Shulchan Arukh in English

[If] one of the litigants said, Cf. supra § 3, 1, notes. Furthermore, this ruling has reference only to a case where the litigants insist on resorting to law, but where they submit their case to arbitration, and each party chooses one Judge, the selected Judges cannot nominate a third Judge without the consent of the litigants, the reason being that arbitration does not require three — ShaK, N.B. cited in P.Tesh. Nowadays it is the accepted custom that even in a case of strict law the two litigants may choose the third Judge — A.H. 'Let So-and-so act as Judge for me,' and his fellow-litigant said, Cf. supra § 3, 1, notes. Furthermore, this ruling has reference only to a case where the litigants insist on resorting to law, but where they submit their case to arbitration, and each party chooses one Judge, the selected Judges cannot nominate a third Judge without the consent of the litigants, the reason being that arbitration does not require three — ShaK, N.B. cited in P.Tesh. Nowadays it is the accepted custom that even in a case of strict law the two litigants may choose the third Judge — A.H. 'Let So-and-so act as Judge for me,' — then these two Judges each of whom were chosen respectively by the litigants nominate a third Judge; VII, 1 according to reading of SeMaG (v. also Kesef Mishneh ibid.; B.Yos. a.l.). Derived from San. 23a in accord with the Sages. If the two chosen Judges are related to each other, the defendant has the advantage to compel the plaintiff to select another Judge ( Isserles in Resp .) — R.A.Eger. and it is not necessary that the third Judge [should be nominated] with the consent of the litigants; Derived from San. ibid .: ‘No one disagrees that the (third) Judge must have the consent of his colleagues; they (R. Meir and the Sages) merely differ whether the consent of the litigants is (also) required. R. Meir holds that the consent of the litigants is also necessary; whereas the Sages maintain: only that of the Judges is necessary but not that of the litigants.’ The law follows the opinion of the Sages. Should the defendant agree that the selection of the third Judge should also be made with the consent of the litigants, it is permissible (v. Bertinoro San. ibid., and cf. comments of Tosaf. Yom Tob ) — P.Tesh. And even according to Lebush that such a procedure will delay the execution of justice ( עינוי הדין ) for the defendant may always disagree with the plaintiff’s choice, — yet, if the plaintiff agrees that the third Judge be chosen with the consent of the contending parties, Lebush will also agree that it is permissible — P.Tesh. and all three of them [the Judges] try them [the litigants], in accord with San. ibid. that the meaning of the words, ‘Each party chooses one ’ refers not to a Court of Law but to one Judge. Hence, each party chooses one Judge and they jointly nominate a third. for in this wise a true judgment will be rendered..: ‘Since each litigant chooses a Judge and jointly they nominate a third, a true judgment will be rendered.’ Even if the one [Judge] whom the litigant chose was a distinguished and ordained scholar, he cannot compel his fellow-litigant that he [the latter] be tried by this [distinguished Judge], but he [the fellow-litigant] too, may choose whomever he desires [to act as Judge on his behalf]. The Judge must, however, be versed in law or must be a recognized Mumḥeh. Otherwise, he may be rejected ( B.Yos. citing R. Yeruḥam ) — ShaK. This ruling is derived from San. ibid .: ‘R. Papa stated: It has reference even to Mumḥin (i.e., the debtor or defendant may reject the Judge chosen by the creditor or plaintiff even if he is a Mumḥeh ), e.g., the Courts of R. Huna and R. Ḥisda (their Courts were close to each other), for he (the defendant) can say: Am I troubling you?’ This applies where one litigant persuaded the Mumḥeh to act in the capacity of an ‘ arbiter ’ ( בורר ), but if he said to his fellow-litigant, ‘Come, let us have our case tried before the city Sage, the latter is not designated an ‘ arbiter ’ and is the Judge for both parties — M.E. Although the law is that an individual Mumḥeh may judge alone against the will of the defendant, it applies only where the latter refuses to appear for trial, but where he states, ‘I wish to select another Judge too, he is obeyed — BaḤ, ShaK contra M.E. Gloss : For since each party chooses a Judge, the litigants obey them, and the Judges, too, will each examine [ points ] in favour of the one who chose him whereever it is possible [ to do so ] from the legal point of view , San. ibid. s.v. יצא and Asheri. Cf. also Y. San. III, 1(21a): ‘Because he has chosen him as arbiter, he will advocate his (client’s) claim.’ Since they both feel that their rights are equally secure. and the third [ Judge ] hears the [ legal ] arguments of both of them [ and compromises between them ] and [ thus together ] they render a true verdict . — G. All the laws of Judges apply equally in the case of arbiters — P.Tesh. If they [ the two Judges ] cannot reach an agreement in nominating the third Judge , [ then ] the town leaders appoint for them a third [ Judge ]. And if there are no leaders in the town , [ then ] the plaintiff may go before three [ Judges ] and they compel the defendant to be tried before them . to San. ibid. For just as in the case of a Court of three or one authoritative Judge, the law is that they may try cases even against the will of the defendant where he refuses to appear before the Court (cf. San. 5a, Tosaf. s.v. דן ), so too, the leaders or the representatives of the town enjoy the same status (v. supra § 2 and notes). And likewise if the defendant deliberately selects a Judge who is unworthy in order that he sit in judgment with a worthy Judge, they may compel him to be tried before three Judges as has been explained supra § 3 , [ par. 4 ], or that he select a worthy Judge . — G. San. ibid .: ‘The pureminded of Jerusalem used to act thus … they would not sit in judgment unless they knew who was to sit with them.’ But if the plaintiff deliberately chooses an unworthy Judge, the defendant may say to him, ‘I will not answer your pleas until you choose a worthy Judge’ — M.E. However, if the two arbiters can reach an harmonious decision [ in the case ], some say that they are not required to nominate a third [ Judge ]. s. 11 — G. Since the parties accepted them, it is sufficient. And where the contesting parties agreed to be tried by them, the law is that even an unauthoritative Judge may try the case (v. San. 5a, Tosaf. s.v. דן ). Cf. also San. 6a. Hence, it follows that even in the first instance where the Judge was accepted, his judgment is valid, and much more so where two Judges were accepted, each by one of the parties. Consequently, we assume that the intention of the litigants is that if the two selected Judges reach a harmonious decision, there is no need for them to choose a third Judge. Ta Z (followed by A.H .) disagrees with this ruling. Some say that if the defendant states that he will select two [ Judges ] and [ that ] the plaintiff should likewise select two [ Judges ], and they [ the selected Judges ] will nominate a fifth [ Judge ], — he is permitted to do so, for as long as there is a greater number of Judges, a true judgment will be rendered . to Deut. I, 12 — G. Cf. Y. San. III, 3(21a).

If both parties to a lawsuit are stubborn, one saying, 'Let us go to law here,' and the other saying, 'Let us go to the Supreme Court of Law,' VI, 6 adds: ‘Lest these Judges err and exact payment illegally.’ they compel him and he attends the Court in his home town. Derived from San. 31b: ‘R. Safra said on the authority of R. Joḥanan: If two litigants are in obdurate dissension regarding (the venue of) a lawsuit, one saying, Let us go to law here, and the other saying, Let us go to the place of Assembly, they compel him (the one who demands to go to the place of Assembly) and he attends the Court in his home town.’ According to Maim. (Yad ibid .) followed here by Caro no distinction is made between the Supreme Court of Law ( Beth Din ha-Gadol ) and the place of Assembly ( Beth ha-Wa‘ad, a meeting place for scholars). Tosaf. (B.K. 112b, s.v. מצי ); Asheri; Tur and RaShaL state that this ruling has reference only to the place of Assembly, viz., that only when the plaintiff demands of the defendant to go to the place of Assembly, the latter must submit but not if the defendant demands it (even if he offers to defray the travelling expenses. Thus N ). However, if the defendant demands to have the case tried by the Supreme Court of Law, and needless to say if the plaintiff makes this demand, he is obeyed. Cf. also Isserles anon — M.E., ShaK. Cf. supra § 3, 1, n. 11 and B.K. 112b. And if he stated, 'Write down the reasons for your verdict and give [them] to me, for you may have erred,' — they write [them] down and give [them] to him Derived from San. ibid .: ‘If he (the litigant who was compelled to attend Court in the plaintiff’s home town) stated: Write down the reasons for your decision and give them to me (in order to establish the legality of the verdict), they write them down and give him the document.’ Only the arguments of the litigants and the verdict are recorded. For only when the litigant doubts the impartiality of the Judge, the latter must inform him the grounds of his verdict (B.M. 69a-b). , infra par. 4, Gloss. The Court must state in the written verdict that they give permission to examine the verdict. Otherwise, it is forbidden to judge a case where the verdict had already been given by others because of the principle that ‘one Court of Law is not careful in its examination of a case already tried by another Court of Law’ ( בי דינא בתר בי דינא לא דייקא ), v., Yeb. 106a; B.B. 138b: ‘We are not afraid of (i.e., we do not provide against) an erring Court of Law.’ Needless to say that a written verdict is given only by a smaller Court. The reason why Isserles does not explain this here (viz., that only the arguments and the verdict are recorded) is simply because here we deal with a case where one was compelled to attend the local Court. Hence, it is understood that the defendant has a right to ask for this document — M.E. However, where the defendant was not compelled to be tried, but appeared willingly, then even a smaller Court is not required to give the verdict to the litigant in writing even for the purpose of referring the case to the Supreme Court of Law — A.H. and afterwards they exact payment from him [in accordance with their verdict]. par. 4, Gloss and D.M. a.l. — M.E. Cf. B.B. 41b: ‘R. Kahana retorted: I can bring you a letter from the West (i.e., the Land of Israel, from the Supreme Court) that the Halachah does not rest with R. Simeon b. Eleazar. Said R. Judah to him: (My verdict stands) until you produce it.’ Thus we see that the verdict is enforced immediately. If A and B appeared for trial and the Judge required B to take an oath in order to disprove A ’s claim, whereupon B demands that the Judge give him a document stating the grounds on which he is required to take an oath, the law is that B is legally justified in his demand. Hence, they give him the document and exact payment from him forthwith. Needless to say that we deal here with a case where the defendant was compelled to appear in the local Court — P.Tesh. If it was necessary to consult the Supreme Court of Law, they set down [their inquiry] in writing and send it on and seek advice [from them], § 13, n. 28. This means that even if the members of the local Court are unversed in the laws of adjudication and they must consult the Supreme Court, nevertheless, the defendant cannot argue that since they are unversed in the laws and in order to avoid unnecessary expenses in sending messengers to the Supreme Court, the litigants should go directly to the Supreme Court — M.E. and they [the inquiring Court of Law] try them [the litigants] in their own town according to the [ruling contained] in the document of the Supreme Court of Law, § 13, 6, n. 15. and both litigants pay the messenger's fee. Gloss : However, if one of the litigants or the Judges desires to send [ the inquiry ] to a distant country while there is a scholar close by them who is worthy to try the case, — [ then ] they send [ the inquiry ] to the one close by, although the one who is at a distance is a greater scholar, for he [ the litigant ] has no authority to be the cause of a loss to his [ fellow -] litigant, [ viz .,] to increase the fee for the message [ dispatched ], and so much the more if there is another scholar in their town who is worthy to adjudicate [ the case ]. to San. III end — G. Derived from San. 23a in accord with R. Papa’s interpretation (v. text supra § 13, n. 6) according to which the debtor must not put the creditor to additional trouble (and similarly additional expenses. , Be’er Eliyahu a.l.) and likewise in the case of two litigants where there is a local authority available. Cf. also Y. San. III, 2(21a): ‘R. Eleazar stated: If one (litigant) demands to attend Court in Tiberias and the other (litigant) demands to be tried in Sepphoris (where there was a more renowned Court), we comply with the request of the one (who wishes to be tried) in Tiberias … R. La said … this (has reference only to a case) where they dwell in the same city (according to others ‘the same distance’ from both cities), i.e., from here (the locality of the litigant) to here (Tiberias) there are nine Mils and from here (the locality of the other litigant) to here (Sepphoris) there are (also) nine (Thus version of N.Yos .) Mils .’ Hence, if Tiberias would be farther away than Sepphoris the litigant cannot be compelled to be tried in Tiberias despite the fact that it possesses a more renowned Court of Law. If two Scholars are close by at an equal [ distance ], we accept as authority the greater one . to San. III beg. — G. Derived from Y. San. ibid. , previous note. When does this apply? — In connection with other laws, [viz.,] where one [litigant] is a claimant and the other [litigant] is [also] a claimant, or where the creditor says, Cur. edd. have ‘said.’ 'Let us attend Court here,' and the debtor says, 'Let us go to the Supreme Court of Law;' and Nethiboth contra ShaK who on the authority of BaḤ rejects this and rules that the creditor may compel the debtor to be tried by the local Court even if the creditor has to be in the vicinity of the Supreme Court in any case. The present ruling is derived from San. 31b: ‘When R. Dimi arrived (from the Land of Israel), he stated on the authority of R. Joḥanan: One who forces his fellow to stand with him for trial (Thus Yad Ramah ), and one of them (the more powerful one) says, Let us attend Court here, while the other says, Let us go to the place of Assembly (v. supra n. 3), he is compelled to go to the place of Assembly. R. Eleazar said in his presence, Rabbi! One who has a claim against his neighbour in the amount of a Maneh, must he expend another Maneh in addition to the (first) Maneh (in travelling expenses)? (Certainly not), but he is compelled to be tried (by the local Court) in his (the creditor’s home town.’ Ibid .: ‘Amemar said: The law is that he (the plaintiff) is compelled to go to the place of Assembly. Said R. Ashi to him: Did not R. Eleazar say, He (the defendant) must attend Court in his (the plaintiff’s) home town? — This applies only where the debtor demands of the creditor (to be tried at the place of Assembly); but if the creditor (demands this, the debtor must yield, because) ‘The borrower is servant to the lender (Prov. XXII, 7).’ We thus see that only where the reason ‘the borrower is servant to the lender’ applies that we compel the debtor to go to the place of Assembly if such is the creditor’s wish; but where this reason is not applicable, e.g., where both litigants are claimants, they are tried in the local Court. This follows Maim. and Caro ’s interpretation of place of Assembly (v. supra n. 3). but if the creditor said, 'Let us go to the Supreme Court of Law,' — they compel the debtor and he goes up with him [the creditor]..). And this applies both to a claim regarding a loan, robbery or damages, since they are both claimants concerning aught which is not in the possession of either of them. In short, it is not firmly established that one of them is a defendant ( נתבע ), but both are claimants ( זה טוען וזה טוען ), in which case we do not yield to the demands made by the one who says, ‘Let us be tried by the Supreme Court.’ However, where the litigants fall into the category of a claimant ( תובע ) and a defendant ( נתבע ), then we submit to the demand of the claimant — Ta Z. Cf. M.E. Likewise, if one party claimed that one injured or robbed him and the claimant wishes to go up [and have the case tried by the Supreme Court of Law], [then] the Court of Law that is in his town compels the defendant to go up with him, and so too, in all analogous cases. VI, 7. For in these cases too, the defendant is a servant of the claimant until he pays for the damages or establishes that he was not the cause of the damages. Cf. San. 31b regarding the message that was sent to Mar ‘Ukba in Babylon by the Court of Israel with respect to ‘Ukban, the Babylonian, who complained that his brother Jeremiah wronged him, and instructions were given to ‘Ukban to try him in Babylon, and should the latter not accept the verdict, to see to it that he appears before the Court in Tiberias. Thus we see that not only in the case of a creditor and debtor may we compel the defendant to be tried in the Land of Israel before the Supreme Court, but also in all other cases of injury. Thus also Ket. 16b, Tosaf. s.v. כותבין ; Asheri to San. ibid. Cf. Ket. 41b; B.K. 15b. N.Yos., however, holds that the principle ‘ the borrower is servant etc .,’ applies only to loans but not to other types of injury. [Furthermore,] when does this apply? — When the one robbed or the one who was injured or the creditor produce witnesses or proof [to substantiate their claim], but [where the claimant puts forth] an unfounded claim, we do not require the defendant to leave at all save that he takes an oath and is free [from payment]. does not apply because we have no proof that he is a borrower. So too, is the law nowadays when no Supreme Court of Law exists there. VI, 9. Derived from San. 32b: ‘Our Rabbis taught: Justice, justice shalt thou follow (Deut. XVI, 20) means, Follow a renowned Court of Law, e.g., (follow) R. Eliezer (b. Hyrkanus) to Lydda, R. Joḥanan b. Zakkai to Beror Hail.’ Some say that an eminent Court of Law in every generation according to whatever standing it may have, is regarded as the Supreme Court of Law . — G. Isserles informs us here that even according to Maim. who makes no distinction between the Supreme Court of Law and the place of Assembly (v. supra n. 3) refers in his ruling to localities in the same province, because nowadays we have no power to compel one to leave one province and be tried in another province as was the case when the Supreme Court was in existence. This follows from the fact that Maim. does not employ the term מדינות (provinces) but rather מקומות (localities). Hence, Isserles adduces a dissenting opinion ( Asheri, Tur ) that even nowadays a renowned Court of Law ( בית דין חשוב ) has the same authority as the ancient Supreme Court. Consequently, one may be compelled to be tried in another province — Ta Z. However, if there are localities in that province — G. Isserles informs us here that even according to Maim. who makes no distinction between the Supreme Court of Law and the place of Assembly (v. supra n. 3) refers in his ruling to localities in the same province, because nowadays we have no power to compel one to leave one province and be tried in another province as was the case when the Supreme Court was in existence. This follows from the fact that Maim. does not employ the term מדינות (provinces) but rather מקומות (localities). Hence, Isserles adduces a dissenting opinion ( Asheri, Tur ) that even nowadays a renowned Court of Law ( בית דין חשוב ) has the same authority as the ancient Supreme Court. Consequently, one may be compelled to be tried in another province — Ta Z. wherein there are distinguished Scholars recognized as authorities by the public, and [there are also] localities wherein there are disciples who are not [as distinguished] as they, — [then] if the creditor stated, 'Let us go to a certain locality in a certain country to So-and-so, the distinguished personage, and attend Court before him, — [the law is that] we may compel the debtor [to submit to the creditor's demand] and he goes with him. Gloss : [ Provided ] if the claimant produces witnesses or proof [ to substantiate his claim ] interpretation (v. Caro supra ) that just as in the times of the Supreme Court of Law if the claimant had witnesses or other substantial evidence in which case he could compel the defendant to go with him to the Supreme Court of Law, so too, nowadays any authoritative Court of Law falls into the same category. Hence, the claimant may compel the defendant to be tried there — M.E. or , supra § 8, n. 2. it appears to the Court in his home town that there is substance in his claims, but otherwise he [ the defendant ] is not compelled to go with him . — G. And some say that [ with respect to ] claims put forth [ by contesting parties ], [ viz., ] 'Let us attend the Supreme Court of Law,' there is no difference between a claimant and a defendant, and [ the law is that ] each one [ of the litigants ] can compel his fellow [- litigant ] to go with him . on the authority of R. Tam. — G. , supra n. 3. All this is [ applicable ] from the legal point of view, but nowadays it is already the adopted custom that as long as there is a Court of Law in town, one [ litigant ] cannot compel his fellow [- litigant ] to go with him to another Court of Law , Rt. 21 — G. Those who have burial plots reserved in that city are treated as coming under the jurisdiction of the local Court of Law ( Isserlein ) — M.E. for now we have no Supreme Court of Law or House of Assembly . § 5, n. 14. Therefore , [ the defendant ] cannot put him off; but he [ the defendant ] can put him off , [ i.e., ] not to attend Court with him [ the claimant ] until the third day . , supra § 11, 1 and notes. However, they choose the Judges forthwith . But a [ transient ] lodger who makes a claim against the townspeople, or two [ transient ] lodgers [ who sue each other, — the law is that ] one must attend Court with him forthwith and one cannot put him off . on the authority of R. Samson of Sens — G. , supra n. 26. , however, N to Deut. XIV, 18 who states that if the two litigants are from another city, they can each demand to be tried before the Court of Law in their own city which contradicts the present ruling. It seems therefore, that in the present ruling we deal with a case of two guests (transient lodgers) from two different cities. Hence, if we do not compel them to be tried here, it will be difficult for the plaintiff to find the defendant later; while N deals with two litigants who are both from the same city where this problem does not arise — P.Tesh . Likewise, a townsman who makes a claim against a [ transient ] lodger , — [ the law is that ] wherever he finds him and there is a Court of Law there, he [ the townsman ] may force him [ the lodger ] to attend Court in that place . Rt. 14 — G. All this is [ applicable ] when there is a Court of Law [ available ] in their home town, but if there is no Court of Law [ available ] there, each one [ of the litigants ] can force his fellow [- litigant ] to go with him to a Court of Law to be tried with him . to San. III end and Decisions of Isserlein s. 65 — G. The claimant must go after the defendant if the latter is in another city, although in the claimant's home town the Court of Law is more eminent , Rt. 1 — G. Derived from B.K. 46b: ‘R. Samuel b. Naḥmani said: Whence do we derive that on him (the claimant) that would exact aught from his fellow lies the burden of proof ( onus probandi )? For it is said: If any man have any matter to do, let him come unto them (Ex. XXIV, 14), (which implies): Let him bring proof before them. But R. Ashi objected: Do we require a Scriptural verse to inform us this? Is this not founded on reason that he who feels sick goes to the physician?’ Likewise, in the present ruling the claimant who ‘has pains’ must go to the city of the defendant. and even [ if ] the defendant had money in [ the form of a ] bailment in the claimant's home town or in another town, unless he [ the claimant ] can retain This, of course, means that the claimant must be able to show that he has a right to seize the money, e.g., where he will not be able to take the defendant to law later or where there are other logical reasons for going through with the seizure (v. infra § 73, 10). If after the money was seized the defendant demands his money, he must then go to law with the claimant in the local Court where the money was seized — M.E. his [ the defendant's ] money in his home town , [ and if so ,] it is then necessary to inform the defendant thereof and consequently, he [ the defendant ] must attend Court in the locality wherein his money [ is found ]. s. 305 and in Decisions of same s. 62 — G. MaHaRIK writes that the custom has spread to seize the defendant’s money wherever it may be. Accordingly, it seems that the claimant may sue the defendant wherever he seized the money. Cf., however, Isserles infra § 73, 10 whence this inference does not follow — M.E. Although the defendant now becomes a claimant, nevertheless, he cannot appoint a mandatory ( מורשה ) to act on his behalf — P.Tesh. , infra § 73 [ wherein ] I wrote when [ it is possible that ] he [ the claimant ] can retain This, of course, means that the claimant must be able to show that he has a right to seize the money, e.g., where he will not be able to take the defendant to law later or where there are other logical reasons for going through with the seizure (v. infra § 73, 10). If after the money was seized the defendant demands his money, he must then go to law with the claimant in the local Court where the money was seized — M.E. his [ the defendant's ] money. A father [ or mother ] who has a claim against his [ or her ] son , [ the law is that ] the son, although he is the defendant, must go after his father [ or mother ] as has been explained . This applies even if the father has a claim against another person in the same locality where his son lives. The travelling expenses, however, must be paid by the father (Y.D. ibid .). Cf. Kid. 31a and Tosaf. s.v. וטורדו . The same ruling applies to a distinguised teacher ( רב מובהק ) and his disciple — P.Teah. A wealthy individual who is known as a stern person n. 15 and § 13, n. 27 end. This applies equally whether he is the plaintiff or the defendant and despite the fact that the members of the local Court are very learned, — for we apprehend that because of his influential position they will not render an impartial verdict. However, if he is not a powerful person but is only highly respected in his city on account of his wealth or wisdom and his fellow-litigant demands to be tried in another city, then it depends upon the discretion of the Judges, viz., that if they really feel that they might be partial towards him, he may be compelled to attend Court in another city; if not, they try him here — P.Tesh., A.H. in his home town, is taken out to be tried in another city, although the Court of Law in his home town is more eminent . Z e’eb s. 418 — G.

The Judge is required to give priority to the adjudication of a lawsuit that comes before him first [in order]; (Deut. I, 17). Resh Lakish stated: (This verse intimates) that a lawsuit of a Perutah should be regarded by you as equally important as one involving a hundred Maneh. For what practical issue is this law stated? If it is to insist that we study the case carefully, is this not obvious! Rather, it is to give preference to the case if it is first in order.’ ‘A lawsuit that comes before him first ( in order ),’ means that the litigant pleaded his case first and the Judge prepared himself to listen to his case although the claim may have been filed in Court later — M.E. but he must give priority to a lawsuit of a scholar Derived from Sheb. 30a: ‘R. ‘Ulla, the son of R. Elai had a case before R. Naḥman. R. Joseph sent (a communication) to him (R. Naḥman): Our friend ‘Ulla is a fellowman (i.e., a colleague, a scholar) in Torah and precepts. Said (R. Naḥman): Why did he send (this communication) to me? (Did he mean) that I should favour him in Court? (Certainly not!) Then he (R. Naḥman) said: (Perhaps he meant) that I should decide his case first (so as not to detain him); or, (with respect to) discretionary judgment (i.e., to which of the claimants to adjudicate the claim in a case that does not depend on witnesses or an oath but rather on the discretion of the Judges. R. Joseph, therefore suggested that if ‘Ulla’s case was of such a nature, then because he was a scholar he should give preference to his case).’ The latter alternative possibility is omitted here because we rule today that in matters pertaining to the descretion of the Judges ( שודא דדייני ) the Judge must be a Mumḥeh (v. Glos.). , infra § 240, 3, Gloss and Ket. 94b, Tosaf. s.v. אימיה . even if it comes last [in order]. s.v. למישרי because the positive precept of showing respect for the Torah takes precedence over the positive precept Ye shall hear the small and the great alike. So too, is he [the Judge] religiously dutibound to seek whatever [points] he can [find] in his [the scholar's] favour. s.v. למאי . The majority of Codifiers rule that nowadays, too, a scholar enjoys this privilige — P.Tesh., A.H. a.o. Gloss : And if the scholar himself [ appears ] before the Judges , [ then ] even [ if ] they had already begun [ to adjudicate ] another lawsuit, they should judge him [ the scholar ] first, so that he should not be disturbed from his studies . However, if his [ the scholar's ] relative appeared for trial , [ then ] if they had [ already ] begun [ to adjudicate ] another lawsuit, there is no need to interrupt [ the adjudication ]; but if they had not [ begun ], they [ the Judges ] must judge him [ the relative ] first on account of showing respect for the scholar . on the authority of RITBA — G. , Ket. 106a whence we derive that one must also give priority to the lawsuit of a scholar’s relative. Hence, the law is that when the scholar himself appears in Court, or sends a mandatory to replace him, or informs the Court of Law that he is sending his relative to be tried, although the latter’s case has nothing to do with the scholar, we give priority to the scholar or his relative. However, if the scholar’s relative came with a lawsuit and the scholar did not inform the Court concerning his relative’s case, he has no priority rights, for in this case we are not obliged to show respect for the scholar’s relative save in the case of the scholar’s wife who enjoys the same privileges as her husband — A.H.

[If] one of the litigants said, '[Give me an extension of time because] I can produce witnesses,' they allow him thirty days, par. 2), provided the property of the defendant depreciates in value (i.e., where he must sell his estate at a high price and should there be any delay in the settlement of his counter-claim, this opportunity would not present itself later); but if, as a result of the postponement, the defendant’s property does not depreciate in value, we allow the claimant an unlimited extension of time. Should, however, the claimant not state that he can verify the matter were he to be given more time, and the property of the defendant depreciates in value, the law is that even the thirty days are not given — M.E. Cf. infra § 24. The extension of thirty days is given to people in general, but if it is definitely knows that the litigant is a powerful person who defies the law, v. infra § 98, 4 — M.E. and after thirty days [if no witnesses were produced by him], they issue the verdict, and he is obliged to make payment . to San. III end — G. Or if the defendant is willing to take an oath and thus be exempt he may do so. Cf. also supra § 14, If, however, he produces them [the witnesses] later, it [the Court] can upset the verdict. § 87, 30. If it is well known to the Court of Law that So-and-so are witnesses in the matter but they have moved far away, he is given time until he can produce [them]. in Resp. Derived from B.K. 46b: ‘R. Naḥman stated on the authority of Rabbah b. Abbuha: Whence do we know that the Court should attend to the first claimant (i.e., when A brought legal proceedings against B [and according to some versions of Rashi, A has witnesses or a document substantiating his claim, so that B cannot say that he paid] and the latter made a counter-claim against A. Thus Rashi. Tosaf. [according to one interpretation] s.v. שאין , explain as follows. After A instituted an action against B, the latter stated that there were witnesses available at the time of the act who could corroborate his counter-claim, and we deal here with a case where the Court also knows that witnesses were available at the time of the act. Consequently, were it not for the Biblical text [v. anon] we might have said that under these circumstances the Court should give him ample time until he produces the witnesses. Therefore, we are informed that this is not so, but we give prior consideration to A ’s claim)? — For it is said: If any man have any matters to do, let him come unto them (Ex. XXIV, 14), (i.e.,) let him cause his matters to come (first) before them.’ Tosaf. ibid. (according to a second interpretation) explain that we deal here with a case where A claims that B injured him, and B advances a counter-claim, in which case the law is that A ’s claim is given prior consideration even if B states that he can produce witnesses in a day or two — because no extension of time is given in the case of injury (B.K. 91a). Tosaf. accept the second interpretation, viz., that we deal here with cases of injury. Consequently, the above verse refers only to cases of injury. Hence, according to the first interpretation of Tosaf. to which the above verse does not apply, B would be given time until he can produce his witnesses. This is the source of Caro ’s text on the authority of Asheri. Thus W.G. , Be’er Eliyahu. Likewise if it is known to the Court of Law that he can verify his statements within the thirty [ days ], they do not give him [ additional ] time for nothing . on the authority of RITBA — G. , B.M. 118a, Tosaf. s.v. זמן end. This ruling means that even where no loss would be sustained by the fellow-litigant were we to give the claimant an extension of time. Even if we are not aware whether he deliberately wishes to postpone the case for the present or not, but we know that his opponent suffers a loss thereby, the law is that he must produce evidence within thirty days — M.E., ShaK. , infra § 98, 4 .

In righteousness shalt thou judge thy neighbour.' What is considered righteousness of the Law? — It means to regard the two litigants as equals in every respect, [viz., that] one should not be permitted to speak as long as he needs and the other be told, 'Make your speech brief;' XXI, Derived from Sheb. 30a: ‘Our Rabbis taught: In righteousness shalt thou judge thy neighbour (intimates) that one of the litigants should not sit and the other stand; that one be not permitted to speak as long as he needs and the other be told, Make your speech brief.’ In Y. San. III, 9(21c); Y. Sheb. IV, 1(35b) this is derived from Deut. XIX, 17: Then the two men, between whom the controversy is etc.,’ since men means at least two, consequently, two is superfluous (in addition to the fact that there are suits involving more than two litigants), but it teaches that the litigants be treated as two equals. It would likewise be forbidden even if the Judge were to say only to one of the litigants, ‘Make your speech brief,’ and not give the other litigant instructions to speak at length. However, he may say to both, ‘Make your speech brief or long — BaḤ, M.E., ShaK, A.H. [that] one should not be favourable to one [litigant] and speak soft words to him, and severe to the other [litigant] and speak harsh words to him. Derived from Tosef(Z). Sanhedrin VI, 2; Y. Sheb. IV, 1(35b); Y. Yoma VI, 1(43b): ‘He (the Judge) should not be forbearing ( מאריך פנים ) towards one of the litigants, nor severe (Tosef. has מעיין ‘investigative;’ Y. has מעיז פנים ‘insolent’) towards the other, for it is written, In righteousness shalt thou judge thy neighbour .’ Cf. also Ket. 46a: ‘That text ( Thou shalt not go up and down as a talebearer among thy people — Lev. XIX, 16) is a warning to the Court not to be lenient with one (litigant) and severe to the other.’ If one of them is wearing expensive garments and the other is wearing shabby garments, they [the Judges] should say to the one who is well dressed, 'Either dress him like you, or dress like him.' XXI, 2. Derived from Sheb. 31a. , text supra § 14, n. 40. Nowadays we are not particular about this — RaShaL, M.E., ShaK a.o. Nor should one [litigant] sit and the other stand, but both should stand. n. 2. According to Tosef(Z). ibid .: ‘The Judge should not make one stand ( מעמיד ) and the other sit ( מושיב ),’ whence it follows that if one sits down and the other remains standing of their own accord, it would be permissible — BaḤ. This is however, rejected by Keneseth ha-Gedolah — P.Tesh. If, however, the Court of Law desires to permit them both to sit, they may do so. in accord with R. Judah: ‘Our Rabbis taught: And the two men shall stand (Deut. XIX, 17): it is a religious duty that the litigants stand. R. Judah stated: I heard that if they (the Judges) desire to permit them both to sit, they may do so.’ Although R. Judah represents an individual opinion and we would ordinarily rule in accordance with the Rabbis who represent the majority, nevertheless, since the second Baraitha (v. supra n. 2) and all the cases cited in Sheb. 30a,b harmonize with R. Judah’s view, the law rests with him. The litigants, however, are not permitted to sit down of their own accord, and if they did so, the Judge must ask them to rise, and subsequently, if they desire to permit them to sit, they may do so. According to this explanation it is understandable why King Jannai who was summoned to be present during the trial of his slave who killed a man (v. San. 19a) was told by Simeon b. Shetaḥ when the latter noticed that Jannai sat down after he arrived at Court, ‘Stand on your feet King Jannai and let the witnesses offer testimony against you’ (v. San. ibid., Tosaf. s.v. ינאי ; Sheb. 30a, Tosaf. s.v. שאם who point out a difficulty which is removed by this explanation) — P.Tesh. Nor should one [litigant] sit on a higher level and the other on a lower level, but one next to the other. XXI, 3. Cf. Tanḥ(B). Shofetim VI to Deut. XVI, 19: Thou shalt not respect persons : ‘(This text) is a warning to the Nasi not to seat one who is worthy to be (only) on a lower level — on a higher level, and one who is worthy to be on a higher level — on a lower level.’ However, this text implies that it would be permissible to seat one on a higher level who is worthy of this honour and likewise one who only deserves to be seated on a lower level should not be seated higher than his position demands. Hence, this text contradicts our present ruling. Nevertheless, since we deal in our ruling with individuals who are considered equals, therefore our text does apply (v. ‘Eẓ Yosef in cur. edd. of Tanḥ.). Should, however, one litigant stand on a higher level and the other on a lower one, it does not matter — M.E. The underlying reason for regarding the litigants as equals is in order to avoid disheartening on the part of a litigant who is not treated as an equal and thereby forgets his pleas. When does this apply? — At the time of the discussion of the pleas, (Ex. XVIII, 13).’ but at the time of the conclusion of the case, both litigants must stand in the first instance. n. 12), but if they gave their testimony while sitting, it is valid ex post facto. , Sheb. 30b: ‘Ulla stated: The controversy of opinion is with respect to the litigants, but with respect to witnesses all agree that they must stand, for it is written, And the two men shall stand … Another version (reads): The controversy of opinion is with respect to the time of discussion, but at the time of the conclusion of the case all agree that the Judges sit and the litigants stand, for witnesses are like the conclusion of the case (when they offer their testimony the case is completed), and it is written with respect to them: And the two men shall stand .’ Hence, the law that litigants must stand at the time of the conclusion of the case is derived from witnesses whose testimony is like the conclusion of the case, and therefore, the law should not be more stringent in the case of the litigants than in that of the witnesses. Consequently, as in the case of witnesses the law that testimony must be offered while standing is applicable in the first instance, but if the evidence was given while sitting it is considered valid ex post facto, so too, in the case of the litigants it is valid ex post facto if presented in a sitting position. What is considered the conclusion of the case? — [When the verdict is pronounced,] '[So-and-so, You are not guilty,' or 'So-and-so, you are guilty.' § 19, 1 and cf. supra § 12, 2. [With respect to] the witnesses [the law is that] in the first instance they must always [testify] while standing. n. 10; Git. 71a (ref to Mishna ibid. 67b: ‘If one is struck dumb and they said to him, Shall we write a Get for your wife? and he nodded his head, they must test him three times. If for no he said no, and for yes he said yes, they write and deliver it’): ‘In the same manner as he (one who is struck dumb) is examined with reference to a Get, so too, is he tested regarding transactions, testimony and bequests’ (cited from Tosef(Z). VII(V), 1). Testimony is explained by R. Joḥanan in Y. Git. VII, 1(48d) to refer to ‘one who offers testimony while sitting.’ This according to W.G. refers to one who is sick, since one who is struck dumb must have become so as a result of sickness and yet, we see that his testimony is considered valid through the test of nodding the head. Hence, it follows that if one testified while sitting, his testimony is considered valid ex post facto (cf. Tosef. ibid. where חולה ומשותק is mentioned). , also Zeb. 16a and Tosaf. s.v. מיושב . Gloss : And standing by being supported is indeed regarded as standing with respect to this matter . s. 266 — G. Meg. 21a (ref. to Mishna: ‘One who reads the Megillah may do so while standing or sitting’): ‘A Tanna stated: This (namely, that one may read the Megillah while standing or sitting) does not apply to the Torah (the reading of the Torah in public). Whence is this derived? — R. Abbahu said: Because the Scriptural verse states, But as for thee, stand thou here by me (Deut. V, 28) … One verse states, And I sat ( ואשב ) in the mount (Deut. IX, 9) and another verse states, And I stood ( עמדתי ) in the mount ( ibid. X, 10) — Rab said: He (Moses) stood when he learnt and sat when he reviewed (his learning). R. Ḥanina said: He was neither standing nor sitting but stooping.’ Hence, we see that stooping is designated neither standing nor sitting and yet the verse ( I stood ) refers to it as standing. Consequently, standing while leaning against something (equivalent to stooping) is still called standing. Leaning would therefore, include both standing and sitting. It is designated standing where this would be the requirement of the law as in the present ruling, and sitting where the law requires it as infra § 28, 26 where standing (in the case of Judges) by being supported is not considered standing but rather sitting in accord with the First Tanna in Zeb. 19b. Cf. E.H. § 169, 45; Zeb. 19b, Tosaf. s.v. וליתיב ; Yoma 25a and Tosaf. s.v. אין ; Y. Meg. IV, 1(74d). Hence, if Judges who are required to sit, stood by means of some support, or if witnesses who are required to stand, did so only by means of support, we adopt a leniency in both cases and consider standing by means of support in the case of Judges as sitting and in the case of witnesses as standing. This however, would not be valid if in the same lawsuit that is being tried both the Judges and the witnesses stood by being supported — M.E. , however, infra § 28, [ 26 ].

[If] one of the litigants produced witnesses to [substantiate] his pleas, they bring in the witnesses and receive their testimony properly as will be explained [infra] § 28. and Yad, Sanhedrin XII, 9. Derived from San. 30a: ‘(ref. to Mishna ibid. 29a: ‘When the Judges arrived at their verdict they brought them in’) Whom (do they bring in)? Shall we say the litigants: but they are present there already? (In the Mishna ibid. no mention is made that they had to leave)… In reality, the litigants are referred to and this accords with the view of R. Neḥemiah (i.e., during the discussion of the case the litigants were ordered out). For it was taught: R. Neḥemiah stated: This was the custom of the pure-minded in Jerusalem: (first) the litigants were brought in and their pleas were heard; (then) the witnesses were brought in and their statements were heard. Then they were ordered out and the case was then discussed.’ And after they receive their testimony they should order every person out However, others who are present there should not be ordered out, especially one who is a distinguished student ( תלמיד ותיק ) should be permitted to remain. An uncultured disciple should be ordered out (v. supra § 9, 6) — BaḤ and Beth Ya‘akob in Resp. Shebuth Ya‘akob maintains that according to Maim., Tur and Caro everyone should be ordered out in accordance with He that goeth about as a talebearer revealeth secrets (Prov. XI, 13) save a disciple of the law unless he is uncultured may remain — P.Tesh. and discuss the case. Some say that it is proper to begin [ the discussion with the opinion of ] the minor [ Judge ]. to San. IV, — G. Derived from San. 36a: (ref. to Mishna ibid. 32a: ‘In monetary cases, in cases concerning cleanness and uncleanness [the Judges declare their opinion] beginning with the most distinguished [of the Judges], but in capital cases we begin [with the opinion of] those [that sit] on the side [benches]’): ‘Rab said, I was one of the voters in the school of Rabbi and with me they commenced (It was the law concerning a title to property purchased from the Sikarikon. , Git. 59a. Hence, it deals with a monetary case). But have we not learnt, We begin with the most distinguished (of the Judges)? … The voting in the school of Rabbi was different because in all their voting they began (with the opinion) of those who sit on the side (on account of Rabbi’s humility).’ Hence, when the Mishna states that we begin the voting with the opinion of the most distinguished it means that we may begin with the most distinguished Judge because we do not apprehend that the other Judges will refuse to differ with him; but if they wish to adopt a stringency and begin with the opinion of the minor Judges who sit on the side benches it is a more proper approach, and since this was the procedure adopted in the school of Rabbi, it follows that it is permissible to do so. , also San. ibid .: ‘But in capital cases we begin (with the opinion of those that sit) on the side (benches): Whence do we know this? — R. Aḥa b. Papa stated: Scripture says, Thou shalt not speak al rib (in a case) [Ex. XXIII, 2. Rib רב is taken as rab רב ] (i.e.,) you should not speak al rab against the most distinguished (of the Judges).’ This means that it is proper to begin with the side opinion, for if the most distinguished Judge will state his opinion first, the minor Judges will refuse to oppose him and will not have the courage to contradict his opinion. , however, Tosaf. San. ibid., s.v. דיני נפשות ; Tosaf. Yom Tob to San. IV, 2. If they unanimously agree, it is good; and if not, they follow the majority. and cf. Mishna San. 2a. We follow the majority even if the third Judge is much greater in learning than the other two Judges who oppose him provided they are informed of his reasoning and yet oppose him (cf. Yeb. 14a in the case of Beth Shammai and Beth Hillel ) — A.H. Although the adopted principle is that ‘we do not follow the majority in monetary disputes’ (B.K. 27b) — this refers only to such cases where the minority is existent; but in the present ruling the minority opinion is regarded as non-existent — A.H. In monetary matters we follow a majority of one; in capital cases a majority of two — M.E. , Mishna San. ibid. [If] two say, 'He is not guilty,' and one says, 'He is guilty,' he is not guilty; [if] two say, 'He is guilty,' and one says, 'He is not guilty,' he is guilty; [if] one says, 'He is not guilty,' and one says, 'He is guilty,' and one says, 'I know not [how to decide],' and even if two state, 'He is not guilty,' or 'He is guilty,' while one says, 'I know not [how to decide],' in Resp. writes that if two of the three Judges declare him to be not guilty and the opinion of the third is that he is guilty, the latter cannot withhold his opinion in order for them to increase the number of Judges because we apprehend that this will bring contempt on the Court (cf. San. 8a, Tosaf. s.v. מוציא ). Shebuth Ya‘akob a.o. reject the ruling of Beth Ya‘akob and hold that it is permissible for the Judge to say ‘I know not.’ Birkath Ya‘akob agrees with Beth Ya‘akob — P.Tesh. they must add to Mishna San. 29a, s.v. אפילו . two Judges, VIII, 2. and consequently, there are five [Judges] who discuss the case.’s text following Maim. (Yad ibid .) presents a difficulty, since it regards the undecided member as existent (note the words of Caro. ‘consequently, there are five [Judges] who discuss the case)’. For otherwise, after the number of Judges is increased there should be four members. It seems, however, that Maim. and Caro after him maintain that in capital cases only is the undecided member considered as non-existent but not in monetary matters. Cf. San. 33b, Tosaf. s.v. אחד . Lebush writes that to add only one Judge would be insufficient, for it is quite likely that the Judge who was at first undecided might change his mind and agree with the opinion of the added Judge and thus there will be an even number of those who are for acquittal and those who are for conviction — P.Tesh. Cf. also supra § 13, 17, n. 34. Lebush reason is not accepted by some of the Codifiers (v. P.Tesh. and cf. Be’er Eliyahu a.l.) and in reality there are instances where one Judge would make the number uneven, e.g., where they originally commenced the legal proceedings with five Judges and one was found to be ineligible, — then only one Judge should be added. This explains why the number of Judges added in monetary cases is not mentioned in Mishna San. 29a. But in capital cases where the conviction must be effected by a majority of two, it is mentioned (v. San. 40a). If three declare him not guilty and two declare him guilty, he is not guilty; if three declare him guilty and two declare him not guilty, he is guilty; [if] two say, 'He is not guilty,' and two say, 'He is guilty,' while one states, 'I know not [how to decide],' they must add more Judges. e., two more Judges are added. Thus Yad ibid. However, [if] four say, 'He is not guilty,' or 'He is guilty,' while one states, 'I know not [how to decide],' or [if] three stated, 'He is not guilty,' and one says, 'He is guilty,' while one states, 'I know not [how to decide]' — [the law is that] whether he is the [same] one who stated at the beginning, 'I know not [how to decide]' or whether he is another [Judge], we follow the majority.) — M.E. Caro follows Maim., viz., that after the number of Judges is increased, the one who states, ‘I know not how to decide’ does not invalidate their decision as long as there is a majority of Judges who issue the verdict. Y. San. V, 5 (23a): ‘It was taught: Why are the Judges increased (in civil suits)? — So that if two of the first (Judges) were for acquittal (and one said ‘I know not how to decide’ and they increased the number of the Judges by two) and one of the latter (Judges who were added was also for acquittal and one stated ‘I know not how to decide’), — (the law is that) the proceedings are completed (i.e., sentence is pronounced) by three (since we now have a majority and we do not say that since one stated ‘I do not know’ he is considered as nonexistent and consequently we should again increase the number by two. The point is this: At the outset there were only two Judges who concurred and since the verdict is not valid if given by two Judges, the number had to be increased; but now that there are three who agree, sentence is pronounced and it matters not whether one of the added Judges was for condemnation or was undecided). Said R. La (Heb. לא abbrev. of אילא ), Since (two Judges have been added) it seems that the final verdict should be pronounced by four (Judges, because the one who was undecided is regarded as non-existent and now that one of the added Judges is also undecided, he too is regarded as non-existent. Consequently we have only three Judges who declare their opinions and therefore the law is that) we do not conclude the proceedings by three (but we should increase the number again by two more Judges). R. Jose said, You may deduce from this (i.e., from the first opinion recorded here, that we issue the verdict by three), (the law stated in Y. Shebi. X, 4(39c)) — (that) if three (Judges) confirmed (a document) and one of them dies (before they sign it), the two (Judges) sign it and they must write: Although two of us signed it, we judged (confirmed) it by three (For as in our case we do not require that four Judges offer their opinion, so too, in the case of the document we do not have to add another Judge but it suffices that two Judges sign it. Hence, this is in agreement with the First Tanna and not with R. La). Said R. Ḥaggai, the Mishna (too) states this (v. Shebi. X, 4: ‘This is the formula of a Prozbul : I declare before you.....................the Judges, in the place....................., that I shall collect any debt that I may have outstanding with...................., whenever I desire.’ According to Deut. XV, 2 the Sabbatical year cancels a loan and in order to protect the creditor, a declaration was made in Court to the effect, that the law of limitation by the entrance of the Sabbatical year shall not apply to the loan transacted): The Judges sign below or the witnesses (Thus we see that though the declaration was made before a Court of three, nevertheless, it is valid even if two signed the document of Prozbul. Likewise, in the present case where three Judges pronounced the verdict. Hence, we see that this accords with the first opinion contra R. La). But do we apply the rules of Prozbul to ordinary claims? — (Yes), he (R. Ḥaggai) found that it was taught: We apply the rules of Prozbul to ordinary claims.’ It is evident, therefore, that Caro ’s opinion recorded in the present ruling, following Yad ibid., accords with the first opinion in Y. contra R. La. Gloss : Thus seems to me to be the fundamental principle, not as he [ Caro ] writes supra § 13, par. 7 the reverse which is the opinion of those differing with [ this view ]. par. 4 and notes. Perhaps, however, he [ Caro ] is of the opinion [ that it is necessary ] to make a distinction between [ a case ] where [ a Court ] was selected at the outset [ consisting of ] more than three [ Judges ] and one [ where ] they went down at the outset [ to hold a judicial session consisting of ] three [ Judges ]. words are incomprehensible because RaShBA states explicitly in a Resp. (cited by Kesef Mishneh to San. VIII, 2) that if one member of a Court of three stated, ‘I know not how to decide,’ and then two more Judges were added, and subsequently one of the four Judges said, ‘I know not how to decide,’ — the law is that the verdict is given by the three remaining Judges as if the original judicial session was to be conducted by three Judges, and if two of three declare him guilty or not guilty and one opposes them, we follow the two Judges who represent the majority (v. Y. cited supra n. 10). On the other hand, v. supra § 13, 7, the source of which is also RaShBA which contradicts Resp. The difficulty may be removed by making the following distinction: Here we deal with a case where the original session began with three, in which case RaShBA agrees that the majority is valid; in § 13, 7 we treat of a case where the original session commenced with ten. Hence, all of them must submit their views, and we follow the majority. Cf. San. 5b. As to Isserles’ statement anon that if the community chose four or five arbiters, we do not follow the majority, it should be borne in mind that there is a difference between choice made by a community and that made by litigants — M.E. Yet, [ this distinction ] does not seem plausible to me; but they [ really ] differ, — the first [ representing ] the opinion of Maimonides and the second [ representing ] the opinion of RaShBA . holds that in monetary cases the one who is undecided is considered existent. Consequently, in § 13, 7 supra according to Maim. if one of the ten is undecided, the question may be decided by the majority. However, according to RaShBA who maintains that the undecided Judge is considered non-existent even in monetary cases, in agreement with RaBaD, it follows that since they agreed to be tried by a Court consisting of ten Judges, consequently there are no ten present — Be’er Eliyahu. [ In the case of ] a community that chose four or five arbiters [ to decide a case ] we do not follow the majority , § 12, 18, n. 44. The reason being that since they agree to choose more than three, — the minimum number required for a Beth Din, — their decision must therefore be unanimous, and if there is no unanimous agreement, the defendant is exempt until it can be proven otherwise — M.E. for [ the principle of following the ] majority applies only in a Court of Law . Cf. however, supra § 13, 7. However, if [ the members of ] the community stated that they [ the arbiters ] may follow the majority and they are even-balanced, we do not say that others should come and cast the deciding vote, for the [ members of ] the community have accepted only those who were [ originally ] chosen [ to decide the case ]. However, those who were [ originally ] chosen may ask whatever advice they desire from others and [ then ] render a verdict accordingly . § 13 citing RaShBA in Resp. end — G. , supra § 14,

After they [the Judges] discussed the case, the litigants were brought in and the most distinguished to San, III, 7 writes that the reason is simply to accord honour to the senior Judge because it is not permissible to speak before one who is greater in wisdom. of the Judges says, 'So-and-so, you are not guilty' [or] 'So-and-so, you are guilty'. § 14, n. 4. Nor is the Court of Law permitted to listen to his pleas — D.M. on the authority of Resp. in Ḥaze ha-Tenufah. And even if the disciples noticed that the verdict is incorrect, they are not permitted to tear up the document, but must wait until the Master himself examines the matter — R. Yeruḥam. It is forbidden for a Judge to say after leaving the Court of Law, 'I was for acquittal but my colleagues were in the majority.' And the one who acts thus comes under the rule of 'He that goeth as a talebearer revealeth secrets.' One who is not a Judge is forbidden to say to a litigant who was convicted that the Judge erred in their decision, for one who says this transgresses He that goeth about as a talebearer revealeth secrets and From a false matter keep thee far and is the cause of enmity and dissension — SeMaG. , K.H., Tummim and P.Tesh for further elucidation.

One who was found guilty in the Court of Law and [subsequently] produced witnesses or proof in his favour, it can upset the verdict and [the decision] is reversed, VII, 6. Derived from Mishna San. 31a. , supra § 16, 1 and notes. although [the trial] had already been concluded and even if he [the guilty party] had already made payment, § 16, 1, n. 4): ‘Rabbah b. R. Huna stated: The law follows Rabban Simeon b. Gamaliel. Rabba b. R. Huna also said: The law does not follow the Sages. But is this not self-evident; since he states that the law follows Rabban Simeon b. Gamaliel it automatically follows that the law does not rest with the Sages? — What you might have said is that his statement (that the law follows Rabban Simeon b. Gamaliel) applies only at the outset (i.e., even if evidence was produced after the thirty days it should be accepted); but ex post facto (i.e., where his proof was rejected by the Court and a decision was given accordingly) it holds good: we are therefore informed by the second statement, (viz., that the law does not follow the Sages) that even then (the verdict) is upset.’ According to the interpretation of R. Zeraḥiah ha-Lewi, this latter statement ‘but ex post facto etc.,’ should be understood as referring to a case where money had already been exacted from one party, and we might have thought that in this case the law should rest with the Sages and the verdict should not be upset, we are therefore informed otherwise. This is the source of the present ruling ‘even if he had already made payment.’ Hence, according to this interpretation ‘at the outset’ ( לכתחילה ) means that the verdict was given but not yet carried out, and ‘ex post facto’ means that the verdict was already carried out. — [yet] as long as he produces proof, it upsets [the verdict]. [If] the Judges told him, 'All proofs which you have in your possession, produce within thirty days' — [the law is that] although he produced proof [only] after thirty days, it upsets the verdict; for if this were not so, what is he to do if he did not find [evidence in his favour] within the thirty [days] but only after the thirty days? § 16, 1, n. 4. However, if they told him to produce witnesses or proof, and he stated, 'I have none,' — [the law is that] although he found [proof or witnesses] subsequently, — it is of no legal effect. in accord with the Sages who oppose Rabban Simeon b. Gamaliel because he might have forged a document or engaged false witnesses. For we take for granted that when he gave them a negative reply he made a thorough investigation whether he has evidence or witnesses. Thus Rashi. M.E., writes that even if it becomes apparent that he did not engage false witnesses, nevertheless, if he is of majority age and gave them a negative answer at the outset, we no longer accept these afterwards. And needless to say, if they said to him, 'Do you have witnesses?' and he replied, 'I have no witnesses,' [or they said to him], 'Do you have proof?' and he replied, 'I have no proof,' and they tried him and found him guilty, and [then] on seeing that he is convicted, he said, 'Admit So-and-so and let them testify in my favour,' or he [then] produced [documentary] evidence from his funda, i.e., [ a garment in the form of ] a small shirt [ sewn ] by stitches similar to wallets , s.v. אפנדה where this definition is found. — it has no legal effect, VII, 7 in accord with all the authorities. and they pay no attention to him nor to his proof. Gloss : However, if he did not say, 'I have no proof' [ or 'I have no witnesses' ], [ then ] although he was silent until he was convicted by Law and afterwards he said, 'Admit So-and-so and So-and-so and let them testify in my favour', it can upset the verdict . Rule VI, s. 15 and Rule XIII, s. 19 — G. The statement in the Mishna ibid .: ‘On seeing that he was about to be convicted he said, Admit … my favour etc.,’ refers only to a case where he previously stated, ‘I have no proof or witnesses’ whence we infer that had he remained silent we would now accept his evidence. Likewise, if he has additional pleas in his defence, as long as they do not contradict his original pleas, he is permitted to state them — Asheri. When does this apply? — When the proof was in his possession and the witnesses [were residents] with him in [the same] country; but if he stated, 'I have no witnesses and I have no proof,' and subsequently witnesses arrived [to testify in] his favour from overseas or his father's saddle-bag a bag with two pouches. containing the documentary [proof] was deposited with strangers, — and some say likewise his own documents , — G. But the one with whom they were deposited is in another country. — and [then] the trustee arrived and produced his proofs, — [the law is that] in this case he may bring forward [the new evidence] and it can upset [the verdict] VII, 8. Derived from San. 31b in accord with R. Samuel b. Judah on the authority of R. Joḥanan. because he can plead by saying, 'This statement [viz., that] I have no witnesses and I have no proof I made [previously] because they [the witnesses or proof] were not accessible to me.' And [ this applies ] only where witnesses came [ and testified ] that those documents were among the deposited documents . to San. III end. Derived from Tosef(Z). VI, 4. And as long as he can advance a plea and state, 'On account of such and such circumstances I stated [that] I have no witnesses or I have no proof,' and there was substance in his pleas, — [the law is that under] these [circumstances] he did not declare his case to be closed and it can [still] upset [the verdict]. VII, 8. Derived from San. 31b in accord with R. Samuel b. Judah on the authority of R. Joḥanan. Therefore, if he explicitly stated, 'I have no witnesses at all neither here nor overseas,' or 'I have no proof at all neither in my possession nor in the possesssion of strangers,' it cannot upset [the verdict]. When does this apply? — In the case of an adult, but a legatee who was a minor when his legator died and claims were brought against him on account of his legator after he came of age, and he stated, 'I have no witnesses' or 'I have no proof,' and after he left the Court of Law [where he was pronounced] guilty, strangers said to him, 'We are aware of testimony on your father's behalf whereby you may upset this verdict, or a certain individual said to him, 'Your legator deposited this proof [with me],' — [the law is that] he may produce [this evidence] forthwith and it upsets [the verdict], — for a minor legatee is not [supposed] to know all the [available] proofs of his legator. Gloss : This entire [ aforementioned law ] applies to an undefined case , but if the adult subsequently produced proof and witnesses [ to prove ] that he was unaware of these witnesses [ or proofs ] which he subsequently produced, or [ in the case of ] a minor [ legatee regarding ] whom witnesses came and stated that his father's documents were in his possession and [ that ] he knew about them when he went to law, — [ the law is that ] we accept them . to San. III end — G. In the former case we upset the verdict though he is of age and the witnesses and proofs were available in his city; in the latter case the verdict stands even though he is a minor.

