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Beis din makes a mistake, one with kares. How could this ever have happened; it seems so unlikely? Is it a case of לא היה ולא נברא? See יומא נז,א – אני ראיתי ברומי על הפרוכת
Well, what is a mistake? Are there times when Sanhedrin changes its mind, but it’s not called a mistake? What if the next beis din rules differently? See 6a, where they might have had to bring the korbon for the generation of Tzidkiyahu, many years later. Was that a different beis din? Or is it possible that the original beis din realized they needed to bring a korbon (12 according to Rabbi Meir!) but the beis hamikdash was destroyed and we had to wait 70 years to do it?)
Simple question: Are the rules of drashos an absolute algorithm? That is, do we assume that there is only one way to do them right, given the same starting information? If not, aren’t we saying (ח"ו) that the Torah doesn’t really tell us what to do?
As far as I know, no actual case is given in the gemara of a חזרה that is פטור for the reason that it’s not considered a mistake. 'לפלוג ולתני בדידה כו…
Some clues on maybe what kinds of mistakes count:
(a) Shmuel says that if the mistake is in something that
הצדוקים מודים בו , פטור: זיל קרא בי רב הוא. That’s a mistake that’s too big.
(b) The gemara says that if a תלמיד ראוי להוראה realizes the error, he should complain and not go along. According to Rava (:ב), this includes a גמיר ולא סביר, סביר ולא גמיר. [The Rambam (Sh’gagos 13(5)) says that if the person is less expert than that, he cannot rely on his own opinion.]
(c) And of course, a member of the Sanhedrin itself can also realize the mistake.
These are three levels of mistake: In the explicit verse, in a mishnah (that is so explicit that a גמיר ולא סביר can be sure it’s wrong), and one that requires a full-fledged גמיר וסביר to be sure of. Roughly, the last two are טועה בדבר משנה and טועה בשיקול הדעת. Both are mistakes, though; just one’s in the mishnah and the other in the gemara.
The Rambam (ריש הל' ממרים) says that are three parts of the Sanhedrin’s charge of Torah: (1) Repository of קבלה (שמועות), (2) Decider of the י"ג מדות, and (3) Creators of גזירות תקנות והנהגות (derabanons). The last isn’t so relevant for us since those derabanons don’t carry kares. Of the first two: According to the Rambam there, the beis din has no right to ignore a שמועה (presumably from someone qualified). But each new beis din can decide י"ג מדות (even if they are not גדול בחכמה ובמנין)
If drashos do not have a unique “right answer” (see above), the entire vast body of halacha may change tremendously with each new Sanhedrin. If they do, though, a new beis din can come along and change a psak based on the י"ג מדות - then that beis din is always basically saying that the last beis din was טועה.
A note about the י"ג מדות: These have the job of deciding the range of what is said in the Torah. “Don’t plow with a cow and a donkey together.” Is it just a cow, does it include all kosher animals, or all domesticated animals, and what about chayos and birds and fish? More or less: What does the Torah mean by “cow”? Whenever we poskin on a new case, this is basically what we’re doing.
Now, an important part of drashos is not just the words, but the context. In the case I just mentioned, I need to know about types of animals. And many other things. A drasha that tells you the answer is rare; usually, it pushes in a certain direction (ריבוי, מיעוט, etc.) and the chacham must use his knowledge of the context to decide what is the logical next choice to make.
So, that suggests (about) four types of mistakes:
1a) They failed to take into account a שמוע that they knew.
1b) They never knew the שמוע; later, someone shows up and tells them. [not as much a mistake]
2a) They failed to follow the rules of י"ג מדות properly.
2b) They followed the rules properly, but the context was wrong [not as much a mistake (see Rav Herzog’s pshat on ביעי כינים. He suggests that the gemara's din there - that you're allowed to kill fleas because they are not פרה ורבה - was correct according to the science of the time, and remains binding - until the next Sanhedrin gets to reconsider the question based on new information.)]
Well, what is a mistake? Are there times when Sanhedrin changes its mind, but it’s not called a mistake? What if the next beis din rules differently? See 6a, where they might have had to bring the korbon for the generation of Tzidkiyahu, many years later. Was that a different beis din? Or is it possible that the original beis din realized they needed to bring a korbon (12 according to Rabbi Meir!) but the beis hamikdash was destroyed and we had to wait 70 years to do it?)
Simple question: Are the rules of drashos an absolute algorithm? That is, do we assume that there is only one way to do them right, given the same starting information? If not, aren’t we saying (ח"ו) that the Torah doesn’t really tell us what to do?
As far as I know, no actual case is given in the gemara of a חזרה that is פטור for the reason that it’s not considered a mistake. 'לפלוג ולתני בדידה כו…
Some clues on maybe what kinds of mistakes count:
(a) Shmuel says that if the mistake is in something that
הצדוקים מודים בו , פטור: זיל קרא בי רב הוא. That’s a mistake that’s too big.
(b) The gemara says that if a תלמיד ראוי להוראה realizes the error, he should complain and not go along. According to Rava (:ב), this includes a גמיר ולא סביר, סביר ולא גמיר. [The Rambam (Sh’gagos 13(5)) says that if the person is less expert than that, he cannot rely on his own opinion.]
(c) And of course, a member of the Sanhedrin itself can also realize the mistake.
These are three levels of mistake: In the explicit verse, in a mishnah (that is so explicit that a גמיר ולא סביר can be sure it’s wrong), and one that requires a full-fledged גמיר וסביר to be sure of. Roughly, the last two are טועה בדבר משנה and טועה בשיקול הדעת. Both are mistakes, though; just one’s in the mishnah and the other in the gemara.
The Rambam (ריש הל' ממרים) says that are three parts of the Sanhedrin’s charge of Torah: (1) Repository of קבלה (שמועות), (2) Decider of the י"ג מדות, and (3) Creators of גזירות תקנות והנהגות (derabanons). The last isn’t so relevant for us since those derabanons don’t carry kares. Of the first two: According to the Rambam there, the beis din has no right to ignore a שמועה (presumably from someone qualified). But each new beis din can decide י"ג מדות (even if they are not גדול בחכמה ובמנין)
If drashos do not have a unique “right answer” (see above), the entire vast body of halacha may change tremendously with each new Sanhedrin. If they do, though, a new beis din can come along and change a psak based on the י"ג מדות - then that beis din is always basically saying that the last beis din was טועה.
A note about the י"ג מדות: These have the job of deciding the range of what is said in the Torah. “Don’t plow with a cow and a donkey together.” Is it just a cow, does it include all kosher animals, or all domesticated animals, and what about chayos and birds and fish? More or less: What does the Torah mean by “cow”? Whenever we poskin on a new case, this is basically what we’re doing.
Now, an important part of drashos is not just the words, but the context. In the case I just mentioned, I need to know about types of animals. And many other things. A drasha that tells you the answer is rare; usually, it pushes in a certain direction (ריבוי, מיעוט, etc.) and the chacham must use his knowledge of the context to decide what is the logical next choice to make.
So, that suggests (about) four types of mistakes:
1a) They failed to take into account a שמוע that they knew.
1b) They never knew the שמוע; later, someone shows up and tells them. [not as much a mistake]
2a) They failed to follow the rules of י"ג מדות properly.
2b) They followed the rules properly, but the context was wrong [not as much a mistake (see Rav Herzog’s pshat on ביעי כינים. He suggests that the gemara's din there - that you're allowed to kill fleas because they are not פרה ורבה - was correct according to the science of the time, and remains binding - until the next Sanhedrin gets to reconsider the question based on new information.)]
