אם אחד מבעלי דינין אומר נלך לבית דין הגדול ודין האומר מאיזה טעם דנתוני ובו ח סעיפים:
שנים שנתעצמו בדין זה אומר נידון כאן וזה אומר נעלה לב"ד הגדול כופין אותו ודן בעירו ואם אמר כתבו ותנו לי מאיזה טעם דנתוני שמא טעיתם כותבים ונותנים לו ואח"כ מוציאים ממנו ואם הוצרך לשאול דבר מב"ד הגדול כותבים ושולחים ושואלים ודנין להם בעירם כפי מה שיבא בכתב ב"ד הגדול ושני בעלי דינים יפרעו שכר השליח: הגה מיהו אם א' מבעלי הדינים או הדייני' רוצה לשלוח למרחקים ויש חכם סמוך להם הראוי לדון שולחים לסמוך אע"פ שהרחוק יותר חכם דלאו כל כמיניה לגרום הפסד לבעל דין להרבות שכר השליחות וכ"ש אם חכם אחר בעירן הראוי לדון (מרדכי ס"פ זה בורר) ואם שני חכמי' סמוכי' בשוה הולכין אחר הגדול (נ"י ר"פ זה בורר) במה דברים אמורי' בשאר הדינים שזה טוען וזה טוען או כשאמר המלוה נידון כאן והלוה אומר נלך לב"ד הגדול אבל אם אמר המלוה נלך לב"ד הגדול כופין את הלוה ועולה עמו וכן אם טען זה שהזיקו או גזלו ורצה הטוען לעלות כופין ב"ד שבעירו את הנטען לעלות עמו וכן כל כיוצא בזה בד"א כשהיו עדים או ראיה לנגזל או לניזק או למלוה אבל טענה רקנית אין מחייבין את הנטען לצאת כלל אלא נשבע במקומ' ונפטר וכן הדין בזמן הזה שאין שם ב"ד הגדול (וי"א דב"ד חשוב שבכל דור ודור לפי מה שהוא מקרי ב"ד הגדול) (טור) אבל (אם) יש מקומות (באותה מדינה) שיש בהם חכמים גדולים מומחים לרבים ומקומות שיש בהם תלמידים שאינם כמותם אם אמר המלוה נלך למקום פלוני שבארץ פלוני לפלוני ופלוני הגדול ונדון לפניו כופין את הלוה והולך עמו: הגה אם יש (לתובע) עדים או ראיה ונראה לב"ד שבעירו שיש ממש בטענותיו אבל בלא"ה אין כופין אותו לילך עמו (טור) וי"א דלטענות נלך לב"ד הגדול אין חילוק בין תובע לנתבע וכל א' יכול לכוף חבירו לילך עמו (טור בשם ר"ת) וכל זה מדינא אבל כבר נהגו בזמן הזה שכ"ז שיש ב"ד בעיר אין א' יכול לכוף חבירו שילך עמו לב"ד אחר (מהרי"ק שורש כ"א) כי אין לנו עכשיו ב"ד הגדול או בית הועד ולכן לא יוכל לדחותו אבל יכול לדחותו שלא לדון עמו עד יום שלישי ומיד יבררו דיינים אבל אכסנאי שתובע לבני העיר או ב' אכסנאים צריך לדון עמו מיד ולא יוכל לדחותו (מרדכי בשם מהר"ש) וכן בן העיר שתובע לאכסנאי בכ"מ שימצאנו ויש שם ב"ד מכריחו שם לדין (מהרי"ק שורש י"ד) וכל זה כשיש ב"ד בעירן אבל אם אין ב"ד שם כל א' יוכל להכריח חבירו שילך עמו לב"ד לדון עמו (מרדכי ס"פ זה בורר ופסקי מהרא"י סי' ס"ה) התובע צריך לילך אחר הנתבע אם הוא בעיר אחרת אף ע"פ שבעיר התובע הב"ד יותר גדול (מהרי"ק שורש א') ואפי' היה לנתבע מעות בפקדון (בעיר התובע) או [בעיר] אחרת אא"כ יכול לעכב מעותיו בעירו אז צריך להודיע לנתבע ואז צריך לדון במקום שמעותיו שם (ת"ה סי' ש"ה ופסקיו סי' ס"ב) וע"ל סי' ע"ג כתבתי אימת יכול לעכב מעותיו. אב שיש לו תביעה על בנו צריך לילך הבן אע"פ שהוא הנתבע אחר אביו כמו שנתבאר (בי"ד סי' ר"מ) עשיר מוחזק ואלם בעירו מוציאין אותו לדור בעיר אחרת אע"פ שהב"ד שבעירו יותר גדול (ב"ז סי' תי"ח): If both parties to a lawsuit are stubborn, one saying, 'Let us go to law here,' and the other saying, 'Let us go to the Supreme Court of Law,'1Yad, Sanhedrin VI, 6 adds: ‘Lest these Judges err and exact payment illegally.’ they compel him2The one who demands to go to the Supreme Court of Law. and he attends the Court in his home town.3Yad ibid. Derived from San. 31b: ‘R. Safra said on the authority of R. Joḥanan: If two litigants are in obdurate dissension regarding (the venue of) a lawsuit, one saying, Let us go to law here, and the other saying, Let us go to the place of Assembly, they compel him (the one who demands to go to the place of Assembly) and he attends the Court in his home town.’ According to Maim. (Yad ibid.) followed here by Caro no distinction is made between the Supreme Court of Law (Beth Din ha-Gadol) and the place of Assembly (Beth ha-Wa‘ad, a meeting place for scholars). Tosaf. (B.K. 112b, s.v. מצי); Asheri; Tur and RaShaL state that this ruling has reference only to the place of Assembly, viz., that only when the plaintiff demands of the defendant to go to the place of Assembly, the latter must submit but not if the defendant demands it (even if he offers to defray the travelling expenses. Thus N). However, if the defendant demands to have the case tried by the Supreme Court of Law, and needless to say if the plaintiff makes this demand, he is obeyed. Cf. also Isserles anon — M.E., ShaK. Cf. supra § 3, 1, n. 11 and B.K. 112b. And if he stated, 'Write down the reasons for your verdict and give [them] to me, for you may have erred,' — they write [them] down and give [them] to him4Yad ibid. Derived from San. ibid.: ‘If he (the litigant who was compelled to attend Court in the plaintiff’s home town) stated: Write down the reasons for your decision and give them to me (in order to establish the legality of the verdict), they write them down and give him the document.’ Only the arguments of the litigants and the verdict are recorded. For only when the litigant doubts the impartiality of the Judge, the latter must inform him the grounds of his verdict (B.M. 69a-b). , infra par. 4, Gloss. The Court must state in the written verdict that they give permission to examine the verdict. Otherwise, it is forbidden to judge a case where the verdict had already been given by others because of the principle that ‘one Court of Law is not careful in its examination of a case already tried by another Court of Law’ (בי דינא בתר בי דינא לא דײקא), v., Yeb. 106a; B.B. 138b: ‘We are not afraid of (i.e., we do not provide against) an erring Court of Law.’ Needless to say that a written verdict is given only by a smaller Court. The reason why Isserles does not explain this here (viz., that only the arguments and the verdict are recorded) is simply because here we deal with a case where one was compelled to attend the local Court. Hence, it is understood that the defendant has a right to ask for this document — M.E. However, where the defendant was not compelled to be tried, but appeared willingly, then even a smaller Court is not required to give the verdict to the litigant in writing even for the purpose of referring the case to the Supreme Court of Law — A.H. and afterwards they exact payment from him [in accordance with their verdict].5Payment must be made forthwith, and if he subsequently produces written evidence from the Supreme Court wherein it is stated that the local Court erred, they must return his money. , infra par. 4, Gloss and D.M. a.l. — M.E. Cf. B.B. 41b: ‘R. Kahana retorted: I can bring you a letter from the West (i.e., the Land of Israel, from the Supreme Court) that the Halachah does not rest with R. Simeon b. Eleazar. Said R. Judah to him: (My verdict stands) until you produce it.’ Thus we see that the verdict is enforced immediately. If A and B appeared for trial and the Judge required B to take an oath in order to disprove A’s claim, whereupon B demands that the Judge give him a document stating the grounds on which he is required to take an oath, the law is that B is legally justified in his demand. Hence, they give him the document and exact payment from him forthwith. Needless to say that we deal here with a case where the defendant was compelled to appear in the local Court — P.Tesh. If it was necessary to consult the Supreme Court of Law, they set down [their inquiry] in writing and send it on and seek advice [from them],6, supra § 13, n. 28. This means that even if the members of the local Court are unversed in the laws of adjudication and they must consult the Supreme Court, nevertheless, the defendant cannot argue that since they are unversed in the laws and in order to avoid unnecessary expenses in sending messengers to the Supreme Court, the litigants should go directly to the Supreme Court — M.E. and they [the inquiring Court of Law] try them [the litigants] in their own town according to the [ruling contained] in the document of the Supreme Court of Law,7, supra § 13, 6, n. 15. and both litigants pay the messenger's fee.8Cf. Mishna B.B. 167b. The reason being that both parties are vitally interested in having the matter clairified. Consequently, they must share the costs. , Be’er Eliyahu. Gloss: However, if one of the litigants or the Judges desires to send [the inquiry] to a distant country while there is a scholar close by them who is worthy to try the case, — [then] they send [the inquiry] to the one close by, although the one who is at a distance is a greater scholar, for he [the litigant] has no authority to be the cause of a loss to his [fellow-] litigant, [viz.,] to increase the fee for the message [dispatched], and so much the more if there is another scholar in their town who is worthy to adjudicate [the case].9Mord. to San. III end — G. Derived from San. 23a in accord with R. Papa’s interpretation (v. text supra § 13, n. 6) according to which the debtor must not put the creditor to additional trouble (and similarly additional expenses. , Be’er Eliyahu a.l.) and likewise in the case of two litigants where there is a local authority available. Cf. also Y. San. III, 2(21a): ‘R. Eleazar stated: If one (litigant) demands to attend Court in Tiberias and the other (litigant) demands to be tried in Sepphoris (where there was a more renowned Court), we comply with the request of the one (who wishes to be tried) in Tiberias … R. La said … this (has reference only to a case) where they dwell in the same city (according to others ‘the same distance’ from both cities), i.e., from here (the locality of the litigant) to here (Tiberias) there are nine Mils and from here (the locality of the other litigant) to here (Sepphoris) there are (also) nine (Thus version of N.Yos.) Mils.’ Hence, if Tiberias would be farther away than Sepphoris the litigant cannot be compelled to be tried in Tiberias despite the fact that it possesses a more renowned Court of Law. If two Scholars are close by at an equal [distance], we accept as authority the greater one.10N.Yos. to San. III beg. — G. Derived from Y. San. ibid. , previous note. When does this apply?11That neither litigant may be compelled to attend the Supreme Court of Law. — In connection with other laws, [viz.,] where one [litigant] is a claimant and the other [litigant] is [also] a claimant, or where the creditor says,12Thus M.E. Cur. edd. have ‘said.’ 'Let us attend Court here,' and the debtor says, 'Let us go to the Supreme Court of Law;'13But if the creditor is going there in any case he may be compelled to be tried by the Supreme Court — M.E. and Nethiboth contra ShaK who on the authority of BaḤ rejects this and rules that the creditor may compel the debtor to be tried by the local Court even if the creditor has to be in the vicinity of the Supreme Court in any case. The present ruling is derived from San. 31b: ‘When R. Dimi arrived (from the Land of Israel), he stated on the authority of R. Joḥanan: One who forces his fellow to stand with him for trial (Thus Yad Ramah), and one of them (the more powerful one) says, Let us attend Court here, while the other says, Let us go to the place of Assembly (v. supra n. 3), he is compelled to go to the place of Assembly. R. Eleazar said in his presence, Rabbi! One who has a claim against his neighbour in the amount of a Maneh, must he expend another Maneh in addition to the (first) Maneh (in travelling expenses)? (Certainly not), but he is compelled to be tried (by the local Court) in his (the creditor’s home town.’ Ibid.: ‘Amemar said: The law is that he (the plaintiff) is compelled to go to the place of Assembly. Said R. Ashi to him: Did not R. Eleazar say, He (the defendant) must attend Court in his (the plaintiff’s) home town? — This applies only where the debtor demands of the creditor (to be tried at the place of Assembly); but if the creditor (demands this, the debtor must yield, because) ‘The borrower is servant to the lender (Prov. XXII, 7).’ We thus see that only where the reason ‘the borrower is servant to the lender’ applies that we compel the debtor to go to the place of Assembly if such is the creditor’s wish; but where this reason is not applicable, e.g., where both litigants are claimants, they are tried in the local Court. This follows Maim. and Caro’s interpretation of place of Assembly (v. supra n. 3). but if the creditor said, 'Let us go to the Supreme Court of Law,' — they compel the debtor and he goes up with him [the creditor].14For only in the case where both are claimants we do not obey the wish of the one who demands to be tried before the Supreme Court (cf. the expression שנים שנתעצמו in San. ibid.). And this applies both to a claim regarding a loan, robbery or damages, since they are both claimants concerning aught which is not in the possession of either of them. In short, it is not firmly established that one of them is a defendant (נתבע), but both are claimants (זה טוען וזה טוען), in which case we do not yield to the demands made by the one who says, ‘Let us be tried by the Supreme Court.’ However, where the litigants fall into the category of a claimant (תובע) and a defendant (נתבע), then we submit to the demand of the claimant — TaZ. Cf. M.E. Likewise, if one party claimed that one injured or robbed him and the claimant wishes to go up [and have the case tried by the Supreme Court of Law], [then] the Court of Law that is in his town compels the defendant to go up with him, and so too, in all analogous cases.15Yad, Sanhedrin VI, 7. For in these cases too, the defendant is a servant of the claimant until he pays for the damages or establishes that he was not the cause of the damages. Cf. San. 31b regarding the message that was sent to Mar ‘Ukba in Babylon by the Court of Israel with respect to ‘Ukban, the Babylonian, who complained that his brother Jeremiah wronged him, and instructions were given to ‘Ukban to try him in Babylon, and should the latter not accept the verdict, to see to it that he appears before the Court in Tiberias. Thus we see that not only in the case of a creditor and debtor may we compel the defendant to be tried in the Land of Israel before the Supreme Court, but also in all other cases of injury. Thus also Ket. 16b, Tosaf. s.v. כותבין; Asheri to San. ibid. Cf. Ket. 41b; B.K. 15b. N.Yos., however, holds that the principle ‘the borrower is servant etc.,’ applies only to loans but not to other types of injury. [Furthermore,] when does this apply?16That the defendant may be compelled to attend the Supreme Court of Law. — When the one robbed or the one who was injured or the creditor produce witnesses or proof [to substantiate their claim],17So that not everyone should make a claim against his fellow and demand to be tried before the Supreme Court of Law in order that the defendant who will have to lose time and money by going there be forced to make a settlement with the claimant. but [where the claimant puts forth] an unfounded claim, we do not require the defendant to leave at all save that he takes an oath and is free [from payment].18Since the principle the borrower is servant to the lender does not apply because we have no proof that he is a borrower. So too, is the law nowadays when no Supreme Court of Law exists there.19Yad, Sanhedrin VI, 9. Derived from San. 32b: ‘Our Rabbis taught: Justice, justice shalt thou follow (Deut. XVI, 20) means, Follow a renowned Court of Law, e.g., (follow) R. Eliezer (b. Hyrkanus) to Lydda, R. Joḥanan b. Zakkai to Beror Hail.’ Some say that an eminent Court of Law in every generation according to whatever standing it may have, is regarded as the Supreme Court of Law.20Tur — G. Isserles informs us here that even according to Maim. who makes no distinction between the Supreme Court of Law and the place of Assembly (v. supra n. 3) refers in his ruling to localities in the same province, because nowadays we have no power to compel one to leave one province and be tried in another province as was the case when the Supreme Court was in existence. This follows from the fact that Maim. does not employ the term מדינות (provinces) but rather מקומות (localities). Hence, Isserles adduces a dissenting opinion (Asheri, Tur) that even nowadays a renowned Court of Law (בית דין חשוב) has the same authority as the ancient Supreme Court. Consequently, one may be compelled to be tried in another province — TaZ. However, if there are localities in that province20Tur — G. Isserles informs us here that even according to Maim. who makes no distinction between the Supreme Court of Law and the place of Assembly (v. supra n. 3) refers in his ruling