מינוי השופטים בארץ ובחוצה לארץ ובו ו' סעיפים:
בזמן הזה דנים הדיינים דיני הודאות והלוואות וכתובות אשה וירושות ומתנות ומזיק ממון חבירו שהם הדברים המצויים תמיד ויש בהם חסרון כיס אבל דברים שאינם מצויים אע"פ שיש בהם חסרון כיס כגון בהמה שחבלה בחבירתה או דברים שאין בהם חסרון כיס אע"פ שהם מצויים כגון תשלומי כפל וכן כל הקנסות שקנסו חכמים כתוקע לחבירו (פי' שתוקע בקול באזנו ומבעיתו) וכסוטר את חבירו (פי' מכה בידו על הלחי) וכן כל המשלם יותר ממה שהזיק או שמשלם חצי נזק אין דנין אותו אלא מומחים הסמוכים בא"י חוץ מחצי נזק צרורות מפני שהוא ממון ואינו קנס:
Nowadays1e., after the dissolution of the Jewish Commonwealth. Derived from Git. 88b; B.K. 84b; San. 2b-3a, according to which non-Mumḥin (v. infra. n. 13) may adjudicate cases of admissions and transaction of loans which are matters of frequent occurrence and involve a monetary loss, thereby carrying out the commission of the Sanhedrin of the Land of Israel. The present ruling applies today to the Land of Israel too. Cf. Git. ibid., Tosaf. s.v. במלתא. Thus also Asheri and Tur. The underlying reason for this law is given by the Codifiers as follows: ‘Judges and officers thou shalt make thee in all thy gates which the Lord thy G-d giveth thee tribe by tribe (Deut. XVI, 18. This has reference to the Land of Israel only) — (this means that) in your gates (i.e., in Israel) tribunals should be set up in every district as well as in every city. However, outside the Land (of Israel) you should set up tribunals in every district but not in every city’ (Mak. 7a). This, of course, applied only to those times when the original form of ‘ordination’ (Semikah, סמיכה) was in vogue, but nowadays all judges have no authoritative power to adjudicate legal questions Biblically, as it is written, — ‘And these are the judgments which thou shalt set before them (Ex. XXI, 1) — before them (i.e., authoritative judges, specially ordained) and not before non-Mumḥin (laymen judges)’ — Git. ibid. Consequently, today we merely act as agents of the former authoritative judges and deal only with matters of frequent occurrence which also involve a monetary loss (Tur) — M.E. On the question whether we carry out today the commission of the former duly ordained judges Rabbinically or Biblically, there is a difference of opinion among the Codifiers. N and RaShBA hold that our commission is Rabbinical. Nethiboth maintains that it is Biblical. the Judges may adjudicate cases of admissions2Heb. הודאות admissions. This refers to proceedings resting on evidence of witnesses attesting to the defendant’s admission of his indebtedness. הלוואות transaction of loans has reference to evidence offered by witnesses who were present at the time of the transaction of the loan. Today the judges may also deal with cases where there are no witnesses, e.g., where one has to take a consuetudinal or equitable oath (שבועת היסת i.e., if one who is sued for a debt denies the latter entirely (כופר הכל) in contradistinction to the legal or Biblical oath which is required when the defendant admits a part of the claim (מודה במקצת), it being presumed that nobody will go to law unless he have a claim. Consequently, it is a matter of equity to put the opponent to an oath, to which he may in turn put the claimant — M.E. and transaction of loans,2Heb. הודאות admissions. This refers to proceedings resting on evidence of witnesses attesting to the defendant’s admission of his indebtedness. הלוואות transaction of loans has reference to evidence offered by witnesses who were present at the time of the transaction of the loan. Today the judges may also deal with cases where there are no witnesses, e.g., where one has to take a consuetudinal or equitable oath (שבועת היסת i.e., if one who is sued for a debt denies the latter entirely (כופר הכל) in contradistinction to the legal or Biblical oath which is required when the defendant admits a part of the claim (מודה במקצת), it being presumed that nobody will go to law unless he have a claim. Consequently, it is a matter of equity to put the opponent to an oath, to which he may in turn put the claimant — M.E. marriage contracts,3Containing among other things, the settlement of a certain amount due to the wife on her husband’s death or on being divorced. Heb. Kethubah (כתובה), — the wife’s settlement. inheritances,4Thus Asheri and Tur derived from San. 3a, Tosaf. s.v. שלא. gifts4Thus Asheri and Tur derived from San. 3a, Tosaf. s.v. שלא. and damage done to another person's chattel,5Yad, Sanhedrin V, 9 derived from B.K. ibid. which are matters that are of frequent occurrence and involve a monetary loss;6In the case of ‘inheritances’ and ‘gifts’ which are of frequent occurrence there is also the possibility of a loss involved, for no doubt the claimant must have rendered some service to the bequeather or the donor (Thus A.H.). The underlying reason in the case of admissions and the transaction of loans is ‘in order not to shut the door against borrowers’ (שלא תנעול דלת בפני לווין). For a creditor will refuse to grant a loan should he find it difficult to collect his debt. The same reason applies to the