מי ראוי לדון והפסולים מחמת שנאה וקורבה ובו י"ב סעיפים:
ב"ד של ג' שהיה אחד מהם גר ה"ז פסול לדון לישראל אא"כ היתה אמו (או אביו) (מרדכי בשם תוס' פ"ב מ"ח) מישראל וגר דן את חבירו הגר אע"פ שאין אמו מישראל (וע' בי"ד סי' רס"ט):
A Court of three [Judges] of which one was a proselyte is unfit to judge a fellow Israelite1e., in civil suits — M.E. Thus also Yad, Sanhedrin XI, 11 and cf. ibid. Melakim I, 4. Derived from Yeb. 102a: ‘Raba said: A proselyte may judge a fellow proselyte according to Biblical law, for it is said, Thou shalt in any wise set him king over thee, whom the Lord thy G-d shall choose, one from among thy bretheren, shalt thou set king over thee (Deut. XVII, 15. ‘King’ is taken to mean also ‘Judge.’ Prov. XXIX, 4); only when set over thee must he be one from among thy brethren, but a proselyte may judge his fellow proselyte.’ Rashi explains this passage as referring to capital cases, for as far as civil suits are concerned, a proselyte may judge even Israelites according to Mishna San. 32a: ‘All are eligible to judge civil suits’ which is explained in Gemara ibid. 36b: ‘All includes a proselyte.’ Tosaf. (Yeb. 45b, s.v. כיון) however, maintain that the passage in Yeb. 102a refers to civil suits (i.e., if his mother was not an Israelitish woman he may judge only a fellow proselyte in civil suits but not an Israelite), and as to the text in San. ibid. it refers to a proselyte who judges a fellow proselyte only. Alfasi and Asheri write that in San. we deal with a proselyte whose mother was an Israelitish woman. Caro’s present ruling, viz., that even if one of the members of the Beth Din is a proselyte, the Court is unfit to judge an Israelite, is derived from Yeb. 101b: ‘R. Samuel b. Judah was once standing before Rab Judah when the latter said to him, Come up to this bundle of reeds (a place designated for a Ḥaliẓah ceremony) to be counted in the number of five (judges at the Ḥaliẓah ceremony) so that the matter be publicized well (i.e., in order that it become known that she is a Ḥaluẓah and forbidden to a Kohen). We have learned, the first said, In Israel (Deut. XXVI, 10) means at a Court of Israelites, but not at a Court of proselytes, and I am a proselyte.’ This shows that even if one of the members of the Court is a proselyte, it is unfit to judge. Even the children’s children of a proselyte are ineligible to judge Israelites — M.E. unless his2The proselyte’s. mother3Yeb. 102a: ‘If his mother was an Israelitish woman (i.e., even if his father is non-Jewish — R.A.Eger) he may judge even an Israelite.’ For then the proselyte is considered one from among thy brethren. , Yeb. 45a and Tosaf. s.v. כיון. Likewise three proselytes whose mothers were Israelitish women may act as Judges of a Beth Din even for Israelites (D.M., B.Yos.) — M.E. or his2The proselyte’s. father4Mord. on the authority of Tosaf. (Yeb. 102a, s.v. (לענין חליצה) — G. Cf. Kid. 77a. If his father alone was an Israelite (and his mother was a proselyte — R.A.Eger) it goes without saying that the proselyte may judge a fellow Israelite — M.E. were Israelitish. A proselyte may, however, judge his fellow proselyte5e., a real proselyte; but if he was conceived and born in a hallowed condition (his mother became a Jewess before conception), he is regarded as a genuine Israelite, in which case the Judge must be the issue of an Israelitish woman (v. Yeb. 102a, Tosaf. s.v. לענין חליצה and ibid. 98a, Tosaf. s.v. נשא). But as far as the proselyte Judge is concerned even if he was conceived and born in a hallowed condition, he may not judge a fellow-Israelite — R.A. Eger, P.Tesh. although his2The proselyte’s. mother is not an Israelitish woman.6 Y.D. § 269 — G. Cf. supra n. D.M. writes on the authority of Mord. that a proselyte may judge another proselyte only with the latter’s consent. M.E. states that he has not found this implication in Mord. nor in Asheri, but the law is (in accordance with Y.D. § 269 end) that a proselyte may judge a fellow proselyte even through compulsion and if the litigant agrees to be tried before a proselyte Judge, the latter may judge even an Israelite. Thus also BaḤ and ShaK.
ממזר ואפי' שלשתן ממזרים הרי אלו כשרים לדון לכל וכן אם היה כל אחד מהם סומא באחת מעיניו כשר אבל הסומא בשתי עיניו פסול:
[A Judge who genealogically is] a bastard7Heb. ממזר. On the meaning of this term, v. Mishna Yeb. IV, 13 and E.H. § 4, 13. and even if the three of them [who comprise the Court] are bastards, they are eligible to act as Judges8San. 36b: Mishna: ‘All are fit to try civil suits.’ Gemara: ‘What does all include? — It is meant to include a bastard. Have we not already learnt this before (Nid. 49b), Whoever is fit to try capital cases is also fit to try civil suits. However, there are some who are fit to try civil suits but not capital cases … One was intended to include a proselyte, the other a bastard.’ , supra n. 1. Just as a proselyte may try a fellow-proselyte even if he has to compel the latter to appear before him for trial (v. supra n. 6), so too, in the case of a bastard-Judge. This is derived from Mishna San. 32a: ‘All are fit to try civil suits, but not all are fit to try capital cases,’ which means that as in the case of capital charges, compulsion may be used, so too, in the case of civil suits, the bastard-Judge may use compulsion — Be’er Eliyahu. Caro’s ruling that even if the entire Beth Din is comprised of bastard-Judges they are considered fit to judge, is derived from the expression (San. ibid.) ‘all (הכל) are eligible,’ which is meant to include not only if one of the Judges was a bastard, but even if an entire Court of three consists of bastard-Judges, they are eligible to act as Judges. Thus also Yad, Sanhedrin II, 9. , also Kid. 76b, where it is stated that Judges may be appointed of genealogically ineligible persons save in Jerusalem where only Judges of pure descent were appointed. for everyone.9e., even for legitimate Israelites. Not as in the case of a proselyte who may judge only a fellow-proselyte if the former’s mother was not an Israelitish woman. The bastard-Judge may try even Israelites. This is deduced from Kid. ibid. according to the interpretation of San. 36b. Tosaf. s.v. חדא. For contrary to the proselyte whose mother was not an Israelitish woman and consequently may only judge a fellow-proselyte, the bastard is of Jewish ancestry. Thus also if each one of them was blind in one of his eyes, he is eligible [to act as Judge].10Thus Yad ibid.; N; Ba‘al ha-Maor; R. Sherira Gaon a.o. This refers even to the ‘commencement of a trial.’ Alfasi and Asheri state the reason as follows: Since all other people may conclude the trial by night and the eyesight of one blind in one eye is better by day, consequently, the latter may judge even at the commencement of the trial (M.E.), even ‘in the first instance.’ For if this applies only to the conclusion of the trial, how can there be a conclusion without a commencement of the trial — Lebush and Tummim. Here too, it refers to both one Judge or three Judges blind in one eye — A.H. , supra nn. 6 and 8. The present ruling is derived from San. 34b; Nid. 49b-50a: ‘Our Mishna (that a decision may be given at night) disagrees with R. Meir. For it has been taught, R. Meir would say, What is the meaning of the verse, According to their word shall every controversy and every leprosy be (Deut. XXI, 5) ? What connection is there between controversies and leprosies? Controversies are compared to leprosies: just as leprosies must be examined by day, since it is written, And in the day when raw flesh appeareth in him (Lev. XIII, 14) so must controversies be tried by day; and as leprosies are not to be examined by the blind (even in one eye, v. Neg. II, 3), for it is written, Wherever the priest looketh (ibid. v. 12), so controversies also may not be tried by a blind man (even in one eye only — Yad Ramah) … A blind man who lived in the neighbourhood of R. Joḥanan used to try civil suits and R. Joḥanan raised no objection against it. But how could he (R. Joḥanan) act so (to permit him to judge) ? Did not R. Joḥanan actually say, The Halakah agrees with an anonymous Mishna, and we have learnt (the following anonymous Mishna) : Whoever is fit to judge is eligible to testify. However, one may be fit to testify but not eligible to judge, and R. Joḥanan said that this includes one who is blind in one eye (consequently, R. Joḥanan should have objected to the blind man who acted as Judge) ? — R. Joḥanan found another anonymous Mishna (according to which a blind man may judge): Civil suits must be tried by day and may be concluded by night (San. 32a. Hence, according to this Mishna ‘controversies’ were not assimilated to ‘leprosies.’ Consequently, they were not compared with respect to the unfitness of a blind man either, since there are many whose eyesight is as dim by night as a blind man during the day and yet, it states that they may conclude the trial by night). Why is this anonymous Mishna (San.) preferable to the other (Nid.) ? — If you wish I might say, An anonymous Mishna which expresses the view of the majority is preferable (in Nid. the individual opinion of R. Meir is given; in San. that of the majority of the Rabbis), and if you wish I might reply that it (San.) was taught in the tractate dealing with legal procedure (whereas in Nid. it is cited only incidentally).’ However, one who is blind in both his eyes is ineligible [to act as Judge].11Thus Yad ibid. For only in the case of one blind in one eye is it permissible, whence it follows that one blind in both eyes is unfit to judge, since everyone agrees that it is forbidden to try cases at night (v. supra § 5, 2) and for one blind in both eyes the day too, is like night for him — M.E. ‘Ir Shushan deduces the prohibition against one blind in both eyes from the comparison made between ‘controversies’ and ‘leprosies’ (v. text supra n. 10). This is rejected by M.E., for in San. and Nid. ibid. it was explained that this represents an individual opinion (R. Meir). Furthermore, on this principle, even one blind in one eye would be ineligible. W.G. writes contra M.E. that the eligibility of one blind in one eye is not on account of the comparison with ‘night’ during which a trial may be concluded, for then one blind in both eyes should be fit to judge, but it is rather derived from the general rule in the first part of the Mishna (Nid. ibid.), viz., ‘Whosoever is fit to judge is fit to testify,’ and since one blind in both eyes is ineligible to offer testimony, he is likewise unfit to judge. According to M.E. (who follows Alfasi and Asheri), a Judge whose eyesight was unimpaired at the commencement of the trial and before the trial was concluded became blind, would be eligible to judge at the conclusion of the trial (v. supra); whereas, according to ‘Ir Shushan who compares ‘controversies’ to ‘leprosies,’ he would be ineligible — P.Tesh. An actual case is reported in Keneseth Ezekiel where the litigants were tried by three Judges and after the pleas were heard and the testimony was offered, one of the Judges accidentally became blind in both eyes, whereupon one of the litigants objected to the participation of the blind Judge in the conclusion of the trial. Keneseth Ezekiel after stating the views of the Codifiers, viz., a) Maim. — one blind in both eyes is ineligible to judge even at the conclusion of the trial; b) Tosaf., SeMaG and Mord. — eligible even for the commencement of the trial, c) Alfasi — ineligible for the commencement of the trial, eligible for the conclusion, — ruled in accordance with the last opinion (Alfasi). Hence, the Judge in the above case who became blind in both eyes before the conclusion of the trial, is eligible to judge together with the other two judges and give a decision. BaḤ also states that ex post facto (בדיעבד) the decision of one blind in both eyes is valid. Moreover, the above case may be considered as ex post facto, since the pleas and testimony were already heard before the accident happened. In addition it may be said that since three Judges were present, then even if the decision of the now blind Judge is not valid, yet, on the basis of BeHaG and Tosaf. who accept Samuel’s dictum, ‘If two Judges tried a case, their decision holds good’ (San. 2b. Cf. supra § 3, 2), the recalcitrant litigant may be compelled to accept their decision. However, according to Tummim, Nethiboth a.o., even if the Judge became blind at the conclusion of the trial, he is ineligible — P.Tesh. One whose eyesight is very dim but is not blind may act as Judge. According to the majority of the Codifiers who rule that one blind in both eyes is unfit to judge, support for this may also be found in the following passage in Ket. 94b: ‘(R. Joḥanan) said (to R. Shesheth who was totally blind), I am a Judge and the master is no Judge,’ i.e., R. Shesheth had no right to render a decision in a certain case mentioned ibid. Cf. Rashi ibid. — P.Tesh.
וי"א שאינו ראוי לדון אלא מבן י"ח ומעלה והביא שתי שערות וי"א דמבן י"ג ומעלה כשר ואפילו לא הביא שתי שערות:
Some say that one is fit to judge only from the age of eighteen and onwards,12Tur on the authority of ‘some say,’ derived from Shab. 56b: ‘R. Samuel b. Naḥmani said on the authority of R. Jonathan: Whoever says that Josiah sinned is mistaken, for it is written, And he did that which was right in the eyes of the Lord, and walked in all the ways of David his father (II Kings XXII, 2). How then do I explain, and like unto him there was no king before him that returned (Shab) to the Lord with all his heart etc., (ibid. XXIII, 25, whence it follows that at first he sinned). This intimates that he reconsidered every decision that he rendered between the ages of eight (the time of his accession to the throne Ibid. v. 1) and eighteen’ (when the Book of the Law was discovered). He thus re-examined (this is the meaning of Shab) his decisions in the light of the Book of the Law discovered by Ḥilkiah (ibid vv. 1-8). ‘Eighteen’ is taken by Rashi to refer to the eighteenth year of his reign. Hence, it has no connection with the age of the King. Some, however, take ‘eighteen’ (and this is followed by Caro in the present ruling) as the age of the King, i.e., when Josiah was eighteen years of age, the Book of the Law was discovered by Ḥilkiah. At the age of eighteen a person is considered a distinguished and conspicuous individual and has the capability to save the poor from the hand of one who would rob him. This is one of the attributes of a Judge (v. Tur a.l.) — M.E. , also Aboth V, 21. and [provided] he has grown two pubic hairs.13Deduced from Mishna Yeb. 96b: ‘It is all one (i.e., with respect to illegal cohabitation) whether he is of the age of nine years and a day or whether he is of the age of twenty years and has not grown two pubic hairs.’ Thus we see that if one has not produced the signs of maturity, he still counts as a minor. Cf. Nid. V, 9. Hence, the present ruling. And some say that from the age of thirteen years [plus one day] and onwards, one is eligible to judge, even if he has not grown two pubic hairs.14Derived from Y. San. IV, 9(22b): ‘R. Abbahu states on the authority of R. Joḥanan: Even one who is less than twenty years old and has not grown two pubic hairs, is eligible to try civil suits but not capital charges.’ Although the age of thirteen is not mentioned in this text, it goes without saying that the Judge must not be less than thirteen years and a day, for only then is one designated an adult. As to the text in Shab. ibid., this viewpoint accepts the interpretation of Rashi (v. n. 12 supra). Cf. also the reading in Shab. ibid., ‘until eighteen’ (עד י״ח). Were ‘until eighteen years of age’ meant the reading should have been עד בן י״ח. , Maharsha a.l. The underlying reason for the second viewpoint is that although with reference to valid testimony it is required that the witnesses possess signs of maturity, deduced from, then both the men between whom the controversy is, shall stand before the Lord (Deut. XIX, 17. This refers to the witnesses and it is obligatory that they be men, i.e., of mature age. , Sheb. 30a; B.B. 155b), this is not the case with respect to a Judge. In the latter case he must possess a reasoning mind and be versed in the intricacies of the Law. But one who is less than thirteen years old, is ineligible to judge, for being a minor he does not come under the category of observing religious duties according to Biblical Law. However, a difficulty presents itself on the basis of the principle, ‘Whoever is fit to judge is eligible to testify’ (Mishna Nid. 49b), which conversely, would mean that ‘whoever is unfit to judge is ineligible to testify.’ Consequently, it follows that according to the first opinion recorded in the present ruling, one who is thirteen years of age and has grown two pubic hairs would be ineligible to testify, and again, according to the second viewpoint, one who is thirteen years of age but has not produced two pubic hairs would be ineligible to judge. This difficulty may be removed on the assumption that the above-mentioned principle was meant to assimilate testimony and adjudication with respect to the minority age of the individual only, for in both cases, a minor, i.e., one less than thirteen years and a day is unfit — M.E. In civil suits involving immovable property (קרקעות), he may not judge until he produces two pubic hairs, for otherwise, his transaction is considered invalid in immovable property ( B.B. 155b; infra § 35, 3; § 235) — Tummim. Mishkenoth Ya‘akob supports the first view recorded in the present ruling, but concludes that a Judge should be appointed when he is at least twenty years old. Shebuth Ya‘akob states that in the case of one who judges alone we should adopt a stringent view and one should not judge before he is forty years old unless there is none other greater than he available in that city (v. Y.D. § 242, 31, Gloss). But with respect to one who is a member of a Court of three, it is permissible for him to judge even before he reaches his fortieth year, for his decision should not be regarded as inferior to that of a Court of three laymen whose decision is binding — P.Tesh. , also P.Tesh. to Y.D. ibid. A.H. writes that the above rulings are only added stringencies, and that according to Biblical Law, it seems that if the individual has grown two pubic hairs and is thirteen years of age plus one day, he may be a Judge. Before he produces the two pubic hairs, his decision is not binding (contra second opinion), for a minor’s act is ineffective.
