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חושן משפט

חושן משפט א

פרק ח

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 8

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א ב ג ד ה

8:1 8:2 8:3 8:4 8:5

Sif

הלכה א

שלא למנות דיין שאינו הגון וגודל שכר הדיין ועונשו ובו ה סעיפים:
כל המעמיד דיין שאינו הגון ואינו חכם בחכמת התורה ואינו ראוי להיות דיין אע"פ שהוא כולו מחמדים ויש בו טובות אחרות הרי זה שהעמידו עובר בל"ת: הגה ואסור להעמיד ע"ה דיין על סמך שישאל כל פעם לחכם (ב"י) ועיירות שאין בהם חכמים הראוים להיות דיינים או שכולן עמי הארץ וצריכים להם דיינים שישפטו ביניהם שלא ילכו לפני ערכאות של עכו"ם ממנים הטובים והחכמים שבהם (לדעת אנשי העיר) אע"פ שאינם ראויים לדיינים וכיון שקבלו עליהם בני העיר אין אחר יכול לפוסלן וכן כל צבור יכולין לקבל עליהם ב"ד שאינם ראוים מן התורה (ב"י בשם תשו' הרשב"א) וכל דיין המתמנה בשביל כסף או זהב אסור לעמוד לפניו ולא עוד אלא שמצוה להקל ולזלזל בו (וע"ל ס"ס ג'):

משנה ברורה

1.