other matters enumerated here. This (viz., that we deal only with matters of frequent occurrence which involve a monetary loss) has reference only to monetary claims. But in the case of other important matters, such as, accepting converts, although it is of infrequent occurrence, or in the case of compelling an obstinate husband to grant his wife a divorce although it does not involve a monetary loss, the law is that we may deal with such cases — M.E. but matters that are not of frequent occurrence although they involve a monetary loss,7Yad ibid. e.g., cattle that injured other [cattle],8As a result of goring with the ‘horn’ (קרן) which is of infrequent occurrence. This, of course, refers not only to damage caused by ‘horn’ but also to all other types of injury or damage of infrequent occurrence (e.g., damage caused by ‘fire’ and ‘pit’ (אש זבור) — Shak. Mishna B.K. I, P.Tesh., however, cites authorities who permit a Jewish Court today to deal in matters pertaining to damage caused by ‘fire’ and ‘pit’). This form of damage is called חבלה. Hence, the term שחבלה used here. In the case of damage or injury which is of frequent occurrence and involves a monetary loss, the legal term used is היזק. infra par. 3 — M.E. or matters that do not involve a monetary loss although they are of frequent occurrence,7Yad ibid. e.g., the repayment of the double amount,9e., the additional amount to be paid as fine on restoring stolen goods (Ex. XXII, 3; 6-8). This is derived from San. 8a where it is stated that cases of fine must be dealt with by three authoritative Judges (Mumḥin), but not laymen Judges. The repayment of the double amount (תשלומי כפל), it may be asked, in any case belongs to the category of fines (קנסות) mentioned anon, and the payment thereof is collected only by authoritative judges (Mumḥin)? Furthermore, Tur has בושת i.e., payment for indignity suffered which is of frequent occurrence although there is no monetary loss involved. Likewise, in the foregoing example of matters of infrequent occurrence although there is no monetary loss involved, Tur has ‘e.g., if a man injured another man’ instead of Caro’s example (following Maim. in Yad ibid.) ‘cattle that injured other cattle’. The difficulty may be removed if we understand our text as follows: First Caro states examples (e.g., the repayment of the double amount and cattle that injured other cattle) which are specifically of a penal nature (קנס) and then the general proviso, ‘and likewise all fines’ which the Rabbis equated to these examples. Consequently, the examples cited by Tur are included in the general statement concerning fines — M.E. and likewise, all fines that were imposed by the Sages,10B.K. ibid. dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. as [in the case of] one who boxes his neighbour's [ear] — The meaning [of Toke'a should be understood as] 'He shouts in a [loud] voice into his [neighbour's] ear and frightens him10B.K. ibid. dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. — or as [in the case of] one who slaps his neighbour — e., He strikes [him] with his hand on the cheek11, Mishna B.K. VIII, 6(90a). Cf. infra § 420, 4 Caro adopts Maim. (Yad ibid.) explanation of תוקע; Isserless accepts the explanation of Rashi and RaN (v. B.K. 90a and Kid. 11b, Rashi s.v. התוקע and cf. RaN ibid.). , B.K. 84b, Rashi s.v. ופגם whence it is implied that if the amount is not definitive it is not regarded as a fine. Yet, since it is of infrequent occurrence and does not involve a monetary loss, we cannot order its collection. The Rabbis, however, called it קנס (fine) because the law thereof is similar to fines. Cf. B.K. 27b, 84b, Tosaf, s.v. קנסא — M.E. — and thus also whosoever pays more than the actual damage done, or one who pays half-damages,12B.K. 15b, 27b; Ket. 41b and v. Tur. E.g., the repayment of the double amount (Ex. XXII, 3) or the four or five-fold restitution of stolen goods (Ex. XXI, 37), or on restoring misappropriated property, one fifth of the principal had to be added as a fine (Lev. V, 16, 24; XXVII, 27), or half-damages done by an innocuous animal (תם), i.e., an animal that did not gore three times and did injury before warning had been given, opp. מועד (Ex. XXI, 28-36; B.K. I, 4; II, 4). Cf. infra § 390 and v. Yad ibid. — [the law is that] only authoritative Judges13Heb. מומחים i.e., experienced scholars versed in matters of law who alone are referred to by the Scriptural term Elohim meaning ‘Judges’ as in Ex. XXI, 6; XXII, 7-8. , San. 2b; infra § 3, 2. Cf. supra n. duly ordained14San. 14a. On the question of ‘Ordination’ (סמיכה), v. Yad, Sanhedrin IV and cf. Y.D. § 242; supra n. 1; J.P. Y.D. § 335-403, Int. XI-XI in the Land of Israel may judge it15e., such a case. save [in the case of the liability for] half-damages [done by] pebbles,16Kicked by an animal. This is a derivative of ‘foot.’ , B.K. 17a. which is [regarded as] civil and not [as] penal.17B.K. 15b; Ket. 41b. In addition to the matters mentioned supra, Semikah (Ordination) nowadays is also valid for dealing in matters pertaining to Ḥalizah and Divorce — ShaK.
