חושן משפט י״בChoshen Mishpat 12

Se’if 1א׳

דיין שבאו לפניו רך וקשה וכל דיני פשרה. ובו יט סעיפים: שנים שבאו לפניך לדין א' רך וא' קשה עד שלא תשמע דבריהם או משתשמע דבריהם ואי אתה יודע להיכן הדין נוטה אתה רשאי לומר להם איני נזקק לכם שמא יתחייב הקשה ונמצא רודף אחר הדיין אבל משתשמע דבריהם ותדע להיכן הדין נוטה אי אתה רשאי לומר איני נזקק לכם ואם היה ממונה לרבים חייב להזקק להם: הגה וכן אם היו שניהם חזקים צריך לזקק להם (הגהות אשירי ריש סנהדרין וב"י בשם תו') ויש מי שכתב דמ"מ נוהגין עכשיו שלא למחות בעוברי עבירה משום שיש סכנה בדבר שלא ימסרנו למלכות (מהרי"ו):

When two [litigants] appear before you for trial, one weak [in influence], the other powerful [in influence], so long as you have not heard their pleas or [even after you have heard their pleas, — [so long as] you are in doubt which way the judgment will incline, you may say to them, 'I am not bound to try your case,' lest the one of powerful [influence] be pronounced guilty and persecute the Judge.1Thus Tosaf. (v. infra n. 3) ; Alfasi; BeHaG; She’iltoth, Mishpatim s. 58. Derived from Y. San. I, 1(18b); Sifre to Deut. I, 17; Tanḥuma, Mishpatim s. 6; Tosef (Ẓ). Sanhedrin I, 7. However, if you have [already] heard their pleas, and you know which way the judgment will incline,2 infra n. 3. Derived from Ye shall not be afraid of the face of any man (for the judgment is G-d’s) (Deut. I, 17). The last part of this verse, for the judgment is G-d’s, refers to the ‘conclusion of the trial.’ Judgment (משפט) has reference to the time when the Judge knows which way the judgment will incline (v. supra § 5, n. 17 — M.E. Cf. however, TaZ a.l. you may not say [to them], 'I am not bound to try your case.'3Yad, Sanhedrin XXII, Derived from San. 6b: ‘When two men appear before you for trial, one weak (in influence), the other strong (in influence), before you have listened to their pleas, or even after, as long as you are in doubt which way the judgment will incline (i.e., in whose favour the verdict will be rendered), you may say to them: “I am not bound to render a decision in your case,” lest the one of strong influence be pronounced guilty and persecute the Judge (Thus Tosaf. But Rashi explains: He will pursue the Judge to have the judgment reversed in his favour). However, if you have already heard their pleas and know which way the judgment will incline, you cannot say to them: “I am not bound to render a decision in your case,” for it is written, Ye shall not be afraid of the face of any man (Deut. I, 17).’ , supra n. 2. Regarding one of the Judges who wishes to withdraw from the case, v. infra § 18, 4. And if he was appointed [to serve as Judge] for the public, he is obliged to try their case.4Thus Yad, ibid. Because the entire community will protect him. This has reference even to a case where the Judge had not yet heard the pleas of the litigants, or even if he did hear the pleas but is in doubt which way the judgment will incline, — yet, since he was appointed by the public he is bound to try the case; whereas one who is not an appointed Judge may withdraw under these conditions. Cf. the following sources which substantiate this ruling: Sifre to Deut. I, 16: ‘And I charged your judges at that time saying: Hear the causes between your brethren etc. — In former days you possessed your own authority; from now on you are slaves and subject to the community.’ Sifre to Deut. I, 17: ‘Lest you say, I am afraid of So-and-so who might put my son to death, or might set my stack of grain on fire, or might cut down my young trees, — the text reads, Ye shall not be afraid of the face of any man. And so too, does it state with regards to Jehoshaphat, and he said to the judges: Consider what ye do, for ye judge not for man, but for the Lord (II Chron. XIX, 6).’ The expression I am afraid of So-and-so etc., indicates that we deal here with a case where one of the litigants is of powerful influence, but since the Judges were appointed they could not withdraw froom the case. W.G., however, disagrees with Caro’s ruling, viz., that in the case of an appointed Judge he may not withdraw even if he did not hear the case or even if he did hear the case, but is in doubt which way the judgment will incline, where the litigants are of unequal influence. For even in the case of an appointed Judge, W.G. maintains that it is only after he has heard the pleas and knows which way the judgment will incline that he cannot withdraw. And as to the above text in Sifre, ‘In former days (i.e., prior to your appointment as Judges),’ — it has reference even to a case where both litigants were of strong influence at which time you could withdraw before you heard the pleas, or where you had heard the pleas but were in doubt as to the verdict, — for even in such a case there is still the possibility that the litigant who will be pronounced guilty, might harass the Judge, but where only one of the litigants is of strong influence, even an appointed Judge is permitted to withdraw before the pleas are heard etc. Appointed Judges are subject to the community and cannot withdraw save where both litigants are of powerful influence. Furthermore, the text in San. ibid. which also adduces the Biblical verse, Ye shall not be afraid of the face of any man, addressed to appointed Judges, found in Sifre ibid., — clearly states that we deal with a case where one litigant was of weak and the other of strong influence and only before the pleas are heard can the Judge wihtdraw. It follows therefrom that the exposition in Sifre ibid., ‘Lest you say etc.,’ also deals with similar circumstances. Hence, W.G. would not agree with Isserles’ Gloss anon. Cf. also Hag. Asheri to San. III who State the case of Mar ‘Ukba who refused to act as Judge (although he was an appointed Judge. v. Shab. 55a) in a case where he knew that the litigants will not accept his decision (v. San. 29a), which is equivalent to a case where one litigant is of strong influence and the pleas had not been heard. In short, even an appointed Judge is not bound to try the case of strong and weak litigants prior to hearing the pleas or before he knows which way the judgment will incline. Gloss: So too, if they were both powerful [litigants] he is required to try their case.5Hag. Asheri to San. I beg. and B.Yos. on the authority of Tosaf. — G. The reason being, that if the one pronounced guilty will harass the Judge, the other litigant will come to his aid (Tosaf. ibid.) — ShaK. This, of course means even if he is not an appointed Judge. , however, supra n. 4, opinion of W.G. There is, however, an [authority] who writes that at present it is nevertheless the adopted practice not to interfere with violators [of the law] because there is danger in [this] matter lest he [the violator] get him into trouble with the government.6MaHaRIW — G. This means even if both litigants are of powerful influence. , however, D.M. where the order of Isserles’ Gloss is a) not to interfere with violators etc., and then b) the ruling regarding two litigants of powerful influence. Cf. Kid. 71a the case of R. Phineas where we find that if powerful individuals might endanger one’s life, one should refrain from admonishing them. A.H. writes that they may withdraw even at the conclusion of the trial even if they are permanent Judges only if there is danger. If a Judge sees that his other two colleagues (who are incompetent) are perverting justice, he may, when requested to give his legal opinion in the matter, say, ‘I know not the law in this case,’ as a result of which other Judges will be co-opted to form a majority against the incompetent Judges (v. Mishna San. V, 5). This is permissible in the interests of peace (Tummim, Nethiboth) — P.Tesh.

