We have an apparent problem with the statement of R' Yochanan [:יבמות מ"ו: מ"ז: ובקידושין ס"ב] that geirus requires a Beis Din of three because the pasuk characterizes the process as "משפט", judgment, that necessitates 3 judges. What is R' Yochanan the Amora revealing to us?? We already have a braisa where Rebbi Yehuda the Tanna already told us this information [.מ"ז]. It is ooold news??!
Also, Tosfos [:ד"ה משפט מ"ו] say that the "משפט" referred to by the Gemara is the pasuk "ושפטתם צדק בין איש ובין אחיו ובין גרו" or possibly "משפט אחד יהיה לכם ולגר". Why was Tosfos looking for psukim when Rebbi Yehuda was explicit that the pasuk is "ושפטתם צדק"? Why did Tosfos suggest that Rav Yochanan was referring to the pasuk "משפט אחד"? And to make things "worse", Rashi in Kiddushin [62b] quotes the pasuk "משפט אחד"!! [See Keren Orah and Chemdas Shlomo 29].
And like an "over the top" צריך עיון is that the Ramban [46b] writes that the Halacha of R' Yochanan is really הלכה למשה מסיני and the pasuk is but an asmachta. But Rebbi Yehuda [47b] is quite clear that the source is the pasuk and not הלמ"מ. As it says "ושפטתם צדק - מכאן אמר רבי יהודה". Sounds a LOT like he derives the law from the pasuk and not הלכה למשה מסיני.
Oh-me-oh-my!!!
So being against the wall as we are, we are COMPELLED to say that R' Yochanan and R' Yehuda are talking about 2 different things because otherwise how can R' Yochanan teach us independently what is already explicit in the braisa?! R' Yehuda is talking about geirus that requires the presence of the Beis Din as learned from the pasuk of "ושפטתם צדק וכו' ובין גרו". Just as we need a Beis Din for tzedek [justice], we also need one for geirus. R' Yochanan is telling us something else - that geirus is a משפט בחפצא, meaning that it is inherently defined as a משפט and as a result a בית דין is required because you can't have משפט without a בית דין. The nafka minah is whether you need 3 judges or one is enough. The pasuk of "משפט אחד" used by R' Yochanan teaches us that geirus is משפט and if there is a doubt whether it is the משפט of גזילות [three] or הלוואות [one] then Tosfos taught us [Kiddushin 62b] that if we can equate לקולא or לחומרא then we go לחומרא [sort of a Brisker-esque Tosfos...] and therefore the משפט will require three like גזילות. However the pasuk of ושפטתם צדק teaches that the בית דין should perform the geirus and it can't be done without them. So as long as there is a שם בית דין that is enough, even if the בית דין consists of one.
The Ohr Sameach [איסורי ביאה י"ג ו] writes that since a Ben Noach is judged with one judge and when a ger comes before us to convert he is still a Ben Noach, one judge constitutes a valid Beis Din for him [see there]. However this all applies to the din that a בית דין is necessary and teaches that one judge is sufficient. But when it comes to the חפצא of משפט it is clear that we require a משפט that pertains to Jews and not Bnei Noach. משפט of geirus relates to the משפט of Jews and that means three judges after the היקש to גזילות.
Ont the other hand, if the pasuk is talking about "משפט" which is the geirus per se we can say that it is talking about the primary and central aspect of geirus which is קבלת המצוות [as the Taz writes 268-9] and not about מילה and טבילה. While the pasuk of ושפטתם צדק which is talking about the מעשה גירות in the בית דין includes מילה and טבילה. So we need both the statements of Rav Yochanan and of R' Yehuda. The latter is talking about the fact that we require a בי"ד and that refers to the entire geirus and thus one judge will suffice [because he has a שם בית דין as we see by בני נח] and R' Yochanan is teaching us that there is a חלות דין of משפט for which we need three judges. However, that is only for the קבלת מצוות. Also מדרבנן there is a דין to make the entire geirus a משפט and in front of 3 and that is מדרבנן as Tosfos [47a] said. From the the Shulchan Aruch [268-3] we see that Tosfos holds not like the Rif and if there is only one person on the Beis Din the ger is permitted to marry a Jew because the obligation of 3 is only מדרבנן. Now we understand the opinion of Tosfos as explained by the Shach that one judge is necessary because as we said the pasuk of R' Yehuda [ושפטתם] is referring to the entire geirus and only if he converts in complete privacy it is not effective but in front of one judge it is. When Tosfos said you need three judges for קבלת מצוות [Kiddushin 62b], that was based on the pasuk of R' Yochanan and these are two distinct dinim, as we explained.
WHOA! Fireworks!! 💥😀
