חושן משפט כ"ב

One [of the litigants] who accepted a relative¹Yad, Sanhedrin VII, 2. Derived from Mishna San. 24a: ‘If one (of the litigants) said to the other, I accept my father as trustworthy,’ or ‘I accept your father as trustworthy,’ or ‘I accept three oxherds as trustworthy.’ R. Meir says, He may (subsequently) retract; but the Sages maintain, He cannot retract.’ By stating ‘father’ we derive that accepting a relative is valid. or an [otherwise] ineligible person²Mishna ibid.: ‘I accept three oxherds as trustworthy,’ whence we derive the law of accepting an ineligible person. For an oxherd is ineligible to judge or to testify — v. San. 25b: ‘Raba stated: The oxherds to whom (the Sages) have made reference include the oxherds of both large and small cattle.’ Therefore, we are informed that if they were accepted by the litigants, it is valid. , also ibid. 24b: ‘Raba stated: If one accepted a relative or an (otherwise) ineligible person (to act as Judge or witness), he may retract before the conclusion of the trial, but not afterwards.’ Gemara concludes that Raba’s statement agrees with R. Joḥanan according to the view of the Sages in the Mishna. to act as a Judge³San. 25b: ‘For we learnt: (If one says), I accept three oxherds as trustworthy (they are acceptable [which means that otherwise they are ineligible]). Does this not (mean that ordinarily they are ineligible) for witnesses? — No, for Judges. This is also apparent from the expression three oxherds; for if it means eligible as witnesses, why three?’ Hence, if they were accepted, it is valid and according to the Sages, he may not retract. or a witness⁴San. 23b whence it is derived that acceptance of an otherwise ineligible person to act as witness is on the same par as accepting him to judge. The entire Mishna in San. 24a deals with a case where the acceptance took place before a Court of three eligible Judges (v. Y. San. III, 5(21a)). For if outside of the Court and there was no formal agreement made by Kinyan, the law is that even after the conclusion of the trial, he may retract according to all the authorities — Hag. Asheri on the authority of O.Z. N.Yos. and R. Yeruḥam (to B.B. VIII) on the other hand, maintain that the relatives or otherwise ineligible persons were not accepted before a Court; but if their acceptance was before a Court, then even before the conclusion of the trial, he may not retract — ShaK. Tummim writes that actually there is no difference whether they were accepted before a Court of Law or not. For once the pleas are presented before them they enjoy the status of a Court and it is regarded as if the acceptance took place before a Court of Law. The acceptance of a relative is valid only where the litigant knew that this was his relative, but if he pleads that he was unaware that he was his relative, the law is that he must take an equitable oath (v. supra § 1, n. 2) and may retract (BaḤ). However, if the litigant used to visit him and now he states that he was unaware that he is his relative, he is not regarded trustworthy (v. infra § 36, 2). Where the litigant claims that he was unaware that the accepted person was ineligible, the following distinction should be borne in mind: If the person is Rabbinically ineligible, in which case a public announcement is usually made in Court proclaiming him as such — then the litigant is not believed (v. ShaK infra § 71, n. 31) because all judicial matters are publicized; whereas in the case of an ineligible person who does not require a public announcement proclaiming him as such — the litigant is regarded trustworthy — P.Tesh. If the relative reveals that he is obliged to help and support the litigant, the latter’s acceptance of him is invalid (Keneseth ha-Gedolah). Shebuth Ya‘akob reports a case concerning a woman who left instructions prior to her death that if any dissension will arise between her sons, a certain relative of hers should adjudicate their case, and the sons obligated themselves by means of ‘striking hands’ (תקיעת כף) to follow the decision of that relative, and now one of the sons refuses to be tried before him, claiming a) that the latter is an illiterate person who is incompetent to adjudicate such matters, or at least others should be co-opted forming a Beth Din; b) that this person is more favourably disposed to one of the other brothers. Resp.: The law is that regarding the Talmudic principle ‘It is a religious duty to carry out the instructions of a dying person’ (Ket. 68b-70a; Git. 14b, 15a, 40a), it would not be applicable in this case (v. infra § 252, 2; Y.D. § 232, 17, Gloss); but as far as the obligation effected through ‘striking hands,’ the instructions must be carried out, and as to a) he knew about this at the outset and yet accepted him; b) every vow, the release of which, brings in its wake the ‘least suspicion of sin’ (נדנוד עבירה), should not be annulled (v. Y.D. § 230, Gloss). Hence, in the present case there is still a ‘suspicion of sin’ against his mother because he should carry out the instructions of his mother, albeit in the category of ‘fulfilling his duty beyond the requirements of the law,’ although strictly speaking this is not applicable in the present case — P.Tesh. — Gloss: the acceptance is regarded [valid] only when [the litigant] accepted him to act as Judge; but if he deposited money with him regarding which they were in dispute, it is not designated [valid] acceptance⁵RIBaSh s. 311 — G. This refers to a case where one took an oath to pay his fellow on a certain date, and when the time for payment arrived, he deposited the money with the town Judge in order to fulfil his obligation effected through the oath, and instructed the Judge not to deliver the money to the other party because he had a claim against him and the Judge was related to him. Consequently, since the litigant did not accept the Judge explicitly, the acceptance is not valid and the judgment has no legal consequences — M.E. — even if he accepted one of those ineligible on account of sin as [equivalent to] two eligible witnesses to testify on his behalf or [he accepted him] as three of a Court of Law [of] authoritative [Judges] to adjudicate [the case] for him.⁶Yad, Sanhedrin VII, 2. Derived from San. 24a (ref. to Mishna ibid.): ‘R. Dimi b. R. Naḥman b. R. Joseph stated: (The Mishna has reference to a case) e.g., where he (the litigant) accepted him (i.e., one of those mentioned) as one (of the three Judges).’ According to Rashi this refers to R. Meir’s viewpoint and it means that even if there are two other eligible Judges, R. Meir maintains that he may retract, whence it follows that according to the Sages, both if he accepted him as one of the Judges or as three, he cannot retract. ‘An ineligible person’ is mentioned here in order to introduce a remarkable feature, viz., that even one who is disqualified to offer testimony in any other case. Much more so in the case of a ‘father,’ who is eligible to offer testimony in other cases, is the acceptance considered valid where the latter was accepted as two witnesses or three Judges — M.E. Gloss:⁷This Gloss should come after ‘he can … legal proceedings are closed’ anon — M.E. Some differ [with this ruling] and are of the opinion that [this is applicable] only if he accepted a relative or an [otherwise] ineligible person as one Judge or as one witness; but if he accepted him as two [witnesses or as three authoritative Judges] in which case there are two irregularities — [the law is that] even after the legal proceedings are closed, he may retract.⁸Thus Alfasi to San. III contra Gaon who maintains that even if a formal Kinyan was made before a Beth Din, he may retract, since it was a Kinyan made in error. Cf. Sheb. 42a: ‘A certain (man) said to his fellow: You are believed by me like two whenever you claim that I have not paid you. He went and paid him before three. Said R. Papa: He believed him like two but like three he did not believe him. To this R. Huna b. R. Joshua objected: Two are like a hundred and a hundred are like two! But if he said to him: Like three, and he went and paid him before four (witnesses, the lender is not believed), for since he cares to mention a certain number of opinions (that he believes him like three people) he means (exclusively) that number of opinions (for otherwise he would have mentioned only two who are equivalent to any number).’ There must have been a formal Kinyan made, for if the statement of credence was made at the time the loan was transacted it is equivalent to Kinyan; otherwise formal Kinyan is required. We thus see that as far as two are concerned the lender is believed according to all opinions, although there were two irregularities (תרתי לריעותא), a) he believed the lender himself; b) he considered him as two witnesses. Likewise in the present ruling there are two irregularities, a) one Judge was accepted like three; b) even he was Biblically ineligible. Hence even in the case of two irregularities, once a Kinyan was made he may not retract on the principle ‘nothing else is required after Kinyan is effected’ (אין לאחר קנין כלום). Should he, however, appoint another Court to deal with the case, the latter must adjudicate the case in accordance with the pleas and admissions presented before the first Court (provided there was a formal Kinyan made. Thus Nethiboth) — M.E. on the authority of RaShBA Resp. If he accepted one eligible Judge like three experts (Mumḥin) or one eligible witness like two and the trial was concluded he may not retract (since there is only one irregularity) — M.E. and later authorities contra ShaK. , P.Tesh. Likewise, if he accepted three ineligible persons (simultaneously. , P.Tesh) like three eligible ones, he may not retract, since there is only one irregularity — Tummim. , however, K.H. Thus is the common consent of the majority of the Codifiers.⁹In accord with San. 23b, Tosaf. s.v. ואמר who point out that R. Dimi’s statement (v. supra n. 6) refers to the view held by the Sages, viz., that he may not retract; but if he accepted one as the equivalent of a complete Court, even the Sages will agree that he may subsequently retract on account of two irregularities involved. ShaK, however, cites many authorities who accept the first opinion. However, if they made a formal agreement with him by means of a Kinyan, in nowise may he retract.¹⁰e., even if they accepted one witness as two — M.E. Thus Alfasi. Derived from Sheb. 42a. , supra n. 8. Whether he accepted to forfeit his rights and to remit whatever he claimed in accordance with their verdict or he accepted to pay whatever claim his fellow [-litigant] will make against him according to the evidence of this ineligible person or according to his legal decision¹¹San. 24b: ‘R. Naḥman b. R. Ḥisda sent a query to R. Naḥman b. Jacob: Will our Master kindly teach us, Is the difference of opinion (between R. Meir and the Sages) before or after the verdict (is given), and with whom does the law accord? — He sent back word: The difference of opinion has reference to the close of legal proceedings (i.e., after the verdict is given) and the law rests with the Sages. R. Ashi stated: This was the query he sent: Do they differ in a case where (the defendant says) I will pay your claim, (if such is the verdict), or with regards to (a case where the plaintiff says) Let my claim against you be remitted (should this be the final verdict. The point is this: In the former case money will be transferred from one party to another, and consequently more power must be exercised; in the latter case, less authority is required, since the possessor has a presumption of ownership) and with whom does the law accord? — He replied: The controversy is with reference to I will pay you and the law accords with the Sages.’ — [the law is that] if they made a formal agreement with him by means of a Kinyan relative to this [matter], he cannot retract; but if they did not make a formal agreement with him by means of a Kinyan, he can retract before the legal proceedings are closed.¹²San. 24b: ‘A message was dispatched from the School of Rab to Samuel as follows: Will our Master kindly teach us, (If one of the parties) made a formal agreement by Kinyan (not to retract), what (if he desires to retract) before the verdict is given? — He sent back word: After a formal agreement is made by means of Kinyan, nothing (can be done to retract from the pledge).’ Although this (i.e., not to retract) appears to be ‘a mere verbal agreement’ (קנין דברים), i.e., that of which ownership is acquired by means of the Kinyan is only a verbal promise, and does not involve any concrete article, — yet, we do find that the Kinyan binds him in his undertaking (v. B.M. 67b; B.B. 3a; supra § 12, n. 31). Thus N.Yos. RaBaN maintains that the Kinyan is binding only when the litigant pledges himself to follow the verdict of the Court or to accept the evidence of the witnesses — ShaK. Supra § 12, 2 it has been explained what is considered the close of legal proceedings.¹³e., when the pronouncement is made: ‘So-and-so, you are guilty’ or ‘So-and-so, you are not guilty,’ and much more so when they say to him ‘Go and pay him’ which indicates that a definitive decision has been reached. Not so, however, when they say to him, ‘You are obliged to pay him,’ for such a statement is indicative that they are still in doubt — M.E. ShaK adds that the legal proceedings are also considered closed when the litigants leave Court. And as to the matter of evidence, — [the law is that] as soon as [the witnesses] have testified, he cannot retract.¹⁴RIBaSh s. 490 and Mord. — G. Thus also majority of Codifiers. , Sheb. 30b. [As soon as] the legal proceedings are closed, he cannot retract¹⁵San. 24b. , supra n. 1 Yad, Sanhedrin VII, 2 has ‘Once the legal proceedings are closed and money was exacted through the verdict of this ineligible person or through his testimony, he may not retract.’ Kes. Mishneh explains that it does not necessarily mean that money had been exacted, but that since the legal proceedings are closed it is as though money had been exacted. The litigants are not permitted to retract even if they both agree, the reason being that out of deference to the Judge, the verdict must stand unless the litigants wish to make a complete remission to each other — B.Yos. provided it did not become known that [the Judges] erred [in their decision].¹⁶San. 6a: ‘R. Abbahu stated: All concur that a decision given by two (Judges) in civil cases is not valid. R. Abba raised an objection (from the following): If one adjudicated a case by himself and pronounced the guilty, not guilty, and the not guilty, guilty, or the unclean, clean, his act cannot be upset, but he (the Judge) has to pay from his own pocket (This clearly shows that the decision of one Judge also stands)? — We deal here with a case where the litigants accepted the Judge. If so, why should the Judge) pay indemnity? — Because they (the litigants) said to him: Adjudicate the case for us in accordance with the law of the Torah.’ The Talmud (ibid.) concludes that if the Judge erred in his decision by overlooking a law stated in the Mishna, he may revoke his decision; but if he made a mistake in deciding against common pratice, his act cannot be undone and he must pay from his own pocket. It is thus evident that whenever the litigants accept the Judge, even if he is ineligible, then even if a Kinyan was effected, it is only on condition that no error should be made. Otherwise they may retract. Cf. Git. 14a: ‘R. Naḥman said, If a formal agreement by means of Kinyan was effected in error, the money must be returned.’ In a case where the Judges erred in their decision and the litigant is then permitted to retract, he is allowed to present his case anew and even alter his original pleas. Furthermore, the second Court of Law gives the litigant a new extension of time to produce his proofs or other required evidence. If the litigants accepted the Judges to adjudicate their case in accordance with strict law, and they (the Judges) made a settlement through arbitration, this too, is considered an error in judgment and even if the litigants bound themselves by a Kinyan, they may retract — M.E., ShaK. However, if they are [the] duly appointed [Judges] in the city or the representatives of the town, he cannot retract,¹⁷For in such a case it was known that the Judges are incompetent, and consequently, when they were accepted by the litigants, it meant that their decision would be followed even if it were erroneous since they are the representatives of the town. , infra § 25. In this case even if the litigants accepted them to Judge in accordance with the law of the Torah and the latter instead made a settlement by arbitration, their decision is still binding — M.E. If the Judges were accepted before the representatives of the town (even three of the representatives. Not necessarily the entire seven) even Kinyan is not required (v. infra § 163 end) — M.E., ShaK. Hence, even before the conclusion of the trial, one may not retract. Not so, however, if the acceptance took place before three Judges who are not the town representatives. In this case one may retract only before the conclusion of the trial — ShaK. for thus is the adopted practice [viz.,] that whatever a person accepts before the heads of the town, he cannot retract.¹⁸Tesh. Maim. to Shofetim end — G. If [the litigant] denies [this] and states, 'I did not accept [him] to act as Judge,' and there are no witnesses [to confirm this] statement, he must take an oath that he did not accept him [as Judge] even if the Judge contradicts him and stated that he [the litigant] did accept him.¹⁹Tur and Asheri in Resp. e., he takes an equitable oath (שבועת היסת), because the Judge is not regarded as a witness in order to obligate the litigant to take a Biblical oath (שבועה דאורײתא) for the following reasons: a) Since we deal here with a relative or one otherwise ineligible; b) The litigant does not deny any monetary claim save that he did not accept him as Judge in which case a Biblical oath is not imposed — M.E. ShaK (followed by W.G.) rejects the latter reason and maintains that this is certainly regarded as a denial of a monetary claim. Hence, where the Judge is eligible, the litigant would have to take a Biblical oath. Nethiboth writes that we consider the litigant’s statement a denial of a monetary claim only after he was pronounced guilty by the Judge; but if he was not yet pronounced guilty save that the Judge claims that the litigant accepted him by means of a Kinyan to act as Judge, it is not considered a denial of a monetary claim. If two of the Judges are eligible persons all agree that they are believed when they state that they were accepted as Judges. [In the case of] a public that has recognized unlearned Judges as authorities over them, the litigants cannot prevent [them from trying their case].²⁰R. Yeruḥam Path II, Pt. 13 — G. , supra § 8, 1 and notes. Cf. supra n. 17.

