שמאי.(a) בית הלל אומרים בחמשה עשר בו:

There are four new years:

  1. The first day of Nisan is the new year for determining the year of a King's reign and for ecclesiastical purposes (including, establishing the order of the Festivals).
  2. The first day of Elul is the new year (i.e., demarcation line) for tithing animals
    (a) Rabbi Elazar and Rabbi Shimon say: the first day of Tishri.
  3. The first day of Tishri is the new year for counting years, marking the passage of years in a Shmitta, Yovel and Orlah cycle and tithing of vegetables.
  4. According to Bais Shammai the first day of Shevat is the new year for tithing fruits
    (a) while Bais Hillel says: it is the fifteenth day of that month.

Questions:

  1. Are there any other "new years" throughout the year that are relevant to you?
  2. How many times is the term "Rosh HaShanah" used in Tanach?

Mishnah 1:2

Our Mishna identifies four* periods** during the year when mankind is judged. Each of these times reflects a particular need: food staples (i.e., grains and fruits), life and health, and water. Sometimes, it is overwhelming to focus all at once on the goodness that Hashem provides us. Breaking it down into individual components can help us better appreciate all the good in our lives while, at the same time, providing us with the opportunity to ask Hashem to provide us with what we need.

The dates and particular foci highlighted in the Mishnah are as follows:

  1. Pesach is the start of the grain harvest, therefore, it is an appropriate time to be judged on grain production and sustenance in general. The barley would ripen around Pesach time while the wheat would ripen closer to Shavuous. In fact, the Torah mandated a meal offering of both barley and wheat during this time. See generally, Mishnah Menachos 10:3 and 11:9.
  2. Shavuous is the beginning of the fruit ripening season, therefore, it is appropriate to be judged as to their bounty. The Mishnah [Bikkurim 1:10] tells us that Bikkurim may be brought starting on Shavuous and runs until the end of the harvest.
  3. Tishrei (Rosh HaShanah) each individual*** is judged on their personal status for the year. How did a person live his life the preceding year and what lays in store for him in the upcoming year. The Mishnah quotes a Pasuk to support**** the notion that by dint of Hashem having created us, He is best to see into our hearts and judge us.*****
  4. Sukkos is the start of the rainy season in Eretz Yisroel, making Sukkos the appropriate time to be judged regarding water. In the times of the Beis Hamikdash, there was a special sacrifice, Nissuch HaMayim, the pouring of water, on the Alter (See Mishnah Sukkah 4:9). The Mishnah (Taanit 1:1) also notes a dispute when to begin including the mention of rain in our prayers but all agree it is during the holiday of Sukkos.

Following the agricultural cycle of Eretz Yisroel, it is clear why the judgment days of Pesach, Shavuous and Sukkos fall when they do. The question, however, is why does our "Rosh HaShanah" fall on the first of Tishrei? ****** Some suggest that our Mishnah supports the position of Rabi Eliezer that the world was created in Tishrei--meaning, that creation ex nihilo took place on the 25th day of Elul with man being created on the First of Tishrei. Therefore, it makes sense that the Creator judge the object created on the anniversary of its creation. The RAN (Rosh Hashanah 3a) suggests that our Mishnah may also be in accordance with Rabi Yehochua who holds that the world was created in Nissan. Focusing on the static sate of Yom Kippur as a date for set aside for Divine mercy and forgiveness, RAN suggests that Hashem placed the Judgement close to this period so that those who are undeserving have a chance to mend their ways during the period of the Aseres Yimei Teshuvah.

* This, of course, parallels the construct of the first Mishnah.

** The term Perakim is used a number of times through Mishnayos to denote time periods. See e.g., Terumos 4:6, Shekalim 3:1, Taanit 4:1, Sukkah 5:7, Gittin 3:8 and Chullin 5:3-4.

*** The Mishnah says that Hashem judges us "K'Vnei Maron, like sheep as they pass individually through the gate. An alternative reading, K'venumerin, means like individual soldiers passing before his commander. Most manuscripts of the Mishnah note the former.

**** What exactly the role the Pasuk plays in our Mishnah is the subject of discussion amongst the commentators.

*****A careful read of the Mishnah illuminates the fact that the Mishnah does not use the term "Din/Judge" in the context of Rosh HaShana. The MaHarsha, took notice and, in traditional commentator style, suggests that our Mishna is in accordance with the view that the actual judgment is delayed until Yom Kippur, therefore it would be wrong to use the term judgment in association with Rosh HaShana. In an insightful article, Yom Hadin B'Toras HaTana'im, Walfish notes the while there is an almost utter lack of biblical support for the notion that Rosh HaShana is a "judgment day," Tannaitic literature clearly makes this connection. Through careful analysis of the first two Mishnayos, Walfish works to distill the Rabbinic notion of Rosh Hashana as a Yom HaDin.

****** Notably, the First of Tishrei is the only common date listed in both the first and second Mishnah.

בארבעה פרקים העולם נידון.

  1. בפסח על התבואה.
  2. בעצרת על פירות האילן.
  3. בראש השנה כל באי העולם עוברין לפניו כבני מרון. שנאמר (תהלים לג, טו) היוצר יחד לבם המבין אל כל מעשיהם.
  4. ובחג. נידונין על המים:

At four points during the year the world is judged:

  1. On Pesach regarding grain.
  2. On Shavuot regarding fruit and produce.
  3. On Rosh HaShana (Tishrei) all the people of the world pass before Hashem like sheep passing through a gate as it says: He who fashions the hearts of them all, who discerns all their doings (Tehiliim 33:15)
  4. And on Sukkot they are judged regarding rain.


Question: If you could, what additional "judgment days" would you create? On which other important components of our lives would we like to focus?

Kiddush HaChodesh

Starting from Mishnah 1:3 through Mishnah 3:1, the Mishnah will focus on the declaration of the New Moon, which in Rabbinic parlance is known as Kiddush HaChodesh--Sanctifying the New Moon. Keeping a precise calendar is, as noted above, important for establishing the holidays and counting years. During the period of the Beis HaMikdash, correctly identifying Rosh Chodesh was especially necessary given the special sacrificial requirements of the day.

The Kiddush HaChodesh process, as set forth in the Mishnah, has a number of components--each of which we will summarize below. It begins when witnesses notice the new moon. These witnesses must then make their way to the central court, the Beis Din, where they are interrogated to test the veracity of their testimony. Satisfied that the witnesses had observed the New Moon, the Beis Din declares the day Rosh Chodesh and disseminates the information to the general population.

To begin, however, we must understand the Jewish Calendar.

The Jewish Calendar

The Jewish calendar is a lunisolar* calendar,** meaning it follows the phases of the moon as it orbits the earth. A lunation is measured by the time between conjunctions (i.e., the precise time the moon passes between the sun and the earth). This orbit takes approximately 29.5 days ( 29 days, 12 hours, and 793/1080ths of an hour to be precise). As a result, a Jewish month may last either 29 days (the 30th day being the start of the new month the prior month being a "missing or hollow" month) or 30 days (the 31st day being the start of the new month and the prior month being a "full" month). Theoretically, it should alternate between hollow and full months however, it is possible to have two similar months in a row. The Mishnah, Arakhin 2:2, tells us that Beis Din should not declare less than 4, and no more than 8, full months in a year. From the Mishnah in Sanhedrin 5:3 we can see that it was not uncommon for people to be unsure of the nature of the prior month (i.e., was it a hollow or full month). Nevertheless, it seems that certain conventions were in place so that the general population could go about their day to day lives.***

As described in the Mishnah, the Jewish calendar was, at that time, a lunisolar, observation-based**** calendar requiring the input of a number of parties to declare the start of the new month, including (i) two valid witnesses who, after observing the first visible waxing crescent of the new moon following its conjunction with the sun,***** would provide testimony of their observation to the Court, (ii) the Court, who after interrogating the witnesses, would affirmatively declare the start of the new month and (iii) those in charge of spreading the information across the vast expanse of the Jewish nation.

Because, in addition to the vagaries of the astronomical conjunction, witnesses were required to testify that they saw the reemergence of the moon, it was possible that is no witnesses would timely appear on the 30th day (perhaps the moon was obscured by clouds, no one observed the new moon or they were delayed in arriving at the court). In the absence of witness testimony, the declaration of the new month would be postponed until the 31st day (this is so even though astronomically, the moon should have been visible on the evening following the 29th day).****** This system would essentially hold the 30th day in abeyance pending further clarification, if and when witnesses arrived, to declare the new month.

* During the late second Beis HaMikdash period one of the major disputes between the Dead Sea sects and the Peirushim was whether to base the calendar on the solar or lunar year. The Mishnaic evidence suggests that despite a number of disputes with the Chachomim, the Sadducees and Bothusians kept a lunar calendar similar to the prevailing Peirushim calendar.

** Today, the Jewish calendar is an astronomic-based, fixed calendar utilizing the mean conjunction (or Molad) as calculated by Ptolmey in his work, Almagest. It is set to the 19-year Metonic cycle, providing for seven leap months every nineteen years, thus allowing for the alignment of the lunar and solar years. This was necessary to comply with the Passover rule of the equinox (i.e., Pesach must start after the vernal equinox). There is ample evidence that the shift from the observation based to astronomical based calendar evolved over a long period of time--i.e., starting with the mid-fourth century through the middle ages, and that there was a constant struggle between the Israel and Babylonian Rabbinate over who controlled the calendar. This was especially so regarding the intercalation of leap months.