אדם שחבל בחבירו אין מגבין דיינים שאינם סמוכים בא"י נזק צער ופגם ובושת וכופר אבל שבת וריפוי מגבין: הגה וי"א שאף ריפוי ושבת אין דנין (טור בשם הרא"ש) ולא ראיתי נוהגין לדקדק בזה רק כופין החובל לפייס הנחבל ולקנסו כפי הנראה להם (ד"מ לדעת מהר"ם בפסקיו סי' ר''ח) וכמו שיתבאר בסמוך סעיף ה':
[In the case of] a man who injured his fellow-man — [the law is that] Judges who are not duly ordained in the Land of Israel18, supra par. 1, n. 1. cannot order the payment for injury,19Tur citing Yad, Sanhedrin V, 10. Derived from Mishna B.K. VIII, 1 and Gemara ibid. 84a-b where it is stated that the liability for injury (נזק) is determined by regarding the injured person as if he were a slave sold in the market place and an assessment is made as to how much he was worth before the injury was inflicted and how much he is worth now. Although there is a monetary loss involved, yet since this is of infrequent occurrence, Judges nowadays cannot order the payment thereof (v. par. 1). Much more so in the case of pain (צער) and indignity (בושת) where no monetary loss is involved that payment cannot be ordered by present day Judges. pain,19Tur citing Yad, Sanhedrin V, 10. Derived from Mishna B.K. VIII, 1 and Gemara ibid. 84a-b where it is stated that the liability for injury (נזק) is determined by regarding the injured person as if he were a slave sold in the market place and an assessment is made as to how much he was worth before the injury was inflicted and how much he is worth now. Although there is a monetary loss involved, yet since this is of infrequent occurrence, Judges nowadays cannot order the payment thereof (v. par. 1). Much more so in the case of pain (צער) and indignity (בושת) where no monetary loss is involved that payment cannot be ordered by present day Judges. blemish,20Yad ibid. and Tur a.l. do not include blemish (פגם). TaZ states that M’s version of the of the Talmud (B.K. 84b) did not have ‘blemish.’ MS.M. also omits ‘blemish’ although found in cur. edd. Liability for blemish applies only in the case of rape (v. E.H. § 177). Blemish stands on an equal footing as injury (v. B.K. ibid., Rashi s.v. ופגם). It may, however, be asked, why blemish (פגם) which is of frequent occurrence and involves a monetary loss (B.K. ibid.) should not be adjudicated today? This difficulty may be removed if we realize that ‘frequent occurrence’ of blemish applies only to the assessment, i.e., we know how to determine the liability of blemish (the difference in valuation between a virgin בתולה and a non-virgin בעולה), but the actual act of rape is of infrequent occurrence — M.E. indignity,19Tur citing Yad, Sanhedrin V, 10. Derived from Mishna B.K. VIII, 1 and Gemara ibid. 84a-b where it is stated that the liability for injury (נזק) is determined by regarding the injured person as if he were a slave sold in the market place and an assessment is made as to how much he was worth before the injury was inflicted and how much he is worth now. Although there is a monetary loss involved, yet since this is of infrequent occurrence, Judges nowadays cannot order the payment thereof (v. par. 1). Much more so in the case of pain (צער) and indignity (בושת) where no monetary loss is involved that payment cannot be ordered by present day Judges. and indemnity,21Lit. ‘ransom price.’ This is omitted by Yad ibid and Tur a.l., for “indemnity’ refers only to a case where an animal killed a person but has no reference to a general case of ‘injury.’ Caro for the sake of brevity states here blemish (פגם) and indemnity (כופר) along with the other items although the former belong to a different category of injury, but since all these items are similar in that they are not adjudicated by present day Judges they are mentioned together — M.E. but they may order the payment for loss of time and healing.22Yad ibid., derived from Raba’s dictum in B.K. 84a, ‘Payment for which the injured person would have to be valued as if he were a slave is not collected in Babylon,’ which is explained (thus Kes. Mish.; B.Yos.; MaHaRIK Rt. 1 a.o.) as referring to ‘injury’ (נזק) only, which, it is true, involves a monetary loss, but is of infrequent occurrence (v. supra n. 19). Hence, Raba’s dictum does not include ‘loss of time’ and ‘healing.’ Consequently, payment may be ordered by a Jewish Court today for the latter. Thus also Isserlein in his Decisions (פסקים) — that nowadays we may order payment for ‘healing’ and ‘loss of time’ and likewise impose a fine upon the offender. Asheri and Alfasi, however, hold that payment for the latter are not ordered today. Raba’s dictum is explained by them to refer to anything that requires valuation (כל הנישום). Caro, however, accepts the opinion of Maim. since it is supported by the Geoninm (Yad ibid.). Thus also Hag. Asheri to B.K. ibid. Gloss: And some say that also [cases of] healing and loss of time they23Present day Judges. do not adjudicate.24Tur on the authority of Asheri — G. , supra n. 22 and San. 2a Rashi s.v. וחבלות. However, I have not seen [them] adopt [this] practice, [viz.,] to be strict in this [matter]25But contra Caro, payment for ‘healing’ and ‘loss of time’ is not ordered today. save that they coerce the injurer26In D.M., Isserles adds ‘to heal him and etc.,’ i.e., in order to appease the injured person. For were we not to compel him to appease the injured person, an individual would feel free to injure his fellow-man and be exempt. , infra par. 5 and notes. to appease the injured [with money] and to penalize him according to that which appears [reasonable] to them27D.M. in accord with Isserles’ opinion to the Decisions (of Isserlein) s. 208 — G. as will be explained anon par. 5.
