חושן משפט ז׳Choshen Mishpat 7

Se’if 4ד׳

אשה פסולה לדון:

A women is inelligible to judge.

Se’if 5ה׳

יש אומרים דשתויי יין מותרים לדון דיני ממונות אין עד נעשה דיין ודוקא עד שמעיד כגון אם העיד א' מהדיינים בפני חבריו על מעשה שראה אינו יכול להצטרף עמהם לדון על אותו מעשה אבל אם אינו מעיד כגון שהג' דיינים ראו המעשה אפי' כוונו ראייתן בתורת עדות אם ראוהו ביום נעשים דיינים ודנים על המעשה ההוא אבל אם ראוהו בלילה אין דנין ע"פ עצמן אבל בעדות אחרים דנין ואם הוזמנו להעיד אף בעדות אחרים אין דנין וי"א שאף בהוזמנו להעיד דנים בעדות אחרים (וכל זה בדין דאורייתא אבל בדבר דרבנן עד נעשה דיין) (תוס' פ"ב דכתובות ונ"י שם ופ' אד"מ):

Some say that those who are under the influence of wine are permitted to adjudicate civil suits.16Mishna San. 40a: ‘They (the Judges) drink no wine the entire day.’ Gemara ibid. 42a: ‘Why is wine not permitted? — R. Aḥa b. Ḥanina said: The Scriptural text states, It is not for princes to say, Where is strong drink (Prov. XXXI, 4), (i.e.,) those engaged in (solving) the secrets of the world (administration of justice, connecting רוזנים with רז, secret) must abstain from strong drink.’ Tosaf. ibid. s.v. העוסקים write that this refers only to the adjudication of capital charges, but not to civil suits. As to the text in ‘Er. 64a: ‘He who drank a quarter of a Log of wine must not render legal decisions,’ it refers to giving a legal decision in ritual law (איסור והיתר. Cf. the expression אל יורה). , also Yad, Bi’ath ha-Mikdash I, 3; Y.D. § 242, 13, Gloss. The present ruling, viz., that in civil suits one who is under the influence of wine may act as a Judge has reference only to a case where there are two other Judges present who will remind him of the law should he err, but a single Judge or three Judges under the influence of wine should not judge — Tummim, Nethiboth. However, according to Num. R. X, 4, one under the influence of wine may not act as a Judge even in civil suits (cf. the expression אל ידון ibid) which contradicts the present ruling. BaḤ and Shebuth Ya‘akob rule that even in civil suits one under the influence of wine is forbidden to act as Judge. Thus also R. Jonah in Sefer ha-Yir’ah makes no distinction between ritual and civil law. In both cases one under the influence of wine must not act as a Judge — P.Tesh. M.E. writes that since our wines nowadays are diluted, we may adopt a leniency with respect to a Judge who partakes of a quarter of a Log of wine. A witness may not act as a Judge.17Ket. 21a: ‘R. Abba sat and stated this law, that a witness may act as a Judge. R. Safra raised an objection against R. Abba: If three saw it (the new Moon) and they are of the Court (that sanctifies the new moon), two (of them) stand up and set (two) of their fellows (of the Sanhedrin) beside the one (Judge) and they (the two) bear witness before them (the three who constitute the Court) and (then) they may say, It is hallowed! It is hallowed!, — for a single person is not believed by himself. Now, if you entertain the opinion that a witness may act as a Judge, what is all this for? Let them sit in their places (after testifying) and declare (in conjunction with the third person), the new Moon is hallowed! — He (R. Abba) replied: That also presented a difficulty to me, and I asked R. Isaac b. Martha, and R. Isaac (asked) R. Huna, and R. Huna (asked) Ḥiyya b. Rab, and Ḥiyya b. Rab (asked) Rab, and he said to them, Leave alone the testimony regarding the new Moon (because it is) Biblical and the attestation of documents is Rabbinical (In a Biblical matter a witness may not act as a Judge; in the case of a Rabbinic enactment, e.g., the confirmation of documents this does not apply. Cf. Git. 5b).’ B.B. 113b-114a: ‘Rabbah b. Ḥanina taught a Baraitha before R. Naḥman: (It is written,) Then it shall be in the day that he causeth his sons to inherit (Deut. XXI, 16) — (this teaches) that you may make the division of inheritances during the day, but not at night. Abaye said unto him: But according to this (Abaye assumes that the division of an inheritance is made only when the person died in the daytime) would children inherit him who died during the day and not him who died at night? Perhaps you refer to the adjudication of inheritances (which must take place during the day. , supra § 5), for it was taught: (With the Biblical text), but it shall be unto the children of Israel a statute of