The Mishnah (3:7) teaches that once the judges on a case reached a conclusion, the head judge would reveal the verdict. The Aruch HaShulchan explains that this was to conceal the different opinions of the judges. The Mishnah continues that a judge is forbidden to reveal that he disagreed with the final ruling but was unfortunately the minority opinion in the case. The Mishnah appears to explain that the prohibition is based on two verses. The first from parashat Kedoshim (19:16): "do not go as a talebearer amongst your people". The second, from Mishlei (11:13): "he who gossips revels secrets." We shall try to understand the requirement of two verses.
The Tosfot Yom Tov explains that had the Mishnah only included the passuk from Kedoshim, one might have thought that the prohibition only applies if the judge shared the details in order to incite an argument. If however the judge was sharing the details with the guilty party in order that there be no animosity between them, one might think that might be permitted. Consequently, the second passuk is required to teach that simply revealing a "secret" – the position of the judges – is also covered by the prohibition talebearing.
The Tosfot Yom Tov continues that there are versions of the Mishnah that do not include the first passuk; both in the Yerushalmi and Bavli. Furthermore, the Rambam, Rif and Rosh do not cite the first passuk when teaching this law either. The Tosfot Yom Tov continues that when the Gemara comments on the Mishnah, it cites a Beraita that does include both verses. If our Mishnah also included both verses, then the Gemara's citing the Beraita would be unnecessary.
Considering the Tosfot Yom Tov's conclusion about the difference between the number of verses cited in the Mishnah and Beraita we need to probe the basis for the difference. In other words, why was one verse enough for the Mishnah but not the Beraita? When the Gemara cited the Beraita, what was it adding.
The Tur (ChM 19:2) also only cites the passuk from Mishlei when teaching the law referred to in our Mishnah. The Bach cites the Mahari Shtein who adds that it is even more obvious that it would be prohibited for anyone else to comment to the party that lost the case, that the judges were incorrect. He basis this on the first passuk (see also the Aruch HaShulchan). In other words, the first passuk teaches that it is incorrect for anyone to comment that the judges made a mistake, while the second passuk teaches that the judges themselves cannot reveal the internal positions. Considering that the law based on the first passuk is more obvious once we have learnt the law from the second passuk (and also considering that it specifically focuses on the dayanim) we can possibly understand why the version of our Mishnah omits the first passuk. Once having the derivation of the second passuk, the first one appears unnecessary.
That possibly explains the Mishnah. Why then does the Beraita include both pesukim?
One might suggest an answer based on the comment of the Ketzot, who also cites the Bach. The Ketzot however continues citing the Knesset HaGadola who explains that the prohibition is only if one went up to the party that lost and, unprompted, presented his opinion on the case. If however that party come to one for advice regarding the case, and he sees a side of the case that was missed by the judges that could result in a retraction of the ruling, then there is no issue in sharing his opinion.
We find from the Ketzot, that the first passuk can also be understood as restricting the prohibition. One might suggest, that it is for this reason the Beraita, that cites two pesukim, was necessary. The Mishnah broadened the scope of the prohibition. In other words, expressing an opinion on the case or a judge revealing the "secret" of the deliberation, even for noble intentions is prohibited. One may be left with the understanding, that there is never a context when reflecting on the ruling is permitted. Consequently, the Beraita teaches that it is prohibited only when falling under the prohibition of talebearing. In the case, where one is specifically consulted and he his opinion could revert the ruling, then there is no prohibition.
Receive our publication with an in depth article and revision questions.
Listen to the new Mishnah Shiurim by Yisrael Bankier