The literature surrounding the history and evolution of the Jewish calendar and its various forms throughout the ages is vast and continues to expand. Brief synopsis can be found in the introduction of Mishnat Eretz Yisroel (Safrai) where he tries to reconstruct the textual evidence from biblical through late Geonic periods (see sources therein) and at:

  1. J. Jean Ajdler, A Short History of the Jewish Fixed Calendar: The Origin of the Molad, Hakira Vol. 20 available here.
  2. Lawrence H. Schiffman, From Observation to Calculation: The Development of the Rabbinic Lunar Calendar, in Living the Lunar Calendar (ed. by Jonathan Ben Dov, Wayne Horowitz and John M. Steele, Oxbow Books) pp.231-243
  3. William Gewirtz, The Jewish Calendar: A Scientific Perspective, The Lehrhaus, July 30, 2018, available here.
  4. Rachamim Sar Shalom, When was the Jewish Calendar Fixed, Sinai Volume 102, pp 26-51, 1988, expanded internet version available here.

On the question whether, in the post-Messianic era, the Jewish calendar will revert to an observation based calendar see the discussion between Rachamim Sar Shalom and Shai Walter available here.

***For instance, in discussing why messengers were sent out for Elul, most commentators understand that the convention was that Elul was 29 days-i.e., the thirtieth day would be Rosh HaShanah. By sending out messengers for Elul the populace would know when to begin observing Rosh HaShana.

Even during these times, it seems that Jews all over, including in Israel observed two days of Rosh HaShana (but see Me'iri and the RaShaSh's understanding Rashi as holding that they kept only a single day). It is my opinion that Rashi was simply stating the reason why they began observing on the 30th--since the majority of years that was the appropriate day-- but was not commentating on the length of the holiday-see also, Tosfos Yom Tov.

The evidence of a two-day observance from the Mishnah seems overwhelming, see e.g., Shabboos 19:5, Eiruvin 3:7 and 3:9, Menachos 11:9, Eiruchin 2:5, but it is unclear whether the Mishnayos describing actual practice during the times of the Beis HaMikdash.

For a summary of the historical development of the current, universal practice of keeping two-days of Rosh HaShana even in Eretz Yisroel see Shaul Chana Kook, Shnei Yamim shel Rosh HaShana B'Eretz Yisroel (Hebrew), Sinai Vol. 25 (1949) available here.

**** Notably, the Karaites, as do Muslims, continue to declare the new moon based on lunar observation.

***** At the moment of conjunction (called the "Molad") the moon is invisible and cannot be seen by the naked eye. Therefore, one can only be sure the new month has begun once the first sliver of the waxing crescent moon is visible. At the start of the month the new moon can only be seen after sunset before the moon sets for the evening.

******Whether witnesses could testify on the 31st day that they really saw the moon on the eve of the 30th and that the 30th day was retroactively Rosh Chodesh is a matter of dispute. The answer to this may provide insight into our understanding of Mishnah 1:4.

The Kiddush HaChodesh Process

Despite the egalitarian nature of being able to observe the new moon, it was not up to the populace to decide when the new month starts. Rather, this privilege was reserved for the Sanhedrin/Beis Din. Absent the Court's official imprimatur; the start of the new month could not be declared nor holidays observed. The setting of the holidays was explicitly contingent on the Beis Din's declaration. As we shall see, the court fiercely protected its prerogative, from both outside objections and, more importantly, internal dissent.

It seems that the full Sanhedrin was not required; rather, a special court was constituted, well versed in astronomy and the calendrical cycle (See e.g., Sanhedrin 1:2; RH 3:1). While originally located in Yerushalyim and perhaps inside the Beis HaMikdash, once the Sanhedrin moved to Yavneh so did the central Beis Din for Kiddush HaChodesh. It continued to move alongside the Sanhedrin (there is evidence that around the time of the Bar Kochva revolt the Beis Din sat outiside of Israel). While in practice the Nasi would participate in the declaration, the Mishnah records a decree by Rabi Yochanan ben Zakai that the witnesses need not travel to the Nasi but rather to the central Beis Din where the new month may be declared.

Most importantly for our discussion, given the presumptive need for eyewitness testimony, the Kiddush HaChodesh process took on the air of official court proceedings along with all the trappings including, the court only sitting during the day, interrogating witnesses and their disqualifications.

Witnesses

To declare the new moon, Beis Din required the testimony of two reliable witnesses. These witnesses were to be of the nature and type that would otherwise be acceptable for other forms of testimony such that witnesses who were related or engaged in certain practices and pastimes were disqualified. Nevertheless, it appears that this was not universally accepted, (See RH 1:7). Presumably women were likewise disqualified from providing this testimony as well. Whether witnesses were absolutely necessary or were merely confirmatory seems to be an open question and was the basis for the Geonic insistence on transitioning the declaratory power to Bavel from Eretz Yisroel. Nevertheless, in the Mishnaic period and for a number of generations beyond, the need for witnesses was essential.

Witnesses were encouraged to make the trek to the Beis Din, with the court hosting large feasts for the gathered witnesses and relaxing some of the otherwise strict rules of Shabbos observance. The Beis Din also made sure to interview all pairs of witnesses, regardless of whether their testimony was actually required, lest they feel their trip was in vain.

When certain sects began trying to influence the testimony of witnesses to manipulate Rosh Chodesh falling on a certain date, they established a requirement that the local Beis Din send character witnesses to testify as to the allegiance of the witnesses. These character witnesses were granted the same privileges as the testifying witnesses.

Interrogation

The Mishnah relates that each of the witnesses was interrogated as to the precise details of when, how and what they observed regarding the new moon. Their collective testimony did not come as a surprise to the Beis Din. Rather, the testimony was set against a known set of variables and calculations allowing the Beis Din to test their veracity.

It seems, in fact, that the witness testimony may have been more ceremonial in the sense that the Beis Din knew when the new moon could be seen. As noted, a lunar month could either be 29 or 30 days and the Beis Din would know whether it was plausible for the witnesses to have seen the new moon as early at the 29th day. Yet, we will see that there were circumstances when the Beis Din accepted testimony that appears demonstrably wrong.

Declaration of the New Moon

After accepting the testimony of the witnesses, the court would convene and formally declare the new moon. They would do so by declaring "Mekudash," with the assemblage gathered responding "Mekudash, Mekudash." Once declared, the calendar for that month was fixed even if later it turns out the court was wrong or had made a mistake.

Because of the necessity of the declaration, the Beis Din could, if need be, manipulate the falling of Rosh Chodesh by delaying the declaration until the following day. More frequently, given the vagaries of actually receiving witness testimony, it was not uncommon for there to be significant delays in witnesses arriving at the court or receiving their testimony. The Mishnah recounts that this, at times, sowed confusion for those officiating in the Beis HaMikdash, and led to a series of ordinances and decrees so as to manage the expected outcomes.

Disseminating the Information

The uncertainty in the precise dating of the new month meant that those without direct knowledge of the court's declaration, could not be certain when to celebrate the various holidays throughout the year. While today it is easy to instantaneously disseminate information over the phone, internet and social media, back in the times of the Mishnah, communication was much, much slower. The main way of sending information was by messenger--which could take weeks to reach its destination. And because the Jewish People lived not only in Eretz Yisroel but in many far-away lands, the Beis Din had to make sure the information reached these communities.

The Mishnah relates a number of methods by which the information was shared, fire signals and the use of messengers. When and which methods were used varied over time and place and we will discuss them below.

Mishnah 1:3

The opening Mishnah in the Kiddush HaChodesh process ostensibly begins with the final stage, the months of the year the Beis Din would send* messengers to inform the Jewish people of the start of the new month.**

The travelling distances were long and took a while for the messengers to reach the distant communities in time for the Yomim Tovim, therefore, these communities would be unsure as to when to observe the holiday. The custom arose for these communities to keep two days of the Yom Tov (Yom Tov Sheini). This remains the custom for all communities outside of Eretz Yisroel.

Months for which Messengers were sent:

The Mishnah notes six months for which messengers would be sent out to the Jewish communities to inform them of the actual start of the month. Our Mishnah is speaking in a post-Temple period but notes that when the Beis Hamikdash stood, messengers would be sent out for an additional month. These seven months are:

  1. Nissan: so that people could properly observe Pesach (because Shavous occurs on the 50th day of the Omer there was no reason to send messengers for Shavous).
  2. Av: so people could properly observe Tisha B'Av.***
  3. Elul: so people could properly observe Rosh HaShanah (the working assumption is that Elul is a hollow month and that Rosh HaShanah was to be observed on the 30th day.
  4. Tishrei: since so many Festivals were observed during the month
  5. Kisleiv: to establish the start of Chanukkah.****
  6. Adar: so people could properly observe Purim
  7. During the times of the Beis HaMikdash, they would send out messengers for Iyar so that people who missed bringing the Korban Pesach could bring the Pesach Sheini.

*See Meleches Shlomo as to why the Mishnah says that the messengers went rather than that the Beis Din sent them out.

**Why is our Mishnah placed at the beginning of the discussion regarding the declaration of the new month? Not only is this the last piece of the process, the sending of messengers appears to be a later development--the original method being the use of fire signals--RH2:2). The Meleches Shlomo suggests that like the first two Mishnayos of the Mesechta which are build around a specific number, our Mishnah references a specific number of months as well (i.e., this is a grouping of number related Mishnayos). However, I think the reason is that Mishnah 1:4, in the context of ruling that for two specific months, Missan and Tishrei, witnesses may violate the Shabbos in order to arrive on time at the court. The Mishnah goes on to list two additional points that differentiate those two months. One of them being the fact that the messengers for those two months would travel further than typcial, all the way to Syria. Our Mishnah precedes that Mishnah to provide context, i.e., that the news of the new month was circulated by messenger.

