כיצד בוררים הדיינים כשאין בעלי דינין מסכימין יחד ובו ז' סעיפים:
א' מבעלי דינים שאמר איש פלוני ידון לי ואמר בעל דינו פלוני ידון לי הרי אלו שני דיינים שברר זה א' וזה א' בוררים להם דיין שלישי וא"צ שיהי' הדיין השלישי ברצון הבעלי דינים ושלשתם דנים אותם שמתוך כך יצא הדין לאמתו אפילו (לא) הי' הא' שבירר בעל הדין חכם גדול וסמוך אינו יכול לכוף את בעל דינו שידון אצל זה אלא גם הוא בורר מי שירצה: הגה שמתוך שזה בורר לו א' וזה בורר לו א' הבעלי דינים צייתין להם וגם הדיינים כל אחד מהפך בזכות אותו שברר אותו בכל מה שאפשר מצד הדין והג' שומע טענות שניהם ופוסקים האמת (טור) אם אינם יכולים להשוות עצמם לברור להם שלישי מנהיגי העיר יתנו להם ג' ואם אין מנהיגים בעיר ילך התובע לפני ג' ויכופו הנתבע לדון לפניהם וכן אם הנתבע מערים לברור דיין שאינו הגון כדי לשבת אצל דיין הגון כופין אותו לדון לפני ג' כמו שנתבאר לעיל סי' ג' או שיברור דיין הגון (טור) ואם השנים הבוררים יכולים להשוות עצמן י"א דא"צ לברור שלישי (מהרי"ו סי' י"א) וי"א דאם הנתבע אומר שהוא יברור שנים והתובע ג"כ שנים והם יבררו חמישי הרשות בידו דכל זמן שהדיינים רבים יותר יוצא הדין לאמתו (רמב"ן בפירושו לתורה):
[If] one of the litigants said,1e., if it so happened that this was the wish of the litigants. In other words, the present ruling is not meant to teach that such is the case in the first instance. For otherwise, three laymen or one authoritative Judge suffice — M.E. Cf. supra § 3, 1, notes. Furthermore, this ruling has reference only to a case where the litigants insist on resorting to law, but where they submit their case to arbitration, and each party chooses one Judge, the selected Judges cannot nominate a third Judge without the consent of the litigants, the reason being that arbitration does not require three — ShaK, N.B. cited in P.Tesh. Nowadays it is the accepted custom that even in a case of strict law the two litigants may choose the third Judge — A.H. 'Let So-and-so act as Judge for me,' and his fellow-litigant said,1e., if it so happened that this was the wish of the litigants. In other words, the present ruling is not meant to teach that such is the case in the first instance. For otherwise, three laymen or one authoritative Judge suffice — M.E. Cf. supra § 3, 1, notes. Furthermore, this ruling has reference only to a case where the litigants insist on resorting to law, but where they submit their case to arbitration, and each party chooses one Judge, the selected Judges cannot nominate a third Judge without the consent of the litigants, the reason being that arbitration does not require three — ShaK, N.B. cited in P.Tesh. Nowadays it is the accepted custom that even in a case of strict law the two litigants may choose the third Judge — A.H. 'Let So-and-so act as Judge for me,' — then these two Judges each of whom were chosen respectively by the litigants nominate a third Judge;2Thus Yad, Sanhedrin VII, 1 according to reading of SeMaG (v. also Kesef Mishneh ibid.; B.Yos. a.l.). Derived from San. 23a in accord with the Sages. If the two chosen Judges are related to each other, the defendant has the advantage to compel the plaintiff to select another Judge (Isserles in Resp.) — R.A.Eger. and it is not necessary that the third Judge [should be nominated] with the consent of the litigants;3Thus Tur. Derived from San. ibid.: ‘No one disagrees that the (third) Judge must have the consent of his colleagues; they (R. Meir and the Sages) merely differ whether the consent of the litigants is (also) required. R. Meir holds that the consent of the litigants is also necessary; whereas the Sages maintain: only that of the Judges is necessary but not that of the litigants.’ The law follows the opinion of the Sages. Should the defendant agree that the selection of the third Judge should also be made with the consent of the litigants, it is permissible (v. Bertinoro San. ibid., and cf. comments of Tosaf. Yom Tob) — P.Tesh. And even according to Lebush that such a procedure will delay the execution of justice (עינוי הדין) for the defendant may always disagree with the plaintiff’s choice, — yet, if the plaintiff agrees that the third Judge be chosen with the consent of the contending parties, Lebush will also agree that it is permissible — P.Tesh. and all three of them [the Judges] try them [the litigants],4Yad ibid. in accord with San. ibid. that the meaning of the words, ‘Each party chooses one’ refers not to a Court of Law but to one Judge. Hence, each party chooses one Judge and they jointly nominate a third. for in this wise a true judgment will be rendered.5San. ibid.: ‘Since each litigant chooses a Judge and jointly they nominate a third, a true judgment will be rendered.’ Even if the one [Judge] whom the litigant chose was a distinguished and ordained scholar, he cannot compel his fellow-litigant that he [the latter] be tried by this [distinguished Judge], but he [the fellow-litigant] too, may choose whomever he desires [to act as Judge on his behalf].6Whether superior or inferior to the other in learning — M.E. The Judge must, however, be versed in law or must be a recognized Mumḥeh. Otherwise, he may be rejected (B.Yos. citing R. Yeruḥam) — ShaK. This ruling is derived from San. ibid.: ‘R. Papa stated: It has reference even to Mumḥin (i.e., the debtor or defendant may reject the Judge chosen by the creditor or plaintiff even if he is a Mumḥeh), e.g., the Courts of R. Huna and R. Ḥisda (their Courts were close to each other), for he (the defendant) can say: Am I troubling you?’ This applies where one litigant persuaded the Mumḥeh to act in the capacity of an ‘arbiter’ (בורר), but if he said to his fellow-litigant, ‘Come, let us have our case tried before the city Sage, the latter is not designated an ‘arbiter’ and is the Judge for both parties — M.E. Although the law is that an individual Mumḥeh may judge alone against the will of the defendant, it applies only where the latter refuses to appear for trial, but where he states, ‘I wish to select another Judge too, he is obeyed — BaḤ, ShaK contra M.E. Gloss: For since each party chooses a Judge, the litigants obey them, and the Judges, too, will each examine [points] in favour of the one who chose him whereever it is possible [to do so] from the legal point of view,7Thus Rashi San. ibid. s.v. יצא and Asheri. Cf. also Y. San. III, 1(21a): ‘Because he has chosen him as arbiter, he will advocate his (client’s) claim.’ Since they both feel that their rights are equally secure. and the third [Judge] hears the [legal] arguments of both of them [and compromises between them] and [thus together] they render a true verdict.8Tur — G. All the laws of Judges apply equally in the case of arbiters — P.Tesh. If they [the two Judges] cannot reach an agreement in nominating the third Judge, [then] the town leaders appoint for them a third [Judge]. And if there are no leaders in the town, [then] the plaintiff may go before three [Judges] and they compel the defendant to be tried before them.9Asheri to San. ibid. For just as in the case of a Court of three or one authoritative Judge, the law is that they may try cases even against the will of the defendant where he refuses to appear before the Court (cf. San. 5a, Tosaf. s.v. דן), so too, the leaders or the representatives of the town enjoy the same status (v. supra § 2 and notes). And likewise if the defendant deliberately selects a Judge who is unworthy in order that he sit in judgment with a worthy Judge, they may compel him to be tried before three Judges as has been explained supra § 3, [par. 4], or that he select a worthy Judge.10Tur — G. San. ibid.: ‘The pureminded of Jerusalem used to act thus … they would not sit in judgment unless they knew who was to sit with them.’ But if the plaintiff deliberately chooses an unworthy Judge, the defendant may say to him, ‘I will not answer your pleas until you choose a worthy Judge’ — M.E. However, if the two arbiters can reach an harmonious decision [in the case], some say that they are not required to nominate a third [Judge].11MaHaRIW s. 11 — G. Since the parties accepted them, it is sufficient. And where the contesting parties agreed to be tried by them, the law is that even an unauthoritative Judge may try the case (v. San. 5a, Tosaf. s.v. דן). Cf. also San. 6a. Hence, it follows that even in the first instance where the Judge was accepted, his judgment is valid, and much more so where two Judges were accepted, each by one of the parties. Consequently, we assume that the intention of the litigants is that if the two selected Judges reach a harmonious decision, there is no need for them to choose a third Judge. TaZ (followed by A.H.) disagrees with this ruling. Some say that if the defendant states that he will select two [Judges] and [that] the plaintiff should likewise select two [Judges], and they [the selected Judges] will nominate a fifth [Judge], — he is permitted to do so, for as long as there is a greater number of Judges, a true judgment will be rendered.12N. to Deut. I, 12 — G. Cf. Y. San. III, 3(21a).
כותבים פלוני בירר את פלוני ופלוני בירר את פלוני וכל זמן שלא כתבו יכולין לחזור בהם ומשכתבו אין יכולין לחזור בהם לפיכך אין כותבין אלא מדעת שניהם ושניהם נותנים שכר הסופר: הגה וה"ה אם קנו מידו (נ"י פ"ק דב"מ) וי"א דמשטענו בפניהם אינם יכולים לחזור אף ע"פ שלא כתבו (שם בשם הירושלמי) ונ"ל דבמקום שאין דרך לכתוב פלוני בירר פלוני וכו' משטענו בפניהם א"י לחזור לכ"ע וכ"מ שא"י לחזור לא יוכל ג"כ לומר שיוסיפו הדיינים (ר"י נט"ו ח"ג):
A document is prepared [in which it is stated], 'So-and-so chose So-and-so [to act as Judge] and So-and-so chose So-and-so [to act as Judge].' And so long as they did not write [this document], they [the contesting parties] may retract, but once they prepared [this document], they cannot retract.13Thus Tur. Derived from Mishna B.M. 20a: ‘If one found documents of Berurin,’ which is explained in Gemara ibid.: ‘What is meant by documents of Berurin? — Here (in Babylon) they explain it as records of pleas (minutes of Court proceedings). R. Jeremiah stated: (Documents referring to the choice of arbiters, stating): This party selected one (Judge) and that party selected another (Judge).’ , also B.B. 168a. The present ruling follows the interpretation given by R. Jeremiah. Cf. also Y.M.K. III, 3(82a) bot. The choice of the Judges was recorded by the contesting parties so that they should not be able to retract. Thus Rashi, Asheri and other Codifiers. Therefore, they do not write [this document] save with the consent of both parties,14e., since they cannot retract after the document is prepared, therefore … For the principle is that ‘one may not act to another’s disadvantage in his absence’ אין חבין לאדם שלא בפניו· Hence, their approval is necessary — Perisha, M.E. and both pay the scribe's fee.15Mishna B.B. 167b: ‘Documents referring to the choice of arbiters … are not written execept with the consent of both parties and both pay the fee (for the preparation of the documents).’ Gloss: And likewise if they made [each party] obligate himself by means of a Kinyan.16N.Yos. to B.M. I — G. San. 24b: ‘After one enters into an agreement by means of a Kinyan, nothing (can be done to cancel the agreement).’ For it is then regarded as the conclusion of the trial. Cf. Y. San. III, 3(21a): ‘Once the trial is concluded no one may retract.’ Some say that once they stated their pleas before them [the Judges], they cannot retract even if they did not prepare a document.17N.Yos. on the authority of Y. — G. Y. San. III, 4(21a): ‘If one accepted to be tried before two, he may retract; before three, he may not retract.’ This is explained by N.Yos. and Asheri to B.M. ibid. to mean that the parties had already stated their pleas before the Judges. Hence, if before three, they cannot retract. And it seems to me that in a locality where it is not the practice to prepare a document [in which it is stated], 'So-and-so chose So-and-so etc., [then] once they [the contesting parties] stated their pleas before them [the Judges], all agree that neither of them can retract.18 infra § 80, 2, Gloss. And where one cannot retract, one likewise cannot state that the number of Judges should be increased.19Once the pleas have been stated the trial is considered as concluded and the litigants have no right to request that the Judges be increased so that a new trial take place. Thus according to Y. ibid. , W.G. and Be’er Eliyahu a.l. However, if all the Judges agree to increase the number of the Judges, they may do so even without the approval of the contesting parties (Beth Ya‘akob) — P.Tesh. Tummim writes that the fact that the litigants have no right to increase the number of the Judges has reference only to a case of arbiters (בוררים), but where they are tried by the appointed Court of Law in the town, they may demand that the number of Judges be increased, even after the litigants have presented their pleas before the Judges. Cf. infra § 18.
