YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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HALAKHA: A WEEKLY SHIUR IN HALAKHIC TOPICS

Shiur #13: Eretz Yisrael as a Precondition for Kiddush Ha-chodesh
By Harav Yehuda Amital shlit"a
Translated by David Silverberg

	The Rambam writes in Hilkhot Kiddush Ha-chodesh (1:7): 

"There is a positive commandment from the Torah for Bet Din to calculate and see whether or not the [new] moon was sighted, and interrogate the witnesses until they declare the new month.  They then send to inform the rest of the nation as to which day is Rosh Chodesh, in order that they know on which days the festivals fall, as it says, '… that you shall call them sacred occasions' and it says, 'You shall observe this statute in its time'."

	The Rambam then adds in the next halakha: 

"The months are calculated and established only in Eretz Yisrael, as it says, 'For from Zion shall Torah come forth, and the word of the Lord from Jerusalem.'  If there was a Torah leader who was ordained [with formal semikha] in Eretz Yisrael and then emigrated outside the Land, and he did not leave behind anyone like him in Eretz Yisrael, then he may calculate and establishing the months outside the Land.  If he learns that someone in Eretz Yisrael became as great as he, not to mention greater than he, then it is forbidden for him to establish [months] or declare leap years outside the Land.  If he transgressed and established [months] or declared leap years, [his actions] are meaningless."

	Later in Hilkhot Kiddush Ha-chodesh (5:13) the Rambam writes: 

"When we calculate nowadays - everyone in his locale - and declare that Rosh Chodesh is on such-and-such day and Yom Tov is on such-and-such day, we do not determine [this] based on our own calculation, nor do we rely on it, for we cannot declare leap years or establish months outside the Land.  We rely only on the calculation of the people of Eretz Yisrael and their determination.  Our calculation is only for purposes of discovering; since we know that they rely on this calculation, we calculate in order to know which day it is that the people of Eretz Yisrael established.  Whatever the people of Eretz Yisrael establish - that determines the day that will be Rosh Chodesh or Yom Tov, not the calculation that we make."

	The Rambam addresses this subject in his Sefer Ha-mitzvot, as well (mitzvat asei 153): 

"I will add this explanation for you.  Were we to assume, for example, that the people of Eretz Yisrael will, Heaven forbid, all leave Eretz Yisrael - Heaven forbid that God should do such a thing!  For He promised that He will never eradicate all signs of the nation - and there was no Bet Din there and there was no Bet Din outside the Land that had been ordained [with formal semikha], then this calculation of ours would be of no consequence for us in any way, because we may not calculate months or declare leap years outside the Land, except under the conditions mentioned, as explained, 'For from Zion shall Torah come forth'."

	This position requires explanation.  If halakha indeed forbids the establishment of new months outside Eretz Yisrael because of "For from Zion shall Torah come forth," then why does the Rambam allow a Torah leader who leaves Israel to establish new months if he left behind no one of equal stature?  One might explain that the semikha he received in Eretz Yisrael grants him the authority to establish months even in the Diaspora.  But if so, then why cannot he continue doing so even if he did leave behind competent scholars in Israel?  We must also explain why the scholar who may establish months in the Diaspora if he left no equal in the Land loses this authority once another great leader arises in Eretz Yisrael.

	Also requiring explanation is Tosefot's comment in Masekhet Sanhedrin 11b (s.v. ein me'abrin"), cited in the name of the Yerushalmi, that when the declaration of leap years cannot be performed in the Land, it is done outside Israel.  Accordingly, Yirmiyahu, Yechezkel and Barukh Ben Neriya also declared leap years outside Eretz Yisrael.  The Minchat Chinukh (mitzva 4) writes that from Tosefot it appears that whenever extenuating circumstances do not allow for the institution of leap years in Eretz Yisrael, it may be performed in the Diaspora - even when scholars of equal competence are present in the Land.  The question arises as to why this should be the case, if generally a scholar has no authority to establish Rosh Chodesh or a leap year outside Israel when he leaves behind an equally competent scholar in Israel.

	The Rambam writes (Hilkhot Kiddush Ha-chodesh 5:1-3): 

"All that we have said regarding the establishment of Rosh Chodesh based on the sighting [of the new moon] and the declaration of leap years because of the timing [of the festivals within the solar year] or other concerns - all this is done only by the Sanhedrin in the Land of Israel, or a Bet Din of semukhim [those who received formal semikha] in Eretz Yisrael authorized by the Sanhedrin, for this is what was told to Moshe and Aharon: 'This month shall be for you the first of the months.'  We learn from tradition, one from another back to Moshe Rabbenu, that this is what this means: This testimony is entrusted to you and whomever takes your place after you.  But when there is no Sanhedrin in Eretz Yisrael, months are not established and leap years are not declared, except through the calculation that we use nowadays.

