חושן משפט כ"ה

Every Judge¹‘Judge’ is expressly stated to indicate that we deal here only with one who is an authoritative Judge (Mumḥeh) or one who is not a Mumḥeh but was accepted by the litigants to try the case, or three laymen even if they were not accepted by the litigants. However, the decision of one or two laymen is not considered valid even if authorization was obtained from the Resh Galutha (Exilarch) and even if the decision was not given in error — M.E. Thus Alfasi, viz., that the litigant may retract even if they (one or two laymen) did not err. But if it is impossible to retract, e.g., where one left for abroad or the like (v. Caro anon), the Judge must make restitution from his own pocket even if he did not take aught from one litigant and give to the other litigant with his own hand. For even where the Judge took and gave with his own hand, and in reality this should be returned by the litigant who received it in error, the Judge must pay the litigant who suffered a loss, and then collect from the other litigant who received payment on account of the erroneous decision of the Judge. RaZaH contra Alfasi rules that since the decision is invalid, then even if the layman Judge took and gave with his own hand, he is exempt from making payment, for the litigant is responsible since he knew well that the decision of such a Judge is invalid. If the Judge compelled the litigant to give aught to the other litigant, he is considered a robber and must make restitution. ShaK rules in accord with Alfasi where the Judge took and gave with his own hand. who adjudicated monetary cases and gave an erroneous decision — [the law is that] if he erred in evident and known matters, e.g., laws that are explicitly stated in the Mishna²Yad, Sanhedrin VI, Derived from Mishna San. 32a: ‘In monetary cases the verdict may be reversed (on discovering that the verdict was erroneous) either (from conviction) to acquittal or (from acquittal) to conviction.’ Gemara ibid. 33a: ‘But the following disagrees with it: If one adjudicated a case (by himself) and pronounced him who was guilty, not guilty, or the one who was not guilty, guilty; the clean, unclean, or vice versa: his verdict stands, but he must pay compensation (for any damage resulting from his erroneous decision) out of his own pocket (Mishna Bek. 28b. Thus we see that the verdict may not be reversed)? — R. Joseph stated: There is no contradiction: here it (our Mishna) has reference to a Mumḥeh (He had authority to upset his former decision); there (Mishna Bek.) to one who is not a Mumḥeh (His decision stands but he must pay indemnity). But do we reverse the verdict in the case of a Mumḥeh? Have we not learned: If he was recognized by the Beth Din as a Mumḥeh he is exempt from making payment! — R. Naḥman replied: Here (in our Mishna) we deal with a case where there is a Court superior to this one in learning and numbers (therefore, the superior Court can reverse the verdict of the lower Court); but in the other Mishna there is no other Court superior to this one in learning and numbers (i.e., in both Mishnahs the verdict was issued by a Mumḥeh, but where there is no superior Court available, one of the litigants may oppose reversing the verdict). R. Shesheth answered: Here we deal with a case where he (the Judge) overlooked a law cited in a Mishna (Hence, the verdict may be reversed); there he erred in weighing of opinions. For R. Shesheth stated on the authority of R. Assi: If he overlooked a law cited in the Mishna, the verdict is reversed; if he erred in weighing of opinions, the verdict is not reversed. Rabina asked R. Ashi: Is this also applicable if he erred in connection with a teaching of R. Ḥiyya or R. Oshaia (who were held to be the editors of the Tosefta which is not as authoritative as the Mishna)? — Yes, he answered. And even with respect to a saying of Rab and Samuel (whose dicta were not as authoritative as the Tosefta)? — Yes, he answered. Even regarding a law stated by you and me? — Are we reed-cutters in a marsh (i.e., illiterate), he answered. What is meant by the statement, Weighing of (conflicting) opinions? — R. Papa stated, E.g., if two Tannaim or Amoraim are in dispute and it was not stated with whom the law accords and it happened that he (the Judge) ruled according to the opinion of one of them, whilst the general practice (accepted by the majority of Judges. Thus Rashi) follows the other (opinion), — this is considered a case of (erring) in the weighing of (conflicting) opinions … R. Ḥisda stated (in order to remove the contradiction between the Mishnahs supra): Here (the Mishna in Bek.) we deal with a case where he (the Judge) took with his own hand (from one litigant) and gave (to the other in which case the verdict stands); here (the Mishna in San.) where he did not take and give with his own hand (in which case the verdict is reversed).’ Hence, our ruling is in accord with R. Shesheth. Cf. also Ket. 100a; Sheb. 38b; San. 6a. or in the Gemara³San. 33a in accord with Rabina’s query presented to R. Ashi. , text in previous note. or in the rulings of the Codifiers,⁴Tur on the authority of Asheri and Kes. Mish. to Yad ibid. Derived from San. ibid. , supra n. 2: ‘Are we reed-cutters in a marsh?’ Regarding a Talmudic question which remains unanswered (תיקו) where the law is that ‘the claimant must produce evidence,’ and the Judge erred in his verdict by giving a decision according to which the possessor should relinquish the disputed article — it is regarded as ‘overlooking a law cited in the Mishna’ (N.Yos.), and if the Judge had already given the litigant a right to seize the article, — the law is that this hinges on the difference of opinion stated by the Codifiers whether ‘taking possession’ in the case of a disputed article concerning which the Talmud leaves the question undecided, is valid or not. Tummim holds that possession in this case is valid save that the other party has a right to demand payment by the Judge. Nethiboth, however, states that the Judge is exempt from making payment according to all authorities. the verdict is reversed and it [the case] is adjudicated in accordance with the law.