בהמה שהזיקה את האדם אין גובין נזקו דיינים שאינם סמוכים בא"י מפני שהוא דבר שאינו מצוי אבל אדם שהזיק בהמת חבירו משלם נזק שלם בכל מקום וכן בהמה שהזיקה בשן ורגל הואיל והיא מועדת (להן) מתחלתה הרי זה דבר מצוי ומגבין אותו דיינים שאינן סמוכין בא"י וכן מי שגנב או גזל מגבין ממנו הקרן בלבד: הגה וי"א דוקא גזילות דשכיחי כגון כופר בפקדון וכדומה אבל גזילה ממש לא שכיחא ואין דנין אא"כ הגזילה קיימת מחייבין להחזירה (נימוקי יוסף פ' החובל):
[With respect to] cattle that injured man, — [the law is that] Judges who are not duly ordained in the Land of Israel28, supra par. 1, n. 1 may not collect payment for his injury because it is a matter that is not of frequent occurrence.29, B.K. 2b where it is stated that ‘man is cautious’ and Rashi explains that it is more difficult to injure a man than an animal since he possesses foresight. However, a man who caused damage to his fellow-man's cattle pays full damages everywhere.30Whether in or outside the Land of Israel. As in the case of one who tears his fellow-man’s garment or breaks his vessels or mutilates his shoots. Likewise, cattle that caused damage by means of Tooth and Foot, since [with respect to the latter] it is regarded as Mua'd ab initio, this is considered a matter of frequent occurrence, and Judges who are not duly ordained in the Land of Israel28, supra par. 1, n. 1 may order the payment thereof.31Yad, Sanhedrin V, 11-12. Derived from B.K. 84a-b in the case of the ox that chewed the hand of a child and Raba ruled, ‘Go forth and value the child as if it were a slave,’ and after a lengthy discussion in the Talmud (ibid.), Raba’s dictum, viz., that payment may be collected in Babylon where chattel was damaged by cattle, is explained to have reference to damage done by Tooth or Foot which is considered Mu‘ad ab initio. For Mu‘ad v. Glos. Thus also, [with respect to] one who stole or robbed32This refers to the unlawful acquisition of chattels by violence. Cf. Lev. V, 23; II Sam. XXIII, 21. [an object], they may collect from him the principal only.33Yad, Sanhedrin V, 1 , B.K. 84b where it is concluded that in matters of a penal nature we do not act as agents of the former authoritative Judges of Israel. Hence, only the principal may be collected. , also B.K. 115a where such cases were dealt with in Babylon and B.K. 96b in the case of the man who misappropriated a pair of oxen and B.K. 21a in the case of a certain person who built a villa on the ruins that belonged to orphans and when R. Naḥman advised the defendant to make a peaceful settlement with the orphans, he refused to do so, whereupon R. Naḥman confiscated the villa. Cf. also ibid. 37a and 4b. In the latter reference it is stated that theft (גניבה) and larceny (גזילה) involve civil liability. A difficulty, however, presents itself, viz., in the Mishna San. I, 1 and Gemara ibid. 3a we are told that cases of larceny are dealt with by Mumḥin Judges only, which contradicts the present ruling. Tosaf. (ibid. s.v. שלא; B.K. 84b s.v. אי נמי; Git. 88b s.v. אי הכי) explain that the Mishna ibid. refers to cases of larceny by means of injury inflicted (גזילות ע״י חבלות), in which case only Mumḥin Judges may adjudicate the matter. Hence, in such cases of larceny we nowadays cannot act as the agents of the former authoritative Judges, since this is a matter of infrequent occurrence, but cases of larceny where no bodily injury resulted we may act as the agents of the former. Thus also Kes. Mish. and B.Yos. N.Yos., however, removes the above difficulty as follows: Caro’s ruling that we may order the payment of the principal in cases of larceny refers only to matters of frequent occurrence, such as, one who denies a deposit (v. Gloss anon), but actual larceny is of infrequent occurrence. Hence, it is not adjudicated today (v. D.M. a.l.). ShaK advances a different opinion, viz., that in San. ibid. we deal with the adjudication of fines, e.g., the repayment of the double amount, the four and five-fold restitution, which require only Mumḥin Judges (v. supra par. 1 and notes), but the actual principal is recoverable even by laymen Judges (this is however, a stained interpretation, since the payment of the double etc., refers to cases of theft but not to larceny — Ba’er Heteb). ShaK also writes that the increment (שבח) of the misappropriated article prior to the owner’s resignation, is also recoverable today contra BaḤ. RaN and N offer an altogether different explanation in removing the above difficulty, viz., that as to San. ibid. that requires Mumḥin in cases of larceny, it has reference only to the period when such Judges were available, but if, as today, Mumḥin are no longer available, even laymen Judges may deal with such matters. Thus also Nethiboth, K.H. and Tummim. Otherwise, the earth will become full of violence — A.H. Gloss: And some say [that this applies] only to cases of larceny that are of frequent occurrence, e.g., [a guardian] who denies [having received] a deposit and the like, but actual larceny is not [considered] of frequent occurrence and they do not adjudicate [this] unless the robbed object is [still] intact, [in which case] they order [him] to return it.34N.Yos. to B.K. 84b — G. , previous note.