אין כופין את האדם שיתן טענותיו בכתב ואין לדיין לקבל טענות בכתב אלא ישמעו טענותיהם מפיהם ויצוו לסופר לכותבם ולא יכתבו אלא מדעת שניהם ושניהם נותנים שכר הסופר: (מיהו אם ב' בעלי דינים רוצים לטעון בכתב הרשות בידן וכל מה שכותבין אינן יכולים לחזור בהן) (נ"י פ' גט פשוט) (ע' לקמן סוף סימן פ'):
We do not use means of coercion against a man that he submit his arguments in writing,20e., to his fellow-litigant. Not only must we not compel one litigant to submit his arguments in writing to his fellow-litigant because he may state: ‘You (i.e., the fellow-litigant) appear to me like a lurking lion’ (B.B. 168a), i.e., ‘I have no confidence in you,’ for you merely wish to acquaint yourself with my arguments in order to prepare or have someone else prepare counter-arguments against me; but even the Court of Law cannot force any litigant to submit to them the pleas in writing even if he had already stated his pleas before them, because once the arguments are recorded, the litigant can no longer alter them (N.Yos. to Mishna B.B. 167b. Cf. supra n. 15) — M.E. nor may a Judge receive [the arguments of the litigants] in writing,21e., where the litigants have not yet stated their arguments orally. Thus RIBaSh cited by B.Yos. For then one litigant will have to go to the trouble and expense of obtaining a copy of the other litigant’s arguments in order to present his counter-arguments in writing. Furthermore, the law is that the Judges must hear the arguments orally, for then it is more feasible for them to detect any false statements in the pleas which would not be the case were the litigants permitted to present their cases in prepared written documents, phrased very carefully (and in some instances written by another party) in order to influence the Court on their behalf — M.E. but they [the members of the Court of Law] should hear the arguments orally and they22e., the Judges instruct the scribes to record the arguments after they were heard orally — M.E. instruct the scribe to set them [the arguments] down in writing and they should not write save with the approval of both parties and both pay the scribe's fee.23So as not to be able to retract subsequently. , supra nn. 14 and 15. However, if both litigants desire to present their pleas in writing, they have a right to do so,24Since they agree and have no apprehension lest one will record false statements — M.E. and whatever they set down in writing, they cannot retract.25Even if they advance a plausible explanation (אמתלא) for retracting the arguments (N.Yos) — M.E. Cf. supra § 7, n. 32 end.