to localities in the same province, because nowadays we have no power to compel one to leave one province and be tried in another province as was the case when the Supreme Court was in existence. This follows from the fact that Maim. does not employ the term מדינות (provinces) but rather מקומות (localities). Hence, Isserles adduces a dissenting opinion (Asheri, Tur) that even nowadays a renowned Court of Law (בית דין חשוב) has the same authority as the ancient Supreme Court. Consequently, one may be compelled to be tried in another province — TaZ. wherein there are distinguished Scholars recognized as authorities by the public, and [there are also] localities wherein there are disciples who are not [as distinguished] as they, — [then] if the creditor stated, 'Let us go to a certain locality in a certain country to So-and-so, the distinguished personage, and attend Court before him, — [the law is that] we may compel the debtor [to submit to the creditor's demand] and he goes with him. Gloss: [Provided] if the claimant produces witnesses or proof [to substantiate his claim]21This is in accord with Maim. interpretation (v. Caro supra) that just as in the times of the Supreme Court of Law if the claimant had witnesses or other substantial evidence in which case he could compel the defendant to go with him to the Supreme Court of Law, so too, nowadays any authoritative Court of Law falls into the same category. Hence, the claimant may compel the defendant to be tried there — M.E. or22Thus M.E. , supra § 8, n. 2. it appears to the Court in his home town that there is substance in his claims, but otherwise he [the defendant] is not compelled to go with him.23Tur — G. And some say that [with respect to] claims put forth [by contesting parties], [viz.,] 'Let us attend the Supreme Court of Law,' there is no difference between a claimant and a defendant, and [the law is that] each one [of the litigants] can compel his fellow [-litigant] to go with him.24Tur on the authority of R. Tam. — G. , supra n. 3. All this is [applicable] from the legal point of view, but nowadays it is already the adopted custom that as long as there is a Court of Law in town, one [litigant] cannot compel his fellow [-litigant] to go with him to another Court of Law,25MaHaRIK Rt. 21 — G. Those who have burial plots reserved in that city are treated as coming under the jurisdiction of the local Court of Law (Isserlein) — M.E. for now we have no Supreme Court of Law or House of Assembly.26For the litigant who demands that he be tried before another Court of Law might be an impostor and deliberately wishes to postpone the case. Cf. B.K. 113a and supra § 5, n. 14. Therefore, [the defendant] cannot put him off; but he [the defendant] can put him off, [i.e.,] not to attend Court with him [the claimant] until the third day.27This applies only if he advances a plausible explanation for the postponement and has reference to people who live in country towns and depart from and return to the city, but not to those who live in the same city — M.E. , supra § 11, 1 and notes. However, they choose the Judges forthwith.28Judges are chosen forthwith so as not to delay the matter on the third day — M.E. But a [transient] lodger who makes a claim against the townspeople, or two [transient] lodgers [who sue each other, — the law is that] one must attend Court with him forthwith and one cannot put him off.29Mord. on the authority of R. Samson of Sens — G. , supra n. 26. , however, N to Deut. XIV, 18 who states that if the two litigants are from another city, they can each demand to be tried before the Court of Law in their own city which contradicts the present ruling. It seems therefore, that in the present ruling we deal with a case of two guests (transient lodgers) from two different cities. Hence, if we do not compel them to be tried here, it will be difficult for the plaintiff to find the defendant later; while N deals with two litigants who are both from the same city where this problem does not arise — P.Tesh. Likewise, a townsman who makes a claim against a [transient] lodger, — [the law is that] wherever he finds him and there is a Court of Law there, he [the townsman] may force him [the lodger] to attend Court in that place.30MaHaRIK Rt. 14 — G. All this is [applicable] when there is a Court of Law [available] in their home town, but if there is no Court of Law [available] there, each one [of the litigants] can force his fellow [-litigant] to go with him to a Court of Law to be tried with him.31Mord. to San. III end and Decisions of Isserlein s. 65 — G. The claimant must go after the defendant if the latter is in another city, although in the claimant's home town the Court of Law is more eminent,32MaHaRIK Rt. 1 — G. Derived from B.K. 46b: ‘R. Samuel b. Naḥmani said: Whence do we derive that on him (the claimant) that would exact aught from his fellow lies the burden of proof (onus probandi)? For it is said: If any man have any matter to do, let him come unto them (Ex. XXIV, 14), (which implies): Let him bring proof before them. But R. Ashi objected: Do we require a Scriptural verse to inform us this? Is this not founded on reason that he who feels sick goes to the physician?’ Likewise, in the present ruling the claimant who ‘has pains’ must go to the city of the defendant. and even [if] the defendant had money in [the form of a] bailment in the claimant's home town or in another town, unless he [the claimant] can retain33By means of a saisie-arret. This, of course, means that the claimant must be able to show that he has a right to seize the money, e.g., where he will not be able to take the defendant to law later or where there are other logical reasons for going through with the seizure (v. infra § 73, 10). If after the money was seized the defendant demands his money, he must then go to law with the claimant in the local Court where the money was seized — M.E. his [the defendant's] money in his home town, [and if so,] it is then necessary to inform the defendant thereof34And the expense for sending the message to the defendant must be defrayed by the claimant — M.E. and consequently, he [the defendant] must attend Court in the locality wherein his money [is found].35Terumath ha-Deshen s. 305 and in Decisions of same s. 62 — G. MaHaRIK writes that the custom has spread to seize the defendant’s money wherever it may be. Accordingly, it seems that the claimant may sue the defendant wherever he seized the money. Cf., however, Isserles infra § 73, 10 whence this inference does not follow — M.E. Although the defendant now becomes a claimant, nevertheless, he cannot appoint a mandatory (מורשה) to act on his behalf — P.Tesh. , infra § 73 [wherein] I wrote when [it is possible that] he [the claimant] can retain33By means of a saisie-arret. This, of course, means that the claimant must be able to show that he has a right to seize the money, e.g., where he will not be able to take the defendant to law later or where there are other logical reasons for going through with the seizure (v. infra § 73, 10). If after the money was seized the defendant demands his money, he must then go to law with the claimant in the local Court where the money was seized — M.E. his [the defendant's] money. A father [or mother]36Thus A.H. who has a claim against his [or her] son, [the law is that] the son, although he is the defendant, must go after his father [or mother] as has been explained.37Y.D. § 240, 8 — G. This applies even if the father has a claim against another person in the same locality where his son lives. The travelling expenses, however, must be paid by the father (Y.D. ibid.). Cf. Kid. 31a and Tosaf. s.v. וטורדו. The same ruling applies to a distinguised teacher (רב מובהק) and his disciple — P.Teah. A wealthy individual who is known as a stern person38e., all fear him and are partial towards him. Cf. supra n. 15 and § 13, n. 27 end. This applies equally whether he is the plaintiff or the defendant and despite the fact that the members of the local Court are very learned, — for we apprehend that because of his influential position they will not render an impartial verdict. However, if he is not a powerful person but is only highly respected in his city on account of his wealth or wisdom and his fellow-litigant demands to be tried in another city, then it depends upon the discretion of the Judges, viz., that if they really feel that they might be partial towards him, he may be compelled to attend Court in another city; if not, they try him here — P.Tesh., A.H. in his home town, is taken out to be tried in another city, although the Court of Law in his home town is more eminent.39Benjamin Ze’eb s. 418 — G.
אם הא' ת"ח ויודע לכתוב ראיותיו ושכנגדו עם הארץ אין לת"ח לכתוב בעצמו כששולחים ב"ד לשאול מב"ד הגדול אלא הדיינים יעתיקו אותם (ושניהם פורעים שכר הסופר (ריב"ש סי' תע"ה): If one [of the litigants] is a scholar and knows how to set down his evidence in writing and his opponent is an illiterate person, — [the law is that] the scholar should not write himself when they send on [the case] to seek advice from the Supreme Court of Law, but the Judges should make a copy of them [the arguments].40Cf. Sheb. 31a: ‘Whence do we know that if two come to Court, one (of the litigants) clad in rags and the other in a fine robe worth a hundred Manehs, they (the Judges) should say to him (the one who is well dressed), Either dress like him, or dress him like you (so that the Judges should not be biassed in your favour and the poorly clad person become not disheartened)? — Because it is said: From a false matter keep far (Ex. XXIII, 7). When they (the litigants) would come before Raba b. R. Huna, he used to say to them, Take off your fine shoes and come down for judgment.’ The same reasoning applies in the present ruling so that we should not be suspected of being biassed in favour of the scholar’s presentation of the case. Hence, the scribe should not mention the names of the litigants. However, the scholar should not write himself even if he does not mention his name because the Court might recognize the scholar’s handwriting. We do not apprehend that the Court in examining the arguments and the evidence submitted, even if the scholar’s name is not mentioned, will conclude that one of the litigants is a scholar since the latter’s presentation was lengthy and the other’s was brief, — because they will merely think that the illiterate person engaged a mandatory to write for him or that the Court itself wrote for him. Or it is quite possible that as long as the Court that is being consulted is not aware of the scholar’s name, no suspicion is entertained — M.E. And both [litigants] pay the scribe's fee.41RIBaSh s. 475 — G. , supra n. 8.
י"א שאם יש שני ת"ח בעיר אחת האחד גדול מחבירו יכול א' מבעלי דינים לומר לא אדון בפני זה אלא בפני זה ואע"פ שהוא קטן ממנו כיון ששניהם בעיר אחת: הגה ואם א' סילק עצמו מן הדין כמאן דליתא דמי ואם הזמינו השני ולא בא מנדה אותו (מהרי"ק שורש י"א] וכל מקום שאינו צריך לבוא לפניו לדון א"צ לחוש כלל להזמנתו וא"צ לבוא כלל (ב"י סי' י"א בשם התרומות): Some say that if there are two scholars [who reside] in the same city, one being more distinguished than his colleague, — [the law is that any] one of the litigants can say, 'I will not stand trial before his [scholar] but rather before that [scholar],' and [this holds good] even if he [the scholar before whom the litigant wishes to be tried] is less distinguished than he [the other scholar], since both [scholars] are in the same city.42Tur citing SeMaG. Derived from San. 23a: ‘R. Papa said: It may refer … e.g., to the Courts of R. Huna and R. Ḥisda. For he (the debtor) may say, Am I putting you to any trouble?’ This means that although the borrower is servant to the lender and cannot put the creditor to trouble in choosing the locale of judgment, yet, when the two Courts are so close to each other as those of R. Huna and R. Ḥisda, the objection of the creditor to the debtor’s choice of locale is not valid. The Court of R. Ḥisda was not as renowned as that of R. Huna (cf. B.M. 33a; San. ibid., Tosaf. s.v. כגון). Consequently, each litigant can reject the Court chosen by the other litigant and they must choose a Court that is acceptable to both. Tur, N.Yos., RaShBA reject this ruling and maintain that one may reject the Court chosen by the other only when it is either equal or inferior to the other Court, but not where it is more renowned — M.E. Gloss : And if one [of the scholars] withdrew himself from the lawsuit, he is regarded as non-existent, and if the second [scholar] summoned him [the other litigant] and he does not appear [for trial], he pronounces the ban against him.43MaHaRIK Rt. 11 — G. Wherever he [the litigant] is [legally] not required to appear before him [the Judge] to stand trial, he does not have to heed his summons and is not obliged to appear at all.44B.Yos. § 11 on the authority of Sefer ha-Terumoth — G. Derived from San. 8a. , text supra § 11, n. 2
י"א שאם רואה הדיין שבעל דין חושדו שנוטה הדין כנגדו צריך להודיעו מאיזה טעם דנו אפי' אם לא שאל: הגה וכ"ש אם אומר כתבו לי מאיזה טעם דנתוני (טור) מיהו י"א דוקא אם דנו אותו ע"י כפייה אבל בלא"ה אין כותבין וכן עיקר (מרדכי נ"י פרק זה בורר ותוס' ור"ן פ' איזהו נשך) וכשצריכים לכתוב לו מאיזה טעם דנוהו אין קביעות זמן לדבר אלא כל זמן שבא לכתוב לו כותבין ונותנין לו (מרדכי ס"פ זה בורר) וא"צ לכתוב לו הטעמים והראיות רק כותבין להם הטענות והפסק דין (נ"י שם) וצריך לשלם מיד ואם יסתור הדין יחזרו לו (מרדכי פרק חזקת הבתים והגהות מיימוני פ"ו דסנהדרין ומהרי"ק שורש א' וב"י בשם הרמ"ה) וא"צ לכתוב לו אלא מב"ד קטן לב"ד גדול אבל ב"ד גדול שדנו א"צ לכתוב לו דלא חיישינן לטעותא דא"כ אין לדבר סוף (ב"י שכ"נ מדברי הרמב"ם): Some say that if the Judge sees that a litigant entertains a suspicion against him, [viz.,] that he [the Judge] turns45Following Heb. מטה employed by B.Yos., the Hiph‘il of נטה contra נוטה of cur. edd. of Sh. Ar. and Tur. the verdict against him [the litigant], he is required to inform him the grounds on which he made his decision, even if he [the litigant] did not ask for [this].46Tur. Derived from B.M. 69a-b: ‘Two Cutheans (members of the sect of Samaritans) entered into a partnership (one investing money, and the other trading with it). Then one went and divided the money without consulting his partner. They appeared before R. Papa. Said he to him (the claimant): What is the difference? Thus stated R. Naḥman: Monies are considered to be already divided. The following year they bought wine in partnership. Consequently, the other arose and divided it without the knowledge of his partner. Again they appeared before R. Papa. Said he to him: Who divided it for you? — I notice, he answered, that you are prejudiced in my partner’s favour (because last year you considered his division valid, whereas this year you are opposed to mine). Said R. Papa: In such a case (where the litigant doubts my impartiality) it is necesary to inform him (my reasons): With respect to coins, Would he take good ones and leave defective ones (for you)? But regarding wine, everyone knows that there is wine that is sweet and there is wine that is not sweet (hence no biassed division is possible in the case of money as there might be in the case of wine).’ Hence, the present ruling. Thus also Tosaf. ibid. s.v. כי and Asheri on the principle then ye shall be clear before the Lord and before Israel (Num. XXXII, 22). This should be done only where there is suspicion of partiality. But where there could be no suspicion entertained and the litigant merely derides the verdict, they may pronounce the ban against him (N.Yos.) — M.E. Gloss: And so much the more if he [the litigant] said: 'Write down the grounds on which you made your decision [and give them to me].'47Tur — G. e., if in the case of one who did not ask for the grounds of the verdict, the law is that if the Judge feels that he is being suspected of partiality, he must state the reasons which led to his decision, then much more so in the case of one who demands this that we must grant him his request — M.E. , San. 31b and Tosaf. s.v. ואם. However, some say [that this is applicable] only if they tried him by using means of coercion [for him to appear in Court], but otherwise, they do not write down [the grounds of their verdict], and thus is the fundamental principle.48Mord.; N.Yos. to San. III; Tosaf. and RaN to B.M. V — G. For if the litigants appeared for trial willingly, then it means that they accepted the Judges as authoritative. Nevertheless, where the litigant appeared for trial willingly and still asks for the written grounds of the verdict, it must be given to him, for as we have already seen that even in a case where the Court notices that the litigant suspects them of partiality, they must give the grounds of the verdict — M.E. , San. 31b and Tosaf. s.v. ואם. When they are required to write down for him the grounds on which they made their decision, there is no fixed time for this matter, but whenever he [the litigant] comes [and requests the Court] to write down for him [the grounds of their verdict], they write [them] down and give [them] to him.49Mord. to San. III end — G. Derived from Mishna San. 31a: ‘Whenever he produces proof, it (the Court) can reverse the verdict.’ So too, in the present case, whenever he says to the Judges, ‘Write down the grounds for your verdict,’ they must give them to him. It is not necessary to write down for him the reasons and the proof [which led to their decision], [but] only the pleas [of the litigants] and the verdict [of the Judges] are recorded for them [the litigants].50N.Yos. ibid. — G. For every competent Court of Law upon hearing the pleas would know the grounds on which the decision was made since we all possess the same Torah — M.E. Although the grounds for the verdict are not written down, they may be given orally — P.Tesh. [The guilty party] is required to make payment forthwith and if [he subsequently produces proof] to reverse the verdict, they return to him [whatever they exacted from him].51Mord. to B.B. III; Hag. Maim. to Yad, Sanhedrin VI; MaHaRIK Rt. 1; B.Yos. on the authority of R. Mordekai b. Hillel — G. The money is exacted immediately and given to the claimant. Although this ruling has already been stated by Caro in par. 1 supra, nevertheless, since we might say that Caro refers to exacting the money but retaining it until final word is received from the other Court of Law which is being consulted, Isserles therefore, informs us here that the guilty party is required to pay the claimant forthwith — M.E. They are required to write down for him [the grounds of their verdict] only [if this information is requested] of a minor Court [and is being sent for reconsideration] to a Higher Court, but where a Higher Court tried a case, it is not necessary to write [this] down for him because we do not apprehend any error [in the verdict], for if so, there is no end to the matter.52B.Yos. stating that thus it appears from the words of Maim — G. Cf. San. 31b.