Se’if 2ב׳

מצוה לומר לבעלי דינים בתחלה הדין אתם רוצים או הפשרה אם רצו בפשרה עושים ביניהם פשרה וכשם שמוזהר שלא להטות הדין כך מוזהר שלא יטה הפשרה לאחד יותר מחבירו וכל ב"ד שעושה פשרה תמיד הרי זה משובח בד"א קודם גמר דין אע"פ ששמע דבריהם ויודע להיכן הדין נוטה מצוה לבצוע אבל אחר שגמר הדין ואמר איש פלוני אתה זכאי איש פלוני אתה חייב אינו רשאי לעשות פשרה ביניהם אבל אחר שאינו דיין רשאי לעשות פשרה ביניהם שלא במושב דין הקבוע למשפט ואם חייבו ב"ד שבועה לאחד מהם רשאי הב"ד לעשות פשרה ביניהם כדי ליפטר מעונש שבועה (ואין ב"ד יכולין לכוף ליכנס לפנים משורת הדין אע"פ שנראה להם שהוא מן הראוי) (ב"י בשם ר"י ובשם הרא"ש) וי"ח (מרדכי פ"ב דמציעא):

It is a religious duty to say to the litigants at the outset, 'Do you wish [to resort to] law or [to submit to] arbitration?' If they consented [to submit to] arbitration, they bring about a settlement between them.7Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. And just as [the Judge] is cautioned not to pervert judgment, so too, is he cautioned not to direct the arbitration [in favour of] one party more than the other.8Thus Tur. Derived from San. 32b: ‘It has been taught: Justice, justice shalt thou follow (Deut. XVI, 20); the first (mention of justice) has reference to a verdict based on strict law; the second, to arbitration.’ , Rashi a.l., s.v. אבל קראי who writes that the second mention of justice means that the Judge should justify the arbitration according to what he sees with his own eyes. R.A.Eger states that just as in the case of strict law, if the Judge perverts justice through error, he must reconsider the case and retract from his former decision, so too, in bringing about an arbitration. Shebuth Ya‘akob reports the following case: A and B consented to submit their case to arbitration and entered into same by symbolic agreement (קנין), A contests the legality of the decision on the following grounds: a) According to strict law, A was obliged to take a number of oaths in order to justify himself in the eyes of the Court. When the matter was submitted to arbitration, it was ruled that A be exempt from the imposition of an oath on condition that he pay instead a certain amount of money. A, however, claims that B too, was originally obliged to take a number of oaths, — yet, in the latter case the arbitrator did not decide that he be exempt therefrom by paying money instead. In addition, A claims that certain oaths were overlooked entirely. b) The original agreement upon submitting the case to arbitration referred only to the elimination of oaths, but not to any other part of the case. However, according to the decision of the arbitrator, the settlement took into account the case as a whole. Hence, A contends that the entire decision is invalid. Responsum: Argument a) is not valid because undoubtedly the arbitrators have their reasons for acting thus only with respect to the oaths that A was required to take. Argument b), however, is a valid one and consequently, it must be reconsidered. We do not apply the principle that since one of the argument is valid then the whole case should be reconsidered. Should A, however, show that one argument depends upon the other, there is the possibility that the entire case must be reconsidered, but this must first be clearly established before invalidating the decision. Where the Judge is requested to arbitrate a case and render a decision that would be related to strict law (פשרה קרובה לדין), the law is that not more than one third less than the amount the defendant would have to pay according to strict law, is regarded a valid settlement in such a case. E.g., if according to strict law he would have to pay 300 dollars, then 200 dollars would be regarded as a valid settlement — P.Tesh. Every Court of Law that always brings about a settlement is considered praiseworthy.7Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. When does this apply?9San. 6b: ‘When do we regard a legal decision as rendered (so that arbitration is no longer permitted) ? — Rab Judah on the authority of Rab states: (When they say) : So-and-so you are guilty; So-and-so you are not guilty.’ — Before the conclusion of the trial, — even though one has heard their pleas and knows which way the judgment will incline, — it is a religious duty to attempt a settlement;10San. 6b-7a in agreement with the First Tanna contra R. Simeon b. Manasya. Caro’s ruling accords with the interpretation of Rashi, San. 6b, s.v. נגמר הדין contra Tosaf. Cf. infra n. 11. Suggesting a settlement is not regarded as deception on the part of the Judge, since a man is willing to forego a certain part of his claim as long as everyone will be at peace — M.E. but after the Judge concluded the trial and made the pronouncement, 'So-and-so, you are innocent, So-and-so, you are guilty,' he is not permitted to attempt a settlement between them.11It is forbidden to say to one who was pronounced not guilty, ‘Make