חושן משפט ג׳Choshen Mishpat 3

Se’if 1א׳

בכמה דינין דנין. ובו ד סעיפים: אין ב"ד פחות מג' וכל שלשה נקראים ב"ד אפילו הדיוטות (דאי אפשר דלית בהו חד דיודע סברות בדינים אבל אי לית בהו חד דידע פסילי לדון) (טור בשם אביו הרא"ש ריש סנהדרין) ומ"מ יכולי' לקבל הטענות ולשלחם לפני מורה (מהר"ם פאדוו"ה סי' מ"ג) והם דנים את האדם בעל כרחו אם הנתבע מסרב לירד לדין או שאינו רוצה לדון עם התובע בעירו אבל אם רוצה לדון עמו בעירו אלא שאינו חפץ בג' שבירר התובע אז זה בורר לו א' וזה בורר לו אחד: הגה כדלקמן סי' י"ג ונ"ל דוקא בדיינים שאינם קבועים אבל אם דיינים קבועים בעיר לא יוכל לומר לא אדון לפניהם אלא בזה בורר וכן נוהגין בעירנו וע"ל סי' כ"ב סוף סעיף א':

There is no Beit Din with less than three. And three is called, "Beit Din," even with regular people. (because it is not possible that not one of them knows the logical processes of law, but if none of them know, they are invalid to judge. (Tur in the name of his father, the Rosh, in the beginning of Sanhedrin) but in any case, they are able to accept the [possibility of] error, and send them before a teacher.) (Maharam Paduah, Section 43) And they may judge a man against his will if the defendant refuses to go down to judgement or if he does not want to be judged with the prosecutor in his town. But, if he wants to be judged with him in his town, but does not want to be judged by the three judges that the prosecutor chose, then he [the defendant] chooses one judge, and he [the prosecutor] chooses one judge. Note: Like what is taught later on in Section 13. And it seems to me that this is specifically with judges that were not set, but if there are judges that were set in the city, he may not say, "I will not be judged before them, rather with this [judge], I choose," and this is the practice in our town. And see later Section 22 end of paragraph 1.

Se’if 2ב׳

פחות משלשה אין דיניהם דין אפי' לא טעו אא"כ קבלום בעלי דינים או שהוא מומחה לרבים: (ובזמן הזה אין דנין דין מומחה לרבים שידון ביחידי בע"כ של אדם) (מהרי"ו סי' קמ"ז) כל שאינם שלשה ולא קיבלום עליהם ואינם מומחים לרבים (טור) אפי' הם סמוכים בא"י הודאה שמודים בפניהם כמי שמודה חוץ לב"ד ויכולים להחליף טענותיהם שטענו בפניהם הכופר בפניהם ואח"כ באו עדים לא הוחזק כפרן אבל השלשה אע"פ שאינם סמוכים ההודאה בפניהם כהודאה בב"ד וכן בכופר ואח"כ באו עדים הוחזק כפרן ואינו יכול לחזור ולטעון:

[If] less than three [Judges tried a monetary case] their decision is not binding,15San. 2b in accord with R. Abbahu. Thus also Alfasi, Asheri and Yad, Sanhedrin II, 10. The following sources in Rabbinic literature indicate that R. Abbahu’s view was the accepted law: San. 29b-30a: Regarding a deed of a debtor’s admission of indebtedness in the presence of witnesses (אודיתא) where it is taken for granted that the document was legally drawn up in the presence of a Court of three. Ket. 22a (cf. San. ibid.) : If one of the three Judges necessary for the authentication of signatures on documents (קיום שטרות) died before signing it, the document should contain such wording. So too, in B.B. 165b. B.M. 31b: ‘Go and bring three people in whose presence you made the division (of partnership).’ San. 2b-3a: Raba agrees with R. Abbahu that if two adjudicated a monetary case their decision is not binding. Thus also the opinion of R. Joḥanan and Resh Lakish in Y. San. I, 1(18a) cited by Tosaf., San. 2b s.v. דברי הכל. Mord. a.o. write that even Samuel who regards the decision of two Judges binding (v. supra par. 1) will agree that in the cases of אודיתא (admission of indebtedness) and קיום שטרות (authentication of signatures) mentioned above, three Judges are required. As to the statement in San. 30 and parallel references, ‘But perhaps the Rabbis of Rabbana Ashi’s academy agreed with Samuel,’ — it should be understood as refering to other cases of adjudication (v. Hag. Imre Baruk). This also follows from Alfasi and Maim., the latter holding that even a Mumḥeh is not qualified to deal alone in the above-mentioned matters, although in other cases he is qualified. BaḤ writes that if two Judges adjudicated a monetary case and exacted money from one person and gave it to another person and the latter betrothed a woman with this money, — we should be stringent and consider the marriage binding and in order to dissolve the marriage a Get (Bill of Divorce) is required. ShaK opposes BaḤ’s ruling. even [if] they did not render an erroneous decision,16Derived from San. 6a. unless the litigants accepted them [to abide by their ruling],17Ibid. or [in the case of] one who is a recognized Mumḥeh.18San. 5a; Bek. 37a. Tur citing R. Sherira Gaon, writes: ‘Whoever is considered like R. Naḥman in his generation (San. 6a) and is versed in Mishna and Talmud and likewise is an expert in weighing opinions and deciding between opposing parties (שיקול הדעת) and has perused legal texts for a number of years and was examined numerous times and gave no erroneous decision, — such a one is a recognized Mumḥeh.’ On the term Mumḥeh, cf. also Shab. VI, 2 and Gemara ibid. 53b — M.E. Nowadays we do not conduct proceedings of adjudication [of monetary cases by] a recognized Mumḥeh so that he judge [not] alone against the will of an individual.19MaHaRIW s. 147 — G. Cf. B.M. 67b and Tosaf. s.v. רבינא; Bek. 36b and Tosaf. s.v. פסק. The same ruling applies nowadays with respect to the release of vows where a single expert cannot deal with such matters, but a Court of three is required. , Tur and Sh. ‘Ar. Y.D. § 228, 1; § 243, 8, Gloss. The same applies to imposing the fine of a ‘Litra of gold’ in the case where one insults a scholar (v. supra § 1, n. 55) — M.E. However, if one recognized Judge rendered an erroneous decision, he is not liable to make restitution. In this sense the term Mumḥeh is still applicable — ShaK. Every [group] that does not consist of three [Judges],20Tur on the authority of Yad, Sanhedrin V, 18; San. 31b. and [the litigants] did not accept them [to abide by their decision]21 Rashi, San. 5a, s.v. אי קבלוך. and they are not recognized Mumḥin,22Tur — G. Hence, if they are experts (מומחין), even if less than three, an admission of indebtedness made before them is considered valid. Thus Tur on the authority of Asheri. Maim., however, holds (Yad, ibid.) that even if they are experts and duly ordained, — as long as they are less than three, an admission made before them is not binding. But if they are three, even laymen, it would be valid. This is the meaning of Caro’s statement, ‘even if they are duly ordained,’ i.e., even if they are experts (although Yad has ‘even if he is a rcognized Mumḥeh,’ it applies equally to two experts). Consequently, Isserles’ Gloss is difficult to comprehend, for it should have been stated as a dissenting opinion. Perhaps Isserles should be understood thus: ‘and they are not Judges who are recognized by the public.’ But this is a strained interpretation — M.E. ShaK rejects the interpretation of M.E. For even if the Judges are recognized by the public, their decision would still be invalid since they are less than three. The reason, therefore, why Isserles does not record this as a dissenting opinion is duel to the fact that the term ‘duly ordained’ (סמוכים) employed by Caro is unclear. For Judges may be duly ordained and yet not be experts (מומחין). , Tur and Asheri infra § 25 that ‘Ordination’ holds good even for a non-Mumḥeh. The law, however, is that even if they are duly ordained and also experts, — yet, if their number is less than three, an admission of indebtedness made in their presence is not binding (contra Isserles). Thus also ‘Ir Shushan — ShaK. A.H. rules that if the litigants accepted the Judges (although their number is less than three) or one Judge who was a recognized authority (מומחח לרבים), e.g., if the people accepted a Rabbi to judge all monetary matters alone, the latter has the status of a Court of Law and an admission made in his presence is binding and the litigants cannot alter their original pleas. Likewise, one who denies aught in his presence and subsequently witnesses appeared and refuted his evidence, is presumed to be a liar even in the future (v. Sh. ‘Ar. anon). So too, may this single Judge compel one to appear before him for judgment and may hear testimony, save that in one respect there is a difference between a single Judge and a Court of Law of three. For in the latter case, an admission made in their presence is regarded as an admission made in writing and another Court may adjudicate the matter in accordance with the testimony and the pleas heard by the first Court of three even if the testimony etc., is submitted by the first Court to the second Court in writing. But if one was accepted as the recognized authority, although, as stated above, an admission made in his presence is regarded as made before a Court of Law of three, and should he on the basis of the information he obtains, render a decision, it would be binding, — yet, if after hearing the testimony and obtaining all the information in the case, — for some reason, it is submitted to another Court for final adjudication, the evidence presented to the second Court for consideration is regarded as having the status of oral testimony offered by a witness testifying to what he has heard from an eye-witness’ (Bek. 36a a.e.) which is invalid. Consequently, the second Court cannot render a decision on the basis of the submitted evidence. And if this testimony is submitted in writing to the second Court, the latter would have to hear the evidence again directly from the contesting parties or the party that made the admission, for the law is that testimony must be offered by witnesses orally and not from their writing (derived from Deut. XIX, 15, At the mouth of two witnesses … shall a matter be established — Git. 71a). But if the single recognized authority completes the adjudication himself, his decision is as binding as the one given by a Court of three — Nethiboth. On testimony offered before a Court, v. infra § 39, 12 and on the authentication of documents, v. infra § 46, 4, Gloss. even [if] they are duly ordained in the Land of Israel,23Cf. supra § 1, n. 1. — [the law is that] an admission of indebtedness made in their presence is regarded as an admission made outside the Court24 San. 29b and infra § 39, 7. and they [the litigants] may alter their [original] pleas which they put forth before them [the Judges].25B.B. 31a. One who denies aught before them [the Judges] and subsequently witnesses arrived [and refuted him], is not presumed to be a liar.26B.M. 17a and Alfasi a.l. However, if he declared before them: ‘You are my witnesses’ or he phrased his statement in the form of a complete admission, he is presumed to be a liar (v. infra §32, 1 and § 81) — M.E. ShaK opposes M.E. and writes that even if he stated: ‘You are my witnesses,’ they are still not regarded as a Court of Law, but only as witnesses. Hence, if he later alters his pleas and states, ‘I paid you,’ he is not presumed to be a liar (v. infra § 79, 9). Cf. however, viewpoint of Nethiboth and A.H. supra n. 2 However, regarding the [Court which consists of] three [Judges], although they are not duly ordained, — [the law is that] the admission of indebtedness made in their presence is regarded as one made before a competent Court of Law. Likewise, in [the case of] one who denies [aught] and subsequently witnesses came [and refuted him], — he is presumed to be a liar and cannot amend his pleas.