"This comes as a halakha given to Moshe at Sinai, that when there is a Sanhedrin, it establishes [months] based on the sighting [of the new moon], and when there is no Sanhedrin, we establish [months] based on the calculation that we use nowadays, and we do  not resort to the sighting.  Instead, sometimes the day established [as Rosh Chodesh] by this calculation will be the day of the sighting, or a day before or a day after.  That it could occur after the sighting is an anomaly, and [this applies] in countries to the west of Eretz Yisrael.

"When did all of Israel begin using this calculation?  From the end of the Talmudic period, at the time when Eretz Yisrael was in ruins and no permanent Bet Din remained there.  But during the time of the mishna, as well as during the time of the Gemara until the days of Abayei and Rava, they relied on the establishment of [the months by those in] Eretz Yisrael."

	This passage gives rise to considerable difficulty, as the Ramban notes in his critique of the Rambam's Sefer Ha-mitzvot.  If kiddush ha-chodesh through the sighting of the new moon requires a Sanhedrin, and when the Rambam mentions "Bet Din" he refers to the Bet Din Ha-gadol (= the Sanhedrin), as clearly emerges from his comments in chapter 4, then how could this have continued until the times of Abayei and Rava?  The Sanhedrin ceased to exist already forty or so years before the Temple's destruction!  How, then, did kiddush al pi re'iya (the declaration of months based on the sighting of the new moon) continue all the way into the Talmudic period?  The Meshekh Chokhma, commenting on Shemot 12:2, addresses the Rambam's position.  He claims that the halakha le-Moshe mi-Sinai mentioned by the Rambam, mandating kiddush al pi ha-re'iya when there is a Sanhedrin and kiddush al pi cheshbon (use of our calculation of the months) in the absence of a Sanhedrin, actually means that without a Sanhedrin, either method may be implemented.  Therefore, when we have a Bet Din of semukhin, they may employ kiddush al pi ha-re'iya despite the absence of a Sahnedrin.  This theory, however, is difficult to accept, as the Rambam writes explicitly (5:1), "But when there is no Sanhedrin in Eretz Yisrael, months are not established and leap years are not declared, except through the calculation that we use nowadays."
	
Let us return to the Rambam's comments at the beginning of chapter 5: 

"All that we have said regarding the establishment of Rosh Chodesh based on the sighting [of the new moon] and the declaration of leap years because of the timing [of festivals within the solar year] or other concerns - all this is done only by the Sanhedrin in the Land of Israel, or a Bet Din of semukhim in Eretz Yisrael authorized by the Sanhedrin."  

The Rambam here speaks of the possibility of the Sanhedrin authorizing a Bet Din to oversee kiddush ha-chodesh and leap years.  It stands to reason that if an established Bet Din received such authorization from the Sanhedrin, then since the authorization was given to the Bet Din and not to specific individuals, that Bet Din retains this license even if all the judges who sat on the Bet Din at the time of the initial authorization have long since been replaced by new judges.  The authorization was granted to the Bet Din, and that permanent Bet Din continues to exist, even after the passing of those who served as judges when it received license to perform kiddush ha-chodesh.  Accordingly, we may go a step further and claim that even if the Sanhedrin ceases to exist, the authorization it had given to lower Batei Din remains in force.  The Rambam writes in 5:3: "When did all of Israel begin using this calculation?  From the end of the Talmudic period, at the time when Eretz Yisrael was in ruins and no permanent Bet Din remained there."  Were a permanent Bet Din to have remained, it could have continued declaring new months and leap years with the authority vested in it by the Sanhedrin when it existed.  We can therefore resolve the difficulty raised by the Ramban as to how kiddush al pi ha-re'iya could have continued years after the disappearance of the Sanhedrin.  The answer is, quite simply, that so long as a permanent Bet Din remained, it had the power to perform kiddush al pi ha-re'iya with the authorization it had received from the Sanhedrin.