דיני דגרמי וכן דין המוסר דנין אותם דיינים שאינם סמוכים בא"י: הגה עדים שהעידו עדות שקר והוזמו והוציאו ממון על פיהם ואי אפשר למיהדר דנין אותן ומחייבין אותן לשלם (מרדכי ריש פרק החובל) וע' לקמן סי' כ"ט ס"ב:
[With respect to] the laws of damage caused indirectly,35B.K. 98b; Ket. 86a where it is related that in the case of an action for damage caused indirectly, Rafram (in accord with R. Meir ibid. 100a) compelled R. Ashi, who in his childhood had destroyed by burning, the bond of a creditor, to make payment ‘like a beam fit for decorative mouldings,’ i.e., a proverbial expression for ‘straight and exact’ and out of the best of one’s estate (v. ibid. 5a), whence we see that payment for indirect damage (גרמי) may be collected even by laymen Judges outside the Land of Israel, and such payment is not regarded as a fine (קנס). , Yad Ḥobel u-Mazzik VII, 9. There are three expressions used in Talmudical terminology with reference to different categories of damage that require elucidation, viz., a) היזק שאינו ניכר — damage not discernible in the object itself, such as, leavened matter over which Passover has passed (which had been in the house during Passover) that becomes forbidden for use after Passover, although the damage is not evident here; b) דינא דגרמי — indirect damage which is discernible and is not the result of any action performed, such as, in the case of the fence of a vineyard that has been broken down and the owner of the adjoining cornfield requires the owner of the vineyard to restore it. If the owner of the vineyard neglects the matter and does not restore it, he thereby causes his neighbour’s produce to become forfeit (Deut. XXII, 9) and is held responsible for the loss; c) גרמא בנזקין — where the damage caused indirectly is not evident, e.g., when one places a ladder near his neighbour’s dovecote, thereby causing indirectly a marten to jump in, the law is that since there is also the possibility that the marten will not jump in, hence the one who placed the ladder is not held responsible — N.Yos. to B.K. Cf. ‘Ar. Comp. II, p. 365 s.v. גרם and v. infra § 386 on further distinctions between גרמא and גרמי. Cf. also infra § 66, 32; B.B. 94a, RaShBaM s.v. נותן לו. and likewise, [regarding] the law of the informer,36B.K. 116b-117a records a number of cases regarding ‘informers’ which were adjudicated by the Amoraim in Babylon. , Yad, Gezelah wa-Abedah IX, 3. — Judges who are not duly ordained in the Land of Israel37 supra par. 1, n. 1. may adjudicate them.38One may be compelled nowadays to support his minor children since it is a religious duty and does not belong to the category of fines — K.H. Gloss: Witnesses who offered false evidence and were found Zomemim,39Zomemim, plur. of Zomem, from the rt. זמם ‘to plot’ or ‘to scheme.’ This refers to witnesses whose personal presence at the alleged offence is challenged by other witnesses. In other words, they are proven to have been ‘schemers’ or ‘plotters,’ and they are punished by the law of retaliation (Deut. XIX, 16ff.). According to W.G., Isserles mentions this ruling here, since as in the aforementioned law of the ‘informer’ damage is caused by mere speech without tangible action (this is also apparent in Mord. to B.K. VIII, the source of this ruling) contra M.E. who writes that Isserles states this here as an independent law. and they [the Judges] had [already] collected payment on [the strength of] their testimony,40This applies only if money had already been collected on their testimony, although the principle, as he had purposed to do (Deut. ibid.) and not as he had done (v. Ḥul. 11b, Rashi s.v. אין נהרגין and Torah Temimah ibid.) would imply that only if the money had not yet been collected from the person against whom they plotted is payment exacted from th Zomemim witnesses, but not if payment had been ordered and paid, — nevertheless, in civil liability (as in the present case) the above principle (which is of a penal nature) is not applicable (v. B.K. 4b, Tosaf. s.v. עדים). The reason why the example of הזמה (the refutation of the witnesses by another set of witnesses by proving an alibi, e.g., ‘How can you offer this testimony, if, at the time you state that the alleged offence was committed, you were present with us in another locality?’) is mentioned, and not the example of הכחשה (counter-evidence which contradicts the testimony of the first set of witnesses), is because in the latter case when two witnesses state that