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חושן משפט

חושן משפט ב

פרק כה

א ב ג ד ה ו ז ח ט י יא יב יג יד טו טז יז יח יט כ כא כב כג כד כה כו כז כח כט ל לא לב לג לד לה לו לז לח לט מ מא מב מג מד מה מו מז מח מט נ נא נב נג נד נה נו נז נח נט ס סא סב סג סד סה סו סז סח סט ע עא עב עג עד עה עו עז עח עט פ פא פב פג פד פה פו פז פח פט צ צא צב צג צד צה צו צז

Choshen Mishpat

Choshen Mishpat 2

Chapter 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97

א ב ג ד ה ו ז ח

25:1 25:2 25:3 25:4 25:5 25:6 25:7 25:8

Sif

הלכה א

דיין שטעה מתי חוזר ומתי משלם. ובו ה סעיפים:
כל דיין שדן דיני ממונות וטעה אם טעה בדברים הגלוים והידועים כגון דינים המפורשים במשנה או בגמרא או בדברי הפוסקים חוזר הדין ודנין אותו כהלכה: הגה מיהו י"א דאם נראה לדיין ולבני דורו מכח ראיות מוכרחות שאין הדין כמו שהוזכר בפוסקים יכול לחלוק עליו מאחר שאינו נזכר בגמרא (טור) בשם הרא"ש מ"מ אין להקל בדבר שהחמירו בו החבורים שנתפשטו ברוב ישראל אם לא שקבל מרבותיו שאין נוהגין באותה חומרא (פסקי מהרא"י סי' רמ"א) ואם א"א לחזור כגון שהלך זה שנטל הממון שלא כדין למדינת הים או שהוא אלם או שטימא דבר הטהור או שהורה בכשרה שהיא טריפה והאכילוהו לכלבים וכיוצא בזה הרי אלו פטור מלשלם אע"פ שגרם להזיק לא נתכוין להזיק: הגה ויש חולקין (טור בשם הרא"ש) ועוד פוסקים ולענין הוראות איסור והיתר אם הגיע להוראה אע"פ שאינו סמוך דינו כמומחה (נ"י ר"פ אד"מ) ועיין בי"ד סי' רמ"ב מדין הסמיכות בזמן הזה:

משנה ברורה

1.