	The Rambam's ruling allowing a scholar to perform kiddush ha-chodesh in the Diaspora if he left no equal in Israel originates from a sugya in Masekhet Berakhot 63a.  The Gemara there says: 

"When Chanina, Rabbi Yehoshua's nephew, moved to the Diaspora, he would declare leap years and establish months outside Israel.  They sent to him two scholars, Rabbi Yossi Ben Kipar and the grandson of Zekharya Ben Kabutal.  When he saw them, he said to them, 'Why have you come?'  They said to him, 'We have come to study Torah.'  He declared [about them], 'These men are leaders of the generation, and their forefathers served in the Bet Ha-mikdash, as we learned [in the mishna, Yoma 18b]: Zekharya Ben Kabutal said, 'Many times I read before him [the kohen gadol on the night of Yom Kippur] from the book of Daniel'.'  He began ruling 'tamei' and they would rule 'tahor'; he would rule stringently, and they would rule leniently.  He declared about them, 'These people are useless; they are nothingness!'  They said to him, 'You already built - you cannot now destroy; you already erected a fence - you cannot now breach it.'  He said to them, 'So why is it that I rule 'tamei' and you rule 'tahor,' I rule stringently and you rule leniently?'  They said to him, 'Because you declare leap years and establish months outside the Land.'  He said to them, "Did not Akiva Ben Yosef declare leap years and establish months outside the Land?'  They said to him, 'Do not bring proof from Rabbi Akiva, who left no equal in Eretz Yisrael.'  He said to them, 'I, too, left no equal in Eretz Yisrael.'  They said to him, 'The kids you left have become goats with horns [meaning, they have grown], and they have sent us to you.  This is what they said to us: Go and tell him in our name.  If he listens, good; if not, he shall be excommunicated.  Tell our brethren in the Diaspora.  If they listen, good; if not, let them ascend a mountain; Achiya will build an altar, Chananya will play the harp, and they will deny [God] and proclaim that they have no share in the God of Israel.'  The people all immediately broke out crying and said, 'God forbid!  We have a share in the God if Israel!'  Why all this?  Because it says, 'For from Zion shall come forth Torah, and the word of the Lord from Jerusalem'."

	Rabbi Yehoshua's nephew was among the scholars of Yavneh, as we know from Masekhet Eruvin.  The mishna (beginning of chapter 4) records an incident involving several Tanna'im - Rabban Gamliel, Rabbi Elazar Ben Azarya, Rabbi Akiva and Rabbi Yehoshua - which became the subject of a halakhic dispute between them.  The Gemara (43a) then cites Chananya, Rabbi Yehoshua's nephew, as recording the final ruling of his uncle, Rabbi Yehoshua, on the matter.  They therefore belonged to a Bet Din that could establish months based on the authorization it received from the Sanhedrin during the time of the Temple.  So long as Chanina had no equal in Eretz Yisrael, he retained his membership in that Bet Din, since no one could replace him.  Only once "the kids became goats," when suitable candidates for his position emerged, he lost his membership in the Bet Din.  Before then, however, he established months and declared leap years as part of the Bet Din in Eretz Yisrael that was authorized to do so.  Understandably, then, when extenuating circumstances prevent the Bet Din in Eretz Yisrael from establish months, then members of that Bet Din may do so outside the Land - even if they left behind competent replacements in Eretz Yisrael.  If the Bet Din in Israel has no practical ability to establish months, then this becomes akin to a situation where the scholars in the Diaspora left behind no equal, in which case they may declare new months outside the Land.

	Thus, we may suggest that when the Rambam (in 1:8) allows for a scholars to establish new months in the Diaspora, he refers to someone who while in Israel served as a member of a Bet Din that had been authorized by the Sanhedrin to establish months.  He may therefore continue doing so even in the Diaspora as part of the authorized Bet Din in Eretz Yisrael; so long as no suitable replacement has been found, he retains his membership in that Bet Din.