*** The extent to which Tisha B'av was observed during the times of the Second Temple is a dispute already among the Rishonim (See Rambam Peirush HaMishnayos, Me'iri). There is an extensive discussion among traditional sources. See e.g., Tashbetz (Loc. cit. Machon Yerushalayim edition, 2002 and footnotes there) and SH"uT Divrei Shlomo (R' Shlomo Schenider) Vol. 3 Siman 247 and 411. It seems that most agree that the minor fasts were almost certainly not observed during this time period.

Notably, there seems to be somewhat conflicting views arising from the Mishnah regarding Tisha B'av. On the one hand, both the Rambam and Albeck suggest that our Mishnah implies that even during the time of the Second Temple, court emissaries would go out to announce the new moon for the month of Av to inform the people of the correct date of the upcoming Fast. (See also, R' Reuven Margolis in his נפש חיה Siman 51 Sif 9). On the other hand, the Mishnah in Ta'anis (4:5) suggests that the 9th of Av was a quasi national holiday. See Yaakov Nachum Epstein, Mevo'os Lsafrus HaTanaim pp 221-222 suggesting that the original date for the Korban Eitzim was Tisha B'Av (citing the Tosefta and Megillas Taanis and early manuscripts of the Mishnah) and therefore was likely not a fast day (but see, pp. 1012 where he suggests that perhaps the fast was observed towards the end of the Second Beis HaMikdash). With variation, his view has been adopted by many scholars including, Saul Lieberman, Tosefta K'phutah, Zeraim p 848; Safrai ad loc., Avraham Walfish, Iyun B'Mishnayos Ta'anis available here and sources cited therein.

**** This is one of the rare references to Chanukkah in the Mishnah. For a survey of these instances, see my Chanukah in the Mishna, Tosefta and Tannaitic Literature, available here.

על ששה חדשים השלוחין יוצאין.

  1. על ניסן. מפני הפסח.
  2. על אב מפני התענית.
  3. על אלול מפני ראש השנה.
  4. על תשרי מפני תקנת המועדות.
  5. על כסלו מפני חנוכה.
  6. ועל אדר מפני הפורים.
  7. וכשהיה בית המקדש קיים. יוצאין אף על אייר. מפני פסח קטן.

For six of the months of the year, messengers went out [to inform the community on which day Rosh Chodesh fell].

  1. Nisan because of Pesach;
  2. Av because of The fast (i.e., Tisha B'av);
  3. Elul because of Rosh HaShana (These communities would assume Elul had 29 days, making the 30th day Rosh HaShana);
  4. Tishri because of the setting of the festivals (Yom Kippur and Sukkos and to confirm the date of Rosh HaShanah);
  5. Kislev because of Chanukah; and
  6. Adar because of Purim.
  7. When the Beis HaMikdash stood, messengers went out also for Iyar because of Pesach Katan (Pesach Sheni).

Question

  1. As noted, the Jews kept two days of Rosh HoShana and in Galus, each Yom Tov because they were unsure of the correct day to observe Yom Tov. They did this even for Shavuos even though they would certainly know its correct date. Why?

General Introduction to Mishnayos 4-6 and 9.

Chillul Shabbos

Declaring the new moon was the key to setting the Jewish calendar--a unifying force among a dispersed nation. It was, therefore, very important that the Beis Din be made aware as quickly as possible when the new moon appeared in the sky. This would allow the Beis Din to declare Rosh Chodesh on the "correct" day--further ensuring that the holidays fell correctly which, according to the Mishnah, is a biblical imperative. In the times of the Beis HaMikdash, there was an additional reason as well: to make sure that the special Korban Mussaf of Rosh Chodesh was brought on the correct day.

Generally speaking, one is not allowed be מחלל שבת, desecrate Shabbos, by violating any one of the thirty-nine primary categories of work (see M. Shabbos 7:2) and/or numerous Rabbinical-based categories and extensions. For our purposes, it is sufficient to note that there are prohibitions against carrying in the public domain, traveling long distances and riding on an animal. However, because of the importance of maintaining the calendar, witnesses who saw the new moon on Friday night were allowed to be מחלל שבת in order to travel to the Beis Din and testify*. The following Mishnayos 4-6 and 9 provide some of the parameters and qualifications for this rule.

* A running theme throughout the first half of the Mesechta is the consolidation of power by the Beis Din to centralize and maintain control of the calendar. First, as evidenced by the epic encounter between Rabban Gamliel and Rabi Yehoshua (RH 2:9), maintaining internal control was vital to creating a unified, national identity. Allowing either the individual or a sub set of the community to maintain its own calendar would inevitably lead to the disintegration of communal life. Thus subjugating the individual to the community, in this instance, was necessary.

Second, this was meant to both wrest control away from various, alternative sects who maintained different calendrical systems or who sought to manipulate the calendar to satisfy their religious prerogatives (See, e.g. Menachos 10:1-3). Further, and as described in the Mishnah, imbuing the Beis Din with such power, necessarily subjugated the Temple and its Service to the Court's dictates. (That such tensions existed between the Kohanim and the Chachomim is clearly evident in the Mishnah. See e.g., M. RH 1:7 and Yoma 1:5. To what extent, if any, this tension reflected the larger disputes between the Saduccees and Peirushim is beyond the scope of this commentary).

That the Mishnah focuses on Chilul Shabbos--a full four Mishnayos are devoted to this topic--is itself interesting. We find a similar emphasis on Chillul Shabbos when it comes to the Omer ceremony (See Menachos 10:3). It may be that the power of the Chachomim to suspend some or all of the rules of Shabbos was seen as the ultimate power--to be exerted in the quest for supremacy over other sects. First, we find that other sects were notoriously overly strict in their interpretations of the Shabbos prohibitions (e.g., sitting in the dark and not keeping warmed food). By dispensing with certain Shabbos restrictions it stands to reason that those trekking to the Court or attending the Omer ceremony would be those who followed the Chachomim's path (but not necessarily so). Second, the inherent power to derive interpretive teachings from the Torah and placing them on the same level as direct teachings (and declaring certain Halochos as having been received directly from Moshe) was seen as the ultimate power granted to the Chachomim. Elevating their interpretive teachings, implicitly also gave them the power to evaluate the relative nature as between competing imperative and to choose among them. Hence, Shabbos could be suspended to ensure that the holidays or ceremony fall timely and appropriately.

Mishna 1:4

Our Mishna teaches that the Chachomim allowed witnesses* who observed the new moon to be מחלל שבת on their way to the Beis Din. This was to ensure that Rosh Chodesh was declared at the right time which , at the very least, is an affirmative, biblical commandment. Nevertheless, the Chachomim circumscribed this practice after the destruction of the Beis HaMikdash, allowing the witness to only be מחלל שבת for the months of Nissan and Tishrei. The continuing dispensation was because for these two months**, messengers would be sent to the far reaches of Suriya*** to inform the population regarding the correct dates to celebrate the holidays contained therein.****

* All agree that the reference is not to the messengers but to the witnesses. Although the Mishnah's wording is not fully clear and could be seen to be referring to the messengers. Nonetheless, from the end of the Mishnah, describing the original practice, it seems clear that the reference is to the witnesses.

** The Bavli, but not the Yerushalmi, is concerned with the apparent contradiction between our Mishnah and the prior Mishnah which says that messengers were sent for 6 months. The Amora, Abaye, answers that, in fact, messengers went out for all six months, the difference between these two months and the other four, was that when it came to the other four months the messengers would set out on the night of the 30th, assuming that the Beis Din would declare Rosh Chodesh the next day. For Nissan and Tishrei, however, the messengers would wait until they heard the Court actually declare Rosh Chodesh before setting out lest the Beis Din delay the declaration to the 31st (see Meiri). This was all done since we wanted to ensure no mistake was made in setting the holidays. The Berayso reports that Rabi Yehuda HaNasi abolished this practice.

***See M. Taanis 1:3 where Rabban Gamliel notes that it takes approximately 15 days to reach the edges of Suriya.

**** Our commentary follows Albeck's understanding of the Mishnah which, as he says, follows the plain and simple wording of the Mishnah. The question is why does the fact that the messengers travel to Suriya impact whether the witnesses can be Mechallel Shabbos? Albeck suggests, in accordance with a view developed from the RaMBam, that if witnesses arrive on the 31st and testify that they saw the moon on the 30th the Court can retroactively declare Rosh Chodesh, and to avoid this situation which would cut a travel day for the Messengers, we allow and encourage witnesses to arrive on the 30th--even if it is Shabbos. This feels a little contrived. Rather, I think, as Tosfos Rabi Akiva suggests, that it was imperative that Rosh Chodesh fall on Shabbos rather than on Sunday for these two months otherwise you would lose two travel days to Shabbos. If it fell on any other day but Shabbos, the messengers would lose two travel days prior to the holidays (and in Tishrei, with Yom Kippur, they would have lost even more time) rather than one day. To avoid the loss of an additional day, if possible, they tried to have Rosh Chodesh fall on Shabbos. Rabbi Eiger's point either assumes that when Rosh Chodesh falls on a weekday the messengers could not leave until the end of the day since witnesses may not have appeared until then, or, in accordance with Abaye's view in the Bavli, that the messengers could never leave until they heard the Court actually declare Rosh Chodesh.