Whoever appoints an unworthy Judge,1San. 7b; A.Z. 52a: ‘Resh Lakish stated: Whoever appoints an unworthy Judge over the community is as though he planted an Ashera in Israel, for it is written, Judges and officers shalt thou appoint thee, and near it is said, Thou shalt not plant thee an Ashera of any kind of tree (Deut. XVI, 18-19).’ Tree refers to a Judge. , Ta‘an. 7a to Deut. XX, 19. or2Lit. ‘and,’ which is to be understood here not as the Waw explicativum (as the English ‘to wit’), but rather as the Waw copulativum that introduces an alternate item, i.e., having the meaning of ‘or.’ , Kimḥi’s Heb. Gram., ed. Chomsky p. 352. Hence, the meaning here is a) One must not appoint an unworthy Judge, i.e., one who is unworthy in his deeds or actions, though he may be a scholar, or b) One who is not a scholar, though he is considered worthy in deeds (-a totally pleasant individual, i.e., outwardly his actions are becoming). The ruling supra § 3 that even if one of the Judges is versed in law and is endowed with reasoning power, it suffices, has reference only to ex post facto decisions. However, in the first instance, the Judges who are appointed permanently must be versed in the law. , supra § 3, n. 42. one who has no knowledge in the wisdom of the Torah and is not fit to be a Judge,3San. 7b: ‘The members of the Nasi’s household once appointed a Judge who was incompetent. The Rabbis said to R. Judah b. Naḥmani, the interpreter of Resh Lakish: Stand at his side as interpreter. When he stood at his side and bent down (to hear what he was saying), the (interpreter) said nothing. Whereupon R. Judah commenced his exposition and said, Woe unto him who saith unto wood: Awake! — to the dumb stone: Arise! Can this teach? Behold it is overlaid with gold and silver and there is no breath at all in the midst of it (Hab. II, 19); but the Holy One, blessed be He, (he continued) will punish those who set them up, as it is written, But the Lord in His holy Temple; let all the earth keep silence before Him (ibid.).’ — even if he is a totally pleasant [individual]4e., he is full of charm. , Song of Songs V, 16. and possesses other good [qualities], — [yet,] the one who appointed him transgresses a negative precept.5Sifre XVII to Deut. I, 17, Ye shall not respect persons in judgment, i.e., one must not respect his friend by appointing him as a Judge because the latter is wealthy, or is a relative of his or for any other similar reason. Cf. Yad, Sanhedrin III, 8. Gloss: It is forbidden to appoint an unlearned person [as] a Judge on reliance that [in every legal matter] he will always consult a scholar.6B.Yos. — G. Derived from Shab. 139a: ‘What is the meaning of the verse, The Lord hath broken the staff of the wicked, the sceptre of the rulers? (Is. XIV, 5). Mar Zutra said. This refers to scholars who teach the laws of the public to ignorant Judges,’ i.e., the ignorant Judges are appointed in reliance that they will consult the scholars in doubtful matters, but they act of their own accord and thus pervert justice (Rashi). Hence, we see that an ignorant Judge should not be appointed on the reliance that he will always consult the scholar. [In] towns where there are no scholars [available] who are fit to be Judges, or where all of them are unlearned people and they require Judges to adjudicate [cases] among them so that they go not before heathen Courts, — [the law is that] they may appoint [as Judges] the best and the wisest of them with the consent of the