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חושן משפט

חושן משפט א

פרק ה

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 5

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א ב ג ד ה

5:1 5:2 5:3 5:4 5:5

Sif

הלכה א

באיזה יום דנין ובאיזה זמן ביום ובו ה סעיפים:
אסור לדון בשבת וי"ט ואם עבר ודן דינו דין:

משנה ברורה

1.

It is forbidden to try [civil suits] on the Sabbath and on a Festival.1Mishna Beẓ. 36b: ‘None may judge’ (in a lawsuit) on the Sabbath or on a Festival. This is included among the optional secular acts (רשות) enumerated ibid. (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.2Alfasi 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.

Mishnah Berurah

הלכה ב

אין דנין בע"ש ובעי"ט ואם הזמינו לבעל דין לבא לב"ד א"צ לבא ואפילו הזמינו לבא אחר שבת ויו"ט ולא בא אין קונסין אותו: הגה ויש מי שכתב דעכשיו בזמן הזה דנין בע"ש ובעי"ט משום בטול מלמדין ודוקא לענין ממון יש להקל דהפקר ב"ד הפקר אבל בדבר איסור אין להקל (ת"ה סי' רכ"ד והגהות סמ"ק) ונ"ל דדוקא דרך אקראי לפעמים אבל אין קובעים ב"ד בע"ש ובעיו"ט וכן נוהגין אין קובעין זמן בניסן ותשרי למי שאינו בעיר לבוא לדון אבל אם הזמינו בניסן ותשרי לבא אח"כ קונסין אותו אם לא בא: הגה וי"א דאין לקבול בבית הכנסת בניסן ולא בימים נוראים אפי' על בני כפרים שבאו למנין אלא קבעינן להו זמנא אחר הרגל ואם יש דחייה ורמאות דנין לאלתר (מרדכי ר"פ הגוזל בתדא והגהות מיימוני) ויש מקומות שנהגו שאם התחילו לדון קודם ניסן ותשרי קבעינן זמנא אף בהם והיכא דנהוג נהוג (פסקי מהרא"י סי' ר"ז) אין דנין בלילה בתחלת דין אבל אם התחילו לדון דיני ממונות ביום גומרין בלילה (וי"א דאם עברו ודנו בלילה דיניהם דין) (רשב"ם):

משנה ברורה

2.