Every Judge1‘Judge’ is expressly stated to indicate that we deal here only with one who is an authoritative Judge (Mumḥeh) or one who is not a Mumḥeh but was accepted by the litigants to try the case, or three laymen even if they were not accepted by the litigants. However, the decision of one or two laymen is not considered valid even if authorization was obtained from the Resh Galutha (Exilarch) and even if the decision was not given in error — M.E. Thus Alfasi, viz., that the litigant may retract even if they (one or two laymen) did not err. But if it is impossible to retract, e.g., where one left for abroad or the like (v. Caro anon), the Judge must make restitution from his own pocket even if he did not take aught from one litigant and give to the other litigant with his own hand. For even where the Judge took and gave with his own hand, and in reality this should be returned by the litigant who received it in error, the Judge must pay the litigant who suffered a loss, and then collect from the other litigant who received payment on account of the erroneous decision of the Judge. RaZaH contra Alfasi rules that since the decision is invalid, then even if the layman Judge took and gave with his own hand, he is exempt from making payment, for the litigant is responsible since he knew well that the decision of such a Judge is invalid. If the Judge compelled the litigant to give aught to the other litigant, he is considered a robber and must make restitution. ShaK rules in accord with Alfasi where the Judge took and gave with his own hand. who adjudicated monetary cases and gave an erroneous decision — [the law is that] if he erred in evident and known matters, e.g., laws that are explicitly stated in the Mishna2Yad, Sanhedrin VI, Derived from Mishna San. 32a: ‘In monetary cases the verdict may be reversed (on discovering that the verdict was erroneous) either (from conviction) to acquittal or (from acquittal) to conviction.’ Gemara ibid. 33a: ‘But the following disagrees with it: If one adjudicated a case (by himself) and pronounced him who was guilty, not guilty, or the one who was not guilty, guilty; the clean, unclean, or vice versa: his verdict stands, but he must pay compensation (for any damage resulting from his erroneous decision) out of his own pocket (Mishna Bek. 28b. Thus we see that the verdict may not be reversed)? — R. Joseph stated: There is no contradiction: here it (our Mishna) has reference to a Mumḥeh (He had authority to upset his former decision); there (Mishna Bek.) to one who is not a Mumḥeh (His decision stands but he must pay indemnity). But do we reverse the verdict in the case of a Mumḥeh? Have we not learned: If he was recognized by the Beth Din as a Mumḥeh he is exempt from making payment! — R. Naḥman replied: Here (in our Mishna) we deal with a case where there is a Court superior to this one in learning and numbers (therefore, the superior Court can reverse the verdict of the lower Court); but in the other Mishna there is no other Court superior to this one in learning and numbers (i.e., in both Mishnahs the verdict was issued by a Mumḥeh, but where there is no superior Court available, one of the litigants may oppose reversing the verdict). R. Shesheth answered: Here we deal with a case where he (the Judge) overlooked a law cited in a Mishna (Hence, the verdict may be reversed); there he erred in weighing of opinions. For R. Shesheth stated on the authority of R. Assi: If he overlooked a law cited in the Mishna, the verdict is reversed; if he erred in weighing of opinions, the verdict is not reversed. Rabina asked R. Ashi: Is this also applicable if he erred in connection with a teaching of R. Ḥiyya or R. Oshaia (who were held to be the editors of the Tosefta which is not as authoritative as the Mishna)? — Yes, he answered. And even with respect to a saying of Rab and Samuel (whose dicta were not as authoritative as the Tosefta)? — Yes, he answered. Even regarding a law stated by you and me? — Are we reed-cutters in a marsh (i.e., illiterate), he answered. What is meant by the statement, Weighing of (conflicting) opinions? — R. Papa stated, E.g., if two Tannaim or Amoraim are in dispute and it was not stated with whom the law accords and it happened that he (the Judge) ruled according to the opinion of one of them, whilst the general practice (accepted by the majority of Judges. Thus Rashi) follows the other (opinion), — this is considered a case of (erring) in the weighing of (conflicting) opinions … R. Ḥisda stated (in order to remove the contradiction between the Mishnahs supra): Here (the Mishna in Bek.) we deal with a case where he (the Judge) took with his own hand (from one litigant) and gave (to the other in which case the verdict stands); here (the Mishna in San.) where he did not take and give with his own hand (in which case the verdict is reversed).’ Hence, our ruling is in accord with R. Shesheth. Cf. also Ket. 100a; Sheb. 38b; San. 6a. or in the Gemara3San. 33a in accord with Rabina’s query presented to R. Ashi. , text in previous note. or in the rulings of the Codifiers,4Tur on the authority of Asheri and Kes. Mish. to Yad ibid. Derived from San. ibid. , supra n. 2: ‘Are we reed-cutters in a marsh?’ Regarding a Talmudic question which remains unanswered (תיקו) where the law is that ‘the claimant must produce evidence,’ and the Judge erred in his verdict by giving a decision according to which the possessor should relinquish the disputed article — it is regarded as ‘overlooking a law cited in the Mishna’ (N.Yos.), and if the Judge had already given the litigant a right to seize the article, — the law is that this hinges on the difference of opinion stated by the Codifiers whether ‘taking possession’ in the case of a disputed article concerning which the Talmud leaves the question undecided, is valid or not. Tummim holds that possession in this case is valid save that the other party has a right to demand payment by the Judge. Nethiboth, however, states that the Judge is exempt from making payment according to all authorities. the verdict is reversed and it [the case] is adjudicated in accordance with the law.5Even if they were three authoritative Judges (Mumḥin) and were accepted by the litigants to try the case, since they erred in a law cited in the Mishna — Tur and Asheri. Gloss: Yet some say that if it appears to the Judge and to his contemporaries6B.B. 130b-131a: ‘Raba said to R. Papa and to R. Huna the son of R. Joshua: When a (written) verdict of mine comes before you, and you see in it something objectionable, do not tear it up until you come before me. If I have a (well-grounded) reason (for my verdict) I will tell (it to) you; if not, I will retract. After my death, you shall neither tear it up nor derive (any law) from it. You shall neither tear it up because were I there, I might have told you the reason; nor derive (any law) from it, because a Judge must be governed only by what his eyes discern.’ According to RaShBaM (s.v. ולא תגמרו) it means: ‘Do not pronounce judgment on the basis of my verdict but issue your ruling in accord with the opinion which you are inclined to accept because everything depends upon the discernment of the Judge.’ From this we infer that one may rule in accordance with one’s opinion and discernment even in the case where it is contrary to the written verdict of his teacher. on the strength of indisputable proof7, Yeb. 42b-43a whence we see that once during a debate by Amoraim concerning an anonymous Mishna, the latter was disregarded and was not considered authoritative in the face of a valid and well-grounded objection. that the law does not accord with that mentioned in the Codifiers, he can differ with it,8Even contra the Geonim if it is not explicitly mentioned in the Talmud — Tur and Asheri. since it is [a law that is] not mentioned [explicitly] in the Gemara.9Tur on the authority of Asheri — G. , B.M. 86a where it is stated that R. Ashi and Rabina arranged the vast material which accumulated up to their times and they represented the authentic body of legislation as editors of the Talmud. Consequently, the body of teachings edited by them represented the authoritative Code and hence, a law not mentioned in the Talmud could be disputed. Nevertheless, one should not adopt a leniency in a matter that the [authors of] the [former] compilations [on Hebrew Law] that have spread among the large majority of Israelites were stringent, unless one has it on tradition from his teachers that we do not adopt that stringency.10Decisions of Isserlein s. 241 — G. , A.Z. 36a whence RaN derives three important