⁵Even if they were three authoritative Judges (Mumḥin) and were accepted by the litigants to try the case, since they erred in a law cited in the Mishna — Tur and Asheri. Gloss: Yet some say that if it appears to the Judge and to his contemporaries⁶B.B. 130b-131a: ‘Raba said to R. Papa and to R. Huna the son of R. Joshua: When a (written) verdict of mine comes before you, and you see in it something objectionable, do not tear it up until you come before me. If I have a (well-grounded) reason (for my verdict) I will tell (it to) you; if not, I will retract. After my death, you shall neither tear it up nor derive (any law) from it. You shall neither tear it up because were I there, I might have told you the reason; nor derive (any law) from it, because a Judge must be governed only by what his eyes discern.’ According to RaShBaM (s.v. ולא תגמרו) it means: ‘Do not pronounce judgment on the basis of my verdict but issue your ruling in accord with the opinion which you are inclined to accept because everything depends upon the discernment of the Judge.’ From this we infer that one may rule in accordance with one’s opinion and discernment even in the case where it is contrary to the written verdict of his teacher. on the strength of indisputable proof⁷, Yeb. 42b-43a whence we see that once during a debate by Amoraim concerning an anonymous Mishna, the latter was disregarded and was not considered authoritative in the face of a valid and well-grounded objection. that the law does not accord with that mentioned in the Codifiers, he can differ with it,⁸Even contra the Geonim if it is not explicitly mentioned in the Talmud — Tur and Asheri. since it is [a law that is] not mentioned [explicitly] in the Gemara.⁹Tur on the authority of Asheri — G. , B.M. 86a where it is stated that R. Ashi and Rabina arranged the vast material which accumulated up to their times and they represented the authentic body of legislation as editors of the Talmud. Consequently, the body of teachings edited by them represented the authoritative Code and hence, a law not mentioned in the Talmud could be disputed. Nevertheless, one should not adopt a leniency in a matter that the [authors of] the [former] compilations [on Hebrew Law] that have spread among the large majority of Israelites were stringent, unless one has it on tradition from his teachers that we do not adopt that stringency.¹⁰Decisions of Isserlein s. 241 — G. , A.Z. 36a whence RaN derives three important principles, a) If a prohibition issued by one Court has spread among the large majority of Israelites, another Court cannot annul this decision even if it is superior to the former Court in wisdom and numerical strength; b) If the prohibition of one Court has not spread among the large majority of Israelites, but the majority of people are able to abide by it, then another Court that is superior to the former Court in wisdom and numerical strength can annul the decision; c) If the prohibition of one Court did not spread among the large majority of Israelites because the majority of people are not able to abide by it, then even another Court that is inferior in wisdom and numerical strength can annul it. The law stated here refers to ritual law, for in civil suits the claimant is required to produce evidence — M.E. However, if it is impossibe to reverse [the verdict], e.g., where the one who received the money illegally [as a result of the erroneous decision] left for abroad or [in a case] where he is a stern individual [and refuses to return the money] or where [the Judge] pronounced aught that, is 'clean,' 'unclean,' or gave a decision regarding a Kosher animal that it is Terefah and they gave it to the dogs to eat, or anything similar to this, — [the law is that] these are [cases where] he [the Judge] is exempt from making compensation¹¹San. 33a: ‘R. Hamnunah raised an objection against R. Shesheth (v. supra n. 2): It once happened that a cow’s womb was removed and R. Tarfon gave it to the dogs to eat (i.e., he declared the cow Terefah). When the case was presented before the Sages in Yabneh, they declared her permissible (for human consumption), for Theodos (or Theodoros), the Physician said that no cow or sow leaves Alexandria of Egypt unless the womb is first cut out, in order that she may not breed (This precaution was taken so as to limit its breeding only to Egypt and thus compel buyers to come to Alexandria). Said R. Tarfon: Your ass is gone, Tarfon! (i.e., I will now have to sell my ass in order to compensate the owner of the cow for having erroneously declared it Terefah). But R. Akiba said to him: You are exempt from reparation, since he who is publicly recognized as a Mumḥeh is exempt from making compensation (Mishna Bek. 28b; San. 93a). Now, if your opinion (R. Shesheth that one who overlooks a law cited in the Mishna may reconsider his verdict) has substance, he (R. Akiba) should have said to him: You overlooked a law cited in the Mishna (cf. Mishna Hul. 54a: If the womb is gone the animal is not rendered Terefah) and he who overlooks a law cited in the Mishna may reconsider his verdict (Hence, even if R. Tarfon were not an expert, he should be exempt. Consequently, if the cow were still here, R. Tarfon could rescind the verdict and therefore the person who gave it to the dogs should be held responsible)! — He (R. Akiba) gave him two reasons: Firstly, you have overlooked a law cited in the Mishna, and he who overlooks a law cited in the Mishna may rescind his verdict. Secondly, Even if your error was made against common practice (Lit. ‘weighing of opinions’), you are a publicly recognnized Mumḥeh, and as such you are exempt from making reparation. Said R. Naḥman b. Isaac to Raba: What is the objection that R. Hamnunah raised against R. Shesheth from the case of the cow? But the cow had already been given to the dogs to eat and was no longer in existence for it to be returned to its owner (i.e., a reconsideration of the verdict would be of no avail)! — This is what he meant: Were you to say that one who overlooks a law cited in the Mishna may not reconsider the verdict, it is right, for then the verdict stands and R. Tarfon was fearful and (R. Akiba) said to him: You are recognized by the Beth Din as a Mumḥeh and exempt from reparation. But if you say that he who overlooks a law cited in the Mishna may reconsider his verdict, then (R. Akiba) should have said to him: Since if the cow were still available your verdict would have been invalid and you would have done nothing, so too, now (that the cow is no longer in existence) you have done nothing (i.e., you did not give it to the dogs yourself and it was the owner’s bad luck to have carried out your verdict [v. B.K. 100a]. Consequently, since R. Akiba did not present this argument, we conclude therefrom that if one overlooks a law cited in the Mishna, he must not reconsider the verdict).’ The present ruling accords with the interpretation of R. Ḥisda in removing the contradiction between the Mishnahs in San. and Bek. , supra n. 2. and although he was the cause of the damage, he did not cause damage intentionally.¹²e., even according to R. Meir who adjudicates liability in an action of damage done indirectly (B.K. 100a) and which is the accepted law, in the present ruling all authorities agree that the Judge is not held responsible, for were this not so, no person would be willing to become a Judge. However, if the Judge took and gave with his hand even without having to resort to force, he is held responsible even if he overlooked a law cited in the Mishnah — ShaK. M.E. and BaḤ differ with ShaK and maintain that since the Judge did not have the express intention to cause damage, then even if he took and gave with his hand, the law is that if he over-looked a law cited in the Mishnah, he is not held responsible. Gloss: And some differ [with this opinion].¹³Tur on the authority of Asheri and other Codifiers — G. e., the Judge is held responsible in a case where the article cannot be returned and the Judge erred by overlooking a law cited in the Mishna and we follow R. Meir’s opinion. As to the case of R. Tarfon (v. supra n. 11), it accords with the view of the Sages who oppose R. Meir and hold that liability is not adjudicated in an action of damage done indirectly. , supra n. 12. The dissentient view holds that even three Mumḥin who were accepted by the litigants are held responsible because we follow R. Meir’s opinion that liability is adjudicated in an action of damage done indirectly — M.E. ShaK concludes that if he is a publicly recognized Judge and was accepted by the litigants, then even according to the dissentient view recorded here, the Judge is exempt contra M.E. Tummim agrees with ShaK, but states that if the Judge took and gave with his own hand, although he is legally exempt yet as far as acting beyond the requirement of the law is concerned, he is held responsible. However, if he did not take and give with his own hand and erred in a law cited in the Mishna and is a Mumḥeh, — then even from the point of acting beyond the requirement of the law he is exempt as in the case of R. Akiba who exempted R. Tarfon and did not consider him liable beyond the requirements of the law. If one asks the advice of a Sage whether he should purchase certain meat or fruit, and the latter informed him that the fruit is ‘clean’ or the meat ‘Kosher’ and on the strength of this advice he purchased same and subsequently, it was found that the Sage had erred — ShaK holds that if he overlooked a law cited in the Mishna, the purchase is invalid and he may retract; but if he erred ‘in the weighing of opinions’ the purchaser may not retract save that the Sage or Judge is liable to make compensation if he is not a recognized authority but was only accepted by the litigants. Tummim disputes this ruling and maintains that the purchase is void and the vendor must return the money and take back his fruit or meat. And with regards to decisions in ritual law, — if he [the Judge] has attained [the age of] ordination, although he is not [officially] ordained, his legal status is as that of an authoritative [Judge].¹⁴N.Yos. to San. IV beg. — G. This ruling according to N.Yos. refers to a Judge who erred in ‘weighing of opinions’ in a monetary suit but not to one who erred in a law cited in the Mishna in which case the Judge is legally held responsible to make compensation unless he is an authoritative Judge ordained by the Court in the Land of Israel, or has authorization from the Resh Galutha; but in ritual law (איסור והיתר) if the Judge is an expert who is versed in the law (גמיר) and has the capacity for making logical deductions (סביר), he is not held responsible. Consequently, since the present ruling refers only to one who erred in a law cited in the Mishna, Isserles should have stated this law in the next par. which deals with the law of ‘erring in the weighing of opinions’ — M.E. ShaK writes that no distinction should be made between monetary and ritual cases contra N.Yos. and Isserles. , Y.D. § 242 on the law of Ordination nowadays.

These the igniters and if one errs on a cloudy day: