חושן משפט ט״וChoshen Mishpat 15

Se’if 1א׳

איזה דין דנין תחלה ודין דין מרומה. ובו ה סעיפים: צריך הדיין שיקדים לדון הדין שבא לפניו תחלה אבל צריך להקדים דין של תלמיד חכם אפילו בא לבסוף וכן מצוה עליו להפך בזכותו מה שיכול: הגה ואם הת"ח בעצמו לפני הדיינים אפי' פתחו כבר בדין אחר דנין אותו תחלה שלא יתבטל מלמודו אבל אם קרובו בא לדין אם פתחו בדין אחר אינו צריך לפסוק ואם לאו צריכין לדון אותו תחילה משום כבוד החכם (ב"י בשם הריטב"א):

The Judge is required to give priority to the adjudication of a lawsuit that comes before him first [in order];1San. 8a: ‘Ye shall hear the small and the great alike (Deut. I, 17). Resh Lakish stated: (This verse intimates) that a lawsuit of a Perutah should be regarded by you as equally important as one involving a hundred Maneh. For what practical issue is this law stated? If it is to insist that we study the case carefully, is this not obvious! Rather, it is to give preference to the case if it is first in order.’ ‘A lawsuit that comes before him first (in order),’ means that the litigant pleaded his case first and the Judge prepared himself to listen to his case although the claim may have been filed in Court later — M.E. but he must give priority to a lawsuit of a scholar2Whether he is the claimant or the defendant — K.H., A.H. Derived from Sheb. 30a: ‘R. ‘Ulla, the son of R. Elai had a case before R. Naḥman. R. Joseph sent (a communication) to him (R. Naḥman): Our friend ‘Ulla is a fellowman (i.e., a colleague, a scholar) in Torah and precepts. Said (R. Naḥman): Why did he send (this communication) to me? (Did he mean) that I should favour him in Court? (Certainly not!) Then he (R. Naḥman) said: (Perhaps he meant) that I should decide his case first (so as not to detain him); or, (with respect to) discretionary judgment (i.e., to which of the claimants to adjudicate the claim in a case that does not depend on witnesses or an oath but rather on the discretion of the Judges. R. Joseph, therefore suggested that if ‘Ulla’s case was of such a nature, then because he was a scholar he should give preference to his case).’ The latter alternative possibility is omitted here because we rule today that in matters pertaining to the descretion of the Judges (שודא דדייני) the Judge must be a Mumḥeh (v. Glos.). , infra § 240, 3, Gloss and Ket. 94b, Tosaf. s.v. אימיה. even if it comes last [in order].3In accord with the second interpretation of Sheb. 30a, Tosaf. s.v. למישרי because the positive precept of showing respect for the Torah takes precedence over the positive precept Ye shall hear the small and the great alike. So too, is he [the Judge] religiously dutibound to seek whatever [points] he can [find] in his [the scholar's] favour.4Shab. 119a: ‘Raba said: May I receive Divine reward for that when a disciple appeared before me with a lawsuit I did not rest my head upon my pillow before I had found (points) to his advantage (not as a result of partiality but rather because a scholar would not come with a lawsuit unless he was sure that he had a just claim).’ , Sheb. 30a, Tosaf. s.v. למאי. The majority of Codifiers rule that nowadays, too, a scholar enjoys this privilige — P.Tesh., A.H. a.o. Gloss: And if the scholar himself [appears] before the Judges, [then] even [if] they had already begun [to adjudicate] another lawsuit, they should judge him [the scholar] first, so that he should not be disturbed from his studies.5, B.B. 22a whence we see that in the case of scholars or Rabbis we adopt leniencies so that they should not be disturbed from their studies. However, if his [the scholar's] relative appeared for trial, [then] if they had [already] begun [to adjudicate] another lawsuit, there is no need to interrupt [the adjudication]; but if they had not [begun], they [the Judges] must judge him [the relative] first on account of showing respect for the scholar.6B.Yos. on the authority of RITBA — G. , Ket. 106a whence we derive that one must also give priority to the lawsuit of a scholar’s relative. Hence, the law is that when the scholar himself appears in Court, or sends a mandatory to replace him, or informs the Court of Law that he is sending his relative to be tried, although the latter’s case has nothing to do with the scholar, we give priority to the scholar or his relative. However, if the scholar’s relative came with a lawsuit and the scholar did not inform the Court concerning his relative’s case, he has no priority rights, for in this case we are not obliged to show respect for the scholar’s relative save in the case of the scholar’s wife who enjoys the same privileges as her husband — A.H.

