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חושן משפט

חושן משפט א

פרק ג

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

Choshen Mishpat

Choshen Mishpat 1

Chapter 3

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

א ב ג ד

3:1 3:2 3:3 3:4

Sif

הלכה א

בכמה דינין דנין ובו ד סעיפים:
אין ב"ד פחות מג' וכל שלשה נקראים ב"ד אפילו הדיוטות (דאי אפשר דלית בהו חד דיודע סברות בדינים אבל אי לית בהו חד דידע פסילי לדון) (טור בשם אביו הרא"ש ריש סנהדרין) ומ"מ יכולי' לקבל הטענות ולשלחם לפני מורה (מהר"ם פאדוו"ה סי' מ"ג) והם דנים את האדם בעל כרחו אם הנתבע מסרב לירד לדין או שאינו רוצה לדון עם התובע בעירו אבל אם רוצה לדון עמו בעירו אלא שאינו חפץ בג' שבירר התובע אז זה בורר לו א' וזה בורר לו אחד: הגה כדלקמן סי' י"ג ונ"ל דוקא בדיינים שאינם קבועים אבל אם דיינים קבועים בעיר לא יוכל לומר לא אדון לפניהם אלא בזה בורר וכן נוהגין בעירנו וע"ל סי' כ"ב סוף סעיף א':

משנה ברורה

1.

A Court of Law must consist of not less than three [Judges]1Mishna San. 2a and Gemara ibid. 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.2San. 2b-3a. previous note. For it is impossible that there should not be among them [at least] one who has a knowledge of logical inferences in [civil] laws.3San. 3a. The expression, ‘who has a knowledge of logical inferences in (civil) laws’ (דיודע סברות בדינים) taken from Tur, 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.4Tur 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.5R. Meir of Padua s. 43 — G. They may try the defendant6Lit. ‘the person.’ against his will7San. 5a, Tosaf. 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 latter8Lit. ‘the defendant.’ declines to come down before Court,9San. and Tosaf. ibid. or he is not willing to attend the Court with the plaintiff in his10e., the plaintiff’s. home town.11San. 31b. infra § 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 him12The plaintiff. in his10e., the plaintiff’s. 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].13San. 23a; ibid. 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]'.14The defendant may, however, demand that more Judges be added to the number of the permanent Judges — Tummim, P.Tesh. Thus is the accepted custom in our town. , infra § 22, par. 1 end.

Mishnah Berurah

הלכה ב

פחות משלשה אין דיניהם דין אפי' לא טעו אא"כ קבלום בעלי דינים או שהוא מומחה לרבים: (ובזמן הזה אין דנין דין מומחה לרבים שידון ביחידי בע"כ של אדם) (מהרי"ו סי' קמ"ז) כל שאינם שלשה ולא קיבלום עליהם ואינם מומחים לרבים (טור) אפי' הם סמוכים בא"י הודאה שמודים בפניהם כמי שמודה חוץ לב"ד ויכולים להחליף טענותיהם שטענו בפניהם הכופר בפניהם ואח"כ באו עדים לא הוחזק כפרן אבל השלשה אע"פ שאינם סמוכים ההודאה בפניהם כהודאה בב"ד וכן בכופר ואח"כ באו עדים הוחזק כפרן ואינו יכול לחזור ולטעון:

משנה ברורה

2.