If he accepted the testimony of a heathen it is as though he accepted the testimony of one of the ineligible persons.²¹Mord. to San. III citing a case that came up before R. Meir of Rothenberg. However, if he accepted the heathen as a Judge, [then] even if they made an agreement with him [the litigant] by means of a Kinyan, the agreement has no legal consequences, and it is forbidden to be tried before him.²²Thus Asheri in Resp. , Git. 88b: ‘R. Tarfon used to say, Wherever you find heathen Courts (Heb. אגוריאות Gr. ἀγορά a market-place), although their law is similar to the Israelite law, you should not resort to them, for it is said, These are the judgments which thou shalt set before them (Ex. XXI, 1), which means before them but not before heathens.’ Resorting to heathen Courts would be regarded as ‘making an agreement contrary to what is written in the Torah’ (מתנה על מה שכתוב בתורה). , Keth. XI, 1 a.e. If, however, the litigants have stronger legal rights in the heathen Courts than in the Israelite Courts, the agreement made by means of Kinyan is effective, and as to the principle that this would be considered ‘an agreement made contrary to what is written in the Torah,’ it is applicable to an agreement made in a general way, and where one does not enjoy special rights in a heathen Court it would be regarded as a sheer verbal agreement (v. infra § 26) — M.E. But if he had already been tried before him, he cannot retract.²³Mord. to San. III beg. — G. Cf. B.M. 66b whence it is derived that renunciation made in error is valid ex post facto. Likewise in the present case, although in the first instance the Kinyan is not binding, ex post facto it is. , Be’er Eliyahu. If the litigant accepted the heathen Judge merely to rely upon his individual legal opinion but not to act as Judge in accordance with the established laws of the heathen Courts, it is valid as in the case of one who accepts a relative or otherwise ineligible person — A.H. explaining ShaK contra Nethiboth.

If he accepted the testimony of a heathen it is as though he accepted the testimony of one of the ineligible persons.²¹Mord. to San. III citing a case that came up before R. Meir of Rothenberg. However, if he accepted the heathen as a Judge, [then] even if they made an agreement with him [the litigant] by means of a Kinyan, the agreement has no legal consequences, and it is forbidden to be tried before him.²²Thus Asheri in Resp. , Git. 88b: ‘R. Tarfon used to say, Wherever you find heathen Courts (Heb. אגוריאות Gr. ἀγορά a market-place), although their law is similar to the Israelite law, you should not resort to them, for it is said, These are the judgments which thou shalt set before them (Ex. XXI, 1), which means before them but not before heathens.’ Resorting to heathen Courts would be regarded as ‘making an agreement contrary to what is written in the Torah’ (מתנה על מה שכתוב בתורה). , Keth. XI, 1 a.e. If, however, the litigants have stronger legal rights in the heathen Courts than in the Israelite Courts, the agreement made by means of Kinyan is effective, and as to the principle that this would be considered ‘an agreement made contrary to what is written in the Torah,’ it is applicable to an agreement made in a general way, and where one does not enjoy special rights in a heathen Court it would be regarded as a sheer verbal agreement (v. infra § 26) — M.E. But if he had already been tried before him, he cannot retract.²³Mord. to San. III beg. — G. Cf. B.M. 66b whence it is derived that renunciation made in error is valid ex post facto. Likewise in the present case, although in the first instance the Kinyan is not binding, ex post facto it is. , Be’er Eliyahu. If the litigant accepted the heathen Judge merely to rely upon his individual legal opinion but not to act as Judge in accordance with the established laws of the heathen Courts, it is valid as in the case of one who accepts a relative or otherwise ineligible person — A.H. explaining ShaK contra Nethiboth.