principles, a) If a prohibition issued by one Court has spread among the large majority of Israelites, another Court cannot annul this decision even if it is superior to the former Court in wisdom and numerical strength; b) If the prohibition of one Court has not spread among the large majority of Israelites, but the majority of people are able to abide by it, then another Court that is superior to the former Court in wisdom and numerical strength can annul the decision; c) If the prohibition of one Court did not spread among the large majority of Israelites because the majority of people are not able to abide by it, then even another Court that is inferior in wisdom and numerical strength can annul it. The law stated here refers to ritual law, for in civil suits the claimant is required to produce evidence — M.E. However, if it is impossibe to reverse [the verdict], e.g., where the one who received the money illegally [as a result of the erroneous decision] left for abroad or [in a case] where he is a stern individual [and refuses to return the money] or where [the Judge] pronounced aught that, is 'clean,' 'unclean,' or gave a decision regarding a Kosher animal that it is Terefah and they gave it to the dogs to eat, or anything similar to this, — [the law is that] these are [cases where] he [the Judge] is exempt from making compensation11San. 33a: ‘R. Hamnunah raised an objection against R. Shesheth (v. supra n. 2): It once happened that a cow’s womb was removed and R. Tarfon gave it to the dogs to eat (i.e., he declared the cow Terefah). When the case was presented before the Sages in Yabneh, they declared her permissible (for human consumption), for Theodos (or Theodoros), the Physician said that no cow or sow leaves Alexandria of Egypt unless the womb is first cut out, in order that she may not breed (This precaution was taken so as to limit its breeding only to Egypt and thus compel buyers to come to Alexandria). Said R. Tarfon: Your ass is gone, Tarfon! (i.e., I will now have to sell my ass in order to compensate the owner of the cow for having erroneously declared it Terefah). But R. Akiba said to him: You are exempt from reparation, since he who is publicly recognized as a Mumḥeh is exempt from making compensation (Mishna Bek. 28b; San. 93a). Now, if your opinion (R. Shesheth that one who overlooks a law cited in the Mishna may reconsider his verdict) has substance, he (R. Akiba) should have said to him: You overlooked a law cited in the Mishna (cf. Mishna Hul. 54a: If the womb is gone the animal is not rendered Terefah) and he who overlooks a law cited in the Mishna may reconsider his verdict (Hence, even if R. Tarfon were not an expert, he should be exempt. Consequently, if the cow were still here, R. Tarfon could rescind the verdict and therefore the person who gave it to the dogs should be held responsible)! — He (R. Akiba) gave him two reasons: Firstly, you have overlooked a law cited in the Mishna, and he who overlooks a law cited in the Mishna may rescind his verdict. Secondly, Even if your error was made against common practice (Lit. ‘weighing of opinions’), you are a publicly recognnized Mumḥeh, and as such you are exempt from making reparation. Said R. Naḥman b. Isaac to Raba: What is the objection that R. Hamnunah raised against R. Shesheth from the case of the cow? But the cow had already been given to the dogs to eat and was no longer in existence for it to be returned to its owner (i.e., a reconsideration of the verdict would be of no avail)! — This is what he meant: Were you to say that one who overlooks a law cited in the Mishna may not reconsider the verdict, it is right, for then the verdict stands and R. Tarfon was fearful and (R. Akiba) said to him: You are recognized by the Beth Din as a Mumḥeh and exempt from reparation. But if you say that he who overlooks a law cited in the Mishna may reconsider his verdict, then (R. Akiba) should have said to him: Since if the cow were still available your verdict would have been invalid and you would have done nothing, so too, now (that the cow is no longer in existence) you have done nothing (i.e., you did not give it to the dogs yourself and it was the owner’s bad luck to have carried out your verdict [v. B.K. 100a]. Consequently, since R. Akiba did not present this argument, we conclude therefrom that if one overlooks a law cited in the Mishna, he must not reconsider the verdict).’ The present ruling accords with the interpretation of R. Ḥisda in removing the contradiction between the Mishnahs in San. and Bek. , supra n. 2. and although he was the cause of the damage, he did not cause damage intentionally.12e., even according to R. Meir who adjudicates liability in an action of damage done indirectly (B.K. 100a) and which is the accepted law, in the present ruling all authorities agree that the Judge is not held responsible, for were this not so, no person would be willing to become a Judge. However, if the Judge took and gave with his hand even without having to resort to force, he is held responsible even if he overlooked a law cited in the Mishnah — ShaK. M.E. and BaḤ differ with ShaK and maintain that since the Judge did not have the express intention to cause damage, then even if he took and gave with his hand, the law is that if he over-looked a law cited in the Mishnah, he is not held responsible. Gloss: And some differ [with this opinion].13Tur on the authority of Asheri and other Codifiers — G. e., the Judge is held responsible in a case where the article cannot be returned and the Judge erred by overlooking a law cited in the Mishna and we follow R. Meir’s opinion. As to the case of R. Tarfon (v. supra n. 11), it accords with the view of the Sages who oppose R. Meir and hold that liability is not adjudicated in an action of damage done indirectly. , supra n. 12. The dissentient view holds that even three Mumḥin who were accepted by the litigants are held responsible because we follow R. Meir’s opinion that liability is adjudicated in an action of damage done indirectly — M.E. ShaK concludes that if he is a publicly recognized Judge and was accepted by the litigants, then even according to the dissentient view recorded here, the Judge is exempt contra M.E. Tummim agrees with ShaK, but states that if the Judge took and gave with his own hand, although he is legally exempt yet as far as acting beyond the requirement of the law is concerned, he is held responsible. However, if he did not take and give with his own hand and erred in a law cited in the Mishna and is a Mumḥeh, — then even from the point of acting beyond the requirement of the law he is exempt as in the case of R. Akiba who exempted R. Tarfon and did not consider him liable beyond the requirements of the law. If one asks the advice of a Sage whether he should purchase certain meat or fruit, and the latter informed him that the fruit is ‘clean’ or the meat ‘Kosher’ and on the strength of this advice he purchased same and subsequently, it was found that the Sage had erred — ShaK holds that if he overlooked a law cited in the Mishna, the purchase is invalid and he may retract; but if he erred ‘in the weighing of opinions’ the purchaser may not retract save that the Sage or Judge is liable to make compensation if he is not a recognized authority but was only accepted by the litigants. Tummim disputes this ruling and maintains that the purchase is void and the vendor must return the money and take back his fruit or meat. And with regards to decisions in ritual law, — if he [the Judge] has attained [the age of] ordination, although he is not [officially] ordained, his legal status is as that of an authoritative [Judge].14N.Yos. to San. IV beg. — G. This ruling according to N.Yos. refers to a Judge who erred in ‘weighing of opinions’ in a monetary suit but not to one who erred in a law cited in the Mishna in which case the Judge is legally held responsible to make compensation unless he is an authoritative Judge ordained by the Court in the Land of Israel, or has authorization from the Resh Galutha; but in ritual law (איסור והיתר) if the Judge is an expert who is versed in the law (גמיר) and has the capacity for making logical deductions (סביר), he is not held responsible. Consequently, since the present ruling refers only to one who erred in a law cited in the Mishna, Isserles should have stated this law in the next par. which deals with the law of ‘erring in the weighing of opinions’ — M.E. ShaK writes that no distinction should be made between monetary and ritual cases contra N.Yos. and Isserles. , Y.D. § 242 on the law of Ordination nowadays.