[If] less than three [Judges tried a monetary case] their decision is not binding,15San. 2b in accord with R. Abbahu. Thus also Alfasi, Asheri and Yad, Sanhedrin II, 10. The following sources in Rabbinic literature indicate that R. Abbahu’s view was the accepted law: San. 29b-30a: Regarding a deed of a debtor’s admission of indebtedness in the presence of witnesses (אודיתא) where it is taken for granted that the document was legally drawn up in the presence of a Court of three. Ket. 22a (cf. San. ibid.) : If one of the three Judges necessary for the authentication of signatures on documents (קיום שטרות) died before signing it, the document should contain such wording. So too, in B.B. 165b. B.M. 31b: ‘Go and bring three people in whose presence you made the division (of partnership).’ San. 2b-3a: Raba agrees with R. Abbahu that if two adjudicated a monetary case their decision is not binding. Thus also the opinion of R. Joḥanan and Resh Lakish in Y. San. I, 1(18a) cited by Tosaf., San. 2b s.v. דברי הכל. Mord. a.o. write that even Samuel who regards the decision of two Judges binding (v. supra par. 1) will agree that in the cases of אודיתא (admission of indebtedness) and קיום שטרות (authentication of signatures) mentioned above, three Judges are required. As to the statement in San. 30 and parallel references, ‘But perhaps the Rabbis of Rabbana Ashi’s academy agreed with Samuel,’ — it should be understood as refering to other cases of adjudication (v. Hag. Imre Baruk). This also follows from Alfasi and Maim., the latter holding that even a Mumḥeh is not qualified to deal alone in the above-mentioned matters, although in other cases he is qualified. BaḤ writes that if two Judges adjudicated a monetary case and exacted money from one person and gave it to another person and the latter betrothed a woman with this money, — we should be stringent and consider the marriage binding and in order to dissolve the marriage a Get (Bill of Divorce) is required. ShaK opposes BaḤ’s ruling. even [if] they did not render an erroneous decision,16Derived from San. 6a. unless the litigants accepted them [to abide by their ruling],17Ibid. or [in the case of] one who is a recognized Mumḥeh.18San. 5a; Bek. 37a. Tur citing R. Sherira Gaon, writes: ‘Whoever is considered like R. Naḥman in his generation (San. 6a) and is versed in Mishna and Talmud and likewise is an expert in weighing opinions and deciding between opposing parties (שיקול הדעת) and has perused legal texts for a number of years and was examined numerous times and gave no erroneous decision, — such a one is a recognized Mumḥeh.’ On the term Mumḥeh, cf. also Shab. VI, 2 and Gemara ibid. 53b — M.E. Nowadays we do not conduct proceedings of adjudication [of monetary cases by] a recognized Mumḥeh so that he judge [not] alone against the will of an individual.19MaHaRIW s. 147 — G. Cf. B.M. 67b and Tosaf. s.v. רבינא; Bek. 36b and Tosaf. s.v. פסק. The same ruling applies nowadays with respect to the release of vows where a single expert cannot deal with such matters, but a Court of three is required. , Tur and Sh. ‘Ar. Y.D. § 228, 1; § 243, 8, Gloss. The same applies to imposing the fine of a ‘Litra of gold’ in the case where one insults a scholar (v. supra § 1, n. 55) — M.E. However, if one recognized Judge rendered an erroneous decision, he is not liable to make restitution. In this sense the term Mumḥeh is still applicable — ShaK. Every [group] that does not consist of three [Judges],20Tur on the authority of Yad, Sanhedrin V, 18; San. 31b. and [the litigants] did not accept them [to abide by their decision]21 Rashi, San. 5a, s.v. אי קבלוך. and they are not recognized Mumḥin,22Tur — G. Hence, if they are experts (מומחין), even if less than three, an admission of indebtedness made before them is considered valid. Thus Tur on the authority of Asheri. Maim., however, holds (Yad, ibid.) that even if they are experts and duly ordained, — as long as they are less than three, an admission made before them is not binding. But if they are three, even laymen, it would be valid. This is the meaning of Caro’s statement, ‘even if they are duly ordained,’ i.e., even if they are experts (although Yad has ‘even if he is a rcognized Mumḥeh,’ it applies equally to two experts). Consequently, Isserles’ Gloss is difficult to comprehend, for it should have been stated as a dissenting opinion. Perhaps Isserles should be understood thus: ‘and they are not Judges who are recognized by the public.’ But this is a strained interpretation — M.E. ShaK rejects the interpretation of M.E. For even if the Judges are recognized by the public, their decision would still be invalid since they are less than three. The reason, therefore, why Isserles does not record this as a dissenting opinion is duel to the fact that the term ‘duly ordained’ (סמוכים) employed by Caro is unclear. For Judges may be duly ordained and yet not be experts (מומחין). , Tur and Asheri infra § 25 that ‘Ordination’ holds good even for a non-Mumḥeh. The law, however, is that even if they are duly ordained and also experts, — yet, if their number is less than three, an admission of indebtedness made in their presence is not binding (contra Isserles). Thus also ‘Ir Shushan — ShaK. A.H. rules that if the litigants accepted the Judges (although their number is less than three) or one Judge who was a recognized authority (מומחח לרבים), e.g., if the people accepted a Rabbi to judge all monetary matters alone, the latter has the status of a Court of Law and an admission made in his presence is binding and the litigants cannot alter their original pleas. Likewise, one who denies aught in his presence and subsequently witnesses appeared and refuted his evidence, is presumed to be a liar even in the future (v. Sh. ‘Ar. anon). So too, may this single Judge compel one to appear before him for judgment and may hear testimony, save that in one respect there is a difference between a single Judge and a Court of Law of three. For in the latter case, an admission made in their presence is regarded as an admission made in writing and another Court may adjudicate the matter in accordance with the testimony and the pleas heard by the first Court of three even if the testimony etc., is submitted by the first Court to the second Court in writing. But if one was accepted as the recognized authority, although, as stated above, an admission made in his presence is regarded as made before a Court of Law of three, and should he on the basis of the information he obtains, render a decision, it would be binding, — yet, if after hearing the testimony and obtaining all the information in the case, — for some reason, it is submitted to another Court for final adjudication, the evidence presented to the second Court for consideration is regarded as having the status of oral testimony offered by a witness testifying to what he has heard from an eye-witness’ (Bek. 36a a.e.) which is invalid. Consequently, the second Court cannot render a decision on the basis of the submitted evidence. And if this testimony is submitted in writing to the second Court, the latter would have to hear the evidence again directly from the contesting parties or the party that made the admission, for the law is that testimony must be offered by witnesses orally and not from their writing (derived from Deut. XIX, 15, At the mouth of two witnesses … shall a matter be established — Git. 71a). But if the single recognized authority completes the adjudication himself, his decision is as binding as the one given by a Court of three — Nethiboth. On testimony offered before a Court, v. infra § 39, 12 and on the authentication of documents, v. infra § 46, 4, Gloss. even [if] they are duly ordained in the Land of Israel,23Cf. supra § 1, n. 1. — [the law is that] an admission of indebtedness made in their presence is regarded as an admission made outside the Court24 San. 29b and infra § 39, 7. and they [the litigants] may alter their [original] pleas which they put forth before them [the Judges].25B.B. 31a. One who denies aught before them [the Judges] and subsequently witnesses arrived [and refuted him], is not presumed to be a liar.26B.M. 17a and Alfasi a.l. However, if he declared before them: ‘You are my witnesses’ or he phrased his statement in the form of a complete admission, he is presumed to be a liar (v. infra §32, 1 and § 81) — M.E. ShaK opposes M.E. and writes that even if he stated: ‘You are my witnesses,’ they are still not regarded as a Court of Law, but only as witnesses. Hence, if he later alters his pleas and states, ‘I paid you,’ he is not presumed to be a liar (v. infra § 79, 9). Cf. however, viewpoint of Nethiboth and A.H. supra n. 2 However, regarding the [Court which consists of] three [Judges], although they are not duly ordained, — [the law is that] the admission of indebtedness made in their presence is regarded as one made before a competent Court of Law. Likewise, in [the case of] one who denies [aught] and subsequently witnesses came [and refuted him], — he is presumed to be a liar and cannot amend his pleas.

Mishnah Berurah

הלכה ג

אע"פ שיחיד מומחה לרבים מותר לו לדון יחידי מצות חכמים שיושיב עמו אחרים:

משנה ברורה

3.

Although one who is a recognized Mumḥeh is permitted to judge alone,27Yad, Sanhedrin II, 11 derived from Aboth IV, 8: ‘Judge not alone.’ Maim. has the reading, ‘One who was a recognized Mumḥeh or obtained permission (to judge) from the Court of Law.’ Tur has, ‘An individual who obtained permission etc.’ On this ruling v. San. 5a, Tosaf. s.v. כגון. Cf. however, Y. San. I, 1(18a): ‘R. Abbahu was sitting alone in judgment in the Turbulent (מרדתא. So Jastrow) Synagogue’ at Caesarea. Said his disciples to him, Rabbi, have you not taught us thus: Judge not alone? — Said he to them, Since they (the people) see me sitting alone in judgment and yet come to see me (with their cases), it is as though they accepted me (to abide by my decision) and it has thus been taught: When does this apply (that one must not judge alone) ? — If they did not accept him, but if they did accept (him), he may judge even alone.’ One should be careful nowadays not to judge alone even if the litigants accepted him to abide by his decisions, unless he expressly stated, ‘I am not competent to judge matters of strict law (דין תורה) and in case I give an erroneous decision, I am not to be held liable,’ or if it is a matter with which he is familiar and experienced — ShaK. A.H. disagrees with ShaK and states that the above stipulation is unnecessary, for since everyone is aware that he is the only Judge in town, they rely upon his judgment. Hence, it is as though they accepted him to abide by his rulings even if he should give an erroneous decision. [nevertheless], it is a commandment of the Sages that he appoint others28Thus Yad ibid. Tur has ‘that he appoint another individual.’ , Perisha. to sit with him [in judgment].

Mishnah Berurah

הלכה ד

אע"פ שב"ד של שלשה ב"ד שלם הוא כל זמן שהם רבים הרי זה משובח ומוטב שיחתוך הדין בי"א מבעשרה וצריך שיהיו כל היושבים בב"ד ת"ח וראוים ואסור לאדם חכם שישב בדין עד שידע עם מי יושב שמא ישב עם אנשים שאינם הגונים ונמצא בכלל קשר בוגדים לא בכלל ב"ד מי שאינו מומחה ולא קבלוהו עליו בעלי דינים אע"פ שנטל רשות מראש הגולה אין דינו דין אפי' לא טעה וכל א' מבעלי דינים אם רצה חוזר ודן בפני ב"ד: הגה רשות שנותן המלך עכו"ם בזמן הזה אינו כלום ומיהו אם קבלוהו הקהל ע"פ כתב המלך יכול לדין (טור) וי"א דאם גמיר וסביר מהני ליה רשות המלך (ריב"ש סי' רע"א) או השר הממונה בעירו דזהו בכלל דינא דמלכותא להושיב דיינים ושופטים מי שירצה ומ"מ מי שעושה זה בלא רשות הקהל מצער הצבור ועתיד ליתן את הדין (תשובת רשב"א סי' תרל"ז):

משנה ברורה

4.

Although a Court of Law of three is considered complete, — [yet], whenever they [the Judges] are many it is regarded as praiseworthy and it is better that the law be decided29The translation follows Maim. and Tur who have שיחתך in the Niph‘al form. Caro has שיחתוך in the Kal which is incorrect. by eleven than by ten [Judges].30San. 7b: ‘Whenever a case was presented to R. Huna he used to call a meeting and gather ten scholars in order, as he put it, that each of them carry off a chip of the beam’ (i.e., share the responsibility with him). Thus also Yad, Sanhedrin II, 13 and Tur a.l. When the Judges are many, they all examine the case very carefully and there is a better chance for a correct decision to be reached. Actually the number ten mentioned here is inexact, for a Court of Law must not be comprised of an even number, for if their opinions were halved no decision could be reached. The number ten is mentioned because in the cited passage regarding R. Huna, he summoned ten scholars. However, there it means that he gathered ten authorities excluding himself — M.E. Perisha. It is required that all who sit in the Court of Law31e., all those who sit in judgment, but regarding a disciple who sits before his master, it is not necessary that he be a scholar. As long as he is not an uncultured person, it is permissible — M.E. be scholars and worthy [of their office].32Sheb. 30b: ‘Our Rabbis taught: Whence do we know that a Judge should not permit an uncultured disciple to sit before him (so that he should not be misled by his erroneous opinions)? — For it is said, From a false matter keep far’ (Ex. XXIII, 7). Thus also Yad, Sanhedrin XXII, 2 and Tur a.l. Cf. infra § 7, 10; § 9, 6. It is forbidden for a wise man to sit in judgment until he knows with whom he sits lest he sit with people who are not suitable33San. 23a: ‘The pure-minded of the people of Jerusalem would not act thus … they would not sit in judgment unless they knew who was to sit with them.’ Thus also Yad, Sanhedrin II, 14 and Tur a.l. and is [then] found to be included in a council of conspirators34San. 26a (ref. to Is. VIII, 12) and as such cannot be included for the purpose of a decision. , also Yad ibid and Tur a.l. and not in a Court of Law. One who is not an authorized Judge [Mumḥeh] and the litigants did not accept him upon themselves,35Thus Tur. Caro has עליו ‘upon himself,’ i.e., upon each one of the litigants. Derived from San. 6a. This has reference to one who is neither versed in the law nor possesses reasoning power. One who is versed in the law but does not possess the power of reasoning is regarded as a Mumḥeh (authoritative Judge) and if he obtains authorization (נטילת רשות) his decision is binding. But one who in addition to being versed in the law also has reasoning power, is referred to as מומחה לרבים (an authoritative Judge recognized by the public) by Maim. — M.E., Perisha. This interpretation is rejected by ShaK. , infra § 25, 3- although he obtained authorization from the Exilarch,36Lit. ‘head of the Golah’ ראש הגולה. , Jer. XXVIII, 6. Likewise, if the Court of Law granted him authorization in error (v. Yad, Sanhedrin IV, 15). his decision is not binding,37San. 7b regarding the case of an incompetent Judge who was appointed by the members of the Nasi’s household. Tur and Maim. (Yad, Sanhedrin VI, 4) add that if he erred and exacted money from one litigant and gave it to the other litigant, he is held liable — M.E. even if he did not err [in his ruling],38San. 5a. and [consequently] each one of the litigants may, if he so desires, retract and plead [his case anew] before a [competent] Court of Law.39Tur has ‘another Court of Law,’ which is incorrect, for this would imply that the first is also considered a valid Court of Law. Maim. and Caro after him omit the word אחר (another) — M.E. Cf. also Caro’s text infra § 25, Gloss: Authorization which a ruler nowadays grants [to an individual Judge] is of no consequence.40In accord with San. 5a, Tosaf s.v. דהכא. Rashi (ibid. s.v. שרודים) however, states that the ruler’s sanction or authorization is valid. However, if the community accepted him in accord with the written decree of the ruler, he may act as Judge.41Tur — G. For we might have thought that since the people accepted him against their will, he should not be permitted to judge. We are, therefore, informed otherwise. However, if he gave an erroneous decision, he is not exempt from making restitution. Needless to say that he may judge if the community accepted him willingly without the ruler’s authorization (BaḤ) — ShaK. But if he is versed in the law and has reasoning power, their acceptance in accord with the ruler’s authorization exempts him from any liability whatsoever. Thus Tur. Not so according to Maim. who writes that the ruler’s authorization is of no conseuqence in case of an erroneous decision, even where they accepted him. Thus BaḤ. ShaK opposes BaḤ and states that no such inference may be drawn from Maim. And some say that if he [the Judge] is versed in law and possesses reasoning power, — the ruler's authorization has legal effect for him,42RIBaSh s. 271 — G. For if he is unversed in law, even the Exilarch’s authorization is invalid. , supra n. 40. Although Isserles writes supra par. 2 that ‘nowadays we do not conduct proceedings of adjudication (of monetary cases by) a recognized Mumḥeh so that he judge (not) alone against the will of an individual,’ yet, if he is versed in law and has reasoning power, the ruler’s authorization qualifies him even nowadays to judge alone and to be exempt from liability in the case of error as in the case of one who obtained authorization from the Exilarch who was also appointed by the ruler — ShaK. Cf. infra § 8, 1, Gloss; supra par. 1, Gloss; infra § 25, 2, Gloss. or [likewise, the authorization of] the officer who was appointed in his town [has legal effect for him], — for this comes under the category of the law of the State,43B.K. 113b. [viz.,], to appoint [as] Judges and Magistrates whomever he desires.44They must however, be versed in the law and posses reasoning power as supra — M.E. Nevertheless, whosoever does this without the permission of the community, annoys the general public45Ber. 55a: ‘A leader is not appointed over a community unless we first consult with it, as it says, See, the Lord hath called by name Bezalel, the son of Uri’ (Ex. XXXV, 30). One who disobeys this is subject to the ban imposed by R. Tam, RaShBaM, RABaN and their associates — Tummim, P.Tesh. and is destined to give an account [of his actions in the world to come].46RaShBA Resp. s. 637 — G.

Mishnah Berurah

חושן משפט חושן משפט א פרק ג

Choshen Mishpat Choshen Mishpat 1 Chapter 3