So-and-So borrowed money from So-and-So, as a result of which money was collected on their testimony, and subsequently, two other witnesses came and offered counterevidence, the former set of witnesses cannot be ordered to make payment, for we may say, that the evidence offered by the second set of witnesses does not carry more weight than that of the first set. Not so, however, if the witnesses are proven Zomemim (v. infra § 31, 38; § 46, 37) — M.E. , also infra § 28, 3, Gloss. However, if the testimony of the witnesses, who were subsequently proven Zomemim, merely exempted the defendant from taking an oath, thereby causing damage to the claimant, — for if the defendant would have had to take an oath (which, now it appears would have been a false oath), he would have made payment instead of swearing falsely, — nevertheless, the Zomemim witnesses are not required to make restitution, for this is not considered a case of דינא דגרמי (indirect damage which is discernible. , supra n. 35) but rather belongs to the category of גרמא בנזקין (indirect damage which is not evident. , ibid.) — P.Tesh. and it is impossible to recover [the payment now],41e., the claimant who received payment on the testimony of the witnesses who were proven Zommim, had already spent the money. — [the law is that] they judge them and order them to pay.42Mord. to B.K. VIII beg. — G. Thus also RaShaL ibid. Infra § 29, par. 2.
אע"פ שדיינים שאינם סמוכים בא"י אינן מגבין קנסות מנדין אותו עד שיפייס לבעל דינו וכיון שיתן לו שיעור הראוי לו מתירין לו (בין נתפייס בעל דינו בין לא נתפייס) וכן אם תפס הניזק שיעור מה שראוי לו ליטול אין מוציאין מידו: הגה ואם יאמר הניזק שומו לי נזקי שאדע עד כמה אתפוס אין שומעין לו אלא אם כבר תפס שמין לו ואומרים לו כ"וכ תחזיק וכ"וכ תחזיר (טור בשם הרא"ש פ' החובל וספ"ק דב"ק) וכל זה דוקא בקנסות הכתובים אבל קנסות שבאים חכמים לקנוס מעצמן על תקנתן גובין בכל מקום וכמו שיתבאר בסי' ב' (מרדכי ס"פ השולח):
Although [the law is] that Judges that are not duly ordained in the Land of Israel28, supra par. 1, n. 1 cannot order the payment of fines,43 supra par. 1 and notes [nevertheless], they may place him44The injurer. under the ban until he appeases his litigant [with money],45Yad, Sanhedrin V, 17 and Alfasi to B.K. VIII on the authority of the Yeshiboth presided over by the Geonim. Thus also Tur. The injurer is placed under the ban only in the case where he or his chattel caused injury, because the injured person does not receive more than the damage incurred, and should we not adopt this stringency one would feel that he is free to injure his fellow-man and be entirely exempt. This, however, does not have reference to cases which involve the payment of the double amount or the four or five-fold restitution — M.E., ShaK, RaShaL. ‘Ir Shushan writes that when the defendant is placed under the ban, which is lifted only after he appeases the plaintiff by compensating the latter for the damage, such compensation must include not only an approximate amount of the actual damages suffered but also of the payment of the double and the four and five-fold restitution. M.E. rejects this ruling because as stated above the injurer is placed under the ban only in the case where there is no additional payment of fines. and as soon as he44The injurer. gives him an amount which appears reasonable [to the injurer to be given] to him, they release him44The injurer. [from the ban],46This does not refer to an exact amount corresponding to the damage but rather to an approximate amount. Thus also Tur on the authority of R. Sherira Gaon, Asheri and Alfasi. This explains the words, ‘they release him (from the ban),’ i.e., although the injured person demands full payment. This also follows from the Gloss of Isserles, ‘whether his litigant was appeased etc.’ The following words, however, ‘if the injured person seized an amount etc.,’ refers to seizure of the full amount. The latter statement has reference to a seizure that also compensates the injured person with respect to the payment of the double amount or the four or five-fold restitution. Biblically, one who admits an act with which a fine is connected, is exempt from the fine (מודה בקנס פטור v. Ket. 43a). But the admission must be made in the presence of a Court duly ordained (v. supra par. 1, n. 1). Hence, nowadays the defendant’s admission would not exempt him from the additional fine also seized by the claimant, save that the following distinction should be borne in mind, viz., that if the defendant admitted that witnesses were present during the time that the damage was done, he is still held responsible and his admission does not exempt him, but if no witnesses were present at that time, the claimant’s seizure of the additional amount corresponding to the fine is not valid — Nethiboth. If the injurer died, we do not place his heir