[Civil suits] are not tried on the eve of a Sabbath or on the eve of a Festival.3Y. San. IV, 7(22b) ; Y. Beẓ. V, 2(63a); Y. Ket. I, 1(24d) where it is stated that the Mishna in San. 32a: ‘Capital cases are not tried on the eve of a Sabbath or Festival’ (since in case of condemnation the verdict must be carried out on the following day which is impossible were the trial to be held on the eve of a Sabbath or Festival. Moreover, it would be against the law to leave judgment in suspense until after the Sabbath or Festival — San. 35a. Cf. M.K. 14b) implies that civil suits may be tried on the eve of a Sabbath or Festival. Hence, Caro’s ruling presents a difficulty. Y. (ibid.) therefore, explains that the prohibition against adjudication of civil suits on the eve of a Sabbath or Festival is merely a Rabbinical measure. Thus also Yad, Sanhedrin XI, 3; Alfasi and Asheri to San. ibid. Even if the litigants agreed to appear before the Judges on the eve of a Sabbath or Festival, the prohibition still stands. For the Judges must be deliberate in judgment and since they are busy preparing for the Sabbath or Festival, this is not possible (contra ‘Ir Shushan who writes that the reason is that the people are busy making the festive preparations and should therefore, not be summoned then). This is substantiated by Isserles’ Gloss (anon), ‘but where a prohibition is involved (e.g., divorce or Ḥalizah proceedings) the lenient view should not be adopted’ and in D.M., Isserles adds, ‘for they (the Judges) are busy with the Sabbath preparations and cannot be deliberate in judgment.’ Thus we see that it is on account of the preoccupation of the Judges. This applies only to adjudication, but as regards hearing the pleas of the litigants and issuing the verdict after the Sabbath or Festival, it would be permissible from the Judges’ standpoint to meet for this purpose on the eve of the Sabbath or Festival (Thus RaN to Ket. beg.). The litigants, however, cannot be compelled to appear. This is the meaning of the following statement of Caro, ‘If they summoned a litigant to appear . . he is not obliged to come,’ i.e., even if the summons was for the purpose of hearing the pleas only, or it may mean that even if the Judges are free (e.g., others make the festive preparations for them), yet, the litigants cannot be compelled to appear — M.E. Nethiboth, however, maintains that if the litigants are willing to accept the verdict even if it is erroneous, the Judges may try their case even on the eve of a Sabbath or Festival. If they summoned a litigant to appear before the Court of Law [on these days], he is not obliged to come.4B.K. 113a; Yad, Sanhedrin XXV, 9. , end of previous note. Even if they summoned [him on the eve of a Sabbath or Festival] to appear after the Sabbath or Festival, and he did not come, we do not penalize him.5B.K. ibid. For he may offer the reason that he was busy preparing for the Sabbath or the Festival and did not take notice of the summons (Gemara ibid.) — M.E., ShaK. Gloss: There is an authority who writes that nowadays we may conduct legal proceedings on the eve of a Sabbath or on the eve of a Festival on account of the neglect of [Torah instruction by] teachers.6For throughout the week if they should have to appear in Court, the study of the Torah would be neglected. Hence, on the eve of the Sabbath or Festival when they are free from teaching, it is their only opportunity to appear in Court, if necessary. Hence, if the Beth Din finds it necessary to adjudicate cases on the eve of a Sabbath or Festival, it is permissible. A substantiation for this leniency may be derived from the following Mishna San. 24a: ‘If one (of the contesting parties) said to the other: I accept my father or your father as trustworthy (to act as a Judge), or I accept three herdsmen as trustworthy, R. Meir says, He may (subsequently) retract; but the Sages say, He cannot retract.’ The law is in accord with the Sages, viz., that he cannot retract. It follows therefrom that no prohibition exists against a Beth Din which is Biblically ineligible to adjudicate the case, provided the litigants agreed to accept the ineligible Judges. This applies, of course, to a community where no eligible Judges are available, and such a Beth Din is valid under the circumstances (v. infra § 8, 1; § 22, 1). This is binding only in civil lawsuits, but not where a prohibition is involved. Hence, the ruling of Isserles anon — W.G. (in accord with interpretation of Be’er Eliyahu). And only with respect to a monetary lawsuit may we adopt this lenient view, — for an expropriation made by the Court is valid,7Even if the Judges erred because they could not be deliberate in their judgment — M.E. but where a prohibition [is involved], the lenient view should not be adopted.8Terumath ha-Deshen s. 227 and Hag. SeMaK — G. , supra n. 3. ‘A prohibition’ refers to divorce proceedings or the