Se’if 3ג׳

אע"פ שיחיד מומחה לרבים מותר לו לדון יחידי מצות חכמים שיושיב עמו אחרים:

Although one who is a recognized Mumḥeh is permitted to judge alone,27Yad, Sanhedrin II, 11 derived from Aboth IV, 8: ‘Judge not alone.’ Maim. has the reading, ‘One who was a recognized Mumḥeh or obtained permission (to judge) from the Court of Law.’ Tur has, ‘An individual who obtained permission etc.’ On this ruling v. San. 5a, Tosaf. s.v. כגון. Cf. however, Y. San. I, 1(18a): ‘R. Abbahu was sitting alone in judgment in the Turbulent (מרדתא. So Jastrow) Synagogue’ at Caesarea. Said his disciples to him, Rabbi, have you not taught us thus: Judge not alone? — Said he to them, Since they (the people) see me sitting alone in judgment and yet come to see me (with their cases), it is as though they accepted me (to abide by my decision) and it has thus been taught: When does this apply (that one must not judge alone) ? — If they did not accept him, but if they did accept (him), he may judge even alone.’ One should be careful nowadays not to judge alone even if the litigants accepted him to abide by his decisions, unless he expressly stated, ‘I am not competent to judge matters of strict law (דין תורה) and in case I give an erroneous decision, I am not to be held liable,’ or if it is a matter with which he is familiar and experienced — ShaK. A.H. disagrees with ShaK and states that the above stipulation is unnecessary, for since everyone is aware that he is the only Judge in town, they rely upon his judgment. Hence, it is as though they accepted him to abide by his rulings even if he should give an erroneous decision. [nevertheless], it is a commandment of the Sages that he appoint others28Thus Yad ibid. Tur has ‘that he appoint another individual.’ , Perisha. to sit with him [in judgment].