חושן משפט י״גChoshen Mishpat 13

Se’if 1א׳

כיצד בוררים הדיינים כשאין בעלי דינין מסכימין יחד. ובו ז סעיפים: א' מבעלי דינים שאמר איש פלוני ידון לי ואמר בעל דינו פלוני ידון לי הרי אלו שני דיינים שברר זה א' וזה א' בוררים להם דיין שלישי וא"צ שיהי' הדיין השלישי ברצון הבעלי דינים ושלשתם דנים אותם שמתוך כך יצא הדין לאמתו אפילו (לא) הי' הא' שבירר בעל הדין חכם גדול וסמוך אינו יכול לכוף את בעל דינו שידון אצל זה אלא גם הוא בורר מי שירצה: הגה שמתוך שזה בורר לו א' וזה בורר לו א' הבעלי דינים צייתין להם וגם הדיינים כל אחד מהפך בזכות אותו שברר אותו בכל מה שאפשר מצד הדין והג' שומע טענות שניהם ופוסקים האמת (טור) אם אינם יכולים להשוות עצמם לברור להם שלישי מנהיגי העיר יתנו להם ג' ואם אין מנהיגים בעיר ילך התובע לפני ג' ויכופו הנתבע לדון לפניהם וכן אם הנתבע מערים לברור דיין שאינו הגון כדי לשבת אצל דיין הגון כופין אותו לדון לפני ג' כמו שנתבאר לעיל סי' ג' או שיברור דיין הגון (טור) ואם השנים הבוררים יכולים להשוות עצמן י"א דא"צ לברור שלישי (מהרי"ו סי' י"א) וי"א דאם הנתבע אומר שהוא יברור שנים והתובע ג"כ שנים והם יבררו חמישי הרשות בידו דכל זמן שהדיינים רבים יותר יוצא הדין לאמתו (רמב"ן בפירושו לתורה):