under the ban, for the main purpose of the Geonic enactment (v. supra n. 45) was that violent men should not be on the increase. Hence, the injurer only is placed under a ban but not his heir in the case of the former’s death — Nethiboth and Tummim. whether his litigant was appeased [thereby] or whether he was not appeased. And likewise, if the injured person seized an amount, [viz.,] whatever is proper for him to take, they do not reclaim [it] from him.47Conclusion reached in B.K. 15b; Ket. 41b. This ruling applies even if the plaintiff seized an amount corresponding to the fine as well, for the law is that had we been permitted to adjudicate this matter today, the defendant would have paid an amount corresponding to the actual damage plus the fine. Consequently, the plaintiff’s seizure is considered valid. So also Asheri and Tur (infra § 349 end). , also Isserles infra § 348, 4 Gloss. Caro and Isserles state the law here without making a distinction as to whether the seizure was made at the time the damage was suffered or subsequent to that, or whether the chattel that caused the damage was seized by the injured person or other possessions of the injurer. R. Tam in Tosaf. to B.K. and Ket. ibid. s.v. ואי תפס holds that the plaintiff seized the animal that caused the damage, i.e., before it reached the owner’s hand. Thus Hag. Maim. to Yad ibid. This is substantiated by Ket. 84b according to which R. Tarfon maintains that the seizure of a man’s produce by a creditor is valid after the latter’s death, provided, — as Rab and Samuel explain — it lies in a heap in a public domain, i.e., in a place where Meshikah is possible. In other words, before it passes into the hands of the heirs. , Hag. Derisha u-Perisha. But other chattels cannot be seized by him. For if so, the plaintiff will continue to seize thereafter other items too, and we would not be able to dispossess him thereof, since this comes under the category of ‘fines’ which are not adjudicated today. Asheri on the other hand, maintains, that even other chattels, not necessarily the animal that caused the damage, may be seized. Should he seize more than his damage we may dispossess him of the surplus which does not come under the category of ‘fines’ since the adjudication will be for the surplus seizure which is permissible to be dealt with by the Judges. , also RIDBaZ to Yad ibid. who writes that were R. Tam’s explanation correct, the text should have stated ואי תפסיה i.e., ‘he seized it’ and would be referring to the tort-feasant animal or the like (v. B.K. and Ket. ibid.). Furthermore, the law is that the nuisance, in this case the animal, must be abated, as R. Nathan said, ‘Whence is it derived that a man should not breed a bad dog in his house? — From the text, That thou bring not blood upon thy house (Deut. XXII, 8).’ Hence, we see that Caro and Isserles in stating the law here adopt the opinion of Asheri. Mord. writes that if the damage was caused through ‘Horn’ we follow R. Tam, and in other cases of damage (e.g., cattle that caused damage to man even through ‘Tooth’ and ‘Foot’ which are of infrequent occurrence. Thus K.H.) we adopt the opinion of Asheri. In the case of an ‘innocuous animal’ (Tam. , Glos.) that caused damage, some say that the seizure is valid only if the plaintiff seized the animal proper, for the owner of such an animal pays only half-damages and the payment is made out of the body of the tort-feasant animal (v. Mishna B.K. 34a) — Nethiboth. The seizure spoken of here refers to one made in accordance with Jewish Law but not if carried out through non-Jewish Law (RaShaL) — ShaK. R.A.Eger, however, writes that only ‘in the first instance’ (לכתחילה) is it forbidden to seize through a non-Jew, but if already done (דיעבד) the seizure is considered valid (thus implied in RaShaL, the source of this ruling. Cf. infra § 4 Gloss) — P.Tesh. If a guardian advances the plea of theft in the case of an article which was entrusted with him for safekeeping and took the ‘guardians’ oath’ (שבועת השומרים) after which it was discovered that he himself had stolen the deposited article, — the law is that if the plaintiff seized an amount including the payment of the double amount or the four or five-fold restitution, since nowadays one is not required to pay the latter, the reason being that the oath must be taken before a duly ordained Court comprised of Mumḥin, — the seizure is not valid — ShaK, Nethiboth. Gloss: And if the injured person should say,48To the Judges. 