דיין שבאו לפניו רך וקשה וכל דיני פשרה ובו י"ט סעיפים:
שנים שבאו לפניך לדין א' רך וא' קשה עד שלא תשמע דבריהם או משתשמע דבריהם ואי אתה יודע להיכן הדין נוטה אתה רשאי לומר להם איני נזקק לכם שמא יתחייב הקשה ונמצא רודף אחר הדיין אבל משתשמע דבריהם ותדע להיכן הדין נוטה אי אתה רשאי לומר איני נזקק לכם ואם היה ממונה לרבים חייב להזקק להם: הגה וכן אם היו שניהם חזקים צריך לזקק להם (הגהות אשירי ריש סנהדרין וב"י בשם תו') ויש מי שכתב דמ"מ נוהגין עכשיו שלא למחות בעוברי עבירה משום שיש סכנה בדבר שלא ימסרנו למלכות (מהרי"ו):
When two [litigants] appear before you for trial, one weak [in influence], the other powerful [in influence], so long as you have not heard their pleas or [even after you have heard their pleas, — [so long as] you are in doubt which way the judgment will incline, you may say to them, 'I am not bound to try your case,' lest the one of powerful [influence] be pronounced guilty and persecute the Judge.1Thus Tosaf. (v. infra n. 3) ; Alfasi; BeHaG; She’iltoth, Mishpatim s. 58. Derived from Y. San. I, 1(18b); Sifre to Deut. I, 17; Tanḥuma, Mishpatim s. 6; Tosef (Ẓ). Sanhedrin I, 7. However, if you have [already] heard their pleas, and you know which way the judgment will incline,2 infra n. 3. Derived from Ye shall not be afraid of the face of any man (for the judgment is G-d’s) (Deut. I, 17). The last part of this verse, for the judgment is G-d’s, refers to the ‘conclusion of the trial.’ Judgment (משפט) has reference to the time when the Judge knows which way the judgment will incline (v. supra § 5, n. 17 — M.E. Cf. however, TaZ a.l. you may not say [to them], 'I am not bound to try your case.'3Yad, Sanhedrin XXII, Derived from San. 6b: ‘When two men appear before you for trial, one weak (in influence), the other strong (in influence), before you have listened to their pleas, or even after, as long as you are in doubt which way the judgment will incline (i.e., in whose favour the verdict will be rendered), you may say to them: “I am not bound to render a decision in your case,” lest the one of strong influence be pronounced guilty and persecute the Judge (Thus Tosaf. But Rashi explains: He will pursue the Judge to have the judgment reversed in his favour). However, if you have already heard their pleas and know which way the judgment will incline, you cannot say to them: “I am not bound to render a decision in your case,” for it is written, Ye shall not be afraid of the face of any man (Deut. I, 17).’ , supra n. 2. Regarding one of the Judges who wishes to withdraw from the case, v. infra § 18, 4. And if he was appointed [to serve as Judge] for the public, he is obliged to try their case.4Thus Yad, ibid. Because the entire community will protect him. This has reference even to a case where the Judge had not yet heard the pleas of the litigants, or even if he did hear the pleas but is in doubt which way the judgment will incline, — yet, since he was appointed by the public he is bound to try the case; whereas one who is not an appointed Judge may withdraw under these conditions. Cf. the following sources which substantiate this ruling: Sifre to Deut. I, 16: ‘And I charged your judges at that time saying: Hear the causes between your brethren etc. — In former days you possessed your own authority; from now on you are slaves and subject to the community.’ Sifre to Deut. I, 17: ‘Lest you say, I am afraid of So-and-so who might put my son to death, or might set my stack of grain on fire, or might cut down my young trees, — the text reads, Ye shall not be afraid of the face of any man. And so too, does it state with regards to Jehoshaphat, and he said to the judges: Consider what ye do, for ye judge not for man, but for the Lord (II Chron. XIX, 6).’ The expression I am afraid of So-and-so etc., indicates that we deal here with a case where one of the litigants is of powerful influence, but since the Judges were appointed they could not withdraw froom the case. W.G., however, disagrees with Caro’s ruling, viz., that in the case of an appointed Judge he may not withdraw even if he did not hear the case or even if he did hear the case, but is in doubt which way the judgment will incline, where the litigants are of unequal influence. For even in the case of an appointed Judge, W.G. maintains that it is only after he has heard the pleas and knows which way the judgment will incline that he cannot withdraw. And as to the above text in Sifre, ‘In former days (i.e., prior to your appointment as Judges),’ — it has reference even to a case where both litigants were of strong influence at which time you could withdraw before you heard the pleas, or where you had heard the pleas but were in doubt as to the verdict, — for even in such a case there is still the possibility that the litigant who will be pronounced guilty, might harass the Judge, but where only one of the litigants is of strong influence, even an appointed Judge is permitted to withdraw before the pleas are heard etc. Appointed Judges are subject to the community and cannot withdraw save where both litigants are of powerful influence. Furthermore, the text in San. ibid. which also adduces the Biblical verse, Ye shall not be afraid of the face of any man, addressed to appointed Judges, found in Sifre ibid., — clearly states that we deal with a case where one litigant was of weak and the other of strong influence and only before the pleas are heard can the Judge wihtdraw. It follows therefrom that the exposition in Sifre ibid., ‘Lest you say etc.,’ also deals with similar circumstances. Hence, W.G. would not agree with Isserles’ Gloss anon. Cf. also Hag. Asheri to San. III who State the case of Mar ‘Ukba who refused to act as Judge (although he was an appointed Judge. v. Shab. 55a) in a case where he knew that the litigants will not accept his decision (v. San. 29a), which is equivalent to a case where one litigant is of strong influence and the pleas had not been heard. In short, even an appointed Judge is not bound to try the case of strong and weak litigants prior to hearing the pleas or before he knows which way the judgment will incline. Gloss: So too, if they were both powerful [litigants] he is required to try their case.5Hag. Asheri to San. I beg. and B.Yos. on the authority of Tosaf. — G. The reason being, that if the one pronounced guilty will harass the Judge, the other litigant will come to his aid (Tosaf. ibid.) — ShaK. This, of course means even if he is not an appointed Judge. , however, supra n. 4, opinion of W.G. There is, however, an [authority] who writes that at present it is nevertheless the adopted practice not to interfere with violators [of the law] because there is danger in [this] matter lest he [the violator] get him into trouble with the government.6MaHaRIW — G. This means even if both litigants are of powerful influence. , however, D.M. where the order of Isserles’ Gloss is a) not to interfere with violators etc., and then b) the ruling regarding two litigants of powerful influence. Cf. Kid. 71a the case of R. Phineas where we find that if powerful individuals might endanger one’s life, one should refrain from admonishing them. A.H. writes that they may withdraw even at the conclusion of the trial even if they are permanent Judges only if there is danger. If a Judge sees that his other two colleagues (who are incompetent) are perverting justice, he may, when requested to give his legal opinion in the matter, say, ‘I know not the law in this case,’ as a result of which other Judges will be co-opted to form a majority against the incompetent Judges (v. Mishna San. V, 5). This is permissible in the interests of peace (Tummim, Nethiboth) — P.Tesh.
