In the last perek of masechet Sotah we learn about laws of eglah arufah (some of which are similar to the laws of Sotah). It relates to the procedure that follows the discovery of a corpse in the country, when the murderer is not known. The pasukteaches: “Your elders and judges shall go out and measure toward the cities that are around the corpse.” (Devarim 21:2). The Mishnah (2:1)*learns that three (or five) dayanim from the Sanhedrin in the Beit HaMikdash* would came and measure to determine the closest city to the corpse, thereby establishing which city would carry out the procedure. What was the purpose for the measuring?
The Mishnah (9:2) further qualifies this by explaining that they would actually measure to the closest city that had a Beit Din of twenty-three judges. The Gemara explains that even if the corpse is found close to a city that does not have a Beit Din, the dayanim avoid that city and measure to the closest city that has one.
The Gemara (Bava Batra 23b) also discusses eglah arufah when discussing the principle that when trying to resolve a doubt and there is a conflict between rov (majority) and karov (close vicinity) we go according to rov. The directive of the Torah that “the city that is close to the corpse” carries out the procedure is raised as a difficulty. The Gemara answers that it is referring to the case where there is no other city with a larger population or where the city is isolated in the mountains. Rashi explains that it is unlikely then that the murderer had come from elsewhere.
The Tosfot (Bava Batra 23b, “be’de’leika”)*finds it difficult to reconcile the Gemara in Bava Batra with our Gemara. The Gemara there seems to suggest that the reason the closest city is chosen is because close proximity strongly suggests that the murder originated from that city. Yet our Gemara rules that we overlook even a close city, in favour of one that has a Beit Din*.
The Chatam Sofer answers that the Gemara is focused on the murdered not the murderer. As part of eglah arufa the Beit Dindeclare that “our hand did not spill the blood” meaning that we did not let him leave without an escort or without proper provisions. The last city that the victim left would have been responsible for this. It is this question that the Gemara in Bava Batra addresses – do we look to the city with the larger population or the closest one?
The Chatam Sofer explains that that discussion does not contradict our Gemara. A city without a Beit Din does not have the capability to set up the social infrastructure to support guests appropriately. The Torah therefore casts the responsibility on the Beit Din of the closest city to oversee the welfare of the surrounding area. Consequently it is the nearest Beit Din to that city that is required to make the declaration as part of eglah arufa.
The Beer Sheva cites the Gemara in Makkot that records the debate between R’ Ami and R’ Assi regarding whether a city that does not have a Beit Din brings the eglah arufa. The Tosfot there citse our Gemara that expressly states that we measure to the closest city that has a Beit Din. The Tosfot there answers that the Gemara in Makkot discusses a case where none of the nearby cites have a Beit Din so the closest city is selected. Our Gemara discusses a case where one of the nearby cities has a Beit Din.
The Beer Sheva raises a number of difficulties with the Tosfot’s answer and instead offers his own solution. He explains that everyone agrees that we measure to the closest city that has a Beit Din even if it is far away and that Beit Din performs the ceremony. The debate in Makkot is regarding whether the eglah arufa is brought (funded) from the true closest city even though it lacks a Beit Din?
Receive our publication with an in depth article and revision questions.
Listen to the new Mishnah Shiurim by Yisrael Bankier