המתחייב בדין אינו חייב לשלם לשכנגדו יציאותיו אע"פ שהזקיקו לדון בעיר אחרת וה"מ דלא מסרב למיקם בדינא אלא שרוצה לדון בעיר אחרת אבל אם היה מסרב לבא לב"ד והוצרך התובע להוציא הוצאות לכופו לירד לדין חייב לפרוע לו כל הוצאותיו (שהוציא משעה שנעשה סרבן) (מהרי"ק שורש א' תמ"ד ונ"י פ' הגוזל בתרא ומהר"יו תשובת הרא"ש כלל ק"ח וע"ג סי' ב') ויש מי שאומר שאם תבעו בערכאות והוציא הוצאות בדיינים וטוענים אע"פ שמתוך סרובו הוצרך להוליכו בערכאות אין חייב לשלם הוצאותיו: הגה ויש חולקין וס"ל דאם הוצרך להוציא עליו הוצאות לכופו ע"י ערכאות של עכו"ם חייב לשלם לו (תשובת הרא"ש כלל ע"ג סי' ב') וכן נ"ל עיקר ובלבד שעשאו ברשות ב"ד כדלקמן סי' כ"ו מי שאומר לחבירו שילכו לדון במקום אחר ואמר לו לך ואני אבא אחריך והלך והשני לא הלך אחריו צריך לשלם לזה שהלך כל יציאותיו (מרדכי ס"פ זה בורר) כשהסרבן צריך לשלם ההוצאות אין אומרים שישבע כמה הוציא ויטול אלא צריך לברר כמה הוציא או הב"ד ישומו לו הוצאותיו וכזה ישלם לו (תשובת הרא"ש כלל ק"ז): One who is found guilty by law is legally not bound to compensate his opponent for the expenditure he incurred although he compelled him to be tried in another city.53Tur, Asheri and Mord. Derived from San. 31b: R. Eleazar said in his presence (v. complete text supra n. 13), Rabbi! One who has a claim against his neighbour in the amount of a Maneh, must he expend another Maneh in addition to the (first) Maneh (in traveling expenses)?’ This, however, is the case only where he [the defendant] does not refuse to stand in judgment, only that he desires to be tried in another city; but if he [the defendant] refused to come to the Court of Law and the claimant was obliged to incur expenditure [in order] to compel him to go down to Court, he [the defendant] is legally bound to pay him [the claimant] all his expenses54Derived from B.K. 112b. , text supra § 8, 5, n. 45 and cf. supra § 11, 1. This means if the defendant was declared guilty (RIBaSh, D.M.) — M.E. But if the defendant was acquitted, then the law is that if the claimant made a false claim and consequently the defendant was justified in refusing to stand trial, the latter is not obliged to pay the expenses incurred. However, if the claimant did not act falsely but only thought that his claim was justified, the defendant must pay, for in any case he should not have refused to appear for trial. In order to ascertain the veracity of the claimant we rely upon the understanding of the Judges — Tummim, Nethiboth, A.H. We deal here only with expenditure incurred as a result of the defendant’s refusal (סרבנות), but other expenses, such as, sending a messenger to collect the money, the defendant is not obliged to pay — ShaK. which he incurred from the moment he becomes a refuser.55MaHaRIK, Rt. 1 and 144; N.Yos. to B.K. X; MaHaRIW; Asheri, Resp. Rule 108 and 73, s. 2 — G. If the defendant states that the claimant did not summon him to Court and the claimant produced witnesses to prove that he did summon the defendant and subsequently the defendant stated that he was summoned but that he did not refuse to appear for trial, he is presumed to be a liar and must make payment. And if before the claimant’s witnesses appeared, the defendant admitted that he was summoned only that he did not refuse to appear, the law is that if the defendant’s admission was not on account of his fear of the witnesses, he is believed (v. B.K. 75a); but if it was made on account of his fear of the witnesses, the law is doubtful whether he is believed or not (ספיקא דדינא) — ShaK. Cf. infra § 79, 9, Gloss. There is an authority who states that if he summoned him through the civil courts56Heb. ערכאות from Greek ἀρχἠ, ἀρχεȋον, ‘office,’ ‘registry,’ ‘magistracy.’ and incurred [thereby] expenditure by [engaging] Judges and pleaders, [then the law is that] although on account of his [the defendant's] refusal [to appear] he [the claimant] was obliged to take him [to law] through the [heathen] civil courts,56Heb. ערכאות from Greek ἀρχἠ, ἀρχεȋον, ‘office,’ ‘registry,’ ‘magistracy.’ [nevertheless] he [the defendant] is legally not bound to pay his [the claimant's] expenses.57RIBaSh s. 475, since this is only regarded as a secondary cause of damage (גרמא) because it was only through his refusal that expenditure was incurred by the claimant (v. supra § 1, n. 35) and the defendant’s act of refusal was not an immediate cause of the expenses and the law is that a secondary cause in a case of damage carries no liability (B.K. 60a). For the difference between Gerama (indirect or secondary) and Garmi (direct or immediate) damage, v. Asheri B.B. II, 17. Tosaf., B.B. 22b, s.v. זאת אומרת state two distinctions between Gerama and Garmi: Gerama refers a) to indirect cause of damage resulting through the agency of others, or b) resulting subsequent to the act performed. Garmi refers a) to direct cause of damage when acting himself or b) damage caused simultaneously with the act performed. The defendant’s act of refusal comes under the category of Gerama. This is in accord with R. Isaac in Tosaf. ibid. Cf. also supra § 1, n. 35 Gloss: Some differ [with this ruling] and are of the opinion that if he [the claimant] was obliged to incur expenditure on account of him, [viz.,] to compel him [to appear for trial] through heathen civil courts,56Heb. ערכאות from Greek ἀρχἠ, ἀρχεȋον, ‘office,’ ‘registry,’ ‘magistracy.’ he [the defendant] is legally bound to compensate him,58Asheri Resp. Rule 73, s. 2 — G. This represents the view of RIZBA in Tosaf. ibid., viz., that the liability of Garmi is of a penal nature (קנס). Consequently, any sort of damage that is of frequent occurrence is punishable. Hence, the ruling here. and thus seems to me to be the fundamental principle provided that he [the claimant] executed this with the permission of the [Jewish] Court of Law as stated infra § 26.59Where, however, he did not obtain permission from the Jewish Court of Law to summon the recalcitrant defendant to appear before the civil authorities, even where this permission is not necessary, e.g., if the claimant produces a written document in which he is given the right to sue the defendant, if necessary, before the civil courts (v. infra § 26, 4, Gloss), nevertheless, since the claimant obtained no permission from the Beth Din, the defendant is exempt from paying the expenses — R.A.Eger, P.Tesh. One who says to his fellow [-litigant] that they should go and be tried in another locality and the latter said to him, 'Go, and I will come after you,' and [then] he departed, but the other one [who promised to come after him] did not follow him, — [the law is that] he must pay the one who went [there] all his expenses.60Mord. to San. III end — G. On the basis of this ruling, Ḥawwoth Ya’ir states that if A invited B to bring his son on a set day for the purpose of marriage and when the appointed day arrived, B failed to come with his son, while A incurred expenditure for all the wedding preparations, the law is that if B is unable to advance a valid excuse for not coming, he must defray all the expenses that were incurred by A — P.Tesh. When the one who refuses [to go to law] is required to pay the expenses, we do not say that [the claimant] should take an oath as to how much he has spent, but he must verify how much expenditure he has incurred [and receive compensation], or the Court of Law assess for him his expenditure and in accordance with this [assessment] he [the defendant] compensates him.61Asheri Resp. Rule 107 — G. Mishna Ket. 79b where we see that only where one had a right to incur expenditure he may take an oath as to how much he has spent and receives compensation. We-Shab ha-Kohen explains Isserles’ Gloss as follows: Both where the claimant can or cannot verify the expenditure incurred, assessment by Court is still required, viz., if the claimant verifies the expenditure incurred, the assessment is made by Court in order to determine whether the claimant incurred more expenses than necessary (v. infra § 182, 3, Gloss); but if the claimant cannot verify the amount expended, then the Court’s assessment should be fixed on the basis of the lowest expenditure (v. infra § 375, 8). Isserles’ ruling, ‘But he must ascertain how much expenditure he incurred,’ means that the Court must then make an assessment in order to determine whether more expenditure than necessary was incurred. Isserles does not state this explicitly because he relies on his ruling infra § 182, 3, Gloss. For it goes without saying that more expenses than necessary should not be incurred. And as to the latter part of Isserles’ ruling, viz., ‘Or the Court of Law assess for him his expenditure and in accordance with this (assessment) he (the defendant) compensates him,’ it refers to a case where the claimant cannot verify the expenditure incurred — P.Tesh.
חייבוהו ב"ד לפרוע ויצא וחזר ואמר פרעתי אם הוא נאמן יתבאר בסימן ע"ט: [If] the Court of Law sentenced him to make payment and he left and [subsequently] returned and stated, 'I have paid,' — [the law] whether he is believed will be explained [infra] in § 79.
אם בא הזוכה בדין לב"ד ותובע שיכתבו לו פסק דין אם כותבין ונותנין לו גם זה שם: If one who triumphs in a lawsuit comes to the Court of Law and demands that they write down for him the verdict, — [the law] whether we write [the verdict] down and give [it] to him is also [explained] ibid.
יש בידו פסק דין שחבירו חייב לו אם הלה נאמן לומר פרעתי בסימן ל"ט סעיף י': [If] one has in his possession [a document containing a] legal decision that his fellow owes him [aught], — [the law] whether the latter is believed to state, 'I have paid,' [will be explained infra] in § 39, par. 10.