One who was under obligation to his fellow to take an oath in Court and [the latter] said, 'Swear to me by the life of your head and be exempt,' or 'Swear to me by the life of your head and I will pay you whatever you claim,'²⁴Yad, Sanhedrin VII, Derived from Mishna San. 24a: ‘If a man was under obligation to take an oath before his fellow, and the latter said to him, Vow to me by the life of your head (which is not the formula of a legal oath since ‘swearing’ and the ‘Divine Name’ are not included), R. Meir says, He may retract; but the Sages say, He cannot retract.’ The law here is on the same footing as supra par. 1 in the case of a relative or otherwise ineligible person. , notes ibid. which are also applicable in the present case. , B.B. 127b-128a: ‘R. Abba sent to R. Joseph b. Ḥama: If one says to his fellow, You stole my slave, and the other replies, I did not steal (him), (and when the former asks further), On what grounds did he (come) into your possession, (the latter replies), You sold him to me, you gave him to me as a gift, (but) if you wish, Take an oath (that he was neither sold nor presented) and you will get him back (although legally the possessor cannot be compelled to accept the oath of the plaintiff), and (the plaintiff) took the oath, (then the latter) is not permitted to retract. What does he inform us? We have already learnt (this elsewhere. Cf. Mishna and Gemara San. 24a): If one (of the litigants) said to the other party, I accept my father as trustworthy or I accept your father as trustworthy, or I accept three oxherds as trustworthy, R. Meir says, He may (subsequently) retract; but the Sages say, He may not retract! — (R. Abba) teaches us this: That the controversy (between R. Meir and the Sages) is where (a litigant stated), I will pay you, and the law accords with the Sages (v. supra n. 11).’ We thus see that the case of accepting an oath which legally is not binding is equated to the case of accepting a relative or an otherwise ineligible person to act as Judge. In both cases the law is that after the close of legal proceedings, even in a case of ‘I will pay you’ and before the close of legal proceedings where an agreement was made by Kinyan, one may not retract. — [then] if they made a formal agreement with him by means of a Kinyan, he cannot retract; and if they did not make a formal agreement with him by means of a Kinyan, he can retract until the legal proceedings are closed.²⁵, supra n. 12. Once the legal proceedings are closed and he took the oath²⁶In the case where an oath is taken the proceedings are considered closed after the oath is taken. Note the expression ‘Once the legal proceedings are closed and he took the oath.’ According to Rashi and Asheri the proceedings are likewise considered closed when the litigant leaves the Court. , Isserles anon — M.E. , B.B. 128a, Tosaf. s.v. הכי גרסינן ונשבע; Sheb. 39a, Tosaf. s.v. אם; San. 24b, Tosaf. s.v. שלח. Other Codifiers read נשבע i.e., even if he had not yet taken the oath, as long as the trial was concluded, he may not retract — ShaK. , Gloss infra and notes. as stated to him [by his fellow-litigant], he cannot retract and is obliged to make payment. Likewise one who was under obligation to take an equitable oath²⁷, supra § 1, n. 2. and transferred it [the oath] to his opponent,²⁸This excludes a Biblical oath (שבועה דאורײתא) which is not transferred (v. infra § 87) — M.E. In B.B. ibid. (v. supra n. 24) even if there were a single witness to substantiate the plaintiff’s claim, no Biblical oath would be imposed in a claim that concerns slaves (v. Sheb. VI, 5) save that an equitable oath (שבועת היסת) would have to be taken; but since in the latter case where the possessor makes a complete denial and there is not even a single witness to contradict him, the latter would have to take an equitable oath only, consequently, he may transfer the oath to the plaintiff. — [then] if they made a formal agreement with him by means of a Kinyan or if the party to whom it was transferred took the oath, he cannot retract. So too, one who was not obliged to take an oath and stated, 'I will take an oath,' — [then] if they made a formal agreement with him by means of a Kinyan, he cannot retract; and if they did not make a formal agreement with him by means of a Kinyan, although he accepted in [the presence of] the Court [to take the oath], he may retract until the legal proceedings are closed and [only thereafter] he must take the oath. Gloss: One who is under obligation to take an oath and stated before the Court of Law, 'I desire not to take an oath, I am prepared to make payment,' and [then] left the Court of Law, — [the law is that] he cannot retract for this is regarded the close of his legal proceedings.²⁹Sheb. 39a: ‘If he stated, I shall not take an oath (realizing the seriousness of swearing falsely), he is dismissed (from Court) forthwith (so as not to give him a chance to change his mind, and he pays the claim. Thus Rashi). According to Tosaf. (v. sources supra n. 26) the question whether we consider the legal proceedings closed after the litigant makes his statement before the Court and then leaves or whether the oath must be taken before the litigant leaves the Court, is applicable both in the case where one was under obligation to take an oath and stated ‘I desire not to take an oath etc.,’ or where the defendant transfers the oath to the claimant, or where one states ‘Vow by the life of your head.’ According to those authorities who maintain that if he said ‘I desire not to take an oath etc.,’ and then left Court, he may not retract, the same principle applies equally in the other cases. Those who differ with this opinion and hold that in the case of one under obligation to take an oath, the legal proceedings are considered closed only after the oath is taken, the same principle is also applicable in the other cases. Consequently, Isserles Gloss presents a difficulty. For according to the present Gloss, the difference of opinion between the above-mentioned authorities is only with respect to one who states ‘I will not swear,’ but not regarding the other cases (v. M.E., ShaK and W.G.). This difficulty may be removed if we bear in mind that the law of one who was under obligation to take an oath and stated ‘I desire not … he cannot retract etc.,’ was stated only in accordance with Rashi’s interpretation followed by Asheri (v. supra n. 29). One who was under obligation to take an equitable oath in Court and did not state that he wishes to transfer the oath to his adversary and then left Court and subsequently stated that he desires to transfer the oath, is permitted to do so — Tur. Even if he stated ‘I will not swear’ and then left Court, he may subsequently transfer the oath, because we assume that what he meant is this: ‘I will not swear but I will transfer the oath,’ provided he did not say, ‘I will not swear but I will make payment’ — M.E. If the defendant was under obligation to take an equitable oath and he stated in Court ‘I will swear’ and before taking the oath, he left, the law is that he subsequently cannot transfer the oath — M.E. ShaK rejects the latter ruling of M.E. For only where he stated ‘I will not swear but I will make payment’ he may not retract if he left the Court, because as soon as he says ‘I will not swear etc.,’ it is regarded as an admission of guilt; but where he stated ‘I will swear’ it is as though he said ‘I am prepared to carry out the verdict,’ but it does not mean that he actually accepted to take the oath. Hence, he may subsequently transfer the oath. And this is the adopted custom in many Holy communities (v. P.Tesh conflicting views regarding this custom). This holds good only with respect to an equitable oath, but in the case of a Biblical oath where legally one may not transfer it (v. infra § 87; Sheb. 41a), if one said to his fellow ‘Swear and collect’ and the latter stated ‘I will swear’ and then left the Court or even where he did not leave the Court but the Judges had already commenced the discussion of another case, he may not retract — Nethiboth. Some [authorities], however, differ [with this view].³⁰, Tur — G. Cf. previous note. One who was under obligation to his fellow to take a Biblical oath and he said to the latter, 'Take an oath and collect,' and [then the latter hurriedly] took an oath without holding a [sacred] object, — [the law is that] he [the defendant] cannot retract.³¹And say ‘I will swear and be exempt,’ but the plaintiff must take another oath while holding a sacred object. Other authoorities differ with this view and maintain that since he took the oath without holding a sacred object (e.g., a Scroll of the Law or Phylacteries) we do not consider the legal proceedings as closed and consequently, he may retract unless the litigants left the Court or the Judges commenced the discussion of another case — ShaK. However, according to the former view, even if he took the oath outside of the Court, it is still regarded as the close of legal proceedings — A.H.

§ The mishna taught that the court refrained from administering an oath to her. The Gemara asks: What is the reason that they refrained from administering oaths to widows? If we say that it is because of the statement of Rav Kahana, as Rav Kahana says, and some say that it was Rav Yehuda who says that Rav says: There was an incident involving a person during years of famine who deposited a gold dinar with a widow, and she placed the gold dinar in a jug of flour and unwittingly baked it in a loaf of bread along with the flour, and she gave the bread as charity to a poor man. After a period of time, the owner of the dinar came and said to her: Give me my dinar. She said to him: May poison benefit, i.e., take effect on, one of the children of that woman, i.e., my children, if I derived any benefit from your dinar. It was said: Not even a few days passed until one of her children died, and when the Sages heard of this matter, they said: If one who takes an oath truthfully is punished in this way for sin, one who takes an oath falsely, all the more so. The Gemara first clarifies the details of the incident: What is the reason that she was punished if she in fact did not derive any benefit from the dinar? The Gemara answers: Because she benefited [ishtarshi] from the place of the dinar, as the dinar took up space in the bread, enabling her to use less flour. Therefore, she did derive some small benefit from the dinar.

The Gemara first clarifies the details of the incident: What is the reason that she was punished if she in fact did not derive any benefit from the dinar? The Gemara answers: Because she benefited [ishtarshi] from the place of the dinar, as the dinar took up space in the bread, enabling her to use less flour. Therefore, she did derive some small benefit from the dinar.

If he accepted the testimony of a heathen it is as though he accepted the testimony of one of the ineligible persons.²¹Mord. to San. III citing a case that came up before R. Meir of Rothenberg. However, if he accepted the heathen as a Judge, [then] even if they made an agreement with him [the litigant] by means of a Kinyan, the agreement has no legal consequences, and it is forbidden to be tried before him.²²Thus Asheri in Resp. , Git. 88b: ‘R. Tarfon used to say, Wherever you find heathen Courts (Heb. אגוריאות Gr. ἀγορά a market-place), although their law is similar to the Israelite law, you should not resort to them, for it is said, These are the judgments which thou shalt set before them (Ex. XXI, 1), which means before them but not before heathens.’ Resorting to heathen Courts would be regarded as ‘making an agreement contrary to what is written in the Torah’ (מתנה על מה שכתוב בתורה). , Keth. XI, 1 a.e. If, however, the litigants have stronger legal rights in the heathen Courts than in the Israelite Courts, the agreement made by means of Kinyan is effective, and as to the principle that this would be considered ‘an agreement made contrary to what is written in the Torah,’ it is applicable to an agreement made in a general way, and where one does not enjoy special rights in a heathen Court it would be regarded as a sheer verbal agreement (v. infra § 26) — M.E. But if he had already been tried before him, he cannot retract.²³Mord. to San. III beg. — G. Cf. B.M. 66b whence it is derived that renunciation made in error is valid ex post facto. Likewise in the present case, although in the first instance the Kinyan is not binding, ex post facto it is. , Be’er Eliyahu. If the litigant accepted the heathen Judge merely to rely upon his individual legal opinion but not to act as Judge in accordance with the established laws of the heathen Courts, it is valid as in the case of one who accepts a relative or otherwise ineligible person — A.H. explaining ShaK contra Nethiboth.

One who was under obligation to his fellow to take an oath in Court and [the latter] said, 'Swear to me by the life of your head and be exempt,' or 'Swear to me by the life of your head and I will pay you whatever you claim,'²⁴Yad, Sanhedrin VII, Derived from Mishna San. 24a: ‘If a man was under obligation to take an oath before his fellow, and the latter said to him, Vow to me by the life of your head (which is not the formula of a legal oath since ‘swearing’ and the ‘Divine Name’ are not included), R. Meir says, He may retract; but the Sages say, He cannot retract.’ The law here is on the same footing as supra par. 1 in the case of a relative or otherwise ineligible person. , notes ibid. which are also applicable in the present case. , B.B. 127b-128a: ‘R. Abba sent to R. Joseph b. Ḥama: If one says to his fellow, You stole my slave, and the other replies, I did not steal (him), (and when the former asks further), On what grounds did he (come) into your possession, (the latter replies), You sold him to me, you gave him to me as a gift, (but) if you wish, Take an oath (that he was neither sold nor presented) and you will get him back (although legally the possessor cannot be compelled to accept the oath of the plaintiff), and (the plaintiff) took the oath, (then the latter) is not permitted to retract. What does he inform us? We have already learnt (this elsewhere. Cf. Mishna and Gemara San. 24a): If one (of the litigants) said to the other party, I accept my father as trustworthy or I accept your father as trustworthy, or I accept three oxherds as trustworthy, R. Meir says, He may (subsequently) retract; but the Sages say, He may not retract! — (R. Abba) teaches us this: That the controversy (between R. Meir and the Sages) is where (a litigant stated), I will pay you, and the law accords with the Sages (v. supra n. 11).’ We thus see that the case of accepting an oath which legally is not binding is equated to the case of accepting a relative or an otherwise ineligible person to act as Judge. In both cases the law is that after the close of legal proceedings, even in a case of ‘I will pay you’ and before the close of legal proceedings where an agreement was made by Kinyan, one may not retract. — [then] if they made a formal agreement with him by means of a Kinyan, he cannot retract; and if they did not make a formal agreement with him by means of a Kinyan, he can retract until the legal proceedings are closed.²⁵, supra n. 12. Once the legal proceedings are closed and he took the oath²⁶In the case where an oath is taken the proceedings are considered closed after the oath is taken. Note the expression ‘Once the legal proceedings are closed and he took the oath.’ According to Rashi and Asheri the proceedings are likewise considered closed when the litigant leaves the Court. , Isserles anon — M.E. , B.B. 128a, Tosaf. s.v. הכי גרסינן ונשבע; Sheb. 39a, Tosaf. s.v. אם; San. 24b, Tosaf. s.v. שלח. Other Codifiers read נשבע i.e., even if he had not yet taken the oath, as long as the trial was concluded, he may not retract — ShaK. , Gloss infra and notes. as stated to him [by his fellow-litigant], he cannot retract and is obliged to make payment. Likewise one who was under obligation to take an equitable oath²⁷, supra § 1, n. 2. and transferred it [the oath] to his opponent,²⁸This excludes a Biblical oath (שבועה דאורײתא) which is not transferred (v. infra § 87) — M.E. In B.B. ibid. (v. supra n. 24) even if there were a single witness to substantiate the plaintiff’s claim, no Biblical oath would be imposed in a claim that concerns slaves (v. Sheb. VI, 5) save that an equitable oath (שבועת היסת) would have to be taken; but since in the latter case where the possessor makes a complete denial and there is not even a single witness to contradict him, the latter would have to take an equitable oath only, consequently, he may transfer the oath to the plaintiff. — [then] if they made a formal agreement with him by means of a Kinyan or if the party to whom it was transferred took the oath, he cannot retract. So too, one who was not obliged to take an oath and stated, 'I will take an oath,' — [then] if they made a formal agreement with him by means of a Kinyan, he cannot retract; and if they did not make a formal agreement with him by means of a Kinyan, although he accepted in [the presence of] the Court [to take the oath], he may retract until the legal proceedings are closed and [only thereafter] he must take the oath. Gloss: One who is under obligation to take an oath and stated before the Court of Law, 'I desire not to take an oath, I am prepared to make payment,' and [then] left the Court of Law, — [the law is that] he cannot retract for this is regarded the close of his legal proceedings.²⁹Sheb. 39a: ‘If he stated, I shall not take an oath (realizing the seriousness of swearing falsely), he is dismissed (from Court) forthwith (so as not to give him a chance to change his mind, and he pays the claim. Thus Rashi). According to Tosaf. (v. sources supra n. 26) the question whether we consider the legal proceedings closed after the litigant makes his statement before the Court and then leaves or whether the oath must be taken before the litigant leaves the Court, is applicable both in the case where one was under obligation to take an oath and stated ‘I desire not to take an oath etc.,’ or where the defendant transfers the oath to the claimant, or where one states ‘Vow by the life of your head.’ According to those authorities who maintain that if he said ‘I desire not to take an oath etc.,’ and then left Court, he may not retract, the same principle applies equally in the other cases. Those who differ with this opinion and hold that in the case of one under obligation to take an oath, the legal proceedings are considered closed only after the oath is taken, the same principle is also applicable in the other cases. Consequently, Isserles Gloss presents a difficulty. For according to the present Gloss, the difference of opinion between the above-mentioned authorities is only with respect to one who states ‘I will not swear,’ but not regarding the other cases (v. M.E., ShaK and W.G.). This difficulty may be removed if we bear in mind that the law of one who was under obligation to take an oath and stated ‘I desire not … he cannot retract etc.,’ was stated only in accordance with Rashi’s interpretation followed by Asheri (v. supra n. 29). One who was under obligation to take an equitable oath in Court and did not state that he wishes to transfer the oath to his adversary and then left Court and subsequently stated that he desires to transfer the oath, is permitted to do so — Tur. Even if he stated ‘I will not swear’ and then left Court, he may subsequently transfer the oath, because we assume that what he meant is this: ‘I will not swear but I will transfer the oath,’ provided he did not say, ‘I will not swear but I will make payment’ — M.E. If the defendant was under obligation to take an equitable oath and he stated in Court ‘I will swear’ and before taking the oath, he left, the law is that he subsequently cannot transfer the oath — M.E. ShaK rejects the latter ruling of M.E. For only where he stated ‘I will not swear but I will make payment’ he may not retract if he left the Court, because as soon as he says ‘I will not swear etc.,’ it is regarded as an admission of guilt; but where he stated ‘I will swear’ it is as though he said ‘I am prepared to carry out the verdict,’ but it does not mean that he actually accepted to take the oath. Hence, he may subsequently transfer the oath. And this is the adopted custom in many Holy communities (v. P.Tesh conflicting views regarding this custom). This holds good only with respect to an equitable oath, but in the case of a Biblical oath where legally one may not transfer it (v. infra § 87; Sheb. 41a), if one said to his fellow ‘Swear and collect’ and the latter stated ‘I will swear’ and then left the Court or even where he did not leave the Court but the Judges had already commenced the discussion of another case, he may not retract — Nethiboth. Some [authorities], however, differ [with this view].³⁰, Tur — G. Cf. previous note. One who was under obligation to his fellow to take a Biblical oath and he said to the latter, 'Take an oath and collect,' and [then the latter hurriedly] took an oath without holding a [sacred] object, — [the law is that] he [the defendant] cannot retract.³¹And say ‘I will swear and be exempt,’ but the plaintiff must take another oath while holding a sacred object. Other authoorities differ with this view and maintain that since he took the oath without holding a sacred object (e.g., a Scroll of the Law or Phylacteries) we do not consider the legal proceedings as closed and consequently, he may retract unless the litigants left the Court or the Judges commenced the discussion of another case — ShaK. However, according to the former view, even if he took the oath outside of the Court, it is still regarded as the close of legal proceedings — A.H.