Mishnah Berurah

הלכה ב

טעה בשיקול הדעת כגון דבר שהוא מחלוקת תנאים או אמוראים ולא נפסקה הלכה כא' מהם בפי' ועשה כאחד מהם ולא ידע שכבר פשט המעשה בכל העולם כדברי האחד אם היה זה דיין מומחה ונטל רשות מריש גלותא או שלא נטל רשות אבל קבלו אותו בעלי דינים עליהם הואיל והוא מומחה חוזר הדין ואם אי אפשר להחזיר פטור מלשלם: הגה וג' הדיוטות דינם כיחיד מומחה וע"ל ס"ס ג' כיצד נטילת רשות מן המלך מהני ולא יאמר האדם אפסוק כמי שארצה בדבר שיש בו מחלוקת ואם עושה כן הרי זה דין שקר אלא אם הוא חכם גדול ויודע להכריע בראיות הרשות בידו ואי לאו בר הכי הוא לא יוציא ממון מספק דכל היכא דאיכא ספיקא דדינא אין מוציאין ממון מיד המוחזק (טור) ואם הוא בהוראות איסור והיתר והוא דבר איסור דאורייתא ילך לחומרא ואי דבר דרבנן ילך אחר המיקל ודוקא אם ב' החולקים הן שוין אבל אין סומכין על דברי קטן נגד דברי גדול ממנו בחכמה ובמנין אפי' בשעת הדחק אא"כ היה ג"כ הפסד מרובה וכן אם היה יחיד נגד רבים הולכים אחר רבים בכל מקום (רשב"א סי' ר"ג) ואפי' אין הרבים מסכימים מטעם אחד אלא כל אחד יש לו טעם בפני עצמו הואיל והם מסכימים לענין הדין מיקרי רבים ואזלינן בתרייהו (מהרי"ק שורש מ"א) ואם היה מנהג בעיר להקל מפני שחכם אחד הורה להם כך הולכין אחר דעתו ואם חכם אחר בא לאסור מה שהם מתירין נהוג בו איסור (תשו' הרשב"א סי' רכ"ג) כל מקום שדברי הראשונים כתובים על ספר והם מפורסמים והפוסקים האחרונים חולקים עליהם כמו שלפעמים הפוסקים חולקים על הגאונים הולכים אחר האחרונים דהלכה כבתראי מאביי ורבא ואילך (מהרי"ק שורש פ"ד) אבל אם נמצא לפעמים תשובת גאון ולא עלה זכרונו על ספר ונמצאו אחרים חולקים עליו אין צריכים לפסוק כדברי האחרונים שאפשר שלא ידעו דברי הגאון ואי הוי שמיע להו הדרי בהו (מהרי"ק שורש צ"ו):

משנה ברורה

2.

[If] he [the Judge] erred in weighing of opinions, e.g., [in] a case regarding which there is a dispute among Tannaim or Amoraim15Likewise in the case of a controversy among the Codifiers nowadays — ShaK. and the Halachah was not decided in accordance with [the views of] either of them explicitly16Yad, Sanhedrin VI, Derived from San. 33a in accord with R. Papa. , text supra n. and he acted in accordance with [the view of] one of them and he knew not17e., he was only aware that the matter is in dispute; but if the Judge was aware of one opinion only, according to which he rendered his decision, his verdict stands and he does not make compensation — M.E. ShaK cites dissenting views with which he is inclined to agree on the principle that ‘an error in study amounts to a wilful act’ (Aboth IV, 13). Consequently, where the Judge should have known the opposing viewpoint, it is self-evident that he is considered as having given an erroneous decision (cf. case of R. Tarfon supra n. 11 whose erroneous decision was the result of lack of study). However, in the case where the Judge was not expected to know about the other viewpoint (e.g., where a certain source of law was unknown in his locality), this comes under the rule of force majeure (אונס) and his decision stands. In any case, he is not held liable. If there exists no controversy concerning a certain matter of law save that the law is not explicit thereon, and the accepted practice is based on a logical deduction or the like, and the Judge ruled contra the accepted practice, he is regarded as one who erred in a law cited in the Mishna — ShaK. that the general practice had already spread throughout the world18Thus Yad ibid. , however, explanation of Rashi on ‘general practice’ supra n. ‘Throughout the world’ does not exclude a certain country or district on the principle that ‘everything is according to the custom of the district’ — ShaK. Where no ‘general practice’ prevails the Judge should render his decision on the basis of the inclination of his personal judgment — N.Yos. on the authority of R. Jonah. in accordance with [the views of] the other [authority], — [then] if this Judge was an expert [Mumḥeh] and obtained authorization from the Resh Galutha19Yad ibid. Derived from San. 5a: ‘Rab stated: Whoever desires to render decisions in monetary cases by himself and be exempt from liability (in the case of giving an erroneous decision) should obtain authorization from the Resh Galutha.’ This is applicable even if the Judge took from one and gave to the other with his own hand on the principle that ‘confiscation by the Court (i.e., disposing of private property by the process of law) is valid’ (הפקר בית דין הפקר). , Yeb. 89b; Git. 36b. or [even] if he obtained no authorization but the litigants accepted him,20Derived from San. 5a regarding Mar Zutra b. R. Naḥman and Rabbah b. Ḥana who each adjudicated a case alone and gave an erroneous decision and they were informed that if the litigants accepted them as their Judges, they are not obliged to make restitution. Cf. also Mishna and Gemara Bek. 28b whence we derive that if a Judge issues an erroneous decision, the verdict stands but the Judge must make restitution, the reason in this case being that he executed the judgment alone, and in the latter part of the Mishna (Bek. ibid.) it states that if the Judge was a Mumḥeh, he is exempt from making restitution, even if he executes the judgment alone since the litigants accepted him. , also Bek. ibid. in the case of the cow (supra n. 11) the statement of R. Akiba to R. Tarfon: ‘You are exempt from reparation since he who is publicly recognized as a Mumḥeh is exempt from making compensation. In the present ruling since the parties accepted him it is equivalent to one who was a Mumḥeh. The law here obtains even if the parties did not accept him explicitly by means of a Kinyan, but merely appeared before the Judge for trial of their own accord — ShaK. — [the law is that] since he is an expert,21Even nowadays if one possesses vast erudition in the Talmud and Codes and has a logical mind and is experienced in legal matters and does not err, he is regarded as a Mumḥeh. Although Isserles supra § 3, 2 writes that ‘nowadays we do not conduct proceedings of adjudication (of monetary cases) by a recognized Mumḥeh’ — he refers to adjudication by a single Judge, but regarding the obligation to make payment in the case of an erroneous decision, the law is applicable nowadays too. The Judge, however, must be a publicly recognized authority and we do not accept his word if he states, ‘I am an authoritative Judge’ — ShaK. the verdict is reversed.22There is no question that the verdict is reversed where the Judge did not execute the judgment personally by his own hand in which case Caro following Alfasi and Maim. holds that even if he is not an authoritative Judge the verdict is upset (v. infra par. 3), but even if he personally executed the judgment by his own hand and is not obliged to make restitution, the verdict is reversed on account of the loss suffered by the innocent party. Isserles (infra par. 3) cites a dissenting opinion (Asheri and Tur) that even if the Judge did not execute the judgment personally by his own hand, the verdict stands and the Judge must make restitution — M.E., ShaK. If, however, it is impossible to reverse [the verdict],23, supra par. 1. he is absolved from making compensation. Gloss: [The decision of] three laymen is regarded as [that of] an individual expert.24e., if the parties accepted them they are not liable in the case of an erroneous decision — M.E. With regards to acceptance of the Judges there is the following distinction to be made between an authoritative Judge (Mumḥeh) and three laymen: In the former case appearance for trial is tantamount to valid acceptance so that if the Judge errs, he is not held liable; whereas in the latter case the litigants must state explicitly that they accept the laymen to act as Judges — Nethiboth. Cf. San. 4b-5a: ‘Our Rabbis taught: Monetary suits are tried by three; but one who is publicly recognized as an authoritative Judge (Mumḥeh) may judge alone.’ Hence, the first part of this passage must deal with three laymen Judges. , Tosaf. ibid. s.v. דן. , supra § 3 in what manner obtaining authorization from the ruler is effective. One should not say 'I will render a decision in agreement with whomever I desire' pertaining to a matter wherein there is a difference of opinion [among the authorities];25This means that there is no general practice prevalent. Otherwise it would be regarded as erring in weighing of opinions (שקול הדעת) — ShaK. Cf. A.Z. 7a: ‘Our Rabbis taught: If one consulted a Sage who pronounced (aught) as unclean, he should not consult another Sage who might pronounce it as clean; if one Sage pronounced (aught) as forbidden, one should not consult another Sage who might pronounce it as permitted. If of two Sages, one pronounces (aught) as unclean and the other as clean, one forbids and the other permits, then if one of them is superior to the other in learning and in numbers (of disciples), his ruling should be followed, otherwise, the one who adopts the stricter view should be followed. R. Joshua b. Korḥa states: In laws (stated explicitly) in the Torah, adopt the stricter view; in laws (enacted) by the Scribes (the Soferim from the time of Ezra and on), adopt the lenient view. Said R. Joseph: The Halachah rests with R. Joshua b. Korḥa.’ Hence, we see that there are specific rules to be followed in giving decisions and one has no right to adopt a dissenting view without a well-grounded reason. and if one acts thus it is regarded as a false verdict unless if he is a distinguished scholar and knows [how] to harmonize [the conflicting views] by [well-grounded] proofs, he has the authority [to act thus]; but if he is incapable for this, he should not exact money [as a result] of uncertainty, for wherever there exists a doubt regarding the [accepted] law, we do not exact money from the possessor.26Tur — G. And if it is concerning ritual law and it is a matter involving a Biblical prohibition, one should adopt the restrictive view; and if it involves a Rabbinical matter, one should adopt the lenient view and [provided] only if the two dissenting [authorities] are equals; but one should not rely on the statements of a minor [authority] as opposed to the statements of one superior to him in wisdom and in numbers [of disciples or followers]27A.Z. ibid. , supra n. 25. even in a time of emergency28‘Even in a time of emergency’ should come after ‘as opposed to a majority.’ Cf. Nid. 9b. unless it also involved a serious loss.29, Nid. ibid. Likewise, if it was a case of an individual authority as opposed to a majority, — [then] we follow the majority30e., in ritual matters. everywhere.31RaShBA s. 253 — G. And even if the majority [of authorities] agree, not because of the same reason, only each one [of them] has his own individual argument, — [then the law is that] since they concur regarding the law — they are regarded as a majority and we adopt their opinion.32MaHaRIK Rt. 41 — G. Derived from San. 18b regarding three oxherds whose conversation was overheard by the Rabbis in which each one stated a different reason for intercalating the year and thereupon the Rabbis intercalated the year. Cf. however, Y. San. I, 2(18c) bot.; Y. R.H. II, 5(58b) top where R. Ze‘ira pointed out that this holds good only when they all agree on one point. The explanation given in Y. is that since in principle they agree that the year should be intercalated, it is as though they all had a common reason. Hence, Y. would not be the source of MaHaRIK’s ruling but rather B. , Ziyyun Yerushalayyim to Y. San. ibid. and Be’er Eliyahu. In the case of a Biblical prohibition (איסור לאורײתא) we do not follow the lenient view where the authorities advance different arguments for adopting the lenient view. This applies only if the decision of each authority is based on arguments found in compilations of Law. However, if the authorities are present before us, we follow their lenient view as in the case of the Sanhedrin where it was not necessary for each member to advance the same argument. Where two Judges derive the same argument from two Biblical verses, they are counted as one, for a single teaching cannot be derived from different Scriptural verses (v. San. 34a). But when derived from the Mishna, Gemara and Codes, the arguments are counted as two — ShaK. If the prevailing custom in town is to adopt a lenient view [in a certain matter] because one Sage had [once] ruled for them thus, we follow his opinion,33 Shab. 130a where the views of individual Sages were adopted in their localities although the majority of the Sages were opposed to their ruling. and if [subsequently] another Sage arrived and prohibits what they [the townspeople] permit [in accordance with the lenient view of the former Sage], one must act in accordance with the prohibition [of the latter Sage].34RaShBA Resp. 253 — G. , ‘Er. 41a: ‘In the generation of R. Gamaliel people acted in accordance with the views of R. Gamaliel, but in the generation of R. Jose (who flourished after R. Gamaliel) people acted in accordance with the views of R. Jose.’ The same applies where the former authority adopted a restrictive view and the latter followed a lenient view — ShaK. Wherever the statements of the former [authorities] are recorded in writing and are well-known, and the later Codifiers differ with the former as [we find] that at times the Codifiers oppose the [views] of the Geonim, we follow the [views of the] later [authorities], for the Halachah rests with the later authorities beginning with Abaye and Raba onwards.35MaHaRIK Rt. 84 — G. However, if at times we find a Geonic Responsum which was not recorded in writing and [the opinions of] other [authorities] are found to conflict with it, it is not required to render a decision in accordance with the views of the later authorities, for it is possible that they were unaware of the opinions of the Gaon, and had they heard of them, they would retract.36MaHaRIK Rt. 96 — G. Thus Asheri to Ber. 24a and cf. Shab. 61a. Although the ruling is that we follow the later authorities, nevertheless, this principle is applicable only when the later authority clarifies his viewpoint on the basis of well-grounded arguments and proof (R. Moses Ruttenberg) — P.Tesh. , also Tummim on principles to be followed in this matter.