performance of the Ḥaliẓah ceremony which requires extremely conscientious deliberation. In the case of an emergency (שעת הדחק), the lenient view may be adopted. Cf. E.H. § 154 and § 169. And it seems to me that [this applies] only to [a Court of] a temporary nature [that meets but] occasionally, but we do not establish a Court [for the purpose of meeting] permanently9Where the days are fixed and the Judges come of their own accord. on the eve of a Sabbath or on the eve of a Festival. Thus is the accepted practice. We do not fix a date [that a judicial session be held] during Nisan and Tishri10B.K. 113a. e., until after the Festival because one is then busy on account of the Holidays (according to Rashi because it is the agricultural season). But after the Festival a date may be fixed. The reason mentioned supra n. 5 does not apply here since there was ample time for him to take notice of the summons. Thus Isserles anon — ShaK. In the month of Sivan it would be permissible to summon one to Court because Shabuoth which occurs in this month consists only of two days in the Diaspora (and one day in the Land of Israel) and the question of preoccupation does not apply. On the eve of Shabuoth it would still be forbidden for the reasons stated above — M.E. Some authorities, contra ShaK, forbid the entire months of Nisan and Tishri. There are twenty-one days during which a Groom should not be summoned to appear in Court, viz., seven days prior to the wedding; the seven days of the wedding-feast; seven days following the wedding-feast. Other authorities hold that a Groom should not be summoned only three days before and seven days after the wedding. A widower who marries a widow is not to be summoned during the three days after the marriage (E.H. § 64). In other cases of religious duties, e.g., a circumcision, the Sandek or the father of the child, should they have to appear in Court, the days to be fixed for the hearing should be left to the discretion of the Judges — P.Tesh. for one who is not [a resident] in town, to appear for trial;11But a resident in the same town may be judged. Thus Tur on the authority of Mord., whence we infer that if the contending parties agree to appear for trial from another town, they may be judged throughout the month of Nisan or Tishri (except on the eve of the Festival) — M.E. The opinion of Tur. and Mord. is substantiated by M.K. 14b where it is taught (derived from Tosef. M.K. II, 11) that monetary cases are dealt with by the Courts during Ḥol ha-Moed. This refers to a litigant who lives in the same town and consequently, may be tried even against his will. B.K. 113a, the source of Caro’s ruling deals with a litigant who came from another town. but if they summoned [him] during Nisan and Tishri to appear later, he is penalized if he does not come.12B.K. ibid. Gloss: Some say that suit should not be brought in the Synagogue during Nisan or the High Holy Days even against villagers who came to the Minyan [to pray], but we may [then] fix for them a date [to appear] after the Festival,13 Tur and Sh. ‘Ar. O.Ḥ. § 546, 11: ‘One is permitted to bring charges (against his fellow) on account of debts (owing to him) on Ḥol ha-Moed.’ Thus Caro. But Isserles does not make any comment (ibid.) as in the present ruling, although Mord. is the source of the ruling in O.Ḥ. too. It is quite possible that Caro in O.Ḥ. is dealing with a case where it is permissible to bring charges in the month of Nisan, e.g., where the accused was one of the townsmen or there was deliberate postponement and deception on the part of the accused party, in which case as stated here, it is permissible. Hence, in O.Ḥ. under the above conditions, it is not forbidden to bring charges — M.E. This interpretation is questioned by Ba’er Heteb a.l., for Isserles states here that even villagers who came from out of town are not to be tried whence we infer that much more so in the case of residents is this forbidden. M.E. may, however, be defended for in O.Ḥ. § 539, 3 Isserles does comment, viz., ‘He is permitted to bring charges (against his fellow) in (the place of) judgment on account of his debts.’ M.Abr. rejects the interpretation of M.E., for in O.Ḥ. we deal with bringing charges before a heathen Court, which is permissible during the Festival. This is what is meant by the term משפט (‘in the place of judgment’) employed in O.Ḥ. M.E. is defended by Shebuth Ya‘akob because M.E. refers to § 546 where Caro states the law without using the term משפט (‘in the place of judgment’), i.e., even before a Jewish Court. Maḥaẓith ha-Shekel and Peri Megadim defend M.Abr. for in O.Ḥ. § 546 too, the source is Mord. Tummim makes the following distinction: In the present ruling we deal with a case of one who not only brings charges against his fellow but also, demands that the matter be adjudicated, which is forbidden during this period; whereas in O.