judgment (Num. XXVII, 11), the whole section (Num. ibid. vv. 1-11 on the laws of inheritance) has been proclaimed as of a judicial nature (The judicial procedure of inheritances is equated to that of civil suits in general. Those who are present form a Court of three even if the testator’s natural heirs are opposed to it. Thus Tosaf. who explain that this refers both to a sickbed bequest as well as to one made by a person in good health. , Rashi to San. 34b). And this is in accord with Rab Judah who said: If three (persons) came to visit a sick person, they may, if they so desire (either) write down (his bequest and thus act as witnesses to the document), or issue a judicial verdict (for since they are three they form a laycourt and thus attest to the instructions of the testator and execute the Will). If two (persons came), they may write down (the instructions and act as witnesses to the document), but may not issue a judicial verdict (for since they are less than three they cannot constitute a Court and merely may act as witnesses). R. Ḥisda stated: This applies only to daytime; at night, however, even three (persons) may (only) record (the instructions of the testator and act as witnesses), but may not form a Court (because at night judicial sessions are not held for the commencement of a trial. , supra §. 5). What is the reason? Because (at night) they (merely) become (eligible to act as) witnesses and a witness may not act as a Judge (this means that even on the following day they may not act as Judges in this matter since the instructions were recorded at night and they became qualified to act as witnesses only).’ Cf. San. 34b. Mishna R.H. 25b: ‘If three saw it … It is hallowed’ (v. first part of this note for text). Gemara ibid. 25b-26a: ‘This means that a witness may act as Judge. May we say that our Mishna is not in agreement with R. Akiba, for it has been taught: If the Sanhedrin beheld a man murder a person, some of them act as witnesses and some of them as Judges. This is the opinion of R. Tarfon. R. Akiba says: They all act as witnesses and a witness may not act as a Judge? — You may even say that our Mishna is in agreement with R. Akiba, but R. Akiba stated this only with respect to capital charges, for the All-Merciful commanded, the congregation shall judge … and the congregation shall deliver (Num. XXXV, 25-26), and since they saw him murder a person, they cannot find any defence in his favour. However, in this case, even R. Akiba agrees (that a witness may act as a Judge).’ Cf. B.K. 90b. , also Y. R.H. III, 1(58d); Y. San. I, 2(18c); ibid. V, 5(23a). There are two fundamental reasons why a witness may not act as a Judge: a) Evidence that is given must be liable to refutation by proving an alibi (עדות שיכול להזימה. , supra § 1, n. 40). Hence, if we should say that a witness may act as a Judge, this principle would not be applicable, for the Judge will never accept any refutation against himself; b) It is written, then both the men between whom the controversy is, shall stand before the Lord, before the priests and the judges that shall be in those days (Deut. XIX, 17), — Both the men refers to the witnesses; between … is applies to the litigants; before the Lord … judges means that they must stand before the Judges. Hence, if a witness may act as a Judge, this exposition would be impossible. Cf. supra n. 14. , Ket. 21b, Tosaf. s.v. הנח and par. ref. Consequently, if three persons beheld the incident during the day when it is permissible to hold a judicial session, they constitute a Court of three and are not designated as witnesses. Hence, they may act as Judges as stated anon — M.E. [This applies] only [to] a witness who testifies, e.g., if one of the Judges testified18Together with another person — M.E. before his colleagues19e., before a Court of three, for hearing evidence is part of the adjudication which requires three Judges to be present. It means that after one of the Judges rises to testify in conjunction with another lay person, the remaining two Judges co-opt a third person to form a Beth Din of three. Consequently, after giving evidence, the witness may not return to sit with the Judges — M.E. about a [certain] incident which he beheld, he cannot be combined with them to hold a judicial session regarding that incident.20R.H. 25b-26a and parallel passages. , texts