Din & Daf: Conceptual Analysis of Halakha Through Case Study with Dr. Elana Stein Hain
Who is a Shotah/Shoteh? Bava Kamma 88a
Dr. Elana Stein Hain – email@example.com
We frequently read of the categories of the חרש, שוטה וקטן, one who is both deaf and mute, one who is non compos mentis and one who is still a minor, none of whom are halakhically considered בני דעת. As such, their participation as halakhic actors is limited. In this session, we will examine specifically the category of שוטה. Click here for the shiur on Cheresh and Katan.
Available as a podcast or video shiur:
- משנה בבא קמא ח:ד
חֵרֵשׁ, שׁוֹטֶה וְקָטָן, פְּגִיעָתָן רָעָה. הַחוֹבֵל בָּהֶן חַיָּב, וְהֵם שֶׁחָבְלוּ בַּאֲחֵרִים פְּטוּרִין…
With regard to one who is deaf-mute, a שוטה, or a minor, an encounter with them is disadvantageous: one who injures them is liable, but if they injured others, they are exempt…
- חגיגה ג:
תָּנוּ רַבָּנַן: אֵיזֶהוּ שׁוֹטֶה? הַיּוֹצֵא יְחִידִי בַּלַּיְלָה, וְהַלָּן בְּבֵית הַקְּבָרוֹת, וְהַמְקָרֵעַ אֶת כְּסוּתוֹ. אִיתְּמַר, רַב הוּנָא אָמַר: עַד שֶׁיְּהוּ כּוּלָּן בְּבַת אַחַת, רַבִּי יוֹחָנָן אָמַר: אֲפִילּוּ בְּאַחַת מֵהֶן.
The Sages taught: Who is considered a שוטה? One who goes out alone at night, and one who sleeps in a cemetery, and one who rends his garment. It was stated that Rav Huna said: One does not have the halakhic status of a שוטה until there are all of these signs present at the same time. Rabbi Yoḥanan said: One is considered a שוטה even due to the appearance of one of these signs.
הֵיכִי דָמֵי? אִי דְּעָבֵיד לְהוּ דֶּרֶךְ שְׁטוּת — אֲפִילּוּ בַּחֲדָא נָמֵי, אִי דְּלָא עָבֵיד לְהוּ דֶּרֶךְ שְׁטוּת — אֲפִילּוּ כּוּלְּהוּ נָמֵי לָא.
What are the circumstances of the case under discussion? If one performs them in a deranged manner, then even the appearance of one sign should be enough to classify a person as a שוטה. If one does not perform these actions in a deranged manner, but has a reason to act this way, then even if one performs all of them one should not be deemed a שוטה.
לְעוֹלָם דְּקָא עָבֵיד לְהוּ דֶּרֶךְ שְׁטוּת, וְהַלָּן בְּבֵית הַקְּבָרוֹת — אֵימוֹר כְּדֵי שֶׁתִּשְׁרֶה עָלָיו רוּחַ טוּמְאָה הוּא דְּקָא עָבֵיד. וְהַיּוֹצֵא יְחִידִי בַּלַּיְלָה — אֵימוֹר גַּנְדְּרִיפַס אַחְדֵּיהּ, וְהַמְקָרֵעַ אֶת כְּסוּתוֹ — אֵימוֹר בַּעַל מַחְשָׁבוֹת הוּא, כֵּיוָן דְּעַבְדִינְהוּ לְכוּלְּהוּ, הָוֵה לְהוּ כְּמִי שֶׁנָּגַח שׁוֹר חֲמוֹר וְגָמָל, וְנַעֲשָׂה מוּעָד לַכֹּל.
Actually, the baraita is referring to one who performs these actions in a deranged manner, but each action on its own could be explained rationally. With regard to one who sleeps in the cemetery, one could say that one is doing so in order that an impure spirit should settle upon them. And with regard to one who goes out alone at night, one could say that perhaps a fever took hold of the person and they are trying to cool down. And as for one who tears their garments, one could say that the person is engaged in thought, and out of anxiety tears the clothing unintentionally. Despite these possible explanations, since one performed all of these together they are considered like the actions of a forewarned ox that gored an ox, a donkey, and a camel. Since this ox gored three different animals on three separate occasions, it is considered predisposed to gore and becomes forewarned for every type of animal. Likewise, if someone performs three different deranged actions, it is assumed that there is no logical reason for their behavior and that person is classified as a שוטה.
אָמַר רַב פָּפָּא: אִי שְׁמִיעַ לֵיהּ לְרַב הוּנָא הָא דְּתַנְיָא: אֵי זֶהוּ שׁוֹטֶה — זֶה הַמְאַבֵּד כׇּל מַה שֶּׁנּוֹתְנִים לוֹ, הֲוָה הָדַר בֵּיהּ.
Rav Pappa said: If Rav Huna had heard that which is taught in a baraita: “Who is a שוטה? This is one who destroys whatever is given to them,” he would have retracted his statement..
- בבלי ראש השנה כח.
עִתִּים חָלִים עִתִּים שׁוֹטֶה, כְּשֶׁהוּא חָלִים — הֲרֵי הוּא כְּפִקֵּחַ לְכׇל דְּבָרָיו, כְּשֶׁהוּא שׁוֹטֶה — הֲרֵי הוּא כְּשׁוֹטֶה לְכׇל דְּבָרָיו!
With regard to someone who is at times compos mentis and at times non compos mentis, during the compos mentis periods, that person is considered halakhically competent for all purposes (and is obligated in all the mitzvot). And during the non compos mentis periods, that person is considered a shoteh for all purposes (and is therefore exempt from the mitzvot).