Se’if 2ב׳

היו לפניו דינים הרבה מקדימין דין היתום לדין האלמנה ודין האלמנה קודם לדין ת"ח ודין ת"ח קודם לדין עם הארץ ודין האשה קודם לדין האיש:

[If] before him [the Judge] there were many lawsuits [awaiting a legal decision],7The laws of precedence here are applicable only when they all appeared simultaneously in Court, but if one appeared first, he receives precedence save in the case of a scholar versus an illiterate person where the law is that even if he appeared last, he receives precedence (v. par 1 supra). we give priority to the orphan's lawsuit over the lawsuit of the widow,8Tur citing Yad, Sanhedrin XXI, 6. Derived from Judge the orphan, plead for the widow (Is. I, 17) quoted by Yad, ibid. Cf. however, Ye shall not afflict any widow or orphan (Ex. XXI, 21) where the widow is placed before the orphan. This presents no difficulty because the latter text speaks of affliction of the widow or orphan who are forlorn and heartbroken (v. Yad, De‘oth VI, 10) in which case the widow suffers more than the orphan (cf. San. 22b: ‘The death of a man is felt by none than his wife’). But young orphans are not mature enough to realize the gravity of their loss. Hence, in this respect the Bible gives priority to the widow. However, in the case of a lawsuit the orphans are weaker than the widow. Consequently, the orphans receive precedence — Be’er Eliyahu. and the lawsuit of the widow takes precedence over the lawsuit of a Scholar,9Whence it follows that the lawsuit of an orphan certainly takes precedence over that of a Scholar which contradicts the ruling in par. 1 supra which is derived from Ket. 105b-106a: where it is related that R. Anan who once accepted a gift (v. reason a.l) from a man who brought a lawsuit to him sent the latter to R. Naḥman to whom he also sent (the following communication): ‘Will the Master adjudicate (the case of) this man because I, Anan, am ineligible to act as Judge for him. Since he dispatched such a message to me, (R. Naḥman) thought, he must be his (R. Anan’s) relative (and one is forbidden to act as Judge or witness in a relative’s action). An orphan’s lawsuit was going on before him and he pondered: This one (i.e., to judge an orphan) is a positive precept and that one (to show respect for a Scholar and consequently, for his relative too) is also a positive precept, but the positive precept of showing respect for the Torah (i.e., for a Scholar on account of his learning) takes precedence. Consequently he put aside the orphan’s lawsuit and placed before him that man’s suit. When the other litigant noticed the honour he (R. Naḥman) was showing him (his opponent whom R. Naḥman thought was R. Anan’s relative) he had nothing to say (i.e., he was intimidated).’ In order to remove the contradiction between the present ruling and that of par. 1 supra the following point should be made: In par. 1 we deal with a case where the legal guardian (אפוטרופוס) of the orphans brought the lawsuit. This is substantiated by the expression דינא דיתמי (not והוו יתמי קמיה) employed in Ket. ibid., the source of the ruling that we give priority to the Scholar’s lawsuit; in the present ruling we refer to the orphans themselves who appeared in Court — Be’er Eliyahu. and the lawsuit of a Scholar takes precedence over the lawsuit of an illiterate person,10, supra n. and the lawsuit of a woman takes priority over the lawsuit of a man.11Yeb. 100a: ‘In former times, when a man and a woman (with different lawsuits) appeared before me for a legal decision, I used to settle the man’s lawsuit first, because I was of the opinion that a man (should receive precedence) being subject to the fulfilment of all the commandments (a woman is exempt from some); when, however, I heard this (the reason why a woman should be given her share of the poor man’s tithe first. , Gem. a.l), I settle a woman’s lawsuit first. Why! So as to save her from degradation (it would be a degradation for her to have to wait her turn in a company of men).’

Se’if 3ג׳

הדיין שבא לפניו דין שיודע שהוא מרומה לא יאמר אחתכנו ויהיה הקולר (פי' שלשלת העון) תלוי בצואר העדים כיצד יעשה ידרוש בו ויחקור הרבה בדרישה וחקירה של דיני נפשות: הגה ומ"מ אין דינו כדיני נפשות שאם אמר בא' מן החקירות אינו יודע שיתבטל העדות אלא ר"ל שיחקור בדין מרומה כל מה שאפשר (ריב"ש סי' רס"ו) אם נראה לו לפי דעתו שיש בו רמאות או שאין דעתו סומכת על דברי העדים אע"פ שאינו יכול לפסלן או שדעתו נוטה שבע"ד זה רמאי ובעל ערמה והשיא את העדים אע"פ שהם כשרים ולפי תומם העידו וזה הטעם או שנראה לו מכלל הדברים שיש שם דברים אחרים מסותרים ואינם רוצים לגלותם כל אלו הדברי' וכיוצא בהם אסור לו לחתוך אותו הדין אלא יסלק עצמו מדין זה וידוננו מי שלבו שלם בדבר והרי הדברים מסורים ללב וכשהיה רואה הרא"ש באומדנא דמוכח שהדין מרומה הי' כותב ונותן ביד הנתבע שאין לשום דיין להשתדל בדין זה:

The Judge before whom a lawsuit comes [up] which he knows to be fraudulent, should not say, 'I will decide it [in accordance with the testimony of the witnesses] and the collar12Heb. קולר from the Lat. collare, ‘collar,’ the Roman prisoner’s iron collar or chain around the neck. [of responsibility], i.e., the chain of guilt, will hang around the neck of the witnesses.'13Yad, Sanhedrin XXIV, Derived from Sheb. 30b-31a: ‘Whence do we know that a Judge who knows that a lawsuit is fraudulent (having reached a conclusion from the testimony of the witnesses that they spoke falsely), should not say, Since the witnesses bear testimony, I will decide the case (in accordance with their testimony) and the collar (of responsibility) will hang around the neck of the witnesses? — For it is said: From a false matter keep far (Ex. XXIII, 7).’ In what manner should he act? — He should investigate and inquire into the matter closely by means of [the methods employed in the] cross-examination and investigation of capital cases.14San. 32b: ‘R. Papa stated (in reconciling the views of the Mishna [San. 32a] that both monetary and capital cases require examination and inquiry, and the Baraitha [ibid.] according to which examination and inquiry in civil suits are not necessary) … In our Mishna the lawsuit is fraudulent (therefore, there must be a thorough examination and investigation), but in the other (Baraitha) the lawsuit is not fraudulent. This accords with Resh Lakish, for Resh Lakish pointed out an incongruity (between two verses): It is written, In justice (E. ‘righteousness’) shalt thou judge thy neighbour (Lev. XIX, 15); and (elsewhere) it is written, Justice, justice shalt thou follow (Deut. XVI, 20. The repetition of the word justice indicates a more thorough investigation). How is this possible? — The latter verse refers to a lawsuit that is fraudulent; the former verse to a lawsuit that is not fraudulent.’ However, this passage contradicts the passage in Sheb. ibid. (v. previous note) according to which the Judge is required to withdraw from adjudicating a fraudulent lawsuit. There are in the main three views held among the Codifiers in order to reconcile these two Talmudic sources. a) Tosaf. (San. 32b, s.v. כאן) maintain that in Sheb. we deal with a lawsuit that we know to be fraudulent. Hence, the Judge is obliged to withdraw from such a case; while in San. we deal with a lawsuit that is suspected of being fraudulent. Consequently, examination and inquiry are required in order to determine for certain the fraudulence in the case. b) Maim. (Yad, ibid.) holds that both in Sheb. and San. we deal with a fraudulent lawsuit only that in Sheb. examination and inquiry had already been applied (note the expression ‘A Judge who knows that a lawsuit is fraudulent).’ Consequently, we apply the verse, From a false matter keep far and the Judge must withdraw from the case. In San., however, we deal with a fraudulent lawsuit where examination and inquiry were not conducted as yet. Accordingly, there is no difference whether the plaintiff made a fraudulent claim or whether the defendant presents a dishonest case, — the Judge must withdraw. And although the defendant may benefit according to this view, nevertheless, we are not responsible (This perhaps explains the version found in some texts of Yad ibid.: וידון אותו מלכו של עולם ‘Let the King of the world judge him’ instead of וידוננו מי שלבו שלם ‘One whose heart [intelligence] is perfect should judge it.’ In other words, even if the defendant will benefit, the ‘King of the universe’ will eventually see that justice is carried out). c) Asheri reconciles the passages as follows: In Sheb. the plaintiff is the one who makes the false plea. Therefore, the Judge should withdraw; while in San. we deal with a case where the defendant is a fraudulent person. Hence, in order for the latter not to benefit, the Judge must not withdraw. , infra par. 4. Gloss: Nevertheless, the law [of cross-examination in this case] is not [as strict] as [in] capital cases where if [a witness] stated during one of the inquiries, 'I know not,' that the testimony becomes void; but what is meant to be said is that he [the Judge] should inquire into a fraudulent lawsuit as much as it is possible.15RIBaSh s. 266 — G. If it appears to him [the Judge] according to his understanding that there is fraud therein, or where his common sense [directs him] not to rely upon the statements of the witnesses although he cannot [find grounds] to disqualify them, or where his [practical] judgment inclines [to assume] that this litigant is a deceiver and a cunning person and mislead the witnesses although they are eligible [witnesses] and gave evidence in ignorance of its legal bearing, and this party [the deceiving litigant] led them astray, or it appears to him [the Judge] from the general contents of the statements that there are other concealed matters therein and they are not willing to reveal them, — [then the law is that in] all these [aforementioned] matters and anything similar to these, he is forbidden to render a legal decision in that lawsuit, but he should withdraw from this case and one whose heart [intelligence] is perfect in [the examination of] such a case should judge it and these are matters entrusted to the heart [intelligence].16Yad ibid. followed by Tur who also cite, For the judgment is G-d’s (Deut. I, 17). When Asheri would notice on the basis of a well-grounded assumption that the lawsuit is fraudulent, he would prepare a document and place [it] in the possession of the defendant [to the effect] that no Judge should make an effort to try this lawsuit.