Others, including Meiri, understand that Chilul Shabbos and sending messengers to Suriya are not directly connected. Rather, the Mishnah is saying that it makes sense that witnesses may be Mechallel Shabbos for these two months since we find that these months already have different rules, such as sending messengers to Suriya. In fact, it may be that Abaye's point (mentioned above) is not really trying to answer a contradiction but rather relaying an additional difference between these two months.

Despite the Bavli's apparent question, it would seem that a simple explanation for the difference in the Mishnayos is that when it came to Nissan and Tishrei, messengers would be sent to Suriya. Whereas, with the other months, messengers may have traveled shorter distances or veered towards Bavel. The exact historical timeline for both these two mishnayos and Mishnah 2:2 describing the fire signals, including questions like during what period of time were they used, did they coexist, what were the political realities that may have shaped these differing practices, when did the use of messengers cease, was and remains a subject of much fascination among both traditional and academic scholars. See, e.g., Meleches Shlomo, Tosfos Yom Tov, Tosefta Kepshutah, Moed, RH pp 1029-1030, Yosef Heinemann, The Meaning of some Mishnayos in the Order Moed, (Hebrew) Tarbiz Tishrei 1960, Tzvi Karl, Ha'aros L'Mesechtas Rosh Hashanah, R' Zev Wolf Rabinovich (Sha'arei Toras Bavel, edited by E. Melamed, Jerusalem 5721 pp 60) and Rav Yitzchok Sender, Regarding the Fire Signals, (Hebrew) HaDarom, Vol. 30 pp. 23-27 (1970).

(a) על שני חדשים מחללין את השבת.

  1. על ניסן.
  2. ועל תשרי.

(b) שבהן השלוחין יוצאין לסוריא.

(c) ובהן מתקנין את המועדות.

(d) וכשהיה בית המקדש קיים מחללין אף על כולן. מפני תקנת הקרבן:

For two of the months, [witnesses who saw the new moon] are allowed to be מחלל שבת [in order to travel to the Beis Din]:

  1. For Nissan
  2. and for Tishri
  3. for regarding these two months
    (a) the courts messengers would travel [further than normal]--all the way to Suriya-- and
    (b) to correctly establish the holidays that fall within these months.
  4. During the period of the Second Beis HaMikdash, they [witnesses] were permitted to be Mechalel Shabbos for every month in order to properly bring the special Korban Musaf for Rosh Chodesh.

Questions

  1. If you witnessed the new moon (on one of the months for which you can be מחלל שבת), do you think you would be comfortable being מחלל שבת in order to testify?
  2. What if you were a member of Hatzalah and needed to save a life, would you hesitate to be מחלל שבת?
  3. Can you identify other mitzvos for which we "push aside" Shabbos?
  4. Can you identify mitzvos that get "pushed aside" because of Shabbos?

Mishna 1:5

Having established that witnesses may be Mechallel Shabbos to timely testify as to the New Moon, our Mishna sets out a disagreement between the Tana Kama and Rabi Yose whether this dispensation is universally in place irrespective of the particular circumstances or does it only come into play when such desecration is actually or likely needed.

Specifically, the Ta'anim discuss a situation where the new moon appears clearly visible in the sky.* At the start of the month, the new moon can typically be seen around sunset just above the horizon. It normally would take an astute observer to recognize the new moon in the radiance or haze of sunset. Occasionally, it would appear clear in the sky and, the assumption being, able to be seen by all including in Yerushalyim where the Beis Din was sitting. Under such circumstances, the Tana Kama would continue to permit witness to travel to the Beis Din even if it means being Mechallel Shabbos. Whereas, Rabi Yose, rules restrictively, not allowing the witnesses to travel if it means desecrating Shabbos.

Notably, Rabi Yose places a burden on the witnesses themselves to determine whether the new moon they saw is "clearly" visible or not and then to make the determination whether to travel to Beis Din. Unlike most other discussions regarding the extent to which Shabbos may be desecrated (see Menachos 10:1 and discussion in the Bavli there) that determination is being made in conjunction with either the Beis Din or other leaders. Here, it appears that he decision is the witnesses alone. This seems like an untenable burden being placed on their shoulders. In the following Mishnah we shall see how this played out in practice.

* This explanation is based on the traditional definition of the word "B'allil," meaning "clearly" (see Bavli). Safrai, suggests, based on the words etymology, that the original meaning of the word was to "setting" or "going" and that, opposite to the traditional understanding of the Mishnah, if the moon was seen "B'allil" i.e., when setting, the witnesses would be uncertain whether they actually saw the moon, therefore, they could not be Mechallel Shabbos according to Rabi Yose.

Safrai, proves the definition from a case of Eglah Arufa where the Berayso questions whether when abody is found "B'allil" of the city whether the local court is still required to measure the distance of the body to the closest city. He understand this to mean the entrance to the city. But see Meleches Shlomo who brings this case as proof that "Allil" means clearly observable.

  1. בין שנראה בעליל בין שלא נראה בעליל. מחללין עליו את השבת.
  2. רבי יוסי אומר אם נראה בעליל. אין מחללין עליו את השבת:
  1. Whether the new moon was clearly visible in the sky (so that it is likely that many people saw the new moon, including people living close to the Beis Din) or whether it was not clearly visible (so that these witnesses may have been the only witnesses to see the new moon), the witnesses may be מחלל שבת (to travel to the Beis Din)
  2. Rabi Yose says if the moon was clearly visible, distant witnesses were not allowed to be מחלל שבת.

Question: Have you ever found yourself in a situation similar to the one described in our Mishna, where you are given the opportunity to seize the moment even when others may do so as well? How did you react (or act) in that moment? Would you react differently if you were the only one available?

Mishna 1:6

Our Mishna brings a story in support of the rule allowing witnesses to be מחלל שבת.*

The story concerns two Tannaim, Rabi Akiva and Raban Gamliel. Raban Gamliel was the Nasi. As Nasi, it was his Beis Din that was in charge of declaring the new moon (Rosh Chodesh). Here, Rabi Akiva did not want to allow 40 pairs of witnesses to continue traveling from Lud to Yavneh**, the seat of the Nasi's Beis Din, since they would likely be redundant-- and he saw no reason to allow them all to be מחלל שבת.

Raban Gamliel, as Nasi, was of the view that we cannot only consider the current situation but we must think more globally--about future cases as well (when there may not be as many (or any other) witnesses to the event). By disenfranchising the witnesses in this instance, you increase the likelihood that they will refrain from participating in the future when their testimony may well be needed or required.

* The dominant narrative of this story is that it took place on Shabbos and Rabi Akiva's hesitation arises from not wanting 40 (or 39 pairs since one pair needed to make the trek--one has to whether the reference to 40 is a slight reference to the 40 minus one Melachos that are prohibited on Shabbos) pairs of witnesses to be Mechallel Shabbos. Traditional printings of our Mishnayos regard this as Mishnah 6, whereas, the Meiri, following the Bavli's lead, combines this Mishnah with the previous one and explicitly ties Rabi Akiva's hesitation to the fact that it was Shabbos. Albeck, Safrai and Mishna Mefureshes explain the Mishnah accordingly. The implication being that had it been a weekday, Rabi Akiva would not have interfered with the witnesses progress despite the fact that there were 40 pairs of witnesses.

Most other Meforshim, (including the absence of any mention of Shabbos in either the Bavli or Yerushalmi) do not explicitly state that our Mishnah is discussing a Shabbos scenario. Rather, for some unexplained reason Rabi Akiva did not want excessive witnesses making their way to Beis Din. In that case, it was simply an affront to Rabban Gamliel, that Rabi Akiva's interfered with the proceedings of the central Beis Din, a theme that emerges later in Mishnah 2:8 as well. In fact, both Talmudim quote a tradition that Rabi Akiva was placed in excommunication for what he did (albeit there is a later tradition that it was not, in fact, Rabi AKiva but some other official).

** That the witnesses were on their way to Yavneh, the current seat of the Beis Din and of Rabban Gamliel, seems obvious. The witnesses, travelling for the north would have passed through Lod on their way to Yavneh. The Yachin, on the other hand, mentions that the witnesses were being held from travelling to Yerushlayim, which he posits was about a day's worth of travelling.

מעשה שעברו יותר מארבעים זוג ועכבן רבי עקיבא בלוד.

שלח לו רבן גמליאל אם מעכב אתה את הרבים. נמצאת מכשילן לעתיד לבא:

It once happened that more than forty pairs of witnesses saw the new moon (on shabbos) and as they made their way to the Beis Din (in Yavneh) Rabbi Akiva detained them in Lod.

Rabban Gamliel sent word (reprimanding Rabi Akiva "by detaining the masses (i.e., all the witnesses) today, you are inevitably causing greater harm in the future."

Question: As a leader, oftentimes you face having to balance the needs of the Klal (the overall community) against those of the individual. As individuals, we are often asked to sacrifice for the sake of the larger community. As leaders and individuals, how do we respond? How do we balance our personal growth in Torah and Mitzvos while ensuring our community thrives?

Mishnayos 7 and 8

The following two Mishnayos focus on the nature of the witnesses themselves. Namely, what characteristics, mostly personal, make a witness qualified or unqualified to provide the requisite testimony for Kiddush HaChodesh.

As noted in the introduction, the Kiddush HaChodesh process, as described in the Mishnah, took on the air of a general court proceeding. Hence "kosher" witnesses were required to present themselves to the court. The court would then test the veracity of their testimony and make a determination whether it was sufficient to proclaim the new moon. The content of their testimony and how they tested the veracity will be considered later in Perek Two. The following two Mishnayos focus on the legitimacy of the witnesses.

Starting with the third chapter of M. Sanhedrin, the Mishnah sets forth rules associated with testifying witnesses. Mishnah 3:3 disqualifies persons engaged in certain, socially unacceptable behaviors and is the subject of our Mishnah 1:8. Second, and the subject of M. Sanhedrin 3:4 and our Mishnah 1:7, is that witnesses that are related to one of the litigants are prohibited from testifying.* Topping the list is a person's father.** Meaning, according to our Mishnah, that a father and a son may not jointly testify regarding the new moon.

Finally, witnesses need to be free men--women and current slaves are not allowed to testify, except in limited cases.

* The Mishnah does not seem to address whether witnesses related to one another are disqualified but solely focuses on the relationship between the witness and the litigant. Mishnah 1:7, or at least he Tana Kama, broadens the discussion; disqualifying witnesses who are related to one another.

** Although see commentators there whether the Mishnah actually lists the "father" among prohibited relations or it is simply understood.

Mishna 1:7

Mishnah 1:7 sets forth a dispute whether relatives may jointly testify regarding the appearance of the new moon. The Tana Kama rejects such testimony while Rabi Shimon seemingly allows for relatives to testify.* Nevertheless, the Tana Kama rules that a relative pair, such as a father and son, may travel to the Beis Din together, even on Shabbos, since it is possible that one of them may be required to testify regarding the new moon while the other may be disqualified (either because his testimony is suspect or he is a person engaged in one of the of the enumerated disqualifying behaviors) and we don't know which of them will be the kosher witness.

Rabi Yose tells a story of Tuviah the Rofeh, who along with his son and freed slave witnessed the appearance of the new moon. The Kohanim**, when vetting the witnesses, accepted the father and son pair, seemingly in accordance with Rab Shimon's view, but rejected the former slave's testimony.*** The Beis Din, however, accepted Tuviah and his former slaves' testimony while rejecting the son (or disqualifying him).

The placement of our Mishnah after Mishnah 1:6 may be explained in two ways, or two connections. First, as mentioned, many Meforshim understand the Tana Kama to be saying that even when witnesses may be disqualified as between each other, they nevertheless may still travel to the Beis Din on Shabbos. Again, demonstrating the primacy of the witnesses testimony. Second, like in Mishna 6 where we see Rabi Akiva attempted to screen/block the witnesses from traveling to the Beis Din, Mishna 7 describes how different groups (the Kohanim and the Chachomim) screened the witnesses before they testified in front of the Beis Din.

* The Kaufman manuscript of the Mishnah preserves an alternative reading in which Rabi Shimon agrees with the Tana Kama and is merely reiterating the rule that a father and son may not testify together. See Safrai ad. loc. Similarly, there is some question whether the final line of our MIshnah (4b) is an original part of our Mishnah or whether it was inserted later, influenced by the Berayso in the Yerushalmi.

** The nature of the Kohanim's screening is a bit unclear. We find in M. Kesubos 1:5 (see also M. Kesubos 13:1-2) a mention to a Beis Din of Kohanim and its diligence in vetting the lineage of those marrying into the Priestly families--something they were particularly careful about--see M. Kiddushin 4:4. It is unclear why they would be vetting witnesses for Kiddush HaChodesh and their lineage. Albeck suggests, based on Mishnah 1:4 and 4:4, that their purpose was to ensure that those travelling to testify could provide relevant and executable testimony, ensuring that the proper Korban would be brought. In addition, he suggests that there were multiple way stations along the way at which the witnesses may have been vetted (such as Rabi Akiva in Lod) but that may have not stopped the witnesses from travelling on. For other theories, see M. Kurstag, The Role of the Priestly Beth Din in the Declaration of the New Month, Tarbiz 54, pp. 191-192.

In line with other Mishnaic evidence, it seems that the Kohanim (and likely the Sanhedrin) were influenced, if not controlled, by the Saducees. Whether our Mishnah reflects a division between these two groups is not clear. However, the story of Tuvia, an aristocrat, whom were typically aligned with the Saducees, and the dispute between the two Courts does suggests some tension among the groups.

*** Despite the former slave being currently fully Jewish.

  1. אב ובנו שראו את החדש. ילכו.
  2. לא שמצטרפין זה עם זה. אלא שאם יפסל אחד מהן. יצטרף השני עם אחר.
  3. רבי שמעון אומר אב ובנו וכל הקרובין. כשרין לעדות החדש.
  4. אמר רבי יוסי מעשה בטוביה הרופא. שראה את החדש בירושלם. הוא ובנו ועבדו משוחרר.
    (a) וקבלו הכהנים אותו. ואת בנו. ופסלו את עבדו.
    (b) וכשבאו לפני בית דין קבלו אותו. ואת עבדו. ופסלו את בנו:
  1. A father and a son who, together, saw the new moon should both go to the Beis Din (even on Shabbos).
  2. Not that they can join together as a pair of witnesses, rather, in case one of them is disqualified, the remaining witness may join with another (and provide testimony).
  3. Rabi Shimon says that a father and son and, in fact, all relatives are eligible to testify together regarding the appearance of the new moon.
  4. Rabbi Yose said: it happened once that Tuvia the doctor saw the new moon in Jerusalem along with his son and his freed slave.
    (a) The Kohanim accepted Tuvia and his son's testimony while disqualifying the slave.
    (b) Whereas, when they appeared in front of the Court, they accepted Tuvia and his slave's testimony while disqualifying the son.

Question: In our Mishna we see different groups willing to accept different pairings of witnesses, why do you think this was so? How broadly and/or narrowly do we define our own community?

Mishnah 1:8

The general rule is that a person who outright steals is biblically enjoined and ineligible to testify in court. This is learned from the verse Exodus 23: אַל־תָּ֤שֶׁת יָֽדְךָ֙ עִם־רָשָׁ֔ע לִהְיֹ֖ת עֵ֥ד חָמָֽס. Our Mishnah* lists a number of behaviors and occupations which render a person Pasul** (unfit) to be a witness because they speak to a moral flaw in the person's pursuit of money***. These behaviors include participating in games of chance****, lending for interest and dealing inappropriately with fruits of the Sabbatical year.***** Parallels to our Mishnah can be found in Sanhedrin 3:3 and Shevuos 7:4, each with slight changes.

One notable change is the inclusion, in our Mishnah, of slaves as a category of disqualified witnesses. Their disqualification being Biblical while the rest of the of our Mishnah's list being of only Rabbinical, raises the question why do we include them in our list? Tosfos Yom Tov, quoting Tosfos, suggests that because a slave's ineligibility arises biblically rather than from a personal flaw, I might think they are permitted to testify regarding the new moon. Their inclusion is to make the point that even so they are ineligible.

More basically, it seems slaves were included to make obvious the prior Mishnah's implication that a non-freed slave is ineligible to testify. This suggests that the original source of our Mishnah was in Sanhedrin and when copied here, it was reworked to include a slave; alligning it with the previous Mishnah.

Finally, the Mishnah concludes with a summarizing rule that despite the fact that we do not allow those listed to testify regarding the new moon and most other forms of testimony, we do allow them to testify in those limited circumstances when women are also permitted to testify.******

* Parallels to our Mishnah can be found in Sanhedrin 3:3 and Shevuos 7:4, each with slight changes. See also M. Eduyot 2:7

** Most understand the disqualifications listed in our Mishnah are Rabbinic in nature. The Mishnah did not have to list Biblical disqualifications since these are obvious (Meiri). Others understand that the Mishnah is more concerned with the expressions of conduct that can entrap a person rather than the underlying motivation. For a fulsome discussion of the three Mishnayos and the development of the disqualifications therein, see Mordechai Sabato, Disqualified Witnesses (Hebrew), Sidra Vol. 2008 pp 5-30.

***Rabi Yehudah (Sanhedrin 3:3) circumscribes the disqualification listed in our Mishnah to those people who occupy themselves with these endeavors as their occupation. If, however, they occasionally succumb and participate, that would not disqualify them.

That these people specifically are disqualified from providing testimony is not surprising. Their affinity for money makes them potentially susceptible to being bribed to give false testimony. This is especially relevant to Kiddush HaChodesh where we know that groups were actively engaged in recruiting corrupt witnesses to testify. See M. 2:1.

****The Mishnah lists dice playing and pigeon racing. The Bavli suggests an alternative to racing birds; those who try and steer birds away from their neighbors coops into their own. Either way, these actions violate social norms and are deemed to be forms of stealing.

***** Our Mishnah references those that deal in (i.e., sell) fruits of the Sabbatical year. The Mishnah in Sanhedrin quotes Rabi Shimon as saying that the Mishnah's injunction was originally aimed at those who gathered Shmittah fruits in excess of what they typically would consume, i.e., they would hoard them. But once the oppressors, i.e., the Romans after the Bar Kochba revolt, began enforcing agricultural taxes even during the Sabbatical year, the Chachomim limited their injunction to those who actually trade in and sell these fruits.

******Such circumstances include testimony that someone's husband passed away (Yevamos 16:7) and regarding a Sotah (Sotah 6:2). According to those who understand our Mishnah as referring to those who only violate Rabbinical decrees, the implication is that those who otherwise violate biblical injunctions would be disqualified from even these forms of testimony despite the fact that a woman is also Biblically enjoined from testifying and, yet, the Chachomim allow her to testify in these circumstances.