אשה פסולה לדון:
A woman is ineligible to judge.15B.K. 15a (v. parallel passages) : ‘In the School of Eleazar it was taught: Now these are the ordinances which thou shalt set before them (Ex. XXI, 1), — the Scriptural text places a woman on the same level with a man as regards all the judgments of the law’ (i.e., with respect to civil suits). Tosaf. s.v. אשר raises the question that before them refers only to those who are eligible to judge but not to those who are judged (v. Torah Temimah a.l.). Cf. Git. 88b: ‘before them, but not before laymen,’ and a woman is ineligible to judge, for the Mishna Nid. 49b states that ‘Whoever is fit to judge is fit to testify’ and since a woman is unfit to testify (v. B.K. 88a; Sheb. 30a), it follows that she is unable to judge. Consequently, the above passage that equates man and woman as regards all the judgments of the law refers to woman only from the point of view of being judged in cases where she has monetary claims against another person, but she herself may not act as Judge. As to Deborah, the prophetess concerning whom it is stated that She judged Israel at that time (Judges IV, 4) whence we see that a woman may judge, it may be said that it was permissible only on account of a Divine order, or that she merely taught the Law. But the text serves as no precedent that a woman may judge. , also Y. Yoma VI, 1(43b); Y. Sheb. IV, 1(35b) where it is stated that a woman may not judge because she is ineligible to testify. Cf. also Yad, Melakim I, 5 and RIDBaZ a.l.; Sifre to Shofetim XVII, 15. Although a woman may not judge, nevertheless, a learned woman may instruct law and offer legal directives (cf. supra on Deborah and Sefer ha-Ḥinnuk § 83 and § 152; Sha‘are Teshubah to O.Ḥ. § 461, n. 17 — P.Tesh.
יש אומרים דשתויי יין מותרים לדון דיני ממונות אין עד נעשה דיין ודוקא עד שמעיד כגון אם העיד א' מהדיינים בפני חבריו על מעשה שראה אינו יכול להצטרף עמהם לדון על אותו מעשה אבל אם אינו מעיד כגון שהג' דיינים ראו המעשה אפי' כוונו ראייתן בתורת עדות אם ראוהו ביום נעשים דיינים ודנים על המעשה ההוא אבל אם ראוהו בלילה אין דנין ע"פ עצמן אבל בעדות אחרים דנין ואם הוזמנו להעיד אף בעדות אחרים אין דנין וי"א שאף בהוזמנו להעיד דנים בעדות אחרים (וכל זה בדין דאורייתא אבל בדבר דרבנן עד נעשה דיין) (תוס' פ"ב דכתובות ונ"י שם ופ' אד"מ):
Some say that those who are under the influence of wine are permitted to adjudicate civil suits.16Mishna San. 40a: ‘They (the Judges) drink no wine the entire day.’ Gemara ibid. 42a: ‘Why is wine not permitted? — R. Aḥa b. Ḥanina said: The Scriptural text states, It is not for princes to say, Where is strong drink (Prov. XXXI, 4), (i.e.,) those engaged in (solving) the secrets of the world (administration of justice, connecting רוזנים with רז, secret) must abstain from strong drink.’ Tosaf. ibid. s.v. העוסקים write that this refers only to the adjudication of capital charges, but not to civil suits. As to the text in ‘Er. 64a: ‘He who drank a quarter of a Log of wine must not render legal decisions,’ it refers to giving a legal decision in ritual law (איסור והיתר. Cf. the expression אל יורה). , also Yad, Bi’ath ha-Mikdash I, 3; Y.D. § 242, 13, Gloss. The present ruling, viz., that in civil suits one who is under the influence of wine may act as a Judge has reference only to a case where there are two other Judges present who will remind him of the law should he err, but a single Judge or three Judges under the influence of wine should not judge — Tummim, Nethiboth. However, according to Num. R. X, 4, one under the influence of wine may not act as a Judge even in civil suits (cf. the expression אל ידון ibid) which contradicts the present ruling. BaḤ and Shebuth Ya‘akob rule that even in civil suits one under the influence of wine is forbidden to act as Judge. Thus also R. Jonah in Sefer ha-Yir’ah makes no distinction between ritual and civil law. In both cases one under the influence of wine must not act as a Judge — P.Tesh. M.E. writes that since our wines nowadays are diluted, we may adopt a leniency with respect to a Judge who partakes of a quarter of a Log of wine. A witness may not act as a Judge.17Ket. 21a: ‘R. Abba sat and stated this law, that a witness may act as a Judge. R. Safra raised an objection against R. Abba: If three saw it (the new Moon) and they are of the Court (that sanctifies the new moon), two (of them) stand up and set (two) of their fellows (of the Sanhedrin) beside the one (Judge) and they (the two) bear witness before them (the three who constitute the Court) and (then) they may say, It is hallowed! It is hallowed!, — for a single person is not believed by himself. Now, if you entertain the opinion that a witness may act as a Judge, what is all this for? Let them sit in their places (after testifying) and declare (in conjunction with the third person), the new Moon is hallowed! — He (R. Abba) replied: That also presented a difficulty to me, and I asked R. Isaac b. Martha, and R. Isaac (asked) R. Huna, and R. Huna (asked) Ḥiyya b. Rab, and Ḥiyya b. Rab (asked) Rab, and he said to them, Leave alone the testimony regarding the new Moon (because it is) Biblical and the attestation of documents is Rabbinical (In a Biblical matter a witness may not act as a Judge; in the case of a Rabbinic enactment, e.g., the confirmation of documents this does not apply. Cf. Git. 5b).’ B.B. 113b-114a: ‘Rabbah b. Ḥanina taught a Baraitha before R. Naḥman: (It is written,) Then it shall be in the day that he causeth his sons to inherit (Deut. XXI, 16) — (this teaches) that you may make the division of inheritances during the day, but not at night. Abaye said unto him: But according to this (Abaye assumes that the division of an inheritance is made only when the person died in the daytime) would children inherit him who died during the day and not him who died at night? Perhaps you refer to the adjudication of inheritances (which must take place during the day. , supra § 5), for it was taught: (With the Biblical text), but it shall be unto the children of Israel a statute of judgment (Num. XXVII, 11), the whole section (Num. ibid. vv. 1-11 on the laws of inheritance) has been proclaimed as of a judicial nature (The judicial procedure of inheritances is equated to that of civil suits in general. Those who are present form a Court of three even if the testator’s natural heirs are opposed to it. Thus Tosaf. who explain that this refers both to a sickbed bequest as well as to one made by a person in good health. , Rashi to San. 34b). And this is in accord with Rab Judah who said: If three (persons) came to visit a sick person, they may, if they so desire (either) write down (his bequest and thus act as witnesses to the document), or issue a judicial verdict (for since they are three they form a laycourt and thus attest to the instructions of the testator and execute the Will). If two (persons came), they may write down (the instructions and act as witnesses to the document), but may not issue a judicial verdict (for since they are less than three they cannot constitute a Court and merely may act as witnesses). R. Ḥisda stated: This applies only to daytime; at night, however, even three (persons) may (only) record (the instructions of the testator and act as witnesses), but may not form a Court (because at night judicial sessions are not held for the commencement of a trial. , supra §. 5). What is the reason? Because (at night) they (merely) become (eligible to act as) witnesses and a witness may not act as a Judge (this means that even on the following day they may not act as Judges in this matter since the instructions were recorded at night and they became qualified to act as witnesses only).’ Cf. San. 34b. Mishna R.H. 25b: ‘If three saw it … It is hallowed’ (v. first part of this note for text). Gemara ibid. 25b-26a: ‘This means that a witness may act as Judge. May we say that our Mishna is not in agreement with R. Akiba, for it has been taught: If the Sanhedrin beheld a man murder a person, some of them act as witnesses and some of them as Judges. This is the opinion of R. Tarfon. R. Akiba says: They all act as witnesses and a witness may not act as a Judge? — You may even say that our Mishna is in agreement with R. Akiba, but R. Akiba stated this only with respect to capital charges, for the All-Merciful commanded, the congregation shall judge … and the congregation shall deliver (Num. XXXV, 25-26), and since they saw him murder a person, they cannot find any defence in his favour. However, in this case, even R. Akiba agrees (that a witness may act as a Judge).’ Cf. B.K. 90b. , also Y. R.H. III, 1(58d); Y. San. I, 2(18c); ibid. V, 5(23a). There are two fundamental reasons why a witness may not act as a Judge: a) Evidence that is given must be liable to refutation by proving an alibi (עדות שיכול להזימה. , supra § 1, n. 40). Hence, if we should say that a witness may act as a Judge, this principle would not be applicable, for the Judge will never accept any refutation against himself; b) It is written, then both the men between whom the controversy is, shall stand before the Lord, before the priests and the judges that shall be in those days (Deut. XIX, 17), — Both the men refers to the witnesses; between … is applies to the litigants; before the Lord … judges means that they must stand before the Judges. Hence, if a witness may act as a Judge, this exposition would be impossible. Cf. supra n. 14. , Ket. 21b, Tosaf. s.v. הנח and par. ref. Consequently, if three persons beheld the incident during the day when it is permissible to hold a judicial session, they constitute a Court of three and are not designated as witnesses. Hence, they may act as Judges as stated anon — M.E. [This applies] only [to] a witness who testifies, e.g., if one of the Judges testified18Together with another person — M.E. before his colleagues19e., before a Court of three, for hearing evidence is part of the adjudication which requires three Judges to be present. It means that after one of the Judges rises to testify in conjunction with another lay person, the remaining two Judges co-opt a third person to form a Beth Din of three. Consequently, after giving evidence, the witness may not return to sit with the Judges — M.E. about a [certain] incident which he beheld, he cannot be combined with them to hold a judicial session regarding that incident.20R.H. 25b-26a and parallel passages. , texts supra n. 17; Ket. 21b, Tosaf. s.v. הנח and parallel references. However, if he does not testify, e.g., [in a case] where the three Judges beheld the incident,21Ibid. even if they beheld [the incident] with the express intent to be designated as testimony,21Ibid. — [the law is that] if they beheld it during the day,22At which time they were eligible to act as Judges. , supra § 5, 3. they may act as Judges and may hold a judicial session concerning that incident;23Cf. supra n. 20. A judicial session may be held in this case since we can argue that hearing the evidence should not carry greater weight than seeing the incident, and they may hold the judicial session even at a later date just as in the case of hearing evidence in general a judicial session may be held at a later date. Not so, however, when they saw the matter at night, in which case they only become witnesses and cannot act as Judges, for hearing the evidence is also not valid in the first instance if heard at night — M.E. but if they beheld it at night,24At which time judicial sessions are not held. , supra § 5, 2. Likewise, if they beheld the incident on the Sabbath or Festival, they may not act as Judges, although the prohibition against trying cases on these days is only a Rabbinic measure (BaḤ). This question, however, requires further elucidation — ShaK. TaZ opposes BaḤ, for on the principle that in a Rabbinic matter a witness may act as a Judge (v. Isserles anon and supra n. 17), it should be permissible. Keneseth Ezekiel agrees with BaḤ. Tummim is in agreement with TaZ. K.H. concludes that we should adopt a leniency in this matter. Hence, they may hold a judicial session on a following day even if they beheld the incident on the Sabbath or Festival — P.Tesh. they may not hold a judicial session on [the strength of] their own evidence.25 supra n. 20. For in this case since judicial sessions are not held at night, they merely become designated as witnesses and we cannot apply the principle, ‘let the hearing of evidence not carry greater weight than seeing the incident,’ since the time of seeing the incident was not the time of hearing the evidence, because we receive no evidence at night — M.E. However, on [the strength of] evidence given by others they may act as Judges.26The next day or even many days later. But if they were [originally] ordered to act as witnesses [in a certain matter, — then] even on [the strength of] evidence given by others, they may not act as Judges.27For in this case it carries even lesser weight than beholding the incident at night. Thus RaShBaM to B.B. ibid., where it is stated that ‘If three persons came to visit a sick man etc.’ (v. supra n. 17), whence it follows that they did not come at the express bidding of the testator to act as witnesses (note the words נכנסו לבקר), for if they were invited or ordered by the testator to come, they would be designated as witnesses, and consequently, even if they came during the day, they would not be able to act as Judges even if other witnesses give evidence. Some say, however, that even if they were [originally] ordered to act as witnesses [in a certain matter], they may act as Judges on [the strength of] evidence given by others.28This is similar to beholding the incident at night. Thus Tosaf. to B.B. ibid. RaN rules as follows: If they came with the express intent to act as witnesses, we adopt the view of Tosaf.; but if they were ordered to come and act as witnesse, we follow the opinion of RaShBaM. This entire [ruling] applies to a Biblical Law,29E.g., the sanctification of the new Moon. but in [the case of] a Rabbinic matter,30E.g., the confirmation of documents. [the law is that even] a witness [who testified] may act as a Judge.31Ket. 21b, Tosaf. s.v. הנח; N.Yos. ibid.; San. 34b — G. , supra n. 17. To sum up this ruling, the following principles should be borne in mind: a) Mere intention to act as witnesses of an incident does not invalidate the individuals from acting as Judges; b) Once they have testified they no longer may act as Judges; c) If they beheld the incident during the day, they may act as Judges; if at night, they may act as Judges if others testify; d) If they were summoned to act as witnesses, there is a difference of opinion between RaShBaM and Tosaf.; e) In a Rabbinic matter even a witness who testified may act as a Judge.
מי שתובעין אותו לדון לפני דיין שקטן ממנו אין הדיין יכול לכופו לילך לפניו אלא מכנפי מאן דאיכא התם מחכימי ומעיינים בינייהו:
[With respect to] one who is summoned to be tried before a Judge who is inferior to him [in learning, — the law is that] the Judge [who summoned him to appear in Court] cannot compel him to go [and be tried] before him, but they call a meeting of the scholars who are [present] there and look into the matter among themselves.32Tur on the authority of R. Hai Gaon. Derived from Kid. 70a: ‘A certain individual from Nehardea entered a butcher’s shop in Pumbeditha and stated: Give me meat! They replied: Wait until the attendant of Rab Judah b. Ezekiel takes his and then we shall serve you. He exclaimed, Who is Rab Judah b. Shewiskel (a nickname for Ezekiel, derived from שזיסקי meaning roast, i.e., the eater of roast meat) to take precedence over me and to be served before me? They went and informed Rab Judah (about this), whereupon he pronounced the ban against him. They said to him (further), He (that man) is in the habit of calling people slaves, whereupon he (Rab Judah) announced that he (that man) was a slave (himself). Thereupon that man went and summoned him (Rab Judah) to a lawsuit before R. Naḥman. When they brought the writ of summons, Rab Judah went before R. Huna and asked him, Shall I go or not? (his high office gave him the right not to recognize R. Naḥman’s authority over himself). He (R. Huna) answered: Indeed you must not go because you are a distinguished personage, but on account of the honour of the Nasi’s house (R. Naḥman was the son-in-law of the Resh Galutha) arise and go.’ From this passage it follows that one is not obliged to appear before a Judge who is inferior to him. Furthermore, it does not depend upon the age of the Judge who sent the writ of summons, for even if the latter is much older than the scholar who is summoned, nevertheless, if in learning and knowledge he is inferior to him, he cannot compel him to appear before him (cf. B.B. 142b). The same principle applies to a single Judge or a Court of three who sent the writ of summons — P.Tesh. The mode of expression used here indicates that R. Hai Gaon holds that if the defendant agrees to be tried before a Judge who is inferior to him, he may appear before the latter for trial on the principle that ‘A Rabbi who renounces his honour, it is considered renounced’ (Kid. 32a-b). For if this were not so, how can the inferior scholar summon him to law in the first place. Hence, he may summon him only because there is a possibility that the latter may agree to come — P.Tesh. ‘They call a meeting of the scholars … themselves,’ means that the scholars of that locality examine the case together. Consequently, it is no longer disreputable for him to be tried in their presence — Tummim. BaḤ explains that the words, ‘and look into the matter’ means that they investigate the case in order to determine whether it is proper for him to appear for trial or not. In a case where it is not respectable for the scholar to appear in Court with a litigant who is an uncultured person, the Court may send scribes to the scholar’s home in order to record his arguments in writing and then they adjudicate the case on the basis of the recorded information — M.E. , infra § 124. Cf. also infra § 28, 5.