	But why didn't the Rambam makes explicit mention of this condition, that the scholar who left Israel had been a member of the Bet Din, and thus retains that membership so long as he has no equal back in the Land?  We may suggest two reasons for this omission.  Firstly, this condition is not mentioned explicitly in the Talmud, and the Rambam generally avoids stating that which the Talmud does not write explicitly.  Secondly, this condition has no practical ramifications nowadays, when we do not have the formal semikha.  And even should the semikha be reestablished by a consensus of the scholars in Israel, as the Rambam famously allows (Hilkhot Sanhedrin 4:11; commentary to Sanhedrin, chapter 1, and Berakhot, chapter 4), it would not have the ability to establish months based on the sighting of the new moon.  The High Court will be reinstated only after the arrival of the Mashiach - speedily, and in our days - as the Rambam writes in Hilkhot Melakhim (chapter 11), at which point we will obviously have no need to establish months in the Diaspora.  Furthermore, it appears to me that with regard to kiddush ha-chodesh, all the scholars who received formal semikha in Eretz Yisrael are part of that Bet Din authorized to establish months.  The Rambam alludes to this when he stresses (in 1:8) that the scholar can establish months if he received semikha in Israel.  Why must the Rambam emphasize this point; semikha cannot be granted outside Eretz Yisrael!  Clearly, he means that we consider this scholar part of the Bet Din in Eretz Yisrael merely by virtue of his having received formal ordination.  The reason why this is so, evolves from the very concept underlying the institution of semikha.  The Rambam writes in Hilkhot Sanhedrin (4:1) that semikha is about the appointment of judges.  We may thus suggest that although the members of the Bet Din are those scholars assigned to actually sit on the court, as the Rambam writes in Hilkhot Sanhedrin (1:1) - "'Shofetim' refers to the scholars assigned to sit on that court, before whom litigants come," nevertheless, all the scholars who receive semikha are considered part of the High Court.

	We find two indications that this is in fact the case.  The first emerges from the Rambam in Hilkhot Mamrim 2:2: 

"If a Bet Din issued an edict or instituted a law and established a certain practice, and the matter spread throughout Israel, and another Bet Din arose after them and sought to overturn the earlier legislation and uproot that law, edict or practice, it cannot do so unless it is greater than the earlier ones in wisdom and number.  If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot overturn its legislation, even if the reason for which the earlier ones decreed or issued [the legislation] no longer applies.  The latter ones cannot overturn [it] unless they are greater than them.  How can they be greater than them in number, if every Bet Din consists of seventy-one [judges]?  This refers to the number of scholars in that generation who agreed upon and accepted the legislation of the High Court and did not dispute it… "  

It thus emerges that the scholars of the generation constitute part of the Bet Din, and on this basis a Bet Din can be considered greater in number than its predecessors.

	The second indication arises from the Ramban's comments in his Chiddushim to Masekhet Sanhedrin 32a: 

"That which we learn… that everyone can bring evidence on behalf [of the defendant] or against [him] - it is not clear from the Gemara or early commentaries whether [this is said] with respect to the [court's] vote or only in that he is not silenced.  But it appears to me that he is counted among them even for the vote, for we learn… [in the fifth chapter of Sanhedrin], 'If one of the students said: I have evidence on his behalf, he is raised and seated among them.'  This implies that if they took a vote, he is counted as one of the judges.  And certainly, just as he is counted to vote in favor [of the defendant] in capital cases, so is he counted to vote either innocent or guilty in monetary cases."  

At the conclusion of this discussion the Ramban writes: 

"What emerges from all we have said is that one of the students who argues in favor [of the defendant] is counted among the judges for purposes of voting.  We learn from here that when three [judges] sit to hear a trial, and two of them rule in favor or against [the defendant], with one in dissent, and one or two students from the outside side with that individual [judge], that individual is not negated by the majority.  Rather, we follow the majority of the city, even though it does not consist of the majority of the judges who initially heard the trial."  

At first glance, such a notion seems untenable.  How can we include in the vote scholars from the outside, who are not members of the court?  The provision of "acharei rabim le-hatot," that we follow the majority decision, applies specifically to judges of a Bet Din!  We must therefore explain that the local scholars are also considered part of the Bet Din.  If this is correct, then we understand full well why the Rambam never mentioned the condition that this scholar in the Diaspora who left behind no equal had been part of the Bet Din authorized to perform kiddush ha-chodesh.  All the scholars in a given location are considered part of that Bet Din; certainly, a Torah leader who left behind no equal can be seen as a member of the permanent Bet Din.

	Incidentally, it appears that the Rashba disagrees with the Ramban's assertion, that we follow the majority view among all the local scholars, even though they did not participate in the legal deliberations.  In Teshuvot Ha-Rashba 2:104 (cited in the Bet Yosef, C.M. 13), he writes, "We follow the majority only when those exonerating outnumber those convicting, or those convicting outnumber those exonerating, after a deliberation among them all."  The Rashba thus requires that we count the votes of only those who participated in the debate.  This does not, however, prove that the Rashba does not accept the Ramban's position regarding the status of the local scholars as members of the Bet Din.