As long as the litigants are [still] standing before the Judge, he is believed when he states, 'I have pronounced this party guilty' and 'I have pronounced that party not guilty.' [As soon as] they are dismissed from his presence, he is not believed.¹Kid. 74a: ‘A Judge is believed when he states, I have pronounced this one not guilty; I have pronounced that one guilty. When does this apply? Only if the litigants are (still) standing before him; but if they no longer stand before him, he is not believed. But let us see who holds (the document containing) the verdict in favour (since they gave a written verdict to each litigant)? — It refers to a case where the written document was torn. Then let us give them a re-trial? — (It refers to a case of) discretionary judgment (i.e., the Judge based his verdict on discretion and could not decide on the basis of any law. In this case we cannot be certain that a re-trial will result in the same decision).’ , Ket. 85b. An arbitrator is likewise not believed when he states that the settlement was according to such and such terms if the litigants are no longer before him (RaShBA) — M.E. , Isserles anon. This is based on the following case cited by B.Yos. supra § 12: A gave B a gift of bonds and took an oath that he will not collect any of the debts covered by the bonds. Subsequently A and B were in dispute concerning other claims and they accepted an arbitrator on condition that whatever settlement he reaches within a certain time limit should be effective and the latter arbitrated the case and ruled that A and B should remit their claims by means of a written document excluding the case of the bonds that A had made a gift to B which are to remain in effect as of the day of arbitration and later it was discovered that A had collected money on the strength of the bonds given to B and the latter contends that the money collected by A should be returned, to which A responds that since he collected the money prior to the date on which the document of remittal became effective, notwithstanding the fact that he presented the bonds to B on condition that they remain in their original force, he should be exempt from returning the collected money especially since it states in the document of remittal drawn up by the arbitrator that the settlement excludes the bonds as of the date of arbitration. The arbitrator was consulted and he agreed with A. Responsum: The law accords with B’s claim because when the other claims between A and B were submitted to the arbitrator, it was unknown that A had collected money on the strength of the bonds, for it was presumed that the bonds were intact since A took an oath to this effect. Consequently this did not enter into the remittal. And as to the statement of the arbitrator, he is not believed because he did not make this declaration when the litigants were still before him as in the present ruling with regards to a Judge. Nethiboth writes that the Judge is believed as long as the litigants still stand before him even if the one who was pronounced guilty could employ the principle of Miggo (i.e., since the the litigant could have stated ‘I did not accept you as Judge’), because since the Judge is believed as two witnesses, it would be tantamount to a Miggo in face of witnesses which is not effective. If the litigant contends that the Judge had pronounced judgment in his favour but the Judge and the other litigant state that the verdict had not yet been given, the Judge is believed even where the litigants are no longer before him provided that there are witnesses who testify that the litigants accepted him as Judge; but if there are no witnesses available and the litigants are no longer before the Judge, the claim of the litigant is accepted on the principle of Miggo, viz., that they did not accept him as Judge. And in this case the principle of Miggo in the face of witnesses (i.e., if we accept the statement of the Judge as equivalent to the testimony of two witnesses) is not accepted since the litigants are no longer before the Judge, in which case the latter is not regarded as equivalent to two witnesses — Nethiboth. However, the Judge is believed as one witness, provided he is not a relative or an otherwise ineligible person, and hence places the litigant who contradicts him under an oath and exempts the one who supports his statement from taking an oath. If the Judge died or left and the litigants contradict each other, each one stating that judgment was pronounced in his favour, — the law is that if one is the possessor (מוחזק) of the disputed article, the onus rests on the other party to produce evidence in order to substantiate his claim; if both are possessors, they divide the disputed article; if both are not possessors, the stronger of the two obtains possession or they make a settlement — M.E. And [this refers to a case] where the written verdict is not in his [the litigant's] possession,²Kid. ibid. , previous note beg. This means that if the litigant has the judgment writ, the Judge is believed even if they are no longer standing before him. Accordingly, the question in the Gemara ibid., ‘Let us see who holds (the document containing) the verdict in favour’ refers to the latter part of the cited Baraitha (i.e., ‘but if they no longer stand before him, he is not believed’). RITBA, however, refers this question to the first part of the Baraitha (i.e., ‘the Judge is believed only if the litigants are still standing before him’). In other words, why rely on the Judge if we can see the judgment writ. For if it refers to the latter part of the Baraitha, the following difficulty arises: If we do not believe the Judge, why accept the judgment writ? — ShaK. Where the judgment writ held by A contains an undefined statement, e.g., ‘The land of So-and-so belongs to you,’ and B claims that the judgment writ was in his possession but he lost it, then the Judge is believed when he says, ‘I ruled in favour of this party’ — ShaK. and [this ruling is applicable] only to a case of discretionary judgment;³Kid. ibid. , supra n. According to R. Tam (Kid. ibid., Tosaf. s.v. שודא a.e.) discretionary judgment means favouring or making a gift to any one of the litigants. Rashi: The Judges use their discretion in order to determine which of the claimants is to be believed. However, even if the litigants accepted the Judge to give a verdict based on discretionary judgment, it is still doubtful whether a re-trial would result in the same verdict — ShaK, Nethiboth. but in [the case of] a verdict which depends upon the pleas [of the litigants], reliance [on the Judge] does not apply, for in accordance with [the restatement of] the pleas the one who deserves favourable judgment will be so pronounced⁴And even while the litigants are still before the Judge, the latter is not believed, but he must clarify the matter by stating, ‘So-and-so, you have pleaded thus and So-and-so, you have pleaded thus and accordingly, You are not guilty and You are guilty’ — M.E., ShaK a.o. provided he [the litigant] does not upset his former pleas.⁵e., there is a controversy between them, viz., the Judge says, You pleaded thus, and the litigants contradict him, in which case the Judge is not believed when they are no longer before him (and according to ShaK even if they are still before him) — M.E. This entire [ruling applies] only to one Judge;⁶E.g., an authoritative Judge (Mumḥeh) or where they accepted him as Judge (according to ShaK by means of Kinyan, but M.E. maintains that Kinyan is not necessary) — M.E. Thus Tur, Asheri and RIBaSh in Resp. but two [Judges] are always believed,⁷For then their statement is equivalent to evidence and they are believed — M.E. Even if it is not a case of discretionary judgment — Nethiboth. Cf. B.M. 32a; Tosef. B.M. I, 6. even if there are two witnesses who contradict them.⁸Asheri in Resp. advances the following reason: The Judge is more conscious of the case than those who merely hear the proceedings. If one Judge in conjunction with a single witness made this statement and two witnesses contradict them, the Judge and the single witness are not believed, since the single witness merely heard the proceedings. Consequently, there is only one against two — M.E. Gloss: So too, if they [the litigants] accepted an arbitrator [to bring about a settlement] within a certain time limit, — [the law is that with respect to] everything he [the arbitrator] states within the time limit, he is believed. However, if he had already recorded the settlement in writing and given [it] to them, he [subsequently] has no right to add or to subtract [therefrom] even within the time limit, although he states that thus was his [original] intention.⁹B.Yos. on the authority of RaShBA — G. , supra n.