One with whom a formal agreement was made by means of a Kinyan that if he fails to appear [in Court] on a certain date and take an oath, [then] his fellow [-litigant] will be regarded as trustworthy in his pleas and will collect everything that he claims without an oath, or [he stipulates] that if he fails to appear on a certain date and take an oath and [thereby] collect [his claim], he forfeits his rights and will have nothing and his fellow [-litigant] will be exempt the other party has a right to collect his claim, then it applies even more to the following case where if the condition is not fulfilled, the fellow-litigant is exempt. Or it is quite likely that both these rulings have to be mentioned because in the former case a Kinyan has to be effected at an authoritative Court of Law, but not in the latter case — M.E. [from making payment], — and [then] the [stipulated Court] day passed and he failed to appear, — [the law is that] the conditions become effective VII, 10 and Tur. Thus also SeMaG on the authority of the Geonim. , also Hag. Maim. to Yad ibid. Derived from Y.Kid. III, 2(63d): (Ref. to Mishna ibid. regarding one who betrothed a woman on a condition): ‘If he met with an unavoidable interference (and could not fulfil his condition of betrothal), — R. Joḥanan stated, (With respect to) an unavoidable interference it is as though he did not act (and consequently in the case of betrothal a plea of unavoidable interference is invalid contra divorce where such a plea would be accepted, the reason being that in the case of divorce the matter depends wholly on the husband’s consent; whereas in betrothal her consent is also required. Thus Korban ‘Edah ). R. Simeon b. Lakish stated, (With respect to) an unavoidable interference it is as though he acted (and therefore the plea of ‘unavoidable interference’ is applicable to betrothal as well as divorce. Thus Korban ‘Edah ).’ The Halachah rests with R. Joḥanan. But as we have seen from the above text of Y., according to R. Joḥanan a plea of ‘unavoidable interference’ is invalid. Hence, it would follow that in our present ruling he should not be free from the obligation effected by the Kinyan even if he was unavoidably prevented to appear. BaḤ, therefore, suggests that the text of Y. should be emended thus: Instead of ‘R. Joḥanan stated … it is as though he did not act’ ( לא עבד ), we should read ‘it is as though he did not violate (the condition)’ ( לא עבר ). , Be’er Eliyahu who does not consider this emendation as plausible and maintains that the source of this ruling is Ned. 27b q.v. anon The following sources should be examined in order to clarify the present ruling: Tosef. B.M. I, 9: ‘If both parties to a lawsuit are stubborn, and one said to the other, If I will not appear (for trial) between now and a certain date, (then) such and such an amount which is in my possession will become yours, — (the law is that) if the time is up (and he did not appear), the condition must be fulfilled. Thus R. Jose. Said R. Judah, How can he take possession of aught that is not his, but he must seize it.’ The same controversy is found in B.B. 168a: Mishna: ‘If a man paid part of his debt and the bond was placed with a third party to whom (the debtor said), If I have not paid you (the balance) by such a date, then give him (the creditor) his bond, (and) the date arrived and he did not pay, R. Jose says, He (the trustee) should give it (to him); R. Judah says, He should not give it (to him).’ Gemara: ‘On what principle does their difference of opinion rest? — R. Jose holds that Asmakta (v. supra § 12, nn. 45-46) gives one a valid title; whereas R. Judah maintains that Asmakta gives no title. R. Naḥman on the authority of Rabbah b. Abbahu on the authority of Rab Said: The law rests with R. Jose. When (cases of Asmakta ) came before R. Ammi, he stated: Since R. Joḥanan has taught us time and again that the law follows R. Jose, what can I do? The law, however, does not rest with R. Jose.’ , Tosaf . s.v. אמר רב נחמן . Ned. 27b: ‘The law is that Asmakta gives one a legal title, provided he did not meet with an unavoidable interference, and a formal agreement by Kinyan was effected at an authoritative Court of Law (an ordained Beth Din. Thus Rashi and Maim. RaN : A Beth Din that has the authority to enforce its decisions).’ , also infra § 55, and he forfeits his rights , supra n. forthwith — RaShBaM. Cf. supra n. 1 on the final law regarding an unavoidable interference. and they do not grant him an extension of time . to § 19 on the authority of RaShBA — G. e., if he requests an extension of time to take his oath, we do not grant him this. However, if he demands an extension of time to make payment, his request is granted (v. infra § 100) — ShaK. However, if he produced proof that he was unavoidably prevented [to appear] on that date, where two opinions are mentioned concerning this type of unavoidable interference. According to Yad ibid. even if he was unavoidably prevented on the last day only, it is considered valid. He must also clarify the unavoidable interference, but if he has no proof, then even if he is the possessor, it is considered possession in error, and he cannot put forward the plea of ‘the claimant must produce evidence’ ( המוציא מחברו עליו הראיה ) — Tummim. he is free from [the obligation] of this formal agreement by Kinyan was ever effected. And even though he is no longer unavoidably prevented and did not appear forthwith, he may take his oath whenever he so desires — Tummim. and he may [subsequently] take an oath when his fellow [-litigant] summons him again as in the first instance. And thus too, everything that is similar to this [case]. And this entire [ ruling is applicable only ] where a formal agreement was made with him by means of a Kinyan , holds that the Kinyan need not be effected before an authoritative Court. M.E., ShaK a.o. differ with BaḤ. , Caro (in B.Yos. infra § 207) that both the formal Kinyan and the depositing of his rights must be made at an authoritative Beth Din. but not otherwise, for [ then ] this would be a mere Asmakta . to San. beg. and RaShBA Resp. s. 899; v. infra § 207 — G.

One [of the litigants] who accepted a relative VII, 2. Derived from Mishna San. 24a: ‘If one (of the litigants) said to the other, I accept my father as trustworthy,’ or ‘I accept your father as trustworthy,’ or ‘I accept three oxherds as trustworthy.’ R. Meir says, He may (subsequently) retract; but the Sages maintain, He cannot retract.’ By stating ‘father’ we derive that accepting a relative is valid. or an [otherwise] ineligible person: ‘I accept three oxherds as trustworthy,’ whence we derive the law of accepting an ineligible person. For an oxherd is ineligible to judge or to testify — v. San. 25b: ‘Raba stated: The oxherds to whom (the Sages) have made reference include the oxherds of both large and small cattle.’ Therefore, we are informed that if they were accepted by the litigants, it is valid. , also ibid. 24b: ‘Raba stated: If one accepted a relative or an (otherwise) ineligible person (to act as Judge or witness), he may retract before the conclusion of the trial, but not afterwards.’ Gemara concludes that Raba’s statement agrees with R. Joḥanan according to the view of the Sages in the Mishna. to act as a Judge for if it means eligible as witnesses, why three?’ Hence, if they were accepted, it is valid and according to the Sages, he may not retract. or a witness the law is that even after the conclusion of the trial, he may retract according to all the authorities — Hag. Asheri on the authority of O .Z. N.Yos. and R. Yeruḥam (to B.B. VIII) on the other hand, maintain that the relatives or otherwise ineligible persons were not accepted before a Court; but if their acceptance was before a Court, then even before the conclusion of the trial, he may not retract — ShaK. Tummim writes that actually there is no difference whether they were accepted before a Court of Law or not. For once the pleas are presented before them they enjoy the status of a Court and it is regarded as if the acceptance took place before a Court of Law. The acceptance of a relative is valid only where the litigant knew that this was his relative, but if he pleads that he was unaware that he was his relative, the law is that he must take an equitable oath (v. supra § 1, n. 2) and may retract ( BaḤ ). However, if the litigant used to visit him and now he states that he was unaware that he is his relative, he is not regarded trustworthy (v. infra § 36, 2). Where the litigant claims that he was unaware that the accepted person was ineligible, the following distinction should be borne in mind: If the person is Rabbinically ineligible, in which case a public announcement is usually made in Court proclaiming him as such — then the litigant is not believed (v. ShaK infra § 71, n. 31) because all judicial matters are publicized; whereas in the case of an ineligible person who does not require a public announcement proclaiming him as such — the litigant is regarded trustworthy — P.Tesh. If the relative reveals that he is obliged to help and support the litigant, the latter’s acceptance of him is invalid ( Keneseth ha-Gedolah ). Shebuth Ya‘akob reports a case concerning a woman who left instructions prior to her death that if any dissension will arise between her sons, a certain relative of hers should adjudicate their case, and the sons obligated themselves by means of ‘striking hands’ ( תקיעת כף ) to follow the decision of that relative, and now one of the sons refuses to be tried before him, claiming a) that the latter is an illiterate person who is incompetent to adjudicate such matters, or at least others should be co-opted forming a Beth Din; b) that this person is more favourably disposed to one of the other brothers. Resp. : The law is that regarding the Talmudic principle ‘It is a religious duty to carry out the instructions of a dying person’ (Ket. 68b-70a; Git. 14b, 15a, 40a), it would not be applicable in this case (v. infra § 252, 2; Y.D. § 232, 17, Gloss ); but as far as the obligation effected through ‘striking hands,’ the instructions must be carried out, and as to a) he knew about this at the outset and yet accepted him; b) every vow, the release of which, brings in its wake the ‘least suspicion of sin’ ( נדנוד עבירה ), should not be annulled (v. Y.D. § 230, Gloss ). Hence, in the present case there is still a ‘suspicion of sin’ against his mother because he should carry out the instructions of his mother, albeit in the category of ‘fulfilling his duty beyond the requirements of the law,’ although strictly speaking this is not applicable in the present case — P.Tesh. — Gloss : the acceptance is regarded [ valid ] only when [ the litigant ] accepted him to act as Judge; but if he deposited money with him regarding which they were in dispute, it is not designated [ valid ] acceptance s. 311 — G. This refers to a case where one took an oath to pay his fellow on a certain date, and when the time for payment arrived, he deposited the money with the town Judge in order to fulfil his obligation effected through the oath, and instructed the Judge not to deliver the money to the other party because he had a claim against him and the Judge was related to him. Consequently, since the litigant did not accept the Judge explicitly, the acceptance is not valid and the judgment has no legal consequences — M.E. — even if he accepted one of those ineligible on account of sin as [equivalent to] two eligible witnesses to testify on his behalf or [he accepted him] as three of a Court of Law [of] authoritative [Judges] to adjudicate [the case] for him. VII, 2. Derived from San. 24a (ref. to Mishna ibid .): ‘R. Dimi b. R. Naḥman b. R. Joseph stated: (The Mishna has reference to a case) e.g., where he (the litigant) accepted him (i.e., one of those mentioned) as one (of the three Judges).’ According to Rashi this refers to R. Meir’s viewpoint and it means that even if there are two other eligible Judges, R. Meir maintains that he may retract, whence it follows that according to the Sages, both if he accepted him as one of the Judges or as three, he cannot retract. ‘An ineligible person’ is mentioned here in order to introduce a remarkable feature, viz., that even one who is disqualified to offer testimony in any other case. Much more so in the case of a ‘father,’ who is eligible to offer testimony in other cases, is the acceptance considered valid where the latter was accepted as two witnesses or three Judges — M.E. Gloss : should come after ‘he can … legal proceedings are closed’ anon — M.E. Some differ [ with this ruling ] and are of the opinion that [ this is applicable ] only if he accepted a relative or an [ otherwise ] ineligible person as one Judge or as one witness; but if he accepted him as two [ witnesses or as three authoritative Judges ] in which case there are two irregularities — [ the law is that ] even after the legal proceedings are closed, he may retract . to San. III contra Gaon who maintains that even if a formal Kinyan was made before a Beth Din, he may retract, since it was a Kinyan made in error. Cf. Sheb. 42a: ‘A certain (man) said to his fellow: You are believed by me like two whenever you claim that I have not paid you. He went and paid him before three. Said R. Papa: He believed him like two but like three he did not believe him. To this R. Huna b. R. Joshua objected: Two are like a hundred and a hundred are like two! But if he said to him: Like three, and he went and paid him before four (witnesses, the lender is not believed), for since he cares to mention a certain number of opinions (that he believes him like three people) he means (exclusively) that number of opinions (for otherwise he would have mentioned only two who are equivalent to any number).’ There must have been a formal Kinyan made, for if the statement of credence was made at the time the loan was transacted it is equivalent to Kinyan; otherwise formal Kinyan is required. We thus see that as far as two are concerned the lender is believed according to all opinions, although there were two irregularities ( תרתי לריעותא ), a) he believed the lender himself; b) he considered him as two witnesses. Likewise in the present ruling there are two irregularities, a) one Judge was accepted like three; b) even he was Biblically ineligible. Hence even in the case of two irregularities, once a Kinyan was made he may not retract on the principle ‘nothing else is required after Kinyan is effected’ ( אין לאחר קנין כלום ). Should he, however, appoint another Court to deal with the case, the latter must adjudicate the case in accordance with the pleas and admissions presented before the first Court (provided there was a formal Kinyan made. Thus Nethiboth ) — M.E. on the authority of RaShBA Resp. If he accepted one eligible Judge like three experts ( Mumḥin ) or one eligible witness like two and the trial was concluded he may not retract (since there is only one irregularity) — M.E. and later authorities contra ShaK. , P.Tesh. Likewise, if he accepted three ineligible persons (simultaneously. , P.Tesh ) like three eligible ones, he may not retract, since there is only one irregularity — Tummim. , however, K.H. Thus is the common consent of the majority of the Codifiers . s.v. ואמר who point out that R. Dimi’s statement (v. supra n. 6) refers to the view held by the Sages, viz., that he may not retract; but if he accepted one as the equivalent of a complete Court, even the Sages will agree that he may subsequently retract on account of two irregularities involved. ShaK, however, cites many authorities who accept the first opinion. However, if they made a formal agreement with him by means of a Kinyan, in nowise may he retract . Thus Alfasi. Derived from Sheb. 42a. , supra n. 8. Whether he accepted to forfeit his rights and to remit whatever he claimed in accordance with their verdict or he accepted to pay whatever claim his fellow [-litigant] will make against him according to the evidence of this ineligible person or according to his legal decision (if such is the verdict), or with regards to (a case where the plaintiff says) Let my claim against you be remitted (should this be the final verdict. The point is this: In the former case money will be transferred from one party to another, and consequently more power must be exercised; in the latter case, less authority is required, since the possessor has a presumption of ownership) and with whom does the law accord? — He replied: The controversy is with reference to I will pay you and the law accords with the Sages.’ — [the law is that] if they made a formal agreement with him by means of a Kinyan relative to this [matter], he cannot retract; but if they did not make a formal agreement with him by means of a Kinyan, he can retract before the legal proceedings are closed. (not to retract), what (if he desires to retract) before the verdict is given? — He sent back word: After a formal agreement is made by means of Kinyan, nothing (can be done to retract from the pledge).’ Although this (i.e., not to retract) appears to be ‘a mere verbal agreement’ ( קנין דברים ), i.e., that of which ownership is acquired by means of the Kinyan is only a verbal promise, and does not involve any concrete article, — yet, we do find that the Kinyan binds him in his undertaking (v. B.M. 67b; B.B. 3a; supra § 12, n. 31). Thus N.Yos. RaBaN maintains that the Kinyan is binding only when the litigant pledges himself to follow the verdict of the Court or to accept the evidence of the witnesses — ShaK. Supra § 12, 2 it has been explained what is considered the close of legal proceedings . adds that the legal proceedings are also considered closed when the litigants leave Court. And as to the matter of evidence, — [ the law is that ] as soon as [ the witnesses ] have testified, he cannot retract . s. 490 and Mord. — G. Thus also majority of Codifiers. , Sheb. 30b. [As soon as] the legal proceedings are closed, he cannot retract n. 1 Yad, Sanhedrin VII, 2 has ‘Once the legal proceedings are closed and money was exacted through the verdict of this ineligible person or through his testimony, he may not retract.’ Kes. Mishneh explains that it does not necessarily mean that money had been exacted, but that since the legal proceedings are closed it is as though money had been exacted. The litigants are not permitted to retract even if they both agree, the reason being that out of deference to the Judge, the verdict must stand unless the litigants wish to make a complete remission to each other — B.Yos. provided it did not become known that [the Judges] erred [in their decision].) concludes that if the Judge erred in his decision by overlooking a law stated in the Mishna, he may revoke his decision; but if he made a mistake in deciding against common pratice, his act cannot be undone and he must pay from his own pocket. It is thus evident that whenever the litigants accept the Judge, even if he is ineligible, then even if a Kinyan was effected, it is only on condition that no error should be made. Otherwise they may retract. Cf. Git. 14a: ‘R. Naḥman said, If a formal agreement by means of Kinyan was effected in error, the money must be returned.’ In a case where the Judges erred in their decision and the litigant is then permitted to retract, he is allowed to present his case anew and even alter his original pleas. Furthermore, the second Court of Law gives the litigant a new extension of time to produce his proofs or other required evidence. If the litigants accepted the Judges to adjudicate their case in accordance with strict law, and they (the Judges) made a settlement through arbitration, this too, is considered an error in judgment and even if the litigants bound themselves by a Kinyan, they may retract — M.E., ShaK. However, if they are [ the ] duly appointed [ Judges ] in the city or the representatives of the town, he cannot retract , § 25. In this case even if the litigants accepted them to Judge in accordance with the law of the Torah and the latter instead made a settlement by arbitration, their decision is still binding — M.E. If the Judges were accepted before the representatives of the town (even three of the representatives. Not necessarily the entire seven) even Kinyan is not required (v. infra § 163 end) — M.E., ShaK. Hence, even before the conclusion of the trial, one may not retract. Not so, however, if the acceptance took place before three Judges who are not the town representatives. In this case one may retract only before the conclusion of the trial — ShaK. for thus is the adopted practice [ viz., ] that whatever a person accepts before the heads of the town, he cannot retract .. to Shofetim end — G. If [the litigant] denies [this] and states, 'I did not accept [him] to act as Judge,' and there are no witnesses [to confirm this] statement, he must take an oath that he did not accept him [as Judge] even if the Judge contradicts him and stated that he [the litigant] did accept him. and Asheri in Resp. e., he takes an equitable oath ( שבועת היסת ), because the Judge is not regarded as a witness in order to obligate the litigant to take a Biblical oath ( שבועה דאורייתא ) for the following reasons: a) Since we deal here with a relative or one otherwise ineligible; b) The litigant does not deny any monetary claim save that he did not accept him as Judge in which case a Biblical oath is not imposed — M.E. ShaK (followed by W.G. ) rejects the latter reason and maintains that this is certainly regarded as a denial of a monetary claim. Hence, where the Judge is eligible, the litigant would have to take a Biblical oath. Nethiboth writes that we consider the litigant’s statement a denial of a monetary claim only after he was pronounced guilty by the Judge; but if he was not yet pronounced guilty save that the Judge claims that the litigant accepted him by means of a Kinyan to act as Judge, it is not considered a denial of a monetary claim. If two of the Judges are eligible persons all agree that they are believed when they state that they were accepted as Judges. [ In the case of ] a public that has recognized unlearned Judges as authorities over them, the litigants cannot prevent [ them from trying their case ]. Path II, Pt. 13 — G. , supra § 8, 1 and notes. Cf. supra n. 17.