- רמב”ם משנה תורה הלכות עדות ט:ט
הַשּׁוֹטֶה פָּסוּל לְעֵדוּת מִן הַתּוֹרָה לְפִי שֶׁאֵינוֹ בֶּן מִצְוֹת. וְלֹא שׁוֹטֶה שֶׁהוּא מְהַלֵּךְ עָרֹם וּמְשַׁבֵּר כֵּלִים וְזוֹרֵק אֲבָנִים בִּלְבַד. אֶלָּא כָּל מִי שֶׁנִּטְרְפָה דַּעְתּוֹ וְנִמְצֵאת דַּעְתּוֹ מְשֻׁבֶּשֶׁת תָּמִיד בְּדָבָר מִן הַדְּבָרִים אַף עַל פִּי שֶׁהוּא מְדַבֵּר וְשׁוֹאֵל כָּעִנְיָן בִּשְׁאָר דְּבָרִים הֲרֵי זֶה פָּסוּל וּבִכְלַל שׁוֹטִים יֵחָשֵׁב…
A person who is non compos mentis is not acceptable as a witness according to Scriptural Law, for he is not obligated in the mitzvot. We are not only speaking about a shoteh who goes around naked, destroys utensils, and throws stones. Instead, it applies to anyone whose mind is disturbed and continually confused when it comes to certain matters although that person can speak and ask questions to the point regarding other matters. Such a person is an invalid witness and is considered to be a shoteh…
- The Get of Cleves (https://www.jewishvirtuallibrary.org/cleves-get)
During 1766–67, a great controversy flared up, which was to become known as the Cleves get (bill of divorce), one of the causes célèbres of the 18th century. Though its focal point was Frankfurt, it came to involve most of the great scholars of the day.
On Elul 8, 5526 (August 14, 1766), Isaac (Itzik), son of Eliezer Neiberg of Mannheim, married Leah, daughter of Jacob Guenzhausen of Bonn. On the Sabbath following the wedding the bridegroom took 94 gold crowns of the dowry and disappeared. After an extensive search he was found two days later in the house of a non-Jew in the village of Farenheim and brought home. A few days later Isaac informed his wife’s family that he could no longer stay in Germany because of the grave danger which threatened him there, and that he was obliged to immigrate to England.
He declared his willingness to give his wife a divorce in order to prevent her from becoming an *agunah . His offer was accepted, and Cleves on the German-Dutch border was selected as the place for the get to be given. Consequently, on the 22nd of Elul, Israel b. Eliezer *Lipschuetz , the av bet din of Cleves, effected the divorce.
Leah returned to Mannheim and Isaac proceeded to England. When his father learned of the divorce, he suspected that the whole affair had been contrived by the woman’s relatives to extort the dowry money from Isaac. He turned to R. Tevele Hess of Mannheim who invalidated the get on the grounds that in his view the husband was not of sound mind when he delivered it. Hess, not relying upon his own judgment, applied to the bet din of Frankfurt and to Naphtali Hirsch Katzenellenbogen of Pfalz, Eliezer Katzenellenbogen of Hagenau, and Joseph Steinhardt of Fuerth, requesting their confirmation of his ruling. The bet din of Frankfurt, headed by Abraham b. Ẓevi Hirsch of Lissau, not only agreed, but demanded that Lipschuetz himself declare the get invalid and proclaim Leah to be still a married woman.
The rabbis of Pfalz, Hagenau, and Fuerth, on the other hand, upheld Lipschuetz, declared the divorce valid, and the woman free to remarry. Both sides appealed to all the rabbinical authorities of the time. The rabbi of Cleves received the support of almost all of the leading scholars of the generation, among them Saul b. Aryeh Leib *Loewenstamm of Amsterdam, Jacob *Emden , Ezekiel *Landau of Prague, Isaac *Horowitz of Hamburg, David of Dessau, Aryeh of Metz, Elhanan of Danzig, Solomon b. Moses of Chelm, and ten scholars of the klaus (bet-midrash) of Brody.
The bet din of Frankfurt was virtually alone in its opposition. The moving spirit in the dispute was the Frankfurt dayyan, Nathan b. Solomon Maas, on whose initiative the Frankfurt rabbis even went so far as publicly and with solemn ceremony to commit to flames the responsa of the Polish rabbis in protest against their intervention in favor of Lipschuetz. The couple finally remarried and out of deference to the opinion of Rabbi Abraham of Frankfurt, no blessings were pronounced at the ceremony. Instead the groom said that “with this ring you are still married to me.”
The complete episode of the Cleves divorce was recorded in Or ha-Yashar (Amsterdam, 1769) by Aaron Simeon Copenhagen who had followed the events and who had himself played a part in the granting of the get. Israel Lipschuetz devoted no less than 37 of his responsa to the polemic in his Or Yisrael (Cleves, 1770).
Dr. Elana Stein Hain is the Rosh Beit Midrash and a senior research fellow at the Shalom Hartman Institute of North America. Passionate about bringing Torah into conversation with contemporary life, she teaches Talmud from the Balcony, an occasional learning seminar exposing the big ideas, questions, and issues motivating Talmudic discussions; she authored Circumventing the Law: Rabbinic Perspectives on Legal Loopholes and Integrity (pre-order discount code: PENN-ESHAIN30) which uses halakhic loopholes as a lens for understanding rabbinic views on law and ethics; and she co-hosts For Heaven’s Sake, a bi-weekly podcast with Donniel Hartman and Yossi Klein Halevi, exploring contemporary issues related to Israel and the Jewish world. Elana has also started TEXTing; a podcast where she and guest scholars study Torah texts that engage issues of the moment for the Jewish world. She lives in Manhattan with her beloved family.
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