Ḥ. we deal with a case where the plaintiff demands payment and refers to a matter which is not contested by the accused party. Hence, it is permissible to be done on Ḥol ha-Moed — P.Tesh. and if we [are able to detect that] there is [deliberate] postponement and deception [on the part of the summoned party in order to avoid justice], we may adjudicate [the matter] forthwith.14Mord. to B.K. X beg. and Hag. Maim. — G. B.K. 113a: ‘R. Naḥman said: We never summon the participants of the Kallah (the assembly of Babylonian students in the months of Elul and Adar) to appear in Court during the period of the Kallah or the participants of the Festival sessions which are held during the festive season (which begins thirty days prior to the Festival). When plaintiffs would come before R. Naḥman (and requested that summonses be issued during this season) he would say to them: Have I assembled them for your individual benefit? But now that there are impostors (who take advantage of this privilege) there is apprehension (that they came to the assemblies for the sake of avoiding justice) !’ The last part of this statement, ‘and now that there are impostors’ is explained by Mord. to mean that we investigate the matter in order to determine whether there is a deliberate postponement or deception on their part in order to avoid justice. Hence, if we discover that this is really the case, we do fix a date for them to appear in Court during the Kallah and the festive sessions. There are some localities where the adopted custom is that if they had begun to adjudicate [the matter] before Nisan and Tishri, we may fix a date [for the continuation of the hearing] even therein,15e., during Nisan and Tishri. Although according to the reasons mentioned above for not summoning one to a judicial session during Nisan or Tishri there is actually no difference between the commencement of the trial or the conclusion thereof, yet, there is support for the custom mentioned here, in Mishna Shab. 9a: ‘If they began, they need not interrupt.’ Cf. also anon: ‘We do not try cases at night … but if they had begun to try monetary cases during the day, they may conclude at night.’ and wherever such is the custom it may be practiced.16Decisions of Isserlein s. 207 — G. We do not try cases at night with respect to the commencement of the trial, but if they had begun to try monetary cases during the day, they may conclude at night.17Mishna San. 32a. Gemara (ibid. 34b) : ‘Whence is this derived? R. Ḥiyya b. Papa said: From the verse, And let them judge the people at all times (Ex. XVIII, 22 i.e., even at night). If this is the case, then even the commencement of the trial may (be held at night) — It is as Raba expounded. For Raba pointed out an incongruity (between two verses) : It is written, And let them judge the people at all times (ibid.); but elsewhere it is written, And in the day that he causeth his sons to inherit (Deut. XXI, 16. Here day is emphasized whence it follows that not only cases of inheritance must be decided by day but likewise all civil claims. Hence, this verse contradicts the preceding one). How now is this (reconciled)? — The day is for the commencement of the trial, the night for the conclusion of the trial’ (for, and they shall judge … at all times implies rendering judgment which is the essential factor). In Resp. of Isserles he writes that if the contesting parties agreed to be judged at night, it is permissible to do so, for this should not be regarded different from a case where the litigants accepted as Judge a relative or one who is ineligible. For this reason we adopt the lenient practice nowadays to judge at night, for when the parties appear for trial and come willingly, it is regarded as though they accepted him. Hence, the proceedings may be held at night. Thus M.E. P.Tesh cites dissenting opinions. Caro’s ruling that ‘they may conclude at night’ has reference to cases where there was not enough time to complete the proceedings during the day — P.Tesh. Some say that if they violated [this ruling] and tried cases at night [even with respect to the commencement of the trial], their decision holds good.18RaShBaM (to B.B. 114a, s.v. אפילו) — G. Derived from Y. San. IV, 6(22b). Tosaf. Yeb. 103b, s.v. מר םכר emends text of Y., whence it follows that only the conclusion of the trial may be held at night but not the commencement of the trial. Hence, emended text of Y. according to Tosaf. corresponds to Babli San. 34b (v. supra n. 17). Cf. infra § 28, 24; San. 11b: The sanctification of the month must take place during the day. This is based on the verse, For this is a statute for Israel, a judgment of the G-d of Jacob. Thus we see that the sanctification of the month is equated to Judgment which is executed during the day. ShaK rules, contra the present ruling that if the entire legal proceedings were conducted at night, the decision is not valid.