supra n. 17; Ket. 21b, Tosaf. s.v. הנח and parallel references. However, if he does not testify, e.g., [in a case] where the three Judges beheld the incident,21Ibid. even if they beheld [the incident] with the express intent to be designated as testimony,21Ibid. — [the law is that] if they beheld it during the day,22At which time they were eligible to act as Judges. , supra § 5, 3. they may act as Judges and may hold a judicial session concerning that incident;23Cf. supra n. 20. A judicial session may be held in this case since we can argue that hearing the evidence should not carry greater weight than seeing the incident, and they may hold the judicial session even at a later date just as in the case of hearing evidence in general a judicial session may be held at a later date. Not so, however, when they saw the matter at night, in which case they only become witnesses and cannot act as Judges, for hearing the evidence is also not valid in the first instance if heard at night — M.E. but if they beheld it at night,24At which time judicial sessions are not held. , supra § 5, 2. Likewise, if they beheld the incident on the Sabbath or Festival, they may not act as Judges, although the prohibition against trying cases on these days is only a Rabbinic measure (BaḤ). This question, however, requires further elucidation — ShaK. TaZ opposes BaḤ, for on the principle that in a Rabbinic matter a witness may act as a Judge (v. Isserles anon and supra n. 17), it should be permissible. Keneseth Ezekiel agrees with BaḤ. Tummim is in agreement with TaZ. K.H. concludes that we should adopt a leniency in this matter. Hence, they may hold a judicial session on a following day even if they beheld the incident on the Sabbath or Festival — P.Tesh. they may not hold a judicial session on [the strength of] their own evidence.25 supra n. 20. For in this case since judicial sessions are not held at night, they merely become designated as witnesses and we cannot apply the principle, ‘let the hearing of evidence not carry greater weight than seeing the incident,’ since the time of seeing the incident was not the time of hearing the evidence, because we receive no evidence at night — M.E. However, on [the strength of] evidence given by others they may act as Judges.26The next day or even many days later. But if they were [originally] ordered to act as witnesses [in a certain matter, — then] even on [the strength of] evidence given by others, they may not act as Judges.27For in this case it carries even lesser weight than beholding the incident at night. Thus RaShBaM to B.B. ibid., where it is stated that ‘If three persons came to visit a sick man etc.’ (v. supra n. 17), whence it follows that they did not come at the express bidding of the testator to act as witnesses (note the words נכנסו לבקר), for if they were invited or ordered by the testator to come, they would be designated as witnesses, and consequently, even if they came during the day, they would not be able to act as Judges even if other witnesses give evidence. Some say, however, that even if they were [originally] ordered to act as witnesses [in a certain matter], they may act as Judges on [the strength of] evidence given by others.28This is similar to beholding the incident at night. Thus Tosaf. to B.B. ibid. RaN rules as follows: If they came with the express intent to act as witnesses, we adopt the view of Tosaf.; but if they were ordered to come and act as witnesse, we follow the opinion of RaShBaM. This entire [ruling] applies to a Biblical Law,29E.g., the sanctification of the new Moon. but in [the case of] a Rabbinic matter,30E.g., the confirmation of documents. [the law is that even] a witness [who testified] may act as a Judge.31Ket. 21b, Tosaf. s.v. הנח; N.Yos. ibid.; San. 34b — G. , supra n. 17. To sum up this ruling, the following principles should be borne in mind: a) Mere intention to act as witnesses of an incident does not invalidate the individuals from acting as Judges; b) Once they have testified they no longer may act as Judges; c) If they beheld the incident during the day, they may act as Judges; if at night, they may act as Judges if others testify; d) If they were summoned to act as witnesses, there is a difference of opinion between RaShBaM and Tosaf.; e) In a Rabbinic matter even a witness who testified may act as a Judge.