[If] one of the litigants said,1e., if it so happened that this was the wish of the litigants. In other words, the present ruling is not meant to teach that such is the case in the first instance. For otherwise, three laymen or one authoritative Judge suffice — M.E. Cf. supra § 3, 1, notes. Furthermore, this ruling has reference only to a case where the litigants insist on resorting to law, but where they submit their case to arbitration, and each party chooses one Judge, the selected Judges cannot nominate a third Judge without the consent of the litigants, the reason being that arbitration does not require three — ShaK, N.B. cited in P.Tesh. Nowadays it is the accepted custom that even in a case of strict law the two litigants may choose the third Judge — A.H. 'Let So-and-so act as Judge for me,' and his fellow-litigant said,1e., if it so happened that this was the wish of the litigants. In other words, the present ruling is not meant to teach that such is the case in the first instance. For otherwise, three laymen or one authoritative Judge suffice — M.E. Cf. supra § 3, 1, notes. Furthermore, this ruling has reference only to a case where the litigants insist on resorting to law, but where they submit their case to arbitration, and each party chooses one Judge, the selected Judges cannot nominate a third Judge without the consent of the litigants, the reason being that arbitration does not require three — ShaK, N.B. cited in P.Tesh. Nowadays it is the accepted custom that even in a case of strict law the two litigants may choose the third Judge — A.H. 'Let So-and-so act as Judge for me,' — then these two Judges each of whom were chosen respectively by the litigants nominate a third Judge;2Thus Yad, Sanhedrin VII, 1 according to reading of SeMaG (v. also Kesef Mishneh ibid.; B.Yos. a.l.). Derived from San. 23a in accord with the Sages. If the two chosen Judges are related to each other, the defendant has the advantage to compel the plaintiff to select another Judge (Isserles in Resp.) — R.A.Eger. and it is not necessary that the third Judge [should be nominated] with the consent of the litigants;3Thus Tur. Derived from San. ibid.: ‘No one disagrees that the (third) Judge must have the consent of his colleagues; they (R. Meir and the Sages) merely differ whether the consent of the litigants is (also) required. R. Meir holds that the consent of the litigants is also necessary; whereas the Sages maintain: only that of the Judges is necessary but not that of the litigants.’ The law follows the opinion of the Sages. Should the defendant agree that the selection of the third Judge should also be made with the consent of the litigants, it is permissible (v. Bertinoro San. ibid., and cf. comments of Tosaf. Yom Tob) — P.Tesh. And even according to Lebush that such a procedure will delay the execution of justice (עינוי הדין) for the defendant may always disagree with the plaintiff’s choice, — yet, if the plaintiff agrees that the third Judge be chosen with the consent of the contending parties, Lebush will also agree that it is permissible — P.Tesh. and all three of them [the Judges] try them [the litigants],4Yad ibid. in accord with San. ibid. that the meaning of the words, ‘Each party chooses one’ refers not to a Court of Law but to one Judge. Hence, each party chooses one Judge and they jointly nominate a third. for in this wise a true judgment will be rendered.5San. ibid.: ‘Since each litigant chooses a Judge and jointly they nominate a third, a true judgment will be rendered.’ Even if the one [Judge] whom the litigant chose was a distinguished and ordained scholar, he cannot compel his fellow-litigant that he [the latter] be tried by this [distinguished Judge], but he [the fellow-litigant] too, may choose whomever he desires [to act as Judge on his behalf].6Whether superior or inferior to the other in learning — M.E. The Judge must, however, be versed in law or must be a recognized Mumḥeh. Otherwise, he may be rejected (B.Yos. citing R. Yeruḥam) — ShaK. This ruling is derived from San. ibid.: ‘R. Papa stated: It has reference even to Mumḥin (i.e., the debtor or defendant may reject the Judge chosen by the creditor or plaintiff even if he is a Mumḥeh), e.g., the Courts of R. Huna and R. Ḥisda (their Courts were close to each other), for he (the defendant) can say: Am I troubling you?’ This applies where one litigant persuaded the Mumḥeh to act in the capacity of an ‘arbiter’ (בורר), but if he said to his fellow-litigant, ‘Come, let us have our case tried before the city Sage, the latter is not designated an ‘arbiter’ and is the Judge for both parties — M.E. Although the law is that an individual Mumḥeh may judge alone against the will of the defendant, it applies only where the latter refuses to appear for trial, but where he states, ‘I wish to select another Judge too, he is obeyed — BaḤ, ShaK contra M.E. Gloss: For since each party chooses a Judge, the litigants obey them, and the Judges, too, will each examine [points] in favour of the one who chose him whereever it is possible [to do so] from the legal point of view,7Thus Rashi San. ibid. s.v. יצא and Asheri. Cf. also Y. San. III, 1(21a): ‘Because he has chosen him as arbiter, he will advocate his (client’s) claim.’ Since they both feel that their rights are equally secure. and the third [Judge] hears the [legal] arguments of both of them [and compromises between them] and [thus together] they render a true verdict.8Tur — G. All the laws of Judges apply equally in the case of arbiters — P.Tesh. If they [the two Judges] cannot reach an agreement in nominating the third Judge, [then] the town leaders appoint for them a third [Judge]. And if there are no leaders in the town, [then] the plaintiff may go before three [Judges] and they compel the defendant to be tried before them.9Asheri to San. ibid. For just as in the case of a Court of three or one authoritative Judge, the law is that they may try cases even against the will of the defendant where he refuses to appear before the Court (cf. San. 5a, Tosaf. s.v. דן), so too, the leaders or the representatives of the town enjoy the same status (v. supra § 2 and notes). And likewise if the defendant deliberately selects a Judge who is unworthy in order that he sit in judgment with a worthy Judge, they may compel him to be tried before three Judges as has been explained supra § 3, [par. 4], or that he select a worthy Judge.10Tur — G. San. ibid.: ‘The pureminded of Jerusalem used to act thus … they would not sit in judgment unless they knew who was to sit with them.’ But if the plaintiff deliberately chooses an unworthy Judge, the defendant may say to him, ‘I will not answer your pleas until you choose a worthy Judge’ — M.E. However, if the two arbiters can reach an harmonious decision [in the case], some say that they are not required to nominate a third [Judge].11MaHaRIW s. 11 — G. Since the parties accepted them, it is sufficient. And where the contesting parties agreed to be tried by them, the law is that even an unauthoritative Judge may try the case (v. San. 5a, Tosaf. s.v. דן). Cf. also San. 6a. Hence, it follows that even in the first instance where the Judge was accepted, his judgment is valid, and much more so where two Judges were accepted, each by one of the parties. Consequently, we assume that the intention of the litigants is that if the two selected Judges reach a harmonious decision, there is no need for them to choose a third Judge. TaZ (followed by A.H.) disagrees with this ruling. Some say that if the defendant states that he will select two [Judges] and [that] the plaintiff should likewise select two [Judges], and they [the selected Judges] will nominate a fifth [Judge], — he is permitted to do so, for as long as there is a greater number of Judges, a true judgment will be rendered.12N. to Deut. I, 12 — G. Cf. Y. San. III, 3(21a).

Se’if 2ב׳

כותבים פלוני בירר את פלוני ופלוני בירר את פלוני וכל זמן שלא כתבו יכולין לחזור בהם ומשכתבו אין יכולין לחזור בהם לפיכך אין כותבין אלא מדעת שניהם ושניהם נותנים שכר הסופר: הגה וה"ה אם קנו מידו (נ"י פ"ק דב"מ) וי"א דמשטענו בפניהם אינם יכולים לחזור אף ע"פ שלא כתבו (שם בשם הירושלמי) ונ"ל דבמקום שאין דרך לכתוב פלוני בירר פלוני וכו' משטענו בפניהם א"י לחזור לכ"ע וכ"מ שא"י לחזור לא יוכל ג"כ לומר שיוסיפו הדיינים (ר"י נט"ו ח"ג):