Let us see from whom the seller took money. Let us first learn a Gemara in Kiddushin 73b that is relevant to understanding our Tosfos.
A seller is believed¹The Gemara does not clearly say why the seller is believed. There is a dispute among the Rishonim as is evident in this Tosfos. An understanding of this dispute will enable us to better understand the underlying movements of this Tosfos. See נחלת דוד for a lengthy exposition of this subject.
A) Rashi holds that the seller is believed because he is the only one that really knows the truth. There are similar situations in Kiddushin 73a, such as a midwife or a judge who are believed primarily because they are the only ones who know the truth. רש"י holds that the seller’s testimony is accepted for the same reason. Thus, according to Rashi as long as we are convinced that the seller actually does know to whom he sold the garment we believe him. If however, the situation is one where we have doubts about the seller’s knowledge, we do not believe him. Therefore, as long as the seller has possession of the garment, he has the responsibility to deliver the garment to the true purchaser. Even if the situation was somewhat confusing, such as when they both gave him money, he still must deliver the garment to the right party. However, as soon as he made his choice and no longer has that responsibility, we do not believe him when the conditions were confusing, but we do believe him when only one customer gave money.
B) Tosfos (Rabbeinu Tam) holds that the basis for believing the seller is that since the garment is in his possession he has a migo, that he could say that he did not sell the garment at all or that he repurchased it. We must therefore believe him when he says that I sold the garment to this one. Of course, this migo is operable only when the seller has the garment is his possession. Thus, after he releases it, we do not believe him at all. Rabbeinu Tam is compelled to say, as we will soon see, that our Gemara is asking that we should believe the seller, just as we believe any single witness. There is no special authority for the seller when he does not have the migo that he could maintain that he never sold the garment. to say: I sold to this one and not to that one. When is this so: When the sold item is still in [the seller’s] possession, but if the sold item is no longer in [the seller’s] possession, he is not believed. The Gemara asks: Let us see from whom he accepted money? Once we know who gave money, we will know that he is the true owner. Why must we rely on the testimony of the seller? No! This Baraisa is needed to teach us about when [the seller] accepted money from both and he tells us: From one I accepted willingly and from the other I accepted money against my will. It is not known from which customer he accepted the money willingly and from which customer he accepted the money against his will.
We can glean from that Gemara that the seller is believed when he still has possession of the article, but not when he has already given the item to the buyers. This presents a problem with our Gemara which asks: We should believe the seller? But in our Gemara the seller no longer has possession. The Mishna is speaking of when the two litigants are holding the garment. The seller has no special say in this matter since he no longer has possession.
רש"י anticipated this problem and explains our Gemara in view of what we have learned in Kiddushin 73b. Tosfos will first quote רש"י and then disagree with his conclusion.
Let us return for a moment to the Gemara in Kiddushin 73a. The Gemara says that we do not believe the seller when he no longer has possession. The Gemara immediately asks: Let us see from whom he accepted money. רש"י explains that the Gemara is asking, that since he received money from only one of the customers he most probably remembers which one it was and we should believe him even if he no longer has possession.²See preceding note. A) The Gemara essentially agrees with this proposal, but says that we are speaking of when the seller accepted money from both.
According to Rashi’s explanation, we may conclude that when he received money only from one of the customers, we believe him even when he no longer has possession of the article. First, let us see how רש"י reconciles our Gemara in Bava Metzia 2b with the Gemara in Kiddushin 73a.
רש"י explained our Gemara’s question: Let us ask the seller which of the litigants is the lawful owner of the disputed garment? Even though we have learned that the seller is not believed when he no longer has possession of the sold article, as can be seen in Perek Asarah Yuchsin (Kiddushin 73b), and our Mishna is speaking of when the seller does not have possession? That we do not believe the seller, was said when he accepted money from both customers, but when he accepted money from only one of the customers, he is believed even when the sold article is not in his possession. Our Gemara assumed that the seller most probably received money from only one of the customers and therefore says, let us see from whom the seller took the money. We would believe him if he said which customer gave him the money. The Gemara answers that our Mishna is speaking of when both gave money and we do not believe the seller who says: I accepted the money from this customer willingly.
According to this analysis of the Gemara, even if the seller who received money from both customers says he is certain that the garment belongs to this one, we do not believe him. We would believe him only if he had received money from only one of the customers.
In view of this analysis, we must take a better look at the next words of our Gemara. Our Gemara reads: ולא ידענא - I do not know. This seems to be a quote of the seller who is admitting that he does not know who the lawful owner is. רש"י quotes a text that reads ולא ידע - he, the seller, does not know. Again this implies that the seller tells us - I do not know who the lawful owner is. What if the seller says I do know? These texts lead us to believe that we would believe him. רש"י says that these texts are incorrect, because we have seen that the Gemara in Kiddushin 73b says that we do not believe a seller who accepted money from both customers.
רש"י therefore amends the text of our Gemara: Our text, after this statement of the Gemara that we are speaking of when the seller accepted money from both customers is: And we do not know. This means that even if the seller insists that he sold it to Ruvain, we do not accept his testimony and we, the court, do not know to whom the garment was sold. It is in this case that the Mishna rules that the garment is to be divided after each party swears.
After quoting רש"י, Tosfos offers his own explanation of our Gemara and insists that it is not necessary to amend the text. Rashi’s difficulty with our text is that the Gemara seems to be saying that we would believe the seller who says - I do know who the lawful buyer is, even if he accepted money from both customers. This is clearly contradicted by the Gemara in Kiddushin 73a.
Tosfos therefore explains that our Gemara’s question: “Let us see from whom he accepted money?”, is not about believing the seller as a special witness³See note 1, B), where I explained that Tosfos holds the authority of the seller is based on a migo, which he has when in possession of the garment, but not when he gives it away. in this matter. Rather, the question is - we should believe him as we would believe any single witness.
Although a single witness is not believed in money matters, he does have the power to compel a litigant to swear by Torah law. For example: If Ruvain claims that Shimon owes him one hundred zuz and Shimon denies it, by Torah law Shimon is exempt from paying and need not swear. If however, a single witness testifies that Shimon does owe the money, he is required to swear by Torah law.
According to Tosfos’ opinion he can also exempt any of the parties in a dispute from swearing. For example: If Ruvain claims that Shimon owes him one hundred zuz and Shimon admits that he owes him fifty zuz, by Torah law Shimon must swear that he only owes fifty zuz. If however, a single witness testifies that Shimon only owes Ruvain fifty zuz, Shimon need not swear. It is this power of the single witness in matters pertaining to an oath that the Gemara refers to, when it asks: Let us see from whom the seller took money.
It is for naught that רש"י said this awkward⁴See Tosfos there. According to Rashi we are forced to say that the Gemara is extending the reliability of the seller to even when he does not have possession of the garment. According to Tosfos, the Gemara is constantly maintaining that the seller is especially believed only when he has possession. Also, according to Rashi, we must amend the text. This is not necessary according to Tosfos. explanation. For here in Bava Metzia [the Gemara]’s question is sensible. For even if the sold article is not in the the seller’s possession, [the seller] should be believed as any single witness is. The Gemara’s question is: Why are both litigants required to swear? The one whom the seller corroborates should be exempt⁵See Tosfos there. According to Rashi we are forced to say that the Gemara is extending the reliability of the seller to even when he does not have possession of the garment. According to Tosfos, the Gemara is constantly maintaining that the seller is especially believed only when he has possession. Also, according to Rashi, we must amend the text. This is not necessary according to Tosfos. Tosfos here says as a matter of fact that when a single witness testifies in favor of one of the litigants, that litigant is exempt from swearing. This ruling does not enjoy universally agreement. See Rosh 3, in our Perek for a lengthy discussion of the pros and cons in this issue. from swearing and the other should be required to swear by Torah law? Now that we have explained that the Gemara’s question is that we should listen to the seller as a single witness, the text “ולא ידע - and he did not know”, is reasonable, for if [the seller] did know which customer he intended to sell the article to, he would be believed as a single witness insofar as swearing is concerned.
However, [the Gemara] could have answered⁶See מהרש"ל and מהר"ם who explain why this is true only according to Tosfos explanation, but not according to Rashi.
A) According to רש"י we believe the testimony of the seller. If the seller was not available, we would not allow the litigants to swear, because upon the seller’s return’ he may testify in favor of one of the litigants. Retroactively, we will see that the court’s ruling caused a false oath. The court will never issue a ruling where it could become obvious that one of the litigants swore falsely.
B) According to Tosfos, we do not especially believe the seller. He has the authority of any single witness to require an oath from one litigant by Torah law and to exempt his opponent. If we rule in his absence that both litigants must swear and he returns and testifies in favor of one of the litigants, we would still not have a situation where we know that there was a false oath, because we do not inherently believe the seller. He only has the authority to require an oath and to exempt from an oath. Even if the litigant whom the seller supports did swear, nothing happened. At the very most, he swore when he wasn’t really required to do so. As far as his opponent is concerned, we required him to swear and the seller also requires him to swear. There is no evidence that he took a false oath. the question by saying that the seller is no longer available to us, so that we might ask him. It is then that the Mishna rules: the garment is divided after both litigants swear.
Both Rashi’s and Tosfos’ explanation of the words: “Let us see from whom he accepted the money?” have legal ramifications, and our ruling will depend on the seller’s testimony. According to Rashi, the garment will be awarded to the customer that the seller supports. According to Tosfos, the customer whom the seller supports will not have to swear at all and his opponent will be required to swear by Torah law.
R’I suggests that the Gemara’s question is simply practical. Let us see what the litigants themselves have to say about the subject and perhaps we can settle the issue. The Gemara does not at all mean that the testimony of the seller is legally binding. R’I explains that the Gemara’s question is as follows: We should ask [the litigants] themselves from whom the seller accepted money. For we do not suspect them of lying about this, to say: I gave the money, when he did not give it at all. And [the litigants] are most probably also not arguing about who gave the money, but about to whom the seller consented to sell the garment. However, they are not arguing about who gave the money. We can therefore expect an honest answer. Once they agree that Ruvain gave the money, we will rule that the seller consented to sell it to Ruvain. Shimon who knows that Ruvain gave the money still believes that the seller wanted to sell the garment to him. We will rule that Shimon’s assumption is incorrect.

The Gemara cites the continuation of the baraita: Similarly, a judge is deemed credible to say: I found this person victorious in a civil case, and I found this one obligated to pay. In what case is this statement said? When the litigants are still standing before him. But if the litigants are not standing before him but have left, he is not deemed credible. The Gemara asks: And let us see who holds the writ of a favorable verdict. Why is there a need to rely on the statement of the judge?

The Gemara asks: How can the mishna be referring to a case of buying and selling? But let us see from whom the seller took the money. Obviously, the one who gave him the money is the one who bought it. The Gemara answers: No, it is necessary in a case where he took money from both of them. He accepted the money willingly from the one to whom he wanted to sell the item, and he received the money against his will from the one to whom he did not want to sell the item, and I do not know who is the one from whom he took it willingly, and who is the one from whom he received it against his will. Consequently, the matter is clarified by means of an oath.

Women that have given birth together, the wife of a Cohen, Levite and a Bastard (illegitimate person) . The mid-wife is trusted to say this one is the Cohen's son or the Levite or Bastard, because they are not yet assigned a status and we do not know their lineage. When does this apply in a case that she has a status of a trusted person and no one has cast doubt upon her. However if even one person has cast doubt and claimed, "She testifies falsely", She is not trusted and the boy is legitimate but has no lineage.

The Gemara answers: No, it is necessary to teach this halakha in a case where their writs of a favorable verdict have been torn up and cannot be examined. The Gemara asks: If so, then let him return and judge them again, and presumably the same verdict will be issued. The Gemara answers: It was a case of the judges’ discretion [shuda dedayyanei]. In certain cases, the verdict depends on the decision of the judges based solely on their sense of which litigant deserves to win. There is no guarantee that they will make the same decision the second time around.

The Gemara adds: If the deceased had said: My property should go to Toviya, and Rav Toviya came forward, it is assumed that this is not the person the deceased had in mind, for he said: My property should go to Toviya. He did not say: My property should go to Rav Toviya. But if Rav Toviya is a person who is familiar with the deceased, then it can be assumed that the deceased called him by his personal name and not by his title because he was familiar with him. If two men named Toviya came forward, and one of them was the deceased’s neighbor and the other a Torah scholar but not his neighbor, the Torah scholar takes precedence. Similarly, if one was a relative and the other a Torah scholar, the Torah scholar takes precedence.

The Gemara adds: If the deceased had said: My property should go to Toviya, and Rav Toviya came forward, it is assumed that this is not the person the deceased had in mind, for he said: My property should go to Toviya. He did not say: My property should go to Rav Toviya. But if Rav Toviya is a person who is familiar with the deceased, then it can be assumed that the deceased called him by his personal name and not by his title because he was familiar with him. If two men named Toviya came forward, and one of them was the deceased’s neighbor and the other a Torah scholar but not his neighbor, the Torah scholar takes precedence. Similarly, if one was a relative and the other a Torah scholar, the Torah scholar takes precedence.