townspeople, although they are not fit [to be] Judges.7Mishna San. 23a according to which R. Meir holds that each litigant may refuse to accept the Judge chosen by the other and the Gemara (ibid.) explains that R. Meir maintains thus only in the case of Syrian Courts whose Judges were unversed in Jewish law; but the Sages hold that if they are fit, they are regarded as Mumḥin appointed by the Beth Din and cannot be disqualified, i.e., since they were accepted by all the townspeople as Judges they may not be disqualified, provided there are no Mumḥin available there. , supra § 3, n. 4. However, once the townspeople accepted them [as Judges] no other person can disqualify them.8, previous note. Likewise, [the members of] an entire community can accept a Court of Law [that consists of Judges] who are not fit [to judge] Biblically.9B.Yos. on the authority of RaShBA, Resp. — G. , infra § 33, 18 Gloss. And every Judge who gets appointed on account of silver or gold, — [the law is that] it is forbidden to rise before him;10Caro’s text has לפניו which should be corrected to מפניו. Thus Y. , following note. and what is more, it is a religious duty to treat him with disrespect and to despise him.11 supra § 3 end — G. Yad, Sanhedrin III, 9; Tur. Derived from Y. Bik. III, 3(65d); Midr. Sam. VII: ‘R. Mani spoke with disrespect of those that get appointed to office for money. R. Imi would apply to them the Scriptural verse, gods of silver, or gods of gold, ye shall not make unto you (Ex. XX, 20). Said R. Joshiah: His official cloak is as befitting to him as the packsaddle of an ass. Said R. Sheyan: For one who is appointed to office on account of money, one should not rise, nor is he called Rabbi etc.’ , San. 7b: ‘It is written: Ye shall not make with Me gods of silver or gods of gold (Ex. ibid.). Does it mean that only gods of silver and gold are not to be made, but those of wood are permissible? — The verse, said R. Ashi, has reference to Judges appointed through the power of silver or gold.’ Cf. San. 63b: ‘All scoffing is forbidden except the ridiculing of idols (by perverting their names).’ Hence, just as idolators may be treated irreverently, so also Judges who are appointed through the power of money. This refers to a Judge unversed in Jewish Law, but if he is learned in the Torah, even if there are others greater than he in that city, there would be no prohibition against rising in his presence, provided he did not buy his judgeship for money, but was appointed to office because he was wealthy. For if he paid money to be appointed, even if he is the most learned in the city, the prohibition stands. Thus BaḤ. However, according to Tosaf. Yeshanim to Yoma 18a, s.v. מרתא in the case of R. Joshua b. Gamala who was appointed to the High Priesthood for money, only if there are others superior to him in learning does the prohibition apply, but not otherwise. Thus Ḥatam Sofer contra BaḤ.

Mishnah Berurah

הלכה ב

צריכים הדיינים לישב באימה וביראה בעטיפה ובכובד ראש ואסור להקל ראש ולישב לספר בדבר בטילה בב"ד ויראה הדיין כאלו חרב מונחת לו על צוארו וכאלו גיהנם פתוח לו מתחתיו וידע את מי הוא דן ולפני מי הוא דן ומי הוא עתיד להפרע ממנו אם נוטה מקו הדין וכל דיין שאינו דן דין אמת גורם לשכינה שתסתלק מישראל וכל דיין שנוטל ממון מזה ונותנו לזה שלא כדין הקב"ה נוטל ממנו נפשות וכל דיין שדן דין אמת לאמתו אפי' שעה אחת כאלו תיקן כל העולם כולו וגורם לשכינה שתשרה בישראל (שמא יאמר הדיין מה לי לצרה הזאת ת"ל ועמכם בדבר המשפט אין לדיין אלא מה שעיניו רואות) (טור):

משנה ברורה

2.