'Assess for me my damage so that I should know up to how much I should seize,' he is not obeyed,49For otherwise it would mean that we adjudicate penal cases. But whatever he is instructed to return to the injurer does not come under the category of penal matters, since he had already seized it himself. RaShaL rules in accord with Alfasi that with respect to anything which is of a civil and not of a penal nature save that it is of infrequent occurrence, we do obey him and assess the damage for him — ShaK. save that if he had already seized, they assess for him [his damage] and instruct him, 'So much you may keep [as your own] and so much you must return [to the injurer].'50Tur on the authority of Asheri to B.K. VIII and to B.K. I end — G. This is contra MaHaRIW who maintains that all that was seized by the claimant must be returned. Isserles, as can be seen, adopts the opinion of Asheri that only the surplus should be restored. Asheri and Tur also rule that if the plaintiff does not produce witnesses that he is entitled to the amount seized, he must return whatever he seized. Isserles, however, writes that this applies only if he seized in the presence of witnesses, but if the seizure was not in the presence of witnesses, and the defendant denies having incurred any damage, the claimant is believed on the principle of Miggo (a legal rule according to which a deponent’s statement is accepted as true on the ground that if he had intended to tell a lie, he might have invented one more advantageous to his case, viz., he might have said, ‘I did not seize at all’). , infra § 87, 30. This principle applies not only to claims of civil liability but also to those of a penal nature (Mord. to B.K. III; Tur infra § 399; Isserles and ‘Ir Shushan) — M.E. R. Mordekai ha-Lewi (cited by Tur ibid.) states that the principle of Miggo is not valid in penal cases. Thus also N.Yos. to B.K. III end; Mag. Mish. to Yad, Nizke Mamon IX end. In the case where the injurer died, the seizure of the orphans’ money or chattels is not valid in penal cases, for legally movable property of orhpans does not become mortgaged to a creditor save that the Geonim decreed that they become mortgaged. But this Geonic decree certainly does not apply to penal cases — Nethiboth, A.H. If the injured person seized an amount which also corresponds to the fine, after which the injurer reseized the fine, the Judges nowadays cannot order this fine to be returned to the injured person, for if so, it would mean that they adjudicate fines — Nethiboth. R.A.Eger, however, states that the amount corresponding to the fine may be restored to the injured person, for once the latter seized this amount it became his personal property and no longer falls under the category of fines — P.Tesh. And all this51That nowadays Judges have no authority to adjudicate fines. [applies] only to fines stated [in Biblical Law], but [as to] fines which the Sages come [from time to time] to impose of their own accord with respect to [one who does not observe] their ordinance[s],52e., ordinances decreed by the Sages for the sake of safe-guarding the Torah laws — A.H. they may collect everywhere30Whether in or outside the Land of Israel. As in the case of one who tears his fellow-man’s garment or breaks his vessels or mutilates his shoots. as will be explained in § 2.53Mord. to Git. IV end — G. Mord. also writes that although we do not order the payment of fines nowadays, we should however, adjudicate these matters in accord with the ‘seven representatives of the town’ (שבעה טובי העיר). , Meg. 27a. In the Decisions of Isserlein it is recorded that one who does not heed the decisions of the Court may be penalized — M.E.
המבייש בדברים מנדין אותו עד שיפייסנו כראוי לפי כבודו: הגה וע' לקמן סי' ת"כ סעיף ל"ח וע' לקמן סי' ב' אם נתחייב לו מלקות אם יכול לפדות עצמו בממון:
One who insults [his fellow-man merely] in words, is placed under the ban until he appeases him54The insulted person. as is becoming his54The insulted person. dignity.55Thus R. Sherira Gaon cited by Tur a.l. So too, Alfasi and Asheri to B.K. 81a. According to B.K. ibid. one who insults his fellowman merely in words is exempt from any liability whatsoever. This means that legally even duly ordained Mumḥin Judges cannot order the payment for insult in words. However, in accord with Y.B.K. VIII, 7(6c) one who insulted an elder or a scholar was fined a Litra (v. Glos.) of gold. Cf. also Y. Ket. IV, 8(28d); Yad, Ḥobel u-Mazzik III, 5; ibid. Talmud Torah VI, 12; Tur Y.D. § 334 and Sh.Ar. ibid. par. 47. A Litra of gold consisted of thirty-five gold Denarii (thus Yad ibid.). Others say that it consisted of thirty-six Denarii. Cf. Y.D. § 243, 2, Gloss. The Geonim, however, made no distinction between a scholar or any other person with respect to this ruling (Mag. Mish. to Yad ibid.). , further ‘Ar. 15a on the fate of one who spreads evil reports. Gloss: Infra § 420, par. 38.56 also infra § 27, 2. , Infra § 2 [regarding the question] if one became guilty towards another person57Lit. ‘to him.’ of the punishment of lashes whether he may acquit himself58Lit. ‘redeem himself.’ with money.