Mishnah Berurah

הלכה ג

זמן ישיבת הדיינים מהבוקר עד סוף שעה חמישית (מכאן ואילך אין צריכים לישב) (טור):

משנה ברורה

3.

The time when Judges sit [in judgment] is from the morning until the end of the fifth hour.19Shab. 10a: ‘Until when do they sit in judgment? — R. Shesheth said until mealtime. R. Ḥama said, Which Biblical verse (teaches this) ? — For it is written, Woe to thee, O land, when thy king is a child, and thy princes eat in the morning! Happy art thou O land, when thy king is the son of nobles, and thy princes eat in due season, for strength and not for drunkenness! (Eccl. X, 16f) [i.e.,] in the strength of the Torah and not in the drinking of wine.’ (‘Princes’ are taken here as ‘Judges’ who first sit in judgment and then have their meal). Ibid.: ‘The sixth hour is the mealtime for scholars.’ , also O.Ḥ. § 157. Tur writes, ‘until mid-day’ and Maim. (Yad, Sanhedrin III, 1) states, ‘until the end of the sixth hour.’ Caro in B.Yos. states that this is incorrect, for the sixth hour is the mealtime for scholars and ‘after that it is like throwing a stone into a leather bottle’ (Gemara ibid.), i.e., it has no effect or is indigestible. Caro in the present ruling follows Alfasi and Asheri to San. It is quite likely that both Tur and Maim. in using the expression ‘until’ may mean ‘exclusive of’ (עד ולא עד בכלל) i.e., close to midday or close to the end of the sixth hour, so that the mealtime begins for the Judges before the sixth hour is over and is extended into the seventh hour. Eating something before the end of the sixth hour would be equivalent to partaking of something in the morning in which case it matters not if the main meal is postponed (v. Gemara ibid.) — M.E., BaḤ, ShaK. Cf. Kesef Mishneh to Yad ibid. According to Zohar, Mishpatim 122a, one must not sit in judgment after partaking of a meal. Derived from Execute justice in the morning (Jer. XX, 12) and Ye shall not eat with the blood (Lev. XIX, 26). Cf. however, M.K. 14b. Tur at the head of this chapter adds, that originally it was enacted by Ezra, the Scribe, that Courts hold their sessions on Mondays and Thursdays (B.K. 82a) for then people were present since they came to read the Torah. Today, however, all days are similar. Hence, this was not mentioned by Caro — M.E. From that time onward they are not obliged to sit.20Derived from Shab. ibid. ‘R. Ammi and R. Assi were sitting and studying between the columns (of the study-house). From time to time they would knock at the side of the door and say: If there is anyone who has a lawsuit, let him enter and come in. R. Ḥisda and Rabbah, son of R. Huna were sitting in judgment all day and their hearts grew faint (Rashi: they were distressed at not being able to study. Or because they were famished), (whereupon) R. Ḥiyya b. Rab of Difta expounded to them, and the people stood about Moses from the morning unto the evening (Ex. XVIII, 13) ; Can it really enter your mind that Moses sat and judged the entire day? When was his learning done? But this teaches you, Every Judge who judges in complete truth even for one hour, the Bible text credits him as though he had become a partner to the Holy One, blessed be He, in the act of creation. Here it is written, and the people stood about Moses from the morning unto the evening, and elsewhere it is written, and there was morning and there was evening one day (Gen. I, 5).’ According to Rashi’s second interpretation they were not obliged to sit and judge throughout the entire day.

Mishnah Berurah

הלכה ד

אין יושבין בדין מתחילת שעה שביעית אפי' לגמור הדין עד שיתפללו תפלת המנחה ואם התחילו אפי' תחלת דין (אין) מפסיקין אפי' לכשיגיע זמן מנחה קטנה ובלבד שיהיה להם שהות להתפלל אחר שיגמרו הדין (ואם ישבו סמוך למנחה קטנה מפסיקין) (טור):

משנה ברורה

4.