As long as the litigants are [still] standing before the Judge, he is believed when he states, 'I have pronounced this party guilty' and 'I have pronounced that party not guilty.' [As soon as] they are dismissed from his presence, he is not believed.¹Kid. 74a: ‘A Judge is believed when he states, I have pronounced this one not guilty; I have pronounced that one guilty. When does this apply? Only if the litigants are (still) standing before him; but if they no longer stand before him, he is not believed. But let us see who holds (the document containing) the verdict in favour (since they gave a written verdict to each litigant)? — It refers to a case where the written document was torn. Then let us give them a re-trial? — (It refers to a case of) discretionary judgment (i.e., the Judge based his verdict on discretion and could not decide on the basis of any law. In this case we cannot be certain that a re-trial will result in the same decision).’ , Ket. 85b. An arbitrator is likewise not believed when he states that the settlement was according to such and such terms if the litigants are no longer before him (RaShBA) — M.E. , Isserles anon. This is based on the following case cited by B.Yos. supra § 12: A gave B a gift of bonds and took an oath that he will not collect any of the debts covered by the bonds. Subsequently A and B were in dispute concerning other claims and they accepted an arbitrator on condition that whatever settlement he reaches within a certain time limit should be effective and the latter arbitrated the case and ruled that A and B should remit their claims by means of a written document excluding the case of the bonds that A had made a gift to B which are to remain in effect as of the day of arbitration and later it was discovered that A had collected money on the strength of the bonds given to B and the latter contends that the money collected by A should be returned, to which A responds that since he collected the money prior to the date on which the document of remittal became effective, notwithstanding the fact that he presented the bonds to B on condition that they remain in their original force, he should be exempt from returning the collected money especially since it states in the document of remittal drawn up by the arbitrator that the settlement excludes the bonds as of the date of arbitration. The arbitrator was consulted and he agreed with A. Responsum: The law accords with B’s claim because when the other claims between A and B were submitted to the arbitrator, it was unknown that A had collected money on the strength of the bonds, for it was presumed that the bonds were intact since A took an oath to this effect. Consequently this did not enter into the remittal. And as to the statement of the arbitrator, he is not believed because he did not make this declaration when the litigants were still before him as in the present ruling with regards to a Judge. Nethiboth writes that the Judge is believed as long as the litigants still stand before him even if the one who was pronounced guilty could employ the principle of Miggo (i.e., since the the litigant could have stated ‘I did not accept you as Judge’), because since the Judge is believed as two witnesses, it would be tantamount to a Miggo in face of witnesses which is not effective. If the litigant contends that the Judge had pronounced judgment in his favour but the Judge and the other litigant state that the verdict had not yet been given, the Judge is believed even where the litigants are no longer before him provided that there are witnesses who testify that the litigants accepted him as Judge; but if there are no witnesses available and the litigants are no longer before the Judge, the claim of the litigant is accepted on the principle of Miggo, viz., that they did not accept him as Judge. And in this case the principle of Miggo in the face of witnesses (i.e., if we accept the statement of the Judge as equivalent to the testimony of two witnesses) is not accepted since the litigants are no longer before the Judge, in which case the latter is not regarded as equivalent to two witnesses — Nethiboth. However, the Judge is believed as one witness, provided he is not a relative or an otherwise ineligible person, and hence places the litigant who contradicts him under an oath and exempts the one who supports his statement from taking an oath. If the Judge died or left and the litigants contradict each other, each one stating that judgment was pronounced in his favour, — the law is that if one is the possessor (מוחזק) of the disputed article, the onus rests on the other party to produce evidence in order to substantiate his claim; if both are possessors, they divide the disputed article; if both are not possessors, the stronger of the two obtains possession or they make a settlement — M.E. And [this refers to a case] where the written verdict is not in his [the litigant's] possession,²Kid. ibid. , previous note beg. This means that if the litigant has the judgment writ, the Judge is believed even if they are no longer standing before him. Accordingly, the question in the Gemara ibid., ‘Let us see who holds (the document containing) the verdict in favour’ refers to the latter part of the cited Baraitha (i.e., ‘but if they no longer stand before him, he is not believed’). RITBA, however, refers this question to the first part of the Baraitha (i.e., ‘the Judge is believed only if the litigants are still standing before him’). In other words, why rely on the Judge if we can see the judgment writ. For if it refers to the latter part of the Baraitha, the following difficulty arises: If we do not believe the Judge, why accept the judgment writ? — ShaK. Where the judgment writ held by A contains an undefined statement, e.g., ‘The land of So-and-so belongs to you,’ and B claims that the judgment writ was in his possession but he lost it, then the Judge is believed when he says, ‘I ruled in favour of this party’ — ShaK. and [this ruling is applicable] only to a case of discretionary judgment;³Kid. ibid. , supra n. According to R. Tam (Kid. ibid., Tosaf. s.v. שודא a.e.) discretionary judgment means favouring or making a gift to any one of the litigants. Rashi: The Judges use their discretion in order to determine which of the claimants is to be believed. However, even if the litigants accepted the Judge to give a verdict based on discretionary judgment, it is still doubtful whether a re-trial would result in the same verdict — ShaK, Nethiboth. but in [the case of] a verdict which depends upon the pleas [of the litigants], reliance [on the Judge] does not apply, for in accordance with [the restatement of] the pleas the one who deserves favourable judgment will be so pronounced⁴And even while the litigants are still before the Judge, the latter is not believed, but he must clarify the matter by stating, ‘So-and-so, you have pleaded thus and So-and-so, you have pleaded thus and accordingly, You are not guilty and You are guilty’ — M.E., ShaK a.o. provided he [the litigant] does not upset his former pleas.⁵e., there is a controversy between them, viz., the Judge says, You pleaded thus, and the litigants contradict him, in which case the Judge is not believed when they are no longer before him (and according to ShaK even if they are still before him) — M.E. This entire [ruling applies] only to one Judge;⁶E.g., an authoritative Judge (Mumḥeh) or where they accepted him as Judge (according to ShaK by means of Kinyan, but M.E. maintains that Kinyan is not necessary) — M.E. Thus Tur, Asheri and RIBaSh in Resp. but two [Judges] are always believed,⁷For then their statement is equivalent to evidence and they are believed — M.E. Even if it is not a case of discretionary judgment — Nethiboth. Cf. B.M. 32a; Tosef. B.M. I, 6. even if there are two witnesses who contradict them.⁸Asheri in Resp. advances the following reason: The Judge is more conscious of the case than those who merely hear the proceedings. If one Judge in conjunction with a single witness made this statement and two witnesses contradict them, the Judge and the single witness are not believed, since the single witness merely heard the proceedings. Consequently, there is only one against two — M.E. Gloss: So too, if they [the litigants] accepted an arbitrator [to bring about a settlement] within a certain time limit, — [the law is that with respect to] everything he [the arbitrator] states within the time limit, he is believed. However, if he had already recorded the settlement in writing and given [it] to them, he [subsequently] has no right to add or to subtract [therefrom] even within the time limit, although he states that thus was his [original] intention.⁹B.Yos. on the authority of RaShBA — G. , supra n.

