שולחן ערוך

Nowadays (v. infra. n. 13) may adjudicate cases of admissions and transaction of loans which are matters of frequent occurrence and involve a monetary loss, thereby carrying out the commission of the Sanhedrin of the Land of Israel. The present ruling applies today to the Land of Israel too. Cf. Git. ibid., Tosa f. s.v. במלתא . Thus also Asheri and Tur. The underlying reason for this law is given by the Codifiers as follows: ‘Judges and officers thou shalt make thee in all thy gates which the Lord thy G-d giveth thee tribe by tribe (Deut. XVI, 18. This has reference to the Land of Israel only) — (this means that) in your gates (i.e., in Israel) tribunals should be set up in every district as well as in every city. However, outside the Land (of Israel) you should set up tribunals in every district but not in every city’ (Mak. 7a). This, of course, applied only to those times when the original form of ‘ordination’ ( Semikah , סמיכה ) was in vogue, but nowadays all judges have no authoritative power to adjudicate legal questions Biblically, as it is written, — ‘And these are the judgments which thou shalt set before them (Ex. XXI, 1) — before them (i.e., authoritative judges, specially ordained) and not before non- Mumḥin (laymen judges)’ — Git. ibid. Consequently, today we merely act as agents of the former authoritative judges and deal only with matters of frequent occurrence which also involve a monetary loss ( Tur ) — M.E. On the question whether we carry out today the commission of the former duly ordained judges Rabbinically or Biblically, there is a difference of opinion among the Codifiers. N and RaShBA hold that our commission is Rabbinical. Nethiboth maintains that it is Biblical. the Judges may adjudicate cases of admissions and transaction of loans, marriage contracts, ( כתובה ), — the wife’s settlement. inheritances, and Tur derived from San. 3a, Tosaf. s.v. שלא . gifts and Tur derived from San. 3a, Tosaf. s.v. שלא . and damage done to another person's chattel, V, 9 derived from B.K. ibid. which are matters that are of frequent occurrence and involve a monetary loss;). The underlying reason in the case of admissions and the transaction of loans is ‘in order not to shut the door against borrowers’ ( שלא תנעול דלת בפני לווין ). For a creditor will refuse to grant a loan should he find it difficult to collect his debt. The same reason applies to the other matters enumerated here. This (viz., that we deal only with matters of frequent occurrence which involve a monetary loss) has reference only to monetary claims. But in the case of other important matters, such as, accepting converts, although it is of infrequent occurrence, or in the case of compelling an obstinate husband to grant his wife a divorce although it does not involve a monetary loss, the law is that we may deal with such cases — M.E. but matters that are not of frequent occurrence although they involve a monetary loss, e.g., cattle that injured other [cattle], Mishna B.K. I, P.Tesh., however, cites authorities who permit a Jewish Court today to deal in matters pertaining to damage caused by ‘fire’ and ‘pit’). This form of damage is called חבלה . Hence, the term שחבלה used here. In the case of damage or injury which is of frequent occurrence and involves a monetary loss, the legal term used is היזק . infra par. 3 — M.E. or matters that do not involve a monetary loss although they are of frequent occurrence, e.g., the repayment of the double amount,), but not laymen Judges. The repayment of the double amount ( תשלומי כפל ), it may be asked, in any case belongs to the category of fines ( קנסות ) mentioned anon, and the payment thereof is collected only by authoritative judges ( Mumḥin )? Furthermore, Tur has בושת i.e., payment for indignity suffered which is of frequent occurrence although there is no monetary loss involved. Likewise, in the foregoing example of matters of infrequent occurrence although there is no monetary loss involved, Tur has ‘e.g., if a man injured another man’ instead of Caro ’s example (following Maim. in Yad ibid. ) ‘cattle that injured other cattle’. The difficulty may be removed if we understand our text as follows: First Caro states examples (e.g., the repayment of the double amount and cattle that injured other cattle) which are specifically of a penal nature ( קנס ) and then the general proviso, ‘and likewise all fines’ which the Rabbis equated to these examples. Consequently, the examples cited by Tur are included in the general statement concerning fines — M.E. and likewise, all fines that were imposed by the Sages, dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. as [in the case of] one who boxes his neighbour's [ear] — The meaning [ of Toke'a should be understood as ] 'He shouts in a [ loud ] voice into his [ neighbour's ] ear and frightens him dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. — or as [in the case of] one who slaps his neighbour — e., He strikes [ him ] with his hand on the cheek § 420, 4 Caro adopts Maim. (Yad ibid. ) explanation of תוקע ; Isserless accepts the explanation of Rashi and RaN (v. B.K. 90a and Kid. 11b, Rashi s.v. התוקע and cf. RaN ibid. ). , B.K. 84b, Rashi s.v. ופגם whence it is implied that if the amount is not definitive it is not regarded as a fine. Yet, since it is of infrequent occurrence and does not involve a monetary loss, we cannot order its collection. The Rabbis, however, called it קנס (fine) because the law thereof is similar to fines. Cf. B.K. 27b, 84b, Tosaf , s.v. קנסא — M.E. — and thus also whosoever pays more than the actual damage done, or one who pays half-damages, E.g., the repayment of the double amount (Ex. XXII, 3) or the four or five-fold restitution of stolen goods (Ex. XXI, 37), or on restoring misappropriated property, one fifth of the principal had to be added as a fine (Lev. V, 16, 24; XXVII, 27), or half-damages done by an innocuous animal ( תם ), i.e., an animal that did not gore three times and did injury before warning had been given, opp. מועד (Ex. XXI, 28-36; B.K. I, 4; II, 4). Cf. infra § 390 and v. Yad ibid. — [the law is that] only authoritative Judges meaning ‘Judges’ as in Ex. XXI, 6; XXII, 7-8. , San. 2b; infra § 3, 2. Cf. supra n. duly ordained IV and cf. Y.D. § 242; supra n. 1; J.P. Y.D. § 335-403, Int. XI-XI in the Land of Israel may judge it save [in the case of the liability for] half-damages [done by] pebbles, which is [regarded as] civil and not [as] penal. (Ordination) nowadays is also valid for dealing in matters pertaining to Ḥalizah and Divorce — ShaK.

Every Court of Law, even [one whose members] are not duly ordained in the Land of Israel, § 1, n. 14. — if they see that the people are unrestrained in [committing] sins, and [ provided ] that the exigencies of the hour demand it , — G. It may, however, be asked (in accordance with the interpretation of M.E. ), why should an individual transgressor be considered as falling under the category of ‘exigencies of the hour?’ This should, therefore, be understood as follows: If we withhold punishment from an habitual individual sinner, others will learn from his evil ways and will likewise become unrestrained in the commission of sins. Hence, the exigencies of the hour apply here too ( Tummim ). Others, however, maintain that the individual may be penalized even when the foregoing reason is not applicable ( Shebuth Ya‘akob ) — P.Tesh. may pass judgment both [with respect to] death, however, writes that the above penalties were imposed by the Great Sanhedrin but any other Court of Law does not have the authority to administer such punishment. He adduces the following text to prove his point: San. 52b: ‘Immarta, the daughter of Tali, a Kohen , committed adultery. In consequence of that, R. Ḥama b. Tobiah had her surrounded by faggots and burnt. R. Joseph said: He (R. Ḥama) was unaware of two laws. He was unaware of R. Mathna’s statement (that burning was executed by pouring molten lead down the culprit’s throat) and was ignorant of the following Baraitha: And thou shalt come unto the priests, the Levites, and unto the judge that shall be in those days (Deut. XVII, 9). This teaches that when the priesthood operates (in the Temple), the Judge operates (with respect to capital punishment) ; but when the priesthood does not operate, the Judge may not function.’ Hence, R. Ḥama, who flourished after the destruction of the Temple had no authority to impose capital punishment. N.Yos. cites additional cases to corroborate his viewpoint: Nid. 13b, San. 58b: ‘R. Ḥama had the hand of one who was accustomed to strike other people cut off.’ San. 27a: ‘The Exilarch ( Resh Galutha ) said to R. Abba b. Jacob, Go and investigate the matter; if he is definitely the murderer, dim his eyes.’ In these latter cases only partial punishment was administered but not full punishment in accordance with Biblical law. However, N.Yos. is opposed by the Codifiers (v. also D.M. ) who hold that if the needs of the hour demand it even full punishment may be meted out including capital sentences although it would not be in accordance with Biblical law where legal warning and valid witnesses are required which would be difficult to obtain nowadays as a result of which the world would become full of violence and ultimately destroyed. Cf. ‘Jerusalem was destroyed because judgments were rendered in accordance with strict Biblical law’ (B.M. 30b). Thus RaShBA, N , and Asheri in Resp. Hence, Caro ’s ruling here. , also the case of Simeon b. Shetaḥ in Mishna San. 45b who hanged eighty women at Ashkelon. and monetary [penalties] as well as [to administer] all laws of punishment, even if in the case [in question] there is no valid evidence [available]. s.v. החשוד ; Tur citing Yad, Sanhedrin XXIV, 4. This means that there was no legal warning given by witnesses to the offender immediately before committing the offense. For witnesses and legal warning are required only when adjudicating a Biblical law, but one who disobeys the ordinances of the country may be penalized according to the needs of the hour ( N in Resp. ) — M.E., ShaK . In capital cases the consent of the town Elders is required after due deliberation ( B.Yos. citing RaShBA ) — M.E. And if he is a stern individual, they may flog him by means of heathen authorities. does not record here the latter statement of the Mishna (as found in Tur ), viz., ‘and say to him, Do whatver the Israelite (authorities) tell you,’ it follows that even the final legal proceedings may be carried out by the heathen authorities since the offender is a very harsh person and the penalty is not in accordance with Biblical law — M.E. For only in the case of a Get (as in Git. ibid. ) must the final legal proceedings be executed by Israelite authorities in order that it be considered valid — Nethiboth . , also infra § 26. And they have authority to expropriate his property and to forfeit it according to whatever they see fit in order to fence in the lawlessness of the generation . on the authority of Yad, Sanhedrin XXIV, 4-10 — G. Derived from M.K. 16a where Scriptural verses are adduced whence we derive that we have the authority to excommunicate persons refusing to obey the summons of the Court, to pronounce the Ḥerem (v. Glos.), to forfeit property, to curse, to smite, to pluck one’s hair, to adjure (so that one desists from malpractices), to fetter, to arrest and to prosecute. ‘We administer flogging on account of an evil rumour, because it is said, Nay ( al ), my sons; for it is no good report that I hear ’ (I Sam. II, 24) — Kid. 81a. This has reference to an uninterrupted rumour not due to intimidation and where no enemies are about who might have published the rumour — Yeb. 25a. Cf. Tur. O.Ḥ. § 1 , also Git. 36b on the Rabbis’ power to expropriate one’s property; also Meg. 25b where it is stated that it is permissible to abuse a person of ill fame. The latter statement refers to an ordinary person but not to a scholar ( RaN ). Cf. Men. 99b: ‘Resh Lakish said, A scholar-disciple who has committed a misdeed should not be reproached in public because it is said, Therefore shalt thou stumble in the day and the prophet also shall stumble with thee in the night (Hos. IV, 5), that is to say, Keep it dark like night.’ The par. passage in M.K. 17a reads that ‘they do not place him under the ban.’ Some Later Authorities rule that the Court of Law has the power only to declare a debt cancelled but they cannot take possession of the money or the like on behalf of a person before it reaches the latter’s hand ( Birke Yosef ). Others (on the basis of Git. 36b) hold that the Court of Law does have this authority even before it reaches the latter’s hand — P.Tesh. All their acts, however, should be [done] for the sake of Heaven. And [this should be executed] only [by] a great personage of the generation’s house had the power to impose penalties. or [by] the representatives of the town whom they [i.e., the people] have recognized as the Court of Law over them. Gloss : And thus is the accepted practice everywhere, [ viz., ] that the representatives of the town are regarded in their [ own ] town [ as authoritative ] as the [ former ] Great Sanhedrin .. (B.M. II beg.) on the authority of R. Gershon states: ‘Whosoever is appointed a leader of the community is regarded like the mightiest of the mighty and Jepthah in his generation is like Samuel in his generation (R.H. 25b) and whatever he does is considered binding.’ Thus also RaShBA — M.E. They may administer flogging and impose [ death ] penalties and their expropriation [ of one's property ] is considered valid according to the adopted custom , (Rt. I, XIV) writes that even according to the opinion that the representatives of the town have the power to enact measures as they see fit, it applies only to communal needs but not with respect to cancelling a debt of one individual for the benefit of another which does not fall under the category of communal needs. Thus also Isserlein in his Decisions . Furthermore, only one who is a distinguished personage in his generation may expropriate property — M.E. Cf. supra n. 13. If the custom in the community is to submit the matter to arbitration by one litigant choosing one person and the other litigant choosing another person and the Head of the Court of Law acting as the third, — this practice should not be altered — P.Tesh. although there are some who differ and are of the opinion that the representatives of the town have no power in these [ matters ] save that they [ have the authority ] to compel the community in [ observing ] whatever was an adopted practice heretofore ,) those who disregard the terms fixed by the authorities ( ולהסיע על קיצתן ). The dissenting opinion takes ולהסיע as referring to ‘measures etc.,’ i.e., just as in the latter case it must be with the consent of all, so too in the case of ‘terms fixed by the authorities,’ the consent of all is required. The first opinion takes ולהסיע as a separate measure. Hence, the consent of all is not required — W.G. Cf. also Y. Meg. III, 2(74a) : ‘The seven representatives of the town are regarded as the (entire) town. What are we treating of? If they (the townspeople) accepted them, then even if one (was appointed his decision should be binding upon all the townspeople) ; if they did not accept them, then even many (i.e., more than seven cannot enforce their rulings upon the townspeople). We, therefore, deal here with an undefined case (i.e., the townspeople appointed them to look after the communal matters, without specifying which matter they delegated to them, and the town representatives sold aught without consulting the people, we are therefore, informed that their transaction is binding).’ or they accepted upon themselves [ a new measure ] with the consent of all [ the townspeople ], but they may change naught in any matter that would involve a gain for one person and a loss for another , also Ḥid. Hag. P. Tesh cites the case of the controversy around the Sulzbach edition of the Talmud. The latter was forbidden to be printed until a certain period would elapse after the Amsterdam edition of the Talmud was published. Certain authorities ruled that the purchasers of the Sulzbach ed. were prohibited to study in it. Zikron Ya‘akob , however, on the basis of the present ruling, held that since this prohibition would involve a gain for one (i.e., the Amsterdam publisher) and a loss for the other (i.e., the Sulzbach publisher), the law is that those who had already bought the Sulzbach edition were permitted to use it. , also P.Tesh. to Y.D. § 208, 5; § 236, or to declare a debt cancelled without the consent of all [ the townspeople ].. to B.K. X — G. Nevertheless , [ in these matters ] we follow the adopted custom of the town, especially if the [ townspeople ] accepted them [ to render decisions ] in every matter . § 23 Thus seems to me [ to be the correct view ]. for the sake of the public welfare — G. The later authorities state in their Responsa that one who has been sentenced to flogging may give forty gold coins instead of the flogging. s. 147 and R. Menaḥem of Merseburg — G. , Ket. 46a where a monetary fine is designated as flogging. This is, however, not stated as a law, only that they decided thus because [ of the needs of the ] hour, but [ in reality ] the Court of Law has the authority to flog him or to confiscate [ his ] property as they see fit according to the matter [ in hand ] in order to safeguard a cause. § 425 Gloss — G. On the significance of the principle ‘to safeguard a cause’ ( למיגדר מילתא ), v. Yeb. 90b.

A Court of Law must consist of not less than three [Judges] 2b-3a in accord with R. Aḥa, the son of R. Ika that Biblically even one is sufficient to judge monetary cases. Three, however, are required Rabbinically on account of idlers who are unversed in the law (v. Isserles anon). Thus also Yad, Sanhedrin II, 10 (v. Kesef Mishneh on the authority of RaShBA ) and Asheri to San. I end contra ‘Ir Shushan — M.E. BaḤ writes that in the first instance ( לכתחילה ) three who are versed in the law are required. Regarding a city wherein all the inhabitants are unversed in the law, v. infra § 8, 1, Gloss. ShaK defends ‘Ir Shushan on the basis of the following text: San. 3a: ‘Said Raba, . . cases of indebtedness require no Mumḥin for the reason advanced by R. Ḥanina (v. infra ). R. Aḥa, the son of R. Ika states: Biblically even one individual is qualified to deal with cases of indebtedness, as it is written, In righteousness shalt thou judge thy neighbour (Lev. XIX, 5). Three judges are required on account of idlers who act as judges … What is the difference between Raba and R. Aḥa, the son of R. Ika (since they both agree that laymen Judges are legally qualified to adjudicate monetary cases) ? — They differ with respect to the opinion of Samuel who said: If two laymen Judges adjudicated a monetary case, their judgment holds good but they are called an arrogant court. Raba (who requires three Biblically) does not agree with Samuel; whereas R. Aḥa, does.’ Consequently, continues ShaK, since we do not rule in accordance with Samuel (v. infra par. 2 beg.), we must say that the law agrees with Raba, viz., that Biblically three Mumḥin are necessary, for the term ‘Elohim’ denoting ‘Judges’ is found three times in Ex. XXII, 6-8 with respect to cases of larceny, and on the basis of the principle that there is ‘an interweaving of Biblical sections’ עירוב פרשיות (i.e., clauses of one section are taken over for interpretative purposes to a succeeding section, in this case the term ‘Elohim’ is taken over to the section in Ex. XXII, 24 which deals with cases of indebtedness). Hence, three Mumḥin Judges should be required even in cases of indebtedness. However, this requirement was relaxed and three laymen Judges suffice on account of the reason advanced by R. Ḥanina, viz., ‘in order not to close the door against borrowers’ (people would refuse to advance loans should they subsequently meet with difficulties in having to procure Mumḥin Judges in order to collect their debts). This is also evident from Asheri, for he decides in favour of R. Abbahu that the adjudication of two Judges is invalid contra Samuel (v. supra this note). Furthermore, Asheri states explicitly that the law follows R. Abbahu since we have an established principle that beginning with Abaye and Raba the law always rests with the Later Authorities. Consequently, the law is decided in favour of Raba who disagrees with Samuel. Thus also Alfasi, RABaN and N.Yos. Maim. ruling (v. Yad ibid. ) presents the following difficulties: a) On the one hand Maim. rules that three Judges are required and on the other hand, he states that one Mumḥeh is permitted to try monetary cases, which is in agreement with R. Aḥa. But, as we have seen above, R. Aḥa accepts Samuel’s dictum, and such being the case, Maim. should likewise accept Samuel’s ruling that two Judges are sufficient. The same difficulty is found in SeMaG. b) According to B.K. 84b and Git. 88b, the reason why we may adjudicate monetary cases nowadays is because we act as agents of the former authoritative Judges ( Elohim ). Thus also Yad, Sanhedrin V, 8 and SeMaG (v. supra § 1 notes). Hence, Biblically, monetary cases are tried by Mumḥin, i.e., in accord with Raba, for according to R. Aḥa, one laymen Judge would be sufficient today (v. Kesef Mishneh to Yad, ibid. II, 10 who raises the same question and cites Resp. of RaShBA in order to remove the above difficulties. Cf. also Leḥem Mishneh ibid. ). ShaK writes that the solution of the latter authorities is strained. A.H. removes the above difficulties as follows: Samuel’s dictum that ‘If two judges tried monetary cases their decision holds good,’ refers only to Biblical adjudication. And needless to say that the one (R. Aḥa) who maintains that Biblically one Judge is qualified to try monetary cases will certainly hold that if two adjudicated the matter, their decision is valid and they are Biblically designated a Court of Law. However, Rabbinically, all agree that three Judges are required on account of idlers who are unversed in the law. This is what is meant by the text (v. supra ), ‘What is the difference between Raba and R. Aḥa? — They differ with respect to the opinion of Samuel who said: ‘If two Judges etc.,’ i.e., Biblically, the decision given by two judges is valid and they are designated a Court of Law according to Samuel. Therefore, the Gemara does not state that the difference between Raba and R. Aḥa centers around the difference of opinion between Samuel and R. Abbahu (the latter holding that the decision of two is invalid), for as far as a valid judgment is concerned, R. Aḥa and Samuel agree with R. Abbahu that three are required Rabbinically, on account of idlers. Samuel and R. Aḥa only differ Biblically. and every [group of] three [Judges] is called a Court of Law even if they be laymen. For it is impossible that there should not be among them [ at least ] one who has a knowledge of logical inferences in [ civil ] laws . is not equivalent to the Talmudic term סביר , i.e., one who has the capacity to reason even regarding matters concerning which he did not study. For this would be equivalent to a Mumḥeh (authoritative Judge). , Shab. 63a a.e. The expression used here has reference to one who merely received reasons for certain laws from others, but is himself not endowed with the power of reasoning — M.E. (v. also Perisha ). ShaK agrees with M.E. regarding the term סביר , but maintains that one of the Judges must be versed in traditions ( גמיר used in San. ibid. ). Thus also R. Meir of Padua contra BaḤ who writes that גמיר refers to partial knowledge. The ruling here, viz., that one is required to be versed in the law follows Asheri contra Mord. who requires the three Judges to be versed in the law even if they have no reasoning power. Thus also R. Zeraḥyah and N. However, if there is not among them [ at least ] one [ who has such knowledge ], they are disqualified to judge . on the authority of his father Asheri to San. I beg. — G. Cf. San. 23a. Three Judges who are unversed in the law may adjudicate monetary cases provided the litigants expressly stated that they agree to accept them as Judges — ShaK, P.Tesh. , infra § 8 and § 22. Nevertheless, they may receive the pleas [ of the contesting parties ] and forward them to one who is qualified to render legal decisions . s. 43 — G. They may try the defendant against his will s.v. דן . Cf. also San. 6a. Thus also Asheri and Sefer ha-Terumoth. Should there be a difference of opinion among the litigants as to the type of adjudication in the contested matter, one demanding that it should be tried by a judicial Court and the other maintaining that businessmen should be appointed to arbitrate the case, — the law is that if the accepted local custom is to submit such a case to arbitration by businessmen, this custom should be followed since ‘an accepted custom overrides a law’ (Y. Yeb. XII, 1(12c) ; Y. B.M. VII, 1(11b) ; Maseketh Soferim XIV, 18) — R.A. Eger, P.Tesh. if the latter declines to come down before Court, or he is not willing to attend the Court with the plaintiff in his home town. § 14. It is only the defendant who cannot refuse to go to Court with the plaintiff in the latter’s home town, but the plaintiff may compel the defendant to go with him and have the case tried at the place of Assembly ( בית הועד ) i.e., the meeting place of scholars. And as to the Supreme Court even the defendant may request the plaintiff to have the case tried there (v. infra § 13) — M.E. But if he is willing to attend the Court with him in his home town, only that he is not pleased with the three [Judges] whom the plaintiff has chosen, — then [the law is that] each [litigant] chooses one [Judge and the two Judges together choose a third]. 3a, Tosaf. s.v. אי אפשר and cf. infra § 8, 1, Gloss. Gloss : As stated infra § 13. It seems to me [ that this applies ] only to Judges who are not permanent, but if there are permanent Judges in town he cannot say, 'I will attend Court in their presence only on [ the condition that ] each [ litigant ] chooses [ one Judge and the two Judges together choose a third ]'. Thus is the accepted custom in our town. , infra § 22, par. 1 end .

A person may take the law into his own hands in order to safeguard his interests. II, 13. If he sees aught that belongs to him in the hand of another person who robbed it [from him], he may take it from his hand,: ‘Ben Bag Bag stated: Do not enter (stealthily) thy neighbour’s courtyard in order to take aught without his knowledge even if it belongs to you lest you will appear to him as a thief. You may, however, break his teeth and say to him (the alleged offender), I am taking possession of what is mine.’ This deals with a case where the loss is not an irretrievable one and supports R. Naḥman’s viewpoint. Furthermore, we might have thought that the legal principle, ‘a man may take the law into his own hands’ applies only to a case where one comes to seize aught that is in the possession of another individual, in which case, the latter, in order to safeguard his interests may take the law into his own hands, but not so in the case where the article is already in the possession of the offender. Ben Bag Bag, therefore, in stating that a man has a right to say, ‘I am taking possession of what is mine,’ informs us otherwise. and if the latter makes a stand against him, he may strike him n. 1) since it involved an irretrievable loss (for there would be no water left in the well by the time they go to Court), — yet, we see that he was permitted to strike him, whence it follows that even according to the view that one may take the law into his own hands even where no irreparable loss is pending, he may also strike the offender. until he releases it, — if he cannot save [ the stolen article ] otherwise — G. Thus also Asheri. Derived from B.K. 27a in the case of the ox that threw himself on the back of another ox with the intention to kill, where it is pointed out that one may not cause damage to a tort-feasant animal if it was possible to save his own chattel otherwise, even where there is an irretrievable loss involved. Much more so in the case of striking an individual in order to protect one’s interests where it is possible to do so without having to resort to bodily injury. — even if it is aught that does not involve an irretrievable loss should he [have to] wait until he takes legal proceedings against him, n. 1). Tur has, ‘and if his opponent is dissatisfied with him and took him to law and they (the Judges) found that the claimant had acted in accordance with the law, they do not try his case again.’ This is explained by ShaK as follows: If his opponent states that he is prepared to go to law with him and to obey the Court’s decision on the condition that the seized article be returned to him and that he will settle the case by making payment in another form, we do not try the case again, since the seizure was found to be legal. provided he can prove that [what] he takes [is] his own in accordance with the law. and Asheri. Derived from B.K. 117a: ‘Two people quarrelled about a net. One said, It is mine, and the other said, It is mine. One of them ultimately went and handed it over to the Parangaria (a public service) for confiscation. Said Abaye, he should have the right to plead, When I handed over the article it was my own property that I surrendered. Said Raba to him: Is he then believed if he says so? — Raba therefore, said: We impose a ban upon him until he returns the net and appears before the Court.’ It follows that only if he were able to prove that it is his do we apply the principle, ‘a man may take the law into his own hands.’ Otherwise not. , also M.K. 17a where it is stated that ‘a scholar may take the law into his own hands when he is absolutely certain as to the law,’ whence it follows that one who is not a scholar must be prepared to establish that it is definitely his. For if he cannot prove that the article is his, then not only is he forbidden to strike him and seize the article, but he is forbidden to take the article even without resorting to force. This is applicable only if he seizes the article in the presence of witnesses, but if there are no witnesses present, he may seize it, since then he would be believed before the Court on the principle of Miggo (v. supra § 1, n. 50) — M.E., ShaK. Nevertheless, he has no right to seize a pledge for his debt [when it matures]. (Deut. XXIV, 10). B.M. 113a: ‘One who lends money to his fellow, may take a pledge of him (when the debt falls due) only through the Court.’ Not only is he prohibited to enter the debtor’s home in order to seize the pledge, but even outside of the home it is permitted only for the Court officer to seize it forcibly according to Samuel ( ibid. ). If, however, the borrower denies the debt, the lender may seize the pledge without witnesses in order that he be believed on the principle of Miggo (v. supra n. 6). For the reason why it is forbidden for him proper to seize the pledge is that he can seize the pledge through the Court, but in this case where he cannot collect it through Court, he may seize it himself (v. infra § 97, 15). Cf. also infra § 61, 6. Thus Sha‘ar Mishpat. K.H. reject this — P.Tesh. Gloss : On account of the reason which will be explained infra § 97, par. 6. Some say [ that this applies ] only to [ seizing a pledge ] for his actual debt [ which was incurred through a loan ], but if he owes him [ aught ] not on account of a loan ,: You may not enter his (the debtor’s) house, but you may enter the house of the surety (to seize for a debt), and so it is written, Take his garment that is surety for a stranger (Prov. XX, 16) ; also, My son, if thou be surety for thy friend, if thou hast stricken thy hand with a stranger, thou art snared with the words of thy mouth. Do this now, my son and deliver thyself when thou art come into the hand of thy friend; go, humble thyself and make sure thy friend ( ibid. VI, 1-3). Another interpretation: You may not enter his house, but you may enter (to distrain) for porterage fees, payment for hiring asses, the hotel bill etc.’ Hence we see that in the latter cases one may take the law into his own hands and seize even a pledge. or where he [ the creditor ] does not have to take a pledge, — for it [ the pledge ] is already in his possession as a deposit — or [ in the case where ] he discovered it in the possession of another person n. 7. For the prohibition applies only to entering the debtor’s home and seizing it directly from him forcibly, but if the pledge was already in the hand of the creditor as a deposit, or where he seizes it from another person, not from the debtor, it is permissible. Especially according to Tosaf. (B.M. 113a, s.v. אימא ) who write that the prohibition against the creditor seizing forcibly from the debtor, even outside of the latter’s home, is only a Rabbinical measure lest he seize in his (the debtor’s) home. According to Zohar, Bamidbar 119a, it is forbidden to seize even a pledge that was deposited with the creditor ( K.H. ). R. Menaḥem Azariah da Fano states that if the deposit preceded the loan, it is permissible to retain it — P.Tesh. — he is permitted to seize it . s. 396 — G. And some say that we apply the principle 'A man may take the law into his own hands in order to safeguard his interests' only with respect to an article [ concerning which ] it is clearly evident to him that it is his, e.g., where one robbed him, n. 2) whence we see that in the case of an article concerning which it is clearly evident that it belongs to him, he may enter and take it by force. It is clear that the article in question was stolen. The principle, ‘a man may take the law into his own hands’ has reference only to a case where the person proper came to inflict damage intentionally, but does not refer to his chattel which does this without the owner’s knowledge — P.Tesh. or one desires to rob him, n. 3). or one desires to cause him damage, n. 4. [ in which case ] he may save that which belongs to him, but if one has become liable to him on account of a [ previous ] robbery or on account of other grounds, [ we do ] not [ apply this principle ].. and N.Yos. to B.K. III — G. Derived from Ber. 5b: ‘It once happened that four hundred casks of wine belonging to R. Huna turned sour. R. Judah, the brother of Sala, the Pious, and the other scholars … went to visit him and said to him: The master ought to examine his deeds (perhaps your misfortune is a result of some sin). He said to them: Do you suspect me? They replied: Is the Holy One, Blessed be He, suspect of punishing without justice? — He said to them: If somebody heard of anything against me, let him speak out. They replied: We heard that the master does not give his tenant his (lawful share in the) vine twigs. He replied: Does he leave me any? He steals them all! They replied: This is exactly what people say, If you steal from a thief, you also have a taste of it.’ Mord . maintains that the sin of R. Huna was that he took the law into his own hands, and, though, a scholar may act so (v. supra n. 6), yet, it applies only to an article which is absolutely his, but in a case where the claim has to be proved and collection has to be made ( מחוסר גוביינא ), even a scholar (according to this interpretation) may not take the law into his own hands. And only he alone may take the law into his own hands in order to safeguard his interests, but he is forbidden to do [ this ] through a heathen Court. s. 304 — G. , infra § 26. However, if he violated [ the law ] and did [ this ] by means of the [ government ] officers, — provided he was not able to save [ aught ] in another manner, — [ the law is that ] his act cannot be undone. Rt. 161 — G. Derived from B.K. 117a regarding the case of the net. , supra n. 6 for text. This is in accord with the interpretation of Mord . of Is he then believed if he says so? i.e., he could not prove that it was his. If he were able to save his article by other means but went to a heathen Court through which he obtained his article, and subsequently slanderized the offender, he must pay damages as in the case of an informer — ShaK. Seizing forcibly in a doubtful case is not valid through a heathen Court ( R.A.Eger ) — P.Tesh. Some say that [ the principle ] 'a man may take the law into his own hands in order to safeguard his interests' is applicable only when he inflicts injury upon his fellow, e.g., when he strikes him. ) — ShaK. Consequently, one may [ so ] act only when he can make certain that the [ article in question ] is his own, but a mere seizure, [ viz., in the case ] where he seized a pledge [ without having to resort to force — the law is that ] one may do [ this ] in any case and subsequently he goes down with him to Court. Rt. 161 — G. Derived from B.K. 27b concerning R. Ḥisda’s query (v. text supra n. 3), whence it follows that the principle, ‘a man may take the law into his own hands’ refers only to a case where the claimant is certain that the article is his and may even resort to force in order to safeguard his interests. Consequently, seizing forcibly a pledge where both the Biblical prohibition Thou shalt not go into his house to fetch his pledge (Deut. XXIV, 10) as well as the Rabbinical prohibition (v. supra n. 9) do not enter, would be permissible under all conditions and would not come under the category of ‘legal adjudication’ ( דינא ). Hence, the principle ‘a man may take the law etc.,’ would not be applicable in such a case. For ‘seizure’ ( תפיםה ) without ‘striking’ ( הכאה ) is not designated ‘legal adjudication’ ( דינא ). This is substantiated by B.M. 115a (v. text supra n. 8). The latter text would present difficulties even according to R. Naḥman (needless to say according to R. Judah), for as seen above, ‘a man may take the law into his own hands’ is applicable only where the article is intact and is certainly his (the claimant’s), but what is not specifically his does not come under this principle. Consequently, it may be asked how may the claimant enter the home of the surety etc., to take or seize an article which is not specifically his? However, if we say that seizure without striking is not ‘legal adjudication,’ he may enter the home of the surety even against the latter’s will, for this is not a case of taking the law into his own hands. As far as Ber. 5b (v. text supra n. 14) is concerned the vine twigs were taken by R. Huna not as ‘seizure’ ( תפיםה ), but rather as ‘payment’ ( תשלומין ), i.e., not with the intention to go subsequently to law. Hence, Isserles states here, ‘and subsequently he goes down with him to Court,’ i.e., he may seize the pledge on the condition that he have the matter dealt with subsequently by the Court. This entire [ foregoing ruling ] deals with one individual in conflict with [ another ] individual, but [ in the case of ] an individual in conflict with an [ entire ] community, n. 6) although he may not be able to prove this before others. An entire community enjoys the status of a scholar in this respect. This is substantiated by B.B. 24b on the principle that ‘a pot that belongs to two partners is neither warm nor cold,’ i.e., since the opinions of an entire community differ and each townsman would rely upon the other, the Rabbis were lenient with them and gave them the status of a scholar even if the individual townsman would suffer thereby. Furthermore, in the case of an entire community it is difficult to ascertain the matter, since they are all interested parties as in the case of a scholar who cannot ascertain his case before others being occupied with his learning. Consequently, the onus of proof rests upon the defendant. Cf. also B.B. 100a. — [ the law is that if ] he is one of the townsmen, Rt. 1). In Rt. 2, MaHaRIK states the reverse, viz., that even with respect to an individual who is not one of the townsman, the members of the community are also regarded as ‘actual possessors’ ( מוחזקים ). It is for this reason that Isserles does not state the law regarding one who is not a member of the community, for it seems that he is doubtful regarding this matter — M.E. ShaK , however, writes that the townmen may take the law into their own hands only with respect to a member of their own community who is in conflict with them, but as far as the townsmen are concerned they are regarded as ‘actual possesors’ even with regards to one who is not a member of their community. , P.Tesh. for conflicting views in this matter. Also with respect to a pledge that has to be given by the individual to the community (v. Gloss anon) before going to Court, the law is that there is no difference between an individual from the same town or not — W.G. they may take the law into their own hands in order to safeguard their interests, [ provided ] if they know that the law is in their favour, although they are unable to prove [ this ] before the Court of Law, — for they cannot testify since they are all interested parties in the matter. 27, s. 95 — G. , § 7, par. 12 and § 37. And if there are differences of opinion and claims between them, — the [ members of the ] community are called the actual possessors with respect to the individual [ who is in conflict with them ], anon). Their power is derived from the ruler or governmnt since his security ( שעבוד ), i.e., that everything stands pledged to the latter, takes precendence over all other securities. This is substantiated by B.B. 55a : ‘If property is purchased by rich landlords (they paid to the government the tax on land, the owners of which were in arrears and thus became the owners of the land) who buy up land from the ruler or his servants and pay the tax on it, the sale is valid. This has reference, however, only to (land) which is transferred to the rich landlords because of the land tax, but if on account of the poll tax, then a purchase from them is not valid, because the poll tax is a personal liability. R. Huna, the son of R. Joshua said that even barley in the pot is seizable for the poll tax. R. Ashi said: Huna b. Nathan told me that Amram found that this view is untenable because if it were so, it would interfere with the law of the double portion to which a firstborn is entitled in the case of an inheritance (Deut. XXI, 17), for all the (inherited) property would thus become ‘prospective’ (since all the property was seizable by the government on account of the poll tax) and (the law is that) a firstborn does not receive a double portion in prospective as in actual assets.’ The Gemara concludes that the father must have paid the land tax prior to his death thereby making his assets actual. Hence, we see that the tax collectors who are authorized by the government are considered ‘actual possessors’ ( מוחזקים ). , Tosaf. ibid. s.v. אם כן . Thus also according to Yeb. 46a and Tosaf. s.v. כי נפקי . Consequently, the townsmen may say to the individual, ‘Prove your case because it is the claimant that must produce evidence’ ( המוציא מחבירו עליו הראיה ). And if he cannot produce evidence, they take an oath and are exempt, or if they wish, the individual takes the oath. However, the choice is in their hands as is the law of an ‘actual possesor’ ( מוחזק ). and he is required to give them a pledge before they go down with him to Court .. to B.B. VI and II end — G. Derived from B.B. 24b: ‘Trees must be kept away a distance of twenty-five cubits from a town … If the tree was there first, it is cut down but compensation must be given (Mishna). Gemara: Why cannot the owner of the tree say, Compensate me first and I will then cut it down? … A pot with two cooks is neither hot nor cold’ (i.e., each townsman will wait for some other to compensate as a result of which the tree will still remain). Similarly, in the present case, the pledge must be given by the individual to the townsmen and the former becomes the claimant, otherwise the matter will be neglected. The fact that they are called actual possessors with respect to an individual applies only in matters of taxes but not in other cases . 25b) is it stated that (in the case of a doubt whether the pit or the tree was there first) the tree is not cut down? — With respect to pit it is stated that if the tree was certainly (there first) it is not cut down (contrary to the case of the tree that was there before the town was founded). Consequently, when there is a doubt we also do not say to him, Cut it down. However, in the present case even if the tree was there first it is cut down, consequently, if there is a doubt we also say to him, Cut it down. And should the question of compensation arise, we say to him, Produce evidence that it is yours (i.e., that the tree was there first) and take compensation.’ It follows therefrom that the fundamental reason for cutting down the tree in the case of doubt and not giving compensation is because it is obligatory to remove the tree and since we rule that even if it is certain that the tree was there first, it is cut down, consequently, the doubt remains only regarding the compensation and the townsmen are regarded as the ‘actual possessors.’ Hence, only with respect to monetary matters do they enjoy the status of ‘actual possessors,’ being empowered by the ruler or the government, but not in other matters. Nevertheless, he must give [ them ] a pledge before they go down to Court with him . s. 341 — G. The pledge must be given by the individual even in a case where the community does not enjoy the status of a possessor, so that the individual should be the claimant. supra n. 23. This entire [ foregoing ruling applies only ] where the individual [ who is in conflict with the community ] is not a scholar, but if he is a scholar where the [ study of the ] Torah is his [ sole ] profession and he has a claim in this [ matter ] on account of taxes, he is not required to give them a pledge and they too are not called actual possessors with respect to him . — G. B.B. 8a deals with scholars who are exempt from the burden of taxes and imposts and ibid. 7b it is considered a transgression against the Holy Writings to collect taxes from them. It follows, therefore, that even if the townsmen have a claim against a student of the Torah, they are not regarded as ‘actual possessors’ for a scholar is released Biblically from the ruler’s obligation. It is permissible to compel [ an individual to comply ] with [ the laws pertaining to ] matters of taxes by means of a heathen Court and to cause him to suffer a loss if they cannot collect from him the tax otherwise . Rt. 17 and 27 — G. Git. 88b. Cf. supra § 2, n. 10.

It is forbidden to try [civil suits] on the Sabbath and on a Festival. (An optional secular act refers to one that involves somewhat of a religious act). Explained ibid. 37a: ‘It is a preventive measure lest he write,’ i.e., the arguments and the decision ( פםק דין ). , O.H. § 339, 4; § 524, Thus also Yad, Shabbath XXIII, 14. The members of the Beth Din should be careful not to assemble on the Sabbath in the locale where they ordinarily conduct legal proceedings during weekdays lest it should appear that they are sitting in judgment (v. San. 88b where it is stated that on Sabbaths and Festivals the Great Sanhedrin did not meet in the Hall of Hewn stones but rather in the Ḥel. Cf. Ba’er Heteb to O.Ḥ. § 339, n. 3) — P.Tesh. However, if this locale is also used as a meeting place for those who occupy themselves with the needs of the community, it is permissible, — for the law is that one is permitted to devote himself to communal needs on the Sabbath (O.Ḥ. § 306). On Ḥol ha-Moed it is permissible to hold judicial sessions and to put the decision down in writing (O.Ḥ. § 545, 5) — A.H. However, if one violated [this law] and judged [on the Sabbath or Festival], his decision is valid. and Asheri state that the source of this law is the Y. Not found, however, in Y., but rather in Tosef (Ẓ). Yom Tob IV, 4. As to putting the decision down in writing, it may be done on the following day (v. infra § 235, 28) — P.Tesh .

The Judges do not hold a judicial session [on account of a claim] less than a Perutah's worth. worth’ (If one admits liability or there are witnesses to substantiate this admission, and payment is nevertheless refused, a Court session may be held in order to compel the debtor to pay). For in the case of robbery of less than a Perutah ’s worth, it is not considered ‘money’ (Gemara ibid. ) — M.E. In the case of a claim of vessels, however, the Court meets even if less than a Perutah’s worth is involved. , infra § 88, 3. Thus also RaN to Sheb. VI, R. Yeruḥam; Maim . Yad, To‘en we-Nit‘an III, 5. Others oppose this view and maintain that even in the case of vessels a Court session meets only when at least a Perutah’s worth is involved, for less than that is not considered ‘money’ — ShaK. Tummim states that Shitah Mekubeẓeth writes on the authority of RITBA (to B.M. ibid. ) that if the claim concerns an object that is still extant, a Court session may meet for this purpose, even if it involves a claim of less than a Perutah ’s worth. It is only when payment is demanded that it must involve at least a Perutah ’s worth. In the case of two partners who have a claim against an individual in the amount of a Perutah , the law is that although the claim involves only half a Perutah with respect to each partner, yet, since the claim of the partners as a whole involves at least a Perutah ’s worth, we may hold a Court session therefor. This would not apply to two individuals (not partners) who together have a claim of a Perutah ’s worth against the same party — P.Tesh., A.H. If one person has a claim of a Perutah ’s worth against two people, a judicial session may be held therefor, since with respect to the plaintiff the claim is regarded as ‘money’ — A.H. If the Court held a session for a claim that involved less than a Perutah ’s worth, such Court has the jurisdiction of a Beth Din insofar as admissions made in their presence are considered binding. Likewise with respect to one who was found to be a liar at such a session, the law is that he remains under such presumption — Nethiboth . However, if they met [on account of a claim of] a Perutah's worth, they may conclude their trial even for [a claim] less than a Perutah's worth. citing Maim. Yad, Sanhedrin XX, 11 in accord with R. Kattina (B.M. ibid. ): ‘The above text states: R. Kattina said: The Court holds sessions even for less than a Perutah ’s worth. Raba raised an objection: And he shall make amends for the harm that he hath done in the holy thing (Lev. V, 16), this (redundant and ) extends the law of making amends even to less than a Perutah ’s worth. Hence, it applies only to Hekdesh but not to Ḥullin! (i.e., only in the case of sacred objects amends should be made even regarding less than a Perutah ’s worth, but not in secular objects. In the latter case one may be compelled to restore aught that involves at least a Perutah ’s worth) — But if it was said, it was said thus: R. Kattina stated, If the Court met for a claim of a Perutah ’s worth, they may conclude (the case) even for less (i.e., if for some reason the claim was reduced to less than a Perutah ’s worth), (because) at the commencement of the trial a Perutah must be involved, but at the conclusion a (claim of a) Perutah ’s worth is not necessary.’ This latter statement viz., that ‘at the commencement of the trial … not necessary,’ should be understood as follows: Even if the defendant after the verdict is rendered puts forth a claim against the plaintiff which involves less than a Perutah ’s worth, the Judges may conclude the trial even for this amount, the reason being that it is all regarded as one trial, for if the defendant is legally proven to be justified in his claim, he may deduct whatever is owing to him from the plaintiff’s claim. Thus Rashi ibid. and Kesef Mishneh to Yad ibid. It is for this reason that Caro in the present ruling states, ‘and they may conclude their trial,’ whereas Maim. ibid. has ‘and they may conclude his trial’ — M.E. , B.M. ibid., Tosaf . s.v. ותנא דידן ; W.G. and Be’er Eliyahu a.l. M.E. adopts the ruling of Asheri contra Maim. , that even if they hold a session for a Perutah ’s worth, they may not conclude the proceedings for less than a Perutah ’s worth. If for some reason the plaintiff’s original claim is reduced to less than a Perutah and at the conclusion of the trial the plaintiff puts forth another claim of less than a Perutah ’s worth, according to some, even Asheri will hold that the trial may be concluded, because both claims are combined. BaḤ , however, disagrees with this — P.Tesh .

A Court of three [Judges] of which one was a proselyte is unfit to judge a fellow Israelite Thus also Yad, Sanhedrin XI, 11 and cf. ibid. Melakim I, 4. Derived from Yeb. 102a: ‘Raba said: A proselyte may judge a fellow proselyte according to Biblical law, for it is said, Thou shalt in any wise set him king over thee, whom the Lord thy G-d shall choose, one from among thy bretheren, shalt thou set king over thee (Deut. XVII, 15. ‘King’ is taken to mean also ‘Judge.’ Prov. XXIX, 4); only when set over thee must he be one from among thy brethren , but a proselyte may judge his fellow proselyte.’ Rashi explains this passage as referring to capital cases, for as far as civil suits are concerned, a proselyte may judge even Israelites according to Mishna San. 32a: ‘All are eligible to judge civil suits’ which is explained in Gemara ibid. 36b: ‘All includes a proselyte. ’ Tosaf. (Yeb. 45b, s.v. כיון ) however, maintain that the passage in Yeb. 102a refers to civil suits (i.e., if his mother was not an Israelitish woman he may judge only a fellow proselyte in civil suits but not an Israelite), and as to the text in San. ibid. it refers to a proselyte who judges a fellow proselyte only. Alfasi and Asheri write that in San. we deal with a proselyte whose mother was an Israelitish woman. Caro ’s present ruling, viz., that even if one of the members of the Beth Din is a proselyte, the Court is unfit to judge an Israelite, is derived from Yeb. 101b: ‘R. Samuel b. Judah was once standing before Rab Judah when the latter said to him, Come up to this bundle of reeds (a place designated for a Ḥaliẓah ceremony) to be counted in the number of five (judges at the Ḥaliẓah ceremony) so that the matter be publicized well (i.e., in order that it become known that she is a Ḥaluẓah and forbidden to a Kohen ). We have learned, the first said, In Israel (Deut. XXVI, 10) means at a Court of Israelites, but not at a Court of proselytes, and I am a proselyte.’ This shows that even if one of the members of the Court is a proselyte, it is unfit to judge. Even the children’s children of a proselyte are ineligible to judge Israelites — M.E. unless his mother) he may judge even an Israelite.’ For then the proselyte is considered one from among thy brethren . , Yeb. 45a and Tosaf. s.v. כיון . Likewise three proselytes whose mothers were Israelitish women may act as Judges of a Beth Din even for Israelites ( D.M., B.Yos. ) — M.E. or his father . on the authority of Tosaf. (Yeb. 102a, s.v. ( לענין חליצה ) — G. Cf. Kid. 77a. If his father alone was an Israelite (and his mother was a proselyte — R.A.Eger ) it goes without saying that the proselyte may judge a fellow Israelite — M.E. were Israelitish. A proselyte may, however, judge his fellow proselyte s.v. לענין חליצה and ibid. 98a, Tosaf. s.v. נשא ). But as far as the proselyte Judge is concerned even if he was conceived and born in a hallowed condition, he may not judge a fellow-Israelite — R.A. Eger, P.Tesh . although his mother is not an Israelitish woman. Cf. supra n. D.M. writes on the authority of Mord . that a proselyte may judge another proselyte only with the latter’s consent. M.E. states that he has not found this implication in Mord . nor in Asheri , but the law is (in accordance with Y.D. § 269 end) that a proselyte may judge a fellow proselyte even through compulsion and if the litigant agrees to be tried before a proselyte Judge, the latter may judge even an Israelite. Thus also BaḤ and ShaK .