אסור לאדם לדון למי שהוא אוהבו אע"פ שאינו שושבינו ולא ריעו אשר כנפשו ולא למי ששונאו אע"פ שאינו אויב לו ולא מבקש רעתו אלא צריך שיהיו השני בעלי הדינים שוים בעיני הדיינים ובלבם ואם לא היה מכיר את שום אחד מהם ולא את מעשיו אין לך דיין צדיק כמוהו: הגה ומיהו אם דנו דיניהם דין (הגהות אשר"י ריש סנהדרין) וי"א דבשונאו ממש דהיינו שלא דבר עמו שלשה ימים מתוך איבה או אוהבו ממש דהיינו שושבינו וריעו באלו אין דיניהם דין (טור) וי"א דכל שאינו אוהבו או שונאו ממש מותר לדונו ואינו אלא מדת חסידות להחמיר שלא לדונו ולכן מותר להיות דיין כשזה בורר לו א' וזה בורר לו א' (ע"ל ר"ס י"ג) כי כל א' בורר לו אוהבו וכ"ש שהרב יכול להיות דיין לתלמידו (מהרי"ק שורש ט"ז) ואפי' ב"ד הפסול לדון משום אהבה ושנאה יכול להושיב דיינים אחרים כשרים שידונו (פסקי מהר"י סי' רנ"ח ומהרי"ק שורש כ"א) מי שאומר על הדיין שהוא שונאו או אוהב בעל דינו אינו נאמן וצריך ראיה לדבריו (טור) המנדה חבירו משום שזלזל בכבודו יכול לדונו אח"כ מאחר שאינו שונאו וע' לקמן סי' ל"ג סעיף ו':
It is forbidden for an individual [who is a Judge] to try one who is his friend,33Yad Sanhedrin XXIII, 6. Derived from Ket. 105b: ‘R. Papa said, One should not adjudicate a lawsuit either for one whom he loves or for one whom he hates; for he will not see the guilt of one whom he loves, or notice the merit of one whom he hates.’ This text does not state the degree of friendship or enmity. Tosaf. a.l., s.v. הא writes that this is not similar to the degree of friendship or enmity that disqualifies witnesses from giving evidence according to R. Judah who defines a friend as one’s groomsman and an enemy as one who out of enmity has not spoken to an individual for three days (San. 27a. The majority of the Rabbis [San. ibid.] hold contra R. Judah that Israelites are not to be suspected of giving false evidence on account of friendship or enmity and consequently may testify), for in the case of Judges, even the Rabbis will admit that one is ineligible to act as a Judge for a friend or enemy as defined by R. Judah, for it is difficult for the Judges to be unprejudiced and impartial under such circumstances (derived from a Scriptural text ibid. 29a). In Ket. we deal with a ‘friend’ as reported in the case of Amemar who was adjudicating an action when a bird flew down upon his head and a man removed it therefrom. When Amemar asked him what he was doing there, he told him that he came with a lawsuit. Whereupon Amemar stated that he was disqualified to act as his Judge. This was an added stringency because legally Amemar was not ineligible. Caro, however, in the present ruling (following Maim.) by stating, ‘It is forbidden etc.,’ (אסור) apparently disagrees with Tosaf. and holds that the prohibition is not on account of a mere stringency. The only similarity between Caro and Tosaf. is that the meaning of the terms ‘friend’ and ‘enemy’ used in the case of Judges is different from the meaning of these terms employed in the context of evidence (v. RIDBaZ to Yad ibid.). If both litigants are equally his friends or his enemies, one should not act as their Judge — P.Tesh. A.H., however, permits him to act as Judge even in the first instance. If a witness is signed on a document, he may not act as a Judge in the confirmation of that document (R. Yeruḥam) — ShaK. Cf. infra § 46, 24. although he is not his groomsman34San. 27b, 29a. He is regarded as such the entire seven days of the marriage feast — M.E. Thus also Rashi ibid. According to the Rabbis on the authority of Raba (San. 29a) after the first day he is no longer regarded as his groomsman. Tummim states that nowadays since most of the people do not make the feast for seven days, all admit that after the first day he is no longer considered his groomsman. or his companion whom [he loves] as his own self,35San. ibid. or one whom he hates,33Yad Sanhedrin XXIII, 6. Derived from Ket. 105b: ‘R. Papa said, One should not adjudicate a lawsuit either for one whom he loves or for one whom he hates; for he will not see the guilt of one whom he loves, or notice the merit of one whom he hates.’ This text does not state the degree of friendship or enmity. Tosaf. a.l., s.v. הא writes that this is not similar to the degree of friendship or enmity that disqualifies witnesses from giving evidence according to R. Judah who defines a friend as one’s groomsman and an enemy as one who out of enmity has not spoken to an individual for three days (San. 27a. The majority of the Rabbis [San. ibid.] hold contra R. Judah that Israelites are not to be suspected of giving false evidence on account of friendship or enmity and consequently may testify), for in the case of Judges, even the Rabbis will admit that one is ineligible to act as a Judge for a friend or enemy as defined by R. Judah, for it is difficult for the Judges to be unprejudiced and impartial under such circumstances (derived from a Scriptural text ibid. 29a). In Ket. we deal with a ‘friend’ as reported in the case of Amemar who was adjudicating an action when a bird flew down upon his head and a man removed it therefrom. When Amemar asked him what he was doing there, he told him that he came with a lawsuit. Whereupon Amemar stated that he was disqualified to act as his Judge. This was an added stringency because legally Amemar was not ineligible. Caro, however, in the present ruling (following Maim.) by stating, ‘It is forbidden etc.,’ (אסור) apparently disagrees with Tosaf. and holds that the prohibition is not on account of a mere stringency. The only similarity between Caro and Tosaf. is that the meaning of the terms ‘friend’ and ‘enemy’ used in the case of Judges is different from the meaning of these terms employed in the context of evidence (v. RIDBaZ to Yad ibid.). If both litigants are equally his friends or his enemies, one should not act as their Judge — P.Tesh. A.H., however, permits him to act as Judge even in the first instance. If a witness is signed on a document, he may not act as a Judge in the confirmation of that document (R. Yeruḥam) — ShaK. Cf. infra § 46, 24. although he is not his enemy nor does he seek his harm.36 Nnm. XXXV, 23. Cf. Ket. ibid. and supra n. 33. In the case of one who borrowed money from a scholar and subsequently denied having received the loan and took a false oath, and later appeared before this scholar with a lawsuit, the law is that the scholar should not act as his Judge, for he will not see any merit for him — Ḥawwoth Ya’ir. But it is necessary that both litigants should be equal in the eyes of the Judges and in their heart.37San. 7b-8a: ‘You shall not respect persons (לא תכירו) in judgment (Deut. I, 17). R. Judah says, this means, You shall not favour him (if he is your friend) ; and R. Eleazar says, (If he is your enemy) do not discriminate against him). Rab’s host came before him with a lawsuit and said, Were you not once my guest? Yes, he replied (and what is your request?) I have a lawsuit. Whereupon Rab said, I am ineligible to act as your Judge.’ And if the [Judge] did not personally know either of them at all nor [each] one's doings, there is no more righteous Judge than he.38Sifre Deut. XVI: ‘Hear the causes between your brethren and judge righteously between a man and his brother (Deut. I, 16) — The righteous in his righteousness claims and offers evidence,’ i.e., the Judge must not be guided by his moral convictions or by the reputation of the claimant, but by evidence only. Gloss: But if they had [already] tried [the case of a friend or enemy] their decision is binding.39Hag. Asheri San. beg. — G. According to this opinion one is forbidden to act as Judge even in the case of a real friend or enemy only in the first instance (לכתחילה), but ex post facto, (בדיעבד), the decision is binding — M.E. Accordingly, R. Papa’s dictum in Ket. ibid. applies even to a real friend or enemy as stated in San. ibid. and the prohibition refers only to the first instance. Some, however, say that in [the case of] one's real enemy, i.e., one to whom he has not spoken for three days out of enmity, or his real friend, i.e., one's groomsman and companion, — [the law is that] their decision is not binding.40Tur — G. According to this opinion the decision given in the case of a real friend or enemy is not binding even ex post facto — M.E. This follows from Mishna San. ibid. where in the case of testimony, a real friend or enemy is eligible to testify according to the Rabbis, but as far as Judges are concerned they are ineligible. , supra n. 33. If a litigant approves of the Judge who is a friend or a groomsman of his fellow-litigant, — the latter cannot object to be tried by this Judge — Tummim. Still others say that whoever is not his real friend or enemy, he is permitted to judge, and it is considered merely a measure of piety41e., the conduct of a very scrupulous person. to adopt a stringent view not to judge him.42San. 8a, Tosaf. s.v. פסילנא. Therefore, one is permitted to be a Judge when each [litigant] chooses one Judge [and the two Judges jointly choose the third],43 infra § 13 beg. — G. But one who Biblically is considered a relative or otherwise ineligible is unfit to be a Judge, even if each litigant chooses one Judge etc. (Mishna San. 23a-b). Hence, Isserles writes, ‘Therefore etc.,’ i.e., since the prohibition is merely a measure of piety, it follows that in the case of one who is unfit Biblically, he may not act as Judge. because each [litigant] chooses his friend;44Each one chooses a Judge who understands his case well, and if each Judge finds some merit in favour of his friend who chose him, he will present it to his fellow-Judge, and the third Judge will then harmonize the conflicting opinions. Hence, even if he is his friend and will see only merit for him, it applies to the other as well, and with the harmonization of the conflicting opinions by the third Judge a true verdict will be reached — M.E. and much more so that a teacher can be a Judge for his disciple.45MaHaRIK Rt. 16 — This refers to the preceding ruling, viz., that in the case of a litigant who is not his real friend or enemy, the prohibition is only on account of a measure of piety. Derived from Shab. 30b: ‘And Rabbah son of R. Huna stated: If a Rabbinical scholar and an illiterate person have a legal dispute with each other, the scholar should not come first and sit down (before the Judge prior to the arrival of his opponent even if he keeps his silence) for it appears as if he is presenting his case (which is forbidden before the opponent arrives). And we say this only when he has no fixed time (for study) with him; but if he has a fixed time (for study) with him, we have nothing against this (i.e., if the Judge is his teacher and this is the appointed time for his lesson, the scholar is permitted to arrive before his opponent), because he (his opponent) will say, he is busy with his lesson.’ We, therefore, see that no prohibition exists against a teacher acting as Judge for his disciple. The Judge may also adjudicate a case of the father of his disciple, although he receives tuition fees from him — M.E. Likewise, may one act as Judge in lawsuits involving his host, employees or daily workers — ShaK. And even a Court that is unfit to judge on account of friendship or enmity can appoint other eligible Judges [in order] that they adjudicate [the case in question].46Decisions of Isserlein s. 258 and MaHaRIK Rt. 21 — G. , San. 8a. MaHaRIK ibid. writes that even one who adopts a stringent view out of piety is fit to choose Judges. Isserlein ibid. states that every Court that is ineligible to adjudicate a case, has a right to appoint another Court — M.E. However, one who is unfit to judge on account of kinship may not appoint another Beth Din unless such is the prevailing custom in that particular community — Nethiboth. One who makes a statement concerning a Judge that he is his enemy or a friend of his opponent, is not believed, and he is required [to adduce] proof [in order to substantiate] his words.47Tur — G. Mishna San. 23a in accord with the Sages: ‘Each party may refuse to accept the Judge chosen by the other. So holds R. Meir. But the Sages say that this applies only if the objector can bring proof against them that they are kinsmen or otherwise ineligible.’ Tur has, ‘He must adduce proof that he has not spoken to him for three days out of enmity.’ [A Judge] who pronounces a ban against a fellow because [the latter] treated him disrespectfully, can [nevertheless] act as his Judge subsequently, since he is not [regarded thereby] his enemy.48 supra n. 32 regarding the case of the man who insulted Rab Judah b. Ezekiel and the latter placed him under a ban and subsequently declared him to be a slave, whence it follows that although he first placed him under a ban, yet, he did not hesitate later to designate him a slave, which shows that Rab Judah did not have the status of an enemy. In D.M., Isserles writes that this requires further elucidation. , M.E. who writes that Isserles is doubtful because while the ban is in force there still is enmity among them. Consequently, during the ban, the Judge who imposed it, should not try the same person for another offence. , infra § 33, 6.
שני ת"ח השונאים זה את זה אסורים לישב בדין יחד שמפני השנאה שביניהם דעת כל אחד מהם לסתור דברי חבירו:
Two scholars who hate each other, are forbidden to sit together in judgment, for on account of the enmity that [exists] between them, each one's mind [is inclined] to reverse the words of his colleague.49Thus Yad, Sanhedrin XXIII, 7. Derived from San. 29a: ‘R. Jose, son of R. Judah said, And he was not his enemy, neither sought his harm (Num. XXXV, 23); from this we derive that two scholars who hate each other, may not sit together in judgment.’ BaḤ writes that if they are real enemies (v. supra par. 7) their decision is Biblically not binding, since a Scriptural text is adduced to support this ruling. Two individuals who differ in their deportement and characteristic features, should not be appointed to any office (Sefer ha-Ḥinnuk) — P.Tesh. In the first instance a Judge should not try the case of the father-in-law of his son or daughter, even if he is a permanent Judge. However, ex post facto, his decision stands. But when trying other suits, the Judge may sit with him in judgment, even in the first instance — Nethiboth (infra § 33).
כל הפסולים (להעיד) מחמת קורבה או מחמת עבירה פסולים לדון (וע"ל סי' ל"ג ול"ד פרטי הפסולים לענין עדות וה"ה לענין דיינות שהדיינים לא יהיו קרובים זה לזה ולא לעדים) (ר"ן פ"ב דכתובות ותשובת רשב"א סי' תש"ץ) (ע"ל סי' ל"ג סעיף י"ז):
All those who are ineligible to testify on account of kinship,50One who came with a lawsuit to an expert Judge (מומחה) and was aware that his fellow-litigant is related to the Judge, the law is that the latter is permitted to adjudicate the case, since the very fact that the litigant is satisfied that this Judge should try the case despite the latter’s relationship to the fellow-litigant, is tantamount to an acceptance of the Judge. Should, however, the related litigant desire to declare the Judge ineligible, he has the right to do so — ShaK, A.H.