The Judges are obliged to sit [in judgment] in fear and awe,12Yad, Sanhedrin III, 7 and Tur a.l. Derived from San. 7a-b; Yeb. 109b: ‘R. Samuel b. Naḥmani said on the authority of R. Jonathan: A Judge should always picture himself as if he had a sword lying between his thighs and Gehenna open under him, for it is written, Behold it is the litter of Solomon (symbolic of the Shechinah), and round about it three score of the mighty men of Israel (symbolic of the scholars or the sixty myriads of Israel — M.E.) ; they all handle the sword and are expert in war and every man has his sword upon his flank because of the dread in the night (Cant. III, 7-8) — the dread of Gehenna (should there be a perversion of justice) which is compared to the night.’ This ‘dread,’ therefore, should instill in the Judges fear and awe of justice. wrapped [in their Tallith]13Wrapping oneself up in a Tallith while administering justice is no longer in vogue today. However, a judge should put on his top mantle or the coat that he wears when attending the Synagogue—P.Tesh. Cf. O.Ḥ. § 232, 2; supra § 5, n. 26. in a solemn frame of mind.14Heb. בכובד ראש Lit. ‘with heaviness of head.’ Cf. Lat. gravitas. Opp. ‘lightness of head’ קלות ראש equivalent to Lat. levitas. It is forbidden to behave irreverently, or to sit and engage in idle talk in the Court of Law.15Yad and Tur ibid. The Judge should always picture himself as if he had a sword lying over his neck,16Thus Alfasi; Yad, Sanhedrin XXIII, 8; Tur a.l. Cur edd. have ‘between his thighs.’ For the expression על צוארו cf. Zohar, Mishpatim 117a: כד דיין דן דינא גיהנם פתוחה לפניו וחרב על צוארו Ibid., Bereshith 44a: כל אינון דיינין דדייני דינא חרבא תליא על רישייהן מלעילא. , Bacher in Moses ben Maimon II, p. 164, n. 3 who was unaware of this source. , text supra n. 1 This refers to the fear of punishment in this world — M.E. and as if the Gehenna is open under him.17This refers to the fear of punishment in the world to come — M.E. , supra n. 1 He [the Judge] should know whom it is that he is judging, before whom he is judging, and who will call him to account should he turn aside from the line of justice.18San. 6b: ‘The Judges should know whom it is that they are judging, before whom they are judging, and who will call them to account (should they pervert justice), for it is written, G-d standeth in the Congregation of G-d, in the midst of the judges doth He judge (Ps. LXXXII, 1), and regarding Jehoshaphat it is said, He said to the judges, Consider what ye do, for ye judge not for man, but for the Lord (II Chron. XIX, 6).’ , Yad ibid. Every Judge who does not render a true judgment causes the Shechinah to depart from Israel.19San. 7b: ‘And every Judge who does not render a judgment in absolute truth, causes the Shechinah to depart from Israel, for it is written, Because of the oppression of the poor, because of the sighing of the needy, now will I arise, saith the Lord (Ps. XII, 6).’ Every Judge who unjustly takes money from one and gives it to another, the Holy One, blessed be He takes from him his life.20San. 7a. Derived from the Scriptural verse, Rob not the poor because he is poor; neither oppress the afflicted in the gate, for the Lord will plead their cause, and will despoil of life those that despoil them (Prov. XXII, 22-23). , Yad ibid., par. 9. Every Judge who judges in absolute truth,21Shab. 10a. , supra § 5, n. 20; Yad ibid. even for a single hour, is regarded as though he had perfected the entire world and causes the Shechinah to dwell in Israel.22San. ibid.: ‘R. Samuel b. Naḥmani reported on the authority of R. Jonathan: Every Judge who renders a judgment in absolute truth (i.e., he does not rely upon the evidence alone, but makes a personal investigation in order to establish the truth. , Tosaf. B.B. s.v. דין; Meg. 15b, s.v. זה), causes the Shechinah to dwell in Israel, for it is written, God standeth in the Congregation of G-d; in the midst of the judges he judgeth (Ps. LXXXII, 1).’ [And] lest the Judge should say, 'Why should I have all this trouble,' it is said. "He is with you in giving judgment,"23II Chron. XIX, 6. — [i.e.,] the Judge should concern himself only with what he sees with his own eyes.24Tur — G. San. 6b.

Mishnah Berurah

הלכה ג

דרך חכמים הראשונים בורחים מלהתמנות ודוחקים עצמם הרבה שלא לישב בדין עד שידעו שאין שם ראוי כמוהו ושאם ימנעו עצמם מהדין תתקלקל השורה ואעפ"כ לא היו יושבים בדין עד שהיו מכבידים עליהם העם והזקינים ומפצירים בם:

משנה ברורה

3.

The custom of the former Judges was to shun being appointed to office and they would restrain themselves exceedingly not to sit in judgment25Yad, Sanhedrin III, 10. Derived from San. 14a: ‘R. Zera was on his guard not to be ordained, because R. Eleazar had stated: Remain always obscure (i.e., without office) and live. But when he later heard another saying of R. Eleazar, viz., One does not attain greatness until all his sins are forgiven (i.e., the greatness of holding office improves one’s moral personality), he was ready to become reconciled (to the idea).’ Y. Bik. III, 3(65c-d) bot.: ‘R. Ze‘ira, when they wanted to ordain him, did not want to accept (this office) upon himself. But when he heard that which was taught in a Baraitha, viz., that regarding a scholar, groom and a Nasi, greatness forgives (all sins), he accepted the appointment.’ until they knew that there was no other [authority] available there as competent as they26Heb. כמותם. Thus Yad ibid. Caro, however, has כמוהו ‘as he.’ Derived from Ber. 63a: ‘Where there is no man, then you should be a man (to spread the teachings of the Torah). Abaye said : From this you may infer that there is a man, then you should not be a man. This is self-evident? — This was required to be stated where both are equal (i.e., where there is another person who equals you in learning do not strive to attain office).’ , infra n. 28 end. and if they were to desist from [giving decisions] in the law, the natural order [of justice] would become upset.27A.Z. 19b: ‘R. Abba said on the authority of R. Huna, in the name of Rab, What is the meaning of the verse, For she hath cast down many wounded? (Prov. VII, 26) — This refers to a disciple who has not attained the age of ordination (the original הפילה is connected here with נפל non-viable birth) and yet, renders decisions; yea, a mighty host are her slain (ibid.), refers to a disciple who has attained the age of ordination, but avoids giving decisions,’ (the original עצומים is taken here as ‘those who refrain from rendering decisions,’ as עוצם עינין) -‘he shuts his eyes’ found in Is. XXXIII, 15). And what is the permissible age? — Forty years. But did not Rabbah render decisions? (although he died at the age of forty. , R.H. 18b. Cf. however, Halevy, Doroth II, 438 seq.; Funk, Die Juden in Babylonien II, n. 1) — There we deal with a case of equals (i.e., there was none greater than he available).’ Hence, if he surpasses all the others in learning he must accept the appointment. Otherwise, the natural order of justice is upset. Cf. supra § 7, n. 14. Yet, they would not sit in judgment until the people and the elders are urged to put pressure upon them and entreat them [to accept].28Hor. 10a-b: ‘. . Rather be astonished at two disciples you (R. Gamaliel) have on land, R. Eleazar Ḥisma and R. Joḥanan b. Gudgada who can calculate how many drops there are in the sea and have neither bread to eat nor clothes to wear. He (R. Gamaliel) decided to appoint them as overseers (in order for them to make a living) … he sent for them but they did not come. He then sent sent for them again and when they arrived he said to them, Do you think that I give you rulership? It is rather servitude that I give you, as it is said And they spoke to him saying : If thou wilt be a servant unto this people this day (I Kings XII, 7, spoken by the old advisers to Rehoboam who was King of Judah and Israel).’ Cf. I Sam. X, 22. It follows that there must have been no others available for the office and yet, at first they refused to come. As to the passage in A.Z. ibid. (v. previous note) regarding a disciple who has attained the age of ordination, but avoids giving decisions to whom is applied the verse, yea, a mighty host are her slain, it refers to one who even after having been strongly urged to accept the office, still refuses, Or, it is possible that in A.Z. ibid., we deal with a case of a scholar who is unsurpassed in learning by anyone in his generation (v. Tur and Caro infra § 10, 3 and note the expression ‘and the generation has need of him’), but the present ruling treats of one who is superior in learning to all the scholars of that particular locality. However, elsewhere there are others who are available (note the expression used here ‘there was no other authority available there’) — M.E. , Sot. 22b, Tosaf. s.v. בשוין.