Mishnah Berurah

הלכה ג

היה הטועה מומחה בית דין ולא נטל רשות ולא קבלו אותו בעלי דינין עליהם או שלא היה מומחה אבל קבלו אותו בעלי דינים עליהם לדון להם בדין וטעה בשיקול הדעת אם נשא ונתן ביד מה שעשה עשוי וישלם מביתו ואם לא נשא ונתן ביד יחזור הדין ואם אי אפשר להחזיר ישלם מביתו: הגה וי"א דאפי' לא נשא ונתן ביד מה שעשה עשוי וישלם מביתו ואין הדין חוזר (הרא"ש וטור ועוד הרבה פוסקים ע' סקי"ד אות א' וסוף ס"ק כ"ט) וכל זה כשלא קבלום עליהם בין לדין בין לטעות אבל אם קבלום עליהם בין לדין בין לטעות (טור והרא"ש) או בזמן הזה שמכריחין הקהל הדיינים ע"פ החרם שיהיו דיינים בעל כרחם לא ישלמו אפי' טעו דמה להם לעשות (שם) מ"מ יש להם לחזור אם טעו ואם אינן רוצים לחזור צריכין לשלם (מרדכי ריש סנהדרין) וכשטעו ומשלמין אם הסכימו כל הדיינים ביחד כולם משלמין ואם היו הדיינים רק שלשה והלכו אחר שנים שבהם הם משלמין ב' חלקים והחלק השלישי מפסיד הבעל דין אבל אם היו הדיינים חמשה והלכו אחר ג' שהם הרוב צריכים לשלם הכל (טור):

משנה ברורה

3.

