חושן משפט י״זChoshen Mishpat 17

Se’if 1א׳

להשוות הבעלי דינין בכל דבר. ובו יא סעיפים: בצדק תשפוט עמיתך איזהו צדק המשפט זו השוויית שני הבעלי דינים בכל דבר לא יהא א' מדבר כל צרכו וא' אומר (לו) קצר דברך ולא יסבירו פנים לא' וידבר לו רכות וירע פניו לאחר וידבר לו קשות ואם היה אחד מהם מלובש בגדים יקרים והשני מלובש בגדים בזוים אומרים למכובד או הלבישהו כמותך או לבוש כמוהו ולא יהא א' יושב וא' עומד אלא שניהם עומדים ואם רצו ב"ד להושיב את שניהם מושיבים ולא ישב א' למעלה וא' למטה אלא זה בצד זה בד"א בשעת משא ומתן (דהטענות) אבל בשעת גמר דין שניהם בעמידה לכתחלה איזהו גמר דין איש פלוני אתה זכאי איש פלו' אתה חייב והעדים לכתחלה לעולם בעמידה: הגה ועמידה ע"י סמיכה מקרי שפיר עמידה לענין זה (ריב"ש סי' רס"ו) וע"ל סי' כ"ח:

In righteousness shalt thou judge thy neighbour.'1Lev. XIX, 15. What is considered righteousness of the Law? — It means to regard the two litigants as equals in every respect, [viz., that] one should not be permitted to speak as long as he needs and the other be told, 'Make your speech brief;'2Yad, Sanhedrin XXI, Derived from Sheb. 30a: ‘Our Rabbis taught: In righteousness shalt thou judge thy neighbour (intimates) that one of the litigants should not sit and the other stand; that one be not permitted to speak as long as he needs and the other be told, Make your speech brief.’ In Y. San. III, 9(21c); Y. Sheb. IV, 1(35b) this is derived from Deut. XIX, 17: Then the two men, between whom the controversy is etc.,’ since men means at least two, consequently, two is superfluous (in addition to the fact that there are suits involving more than two litigants), but it teaches that the litigants be treated as two equals. It would likewise be forbidden even if the Judge were to say only to one of the litigants, ‘Make your speech brief,’ and not give the other litigant instructions to speak at length. However, he may say to both, ‘Make your speech brief or long — BaḤ, M.E., ShaK, A.H. [that] one should not be favourable to one [litigant] and speak soft words to him, and severe to the other [litigant] and speak harsh words to him.3Yad ibid. Derived from Tosef(Z). Sanhedrin VI, 2; Y. Sheb. IV, 1(35b); Y. Yoma VI, 1(43b): ‘He (the Judge) should not be forbearing (מאריך פנים) towards one of the litigants, nor severe (Tosef. has מעיין ‘investigative;’ Y. has מעיז פנים ‘insolent’) towards the other, for it is written, In righteousness shalt thou judge thy neighbour.’ Cf. also Ket. 46a: ‘That text (Thou shalt not go up and down as a talebearer among thy people — Lev. XIX, 16) is a warning to the Court not to be lenient with one (litigant) and severe to the other.’ If one of them is wearing expensive garments and the other is wearing shabby garments, they [the Judges] should say to the one who is well dressed, 'Either dress him like you, or dress like him.'4Yad ,Sanhedrin XXI, 2. Derived from Sheb. 31a. , text supra § 14, n. 40. Nowadays we are not particular about this — RaShaL, M.E., ShaK a.o. Nor should one [litigant] sit and the other stand, but both should stand.5 supra n. 2. According to Tosef(Z). ibid.: ‘The Judge should not make one stand (מעמיד) and the other sit (מושיב),’ whence it follows that if one sits down and the other remains standing of their own accord, it would be permissible — BaḤ. This is however, rejected by Keneseth ha-Gedolah — P.Tesh. If, however, the Court of Law desires to permit them both to sit, they may do so.6Sheb. 30a: Tosef(Z). ibid. in accord with R. Judah: ‘Our Rabbis taught: And the two men shall stand (Deut. XIX, 17): it is a religious duty that the litigants stand. R. Judah stated: I heard that if they (the Judges) desire to permit them both to sit, they may do so.’ Although R. Judah represents an individual opinion and we would ordinarily rule in accordance with the Rabbis who represent the majority, nevertheless, since the second Baraitha (v. supra n. 2) and all the cases cited in Sheb. 30a,b harmonize with R. Judah’s view, the law rests with him. The litigants, however, are not permitted to sit down of their own accord, and if they did so, the Judge must ask them to rise, and subsequently, if they desire to permit them to sit, they may do so. According to this explanation it is understandable why King Jannai who was summoned to be present during the trial of his slave who killed a man (v. San. 19a) was told by Simeon b. Shetaḥ when the latter noticed that Jannai sat down after he arrived at Court, ‘Stand on your feet King Jannai and let the witnesses offer testimony against you’ (v. San. ibid., Tosaf. s.v. ינאי; Sheb. 30a, Tosaf. s.v. שאם who point out a difficulty which is removed by this explanation) — P.Tesh. Nor should one [litigant] sit on a higher level and the other on a lower level, but one next to the other.7Yad, Sanhedrin XXI, 3. Cf. Tanḥ(B). Shofetim VI to Deut. XVI, 19: Thou shalt not respect persons: ‘(This text) is a warning to the Nasi not to seat one who is worthy to be (only) on a lower level — on a higher level, and one who is worthy to be on a higher level — on a lower level.’ However, this text implies that it would be permissible to seat one on a higher level who is worthy of this honour and likewise one who only deserves to be seated on a lower level should not be seated higher than his position demands. Hence, this text contradicts our present ruling. Nevertheless, since we deal in our ruling with individuals who are considered equals, therefore our text does apply (v. ‘Eẓ Yosef in cur. edd. of Tanḥ.). Should, however, one litigant stand on a higher level and the other on a lower one, it does not matter — M.E. The underlying reason for regarding the litigants as equals is in order to avoid disheartening on the part of a litigant who is not treated as an equal and thereby forgets his pleas. When does this apply?8That if the Court desires to permit them both to sit, they may do so. — At the time of the discussion of the pleas,9Sheb. 30b: ‘R. Huna sated: The controversy of opinion is with respect to the time of the discussion (i.e., while the case is being debated), but at the time of the conclusion of the case (when the verdict is given) all agree that the Judges sit and the litigants stand, for it is written, And Moses sat to Judge the people; and the people stood (Ex. XVIII, 13).’ but at the time of the conclusion of the case, both litigants must stand in the first instance.10For in the case of witnesses it is only in the first instance that they must stand (v. infra n. 12), but if they gave their testimony while sitting, it is valid ex post facto. , Sheb. 30b: ‘Ulla stated: The controversy of opinion is with respect to the litigants, but with respect to witnesses all agree that they must stand, for it is written, And the two men shall stand … Another version (reads): The controversy of opinion is with respect to the time of discussion, but at the time of the conclusion of the case all agree that the Judges sit and the litigants stand, for witnesses are like the conclusion of the case (when they offer their testimony the case is completed), and it is written with respect to them: And the two men shall stand.’ Hence, the law that litigants must stand at the time of the conclusion of the case is derived from witnesses whose testimony is like the conclusion of the case, and therefore, the law should not be more stringent in the case of the litigants than in that of the witnesses. Consequently, as in the case of witnesses the law that testimony must be offered while standing is applicable in the first instance, but if the evidence was given while sitting it is considered valid ex post facto, so too, in the case of the litigants it is valid ex post facto if presented in a sitting position. What is considered the conclusion of the case? — [When the verdict is pronounced,] '[So-and-so, You are not guilty,' or 'So-and-so, you are guilty.'11Mishna San. 29a. , infra § 19, 1 and cf. supra § 12, 2. [With respect to] the witnesses [the law is that] in the first instance they must always [testify] while standing.12Sheb. 30b in accord with ‘Ulla. , supra n. 10; Git. 71a (ref to Mishna ibid. 67b: ‘If one is struck dumb and they said to him, Shall we write a Get for your wife? and he nodded his head, they must test him three times. If for no he said no, and for yes he said yes, they write and deliver it’): ‘In the same manner as he (one who is struck dumb) is examined with reference to a Get, so too, is he tested regarding transactions, testimony and bequests’ (cited from Tosef(Z). VII(V), 1). Testimony is explained by R. Joḥanan in Y. Git. VII, 1(48d) to refer to ‘one who offers testimony while sitting.’ This according to W.G. refers to one who is sick, since one who is struck dumb must have become so as a result of sickness and yet, we see that his testimony is considered valid through the test of nodding the head. Hence, it follows that if one testified while sitting, his testimony is considered valid ex post facto (cf. Tosef. ibid. where חולה ומשותק is mentioned). , also Zeb. 16a and Tosaf. s.v. מיושב. Gloss: And standing by being supported is indeed regarded as standing with respect to this matter.13RIBaSh s. 266 — G. Meg. 21a (ref. to Mishna: ‘One who reads the Megillah may do so while standing or sitting’): ‘A Tanna stated: This (namely, that one may read the Megillah while standing or sitting) does not apply to the Torah (the reading of the Torah in public). Whence is this derived? — R. Abbahu said: Because the Scriptural verse states, But as for thee, stand thou here by me (Deut. V, 28) … One verse states, And I sat (ואשב) in the mount (Deut. IX, 9) and another verse states, And I stood (עמדתי) in the mount (ibid. X, 10) — Rab said: He (Moses) stood when he learnt and sat when he reviewed (his learning). R. Ḥanina said: He was neither standing nor sitting but stooping.’ Hence, we see that stooping is designated neither standing nor sitting and yet the verse (I stood) refers to it as standing. Consequently, standing while leaning against something (equivalent to stooping) is still called standing. Leaning would therefore, include both standing and sitting. It is designated standing where this would be the requirement of the law as in the present ruling, and sitting where the law requires it as infra § 28, 26 where standing (in the case of Judges) by being supported is not considered standing but rather sitting in accord with the First Tanna in Zeb. 19b. Cf. E.H. § 169, 45; Zeb. 19b, Tosaf. s.v. וליתיב; Yoma 25a and Tosaf. s.v. אין; Y. Meg. IV, 1(74d). Hence, if Judges who are required to sit, stood by means of some support, or if witnesses who are required to stand, did so only by means of support, we adopt a leniency in both cases and consider standing by means of support in the case of Judges as sitting and in the case of witnesses as standing. This however, would not be valid if in the same lawsuit that is being tried both the Judges and the witnesses stood by being supported — M.E. , however, infra § 28, [26].