Mishnah Berurah

הלכה ד

אסור לדיין להתנהג בשררה וגסות על הצבור אלא בענוה ויראה וכל פרנס המטיל אימה יתירה על הצבור שלא לשם שמים אינו רואה בן ת"ח לעולם וכן אסור לנהוג בהם קלות ראש אע"פ שהם עמי הארץ ולא יפסיעו על ראשי עם קודש וצריך שיסבול טורח הציבור ומשאם ומצוה על הציבור לנהוג כבוד בדיין ויהיה אימתו עליהם וגם הוא לא יתבזה ולא ינהוג קלות ראש לפניהם שכיון שנתמנה אדם פרנס על הצבור אסור לו לעשות מלאכה בפני ג' כדי שלא יתבזה בפניהם וק"ו שאסור לו לאכול ולשתות (ולהשתכר טור) בפני רבים: (כל דיין שאין לו מי שישמשנו אסור לו לקבל להיות דיין) (הגה"מ פכ"ה דסנהדרין):

משנה ברורה

4.

It is forbidden for a Judge to exercise arbitrary power and presumtuousness over the community, but [he should proceed] with humility and caution.29Yad, Sanhedrin XXV, 1. Derived from Ned. 81a: ‘Why is it not a common occurrence for scholars to give birth to sons who are scholars? — R. Shisha, the son of R. Idi stated: In order that they may not be presumptuous towards the community (for were they, their fathers and grandparents all scholars they might act arrogantly towards the people).’ Every leader of a community who casts undue fear upon the community not for the sake of Heaven, will never have30Lit. ‘see.’ a scholarly son.31R.H. 17a: ‘Rab Judah stated on the authority of Rab: Any leader of a community who casts undue fear upon the community not for the sake of Heaven (but on account of selfish motives), will never have a scholarly son, for it is said, Therefore, if men fear him, he shall not see (among his sons) any wise of heart (Job. XXXVII, 2 E. has, Men do therefore fear Him; He regardeth not any that are wise of heart).’ Cf. supra n. 29. Likewise, is it forbidden to treat them [the people] with irreverence, although they are ignorant people.32Ned. ibid.: ‘R. Ashi said: Because they call people asses (i.e., because of their scholarship they take the liberty of treating the masses irreverently).’ They should not force their way33Lit. ‘trample over.’ over the heads of the holy people.34San. 7b: ‘Where is it intimated that a Judge must not stride over the heads of the holy people? (i.e., he must never force his way through the students who would sit on the floor, in order to reach his chair) — It is written, Neither shalt thou go up by steps (i.e., force your way) upon My altar (Ex. XX, 26), and further it is stated, And these are the judgments (Ibid. XXI, 1).’ Hence the Judge or teacher or expositor of the law should arrive before the audience. And even nowadays when everyone sits on chairs or benches, the same procedure should be observed by the Judge or teacher — M.E., ShaK. He [the Judge] must bear patiently with the trouble[s] of the community and their burden[s].35San. 8a: ‘And I charged your judges at that time (Deut. I, 16); and further, I charged you at that time (Ibid. I, 18). R. Eleazar, citing R. Simlai said: These verses are an admonition to the community to regard their Judges with awe, and to the Judges to bear with the community. To what extent? — R. Ḥanan, (some say R. Shabatai) says: As the nursing father carrieth the sucking child (Num. XI, 12).’ Cf. Yad ibid. XXV, 2-3. , also Ex. R. VII, 3; Sifre to Num. XI, 11-12. A religious duty rests upon the community to treat the Judge with respect and to hold him in reverence.36Lit. ‘his awe should be upon them.’ He [the Judge] too, should not make himself contemptible [through his conduct], nor should he act irreverently in their presence.37 supra n. 35. For once a man is appointed leader of the community,38This refers to a scholar who is appointed as Judge — P.Tesh. he is forbidden to do [manual labour] in the presence of three so that he should not make himself contemptible in their presence.39Kid. 70a: ‘Once a man is appointed leader of a community, he should not do (manual) work (in order to protect his dignity).’ Cf. Yad ibid. XXV, And much more so40Lit. ‘a fortiori.’ that it is forbidden for him to eat and drink and to become intoxicated41Tur — G. So too, Yad ibid. in public.42Pes. 49a: ‘Our Rabbis taught: Every scholar who feasts sumptuously in every place, ultimately destroys his home, deserts his wife, is forced to leave his children unprovided for, forgets his learning, and becomes involved in many disputes, his words are not obeyed, and he profanes the Name of Heaven and the name of his teacher and the name of his father and he is the cause of an evil name for himself, his children and his childrens’ children ad infinitum (His great desire to feast in every place induces him to act likewise in his own home and in order to do so he sells his belongings etc. Financial disaster leads him into exile, thus deserting his wife and children and forgetting his learning. Or, unable to pay his bills he becomes involved in quarrels with his creditors. Furthermore, the feasting itself causes him to become entangled in disputes — Rashi Maharsha).’ This applies to an ordinary scholar, much more so if one is appointed leader of a community to adjudicate suits and to render decisions that he must be on guard against the mentioned pitfalls. Kid. 40b: ‘One who eats in the market-place is like a dog, and some say that he is ineligible to testify (since he has no self-respect).’ , Tosaf. s.v. יש אומרים a.l. who cite Y. (found in Ma‘as III, 5(50d)) according to which this prohibition has reference only to a scholar contra Kid., ibid where it is applied to any person. , explanations offered by Tosaf. Cf. also Koh. R. II to Eccl. II, 17 where it is stated that R. Hoshaiah found his Judges drinking wine excessively in the market-place and applied to himself the verse, So I hated life; (because the work that is wrought under the sun was grievous unto me). Cf. Yad, De‘oth V, 2; infra § 34, 18. Even at a festivity of a religious nature he should not become intoxicated, and at a gathering of ignorant people or at a social party, he should not eat at all — M.E. Every Judge who has no one to attend upon him is forbidden to accept [an appointment] to be a Judge.43Hag. Maim. to Yad, Sanhedrin XXV — G. Derived from Y. San. II, 6(20c-d): ‘He (R. Joḥanan) saw R. Ḥanina b. Sisi split wood. Said he to him: It is not dignified for you (to do this). The latter answered him, What am I to do, I have no one to attend upon me. Whereupon he (R. Joḥanan) answered, If you had no one to attend upon you, you should not have accepted the appointment.’