[If] he [the Judge] who erred [in his verdict] was an expert37Heb. מומחה. e., he is versed in the law and possesses reasoning power. Likewise, Mumḥeh mentioned supra par. 2 has the same meaning. But if he is unversed in the law and does not possess reasoning power, obtaining authorization has no legal effect — ShaK contra M.E. for the Court of Law and had not obtained authorization [from the Resh Galutha]38 Glos. and the litigants did not accept him,39 supra n. 20. or [if] he was not an expert37Heb. מומחה. e., he is versed in the law and possesses reasoning power. Likewise, Mumḥeh mentioned supra par. 2 has the same meaning. But if he is unversed in the law and does not possess reasoning power, obtaining authorization has no legal effect — ShaK contra M.E. but the litigants accepted him to adjudicate the case for them and he [the Judge] erred in the weighing of opinions40Derived from the first part of Mishna Bek. 28b in accord with R. Ḥisda (v. supra n. 2) where the Judge was not an expert (Mumḥeh), (since the latter part of the Mishna (ibid.) deals with a Judge who was a Mumḥeh) and it treats of a case where the litigants accepted him as their Judge (v. San. 6a). If the parties accepted one who was unversed in the law, his verdict stands, provided he did not give an erroneous decision. If Judges who were unversed in the law erred in the weighing of opinions, the verdict becomes void and has no legal effect unless an agreement was made with the litigants by means of a Kinyan — Nethiboth. — [then] if he had taken [from one] and given [to the other] with his own hand, his act cannot be undone, and he must pay indemnity from his own pocket. However, if he had not taken [from one] and given [to the other] with his own hand, the verdict is reversed.41In accord with R. Ḥisda. , text supra n. 2. Likewise, if the Court messenger executed the judgment personally with his own hand following the instructions of the Court, it is as though the Court itself acted thus — Tummim. And if it is impossible to reverse [the verdict],42 supra par. 1. he must pay from his own pocket.43In all the aforementioned rulings, Yad (source of Caro’s ruling) follows Alfasi save in the present ruling where Alfasi exempts the Judge — M.E. Gloss: Some say that even if he had not taken [from one] and given [to the other] with his own hand, his act cannot be undone and he must pay indemnity from his own pocket44Even if the litigant is available and can pay, he is free from liability because the verdict stands and the Judge must make compensation — Nethiboth. and the verdict is not reversed.45Asheri and Tur — G. This follows the opinion of those authorities who maintain that we do not adopt the explanation of R. Ḥisda who makes a distinction between executing the judgment personally or not, for R. Ḥisda’s explanation follows the opinion of the Sages who hold that we do not adjudicate liability for damage done indirectly. Hence, the Judge is liable only if he executes the judgment personally with his own hand. We, however, follow R. Meir who maintains that we adjudicate liability for damage done indirectly. , supra nn. 12 and 1 As to the conflict between the Mishnas in San. and Bek. (v. supra n. 2), we accept the explanation of R. Shesheth and it matters not whether the Judge is an expert (Mumḥeh) and the litigants did not accept him, or if he is not an expert and the parties accepted him. If, however, the Judge pronounced the innocent, guilty, and the latter had not yet made payment, the verdict is reversed since the judgment was not carried out — ShaK contra M.E. It should be noted that when we speak of carrying out the judgment with one’s hand (נשא ונתן ביד), it refers to carrying out the entire judgment, but if only part of the judgment was executed, it is legally effective only in proportion to that part — Nethiboth contra K.H. This is applicable where they [the litigants] had not accepted them [the Judges to abide by their decision] whether [given] in accordance with the law or whether [given] in error;46Derived from San. 6a: (ref. to ‘If one tried a case by himself and declared the guilty, not guilty … act cannot be undone’): ‘..Here we deal with a case where the litigants accepted the Judge. If so, why should he make compensation? — Because they had said to him: We agree to abide by your award on condition that you issue a verdict in accordance with the Torah.’ Caro’s text follows the reading of Alfasi and Asheri (San. ibid.) that the litigants said to the Judge, ‘We accepted you on condition that you issue a verdict in accordance with the Torah, but we did not accept you to give an erroneous decision.’ but if they accepted them whether [to abide by their decision] in accordance with the law or whether [given] in error,47Tur and Alfasi — G. If the Judge whom they accepted was a Mumḥeh then even if the litigants explicitly stated, ‘Give us a decision in accordance with the Torah,’ the acceptance is valid and in the case of an erroneous decision, the Judge is absolved from making compensation — ShaK. The present ruling is applicable even if no agreement was entered into by means of a Kinyan. However, if they accepted individuals who are entirely unversed in the law, then Kinyan is required, for such a case is on an equal footing with arbitration (v. supra § 12) — Nethiboth. or nowadays where the community compels the Judges by means of the ban48Likewise if they are compelled on account of a penalty that would be imposed upon them — Tummim contra ShaK. to act as Judges against their will, — they [the Judges] must not pay indemnity even if they gave an erroneous decision,49 San. 3a where we are informed that in monetary suits even laymen may act as Judges so as ‘not to bolt the door against borrowers’ (for creditors will refuse to grant loans were they to be subjected to collecting their debts by Mumḥin). The Gemara asks why should non-Mumḥin not be protected against a claim of compensation in the event that they give an erroneous decision? The very same reason (‘so as not to bolt the door against borrowers’) is given. But this reason is applicable only where the laymen Judges tried the case willingly. However, it follows that where they were compelled to act as Judges, the above reason does not apply. Hence, they must not pay indemnity in the case of an erroneous decision. for what could they have done?50For this very reason a Mumḥeh who was accepted by the litigants is exempt in the case of an erroneous decision, for one who is a Mumḥeh is under compulsion to act as Judge. , supra § 10, 3: ‘Yea, a mighty host are her slain — refers to one who has attained (the age of) ordination, but avoids giving decisions.’ Nevertheless, they should retract if they erred; and if they desire not to retract, they must pay indemnity.51Mord. to San. beg. — G. Before they executed the judgment they should reverse the verdict as in the case of every Judge who errs in the ‘weighing of opinions.’ And if they refuse to retract and exacted money after they became aware of the erroneous decision, they must make compensation. But if they became aware of the error after they executed the judgment, the verdict stands even in the case of Judges who were appointed by means of the ban (Ḥerem) — ShaK contra M.E. And when they gave an erroneous decision and must pay, — [the law is that] if all the Judges were collectively in agreement they must all pay [equal shares]; and if the Judges were only three [in number] and they [the litigants] followed [the erroneous decision of] two of them [representing the majority], they must pay [only] two shares and the litigant [who was erroneously pronounced guilty] suffers the loss of the third share;52San. 30a. For without the third Judge it would have been impossible to bring the legal proceedings to a close, since monetary suits are decided by three Judges, — consequently, each one of the two Judges pays a third, and the third Judge who did not concur with the other two is certainly exempt. but if the Judges were five [in number] and they [the litigants] followed [the erroneous decision of] three [Judges] who represented the majority, they [the three erring Judges] must share payment in full.53Tur — G. For in this case we cannot say that without the participation of the two dissenting Judges the legal proceedings would not have been brought to a close.