מצוה לומר לבעלי דינים בתחלה הדין אתם רוצים או הפשרה אם רצו בפשרה עושים ביניהם פשרה וכשם שמוזהר שלא להטות הדין כך מוזהר שלא יטה הפשרה לאחד יותר מחבירו וכל ב"ד שעושה פשרה תמיד הרי זה משובח בד"א קודם גמר דין אע"פ ששמע דבריהם ויודע להיכן הדין נוטה מצוה לבצוע אבל אחר שגמר הדין ואמר איש פלוני אתה זכאי איש פלוני אתה חייב אינו רשאי לעשות פשרה ביניהם אבל אחר שאינו דיין רשאי לעשות פשרה ביניהם שלא במושב דין הקבוע למשפט ואם חייבו ב"ד שבועה לאחד מהם רשאי הב"ד לעשות פשרה ביניהם כדי ליפטר מעונש שבועה (ואין ב"ד יכולין לכוף ליכנס לפנים משורת הדין אע"פ שנראה להם שהוא מן הראוי) (ב"י בשם ר"י ובשם הרא"ש) וי"ח (מרדכי פ"ב דמציעא):
It is a religious duty to say to the litigants at the outset, 'Do you wish [to resort to] law or [to submit to] arbitration?' If they consented [to submit to] arbitration, they bring about a settlement between them.7Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. And just as [the Judge] is cautioned not to pervert judgment, so too, is he cautioned not to direct the arbitration [in favour of] one party more than the other.8Thus Tur. Derived from San. 32b: ‘It has been taught: Justice, justice shalt thou follow (Deut. XVI, 20); the first (mention of justice) has reference to a verdict based on strict law; the second, to arbitration.’ , Rashi a.l., s.v. אבל קראי who writes that the second mention of justice means that the Judge should justify the arbitration according to what he sees with his own eyes. R.A.Eger states that just as in the case of strict law, if the Judge perverts justice through error, he must reconsider the case and retract from his former decision, so too, in bringing about an arbitration. Shebuth Ya‘akob reports the following case: A and B consented to submit their case to arbitration and entered into same by symbolic agreement (קנין), A contests the legality of the decision on the following grounds: a) According to strict law, A was obliged to take a number of oaths in order to justify himself in the eyes of the Court. When the matter was submitted to arbitration, it was ruled that A be exempt from the imposition of an oath on condition that he pay instead a certain amount of money. A, however, claims that B too, was originally obliged to take a number of oaths, — yet, in the latter case the arbitrator did not decide that he be exempt therefrom by paying money instead. In addition, A claims that certain oaths were overlooked entirely. b) The original agreement upon submitting the case to arbitration referred only to the elimination of oaths, but not to any other part of the case. However, according to the decision of the arbitrator, the settlement took into account the case as a whole. Hence, A contends that the entire decision is invalid. Responsum: Argument a) is not valid because undoubtedly the arbitrators have their reasons for acting thus only with respect to the oaths that A was required to take. Argument b), however, is a valid one and consequently, it must be reconsidered. We do not apply the principle that since one of the argument is valid then the whole case should be reconsidered. Should A, however, show that one argument depends upon the other, there is the possibility that the entire case must be reconsidered, but this must first be clearly established before invalidating the decision. Where the Judge is requested to arbitrate a case and render a decision that would be related to strict law (פשרה קרובה לדין), the law is that not more than one third less than the amount the defendant would have to pay according to strict law, is regarded a valid settlement in such a case. E.g., if according to strict law he would have to pay 300 dollars, then 200 dollars would be regarded as a valid settlement — P.Tesh. Every Court of Law that always brings about a settlement is considered praiseworthy.7Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. When does this apply?9San. 6b: ‘When do we regard a legal decision as rendered (so that arbitration is no longer permitted) ? — Rab Judah on the authority of Rab states: (When they say) : So-and-so you are guilty; So-and-so you are not guilty.’ — Before the conclusion of the trial, — even though one has heard their pleas and knows which way the judgment will incline, — it is a religious duty to attempt a settlement;10San. 6b-7a in agreement with the First Tanna contra R. Simeon b. Manasya. Caro’s ruling accords with the interpretation of Rashi, San. 6b, s.v. נגמר הדין contra Tosaf. Cf. infra n. 11. Suggesting a settlement is not regarded as deception on the part of the Judge, since a man is willing to forego a certain part of his claim as long as everyone will be at peace — M.E. but after the Judge concluded the trial and made the pronouncement, 'So-and-so, you are innocent, So-and-so, you are guilty,' he is not permitted to attempt a settlement between them.11It is forbidden to say to one who was pronounced not guilty, ‘Make a settlement with the other party because I am afraid that I might have erred and the other Judges will reverse my decision’ — M.E. BaḤ agrees with Tosaf. contra Rashi (v. supra n. 10) that even before the pronouncement of the verdict, so long as the case has been thoroughly examined by the Judges, arbitration should not be proposed. ShaK opposes BaḤ, but the latter is defended by Bir. Yos., who shows that many other authorities agree with Tosaf. According to Tosaf., even if the Judge did not state to the guilty party, ‘Go and pay him whatever you owe him,’ it is still considered the ‘conclusion of the trial’ (v. B.K. 69a, B.M. 17a s.v. חײב). SeMaG, however, regards the trial as concluded only after this statement is made — ShaK. According to Shilte Geborim, even after the conclusion of the trial, if the Judges inform the litigants concerning the nature of the settlement, and the latter agree to submit the case to arbitration, it is permissible, provided there was no coercion. Moreover, it is considered a meritorious act — ShaK. Many other authorities, however, oppose Shilte Giborim — P.Tesh. However, another person who is not a Judge is permitted to attempt a settlement between them,12B.Yos. on the authority of Agudah. , San. 6b where both the First Tanna and R. Simeon b. Manasya use the second person, viz., ‘When two come before you for judgment,’ whence it follows that you refers to a competent Judge, but another individual who is not a Judge, is permitted to attempt a settlement. Cf. also San. ibid.: ‘Aaron loved peace, pursued peace and made peace between man and man, as it is written, The law of truth was in his mouth, unrighteousness was not found in his lips, he walked with Me in peace and uprightness and did turn many away from iniquity’ (Mal. II, 6) and cf. Tosaf., a.l., s.v. אבל who explain that since Aaron was not a Judge, because all matters of a legal nature were brought before Moses, then for him arbitration was permissible. [provided] that this is not [attempted] in a Court sitting that is appointed for the purpose [of holding] legal [sessions].13RaShBA, Resp. on the authority of R. Hai Gaon. For whatever is done in the presence of the Judges is regarded as if it were carried out with the consent of the Judges — M.E. If the Court of Law imposed an oath upon one of them, the Court of Law is permitted to bring about a settlement between them [even after the conclusion of the trial],14Thus Tur. so that [the one who is bound to take an oath] should be exempt from the responsibility thereof.15San. 6b, Tosaf. s.v. נגמר הדין. The Court of Law cannot compel one to fall in with [the principle of equity, i.e., actting] beyond the requirements of the line of justice, although that would appear to them to be the proper thing [to do].16B.Yos. on the authority of R. Yeruḥam and Asheri — G. Cf. the following passages: B.K. 99b: ‘Rabbah b. Bar Ḥanah said on the authority of R. Joḥanan : An expert slaughterer who did not slaughter properly (as a result of which the animal became ritually unfit for consumption) is held