A document is prepared [in which it is stated], 'So-and-so chose So-and-so [to act as Judge] and So-and-so chose So-and-so [to act as Judge].' And so long as they did not write [this document], they [the contesting parties] may retract, but once they prepared [this document], they cannot retract.13Thus Tur. Derived from Mishna B.M. 20a: ‘If one found documents of Berurin,’ which is explained in Gemara ibid.: ‘What is meant by documents of Berurin? — Here (in Babylon) they explain it as records of pleas (minutes of Court proceedings). R. Jeremiah stated: (Documents referring to the choice of arbiters, stating): This party selected one (Judge) and that party selected another (Judge).’ , also B.B. 168a. The present ruling follows the interpretation given by R. Jeremiah. Cf. also Y.M.K. III, 3(82a) bot. The choice of the Judges was recorded by the contesting parties so that they should not be able to retract. Thus Rashi, Asheri and other Codifiers. Therefore, they do not write [this document] save with the consent of both parties,14e., since they cannot retract after the document is prepared, therefore … For the principle is that ‘one may not act to another’s disadvantage in his absence’ אין חבין לאדם שלא בפניו· Hence, their approval is necessary — Perisha, M.E. and both pay the scribe's fee.15Mishna B.B. 167b: ‘Documents referring to the choice of arbiters … are not written execept with the consent of both parties and both pay the fee (for the preparation of the documents).’ Gloss: And likewise if they made [each party] obligate himself by means of a Kinyan.16N.Yos. to B.M. I — G. San. 24b: ‘After one enters into an agreement by means of a Kinyan, nothing (can be done to cancel the agreement).’ For it is then regarded as the conclusion of the trial. Cf. Y. San. III, 3(21a): ‘Once the trial is concluded no one may retract.’ Some say that once they stated their pleas before them [the Judges], they cannot retract even if they did not prepare a document.17N.Yos. on the authority of Y. — G. Y. San. III, 4(21a): ‘If one accepted to be tried before two, he may retract; before three, he may not retract.’ This is explained by N.Yos. and Asheri to B.M. ibid. to mean that the parties had already stated their pleas before the Judges. Hence, if before three, they cannot retract. And it seems to me that in a locality where it is not the practice to prepare a document [in which it is stated], 'So-and-so chose So-and-so etc., [then] once they [the contesting parties] stated their pleas before them [the Judges], all agree that neither of them can retract.18 infra § 80, 2, Gloss. And where one cannot retract, one likewise cannot state that the number of Judges should be increased.19Once the pleas have been stated the trial is considered as concluded and the litigants have no right to request that the Judges be increased so that a new trial take place. Thus according to Y. ibid. , W.G. and Be’er Eliyahu a.l. However, if all the Judges agree to increase the number of the Judges, they may do so even without the approval of the contesting parties (Beth Ya‘akob) — P.Tesh. Tummim writes that the fact that the litigants have no right to increase the number of the Judges has reference only to a case of arbiters (בוררים), but where they are tried by the appointed Court of Law in the town, they may demand that the number of Judges be increased, even after the litigants have presented their pleas before the Judges. Cf. infra § 18.

Se’if 3ג׳

אין כופין את האדם שיתן טענותיו בכתב ואין לדיין לקבל טענות בכתב אלא ישמעו טענותיהם מפיהם ויצוו לסופר לכותבם ולא יכתבו אלא מדעת שניהם ושניהם נותנים שכר הסופר: (מיהו אם ב' בעלי דינים רוצים לטעון בכתב הרשות בידן וכל מה שכותבין אינן יכולים לחזור בהן) (נ"י פ' גט פשוט) (ע' לקמן סוף סימן פ'):

We do not use means of coercion against a man that he submit his arguments in writing,20e., to his fellow-litigant. Not only must we not compel one litigant to submit his arguments in writing to his fellow-litigant because he may state: ‘You (i.e., the fellow-litigant) appear to me like a lurking lion’ (B.B. 168a), i.e., ‘I have no confidence in you,’ for you merely wish to acquaint yourself with my arguments in order to prepare or have someone else prepare counter-arguments against me; but even the Court of Law cannot force any litigant to submit to them the pleas in writing even if he had already stated his pleas before them, because once the arguments are recorded, the litigant can no longer alter them (N.Yos. to Mishna B.B. 167b. Cf. supra n. 15) — M.E. nor may a Judge receive [the arguments of the litigants] in writing,21e., where the litigants have not yet stated their arguments orally. Thus RIBaSh cited by B.Yos. For then one litigant will have to go to the trouble and expense of obtaining a copy of the other litigant’s arguments in order to present his counter-arguments in writing. Furthermore, the law is that the Judges must hear the arguments orally, for then it is more feasible for them to detect any false statements in the pleas which would not be the case were the litigants permitted to present their cases in prepared written documents, phrased very carefully (and in some instances written by another party) in order to influence the Court on their behalf — M.E. but they [the members of the Court of Law] should hear the arguments orally and they22e., the Judges instruct the scribes to record the arguments after they were heard orally — M.E. instruct the scribe to set them [the arguments] down in writing and they should not write save with the approval of both parties and both pay the scribe's fee.23So as not to be able to retract subsequently. , supra nn. 14 and 15. However, if both litigants desire to present their pleas in writing, they have a right to do so,24Since they agree and have no apprehension lest one will record false statements — M.E. and whatever they set down in writing, they cannot retract.25Even if they advance a plausible explanation (אמתלא) for retracting the arguments (N.Yos) — M.E. Cf. supra § 7, n. 32 end.