Mishnah Berurah

הלכה ד

אבל מי שאינו מומחה ולא קבלו אותו בעלי דינים אע"פ שנטל רשות הרי זה בכלל בעלי זרוע ואינו בכלל הדיינים לפיכך אין דינו דין בין טעה בין לא טעה וכל אחד מבעלי דינים אם רצה חוזר ודן בפני ב"ד ואם טעה ונשא ונתן ביד חייב לשלם מביתו וחוזר ולוקח מבע"ד שנתן לו שלא כהלכה ואם אין לו להחזיר או שטמא או שהאכיל דבר המותר לכלבים ישלם כדין כל גורם להזיק שזה מתכוין להזיק הוא:

משנה ברורה

4.

However, one who is not an expert [Judge]54 supra n. 37. and the litigants did not accept him — [then] even if he obtained authorization he comes under the class of violent men and is not considered to be in the class of Judges.55Yad, Sanhedrin VI, Derived from San. 5a. , text supra n. 19 where we deal with a Mumḥeh in which case authorization is legally effective even if the parties did not accept him. Cf. ibid. cases dealt with by Mar Zutra and Rabba b. Ḥana and , ibid. 7b regarding members of the Nasi’s household who once appointed an incompetent Judge. Therefore, his verdict does not stand whether he gave an erroneous decision or not. And each one of the litigants, — if he so desires, — may argue his case again before a [recognized] Court of Law.56San. 6a (ref. to ‘Said R. Abbahu: A judgment given by two in monetary cases is not valid’). , also supra n. 40 whence we derive that if the Judge is not a Mumḥeh and was not accepted by the litigants, the decision, whether erroneous or not, is invalid. Under such conditions a new extension of time to appear in Court is given and any former admission made before the incompetent Judge is invalid — Nethiboth. If [the incompetent Judge] gave an erroneous decision and took [from one litigant] and gave [to the other], he is obliged to pay indemnity from his own pocket57In accordance with R. Meir who adjudicates liability for damage done indirectly. , supra nn. 12 and 13. Even Alfasi who maintains that R. Meir’s principle is not applicable in the case of Judges, since the latter are under force majeure to act as Judges, will, however, agree that in the present case the Judge is not considered an incompetent Judge but rather a lawless and violent person who has the express intention to cause damage. and [then] goes back and recovers from the litigant to whom he gave [aught] illegally. And if he [the litigant] has naught to restore,58ShaK (following Kes. Mish.) emends the text as follows: ‘If he did not take (from one) and give (to the other) the verdict is reversed and if he has naught to etc.’ or where [the incompetent Judge] declared unclean or gave to the dogs to eat aught that was permissible, he must pay indemnity59Provided that he compelled the litigant to pay; but if not, he is exempt — ShaK. in accordance with the law of one who causes damage, — for this [incompetent Judge] is regarded as causing damage intentionally.

Mishnah Berurah

הלכה ה

דיין שטעה וחייב שבועה למי שאינו חייב בה ועשה זה פשרה עם בעל דינו כדי שלא ישבע ואח"כ ידע שאינו בן שבועה אע"פ שקנו מידו על הפשרה אינה כלום דקנין בטעות הוא וחוזר (וכן כל כיוצא בזה ודוקא שגילה דעתו שעשה הפשרה משום השבועה או כדומה לזה) (עטור בשם הרי"ף):

משנה ברורה

5.

A Judge who gave an erroneous decision and declared [one of the litigants] liable to take an oath to which he was [legally] not bound, and the latter made a settlement with his fellow-litigant in order not to take an oath, and subsequently he became aware that he is [legally] not bound to take an oath, — [then] even if they made an agreement with him by means of a Kinyan with regards to the settlement [between him and his opponent], it is legally ineffective,60Yad, Sanhedrin VI, Thus ‘Ittur on the authority of Alfasi in Resp. who explains that subsequently it became evident that the litigant could be subjected only to an unqualified Ḥerem. Kes. Mish. writes that the present ruling is applicable only when the Judge overlooked a law cited explicitly in the Mishna or erred in weighing of opinions, in which case the error may be ascertained. But where this is impossible, we apply the principle ‘that the claimant must produce evidence.’ for this is considered an agreement by means of a Kinyan made in error and he may retract.61For were the litigant to know that he was not bound to take an oath he would not have entered into a settlement. This applies only if the litigant had not yet made payment. But if payment had already been made and the Judge erred in the weighing of opinions, the verdict stands and the act cannot be undone. Likewise, if one agreed to settle an inheritance for a small amount, for he thought that the estate was small, and subsequently it became known to him that the estate was larger, it is considered an agreement made by means of a Kinyan in error and he may retract. , Git. 14a. And so too, anything similar to this. [This is applicable] only where he indicated his express intention that he had made the settlement on account of the oath [which he would otherwise have to take] or in a case similar to this.62‘Ittur on the authority of Alfasi — G. Cf. Kid. 50a regarding a certain man who sold his property stating his express intention at the time of sale of migrating to Ereẓ Israel.

Mishnah Berurah

חושן משפט חושן משפט ב פרק כה

Choshen Mishpat Choshen Mishpat 2 Chapter 25