אלו הן הפסולין.

  1. המשחק בקוביא.
  2. ומלוי ברבית.
  3. ומפריחי יונים.
  4. וסוחרי שביעית.
  5. ועבדים.
  6. זה הכלל כל עדות שאין האשה כשירה לה. אף הן אינן כשירים לה:

These (the following list of persons) are considered unfit (to act as witnesses):

  1. dice players (gamblers)
  2. persons who lend money for interest
  3. persons who race pigeons
  4. persons who peddle in produce of Shmittah
  5. Slaves
  6. (summing up, the Mishna presents a general rule) The general rule is any testimony for which a woman may not testify, these people (i.e., those named in this Mishna) are also not eligible to testify.

Question: Why are these people ineligible to testify? What about their occupations or sources of income disqualifies them? Are there other situations that you think should disqualify someone from being a witness?

Mishna 1:9

Our Mishna returns to the topic of Chillul Shabbos and the various dispensations the Chachomim made to accommodate the witness'* timely and safe arrival to the Beis Din. Not only are the witnesses themselves allowed to be מחלל שבת, but, if need be, the people supporting them could do so as well.

The first leniency is if the witness is unable to travel on his own, he may ride on a donkey** or in a carriage.***

The second leniency is to allow the witness to carry a stick or another weapon to stave off threats, from wild animals, bandits and, according to Rashi, from sectarians determined to prevent the witness from testifying.

The third leniency is that the witnesses may carry food if it was a particularly long journey.

The Mishnah concludes with a temporal limit on the aforementioned leniencies. So long as the witnesses' journey will not take longer than that Friday evening and the following Shabbos day,**** so that Rosh Chodesh is declared on the 30th day of the month, they may be M'Challel Shabbos. If their journey will last longer and fall to the 31st of the month, they may not set out on Shabbos since their testimony is not required to establish Rosh Chodesh (as it will automatically be on the 31st day of the prior month). All of this is supported by reference to the Pasuk: אלה מועדי יי אשר תקראו אותם במועדם*****.

* The Mishnah indicates that these rules apply even to a single witness even though it is far from certain that his testimony will be relevant.

** The rules governing Shabbos observance, in addition to prohibiting persons from certain work, also requires that a person's animals rest as well, albeit a breach of the later is of lesser severity than the former.

***The standard understanding of this phrase is that a person may be carried in a carriage or "bed" that is being carried by other people. Meaning, other people may be M'Challel Shabbos on the witness' behalf. The Tosfos Yom Tov, on the other hand, suggests a novel interpretation that this final clause is modifying the immediately preceding phrase and that the bed is itself being carried on the donkey. According to this understanding, the Mishnah does not discuss whether another person may accompany the witness or otherwise be M'Challel Shabbos.

****The RaShaSH point out that the Mishnah choice of wording is specific. So that if the 29th day of the month falls on Shabbos and the witnesses somehow saw the moon on Shabbos afternoon, they may not set out on Shabbos to arrive Saturday evening or Sunday morning. Rather, they must wait to set out after Shabbos is complete.

***** The exact implication of this Pasuk is a matter of debate. According to Rambam and others, the salient point is that Chillul Shabbos is permitted since the word Moed used in the Pasuk is generally understand to grant supremacy to the action at hand even if it means overriding Shabbos. We find similar usage with the daily Korban Tamid and the Korban Pesach. (As an aside, the Pasuk, as quoted in the Mishnah does not, in fact, exist. The actual Pasuk has a few extra words and a similar Pasuk (Leviticus 23:37 is missing the final B'moadom"--therefore it may well be that he Limud itself is from the word, "Moadei.")

The Meiri understands the derivation of the rule from the word "Osam" and that it be read as Atem. Meaning that it is the Beis Din's declaration that singularly grants the new moon its status. To do so, they need the witnesses to arrive in a timely fashion.

It seems to me that these two Limmudim are really just two halves of the same coin. From the word Moed, we learn that the declaration must be timely--hence requiring potential Chillul Shabbos. From Osam, we learn that the start of the new month can only be done as a function of the Beis Din's declaration--which itself can only be done once it has received the requisite input from the witnesses. The Torah is emphasizing this dynamic tension of needing witnesses to allow the Beis Din to act.

  1. מי שראה את החדש ואינו יכול להלך. מוליכין אותו על החמור. אפילו במטה.
  2. ואם צודה להם. לוקחין בידם מקלות.
  3. ואם היתה דרך רחוקה. לוקחין בידם מזונות.
  4. שעל מהלך לילה ויום. מחללין את השבת ויוצאין לעדות החדש.
  5. שנאמר (ויקרא כג, ד) אלה מועדי יי אשר תקראו אותם במועדם:
  1. A witness who saw the new moon and is unable to walk (to the Beis Din), they may bring him by donkey or a bed/carriage (even on Shabbos).
  2. If they (the witnesses) are afraid that they may be attacked on the way, they may take weapons along (to defend themselves).
  3. If the Beis Din was far away, they (the witnesses) may take provisions along with them
  4. Witnesses may desecrate Shabbos in order to testify about the new moon so long as they can reach the Beis Din on Shabbos, hence the furthest they can travel is a night and a day (i.e., if the witness saw the new moon Friday evening, if he could not arrive at the Beis Din by Saturday late afternoon, he was not permitted to travel)
  5. (the Mishna now provides a Midrash to support its rule that witnesses can be מחלל שבת) as it says: “These are the appointed times of the Lord . . . which you shall proclaim at their appointed time” (Leviticus 23:4) (i.e., it is incumbent upon the Beis Din to make sure the Yomim Tovim fall on the correct day, even if it means the witnesses being מחלל שבת).

Question: If a person traveled to the Beis Din thinking he would arrive on time (Shabbos before sundown), and he does not make it, has he been מחלל שבת? Does it make a difference why he arrived late?

Chapter 2

The Second Perek focuses more on the procedures once the witnesses arrive at the Beis Din. How they would interrogate the witnesses, declare Rosh Chodesh and inform the population. As an aside, the Mishna describes two earlier practices associated with the Rosh Chodesh process that, over time, were changed.

Mishna 1

Towards the second half of the second Beis HaMikdash a number of different groups (sects) of Jews developed, including the Tziddukim (Saducees), Boethusians and Essenes. The Chachomim were known as Peirushim (Pharisees). Throughout the Mishnayos we find a number of disagreements between these groups and the Chachomim. One of the most famous and contentious fights was over the day on which the Korban Omer (the Korban made of barley that was brought on the second day of Pesach) was to be brought.

In describing the day on which to bring the Korban the Torah uses the term "מִֽמָּחֳרַת֙ הַשַּׁבָּ֔ת," the day after "shabbos." The Chachomim had a tradition that this meant the day after the first day of Pesach (i.e., the second day of Pesach). Whereas, the Boethusians, relying on a literal translation of the words held that the Korban was meant to be brought on the Sunday following the first day of Pesach (this would mean that the date of the Korban was not fixed and it would depend on when Pesach fell--but it would always be a Sunday, as would Shavuous).

The only time these two group would agree that the korban be brought on the same day was when the first day of Pesach fell on Shabbos. Then, according to all, the Korban Omer was brought the next day, Sunday, the second day of Pesach. In order to make sure this would happen, the Boethusians would try to make sure that Rosh Chodesh Nissan fell on a Shabbos--at times that would mean having witnesses say they saw the new moon on Friday night even if they had not. Our Mishna tells us that once this started happening, the Beis Din would only rely on witnesses that were known not to be Boethusians.

  1. אם אינן מכירין אותו. משלחין אחר עמו להעידו.
  2. בראשונה היו מקבלין עדות החדש מכל אדם. משקלקלו המינין. התקינו שלא יהו מקבלין אלא מן המכירים:
  1. If the witnesses who saw the new moon were not known to the judges of the Beis Din (as not being Boethusians ), the village where the witnesses came from would send along another set of witnesses (who were known to the Beis Din) who could vouch for their trustworthiness.
  2. (The Mishna now goes back to explain why they had to institute this safeguard into the and only rely on known witnesses): Originally (i.e., prior to the Boethusians tampering with the dates) the Beis Din would accept all witnesses without question. However, once the tampering began, they instituted this new policy of only accepting testimony from recognized witnesses.

Question: Oftentimes, the Torah minimally describes a Mitzvah and it is left to the Chachomim to expand on the details. What tools are available to the Chachomim for this purpose? To what extent does Mesora (tradition) play a role?

Mishna 2

Similar to the previous Mishna, our Mishna tells us that another group, the Cuthim, would interfere with the Rosh Chodesh process. Specifically, while messengers were likely sent to the far away lands, for closer communities, the Beis Din would use a series of fire signals to spread the message as to which day Rosh Chodesh fell. If the previous month was only 29 days (so Rosh Chodesh was the 30th day) they would send the signal on the night of the 31st day--this would signal that the 30th day was Rosh Chodesh. If the previous month was 30 days, no signals were sent.

It seems that at some point the Cuthim tried to interfere with this signal process and would light fires even on months when no witnesses showed up on the 30th day. So, the Chachomim stopped the fire signals and switched to messengers. (It is unclear when exactly they stopped. The range of opinions stretches over 200 years).

בראשונה היו משיאין משואות. משקלקלו הכותים. התקינו שיהו שלוחין יוצאין:

Originally (prior to the Cuthim tampering with the signals) they would light fires to signal the New Moon. However, once the tampering began, they switched methods and would instead send messengers to spread the word.