Whoever appoints an unworthy Judge, in Israel, for it is written, Judges and officers shalt thou appoint thee , and near it is said, Thou shalt not plant thee an Ashera of any kind of tree (Deut. XVI, 18-19).’ Tree refers to a Judge. , Ta‘an. 7a to Deut. XX, 19. or (as the English ‘to wit’), but rather as the Waw copulativum that introduces an alternate item, i.e., having the meaning of ‘or.’ , Kimḥi’s Heb. Gram. , ed. Chomsky p. 352. Hence, the meaning here is a) One must not appoint an unworthy Judge, i.e., one who is unworthy in his deeds or actions, though he may be a scholar, or b) One who is not a scholar, though he is considered worthy in deeds (-a totally pleasant individual, i.e., outwardly his actions are becoming). The ruling supra § 3 that even if one of the Judges is versed in law and is endowed with reasoning power, it suffices, has reference only to ex post facto decisions. However, in the first instance, the Judges who are appointed permanently must be versed in the law. , supra § 3, n. 42. one who has no knowledge in the wisdom of the Torah and is not fit to be a Judge,’s household once appointed a Judge who was incompetent. The Rabbis said to R. Judah b. Naḥmani, the interpreter of Resh Lakish: Stand at his side as interpreter. When he stood at his side and bent down (to hear what he was saying), the (interpreter) said nothing. Whereupon R. Judah commenced his exposition and said, Woe unto him who saith unto wood : Awake! — to the dumb stone : Arise! Can this teach? Behold it is overlaid with gold and silver and there is no breath at all in the midst of it (Hab. II, 19); but the Holy One, blessed be He, (he continued) will punish those who set them up, as it is written, But the Lord in His holy Temple; let all the earth keep silence before Him ( ibid. ).’ — even if he is a totally pleasant [individual] and possesses other good [qualities], — [yet,] the one who appointed him transgresses a negative precept., i.e., one must not respect his friend by appointing him as a Judge because the latter is wealthy, or is a relative of his or for any other similar reason. Cf. Yad, Sanhedrin III, 8. Gloss : It is forbidden to appoint an unlearned person [ as ] a Judge on reliance that [ in every legal matter ] he will always consult a scholar . Derived from Shab. 139a: ‘What is the meaning of the verse, The Lord hath broken the staff of the wicked, the sceptre of the rulers? (Is. XIV, 5). Mar Zutra said. This refers to scholars who teach the laws of the public to ignorant Judges,’ i.e., the ignorant Judges are appointed in reliance that they will consult the scholars in doubtful matters, but they act of their own accord and thus pervert justice ( Rashi ). Hence, we see that an ignorant Judge should not be appointed on the reliance that he will always consult the scholar. [ In ] towns where there are no scholars [ available ] who are fit to be Judges, or where all of them are unlearned people and they require Judges to adjudicate [ cases ] among them so that they go not before heathen Courts , — [ the law is that ] they may appoint [ as Judges ] the best and the wisest of them with the consent of the townspeople, although they are not fit [ to be ] Judges .) explains that R. Meir maintains thus only in the case of Syrian Courts whose Judges were unversed in Jewish law; but the Sages hold that if they are fit, they are regarded as Mumḥin appointed by the Beth Din and cannot be disqualified, i.e., since they were accepted by all the townspeople as Judges they may not be disqualified, provided there are no Mumḥin available there. , supra § 3, n. 4. However, once the townspeople accepted them [ as Judges ] no other person can disqualify them . Likewise , [ the members of ] an entire community can accept a Court of Law [ that consists of Judges ] who are not fit [ to judge ] Biblically . on the authority of RaShBA, Resp . — G. , infra § 33, 18 Gloss . And every Judge who gets appointed on account of silver or gold, — [the law is that] it is forbidden to rise before him;’s text has לפניו which should be corrected to מפניו . Thus Y. , following note. and what is more, it is a religious duty to treat him with disrespect and to despise him. § 3 end — G. Yad, Sanhedrin III, 9; Tur . Derived from Y. Bik. III, 3(65d); Midr. Sam. VII: ‘R. Mani spoke with disrespect of those that get appointed to office for money. R. Imi would apply to them the Scriptural verse, gods of silver, or gods of gold, ye shall not make unto you (Ex. XX, 20). Said R. Joshiah: His official cloak is as befitting to him as the packsaddle of an ass. Said R. Sheyan: For one who is appointed to office on account of money, one should not rise, nor is he called Rabbi etc.’ , San. 7b: ‘It is written: Ye shall not make with Me gods of silver or gods of gold (Ex. ibid.). Does it mean that only gods of silver and gold are not to be made, but those of wood are permissible? — The verse, said R. Ashi, has reference to Judges appointed through the power of silver or gold.’ Cf. San. 63b: ‘All scoffing is forbidden except the ridiculing of idols (by perverting their names).’ Hence, just as idolators may be treated irreverently, so also Judges who are appointed through the power of money. This refers to a Judge unversed in Jewish Law, but if he is learned in the Torah, even if there are others greater than he in that city, there would be no prohibition against rising in his presence, provided he did not buy his judgeship for money, but was appointed to office because he was wealthy. For if he paid money to be appointed, even if he is the most learned in the city, the prohibition stands. Thus BaḤ . However, according to Tosaf. Yeshanim to Yoma 18a, s.v. מרתא in the case of R. Joshua b. Gamala who was appointed to the High Priesthood for money, only if there are others superior to him in learning does the prohibition apply, but not otherwise. Thus Ḥatam Sofer contra BaḤ .

The Judge must be exceedingly in Y.D. § 160 beg. regarding the prohibition to take usury; ibid. § 336 beg. ref. to the physician who heals; Tur E.H. § 21 ref. to incest. Cf. Ab. IV, 4: ‘Be exceedingly humble’ ( מאד מאי הוי שפל רוח ), because by nature man is haughty — M.E. For any matter that involves the possibility of a material loss (in our case the gift or bribe that is given to the Judge which is forbidden) requires urging on since it is contrary to human nature not to accept. Cf. Sifra to Lev. VI, 2. , supra § 7, n. 33. careful not to take a bribe even to acquit the innocent, (Ex. XXIII, 8). If to teach that one must not acquit the guilty or that one must not condemn the innocent, (we may object because) it has already been stated in the Bible, Thou shalt not wrest judgment (Deut. XVI, 19). Hence, even if (the Judge wishes) to acquit the innocent or condemn the guilty, the Torah states, And thou shalt take no gift .’ Ibid. 105b: ‘Why is it called Shoḥad ( שוחד taken as contraction of שהוא חד , it is one) ? — Because it is one.’ (the recipient and the donor become one person). Cf. also Sifre to Deut. XVI, 19. The prohibition against accepting bribes refers not only to Judges but to all persons who are entrusted with communal matters although no adjudication of law is involved — P.Tesh . Likewise is it forbidden to accept equal bribes from both litigants although the foregoing reason no longer applies — M.E. The Judge must not accept any gifts from the acquitted party even after the conclusion of the trial — Asheri to San. 27a in the case of Bar Ḥama. and if he accepted it, he must return it when the donor claims it. XXIII, Derived from Tem. 4b: ‘Abaye stated: Every act which the Divine Law prohibits, if it has been executed, the act has its legal effect; for if you were to entertain the opinion that the act does not have its legal effect why is one punished by lashes (on account thereof)? But Raba says that the act does not have its legal effect at all and the reason why one is punished by lashes is because he has transgressed a commandment of the Divine Law.’ After a number of texts are adduced according to which in some cases the transgression of a negative command has its legal effect while in others it does not,— concerning which Abaye and Raba agree, — the Talmud continues ibid. 6a-b: ‘R. Aḥa, the son of Raba said to R. Ashi . . In what respect do Abaye and Raba differ? — They differ with respect to direct usury ( ריבית קצוצה i.e., lending four Denari in return for five) in accord with R. Eleazar. For R. Eleazar stated: Direct usury can be collected through the Judges, whereas indirect usury ( אבק ריבית , lit. ‘dust of usury,’ e.g., if one sells his field and says to the buyer that if he pays him forthwith the price is one thousand Z uz , but if at a later date the price will be more. Consequently, if the buyer pays at the later date, the additional amount is regarded as indirect usury) cannot be collected through the Judges. R. Joḥanan states: Even direct usury is not collected through the Judges (Hence, Raba will conour with R. Eleazar and Abaye with R. Yoḥanan). But do they (Abaye and Raba) differ merely in logical reasoning? Do they not differ in the interpretation of Biblical texts? For R. Isaac said: He hath given forth upon usury and had taken increase : shall he than live? He shall not live (Ez. XVIII, 13), which teaches that the taking of usury is a matter that concerns life but is not liable to restoration (consequently, even Raba who holds that a prohibited act does not have its legal effect, here he will admit that the act is valid on account of the text). R. Aḥa b. Adda says: From here: Scripture states, But fear thy G-d (Lev. XXV, 36), teaching that the taking of usury is a matter of fearing G-d, but is not liable to restoration. Raba stated: From here: He hath done all these abominations : he shall surely die : his blood shall be upon him (Ez. XVIII, 13). Now, lo, if he begat a son that is a robber, a shedder of blood ( ibid. XVIII, 10). Those who lend on interest are comparable to those who shed blood. Just as those who shed blood cannot make restoration (of the lost lives), so those who lend on interest are not liable to restoration (of interest). R. Naḥman b. Isaac stated: What is the reason of R. Eleazar? (who maintains that direct usury is collectible through the Judges), for the Biblical text says: That thy brother may live with thee (Lev. XXV, 36) thus teaching that he must restore the interest so that he (the borrower) may live with you.’ Consequently, since the law rests with Raba (excluding certain cases), bribes are equated to usury and are collectible through the Judges, which means that the donor claims it. M.E. writes that if the donor does not claim the return of the gift, the Judge is not obliged to return it, because the donor gave it willingly for the purpose of being acquitted contrary to usury concerning which it is written That thy brother may live with thee . Ta Z disagrees with M.E. on the basis of Rashi to B.M. 61b, s.v. ע״כ ריבית קצוצה according to whom the Court may also compel him to return the usury only if he claimed it. Thus also Ta Z to Y.D. § 161, 5, n. 3. Even if the donor claimed the bribe after a considerable time had elapsed, yet, as long as he did not renounce his rights to it, he may still make a claim. However, it is proper that the recipient of the bribe should return it of his own accord if he wishes to do his duty towards G-d and repent — P.Tesh . Just as the one who receives it transgresses a negative command, so does the donor transgress [the negative command], 'Thou shalt not put a stumbling block before the blind.', derived from the law of usury, for just as we deduce the law of returning bribes from the law of usury so too do we deduce from the law of usury that the one who gives bribes transgresses the negative injunction, And thou shalt not put a stumbling block before the blind , i.e., the one who offers a bribe tempts the Judge and thereby places a stumbling block before him. , Mishna B.M. 75b: ‘These transgress a negative injunction : the lender, the borrower, the surety and the witnesses. And the Sages add: the scribe too. They transgress the injunction, Thou shalt not give ( him thy money upon usury ) [Lev. XXV, 37] and Take thou ( no usury ) of him (Lev. XXV, 36) and Thou shalt not be to him as a usurer (Ex. XXII, 24) and Neither shall ye lay upon him usury (Ex. XXII, 25) and Thou shalt not put a stumbling block before the blind, but thou shalt fear thy G-d : I am the Lord (Lev. XIX, 14).’ Gemara ibid. : ‘Abaye said: The lender transgresses all (the injunctions); the borrower: Thou shalt not cause thy brother to take usury (Deut. XXIII, 20. Heb. תשיך is in the Hiph‘il which is causitive. Hence, it refers to the debtor), but unto thy brother thou shalt offer no usury (ibid. v. 21), and thou shalt not put a stumbling block before the blind . The surety and the witnesses: only, neither shall ye lay upon him usury .’ One is forbidden to give a bribe to a Gentile Judge on the basis of and thou shalt not put a stumbling block before the blind , for civil laws are also binding upon all Noaḥides. But if it is evident that the Gentile Judge desires to pervert justice in favour of one of the litigants, it is permissible ( Ḥatam Sofer ) — P.Tesh . And not only a bribe of money [is forbidden] but even a bribe of words [or acts].. (Ex. XXIII, 8); it was not necessary to speak of a monetary bribe, but (the following was intimated) : Even a bribe of words (or acts) is also prohibited, for it is not written, And thou shalt take no GAIN (Heb. בצע which would refer to a monetary bribe only).’ Cf. the cases of Samuel and Amemar a.o. mentioned ibid. , who refused to act as Judges for people who acted in a manner that would be tantamount to a bribe of words or acts. Cf. Y.D. § 161, where the same applies to usury. , supra § 7, n. 33. Every Judge who borrows aught is ineligible to adjudicate the lawsuit of the owner of the lent object. This applies only when the Judge possesses naught to lend [to the latter], but if he had things to lend [to him], he is fit [to adjudicate his case], since the latter too may borrow from him. par. 4. Derived from Ket. 105b: ‘Rabbah b. R. Shilah said: Any Judge who is wont to borrow is ineligible to adjudicate a lawsuit (for the owner of the lent object). This applies only when he possessed naught to lend to others, but if he has things to lend it does not matter. But is this really so? Did not Raba borrow things from the household of Bar Merion though they borrowed naught from him? — There he desired to make them feel important (i.e., the borrowing was not for his own benefit). Gloss : [ This, viz., that the Judge who borrows is forbidden to pronounce judgment for the owner of the lent objcet applies ] only when he is in the habit of borrowing from him, but [ if the borowing is merely ] incidental, and it is not evident that he does [ this ] on account of the [ lender's ] lawsuit, it is not [ forbidden ]. Rt. 16 — G. Since we compare the prohibition of bribes to that of usury, we likewise learn that a gift constitutes a bribe only when it is clearly evident that it was given for that purpose. , B.M. 75b: ‘It has been taught: R. Simeon b. Yoḥai stated: Whence is it derived that if one is his neighbour’s creditor for a Maneh , the latter must not extend a greeting to him if he was not in the habit of doing this? — From the Biblical verse, Usury of any word which may be usury (Deut. XXIII, 20), — even speech is prohibited.’ Thus we see that it is forbidden only when the debtor was not in the habit of extending a greeting to the creditor, for then it is clearly evident that the purpose of the greeting is on account of the loan he received. But if it was his usual practice to extend a greeting, we consider the debtor’s greeting as of a mere incidental nature. Cf. B.M. 64b, Tosaf. s.v. אבל חצר . Similarly in the present case. If the Judge was in the habit of borrowing, he is forbidden to adjudicate the case of the lender, but if he borrowed from him by mere chance, and it is not evident that the owner of the lent object does it on account of his lawsuit, the prohibition does not stand.

The Judge must be patient in the [administration of] justice XX, 7 and Tur a.l., derived from Aboth I, 1: ‘Be patient in judgment.’ [viz.,] that he should not give a decision before he protracts [his deliberations] (Is. I, 17), i.e., praise ( אשרו is explained ‘declare happy’) the Judge (in capital cases) who reserves (lit. ‘makes sour’ or ‘preserves,’ i.e., he protracts his deliberations) his judgment (overnight).’ Tur cites כי יתחמץ לבבי וכליותי אשתונן (Ps. LXXIII, 21) which may be rendered, For my heart (i.e., my mind) matures (by protracting the deliberations) and (through) my reins (fig. the soul or mind) I will become sharpened (i.e., through mature judgment). Cf. Ibn Ezra a.l. and v. Ha-Oẓar by S. J. Fin , s.v. שנן ,חמץ . E. renders, For my heart was in a ferment, and I was pricked in my reins . Yad ibid. cites And the cause of him that I knew not I searched out (Job. XXIX, 16). and discussed it [the law] and it becomes clear to him as the sun[light].: Execute justice in the morning and deliver the spoiled out of the hand of the oppressor (Jer. XXI, 12). Is justice executed in the morning and not during the whole day? — It means rather that if it (i.e., the judgment that you are to pronounce) is clear to you as the morning (light), pronounce it, but if not, do not pronounce it.’ He who gives legal decisions in haughtiness and rashly decides the law before he examines it well in private until it becomes clear to him as the sun[light], is regarded foolish, wicked and presumptuous.

In which manner is a defendant summoned to appear in Court? — The [members of the] Court send their messenger to him in order that he come on the appointed day to Court. [If] he did not appear [on the appointed day], they summon him a second time; [if] he did not appear [after the second summons], they summon him a third time; [if] he [still] did not appear, they wait for him all day, and if he did not appear, they place him under the ban on the morrow. (Num. XVI, 12). Whence do we derive that we summon him to appear (in person) ? — For it is written, And Moses said to Korah, Be thou and all thy congregation before the Lord, thou and Aaron ( tomorrow ) ( ibid. v. 16). (Whence that one is to appear) before a distinguished personage? — For it is written, Before the Lord ( ibid. v. 16). (That both parties should be named) thou and So-and-so? — For it is written, Thou and they (that are with them) and Aaron ( ibid. v. 16). That we appoint a time? — For it is written, Tomorrow ( ibid .). One term and then another term (after one more term) ? — They called there, Pharaoh the king of Egypt, (the cause of) commotion; he hath let the appointed time pass by; ( As I live, saith the King, the Lord of Hosts, surely like Tabor among the mountains and like Carmel by the sea, so shall he come ) (Jer. XLVI, 17-18. , Rashi and Targum a.l.)’ That he is placed under the ban only after the third summons is derived from Tosaf. a.l., s.v. מתרינן in accord with the opinion of ‘some explain.’ Thus also Tur. Cf. also B.K. 113a: ‘R. Ḥisda said: (In a legal summons) we appoint a time for the person to appear) on Monday, (then) on Thursday, and (then) on (the following) Monday (The Beth Din held its sessions on Mondays and Thursdays — B.K. 82a), (i.e.,) one term and then another term after one more term (in case of failing to appear) and on the morrow (of the last fixed) we write (the Pethiḥa ).’ , supra § 8, 5, n. 45. The defendant has a right to say to the claimant before appearing in Court, ‘Tell me the nature of your claim,’ and if the claimant refuses to comply with his request, the defendant can say, ‘I will not go to Court with you until you tell me, for it is quite possible that when I hear your claim I will settle with you and indemnify you’ — ShaK contra Be’er Sheba. In the latter case, the defendant should report the claimant’s refusal to disclose the nature of his claim to the Court messenger — A.H. The expenses for the summons should be defrayed by the claimant and not by the defendant — ShaK. The claimant can summon the defendant to appear only on the days that Court sessions are held according to the adopted custom of the community unless the local usage is to hold a Court session whenever the need arises. The writ of summons, however, may be sent to the defendant at any time for it has no fixed time — M.E. When does this apply? — In [the case of one] who was in country towns and departs from and returns to [the city], but [in the case of one] who is usually in the city, only one date is fixed for him [in a legal summons], and Yad, Sanhedrin XXV, 8, derived from B.K. 113a: ‘R. Assi happened to be at R. Kahana’s and saw that a certain woman was summoned to appear before the Court on the preceding evening (and when she failed to appear) he wrote a Pethiḥa against her on the following morning. He then said to R. Kahana: Does not the Master hold the opinion of R. Ḥisda (v. supra n. 1)… He replied: This has reference only to a man who might be prevented by an unavoidable interference, through being out of town, but a woman who is (always) in town and if she fails to appear, is regarded contumacious (after the first act of refusal).’ The adopted custom nowadays is to send three summonses even for one who is in town ( Tummim, Nethiboth ) — P.Tesh. and if he did not appear on that entire day, they place him under the ban on the morrow. has לערב ‘in the evening.’ , infra par. 3. Gloss : [ If ] the [ members of the ] Court went to another place, he [ the defendant ] is required to go after them [ in order to be tried before them ], and if he did not go, they place him under the ban. — G. Tur and Yad do not state this law and on the basis of the Mishna in R.H. 31b [‘should the Head of the Court be in another place, the witnesses (who give evidence for the New Moon) should still go only to the place of Assembly (and the Court declares the sanctification of the New Moon without the Head’)], R. Moses Ibn Ḥabib in his Shamoth ba-Areẓ rejects the present ruling of Isserles . For the law (R.H. ibid .) rests with R. Ashi that all laws are comparable in this respect to the sanctification of the New Moon, contra Amemar ( ibid .) who distinguishes between the sanctification of the New Moon and other laws, because in the former case, the witnesses would refrain from giving evidence were we to insist that they go to the place of the Head, but in other cases, the borrower is a servant to the lender (Prov. XXII, 7). Hence, since the law rests with R. Ashi, Isserles ’ ruling must be rejected. Other authorities defend Isserles — P.Tesh. According to A.H., Isserles ’ ruling would apply only in a case where the defendant does not live in the same locality as the Judge, and if the Judge or the Court are in a different locality now, and the defendant, who was originally summoned to appear for trial in the first place, is not any further away from the second place, he must appear, otherwise he is placed under the ban. The Court messenger is relied upon to state, § 8, 5, nn. 44-45. In all the following cases we place the recalcitrant defendant under the ban. '[The defendant] behaved insolently towards me § 8, 5, nn. 44-45. or towards the Judge s.v. שמתיה . Cf. supra § 7, n. 32. or refused to appear for trial,' § 8, 5, nn. 44-45. In all the following cases we place the recalcitrant defendant under the ban. and they decree the Shammeta, and Ḥerem are Mishnaic terms while Shammeta was used in Babylon. The legal signification of these terms is discussed in Ned. 7a-b and later in Geonic literature. According to Rashi, Shammeta is less severe than Niddui. Maim. Yad, Talmud Torah VII, 2 maintains that they are identical. N in Mishpat ha-Ḥerem claims that Shammeta is a general term for Niddui and Ḥerem. Cf. Lewin B.M. in Oẓar ha-Geonim IV, on Mashkin, Responsa § 29ff, pp. 17-19. ( i.e., the ban or excommunication , and Ḥerem are Mishnaic terms while Shammeta was used in Babylon. The legal signification of these terms is discussed in Ned. 7a-b and later in Geonic literature. According to Rashi, Shammeta is less severe than Niddui. Maim. Yad, Talmud Torah VII, 2 maintains that they are identical. N in Mishpat ha-Ḥerem claims that Shammeta is a general term for Niddui and Ḥerem. Cf. Lewin B.M. in Oẓar ha-Geonim IV, on Mashkin, Responsa § 29ff, pp. 17-19. [ the etymology of Shammeta being ], ' there is death '), — Rab said, שם מיתה “there is death;” Samuel said, שממה יהיה (MS.M. שמה ; ‘Ar. שם תהא read שמה תהא ), He shall be (be thou) a desolation.’ , Jastrow. against him on his [the Court messenger's] testimony, but we do not write a warrant of excommunication on his [the messenger's testimony] until two witnesses appear and testify that he [the defendant] refused to come. § 8, 5, n. 45. The messenger of Court is not held responsible in reporting [this] information on grounds of slander. § 8, 5, n. 46. Gloss : One who states that he is not afraid of the Court order or the Sage , — [ the law is that ] although he does appear in Court [ for trial ], they place him under the ban, for since he states that he comes not on account of the [ Court ] order, it is regarded as contempt of the law . , Y.D. § 334 , [ par. 43 ]. If he stated, 'I do not wish to be tried before you, only before another Court,' v., infra § 14 . § 3. One who is not able to come to Court because he is required to go to distant countries, should inform the Court thereof, and make excuses [ for the postponement of the trial ] and request another date [ for the hearing ], and if he did not do [ this ] they place him under the ban, although he was not able to come . Rt. 11 — G. Derived from B.K. 112b: ‘Raba said: The law is that we may authenticate a document (either by oral evidence or by comparing the signatures) even not in the presence of one of the litigants… and even if he complains aloud before us (that the document was forged). But if he says: Give me time until I produce witnesses and invalidate the document, we give him time. If he comes (with witnesses), then he comes; but if he does not come we wait for him (the following) Monday and Thursday and Monday. If he still does not come we write a Pethiḥa against him (that goes into effect after) ninety days. For the first thirty days we do not go down (to take possession of his property) since we say that he is busy trying to borrow money; during the following thirty days we likewise do not go down to take possession of his property, as we say perhaps he was unable to raise a loan and is trying to sell his property; the last thirty days we likewise do not go down to take possession of his property since we may still say that the purchaser (of his property) is busy himself trying to raise money. If he still does not come (after all this), we write an Adrakta (legal permission to a creditor to trace the debtor’s property for the purpose or having it seized, assessed, offered for public sale and eventually delivered to him) on his property.’ Hence, we see that although he is unavoidably prevented from producing witnesses in which case we give him time to bring proof, yet, he must appear before Court to justify the delay; otherwise, the ban is decreed against him. Cf. also ibid. 113a: ‘Raba said: If a Pethiḥa was written against a recalcitrant offender for not coming before Court, we do not destroy it so long as he does not come before the Court… this however, is not so; for as soon as he states his intention to obey, we must destroy the Pethiḥa .’ One who accepted [ to be tried before ] a Court of two by making an agreement by means of a Kinyan , § 22, and they summoned him and he did not appear , — [ the law is that ] they [ have the power to ] place him under the ban as (Cur edd. have בבייד ‘in a Court of etc.’). e., although the agreement by symbol was made only before two Judges, nevertheless, they have the right to decree the ban against him as a Court of three — M.E. a Court of three . on the authority of RaShBA Resp. — G.

When two [litigants] appear before you for trial, one weak [in influence], the other powerful [in influence], so long as you have not heard their pleas or [even after you have heard their pleas, — [so long as] you are in doubt which way the judgment will incline, you may say to them, 'I am not bound to try your case,' lest the one of powerful [influence] be pronounced guilty and persecute the Judge. (v. infra n. 3) ; Alfasi; BeHaG; She’iltoth, Mishpatim s. 58. Derived from Y. San. I, 1(18b); Sifre to Deut. I, 17; Tanḥuma, Mishpatim s. 6; Tosef (Ẓ). Sanhedrin I, 7. However, if you have [already] heard their pleas, and you know which way the judgment will incline, n. 3. Derived from Ye shall not be afraid of the face of any man ( for the judgment is G-d’s ) (Deut. I, 17). The last part of this verse, for the judgment is G-d’s, refers to the ‘conclusion of the trial.’ Judgment ( משפט ) has reference to the time when the Judge knows which way the judgment will incline (v. supra § 5, n. 17 — M.E. Cf. however, Ta Z a.l. you may not say [to them], 'I am not bound to try your case.' XXII, Derived from San. 6b: ‘When two men appear before you for trial, one weak (in influence), the other strong (in influence), before you have listened to their pleas, or even after, as long as you are in doubt which way the judgment will incline (i.e., in whose favour the verdict will be rendered), you may say to them: “I am not bound to render a decision in your case,” lest the one of strong influence be pronounced guilty and persecute the Judge (Thus Tosaf. But Rashi explains: He will pursue the Judge to have the judgment reversed in his favour). However, if you have already heard their pleas and know which way the judgment will incline, you cannot say to them: “I am not bound to render a decision in your case,” for it is written, Ye shall not be afraid of the face of any man (Deut. I, 17).’ , supra n. 2. Regarding one of the Judges who wishes to withdraw from the case, v. infra § 18, 4. And if he was appointed [to serve as Judge] for the public, he is obliged to try their case. Because the entire community will protect him. This has reference even to a case where the Judge had not yet heard the pleas of the litigants, or even if he did hear the pleas but is in doubt which way the judgment will incline, — yet, since he was appointed by the public he is bound to try the case; whereas one who is not an appointed Judge may withdraw under these conditions. Cf. the following sources which substantiate this ruling: Sifre to Deut. I, 16: ‘And I charged your judges at that time saying : Hear the causes between your brethren etc. — In former days you possessed your own authority; from now on you are slaves and subject to the community.’ Sifre to Deut. I, 17: ‘Lest you say, I am afraid of So-and-so who might put my son to death, or might set my stack of grain on fire, or might cut down my young trees, — the text reads, Ye shall not be afraid of the face of any man. And so too, does it state with regards to Jehoshaphat, and he said to the judges : Consider what ye do, for ye judge not for man, but for the Lord (II Chron. XIX, 6).’ The expression I am afraid of So-and-so etc., indicates that we deal here with a case where one of the litigants is of powerful influence, but since the Judges were appointed they could not withdraw froom the case. W.G., however, disagrees with Caro ’s ruling, viz., that in the case of an appointed Judge he may not withdraw even if he did not hear the case or even if he did hear the case, but is in doubt which way the judgment will incline, where the litigants are of unequal influence. For even in the case of an appointed Judge, W.G. maintains that it is only after he has heard the pleas and knows which way the judgment will incline that he cannot withdraw. And as to the above text in Sifre, ‘In former days (i.e., prior to your appointment as Judges),’ — it has reference even to a case where both litigants were of strong influence at which time you could withdraw before you heard the pleas, or where you had heard the pleas but were in doubt as to the verdict, — for even in such a case there is still the possibility that the litigant who will be pronounced guilty, might harass the Judge, but where only one of the litigants is of strong influence, even an appointed Judge is permitted to withdraw before the pleas are heard etc. Appointed Judges are subject to the community and cannot withdraw save where both litigants are of powerful influence. Furthermore, the text in San. ibid. which also adduces the Biblical verse, Ye shall not be afraid of the face of any man, addressed to appointed Judges, found in Sifre ibid., — clearly states that we deal with a case where one litigant was of weak and the other of strong influence and only before the pleas are heard can the Judge wihtdraw. It follows therefrom that the exposition in Sifre ibid., ‘Lest you say etc.,’ also deals with similar circumstances. Hence, W.G. would not agree with Isserles’ Gloss anon. Cf. also Hag. Asheri to San. III who State the case of Mar ‘Ukba who refused to act as Judge (although he was an appointed Judge. v. Shab. 55a) in a case where he knew that the litigants will not accept his decision (v. San. 29a), which is equivalent to a case where one litigant is of strong influence and the pleas had not been heard. In short, even an appointed Judge is not bound to try the case of strong and weak litigants prior to hearing the pleas or before he knows which way the judgment will incline. Gloss : So too, if they were both powerful [ litigants ] he is required to try their case . to San. I beg. and B.Yos. on the authority of Tosaf. — G. The reason being, that if the one pronounced guilty will harass the Judge, the other litigant will come to his aid ( Tosaf. ibid .) — ShaK. This, of course means even if he is not an appointed Judge. , however, supra n. 4, opinion of W.G. There is, however, an [ authority ] who writes that at present it is nevertheless the adopted practice not to interfere with violators [ of the law ] because there is danger in [ this ] matter lest he [ the violator ] get him into trouble with the government . — G. This means even if both litigants are of powerful influence. , however, D.M. where the order of Isserles’ Gloss is a) not to interfere with violators etc., and then b) the ruling regarding two litigants of powerful influence. Cf. Kid. 71a the case of R. Phineas where we find that if powerful individuals might endanger one’s life, one should refrain from admonishing them. A.H. writes that they may withdraw even at the conclusion of the trial even if they are permanent Judges only if there is danger. If a Judge sees that his other two colleagues (who are incompetent) are perverting justice, he may, when requested to give his legal opinion in the matter, say, ‘I know not the law in this case,’ as a result of which other Judges will be co-opted to form a majority against the incompetent Judges (v. Mishna San. V, 5). This is permissible in the interests of peace ( Tummim, Nethiboth ) — P.Tesh.