Se’if 2ב׳

ת"ח וע"ה שבאו לדון מושיבין את החכם ואומרים לע"ה שב ואם לא ישב אין מקפידין בכך: הגה ת"ח שבא לדין מותר לעמוד לפניו ולא חיישי' שיסתתמו טענות שכנגדו (ר"ן פ' שבועת העדות):

[In the case of] a Rabbinical scholar and an illiterate person who appeared for trial, [the law is that] we urge the scholar to sit down, and we [also] say to the illiterate person, 'Sit down!' And if he [the illiterate person] did not sit down, we do not mind.14Yad, Sanhedrin XXI, 4. Derived from Sheb. 30b: ‘Rabbah b. R. Huna said: When a scholar and an illiterate person are in dispute with each other (and appear for trial), we urge the scholar to sit down; and to the illiterate person we also say, Sit down, and if he stands we do not care.’ If they told the illiterate person to be seated but the Court-messenger made him stand up, it is not obligatory for the Judge to tell him to sit down again. This is derived from Sheb. ibid.: ‘Rab b. Sherabya had a lawsuit tried before R. Papa. He told him to sit down and told his opponent also to sit down. However, the Court-messenger came and insulted (lit. ‘kicked’) the illiterate person and made him stand up and R. Papa did not say to him, Sit down. How could he act thus; will not the other’s plea be stopped up (i.e., he will be intimidated on seeing that R. Papa accords more honour to his opponent)? — R. Papa may say: He (the ignorant man) will say, He (R. Papa) has requested me to sit down, but the (court-) messenger was not appeased by me (i.e., I have not given him a gratuity, so he made me stand).’ Gloss: [When] a scholar comes to Court for trial, it is permissible to rise before him and we do not apprehend that the pleas of his opponent will be stopped up.15RaN to Sheb. IV — G. This applies only to a scholar because all know that one must rise before him and likewise to the wife of a scholar who is still living (and intimidation would not apply); but if the scholar is no longer alive, we do not accord his wife this honour. An old man, although he is an illiterate person, has the status of a scholar with respect to this ruling (v. Lev. XIX, 32) — Tummim. Cf. also supra § 15, 1 and notes.

Se’if 3ג׳

כבר נהגו כל בתי דיני ישראל לאחר התלמוד שמושיבין בעלי דינים וגם העדים כדי להסיר המחלוקת שאין בנו כח להעמיד משפטי הדת על תלם:

It has already become the adopted practice [among] all the Courts of Law in Israel after the [close of] the Talmud that they permit the litigants and also the witnesses to be seated16Yad, Sanhedrin XXI, 5. Since ex post facto this would be valid because the requirement for the litigants to stand at the time of the conclusion of the case and that of the witnesses during testimony is similar. , supra n. 12. in order to eliminate dissension,17For very often this may lead to strife. Nevertheless, both the witnesses and the litigants who are G-d-fearing people should adopt a stringency in this matter and thus comply with the Biblical verse, And the two men shall stand (BaḤ) — ShaK. However, many Courts of Law even nowadays adopt the practice to have the litigants and the witnesses stand especially during the conclusion of the trial — A.H. for we are [nowadays] powerless to maintain the laws of our faith in conformity with their original authoritativeness.18Heb. על תלם. , Josh. XI, 13, RaDaK and Targum a.l.