Question: When it comes to Halacha, people sometimes disagree. What methods do we use to respond? Do we interfere with their lives? Do we try to convince them with logic and reason? Is Halacha flexible enough to have more than one interpretation? If yes, is that in every area of Halacha?

Mishna 3

Our Mishna describes the materials used to make the fire signals

(ג) כיצד היו משיאין משואות. מביאין כלונסאות של ארז ארוכין. וקנים. ועצי שמן. ונעורת של פשתן. וכורך במשיחה. ועולה לראש ההר. ומצית בהן את האור. ומוליך ומביא. ומעלה ומוריד. עד שהוא רואה את חברו שהוא עושה כן בראש ההר השני. וכן בראש ההר השלישי:

How were these fire signals lit? They would bring long poles of cedar wood and tie to the top of the poles [with rope] reeds, balsam wood and the scraps of flax. The Beis Din's agent would then climb to the top of the mountain(s), light the flame and would wave the the pole up and down, to and fro until the agent on the next mountain top would start to wave his fire signal. This would continue from mountain to mountain (as described in the next Mishna).

Question: Why is it important for the Mishna to describe the exact make-up of the fire signals?

Mishna 4

Our mishna describes the various mountains upon which the fire signals were lit. Other sources (like the Tosefta) record other mountains as well.

The first map of the mountain trail is taken from the book, Golden Jerusalem, by Professor Menashe Har-El (Gefen Books, 2004). The second map is from Mishnas Eretz Yisroel, Safrai (Michlelet Lifschutz 2011).

(ד) ומאין היו משיאין משואות.

  1. מהר המשחה לסרטבא.
  2. ומסרטבא לגרופינא.
  3. ומגרופינא לחוורן.
  4. ומחוורן לבית בלתין.
  5. ומבית בלתין לא זזו משם אלא מוליך ומביא. ומעלה ומוריד. עד שהיה רואה כל הגולה לפניו כמדורת האש:

And from which mountains did they signal?

  1. From the Mount of Olives to Sartava,
  2. and from Sartava to Grofina,
  3. and from Grofina to Havran,
  4. and from Havran to Beit Biltin;
  5. and from Beit Biltin, there were no other official signals. Rather, the agent would simply continue waving his signal until he would see the whole Diaspora (i.e., Babylonia) in front of him [lit up] like a torch fire (i.e., the local population would light fires on their rooftops to spread the message down the chain).

Question: In our Mishna we find the population inserting itself into the spreading of the message. To what extent do we participate ourselves and to what extent do we rely on others for our spiritual growth?

Mishna 5

Our mishna discusses the treatment of the witnesses who came to Yerushalyim to testify about the new moon. As noted, the Beis Din instituted a number of practices in order to incentivize witnesses to travel to the court. This included catering meals and modifying some of the rules related to Shabbos.

Typically, a person is not allowed to allowed to travel more than 2,000 amos (cubits--approximately 3,000 - 4,000 feet outside the city limits in any direction. This is known as Techum Shabbos. To determine your Techum Shabbos (i.e., your starting point), we generally look to where you are located at Friday's sunset. That location marks the point of departure for your Techum.

If one walks beyond his Techum, he is stuck and cannot move more than a couple of feet in each direction. This posed a problem for the witnesses. As noted above, the Chachomim allowed the witnesses to travel great distances on shabbos even though it was outside the Techum. Since these witnesses did not live in Yerushalyim, upon arriving in Yerushalyim they would be outside their Techum and would be stuck--not being able to walk anywhere.

Our mishna teaches us that the Chachomim dispensed with this limitation by allowing the witnesses to consider Yerushalyim to be their home--and allowing them to walk 2,000 amos around Yerushalyim. This was done in order to incentivize the witnesses to make the journey. The mishna also lists a number of other situations where someone is asked to travel beyond their Techum while being allowed to count their Techum from the new place.

  1. חצר גדולה היתה בירושלים. ובית יעזק היתה נקראת.
    ולשם כל העדים מתכנסים. ובית דין בודקין אותם שם. וסעודות גדולות עושין להם. בשביל שיהו רגילין לבא.
  2. בראשונה לא היו זזין משם כל היום. התקין רבן גמליאל הזקן. שיהו מהלכין אלפים אמה לכל רוח.
  3. ולא אלו בלבד. אלא אף החכמה הבאה לילד. והבא להציל מן הדליקה. ומן הגייס. ומן הנהר. ומן המפולת. הרי אלו כאנשי העיר. ויש להם אלפים אמה לכל רוח:
  1. There was a large courtyard in Jerusalem called Beis Ya'azek; It was in this courtyard where the witnesses would gather. They would be interrogated there. They would also be provided with large meals--this was meant to incentivize the witnesses to make the journey.
  2. As described in the introduction, the witnesses were originally treated as having violated the Techum and would be prevented from walking outside of the courtyard. However, the elder Rabban Gamliel instituted that they would be treated as residents of Yerushlayim and be allowed to travel 2,000 amos around Yerushalyim.
  3. This rule--deeming the witnesses as local residents-- was instituted for others as well, including mid-wives traveling to assist in childbirth, people who come to help save others from fire, bandits, flooding or collapsing buildings (i.e., rescue workers).

Question: To what extent are the Chachomim empowered to modify existing or institute new rules? Does it make a difference what type of rule it is they are modifying? Is there a difference in their saying not to do something rather than telling us to take an action?

Mishna 6

Our Mishna discussion the interrogation of the pairs of witnesses who arrived at the court. Because the court relied on the witnesses' testimony, it had to ensure itself that the witnesses were telling the truth and had actually seen what they claimed to have observed.

In addition to the typical questions the court would ask the witnesses in order to verify their testimony, when it came the new moon, the court would ask very specific astronomical questions as well. Because the court was well versed in the calculations related to the moon's phases and cycles, they would test the veracity of the witnesses by seeing if the testimony aligned with reality.

Because the moon simply reflects the sun's light, the visible portion of the moon is dependent on the sun's location. Typically, at the "new (waxing) moon" the moon briefly rises to the east of the sun (as if in front of it) and sets to the west of the sun (behind it). Depending on the time of year, it may appear to angled more to the south or north of the sun. In all events, the points of the crescent of the moon will always point away from the sun. (the following graphic is taken from NASA's "spaceplace" website.

כיצד בודקין את העדים.

  1. זוג שבא ראשון. בודקין אותו ראשון.
  2. ומכניסין את הגדול שבהן ואומרים לו.
    (a) אמור כיצד ראית את הלבנה. לפני החמה. או לאחר החמה.
    (b) לצפונה. או לדרומה.
    (c) כמה היה גבוה.
    (d) ולאין היה נוטה.
    (e) וכמה היה רחב.
    (f) אם אמר לפני החמה. לא אמר כלום.
  3. ואחר כך היו מכניסים את השני ובודקין אותו. אם נמצאו דבריהם מכוונים. עדותן קיימת.
  4. ושאר כל הזוגות. שואלין אותם ראשי דברים. לא שהיו צריכין להן אלא כדי שלא יצאו בפחי נפש. בשביל שיהו רגילים לבא:

How were witnesses interrogated?

  1. The pair that arrived at the courtyard would be examined first.
  2. The elder of the two witnesses would be interrogated first.
    (a) the Judges would ask him, "how did you see the moon? were the crescent points facing the sun or away from the sun?

    (b) was it to the north or south of the sun?
    (c) How high off the horizon was the moon
    (d) which way was it angled?
    (e) how wide was the crescent?
    (f) if his answers did not match what the judges knew to be the correct astronomical answers, for example, he said the points faced the sun, his testimony would be rejected.
  3. Assuming he answered correctly, they would interrogate the second witness to see if their testimonies matched. If so, their testimony was validated and would be used to declare Rosh Chodesh. (if not, they would interrogate the second pair etc...)
  4. In all cases, all the rest of the witnesses would be briefly interrogated, not because their testimony was required, but simply so that they would not feel disappointed for having traveled for no reason.

Question: Generally speaking, Beis Din must rely on witnesses when determining cases but to what extent can they rely on their own knowledge? Do advances in science and technology have a place in the Halachik process? For instance, what role should DNA evidence play in Halacha?

Mishna 7

Once the Beis Din is satisfied that the testimony is true and the witnesses had seen the new moon, they are obligated to actually declare the new month. Everyone agrees that this declaration is made if the witnesses testified that they had seen the new moon on the evening of the 30th day (making the prior month 29 days and the 30th day, Rosh Chodesh).

Our mishna records a dispute whether Beis Din is required to declare the new month when the prior month is a 30-day month (the 31st day is automatically Rosh Chodesh).

  1. ראש בית דין אומר מקודש.
  2. וכל העם עונין אחריו מקודש מקודש.
  3. בין שנראה בזמנו. בין שלא נראה בזמנו מקדשין אותו.
    (a) ר' אלעזר בר צדוק אומר אם לא נראה בזמנו אין מקדשין אותו. שכבר קדשוהו שמים:
  1. Upon being satisfied with the testimony, the head of the court (the Nasi) would declare that day to be "Holy" (i.e., Rosh Chodesh).
  2. Upon hearing the declaration, those gathered at the court would respond, saying: "it (i.e., the new month) is Consecrated, it is consecrated."
  3. According to the Tana Kama the declaration is made regardless of whether the witnesses testified that the New Moon had been seen on the 30th evening or the 31st evening.
    (a) Rabi Elazar bar Tzadok stated that only for a 29 day month is the declaration necessary in order to proactively make the 30th day Rosh Chodesh. Whereas, for a 30 day month (when Rosh Chodesh is the 31st day) the declaration is not made since it is automatically Rosh Chodesh.