51) A public announcement (הכרזה) is required to be made with respect to a person who Rabbinically is disqualified to act as a witness. Not so, however, in the case of a Judge — Keneseth ha-Gedolah. Ezrath Nashim requires a public announcement even in the case of a Judge. or on account of sin, are ineligible to judge.52Derived from Mishna Nid. 49b: ‘Whoever is eligible to judge is eligible to give evidence, and some are eligible to give evidence and are not eligible to judge.’ If one of the Judges was found to be a kinsman or otherwise ineligible, the entire judgment is invalidated as in the case of witnesses (infra § 36, 1) — R.A.Eger. The litigants must then present their pleas again before eligible Judges and a new adjudication is required. The previous Judges, excluding the Judge who was related to the witnesses or to an otherwise ineligible person, may participate in the new adjudication — A.H. , infra §§ 33 and 34 [regarding] the detailed laws of ineligible persons with respect to testimony and the same applies to adjudication, [viz.,] that the Judges should not be related to each other nor to the witnesses.53RaN to Ket. II end; RaShBA Resp. s. 790; v. infra § 33, 17 — G. Derived from Y. San. III, 10(23c); Y. Sheb. IV, 1(35b) according to the version of Alfasi and Asheri to San. III: ‘Whence is it derived that the witnesses should not be related to each other? — This follows from your own logical deduction, (viz.,) that if one of them was proven to be a Zomem (v. Deut. XIX, 19), is he put to death (by the law of retaliation) before his fellow (-witness) is (also) proven to be a Zomem? — (Certainly not.) Consequently, since the law of retaliation operates only if both witnesses are proven to be Zomemim, it follows that if both witnesses are related to each other, each kinsman-witness would be put to death through the testimony of his fellow kinsman-witness (which is impossible on the basis of the text, The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers — Deut. XXIV, 16, — which is explained anon to intimate that all relations, not only fathers and sons, are not to be put to death through the testimony of other relations. , Y. anon and cf. San. 27b-28a). (For) if you say thus (i.e., that witnesses may be related to each other, would not the result be that one kinsman-witness) is put to death on his (i.e., the other kinsman-witness) testimony? Whence is it derived that the witnesses should not be related to the Judges? — This follows from your own logical deduction, (viz.,) that if they (the witnesses who are related to the Judges) are proven to be Zomemim, would not (the result be that) they (the witnesses) are put to death through their (the Judges’) verdict (i.e., after the Judges receive the refutation of the testimony that was given by the witnesses who were related to the Judges) ? Whence is it derived that the Judges should not be related to each other? — Scripture states : Put to death on the testimony of witnesses (v. Deut. XIX, 15) ; Put to death according to the decision of Judges (v. Deut. XVII, 11) — just as witnesses must not be related to each other, so too, must the Judges not be related to each other.’ Cf. also infra § 46, 21. The Judges must not be related even to the mandatories of the litigants, provided the mandatories are interested parties in that they will have a share in anything that is ruled in favour of the litigants whom they represent — A.H.
דיין שיודע בחבירו שהוא גזלן או רשע אין לו להצטרף עמו:
A Judge who knows his colleague to be a robber or a wicked man, should not join with him.54Even if he renders a correct verdict — M.E., or even if they arbitrate the case — A.H. Yad, Sanhedrin XXII, 10; II, 14. Derived from Sheb. 30b: ‘Whence do we derive that a Judge who knows his colleague to be a robber or a witness who knows his colleague to be a robber should not join with him (to judge or testify) ? — Because it is said, From a false matter keep far (Ex. XXIII, 7).’ Hence, if the status of his colleague is unknown to him, he may sit with him in judgment. , however, supra § 3, 4: ‘It is forbidden for a wise man to sit in judgment until he knows with whom he sits lest he sit with people who are not suitable and is (then) found to be included in a council of conspirators and not in a Beth Din,’ — whence it follows that as long as one is not certain about the eligibility of his fellow-Judge, he must not join with him, which contradicts the present ruling. BaḤ therefore, explains that supra we deal with a Judge who is distinguished in wisdom and learning, in which case he should first make certain about the eligiblity of his colleague; whereas in the present ruling we treat of an ordinary Judge who is permitted to join with a colleague to sit in judgment unless it is known to him that the latter is a robber or a wicked person. Tummim removes the contradiction by explaining that supra we deal with the commencement of a trial, in which case one must make certain that his colleague is fit to judge; whereas here we deal with a case where the trial had already commenced and he thought that his colleague was an eligible person, but during the proceedings it became clear to him that his colleague was ineligible to judge, in which case the law is that if he knows him to be a robber etc., he must discontinue the proceedings (note the expression לישב employed supra and להצטרף used here). Shebuth Ya‘akob explains that supra we deal with a Judge who does not know his other two colleagues. Hence, he must not sit with them before he determines their eligibility. Otherwise, he is regarded as associating himself with a council of conspirators, since the majority of the members of the Court are unfit to judge. However, if two of the Judges know each other, but they do not know the third Judge, there would actually be no prohibition if they associated themselves with the latter, yet, the pure-minded of Jerusalem would refrain from sitting in judgment with such a Judge until they would be certain about his eligibility (v. supra § 3, n. 33). The present ruling, however, has reference to a case where one of the three Judges knows one of his colleagues to be a robber etc., in which case he must not join with him, even if the third Judge is fit, for although this Court is not regarded as a council of conspirators since the majority of its members are fit, yet, it is forbidden on account of the Biblical injunction, From a false matter keep far. If the litigants accepted the ineligible Judge, there is no prohibition against joining with the latter since there are two eligible Judges, and consequently, it is not considered a council of conspirators and the verse, From a false etc., is not applicable — A.H.
ב"ד של ג' צריך שיהיה בכל אחד מהם ז' דברים חכמה ענוה יראה שנאת ממון אהבת האמת אהבת הבריות להם בעלי שם טוב (וע"ל סי' ח' סעי' א'):
[With respect to the members of] a Court of three, it is necessary that each one of them should possess seven [characteristic] things, [viz.,] wisdom, humility, fear [of G-d], averseness to money [acquired illegitimately],55Thus A.H., love of truth, love [manifested] towards them by [fellow] creatures56This is the meaning of ידועים, (v. next note), according to Maim. — W.G. Cf. Gen. XVIII, 19 and Rashi a.l. [and] possessed of a good name.57 infra § 8, 1. — G. This is the meaning of ‘able men’ (אנשי חיל), i.e., individuals who are endowed with the will-power to act justly and righteously and thereby acquire a fine reputation. Tur citing Yad, Sanhedrin II, 7. The following sources enumerate the qualities that a Judge must possess: Tosef (Ẓ). San. VII, 1; ibid. Hag. II, 9; Y. San. I, 4(19c); San. 88b. In the three latter sources the quality of ‘humility’ (ענו) is mentioned after ‘wisdom’ (חכם). The quality of ‘humility,’ however, is not found in the following additional sources: Deut. R. I, 10 to v. 13 ibid.: ‘R. Berekiah on the authority of R. Ḥaninah stated: Judges must possess the following seven qualities: (They must be) wise men (חכמים), understanding (נבונים), full of knowledge (ידועים). Hence we have three. And four more as it is written elsewhere (Ex. XVIII, 21), Thou shalt provide out of all the people able men (אנשי חיל), such as fear G-d (יראי אלקים ), men of truth (אנשי אמת), hating unjust gain (שונאי בצע). Hence, we have seven. Why were not the seven stated together? (To intimate) that if (Judges) were not found (endowed) with seven (qualities), one may bring (Judges) possessing (only) four (qualities) ; and if (Judges) were not found (endowed) with four (qualities), one may bring those possessing three (qualities); and if these were not found, one may bring (Judges) possessing one (quality), for it is written, A woman of valour who can find (Prov. XXXI, 10).’ In the last verse quoted it seems that the Midrash takes a woman of valour (אשת חיל) as equivalent to able men mentioned in Ex. ibid., i.e., even if the Judges possessed only one quality, it suffices. Cf. Prov. ibid. v. 23: Her husband is known in the gates, when he sitteth among the elders of the land. This refers to the gates of justice where local matter were adjudicated. Hence, the connection between the text in Prov. and that of Ex. , MaHaRZaW to Deut. R. ibid. Cf. also Sifre to Deut. ibid. on the seven qualities that a Judge should possess. Maim. (followed by Tur and Caro) considers ‘wise men’ and ‘understanding’ (חכמים ונבונים) as one quality. Hence, he adds the quality of ‘humility’ (ענוה), although it is not mentioned in Deut. R. However, it seems that he followed San. B. and Y. and Tosef Hag. ibid., where ענן is mentioned. , Leḥem Mishneh to Yad ibid. ‘Humility’ was a quality that Moses possessed, Now the man Moses was very humble (ענו) — Num. XIII, 3 — and since in Ex. ibid. v. 22 it is stated, so shall it be easier for thyself, and they shall bear the burden with thee: ‘with thee’ implies like unto thee (Kid. 76b; San. 36b; Hor. 4b), it follows that Judges who are appointed must also be endowed with the quality of humility or meekness as in the case of Moses. Cf. Maim. Yad ibid. who elaborates on the qualities to be possessed by Judges and gives a different order from that mentioned in the above texts.