a settlement with the other party because I am afraid that I might have erred and the other Judges will reverse my decision’ — M.E. BaḤ agrees with Tosaf. contra Rashi (v. supra n. 10) that even before the pronouncement of the verdict, so long as the case has been thoroughly examined by the Judges, arbitration should not be proposed. ShaK opposes BaḤ, but the latter is defended by Bir. Yos., who shows that many other authorities agree with Tosaf. According to Tosaf., even if the Judge did not state to the guilty party, ‘Go and pay him whatever you owe him,’ it is still considered the ‘conclusion of the trial’ (v. B.K. 69a, B.M. 17a s.v. חייב). SeMaG, however, regards the trial as concluded only after this statement is made — ShaK. According to Shilte Geborim, even after the conclusion of the trial, if the Judges inform the litigants concerning the nature of the settlement, and the latter agree to submit the case to arbitration, it is permissible, provided there was no coercion. Moreover, it is considered a meritorious act — ShaK. Many other authorities, however, oppose Shilte Giborim — P.Tesh. However, another person who is not a Judge is permitted to attempt a settlement between them,12B.Yos. on the authority of Agudah. , San. 6b where both the First Tanna and R. Simeon b. Manasya use the second person, viz., ‘When two come before you for judgment,’ whence it follows that you refers to a competent Judge, but another individual who is not a Judge, is permitted to attempt a settlement. Cf. also San. ibid.: ‘Aaron loved peace, pursued peace and made peace between man and man, as it is written, The law of truth was in his mouth, unrighteousness was not found in his lips, he walked with Me in peace and uprightness and did turn many away from iniquity’ (Mal. II, 6) and cf. Tosaf., a.l., s.v. אבל who explain that since Aaron was not a Judge, because all matters of a legal nature were brought before Moses, then for him arbitration was permissible. [provided] that this is not [attempted] in a Court sitting that is appointed for the purpose [of holding] legal [sessions].13RaShBA, Resp. on the authority of R. Hai Gaon. For whatever is done in the presence of the Judges is regarded as if it were carried out with the consent of the Judges — M.E. If the Court of Law imposed an oath upon one of them, the Court of Law is permitted to bring about a settlement between them [even after the conclusion of the trial],14Thus Tur. so that [the one who is bound to take an oath] should be exempt from the responsibility thereof.15San. 6b, Tosaf. s.v. נגמר הדין. The Court of Law cannot compel one to fall in with [the principle of equity, i.e., actting] beyond the requirements of the line of justice, although that would appear to them to be the proper thing [to do].16B.Yos. on the authority of R. Yeruḥam and Asheri — G. Cf. the following passages: B.K. 99b: ‘Rabbah b. Bar Ḥanah said on the authority of R. Joḥanan : An expert slaughterer who did not slaughter properly (as a result of which the animal became ritually unfit for consumption) is held responsible even if he was as skilled as the slaughterers of Sepphoris… Did not Rabbah b. Bar Ḥanah state that a similar case came before R. Joḥanan in the Synagogue of Maon and he said to the slaughterer, Go and bring proof that you are an expert to slaughter hens and I will exempt you? — There is no difficulty. The latter law (has reference to a slaughterer who worked) gratuitously; the former (where the slaughterer does it) for hire… A certain woman showed a Denar to R. Ḥiyya and he informed her that it was good. Subsequently, she came to him again and said to him, I showed it later (to others) and they informed me that it was bad, and I could not pass it. He then said to Rab, Go and exchange it for a good one … R. Ḥiyya (although he was an expert and needed no further instruction in this matter, and consequently, would be exempt) acted beyond the requirements of the line of justice, as R. Joseph learnt: And shalt show them (v. Ex. XVIII, 20) refers to their livelihood; the way refers to acts of lovingkindness; they must walk refers to visiting the sick; wherein refers to burial and the work refers to law; which they must do refers to (acting) beyond the requirements of the line of justice.’ , also B.M. 30b in the case of R. Ishmael b. R. Jose. Hence, we see that acting beyond the requirements of the law, although it is derived from a Biblical text, and in the eyes of the Judges it would be the proper thing to do, yet, it cannot be enforced by the Court of Law. Cf., however, B.M. 83a: ‘Some carriers (negligently) broke a barrel of wine that belonged to Rabbah b. R. Huna (Thus Alfasi. Cur. edd. : ‘b. Bar Ḥanan’). Thereupon he confiscated their cloaks; so they went and told Rab about it. Give them back their cloaks, said the latter. Is this the law, he asked. Yes, he answered, That thou mayest walk in the way of good men’ (Prov. II, 20). Hence, we may ask why this is not derived from the above-mentioned text? RI of Orleans in B.K. 100a, Tosaf s.v. יפנים explains that acting ‘beyond the requirements of the law’ has reference only to a) a case where others under the same circumstances would be liable to pay but not he, as in the case of R. Ḥiyya and R. Ishmael b. R. Jose mentioned above, whereas in b) a case where there is no distinction between him and others (i.e., everyone would be exempt) as in the case of Rabbah b. Bar Huna, such action is merely a case of That thou mayest walk in the way of good men. Consequently, in a) acting beyond the requirements of the law is considered Biblical, whereas in b) it is based on post-Mosaic tradition. Hence, our present ruling refers to a). Cf. also B.M. 24b and Tosaf. s.v. לפנים. There are thus three degrees of acting beyond the requirements of the law: a) where the responsibility is such that it does not even come within the purview of acting beyond the requirements of the law. Consequently, one who out of equity acts thus, walks in the way of good men. E.g., the carriers who negligently broke a barrel of wine belonging to Rabbah b. R. Huna who suffered damages; b) where everyone would be exempt and should not even come under the category of acting beyond the requirements of the law, but since no damage was caused as in a), one should act beyond the requirements of the law. E.g., the case of the ‘found asses’ in B.M. 24b (v. passage infra n. 17) ; c) where everyone else would be held responsible, in which case acting beyond the requirements of the law is based on a Pentateuchal text, although such action cannot be enforced. E.g., the case of R. Ḥiyya. Our present ruling refers to c). , also BaḤ for other interpretations. However, some differ with [this opinion].17Mord. to B.M. II, — G. Derived from B.M. 24b: ‘R. Judah once went after Mar Samuel in a street of whole meal dealers and asked him: What is the law if one found a purse here? — (Mar Samuel) answered: It belongs to the finder. What is the law if an Israelite came and produced an identification mark? — (Mar Samuel) answered: He would be required to return it. Both (views contradict each other)! — (Mar Samuel) answered: One should act beyond the requirements of the law. So too, the father of Samuel found asses in a desert and (yet) he returned them after a year of twelve months: he (acted) beyond the requirements of the law.’ In this passage, the expression ‘it belongs to the finder’ (הרי אלו שלו) indicates that legally it belongs to the finder. Consequently, the subsequent statement ‘he would be required to return it’ (חייב להחזיר) refers to doing one’s duty towards G-d. In addition the expression ‘he returned them etc.,’ (אהדרינהו למרייהו) indicates thhat he did this on his own. Moreover, he was only obliged to return their worth (v. Tosaf., B.M. ibid. s.v. לבתר). Derived also from the case of the ‘carriers’ (B.M. 83a. Cf. passage quoted supra n. 16), since it is not stated that they came before Rab for trial but rather ‘they went and told Rab about it,’ i.e., to use his influence by means of words of persuasion. Thus also Asheri to B.M. II who considers this a case of acting beyond the requirements of the law and cites the Biblical text which they must do (v. supra n. 16) and would be contra Tosaf. Hence, according to this opinion all cases of acting beyond the requirements of the law are similar and in all cases mentioned above we cannot compel anyone to act beyond the requirements of the law. The interpretation here follows W.G. and Be’er Eliyahu. , BaḤ for other interpretations.

Se’if 3ג׳

מותר לב"ד לוותר בממון היתומים חוץ מן הדין כדי להשקיטם ממריבות:

It is permissible for the Court of Law to forgo [certain] rights in property belonging to orphans [provided this is carried out by a settlement] out of Court in order to set them at peace from [entering into future] disputes.18Thus Isserlein. Derived from B.K. 21a: ‘A certain man built a mansion on the ruins belonging to orphans. R. Naḥman confiscated the mansion from him… originally Carmanians (MS.M קדמאי; MS.R. and Rashi קדמונאי ‘old settlers’ or ‘nomads’) had been living on the abandoned property belonging to the orphans and had been paying a nominal rent (Hence the orphans suffered a loss however small it was). (When R. Naḥman) said to him, Go and make a peaceful settlement with the orphans, he paid no attention. R. Naḥman, therefore, confiscated the mansion from him.’ This shows that although legally the defendant was responsible in full, nevertheless, R. Naḥman suggested at first a peaceful settlement. Likewise, the legal guardian of the orphans may make a settlement on behalf of the orphans which would ultimately be advantageous to their welfare. He should, however, make the settlement in accordance with a recognized Court of Law — P.Tesh.