responsible even if he was as skilled as the slaughterers of Sepphoris… Did not Rabbah b. Bar Ḥanah state that a similar case came before R. Joḥanan in the Synagogue of Maon and he said to the slaughterer, Go and bring proof that you are an expert to slaughter hens and I will exempt you? — There is no difficulty. The latter law (has reference to a slaughterer who worked) gratuitously; the former (where the slaughterer does it) for hire… A certain woman showed a Denar to R. Ḥiyya and he informed her that it was good. Subsequently, she came to him again and said to him, I showed it later (to others) and they informed me that it was bad, and I could not pass it. He then said to Rab, Go and exchange it for a good one … R. Ḥiyya (although he was an expert and needed no further instruction in this matter, and consequently, would be exempt) acted beyond the requirements of the line of justice, as R. Joseph learnt: And shalt show them (v. Ex. XVIII, 20) refers to their livelihood; the way refers to acts of lovingkindness; they must walk refers to visiting the sick; wherein refers to burial and the work refers to law; which they must do refers to (acting) beyond the requirements of the line of justice.’ , also B.M. 30b in the case of R. Ishmael b. R. Jose. Hence, we see that acting beyond the requirements of the law, although it is derived from a Biblical text, and in the eyes of the Judges it would be the proper thing to do, yet, it cannot be enforced by the Court of Law. Cf., however, B.M. 83a: ‘Some carriers (negligently) broke a barrel of wine that belonged to Rabbah b. R. Huna (Thus Alfasi. Cur. edd. : ‘b. Bar Ḥanan’). Thereupon he confiscated their cloaks; so they went and told Rab about it. Give them back their cloaks, said the latter. Is this the law, he asked. Yes, he answered, That thou mayest walk in the way of good men’ (Prov. II, 20). Hence, we may ask why this is not derived from the above-mentioned text? RI of Orleans in B.K. 100a, Tosaf s.v. יפנים explains that acting ‘beyond the requirements of the law’ has reference only to a) a case where others under the same circumstances would be liable to pay but not he, as in the case of R. Ḥiyya and R. Ishmael b. R. Jose mentioned above, whereas in b) a case where there is no distinction between him and others (i.e., everyone would be exempt) as in the case of Rabbah b. Bar Huna, such action is merely a case of That thou mayest walk in the way of good men. Consequently, in a) acting beyond the requirements of the law is considered Biblical, whereas in b) it is based on post-Mosaic tradition. Hence, our present ruling refers to a). Cf. also B.M. 24b and Tosaf. s.v. לפנים. There are thus three degrees of acting beyond the requirements of the law: a) where the responsibility is such that it does not even come within the purview of acting beyond the requirements of the law. Consequently, one who out of equity acts thus, walks in the way of good men. E.g., the carriers who negligently broke a barrel of wine belonging to Rabbah b. R. Huna who suffered damages; b) where everyone would be exempt and should not even come under the category of acting beyond the requirements of the law, but since no damage was caused as in a), one should act beyond the requirements of the law. E.g., the case of the ‘found asses’ in B.M. 24b (v. passage infra n. 17) ; c) where everyone else would be held responsible, in which case acting beyond the requirements of the law is based on a Pentateuchal text, although such action cannot be enforced. E.g., the case of R. Ḥiyya. Our present ruling refers to c). , also BaḤ for other interpretations. However, some differ with [this opinion].17Mord. to B.M. II, — G. Derived from B.M. 24b: ‘R. Judah once went after Mar Samuel in a street of whole meal dealers and asked him: What is the law if one found a purse here? — (Mar Samuel) answered: It belongs to the finder. What is the law if an Israelite came and produced an identification mark? — (Mar Samuel) answered: He would be required to return it. Both (views contradict each other)! — (Mar Samuel) answered: One should act beyond the requirements of the law. So too, the father of Samuel found asses in a desert and (yet) he returned them after a year of twelve months: he (acted) beyond the requirements of the law.’ In this passage, the expression ‘it belongs to the finder’ (הרי אלו שלו) indicates that legally it belongs to the finder. Consequently, the subsequent statement ‘he would be required to return it’ (חייב להחזיר) refers to doing one’s duty towards G-d. In addition the expression ‘he returned them etc.,’ (אהדרינהו למרייהו) indicates thhat he did this on his own. Moreover, he was only obliged to return their worth (v. Tosaf., B.M. ibid. s.v. לבתר). Derived also from the case of the ‘carriers’ (B.M. 83a. Cf. passage quoted supra n. 16), since it is not stated that they came before Rab for trial but rather ‘they went and told Rab about it,’ i.e., to use his influence by means of words of persuasion. Thus also Asheri to B.M. II who considers this a case of acting beyond the requirements of the law and cites the Biblical text which they must do (v. supra n. 16) and would be contra Tosaf. Hence, according to this opinion all cases of acting beyond the requirements of the law are similar and in all cases mentioned above we cannot compel anyone to act beyond the requirements of the law. The interpretation here follows W.G. and Be’er Eliyahu. , BaḤ for other interpretations.
מותר לב"ד לוותר בממון היתומים חוץ מן הדין כדי להשקיטם ממריבות:
It is permissible for the Court of Law to forgo [certain] rights in property belonging to orphans [provided this is carried out by a settlement] out of Court in order to set them at peace from [entering into future] disputes.18Thus Isserlein. Derived from B.K. 21a: ‘A certain man built a mansion on the ruins belonging to orphans. R. Naḥman confiscated the mansion from him… originally Carmanians (MS.M קדמאי; MS.R. and Rashi קדמונאי ‘old settlers’ or ‘nomads’) had been living on the abandoned property belonging to the orphans and had been paying a nominal rent (Hence the orphans suffered a loss however small it was). (When R. Naḥman) said to him, Go and make a peaceful settlement with the orphans, he paid no attention. R. Naḥman, therefore, confiscated the mansion from him.’ This shows that although legally the defendant was responsible in full, nevertheless, R. Naḥman suggested at first a peaceful settlement. Likewise, the legal guardian of the orphans may make a settlement on behalf of the orphans which would ultimately be advantageous to their welfare. He should, however, make the settlement in accordance with a recognized Court of Law — P.Tesh.
יש כח ביד ב"ד לגזור ולהחרים שתתקיים הפשרה ושלא יוכלו היתומים למחות כשיגדילו:
The Court of Law has the power to issue a decree and to pronounce the ban so that the settlement be carried out and that the orphans should not be able to protest [against the settlement] when they reach their majority.19Thus Isserlein. Derived from Kid. 42a (cf. parallel passages): ‘R. Naḥman stated on the authority of Samuel: Orphans who came to divide their father’s estate, — the Court of Law appoints a guardian for them, and they choose a suitable portion for each (orphan)… R. Naḥman on his own stated: When they reach their majority, they cannot protest, for if so, where is the power of the authority of the Court of Law?’ Since in legal matters we adopt the ruling of R. Naḥman, it follows that the Court of Law or the guardian have the right to make a settlement for the benefit of the orphans and this remains in force even when they reach their majority. Moreover, even if the Court of Law had not issued a decree, the orphans cannot protest against the settlement when they reach their majority, because since this was done for their benefit it is tantamount to a legal transaction consumated on behalf of orphans which is binding even when they become of age — Nethiboth.