As long as the litigants are [still] standing before the Judge, he is believed when he states, 'I have pronounced this party guilty' and 'I have pronounced that party not guilty.' [As soon as] they are dismissed from his presence, he is not believed.¹Kid. 74a: ‘A Judge is believed when he states, I have pronounced this one not guilty; I have pronounced that one guilty. When does this apply? Only if the litigants are (still) standing before him; but if they no longer stand before him, he is not believed. But let us see who holds (the document containing) the verdict in favour (since they gave a written verdict to each litigant)? — It refers to a case where the written document was torn. Then let us give them a re-trial? — (It refers to a case of) discretionary judgment (i.e., the Judge based his verdict on discretion and could not decide on the basis of any law. In this case we cannot be certain that a re-trial will result in the same decision).’ , Ket. 85b. An arbitrator is likewise not believed when he states that the settlement was according to such and such terms if the litigants are no longer before him (RaShBA) — M.E. , Isserles anon. This is based on the following case cited by B.Yos. supra § 12: A gave B a gift of bonds and took an oath that he will not collect any of the debts covered by the bonds. Subsequently A and B were in dispute concerning other claims and they accepted an arbitrator on condition that whatever settlement he reaches within a certain time limit should be effective and the latter arbitrated the case and ruled that A and B should remit their claims by means of a written document excluding the case of the bonds that A had made a gift to B which are to remain in effect as of the day of arbitration and later it was discovered that A had collected money on the strength of the bonds given to B and the latter contends that the money collected by A should be returned, to which A responds that since he collected the money prior to the date on which the document of remittal became effective, notwithstanding the fact that he presented the bonds to B on condition that they remain in their original force, he should be exempt from returning the collected money especially since it states in the document of remittal drawn up by the arbitrator that the settlement excludes the bonds as of the date of arbitration. The arbitrator was consulted and he agreed with A. Responsum: The law accords with B’s claim because when the other claims between A and B were submitted to the arbitrator, it was unknown that A had collected money on the strength of the bonds, for it was presumed that the bonds were intact since A took an oath to this effect. Consequently this did not enter into the remittal. And as to the statement of the arbitrator, he is not believed because he did not make this declaration when the litigants were still before him as in the present ruling with regards to a Judge. Nethiboth writes that the Judge is believed as long as the litigants still stand before him even if the one who was pronounced guilty could employ the principle of Miggo (i.e., since the the litigant could have stated ‘I did not accept you as Judge’), because since the Judge is believed as two witnesses, it would be tantamount to a Miggo in face of witnesses which is not effective. If the litigant contends that the Judge had pronounced judgment in his favour but the Judge and the other litigant state that the verdict had not yet been given, the Judge is believed even where the litigants are no longer before him provided that there are witnesses who testify that the litigants accepted him as Judge; but if there are no witnesses available and the litigants are no longer before the Judge, the claim of the litigant is accepted on the principle of Miggo, viz., that they did not accept him as Judge. And in this case the principle of Miggo in the face of witnesses (i.e., if we accept the statement of the Judge as equivalent to the testimony of two witnesses) is not accepted since the litigants are no longer before the Judge, in which case the latter is not regarded as equivalent to two witnesses — Nethiboth. However, the Judge is believed as one witness, provided he is not a relative or an otherwise ineligible person, and hence places the litigant who contradicts him under an oath and exempts the one who supports his statement from taking an oath. If the Judge died or left and the litigants contradict each other, each one stating that judgment was pronounced in his favour, — the law is that if one is the possessor (מוחזק) of the disputed article, the onus rests on the other party to produce evidence in order to substantiate his claim; if both are possessors, they divide the disputed article; if both are not possessors, the stronger of the two obtains possession or they make a settlement — M.E. And [this refers to a case] where the written verdict is not in his [the litigant's] possession,²Kid. ibid. , previous note beg. This means that if the litigant has the judgment writ, the Judge is believed even if they are no longer standing before him. Accordingly, the question in the Gemara ibid., ‘Let us see who holds (the document containing) the verdict in favour’ refers to the latter part of the cited Baraitha (i.e., ‘but if they no longer stand before him, he is not believed’). RITBA, however, refers this question to the first part of the Baraitha (i.e., ‘the Judge is believed only if the litigants are still standing before him’). In other words, why rely on the Judge if we can see the judgment writ. For if it refers to the latter part of the Baraitha, the following difficulty arises: If we do not believe the Judge, why accept the judgment writ? — ShaK. Where the judgment writ held by A contains an undefined statement, e.g., ‘The land of So-and-so belongs to you,’ and B claims that the judgment writ was in his possession but he lost it, then the Judge is believed when he says, ‘I ruled in favour of this party’ — ShaK. and [this ruling is applicable] only to a case of discretionary judgment;³Kid. ibid. , supra n. According to R. Tam (Kid. ibid., Tosaf. s.v. שודא a.e.) discretionary judgment means favouring or making a gift to any one of the litigants. Rashi: The Judges use their discretion in order to determine which of the claimants is to be believed. However, even if the litigants accepted the Judge to give a verdict based on discretionary judgment, it is still doubtful whether a re-trial would result in the same verdict — ShaK, Nethiboth. but in [the case of] a verdict which depends upon the pleas [of the litigants], reliance [on the Judge] does not apply, for in accordance with [the restatement of] the pleas the one who deserves favourable judgment will be so pronounced⁴And even while the litigants are still before the Judge, the latter is not believed, but he must clarify the matter by stating, ‘So-and-so, you have pleaded thus and So-and-so, you have pleaded thus and accordingly, You are not guilty and You are guilty’ — M.E., ShaK a.o. provided he [the litigant] does not upset his former pleas.⁵e., there is a controversy between them, viz., the Judge says, You pleaded thus, and the litigants contradict him, in which case the Judge is not believed when they are no longer before him (and according to ShaK even if they are still before him) — M.E. This entire [ruling applies] only to one Judge;⁶E.g., an authoritative Judge (Mumḥeh) or where they accepted him as Judge (according to ShaK by means of Kinyan, but M.E. maintains that Kinyan is not necessary) — M.E. Thus Tur, Asheri and RIBaSh in Resp. but two [Judges] are always believed,⁷For then their statement is equivalent to evidence and they are believed — M.E. Even if it is not a case of discretionary judgment — Nethiboth. Cf. B.M. 32a; Tosef. B.M. I, 6. even if there are two witnesses who contradict them.⁸Asheri in Resp. advances the following reason: The Judge is more conscious of the case than those who merely hear the proceedings. If one Judge in conjunction with a single witness made this statement and two witnesses contradict them, the Judge and the single witness are not believed, since the single witness merely heard the proceedings. Consequently, there is only one against two — M.E. Gloss: So too, if they [the litigants] accepted an arbitrator [to bring about a settlement] within a certain time limit, — [the law is that with respect to] everything he [the arbitrator] states within the time limit, he is believed. However, if he had already recorded the settlement in writing and given [it] to them, he [subsequently] has no right to add or to subtract [therefrom] even within the time limit, although he states that thus was his [original] intention.⁹B.Yos. on the authority of RaShBA — G. , supra n.

We give prior consideration only to the claimant.¹B.K. 46b. , text supra § 16, n. 5. ‘Giving prior consideration’ refers to hearing the pleas. Cf. also Tosef(Z). San. VI, 3: ‘Whoever makes a claim against his fellow, opens (his pleas) first.’ The meaning of the text in B.K. ibid. is as follows: When the litigants come to Court and the claimant desires that his pleas be heard first, and so too, the defendant — the practical difference being that the defendant might make a partial admission — and the law is that one who makes a partial admission is required to take a Biblical oath only if the admission was made after the plaintiff made his claim (v. infra § 88, 15) — the law is that we give prior consideration to the claimant. However, if the property of the defendant had depreciated in value or the reason he had not made payment prior to this was due to the fact that were he to dispose of his estate he would be forced to sell at a low price, — then we attend to the defendant first, and if the defendant makes a partial admission prior to hearing the pleas of the claimant, he is not required to take a Biblical oath — ShaK. However, if the property of the defendant [thereby] depreciates in value we give him prior consideration.²B.K. ibid.: ‘The Nehardeans said: Sometimes we attend to the defendant first, e.g., where his property depreciates in value.’ Gloss: e., A makes a claim against B³According to Rashi (v. supra § 16, n. 5) it refers to a case where the defendant has an opportunity of selling his property now at a high price — an opportunity which will not present itself later — then we give prior consideration to the defendant’s counter-claim. , ShaK (supra n. 1) for another interpretation. in a case where [B] cannot say, 'I have [already] paid,'⁴Thus B.K. ibid., Tosaf. s.v. שאין according to Rashi’s explanation. We deal here with a case where there is a document signed by witnesses that he lent him money — M.E. Cf. infra § 85, 7. and B responds [by making a counter-claim, viz.,] 'You have so much of mine in your possession'⁵Tur has, ‘And B responds, You have taken possession of aught that belongs to me; return to me whatever you have seized,’ or he says, ‘You had my pledge and it has depreciated in value.’ Even if the claimant admits to the defendant that the pledge has depreciated in value (save that they differ as to the amount of depreciation), — nevertheless, we give prior consideration to the claimant — M.E. and he requests [an extension of] time — more than thirty days — [in order] to produce witnesses, — [thirty days being] the time [usually given] by Court,⁶For were B to request only thirty days, the usual extension of time given by the Court, we would have complied with his wish even if his property were not to depreciate in value. But if he requests a longer extension of time in order to produce witnesses, and we are not aware that there are witnesses available,—then even if B’s, property depreciates in value, we do not listen to him. We deal here with a case where the Judges of the Court know that he has witnesses who are acquainted with the facts, but we do not know whether the witnesses will testify in favour of the defendant or not — M.E. , supra § 16, 1 and notes. — [the law is that] although we know that he [the defendant] has witnesses who are acquainted with the case, we [still] give prior consideration to the claimant,⁷Tosaf. ibid. and he [the defendant] is obliged to pay him forthwith⁸e., if he has money and desires to obtain an extension of time only to clarify his counter-claim and to deduct this from the loan; but if he has no money, we give him only thirty days to secure funds — M.E. unless his [the defendant's] property depreciates in value and the defendant [thereby] suffers a loss.⁹e., the Beth Din see that the defendant will suffer a loss thereby, e.g., if he does not sell his pledge now (which according to him is in the claimant’s possession), we give the defendant prior consideration and grant him his request for an extension of time even more than thirty days. Or if the Beth Din see that there will be a depreciation of his property or the like. So too, if the claimant desires that they hear his pleas first, [i.e.,] prior to hearing the pleas of the defendant,¹⁰e., A (the claimant) does not insist to be paid first but rather to have his pleas heard first. Consequently, ‘unless his (B’s) property depreciates in value’ means that if they hear A’s pleas first, then B is designated a ‘defendant’ and thereby his property will depreciate in value. Likewise, if A desires that his witnesses be heard first and B makes the same claim, we give prior consideration to A. Consequently, ‘unless (B’s) property depreciates in value’ means that B’s witnesses might leave and go to a distant country if they are not heard forthwith — M.E. or he requests the Court of Law not to issue the verdict at present save when he so desires,¹¹Tur on the authority of RaBaD — G. Tur adds: ‘For perhaps today or the next day he might find witnesses or the defendant will make an admission.’ This applies even if they made an agreement with the claimant by means of a Kinyan to be tried before the Court of Law and he had already presented his documents — nevertheless, he may state that he desires to be dismissed and not to be tried now (it follows that if he had already presented his pleas this does not apply), unless the property of the defendant depreciates in value (RaShBA) — M.E. or [in a case] where the defendant is under obligation to him [the claimant] to take an oath and the claimant states that he desires not that he [the defendant] swear to him now save when he [the claimant] so desires¹²N.Yos. — G. , supra § 16, n. 2. and likewise in all similar cases, e.g., when he [the claimant] says that he has many [additional] claims against this [defendant] and he desires not to make [all these] claims at present,¹³, however, infra § 87, 24, Gloss according to which Isserles holds that the claimant is told to make all his claims which contradicts the present ruling. ShaK removes this difficulty by explaining that Isserles concludes infra that if the claimant refuses to make all his claims, the defendant takes an oath and is exempt; whereas in the present ruling we deal with a case where the claimant states that he does not care if the defendant takes an oath because even if he takes an oath he will not be exempt since he has additional claims against the defendant where the question of an oath does not enter or where he will be able to produce witnesses. For additional interpretations, v., M.E. and P.Tesh. — [then] we listen to the claimant unless the property of the defendant [thereby] depreciates in value,¹⁴B.Yos. on the authority of RaShBeẒ — G. Where A made a claim against B and the latter refused to respond being a very stern and powerful individual (אלם) and subsequently B made a claim against A, — the law is that A is not required to respond until B responds first (D.M. on the authority of MaHaRIW) — M.E. or where the defendant suffers a loss on account of this according to the discernment of the Judges.