As long as the litigants are [still] standing before the Judge, he is believed when he states, 'I have pronounced this party guilty' and 'I have pronounced that party not guilty.' [As soon as] they are dismissed from his presence, he is not believed.) — M.E. , Isserles anon. This is based on the following case cited by B.Yos. supra § 12: A gave B a gift of bonds and took an oath that he will not collect any of the debts covered by the bonds. Subsequently A and B were in dispute concerning other claims and they accepted an arbitrator on condition that whatever settlement he reaches within a certain time limit should be effective and the latter arbitrated the case and ruled that A and B should remit their claims by means of a written document excluding the case of the bonds that A had made a gift to B which are to remain in effect as of the day of arbitration and later it was discovered that A had collected money on the strength of the bonds given to B and the latter contends that the money collected by A should be returned, to which A responds that since he collected the money prior to the date on which the document of remittal became effective, notwithstanding the fact that he presented the bonds to B on condition that they remain in their original force, he should be exempt from returning the collected money especially since it states in the document of remittal drawn up by the arbitrator that the settlement excludes the bonds as of the date of arbitration. The arbitrator was consulted and he agreed with A. Responsum : The law accords with B ’s claim because when the other claims between A and B were submitted to the arbitrator, it was unknown that A had collected money on the strength of the bonds, for it was presumed that the bonds were intact since A took an oath to this effect. Consequently this did not enter into the remittal. And as to the statement of the arbitrator, he is not believed because he did not make this declaration when the litigants were still before him as in the present ruling with regards to a Judge. Nethiboth writes that the Judge is believed as long as the litigants still stand before him even if the one who was pronounced guilty could employ the principle of Miggo (i.e., since the the litigant could have stated ‘I did not accept you as Judge’), because since the Judge is believed as two witnesses, it would be tantamount to a Miggo in face of witnesses which is not effective. If the litigant contends that the Judge had pronounced judgment in his favour but the Judge and the other litigant state that the verdict had not yet been given, the Judge is believed even where the litigants are no longer before him provided that there are witnesses who testify that the litigants accepted him as Judge; but if there are no witnesses available and the litigants are no longer before the Judge, the claim of the litigant is accepted on the principle of Miggo, viz., that they did not accept him as Judge. And in this case the principle of Miggo in the face of witnesses (i.e., if we accept the statement of the Judge as equivalent to the testimony of two witnesses) is not accepted since the litigants are no longer before the Judge, in which case the latter is not regarded as equivalent to two witnesses — Nethiboth. However, the Judge is believed as one witness, provided he is not a relative or an otherwise ineligible person, and hence places the litigant who contradicts him under an oath and exempts the one who supports his statement from taking an oath. If the Judge died or left and the litigants contradict each other, each one stating that judgment was pronounced in his favour, — the law is that if one is the possessor ( מוחזק ) of the disputed article, the onus rests on the other party to produce evidence in order to substantiate his claim; if both are possessors, they divide the disputed article; if both are not possessors, the stronger of the two obtains possession or they make a settlement — M.E. And [this refers to a case] where the written verdict is not in his [the litigant's] possession, , previous note beg. This means that if the litigant has the judgment writ, the Judge is believed even if they are no longer standing before him. Accordingly, the question in the Gemara ibid., ‘Let us see who holds (the document containing) the verdict in favour’ refers to the latter part of the cited Baraitha (i.e., ‘but if they no longer stand before him, he is not believed’). RITBA, however, refers this question to the first part of the Baraitha (i.e., ‘the Judge is believed only if the litigants are still standing before him’). In other words, why rely on the Judge if we can see the judgment writ. For if it refers to the latter part of the Baraitha, the following difficulty arises: If we do not believe the Judge, why accept the judgment writ? — ShaK. Where the judgment writ held by A contains an undefined statement, e.g., ‘The land of So-and-so belongs to you,’ and B claims that the judgment writ was in his possession but he lost it, then the Judge is believed when he says, ‘I ruled in favour of this party’ — ShaK. and [this ruling is applicable] only to a case of discretionary judgment; , supra n. According to R. Tam (Kid. ibid., Tosaf. s.v. שודא a.e.) discretionary judgment means favouring or making a gift to any one of the litigants. Rashi : The Judges use their discretion in order to determine which of the claimants is to be believed. However, even if the litigants accepted the Judge to give a verdict based on discretionary judgment, it is still doubtful whether a re-trial would result in the same verdict — ShaK, Nethiboth. but in [the case of] a verdict which depends upon the pleas [of the litigants], reliance [on the Judge] does not apply, for in accordance with [the restatement of] the pleas the one who deserves favourable judgment will be so pronounced a.o. provided he [the litigant] does not upset his former pleas. even if they are still before him) — M.E. This entire [ruling applies] only to one Judge;) or where they accepted him as Judge (according to ShaK by means of Kinyan, but M.E. maintains that Kinyan is not necessary) — M.E. Thus Tur, Asheri and RIBaSh in Resp. but two [Judges] are always believed, Even if it is not a case of discretionary judgment — Nethiboth. Cf. B.M. 32a; Tosef. B.M. I, 6. even if there are two witnesses who contradict them. in Resp. advances the following reason: The Judge is more conscious of the case than those who merely hear the proceedings. If one Judge in conjunction with a single witness made this statement and two witnesses contradict them, the Judge and the single witness are not believed, since the single witness merely heard the proceedings. Consequently, there is only one against two — M.E. Gloss : So too, if they [ the litigants ] accepted an arbitrator [ to bring about a settlement ] within a certain time limit, — [ the law is that with respect to ] everything he [ the arbitrator ] states within the time limit, he is believed. However, if he had already recorded the settlement in writing and given [ it ] to them, he [ subsequently ] has no right to add or to subtract [ therefrom ] even within the time limit, although he states that thus was his [ original ] intention . on the authority of RaShBA — G. , supra n.

We give prior consideration only to the claimant. § 16, n. 5. ‘Giving prior consideration’ refers to hearing the pleas. Cf. also Tosef(Z). San. VI, 3: ‘Whoever makes a claim against his fellow, opens (his pleas) first.’ The meaning of the text in B.K. ibid. is as follows: When the litigants come to Court and the claimant desires that his pleas be heard first, and so too, the defendant — the practical difference being that the defendant might make a partial admission — and the law is that one who makes a partial admission is required to take a Biblical oath only if the admission was made after the plaintiff made his claim (v. infra § 88, 15) — the law is that we give prior consideration to the claimant. However, if the property of the defendant had depreciated in value or the reason he had not made payment prior to this was due to the fact that were he to dispose of his estate he would be forced to sell at a low price, — then we attend to the defendant first, and if the defendant makes a partial admission prior to hearing the pleas of the claimant, he is not required to take a Biblical oath — ShaK. However, if the property of the defendant [thereby] depreciates in value we give him prior consideration..: ‘The Nehardeans said: Sometimes we attend to the defendant first, e.g., where his property depreciates in value.’ Gloss : e., A makes a claim against B (v. supra § 16, n. 5) it refers to a case where the defendant has an opportunity of selling his property now at a high price — an opportunity which will not present itself later — then we give prior consideration to the defendant’s counter-claim. , ShaK ( supra n. 1) for another interpretation. in a case where [ B ] cannot say, 'I have [ already ] paid, ' s.v. שאין according to Rashi ’s explanation. We deal here with a case where there is a document signed by witnesses that he lent him money — M.E. Cf. infra § 85, 7. and B responds [ by making a counter-claim, viz., ] 'You have so much of mine in your possession' has, ‘And B responds, You have taken possession of aught that belongs to me; return to me whatever you have seized,’ or he says, ‘You had my pledge and it has depreciated in value.’ Even if the claimant admits to the defendant that the pledge has depreciated in value (save that they differ as to the amount of depreciation), — nevertheless, we give prior consideration to the claimant — M.E. and he requests [ an extension of ] time — more than thirty days — [ in order ] to produce witnesses, — [ thirty days being ] the time [ usually given ] by Court , to request only thirty days, the usual extension of time given by the Court, we would have complied with his wish even if his property were not to depreciate in value. But if he requests a longer extension of time in order to produce witnesses, and we are not aware that there are witnesses available,—then even if B ’s, property depreciates in value, we do not listen to him. We deal here with a case where the Judges of the Court know that he has witnesses who are acquainted with the facts, but we do not know whether the witnesses will testify in favour of the defendant or not — M.E. , supra § 16, 1 and notes. — [ the law is that ] although we know that he [ the defendant ] has witnesses who are acquainted with the case, we [ still ] give prior consideration to the claimant, . and he [ the defendant ] is obliged to pay him forthwith unless his [ the defendant's ] property depreciates in value and the defendant [ thereby ] suffers a loss . see that the defendant will suffer a loss thereby, e.g., if he does not sell his pledge now (which according to him is in the claimant’s possession), we give the defendant prior consideration and grant him his request for an extension of time even more than thirty days. Or if the Beth Din see that there will be a depreciation of his property or the like. So too, if the claimant desires that they hear his pleas first, [ i.e., ] prior to hearing the pleas of the defendant, (the claimant) does not insist to be paid first but rather to have his pleas heard first. Consequently, ‘unless his ( B ’s) property depreciates in value’ means that if they hear A ’s pleas first, then B is designated a ‘defendant’ and thereby his property will depreciate in value. Likewise, if A desires that his witnesses be heard first and B makes the same claim, we give prior consideration to A. Consequently, ‘unless ( B ’s) property depreciates in value’ means that B ’s witnesses might leave and go to a distant country if they are not heard forthwith — M.E. or he requests the Court of Law not to issue the verdict at present save when he so desires , on the authority of RaBaD — G. Tur adds: ‘For perhaps today or the next day he might find witnesses or the defendant will make an admission.’ This applies even if they made an agreement with the claimant by means of a Kinyan to be tried before the Court of Law and he had already presented his documents — nevertheless, he may state that he desires to be dismissed and not to be tried now (it follows that if he had already presented his pleas this does not apply), unless the property of the defendant depreciates in value ( RaShBA ) — M.E. or [ in a case ] where the defendant is under obligation to him [ the claimant ] to take an oath and the claimant states that he desires not that he [ the defendant ] swear to him now save when he [ the claimant ] so desires — G. , supra § 16, n. 2. and likewise in all similar cases, e.g., when he [ the claimant ] says that he has many [ additional ] claims against this [ defendant ] and he desires not to make [ all these ] claims at present , § 87, 24, Gloss according to which Isserles holds that the claimant is told to make all his claims which contradicts the present ruling. ShaK removes this difficulty by explaining that Isserles concludes infra that if the claimant refuses to make all his claims, the defendant takes an oath and is exempt; whereas in the present ruling we deal with a case where the claimant states that he does not care if the defendant takes an oath because even if he takes an oath he will not be exempt since he has additional claims against the defendant where the question of an oath does not enter or where he will be able to produce witnesses. For additional interpretations, v., M.E. and P.Tesh. — [ then ] we listen to the claimant unless the property of the defendant [ thereby ] depreciates in value , on the authority of RaShBeẒ — G. Where A made a claim against B and the latter refused to respond being a very stern and powerful individual ( אלם ) and subsequently B made a claim against A, — the law is that A is not required to respond until B responds first ( D.M. on the authority of MaHaRIW ) — M.E. or where the defendant suffers a loss on account of this according to the discernment of the Judges.