אם בא לפסול דיין שבירר חבירו בגזלנות או בפיסול משפחה אין שומעין לו אפי' ע"א מעיד כדבריו:
If he [the litigant] comes forward to disqualify the Judge that his fellow [-litigant] chose on a charge of robbery or on grounds of family unfitness, his testimony is not accepted, even if [another] witness supports his testimony.26Mishna San. III, 1(23a): ‘Each party may disqualify the Judge chosen by the other. So R. Meir. But the Sages say: When does this apply? Only if they can bring proof that they are kinsmen or (otherwise) ineligible; but if they are eligible or recognized by the Court of Law as Mumḥin, they cannot be disqualified. Each may disqualify the other’s witnesses. So R. Meir. But the Sages say: When does this apply? Only if they can bring proof that they are kinsmen or (otherwise) ineligible; but if they are eligible they cannot be disqualified.’ Gemara ibid. 23b: ‘R. Eleazar stated: This (i.e., the part of the Mishna which deals with disqualifying the witnesses) applies where he (the litigant) together with another person came to disqualify them (Alone he would not have the authority to declare the witnesses ineligible). But does he have the authority to do this, the fact being that he is an interested party (consequently only one witness is left and the law is that one witness does not have the authority to disqualify the testimony of two)? — R. Aḥa b. R. Ika said: (Yes;) e.g., where the qualification of one of the witnesses was contested. Of what nature was that alleged disqualification? Shall we say a disqualification based on a charge of robbery? But does he have the authority to do this, the fact being that he is an interested party? Hence, the disqualification must be based on alleged family blemish (descent from slaves whose testimony is inadmissible or in the case of a Judge who is descended from converts. Cf. supra § 7 beg.). R. Meir maintains that they (the litigant and the one who substantiates his testimony) testify against the man’s family blemish, while he (his fellow-litigant) automatically becomes disqualified; and the Sages contend that after all said and done he is still an interested party.’ The law follows the opinion of the Sages. Although the above discussion refers only to that part of the Mishna that deals with the disqualification of witnesses, the same principle applies to Judges adopted in the present ruling.
אם בירר הנתבע דיין היודע עדות לתובע דוחקים אותו לברור דיין אחר:
If the defendant chose a Judge who has something to testify for the plaintiff, they compel him to choose another Judge.27Hag. Maim. to Yad, Sanhedrin XXIV, 3 on the authority of R. Meir of Rothenberg. , Y.San. I, 2(18c); Y. R.H. III, 1(58d): ‘R. Huna had something to testify for a certain person. When the plaintiff went and brought his action before (R. Huna), (the defendant) denied (the claim) of his (fellow-litigant). R. Samuel b. R. Isaac said (to the defendant), Is it because you are aware that R. Huna is a distinguished personage (and it is not dignified for him to go and testify for the plaintiff before another judicial court) that you deny the (plaintiff’s claim)? What will you do if he goes and testifies against you before another Court of Law? Said R. Huna to (R. Samuel b. Isaac), May this be done (i.e., to withdraw from the case and then go and testify before another court)? — Yes, he replied. R. Huna then dismissed himself from that case (because a witness cannot act as a Judge. , supra § 7) and went and testified before another Court of Law.’ Cf. Mareh ha-Panim a.l. and cf. also Hag Asheri to Git. I beg., where the above text of Y. is cited. However, if the plaintiff chose a Judge who has something to testify for the defendant, the latter does not have to respond to the plaintiff’s claim until he chooses another Judge — A.H. If one of the litigants who is a powerful person refuses to be tried by the Court of Law that was chosen and other authoritative Judges refuse to deal with the case, the law is that he is compelled to be tried by the first Court that was chosen (MaHaRIK) — M.E.
אם הוצרכו הדיינים לשאול דבר מב"ד הגדול כותבין ושולחין וב"ד הגדול מודיעים להם דעתם והם דנין אותם דליכא למימר שיפסקו בית דין הגדול עליהם את הדין דהא בעינן שיהיו בעלי הדין עומדים לפני הדיינים: (ויכולים לשאול למי שירצו הברורים ואין צריכים דעת בעלי דינים בזה) (הגהות אשירי בד"מ בשם א"ז):
If it was necessary for the Judges to consult the Supreme Court, the matter is recorded and sent on [to them] and the [members of the] Supreme Court communicate to them [the inquiring Judges] their opinion and they [the inquirers] judge them [the litigants],28N.Yos. Derived from San. 31b: ‘If it is necessary to ask advice from … (the Supreme Court in Jerusalem), the matter is recorded and sent on to them.’ The reply is forwarded to the Judges and not to the litigants. for it cannot be said that [the members of] the Supreme Court should give their verdict because we require that the litigants stand before the Judges [and state their pleas].29Sheb. 30a: ‘When it states: between whom the controversy is (Deut. XIX, 17 — And the two men between whom the controversy is shall stand before the Lord, before the priests and the Judges), the litigants are already referred to.’ Cf. also supra § 7, n. 14. , however, infra § 18, 6 where it is stated: The Court of Law may render decisions in civil cases in the absence of the litigant’ which contradicts the present ruling. ShaK (cf. also M.E. infra), therefore, removes this apparent difficulty by explaining that infra we deal with cases where the litigants had already presented their arguments before the Court where the decision may be given even in the absence of the litigants; whereas in the present ruling we deal where the litigants had not yet stated their pleas or arguments before the Judges. The arbiters can ask advice from whomever they wish, and the approval of the litigants is not necessary in this [matter].30Hag. Asheri to San. III on the authority of Or Zarua‘ — G. Derived from the ruling stated supra par. 1, viz., that the two arbiters chosen by the litigants nominate the third Judge without the approval of the contesting parties — M.E.