Mishnah Berurah

הלכה ה

אף בשליח ב"ד אסור לנהוג קלות ראש והמצערו יש רשות לב"ד להכותו מכת מרדות והשליח נאמן כשנים להעיד שביזהו כדי לנדותו: הגה והשליח ב"ד יכול להגיד לב"ד ואין בזה משום לשון הרע (מיימוני פכ"ה דסנהדרין וגמ' פ' אלו מגלחין) וכן יכול בעצמו לעשות דין במסרב בו להכותו (וכן) אם הזיקו (בממונו) פטור (ר"י נתיב ל"א חלק ב' ונ"י ריש פרק המניח) וע"ל ריש סימן י"א:

משנה ברורה

5.

It is also forbidden to behave irreverently towards the messenger of the Court,44Kid. 12b; Yeb. 52a: ‘Rab decreed punishment for him . . who acts irreverently (דפקיר! Thus in Yeb.; דמצער ‘who harasses’ in Kid. Hence, Caro employs both terms) towards the messenger of the Rabbis (either the representative of the Beth Din sent to summon him to Court — thus Rashi; or the messenger of any Rabbi — So Tosaf.). , also Kid. 70b and cf. Yad, Sanhedrin XXV, and he who harasses him [the messenger], — [the law is that] the Court has the authority to inflict upon him the penalty of chastisement.45Heb. מכת מרדות Lit. ‘stripes for rebellion,’ i.e., punishment for disobedience left to the discretion of the Court in contradistinction to the Biblically ordained punishment of 40(39) lashes. This ruling is applicable only when there are witnesses who testify that he harassed him; but on the statement of the messenger alone, the recalcitrant defendant may only be placed under the ban, although the decree of the ban is regarded as more severe than lashes, yet, so far as reliance on testimony is concerned, the statement of the Court messenger is not valid in order to inflict the penalty of chastisement upon the defendant. This may be derived from the fact that we do not accept the testimony of the Court messenger alone in order to make the defendant pay for the expense of the Court warrant, much more so in the case of bodily punishment. Cf. B.K. 112b: ‘The messenger of the Rabbis is as reliable (when informing the Court that the defendant refuses to appear) as two witnesses; this is the case only with reference to decreeing the ban (Shameta), but for writing a warrant (Pethiḥa, at the defendant’s expense), since he (the messenger) puts him (the recalcitrant defendant) to expense, — for the latter has to pay the scribe (for drafting the writ of excommunication), it is not so (i.e., the Court messenger’s statement is not as credible as the testimony of two witnesses)’ — M.E. , infra § 11, 1. The messenger is as credible as two [witnesses, viz.,] to testify that he [the defendant] insulted him, so that they place him [the defendant] under a ban.45Heb. מכת מרדות Lit. ‘stripes for rebellion,’ i.e., punishment for disobedience left to the discretion of the Court in contradistinction to the Biblically ordained punishment of 40(39) lashes. This ruling is applicable only when there are witnesses who testify that he harassed him; but on the statement of the messenger alone, the recalcitrant defendant may only be placed under the ban, although the decree of the ban is regarded as more severe than lashes, yet, so far as reliance on testimony is concerned, the statement of the Court messenger is not valid in order to inflict the penalty of chastisement upon the defendant. This may be derived from the fact that we do not accept the testimony of the Court messenger alone in order to make the defendant pay for the expense of the Court warrant, much more so in the case of bodily punishment. Cf. B.K. 112b: ‘The messenger of the Rabbis is as reliable (when informing the Court that the defendant refuses to appear) as two witnesses; this is the case only with reference to decreeing the ban (Shameta), but for writing a warrant (Pethiḥa, at the defendant’s expense), since he (the messenger) puts him (the recalcitrant defendant) to expense, — for the latter has to pay the scribe (for drafting the writ of excommunication), it is not so (i.e., the Court messenger’s statement is not as credible as the testimony of two witnesses)’ — M.E. , infra § 11, 1. Gloss: The Court messenger can report to the Court [that he was treated insolently by the defendant] and this is not regarded slander [on the messenger's part].46Yad, Sanhedrin XXV; M.K. III — G. , M.K. 16a: ‘Whence do we derive that if one acts irreverently towards the messenger of the Court and the latter comes and reports it, this is not considered slander? — For it is written, (And Moses sent [i.e., a messenger] to call Dathan and Abiram, the sons of Eliab; and they said: We will not come up…) Wilt thou put out the eyes of these men? (We will not come up).’ , Num. XVI, 12-14. Yad ibid. par. 6. Thus it is evident that the messenger’s report is not considered slander. Otherwise, G-d would have instructed Moses not to include it in the Bible. Likewise, can he [the messenger] take the law into his own hands [in order to execute the Court order] should he [the defendant] act rebelliously towards him, [i.e., he is permitted] to strike him [the defendant],47B.K. 28a: ‘And putteth forth her hand (Deut. VXV, 11) excludes the messenger of the Court (from any liability for degradation caused by him while executing the Court order).’ This means that even if the messenger could have employed other means in order to fulfil his mission, such that would not lead to any damage to the defendant or his property, nevertheless, he is still exempt. , Gemara a.l. and so too, if he caused damage to his [the defendant's] property, he is exempt.48R. Yeruḥam (in Mesharim), Path XXXI, Pt. 2; N.Yos. to B.K. III beg. — G. , B.K. 28a: regarding the ox who threw himself upon the back of another ox with the intention to kill it. If the owner of the ox that was beneath could have extricated his ox from beneath so as not to kill the other ox directly by pushing him from above, he is held liable. But a messenger of the Court would be exempt from liability even if he had other means of enforcing the Court order. , previous note and supra § 4, nn. 4 and 13. Some, however, maintain that if the Court messenger does have other means at his disposal, he should not take the law into his own hands (Shebuth Ya‘akob) — P.Tesh., A.H. , infra §11 beg.

Mishnah Berurah

חושן משפט חושן משפט א פרק ח

Choshen Mishpat Choshen Mishpat 1 Chapter 8