Question: Certain aspects of our lives are routine while others require effort to bring about. The same holds true in our religious lives. For instance, Shabbos happens every seven days without fail. Yom Tov, however, requires the Beis Din to determine the correct day for Rosh Chodesh in order to set the holiday (consider the different endings to the middle Berocho of the Shabbos and Yom Tov Shemona Esrei). Which do we prefer? Why?

Mishna 8

Mishna 8 begins with some additional details about the Court's interrogation of the witnesses and how Raban Gamliel would show them pictures/cutouts to assist their testimony.

The Mishna then relates two incidents in which Raban Gamliel accepted the testimony of witnesses (knowing that their testimony could be correct given the astronomical data he had) even though others questioned the legitimacy of their testimony.

The second instance leads to the epic encounter between Raban Gamliel, the Nasi, and Rabi Yehoshua, the Av Beis Din (Head of Court) as to the correct day of Rosh Chodesh Tishrei. This dispute had very practical ramifications for Rabi Yehoshua because, according to him, Yom Kippur would be a day later than the day declared by Raban Gamliel. This was not the only major dispute between these two great Tannaim. A subsequent dispute over the nature of the obligation of the Maariv tefilah, resulted in Rabban Gamliel being deposed of his office, with Rabi Elazar ben Azariah taking over (you may recall the story from the Pesach Hagaddah).

  1. דמות צורות לבנות היו לו לרבן גמליאל בטבלא. ובכותל בעלייתו. שבהן מראה את ההדיוטות. ואומר הכזה ראית. או כזה.
  2. מעשה שבאו שנים. ואמרו ראינוהו שחרית במזרח. וערבית במערב. אמר רבי יוחנן בן נורי עדי שקר הם.
    (a) כשבאו ליבנה. קיבלן רבן גמליאל.
  3. ועוד באו שנים ואמרו ראינוהו בזמנו. ובליל עבורו לא נראה. וקבלן רבן גמליאל.
    (a) אמר רבי דוסא בן הרכינס עדי שקר הן. היאך מעידים על האשה שילדה. ולמחר כריסה בין שיניה.
  4. אמר לו ר' יהושע רואה אני את דבריך:
  1. To assist the witnesses, Raban Gamliel had moon shapes cut into both a tablet and wall hangings, to which they could point (he would then rely on their testimony in deciding whether to declare Rosh Chodesh).
  2. (This is the first of two stories)
    It once happened that witness testified that they had seen the new moon to the east of the sun in the morning and to the west in the evening (something that is astronomically impossible) and Rabi Yochanan ben Nuri rejected them.
    (a) When they arrived in Yavneh, the seat of the Nasi, Rabban Gamliel, his court accepted them and declared day to be Rosh Chodesh
    (he assumed they had seen a cloud in the morning and not the moon and according to his calculations, they could have seen the moon in the evening)
  3. Another time, a pair of witnesses claimed to have seen the new moon on the 30th evening yet, on the 31st evening, they did not see it and Rabban Gamliel accepted their testimony to make the 30th day Rosh Chodesh (presumably a cloud was blocking the moon on the second night)
    (a) Rabi Dosa ben Hyrcanus, on the other hand, declared them to be false witnesses for how can it be that they saw it on the 30th night but not the 31st (using a play on words he compares this to a woman who had given birth but is seen clearly pregnant the next day).
  4. Rabi Yehoshua agreed with Rabi Dosa and declared the 31st day to be Rosh Chodesh.

Mishna 9

Our Mishna details the aftermath of the dispute and the challenge Raban Gamliel posed to Rabi Yehoshua.

  1. שלח לו רבן גמליאל גוזרני עליך שתבא אצלי במקלך ובמעותיך ביום הכפורים שחל להיות בחשבונך.
  2. הלך ומצאו רבי עקיבא מיצר.
    (a) אמר לו יש לי ללמוד שכל מה שעשה רבן גמליאל עשוי. שנאמר (ויקרא כג, ד) אלה מועדי יי מקראי קודש אשר תקראו אתם. בין בזמנן בין שלא בזמנן. אין לי מועדות אלא אלו.
  3. בא לו אצל רבי דוסא בן הרכינס.
    (a) אמר לו אם באין אנו לדון אחר בית דינו של רבן גמליאל. צריכין אנו לדון אחר כל בית דין ובית דין. שעמד מימות משה ועד עכשיו
    (b) שנאמר (שמות כד, ט) ויעל משה ואהרן נדב ואביהוא ושבעים מזקני ישראל. ולמה לא נתפרשו שמותן של זקנים. אלא ללמד שכל שלשה ושלשה שעמדו בית דין על ישראל. הרי הוא כבית דינו של משה.
  4. נטל מקלו ומעותיו בידו. והלך ליבנה אצל רבן גמליאל. ביום שחל יום הכפורים להיות בחשבונו.
  5. עמד רבן גמליאל ונשקו על ראשו. אמר לו בוא בשלום רבי ותלמידי. רבי בחכמה. ותלמידי שקבלת דברי:
  1. [When Raban Gamliel heard that Rabi Yehishua had challenged his ruling] he sent him a message ordering Rabi Yehishua to appear before him, with his staff and money purse, on the day Rabi Yehoshua deemed to be Yom Kippur (i.e., the 11th of Tishrei according to Raban Gamliel).
  2. Rabi Akiva went to Rabbi Yehoshua, and found him very distressed (over the fact that he may have to violate his Yom Kippur or disobey the Nasi);
    (a) (to try and comfort him that he would not be violating Yom Kippur) he said to him, "I have scriptural support that whatever Raban Gamliel says regarding Rosh Chodesh (even if he was incorrect) is binding (i.e., that when he declares Yom Kippur, it is in fact Yom Kippur), as it is stated (Leveticus 23:4), 'These are the feasts of the Lord, holy convocations which you shall proclaim;' (this means that once proclaimed, whether rightly or wrongly, these are my Yomim Tovim
  3. [Perhaps not fully comforted] Rabi Yehoshua went to Rabbi Dosa ben Harkinus seeking support,
    (a) Rabi Dosa, however, said to him, "If we are to [question the decisions] of the court of Raban Gamliel, we must [also question the decisions] of all the courts which have stood, from the days of Moshe until today;
    (b) Rabi Dosa supported his rule as such: as it is stated, (Exodus 24:2), 'Moshe, Aharon, Nadav, Avihu, and seventy of the elders of Israel went up.' Why were the names of the elders not specified? Rather [it was] to teach, that every three men that form ‏a court [to be responsible] over Israel, it is to be [considered] like the court of Moshe." (i.e., we cannot invariably question each decision but must accept them)
  4. Following this, Rabi Yehoshua took his staff and his money in his hand, and went to Yavneh to Rabban Gamliel on the day that came out to be Yom Kippur, according to his calculation.
  5. Upon seeing him, Raban Gamliel stood up, and kissed him on his head, [and] he said to him, "Come in peace, my teacher and my disciple! My teacher — in wisdom; and my disciple — in that you accepted my words."

Question: In these Mishnayos we find the Tannaim engaged in a profound debate over centralized and individual authority. Raban Gamliel was adamant to maintain the central calendar while Rabi Yehoshua sought leeway for individualized practice. Have you ever found yourself in a simialr situation? How did you react?

Remember, these great Tanaim lived just after the destruction of the Beis Hamikdash, when the Jewish nation was starting to disperse among the world. Does that change your thinking on this matter?

Chapter 3

Mishna 1

The first Mishna of the Perek is the final Mishna dealing with Rosh Chodesh. It discusses a number of miscellaneous cases

  1. ראוהו בית דין וכל ישראל. נחקרו העדים. ולא הספיקו לומר מקודש. עד שחשיכה. הרי זה מעובר.
  2. ראוהו בית דין בלבד. יעמדו שנים ויעידו בפניהם. ויאמרו מקודש מקודש.
  3. ראוהו שלשה והן בית דין. יעמדו השנים. ויושיבו מחבריהם אצל היחיד. ויעידו בפניהם. ויאמרו מקודש מקודש.
    (a) שאין היחיד נאמן על ידי עצמו:
  1. (As noted, even after witnesses testified, the Beis Din was required to actually declare the day Rosh Chodesh) If the moon was so visible so that the full Court and the entire nation saw the new moon (i.e., it was obviously Rosh Chodesh) or the examination of the witnesses was delayed so that they didn't have time to [declare Rosh Chodesh] before it became dark; The prior month would be a 30 day month.
  2. If the entire (or large portion of the) court saw the new moon, two [of its members] must stand up and testify before [the others], and the rest would declare it Rosh Chodesh
  3. If the only persons to see the new moon were the three judges of the special court, two of them must stand up, and would have two colleagues sit with the third judge to form a Beis Din. The two would testify before them, and the Beis Din would declare the day Rosh Chodesh
    (a) (the reason you needed to add two judges to the Beis Din is because) an individual is not [qualified to wield the authority of the court] by himself.

Question:

  1. If witnesses showed up on the 31st day saying they saw the new moon on the 30th day, could the Beis Din declare the 30th day Rosh Chodesh retroactively?
  2. Our Mishna requires strict application of the proper procedures to declare Rosh Chodesh. Why did they need to be so strict? Are there situations where bending the rules is beneficial? Can the outcome justify the means?