כל דבר שיש לדיין בו צד הנאה אינו יכול לדון עליו לפיכך בני העיר שנגנב ס"ת שלהם אין דנין אותו בדייני אותה העיר אא"כ יש להם ס"ת אחרת והאומר תנו מנה לעניי עירי אין דנין בדייני אותה העיר (וע"ל סי' ד' דאם חד מחזיק בשלהם עבדי דינא לנפשייהו ועיין לקמן סי' ל"ז סעיף י"ט וסעיף כ' מאלו הדינים) ולפיכך עסקי המס אין דנין בדייני אות' העיר מפני שיש להם או לקרוביהם חלק בו (ואם הוא מס פרטי כגון שאינו נוהג אלא זמן קצוב יכולין קצת מן הקהל להסתלק ושלא יהיה להם הנאה מזה ודיינין) (תשו' הרא"ש כ"ו סי' י"ח כת' דלא מהני סילוק ובכלל צ''ט כתב דמהני וצריך לחלק בין מס פרטי) ואם עשו תקנה או שיש מנהג בעיר שדייני העיר ידונו אף על ענין המסים דינם דין (ועיין לקמן ס"ס ל"ז סעיף כ"ב מזה):
Every case concerning which there results indirect benefit to the Judge, he [the Judge] cannot adjudicate. Therefore, [if] a Torah scroll belonging to the townspeople has been stolen, he [the alleged culprit] is not tried by the Judges of that town,58B.B. 43a: ‘Has it not been taught: If a Torah scroll belonging to the townspeople was stolen, (the alleged culprit who claims that he bought it — Thus RaShBaM), must not be tried by the Judges of that town, nor can evidence be given (against him) by the inhabitants of that town (because they are all interested parties). Now if we adopt the opinion that a partner can renounce his interest (v. Gemara supra), why cannot two of the inhabitants of the town renounce their interest in the scroll and try (the alleged culprit) ? — A Torah scroll is different because it is utilized for public reading (hence, none of the inhabitants of that town can entirely renounce his interest in it, unless he leaves the town. Consequently, all are considered interested parties). Come and hear: If one says, Give a Maneh to the poor of my town (and it was stolen, the alleged culprit) … must not be tried by the poor Judges of that town, nor may the poor of that town give evidence … Cannot two of them renounce their interest and adjudicate the case? — Here too, we (treat of) a Torah scroll and the reason why the donor referred to the recipients as poor is because all are poor with respect to a Torah scroll.’ , Yad, ‘Eduth XV, 2. unless they have another Torah scroll.59In the Synagogue where the Judge or Judges worship. For then the Judges are no longer interested parties. But if in this Synagogue there is no other Torah scroll available, though there is another Synagogue in town where they have a Torah scroll, yet, in order for the Judges to be permitted to try the case, they must renounce their interest in this Synagogue. This is derived from RaShBaM to B.B. ibid., s.v. דהכל אצל: ‘All are in need of the Torah scroll, and it is customary to refer to the townspeople who have no Torah scroll as poor (v. text supra n. 58 and), for there is no greater poverty than this.’ It follows, therefore, that only when this is the only Torah scroll they possess that they are designated poor, but if they have in addition another scroll, then after renouncing their interest, they may adjudicate the case and are permitted to read even in the disputed Torah scroll. Thus also Tur; Asheri in Resp. and R. Yeruḥam. Similarly, when the controversy is regarding the Synagogue where the Judge worships, he must renounce his interest in that Synagogue and worship in the other Synagogue; but when he attends his own Synagogue, although he can go to the other Synagogue, despite the fact that he renounces his interest in his Synagogue, he is still regarded as an interested party — M.E. contra ‘Ir Shushan. Moreover, the circumstances must be such that all the townspeople could be accomodated at the other Synagogue. Otherwise, the Judge would still be regarded as an interested party because the law is that townspeople who are in need of a Synagogue may compel each other to build one (v. infra § 163, 1) and consequently, the Judge will also have to contribute. Hence, if the other Synagogue is not large enough to accomodate all the worshippers of the disputed Synagogue, they are all considered interested parties, for they all desire to regain possession of their Synagogue. However, if the Judge’s seat in the disputed Synagogue is his own property, he is not regarded as an interested party, provided the ‘seven representatives of the town’ (שבעה טובי העיר) have no right to sell the Synagogue or the Torah scrolls for the needs of the community (v. Y.D. § 282). Otherwise, the Judge is always considered an interested party — Tummim, A.H. And [likewise,] one who says, 'Distribute a Maneh to the poor of my town,' [and it was stolen, — the alleged culprti] is not tried by the Judges of that town.60B.B. ibid. , text supra n. 58. Yad, ‘Eduth XV, 3. For they are pleased if the poor have a surplus because they will not be called upon to pay. Therefore, even if the Judge is willing to continue to make his regular contributions to the poor, and even if the judgment will be rendered in favour of the poor, yet, he is still regarded as an interested party. , supra § 4 that if one takes possession of aught that belongs to them [the towns-people] they may take the law into their own hands. , infra § 37, par. 19 and par. 20 concerning these laws. Consequently, taxation disputes are not tried by the Judges of that town, because they [the Judges] or their relatives have an interest therein,61Tur on the authority of Asheri. but if it is a [dispute concerning a] special tax, e.g., [an assessment] that obtains only at a fixed time,— [the law is that] some [inhabitants] of the community62By paying their assessment in advance no matter what the outcome of the case will be. can renounce their share [in this special tax] so that they derive no benefit therefrom. And [consequently,] they may adjudicate [the case]. Asheri [in] Resp. 26, s. 18 writes that [renunciation] has no legal effect and [yet in] rule 99 he states that [renunciation does have a legal effect. Hence, we must make a distinction between a special tax [where renunciation is legally binding62By paying their assessment in advance no matter what the outcome of the case will be. and a permanent tax where renunciation has no legal effect].63Latter interpretation in B.B. ibid.: ‘If you wish I can say that the poor literally are referred to and we deal with poor whose support rests upon the Judges (who are wealthy). How is this to be understood? If there is a fixed amount (for them to give), let two of them give their donation and then adjudicate the case (since they are thus no longer interested in the donation). We understand this to mean that there is no fixed amount (for them to donate, but the contribution is made only when the occasion arises. Hence, as long as there is still a possibility of collecting the money from the alleged culprit, they are still interested parties).’ It follows therefore, that just as in the case of a charitable contribution which is not fixed, renounciation is ineffective, so, too, in the case of a permanent tax it is impossible to establish with certainty that no benefit will be derived at some time or other. For it is impossible to know how long the person who is tried will live in order for the Judges to know how much they should pay as their share so as not to be regarded as interested parties — B.Yos. It is only in the case of a special tax where the amount to be renounced may be established that renunciation is effective. However, if they made an ordinance,64B.B. 8b. , text supra § 2, n. 18; B.K. 116b: ‘Ass-drivers are permitted to stipulate that one who loses his ass should be provided with another ass,’ i.e., even if it against the law. , Tosaf. s.v. ורשאין. However, if the Judges of a certain locality feel that other Judges from another town should be invited to try a case in their town, they should do so — A.H. or there is a prevailing custom in town65B.K. ibid.: ‘Our Rabbis taught: If a caravan was travelling through the wilderness and a troop of invading robbers threatened to pillage it, the contribution to be paid by each (in order to buy off the robbers) is calculated according to one’s possessions (in the caravan), but not in accordance with the number of people there (because we assume that the invading robbers came originally for the possessions and not necessarily for the people). But if they hired a guide to go before them, the calculation has to be made also (also is wanting in Y. B.M. VI, 4(11a)) in accordance with the number of people in the caravan (because a guide is essential also to protect one’s life) and they must not deviate from the general practice of the ass-drivers (i.e., if they stipulate to make the calculation according to possessions or persons, they may do so).’ The same applies to the general custom of mariners stated further ibid. Hence, we see that we follow the adopted practice although it is against the law. , also Mishna B.M. VII, 1(83a) and Gemara a.l. that the Judges of the town should also try cases pertaining to taxation disputes, their decision is binding.66 infra § 37, 22 concerning this — G.