They [the Judges] do not sit in judgment from the beginning of the seventh hour even to conclude the trial until they recite the [major] Minḥa service.21Mishna Shab. 9b in accord with R. Aḥa b. Jacob (Gemara ibid.) who explains that this has reference even to the conclusion of the trial (גמר דין) where the pleas of the litigants have already been heard, for the Judges may discover an argument in order to reverse the judgment which will necessitate hearing the pleas afresh and will thereby forget to recite the Minḥa service. Thus also Yad, Tefillah VI, 5. According to Rashi ibid. s.v. מנחה גדולה, the major Minḥa begins from six and a half hours and onwards (assuming that the day begins at 6:00 a.m. and ends at 6:00 p.m. An ‘hour’ means a twelfth part of the day), i.e., from 12:30 p.m. The expression ‘close to’ (םמוך) used in Mishna ibid. means half an hour before the appointed time. This is derived from Pes. 99b where םמוך למנחה (close to Minḥa) refers to one half hour before the minor Minḥa. Hence, the same applies to the major Minḥa which begins from six and half hours and onwards. Cf. also ibid 100b and v. Ber. 26b: ‘Which is the major Minḥa? — From six hours and a half onwards. Which is the minor Minḥa? — From nine hours and a half and onwards,’ i.e., from 3:30 onwards. Consequently, we do not sit in judgment from the beginning of the seventh hour. Legally the beginning of the seventh hour (12 noon) is the time for reciting Minḥa (v. O.Ḥ. § 232, 2), only that the Sages ordained to wait an additional half an hour in order to make certain that the sun is beginning to decline, for otherwise one may err with respect to the end of the sixth and the beginning of the seventh hour — M.E. However, if they began, even the commencement of the trial, they need not interrupt,22Mishna Shab. ibid. Just as ‘in the first instance’ no distinction is made between the beginning of the trial (תחלת דין) and the conclusion of the trial (גמר דין), so too, if they had already begun, no such distinction is made. For in a sense the ‘conclusion of the trial’ is also a commencement, since the judges must reorientate themeselves with the facts before concluding, i.e., before giving a verdict. , ibid 9b, Tosaf. s.v. בתספורת and Asheri a.l. even when the time for [reciting] the minor Minḥa had arrived,23Shab. ibid., Tosaf. s.v. ואס; Suk. 36a; Ber. 28b, Tosaf. s.v. כיון; Asheri and other Codifiers. provided they have time to recite the Tefillah after they conclude the trial.24Shab. ibid., Tosaf. s.v. אין מפסיקין; Suk. ibid. But in the first instance it is forbidden lest the case be prolonged and they forget to recite the Minḥa service — M.E. If they sat down in judgment close to the minor Minḥa, they must interrupt [their deliberations].25Tur — G. Even if they began the ‘conclusion of the trial’ (v. supra n. 22). Later Codifiers write that nowadays we adopt a leniency in this matter because the time for Minḥa services is usually announced and there is no apprehension lest they forget (Tummim) — A.H.

Mishnah Berurah

הלכה ה

מאימתי הוי התחלת הדין משיתחילו בעלי דינים לטעון או שנתעטפו הדיינים (ועיין בא"ח סי' רל"ב):

משנה ברורה

5.

From what time is it considered to be the commencement of a trial? — When the litigants begin their pleas or when the Judges put their cloaks on.26Shab. 10a: ‘When is the beginning of a trial? — R. Jeremiah and R. Jonah — one holds: When the Judges put their cloaks on (i.e., their prayer shawls in order to lend solemnity to the occasion) ; and the other says: When the litigants begin (their pleas). And they do not differ; the latter means when they were already engaged in a (previous trial) ; the former when they were not already engaged in a (previous trial). Cf. infra § 8, 2.

Mishnah Berurah

חושן משפט חושן משפט א פרק ה

Choshen Mishpat Choshen Mishpat 1 Chapter 5