אם ביררו להם עשרה אנשים שידונו להם בין בדין בין בפשרה ושאם לא יסכימו לדעת אחת ילכו אחר הרוב ונסתלק א' מהם ואינו אומר דעתו או שאומר איני יודע אפי' הסכימו התשעה כולם לדעת אחת אינו כלום: (ועיין לקמן סי' י"ח סעיף א'):
If they [the litigants] chose for themselves ten persons [so] that they render a verdict for them on [the basis of] strict law or arbitration and that if they do not unanimously agree [in their decision] they should follow the majority31This provision must be set down in writing at the outset. Otherwise the law is that in a settlement of arbitration we do not follow the majority (v. supra § 12, 18, n. 44). However, in a case where they resort to law we follow the majority unless one of the Judges was undecided (v. infra § 18, 1) — M.E. According to R.A.Eger since resorting to law or submitting to arbitration were mentioned together, then even if this provision was not set down in writing, we follow the majority even in a settlement of arbitration. and one of them [the chosen persons] withdrew [from the case] and does not state his opinion32Mishna San. 29a: ‘If two (Judges) said, He is not guilty, and one said, He is guilty, he is not guilty; if two said, He is guilty, and one said, He is not guilty, he is guilty; if one said, He is guilty and one said, He is not guilty, or two declared him not guilty or two declared him guilty, while one said, I do not know, the number of Judges is increased.’ Gemara ibid. 30a: ‘How is (the verdict phrased (in a case where the Judges disagree)? — R. Joḥanan said: (The defendant) is not guilty. Resh Lakish said: So-and-so (of the Judges) declare him not guilty; So-and-so declare him guilty. R. Eleazar said: The defendant has been acquitted by their (the Court’s) verdict. Wherein do they differ? … They differ as to whether they must pay his share (in case of an erroneous decision. Cf. ibid. 6a, 33a) in addition to their own. According to the view (that the verdict is worded): He is not guilty, they are held responsible for payment (in full because their opinion was adopted); but according to the opinion (that the wording is): So-and-so (of the Judges) declare him not guilty and So-and-so declare him guilty, they are not obliged to pay (the share of the dissenting Judge. Their opinions are specified separately to indicate that the final verdict was given only by two — Rashi). But even according to the view (that the verdict should be worded): He (the defendant) is not guilty, why should they be held responsible for payment (in full)? Let them say to him (the third Judge): Had you not sat in judgment with us, the verdict would not have been passed at all!’ Hence, we see that if the dissenting Judge would have dismissed himself from sitting in judgment after noticing that the other Judges have erred, or had he stated, ‘I do not know,’ then the entire trial would have no result at all. Therefore, by stating his view he was the cause of the other Judges reaching a decision in the case and should be held responsible for his share of compensation. The same principle operates even where the number of the Judges would be more than three. or that he states, 'I know not [how to decide the case],'33And is then regarded as non-existent, i.e., as if he withdrew from the case. , San. 17a, 5b. [then] even if nine [of them] unanimously agreed, [the decision] has no legal consequences.34 infra § 18, 1 — G. For it might have been possible that were the Judge who stated, ‘I do not know how to decide’ to advance a dissenting opinion, the others would have concurred with him. Should however, the one who withdrew from the case appear subsequently and state that he agrees with the view of the other Judges, the decision is considered valid — P.Tesh. The present ruling is found in RaShBA, Resp. cited by B.Yos. a.l.