יש כח לדיין לעשות דין כעין הפשרה במקום שאין הדבר יכול להתברר ואינו רשאי להוציא הדין חלוק מתחת ידו בלי גמר:
The Judge has the power to adjudicate a lawsuit [in a manner] similar to a settlement where the matter cannot be [otherwise] determined [according to strict law]20Asheri Resp. Derived from B.M. 42b: ‘A certain administrator of orphans who bought an ox for them committed it to the care of a cowherd. But it had no molars or (front) teeth to eat with and it died. Said R. Rami b. Ḥama : How should Judges decide this case? Shall we say to the administrator, Go and pay; then he will retort, I committed it to the care of the cowherd (and he should have told me that it does not eat). Shall we say to the cowherd, Go and pay; then he will reply, I put it among the other oxen and I threw food before it; it was impossible to know that it was not eating anything. Now, let us see: The cowherd is a paid trustee of the orphans and should have looked into the matter (whether the ox eats or not) ? — If there were a loss to the orphans, it would be so, but here we deal with a case where there is no loss to the orphans, for they found the owner of the ox (i.e., the seller) and the orphans received their money back from him (on grounds that it was a purchase made in error). Then who is the complainant? — The owner of the ox pleads that he (the administrator) should have informed him. But what could he inform him? He certainly knows that it was a purchase made in error! — He (the owner of the ox) was a middleman who buys here and sells there (immediately). Therefore, he (the middle-man) swears that he knew not (of the animal’s condition) and the cowherd pays the lower price of meat.’ This has reference to two-thirds of the usual price and was considered a sort of settlement because the cowherd advanced the plea, ‘I put it among the other oxen etc.’ Thus Rashi. Tosaf., however, state that the verdict was in accord with strict law, for if the cowherd were to inform the middleman about it, the latter would have had to slaugther it and sell it at a cheap price, not being able to wait until the market day. Cf. supra n. 8. and he is not permitted to allow the verdict to pass out of his hand [only] in part without [bringing the proceedings to] a [complete] close.21The Judge has the right to pronounce judgment according to his discretion (שודא דדײני) when the matter cannot be clarified or he may submit the case to arbitration. This means that he may give his opinion even against the will of the litigants — M.E. This applies only if the Judge recognized fraud on the part of the defendant, in which case he submits the matter to arbitration, but when the claimant is suspected of fraud, the Judge should withdraw from the case — Nethiboth. , infra § 15, 3-4.
מי שתובעים אותו ממון שהוא מוחזק בו אסור לבקש צדדים להשמט כדי שיתרצה הלה לעשות עמו פשרה וימחול לו על השאר: הגה ואם עבר ועשה אינו יוצא ידי שמים עד שיתן לו את שלו:
One against whom there is a monetary claim regarding aught of which he [the defendant] is [illegally] the possessor, is forbidden to seek means to evade [the claim] in order that the person concerned [the plaintiff] should consent to make a settlement with him and forgo the balance [of the claim].22Terumath ha-Deshen s. 30 Cf. B.K. 40a-b: ‘It has been stated: If a man borrowed an ox on the supposition that it is a Tam but was later discovered to have already been formally declared a Mu‘ad (then if it repeated to gore) the owner pays one half of the damages and the borrower pays (the other) half of the damages. But why should the borrower not contend against the owner, I borrowed an ox, I did not borrow a lion? — Rab said: We deal here with a case where the borrower knew that the ox was a gorer (although he knew not that the ox was formally declared a Mu‘ad). Let him therefore plead: I borrowed an ox in the state of Tam, but I did not borrow an ox that was formally declared a Mu‘ad? — Because the owner might retort: In any case, even if the ox had been a Tam, you would have to pay half-damages? Now, too, you must go and pay half-damages. Let him (the borrower) still contend against him: Were the ox in the state of Tam, damages would have to be paid out of its body (the indemnity would be collected from a sale of the animal and not from my best possessions. , Ex. XXI, 35) ? — Because the owner might retort: In any case, would you not have to compensate me (the full value of) the ox? Let him (the borrower), however, plead: Had the ox been a Tam, I would have admitted (the act of goring) and be exempt from making payment (because he who confesses an act with which a fine is connected, — in this case the half-damages which may be considered as of a penal nature — is exempt from the fine). And even according to the one who maintains (v. B.K. 15a) that half-damages is a civil liability (and by making a confession he would not be exempt), the borrower might still contend: Were the ox in a state of Tam, I would have caused it to flee to the meadow (and would have thus avoided payment out of its body which is the law in the case of Tam. , Ex. ibid.) ? — We deal here with a case where the Court of Law took steps first and seized the ox. If so, why should the owner pay half-damages? Let him contend: You were the cause of making my ox fall into the hands of one with whom I cannot go to law? — Because the borrower might argue against him: Were I even to have returned it to you, would they not have taken it from you? But let the owner say to the borrower: Were you to have returned it to me, I would have caused it to flee to the meadow? — Because the borrower might retort: In any case, would the damages not have been paid from the best of your possessions (since the ox was designated Mu‘ad while still in the possession of the owner) ? — This would be a valid argument (by the borrower) where the owner possessed property, but what can be said where the owner possessed no property? — Because the borrower can say to the owner: As well as I am obliged to pay you (i.e., to restore the ox), I am obliged to pay him (the plaintiff who is your creditor). This follows from (the dictum of) R. Nathan. For it was taught: R. Nathan stated: How do we know that if a man claims a Maneh (100 Zuzim) from another and the latter (claims a similar amount) from a third, that money is collected from the one (the last) and given to the other (the first) ? From the verse (Num. V, 7) : And give it unto him whom he hath trespassed (translating: And he [the last debtor] gives it unto him [the first] to whom he [the second] is indebted).’ The argument: ‘I would have caused it to flee to the meadow’ is attacked by Tosaf., a.l. s.v. הוה מערקנא ליה because this would certainly be regarded as an illegal act according to R. Akiba (contra R. Ishmael in B.K. 33a) who is of the opinion that both the plaintiff and the defendant become joint owners of the ox and consequently by causing the ox to escape to the meadow the defendant is regarded as a robber. Furthermore the Court of Law has a right to pronounce the ban against the defendant if he evades payment of damages. Therefore, Tosaf. explain that what is really meant by this argument is this: By causing the ox to flee to the meadow the plaintiff would have made a settlement with me for a small amount. Consequently, the borrower by not returning the ox to the owner has caused the latter damages by having to pay the difference between the settlemnt and the full amount of damages. This explanation of Tosaf. contradicts Caro’s present ruling according to which one is forbidden to employ evasive means in order to obtain the consent of the plaintiff to make a settlement and to forgo the difference. W.G. removes this contradiction by explaining that in B.K. the circumstances are entirely different because the borrower has a valid plea against the owner, viz., that the latter can have nothing against him, since he borrowed the ox on the assumption that it was Tam and it was discovered that it was declared Mu‘ad, consequently, he is not responsible for making any payment towards a liability which is in a different category. Hence, he may employ a vague and paltry reply, namely, ‘I would have caused it to flee to the meadow.’ The same vague reply could be given by the owner, but it does not mean that it is permissible to actually do so. In short, it means that under the circumstances one may state that he would have acted thus, but not that it is really permissible to do this (v. Be’er Eliyahu). In the present ruling however, we are told what the final law is in such a case. Tummim advances another interpretation. In B.K. we deal with a case where the owner may be trying to collect an old loan from the plaintiff, but he has no witnesses to prove this. Consequently, under the circumstances he may employ evasive means to recover his debt. Shebuth Ya‘akob differentiates between Tosaf. and our present ruling as follows : In B.K. by causing the animal to escape to the meadow it would be considered merely an indirect act, which is permitted on the principle, ‘sit and do nothing’ (שב ואל תעשה עדיף), i.e., it is better not to act directly in doubtful cases; whereas in the present ruling the prohibition is against a direct act to force one into a settlement through evasive means. , also Sheb. 31a that it is forbidden to use evasive means even in support of the truth. Tummim and Nethiboth write that the present ruling has reference only where the plaintiff has a just claim, but where the defendant has a valid counterclaim which he cannot ascertain before the Court of Law, he may employ evasive means, provided he does not appear as a wicked person in the eyes of the Judges. Gloss: And if he violated [this law] and employed [evasive means], he does not comply with the requirements of Heaven until he restores to him [the plaintiff] what rightfully belongs to him.23RaShBA in Resp. Cf. B.K. 55b-56a: According to R. Joshua one of the acts for which one is exempt before men but is liable before Heaven, is to hire false witnesses to offer testimony. Regarding this the Talmud says: ‘In what case? Shall we say for his own benefit, then he has to pay back the money (he thus obtained illegitimately) and should be liable even by the judgment of men? — It therefore means for the benefit of his friend.’ Hence, ‘for his own benefit’ must mean that he employed evasive methods. Yet, it states ‘he has to pay back the money’ whence it follows that the money is recovered by the judgment of men which contradicts Isserles’ ruling who states that ‘he does not comply with the requirements of heaven’ which implies that he is exempt by the judgment of men. Isserles must therefore be in in accord with Tosaf. ibid., s.v. ממונא according to whom if we were to know that they are false witnesses he would have to pay, but since we are ignorant of this, the Talmud cannot very well state that he is exempt by the judgment of men. So too, Isserles, states that ‘he does not comply with the requirements of Heaven’ because by employing evasive means he has thereby kept the entire matter hidden from people so that we are unaware whether he has anything in his possession illegally or not. Hence, the statement, ‘he does not comply with the requirements of Heaven.’
אע"פ שנתרצו הבעלי דינין בפשרה בב"ד יכולים לחזור בהם כ"ז שלא קנו מידם דפשרה צריכה קנין אפי' בשלשה אבל אם קנו מידם אין יכולים לחזור בהם אפילו ביחיד וי"א דדוקא בשנים: הגה וקנין לאו דוקא אלא ה"ה אם נתן שטר עליו (ב"י בשם תשובת ריטב"א) או א' משאר דרכי הקניה (רשב"א בתשובת שאלה) י"א כשמקבל קנין על הפשרה צריך להקנות לו החפץ שלא יהא קנין דברים (מרדכי) כמו שיתבאר לקמן ריש סימן ר"ג:
Although the litigants consented [to submit their case] to arbitration before the Court of Law, they can retract so long as a formal agreement was not made with them by means of a Kinyan,24Heb. קנין. Glos. Thus Tur; Tosaf.; Mord. to San. This is contra Ra’BIaH and RABaN who hold that if the litigants were silent after hearing the verdict of the arbitrators, Kinyan is not necessary — M.E. This applies even if at the outset the litigants agreed to resort to law contra N who rules that if at first they agreed to be tried in Court then subsequently if they consent to submit to arbitration, it holds good even without Kinyan — M.E. In order for the parties not to retract they must not only accept the arbitration by means of a Kinyan but must also expressly state that So-and-so should act as arbitrators. But if the arbitrators were not specified, they cannot arbitrate the case. However, if the contesting parties appeared before three Judges for trial and subsequently agreed to submit their case to arbitration before them, then Kinyan alone without expressly stating the names of the arbitrators is valid (RaN) — Nethiboth. Accordingly, writes Bigde Yesha, if one states to another, ‘I sell you this according to the appraisal of three persons’ (v. infra § 200, 7), or in the case of selling the Ḥameẓ to a non-Jew before the Festival of Passover (the contract containing the clause that the price of the Ḥameẓ will be fixed according to the appraisal of three competent persons), it would be obligatory to expressly mention the three persons. Yet, in the Talmud and the Codes we find no such requirement and even RaN might not be stating this as a law to be adopted. This matter, therefore, requires further study — P.Tesh. The present ruling that they may retract if no formal agreement was made by means of a Kinyan means that even the plaintiff who consented to submit to a settlement with the defendant and to forgo some of his claims and we might have thought that this comes under the heading of ‘a waiver requires no Kinyan’ (מחילה אינה צריכה קנין), — yet, the following distinction should be borne in mind between ‘a waiver’ where the individual of his own accord foregoes certain claims in which case it is binding even without a Kinyan (v. following par. and infra § 241, 2) and ‘a waiver’ which is the result of a settlement through arbitration made by the Judges where a Kinyan is required so that the plaintiff should subsequently not be able to plead against the Judges’ settlement. Hence, even if the Judges told the plaintiff that the defendant will have to pay him a certain amount of the claim and the plaintiff foregoes the balance, a Kinyan is required because the plaintiff foregoes the balance of his claim not of his own accord. Consequently, this implies (Thus D.M.) that if the plaintiff stated after hearing the settlement, ‘I forego certain claims in accord with the verdict of the arbitrators’ or ‘I forego an oath which should have been imposed upon the defendant,’ a Kinyan is not required — M.E. for [the law is that] arbitration requires a Kinyan,25San. 6a. The arbitrators are relied upon that they effected a Kinyan in the event that the litigants deny this. A settlement reached by the litigants alone (i.e., effected by the plaintiff in favour of the defendant), requires no Kinyan, for then it comes under the heading ‘a waiver requires no Kinyan’ — ShaK, MaHaRaM Lublin. Cf. however, infra § 22, 3 from which we see that where the plaintiff himself suggests a settlement, if there was no Kinyan, he may retract contra ruling of MaHaRaM Lublin — P.Tesh. However, if there was only one arbitrator who effected the settlement and he is contradicted, viz., that no Kinyan was made, he is not relied upon, on the principle that the evidence of one witness is not accepted in the case of counter-evidence — Tummim. Judges who state that the litigants agreed to be tried before them and the litigants deny this, — the law is that if there are no other witnesses to corroborate the statement of the Judges, the latter may not try this case, for although they are relied upon as witnesses, nevertheless, they cannot try this case on the principle that ‘a witness may not act as a Judge’ (אין עד נעשה דײן). However, arbitrators under the same circumstances are relied upon because a witness may act as an arbitrator — A.H. If they submitted the case to settlement by arbitration through ‘striking hands’ (תקיעת כף), although it does not have the same effect as a Kinyan, nevertheless, the parties may be compelled to fulfil their promise because ‘striking hands’ has the same status as an oath. Consequently, if the litigant dies, the heirs cannot be forced to submit to arbitration. However, in the case of Kinyan, the heirs may be forced to fulfil the Kinyan — Nethiboth. If they submit to arbitration before the representatives of the town (טובי העיר), Kinyan is not required and the parties cannot retract — R.A.Eger (on the authority of BaḤ. Actually found infra § 22, 1, Gloss). Even if the litigants originally came to Court with the express purpose of submitting their case for arbitration, Kinyan is required — BaḤ, Tummim contra RaShaL. even if made before three.26e., even if three Judges effected the settlement. Thus San. 6a, Rashi s.v. והלכתא. Derived from the fact that R. Ashi (Gem. ibid.) who does not require Kinyan makes no distinction between two or three arbitrators. And since the adopted law is that arbitration requires a Kinyan, it follows, even if the settlement by arbitration was made by three. However, if a formal agreement was made with them by means of a Kinyan, they cannot retract even if made before one.27San. ibid. in accord with the view of the Sages that one is sufficient. Thus also Asheri and Tur. And even R. Simeon b. Gamaliel who holds that two are sufficient (ibid. 5b) is really of the opinion that one suffices (ibid. 6a). N.Yos. writes that Alfasi also holds that one is sufficient (cf. Hagahoth Derisha) — M.E. And some say that [they cannot retract] only if made [at least] before two.28Thus Caro in B.Yos. a.l. and in Kes. Mish. to Yad, Sanhedrin XXII, 6. The difficulty, however, is why does Maim. not rule in accord with the Sages who hold that one is sufficient (v. supra n. 27) ? This difficulty may be removed if we realize that Maim. mentions two in order to indicate that in strict law their decision would not be binding (v. supra § 3, 1, n. 1), but in a settlement of arbitration even Maim. will hold that one is sufficient in accord with the Sages — Be’er ha-Golah. Gloss: [And this has reference] not only to a formal agreement made by means of a Kinyan, but likewise, if he [the defendant] gave a note of indebtedness [thus] obligating himself [to carry out the settlement],29B.Yos. on the authority of Resp. by RITBA — G. Ket. 101b: ‘It was taught: One who said to another, I owe you a Maneh, is liable according to R. Joḥanan; but Resh Lakish holds: He is exempt. Under what circumstances should this be understood? If (this has reference to a case) where one said to them (those present when he made this admission), You are my witnesses, what is the reason of Resh Lakish who rules that he is exempt? (for this would be contra San. 29b)? If, where he did not say to them, You are my witnesses, then what is the reason of R. Joḥanan who rules that he is liable? — Actually, this (refers to a case) where he did not say to them, You are my witnesses, but here we deal with one who said to his fellow, I owe you a Maneh (and in the presence of witnesses) gave him a note of indebtedness (in which he admits the debt in his handwriting but it is not attested to by his signature nor by that of witnesses — Thus Rashi). R. Joḥanan holds that he is liable because the items enumerated in a bond (delivered in the presence of witnesses) are as binding as if the one who delivered it said, You are my witnesses; but Resh Lakish holds, He is exempt because the items enumerated in a bond are not binding.’ Hence, we see that a bond is as binding as a Kinyan. Cf. also Asheri a.l. Although Caro (infra par. 13) already states this law, — Isserles, however, refers to a note of indebtedness before the settlement of arbitration is made known. So long as the defendant states in the document, ‘I hereby obligate myself to pay the amount which will be determined by the arbitrators,’ then even if there were no witnesses, it is binding even regarding aught that the defendant is not indebted to him. The document may also be written in the form of an admission. Cf. infra § 40 — M.E. The document must contain no conditions, for assuming liability on a condition has no legal effect in the case of a bond of indebtedness. It is, however, permitted to make a condition only when a formal agreement is entered into by means of Kinyan — Tummim, Nethiboth. or [by any] one of the other modes of transference of rights.30RaShBA in Resp. to a query — G. Some say that when he assumes [liability by means of] a Kinyan relative to the arbitration, he must give him acquisition rights in the article so that it should not be a [mere] verbal agreement31Mord. — G. B.B. 3a: ‘How have you interpreted the Mishna (ibid. 2a: ‘If two joint owners consent to make a partition in a courtyard they should build the wall in the middle’) ? With reference to a courtyard in which there is no right of division. Then if it deals with one in which there is no right of division, even if both owners consent what does it matter? They can retract? — R. Assi on the authority of R. Joḥanan stated: Each made a formal agreement with the other by means of a Kinyan. But even if they made such an agreement what does it matter since it is a mere verbal agreement (for this relates only to a verbal promise but not to any tangible object) ? — They made an agreement by Kinyan to take different sides (consequently, something tangible is involved).’ Hence, the same applies to arbitration, i.e., the disputed article should be symbolically transferred from the defendant to the plaintiff by means of a Kinyan, the former stating, ‘I hereby transfer the article to you,’ and the latter stating, ‘I hereby forego in my claim whatever the arbitrators will decide.’ In the case of a monetary claim where the law is that ‘money cannot be used for symbolical delivery’ (B.M. 45b a.e.), the defendant must assume the liability to pay as the arbitrators see fit — M.E. Where the plaintiff states that he will forego a certain amount, it does not have its legal effect, for this is regarded as a Kinyan to the effect that ‘I will give’ (קנין אתן) which has no binding force (v. infra § 203) — Nethiboth. , also infra § 245 beg. and § 73. Cf. infra § 22, nn. 11-12. as will be explained infra § 203 beg.
מחילה א"צ קנין (וע"ל סי' רמ"א):
A waiver requires no Kinyan. , infra § 241.32Tur. Thus also B.M. 112a, Tosaf. s.v. חוזר ; San. 6a, Tosaf. s.v. צריכה; Yad, Mekirah V, 11; Asheri a.o. Cf. supra n. 24. For in this case, as soon as the plaintiff renounces his claim he has no further dealings with the defendant in this matter, provided, of course, that the plaintiff or creditor, does not retain a note of indebtedness or the like against the defendant or debtor, which must be returned. Otherwise, the renuciation is invalid if there was no formal agreement by means of a Kinyan — M.E. Thus also Tur on the authority of R. Isaiah. Cf. however, infra § 241, 2, Gloss: Ḥelkath Meḥokek and Beth Shemuel to E.H. § 105, 5 a.o., according to which even if the note of indebtedness or the like remains in the possession of the creditor, the waiver is considered valid contra M.E. Hence, since this matter is disputed by the Codifiers, the defendant has the right to maintain that he is in agreement with the authorities who hold that a waiver requires no Kinyan even if the plaintiff still retains the note of indebtedness or the pledge — Nethiboth. Mental renunciation (במחשבה) is invalid and one may retract save in a case where it might be clearly estimated (אומדנא דמוכח) that renunciation took place, e.g., if the plaintiff says to the defendant, ‘Eat with me,’ then if the intention was that the food should be offered the defendant gratis, it is considered as an absolute gift and the plaintiff cannot retract — K.H.
שנים שקיבלו פשרנים בקנין וקנס חמשים ואחר הפשרה אמר א' מבעלי דינים אשלם הקנס ולא אקיים הפשרה אין בדבריו כלום:
[If] two [litigants] accepted arbitrators by means of a Kinyan [in order to settle their case on the condition that should either of them fail to carry out the settlement he would have to pay] a fine of fifty [Zuzim or the like], and after [the decision of] the settlement [was given], one of the litigants stated, 'I will [rather] pay the fine but I will not fulfil [the conditions of] the arbitration,' what he says is considered void.33Thus RaShBA. Cf. Beẓ. 19b-20a: ‘R. Simeon b. Lakish asked R. Joḥanan: (What is the law if) one said, Behold I take it upon me to vow a thank-offering that I may therewith discharge my duty of Ḥagigah (or) Behold I take it upon me to be a Nazirite that I should shave with the second tithe money (i.e., that on the day that I cut my hair [Num. VI, 13 ff.] the sacrifice that I must then bring should be purchased with second tithe money)? He answered him: He is under the obligation of a vow, but he cannot fulfil (his duty of Ḥagigah thereby) ; he is a Nazirite, but he cannot shave (according to his stipulation to purchase the sacrifice with second tithe money, but only with unconsecrated funds, for once he stated, ‘ I take upon myself etc.,’ he remains under the obligation because his dedication to the Lord by word of mouth is equal to what delivery is in private transactions — Rashi. Consequently, the subsequent condition has no legal effect to change the vow).’ Hence, in the present ruling too, since he made a formal agreement by means of a Kinyan to accept the settlement of arbitration, he cannot retract from his obligation to carry out the settlement by merely paying the fine. However, if he stated, ‘Should I not fulfil the settlement of arbitration, I will pay the fine,’ the law is that if he desires he pays the fine and does not have to carry out the terms of the settlement — Nethiboth. Cf. also Ḥelkath Meḥokek and Beth Shemuel to E.H. § 50, 6.
אם טוען הבע"ד שלא קבעו עליו זמן הפשרנים שגזרו עליו לעשות ושהוא יעשה כשיזדמן אין דבריו כלום אלא יעשה מיד:
If the litigant argues that the arbitrators who ordered him to act [in accordance with their decision] did not fix a time limit for him [to carry out their decision] and that he will act [accordingly] as soon as [the matter] will come to hand, what he says is considered void, but he must carry out [the decision] forthwith.34RaShBA. Cf. Ned. 3b: ‘How is thou shalt not delay to pay it (Deut. XXIII, 22) with regards to Neziruth, applicable? For as soon as he says, Behold I am a Nazir, he becomes a Nazir; if he eats (grapes), he violates, neither shall he … eat moist grapes or dried (Num. VI, 3) ? — When he says, When I wish I will become a Nazir. But if he says, When I wish, the Biblical injunction, thou shalt not delay is not applicable? — Said Raba, e.g., If he says, I must not leave the world before having been a Nazir, for he becomes a Nazir from that very moment. This is similar to one who says to his wife, Behold here is your bill of divorce (to become effective) one hour prior to my death in which case she is straightway forbidden to eat Terumah. Hence, we say that he may die any moment. Consequently, here too, (regarding a Nazir) he becomes a Nazir at once, because we say, Perhaps he will die now.’ Thus we see that when one undertakes to fufil something without mentioning any specified time, it takes effect immediately. Consequently, the same principle operates in the present ruling. Cf. also Sifra to Lev. XV, 25. Once the arbitrators state their decision before the litigants, they must not make any changes, for their commission is then considered completed. However, as long as they have not stated their decision before them, although they had stated it before the witnesses or others, they may still make changes according to their discretion — Birkath Ya‘akob.
אם ראובן הפחיד את שמעון למסרו אם לא יתן לו ממון שהיו דנין עליו ואין לו בו זכות כפי הדין ועשו פשרה בקנין וביטול מודעא יכול לחזור בו:
If A intimidated B, [viz.,] to deliver him [to a violent person]35Thus in some edd. should he not give him money [or the like] concerning which they [A and B] were in dispute and [in reality A] has no legal rights [in his claim] and [consequently] they made a settlement by means of a Kinyan and a [forced] cancellation [by B] of a notification36Heb. מודעא. A protest before witnesses against a forced or unduly influenced action. [he had previously made that the arbitration he was about to submit to was forced upon him against his will, the law is that] he [B] can [subsequently] retract therefrom.37Asheri in Resp. For only in the case of a ‘sale’ do we rule, ‘If they tortured (lit. suspended) him, and he agreed to sell, the sale is valid’ תליוה וזבין זביניה זביני (B.B. 48a), for whenever one agrees to sell something it is done under duress (being in need of money) and consequently, his consent, although given under pressure is valid (ibid. 47b). But this has reference only to a sale where he receives money for his article. However, in the case of a gift it is not valid because the donor receives nothing in return, and consequently, does not agree to give the recipient ownership rights in the gift (B.B. 47b, RaShBaM, s.v. תליוה וזבין). Further, in the case of a sale if he made a declaration of protest (מודעא) before witnesses that the sale was being forced upon him against his will, the sale is not valid, whereas in the case of a gift, it is not valid even if the donor did not make a declaration of protest as long as the witnesses know that he was under pressure, or where he issued his protest even if they knew not of his duress. Again, in the case of a gift his cancellation of the declaration of protest unlike the case of a sale, is not valid (save where we knew not of his duress and he cancelled his previous declaration of protest — B.B. 48a, Tosaf. s.v. אמר; infra § 242, 2). Hence, a settlement of arbitration where the plaintiff has no legal grounds is on the same footing as a gift. Therefore, if we know that the defendant is under pressure, his cancellation of the previous notification or declaration of protest has no legal effect. , Be’er Eliyahu. The present ruling is also applicable where the defendant was forced to take an oath, provided the oath was of such a nature that one could cancel or annul it mentally (although the law is that ‘a mental stipulation is not valid’ דברים שבלב אינם דברים [Kid 49b], in the case of pressure it is effective) and that his verbal statement of the oath should not be contradictory to his mental stipulation (v. Y.D. § 232, 14). The present ruling with regards to the ‘cancellation of a notification’ means that it subsequently became known to us that the cancellation was also made under pressure. , B.Yos. and D.M. infra § 205 end and cf. Y.D. § 228, 18 — M.E.
שנים חלוקים בבנין שבקרקע ופשרו ביניהם בלא קנין כיון שקיבלו עליהם ובנה זה קצת וזה קצת כדברי הפשרנים אינם יכולים לחזור בהם:
[If] two people are in dispute concerning the building of immovable property and a settlement was made between them without a formal agreement by means of a Kinyan, [then] as soon as [the contending parties] accepted [to carry out the settlement] and one party built a little and the other party [also built] a little according to the decision of the arbitrators, they cannot retract.38RaShBA in Resp. Although Tur (infra § 157 beg.) writes that regarding a courtyard belonging to joint-owners in which there is no right of division (i.e., it is not large enough to assign four cubits thereof to each partner) in which case the division must be made by means of a Kinyan (B.B. 3a. , text cited supra n. 31), the law is that as soon as one of the parties takes possession of his share, the division becomes effective and neither may retract (contra Yad, Shekenim II, 10 cited by Caro infra § 157, 2), in the present ruling even Tur will agree that both contending parties must build (or employ any other mode of acquisition depending on the case in question. , supra par. 7) in order that neither should be able to retract, for Tur’s ruling is applicable only infra where each partner had an equal share, only that before the division was made they each made use of the entire coutryard and now it is only a question of making the division legally binding. It is for this reason that Asheri (source of Tur’s ruling) writes (to B.B. 3a) that even if one of the partners took possession of his share in the absence of his fellow-partner and even if the latter did not say to him, ‘Go take possession and acquire ownership’ (v. B.B. 53a and cf. B.B. 3a, Tosaf. s.v. רב אשי) — he acquires ownership. Examine the expression employed in B.B. ibid.: בגון שהלך זה בתוך שלו והחזיק וזה בתוך שלו והחזיק which is explained by Asheri to mean: (‘the division becomes legally effective if) for instance one walked across his own part and took possession or the other did likewise,’ on the principle that as soon as one party takes possession (in the case of movables), the other assumes liability for what is given in exchange (Mishna Kid. 28a) and the same principle operates in the case of immovable property according to Tosef (Ẓ). Kid. I, 9 cited by Asheri because even if one takes possession it is done for the benefit of both parties (thus TaZ); whereas in the present ruling the parties are in dispute as to who should build one part and who the other part. Consequently, both are required to carry out the settlement of the arbitrators in order to make it legally effective. This is contra ‘Ir Shushan who maintains that even in the present case it suffices even if only one party builds — M.E. Hence, according to the present ruling, even if there was no formal agreement by means of a Kinyan, nevertheless, since both parties carry out the terms of the settlement, it is regarded as though a settlement was entered into — A.H.
פשרה בלא קנין וקבל הנתבע גזירתם ועשה שטר הן בלשון הודאה הן בלשון חיוב אינו יכול לחזור בו:
[In the case of] a settlement of arbitration [submitted to] without [entering into] a formal agreement by means of a Kinyan and the defendant accepted their [the arbitrators'] decision and prepared a document [to that effect], whether in [the form of] a statement of admission or in [the form of] a statement of liability,39 infra § 40, 1; supra par. 7, n. 29. [the law is that] he cannot retract therefrom.40RITBA in Resp. who considers this more effective than a Kinyan.
הכופר בפקדון ונתפשר עמו ומחל לו ואח"כ מצא עדים יכול לחזור בו:
One who denies [having received] a deposit and [the plaintiff] settled with him [the defendant] and waived his rights [against him] and subsequently discovered witnesses [who substantiate his claim, — the law is that] he can retract.41RaShBA in Resp. Since it was a waiver in error. Cf. B.B. 41a.
וה"ה למי שנתפשר מפני שלא היה לו ראיה או שטר ואחר כך מצא:
And likewise regarding one who submitted to a settlement of arbitration because he had no evidence nor any document [available at the time in order to substantiate his claim] and subsequently discovered [it].42 supra n. 41
דין פשרה בטעות יתבאר בסוף סימן כ"ה:
The law of a settlement of arbitration made in error will be explained [infra] at the end of § 25.
מי שנתחייב שבועה לחבירו ופייסו התובע למחול לו ואמר לו יהי כדברך אינו יכול לחזור בו:
One who became bound to his fellow to take an oath, and they [the Court of Law] persuaded the claimant to waive [the oath] for his [the defendant's sake], and he [the claimant] stated, 'Let it be as you say,' — he [the claimant] can [subsequently] not retract [from his waiver].43Mord. to San. I derived from a case dealt with by RABaN. This is in accord with the law stated supra par. 8 that ‘a waiver does not require a Kinyan’ although there was no explicit declaration of the waiver made by the claimant. Cf. Kid. 6a where the law follows R. Jose who holds that ‘if a man discussed with a woman matters regarding her divorce or betrothal and then handed her her divorce or Kiddushin without making an explicit declaration, it is sufficient; Mishna Naz. 20b: ‘If one said, I will be a Nazirite, and his companion heard and said, I too … they all become Nazirites’ — Mord. ibid. Hence, the same principle is applicable here too.
אם רבים הם הפשרנים י"א שאין הולכים אחר הרוב אלא צריך שיסכימו כולם:
If the arbitrators are many, — some say that we do not follow the majority, but it is required that they all unanimously agree [in their decision].44N.Yos. citing Mord. to San. I, derived from A.Z. 72a: ‘If (the vendor) said to the (prospective vendee), In accordance with the assessment of three persons (we will fix the price of the article), then even if two of the three agree (regarding the price it must be accepted) ; but if he said, In accordance with the declaration of three persons (we will fix the price of the article), there must be three who agree on the price’ (in the former case the three persons constitute a Court of Law in which case we accept the opinion of the majority). Hence, it is advisable to stipulate prior to the settlement of arbitration that they will follow the majority since it is almost impossible for all the arbitrators to reach a unanimous decision — A.H. Arbitrators may also act as witnesses which is not so in the case of strict law (v. supra § 7, 5) — A.H.
פשרה בלא קנין ונתנו משכון ביד הפשרנים אינו כלום אא"כ אמרו דלא כאסמכתא או מעכשיו ואם היה המשכון שטר חוב אינו כלום:
[In the case of] a settlement of arbitration without [entering into] a formal agreement by means of a Kinyan, and they [the contending parties] delivered a pledge into the hand of the arbitrators, — [the law is that] it has no legal consequences45RaShBA in Resp. For this is regarded as an Asmakta (אסמכתא), i.e., a promise to pay or to forfeit pledged property (or equivalent) without having received a sufficient consideration; collateral security with the condition of forfeiture beyond the amount to be received, e.g., A pays a portion of his indebtedness to B, leaving the note of indebtedness as a security in the hands of a third party, and agreeing to pay the full amount on the note, if, at the stipulated time, he should fail to pay the due balance. , B.B. 168a. unless they said, [This pledge] is no mere Asmakta'46 however, infra § 61, 5, Gloss; § 207, 18 according to which even if one stated, ‘This is no mere Asmakta’ it still has no legal validity. Consequently, the present ruling is difficult and requires further elucidation — ShaK. However, according to B.B. 44b, even if one inserts in the note the words, ‘this note is no mere Asmakta or draft form’ it has no legal force unless movables were mortgaged along with immovables and only then does the creditor acquire a lien over the immovables and one over the movables also, for then it is similar to Asmakta but is not a real Asmakta. But in the case of movables alone the insertion of the above declaration is of no avail. It is therefore, possible that arbitration is not a real Asmakta but is similar to one. Hence, the words, ‘this pledge is no mere Asmakta’ must be stated. For were arbitration a real Asmakta even Kinyan would have no legal force. Nevertheless, this matter requires further study. , Be’er Eliyahu to W.G. or ['Let it be yours] from now.'47B.M. 66b: (Ref. to Mishna ibid. 65b: ‘If one lent money on a field and said to him, If you do not pay me within three years, it should be mine, it becomes his’) ‘If you prefer, I may say that it means that he said to him (the debtor), Let it be yours from now’ (under these conditions it is no longer an Asmakta since the money was given as the purchase price and acquires for him ownership rights. It is not regarded as a loan save that the vendor has the privilege of repurchase). We see, therefore, that when one states, ‘Let it be yours from now,’ although there is still a condition that has to be fulfilled, nevertheless, it is no longer viewed as an Asmakta. So too, in the case of arbitration when one says he gives the other ownership rights in the pledge ‘from now,’ it becomes the possession of the latter forthwith as a gift made with the condition that it must be returned which is legally a valid gift, i.e., it becomes the recipient’s property for the time being (v. Kid. 6b a.e.). Thus Be’er Eliyahu to W.G. Hence, under these conditions it is not considered an Asmakta. , infra § 207, 9, 14 and cf. Asheri to B.M. ibid. on different types of Asmakta. And if the pledge was a note of indebtedness, [mere delivery thereof] has no legal consequences.48RaShBA in Resp. Derived from B.B. 77a in accord with Amemar (following the version of Alfasi; Yad, Mekirah VI, 10-11; Tosaf. s.v. אמר and Asheri) that a note of indebtedness is acquired by both delivery (מסירה) and by writing a bill of sale (כתיבה). Cf. infra § 66, 1 and B.Yos. a.l. Mere delivery of the note gives one rights only to the scrap of paper but does not confer any right to the debt.
צריכים הדיינים להתרחק בכל היכולת שלא יקבלו עליהם לדון דין תורה:
The Judges are obliged to keep away [from adjudicating cases] in doing all that is in their power in order not to accept upon themselves to try suits in accordance with strict law.49Tur on the auhority of SeMaG. Derived from Y. San. I, 1(18a): ‘Two persons once came to be tried before R. Jose b. Ḥalafta. Said they to him, On the condition that you try us in accordance with strict law. He answered, I know not the strict law; only He who knows man’s thoughts will punish those people (who make false statements). (However,) you must accept what I say to you. When a person would come to R. Akiba with a lawsuit, he used to say to them (the litigants), Know before whom you stand; before Him who spoke and the world came into being, as it is written, Then both the men between whom the controversy is, shall stand before the Lord (Deut. XIX, 17), but not before Akiba b. Joseph. It was taught: Forty years prior to the destruction of the Temple capital punishment was abolished (on the exact date, v. Sidney B. Hoenig, The Great Sanhedrin pp. 111ff. and notes) and in the days of Simeon b. Shetaḥ civil suits were abolished. Said R. Simeon b. Yoḥai, Blessed be the Lord that I am not wise enough to act as Judge.’ , supra par. 2.