חושן משפט ט׳Choshen Mishpat 9

Se’if 1א׳

שלא ליקח שוחד והתרת שכר בטלה. ובו ח סעיפים: מאוד מאוד צריך הדיין ליזהר שלא ליקח שוחד אפי' לזכות את הזכאי ואם לקחו צריך להחזירו כשיתבענו הנותן וכשם שהלוקחו עובר בלא תעשה כך הנותנו עובר בלפני עור לא תתן מכשול ולא שוחד ממון בלבד אלא אפי' שוחד דברים וכל דיין ששאל שאלה פסול לדון זה שהשאילו במה דברים כשלא היה לו לדיין להשאיל אבל היה לו להשאיל כשר שהרי גם זה שואל ממנו: הגה ודוקא ברגיל לשאול ממנו אבל באקראי בעלמא ולא מוכח שעושה משום הדין לא (מהרי"ק שורש י"ז):

The Judge must be exceedingly1Heb. מאד מאד is employed to emphasize the extreme care that the Judge must take not to be tempted to accept bribes since man is endowed with a natural desire to accept gifts. The same expression is used by Tur in Y.D. § 160 beg. regarding the prohibition to take usury; ibid. § 336 beg. ref. to the physician who heals; Tur E.H. § 21 ref. to incest. Cf. Ab. IV, 4: ‘Be exceedingly humble’ (מאד מאי הוי שפל רוח), because by nature man is haughty — M.E. For any matter that involves the possibility of a material loss (in our case the gift or bribe that is given to the Judge which is forbidden) requires urging on since it is contrary to human nature not to accept. Cf. Sifra to Lev. VI, 2. , supra § 7, n. 33. careful not to take a bribe even to acquit the innocent,2Ket. 105a: ‘Was it not taught: What was intimated by the text, And thou shalt take no gift? (Ex. XXIII, 8). If to teach that one must not acquit the guilty or that one must not condemn the innocent, (we may object because) it has already been stated in the Bible, Thou shalt not wrest judgment (Deut. XVI, 19). Hence, even if (the Judge wishes) to acquit the innocent or condemn the guilty, the Torah states, And thou shalt take no gift.’ Ibid. 105b: ‘Why is it called Shoḥad (שוחד taken as contraction of שהוא חד, it is one) ? — Because it is one.’ (the recipient and the donor become one person). Cf. also Sifre to Deut. XVI, 19. The prohibition against accepting bribes refers not only to Judges but to all persons who are entrusted with communal matters although no adjudication of law is involved — P.Tesh. Likewise is it forbidden to accept equal bribes from both litigants although the foregoing reason no longer applies — M.E. The Judge must not accept any gifts from the acquitted party even after the conclusion of the trial — Asheri to San. 27a in the case of Bar Ḥama. and if he accepted it, he must return it when the donor claims it.3Yad, Sanhedrin XXIII, Derived from Tem. 4b: ‘Abaye stated: Every act which the Divine Law prohibits, if it has been executed, the act has its legal effect; for if you were to entertain the opinion that the act does not have its legal effect why is one punished by lashes (on account thereof)? But Raba says that the act does not have its legal effect at all and the reason why one is punished by lashes is because he has transgressed a commandment of the Divine Law.’ After a number of texts are adduced according to which in some cases the transgression of a negative command has its legal effect while in others it does not,— concerning which Abaye and Raba agree, — the Talmud continues ibid. 6a-b: ‘R. Aḥa, the son of Raba said to R. Ashi . . In what respect do Abaye and Raba differ? — They differ with respect to direct usury (ריבית קצוצה i.e., lending four Denari in return for five) in accord with R. Eleazar. For R. Eleazar stated: Direct usury can be collected through the Judges, whereas indirect usury (אבק ריבית, lit. ‘dust of usury,’ e.g., if one sells his field and says to the buyer that if he pays him forthwith the price is one thousand Zuz, but if at a later date the price will be more. Consequently, if the buyer pays at the later date, the additional amount is regarded as indirect usury) cannot be collected through the Judges. R. Joḥanan states: Even direct usury is not collected through the Judges (Hence, Raba will conour with R. Eleazar and Abaye with R. Yoḥanan). But do they (Abaye and Raba) differ merely in logical reasoning? Do they not differ in the interpretation of Biblical texts? For R. Isaac said: He hath given forth upon usury and had taken increase: shall he than live? He shall not live (Ez. XVIII, 13), which teaches that the taking of usury is a matter that concerns life but is not liable to restoration (consequently, even Raba who holds that a prohibited act does not have its legal effect, here he will admit that the act is valid on account of the text). R. Aḥa b. Adda says: From here: Scripture states, But fear thy G-d (Lev. XXV, 36), teaching that the taking of usury is a matter of fearing G-d, but is not liable to restoration. Raba stated: From here: He hath done all these abominations: he shall surely die: his blood shall be upon him (Ez. XVIII, 13). Now, lo, if he begat a son that is a robber, a shedder of blood (ibid. XVIII, 10). Those who lend on interest are comparable to those who shed blood. Just as those who shed blood cannot make restoration (of the lost lives), so those who lend on interest are not liable to restoration (of interest). R. Naḥman b. Isaac stated: What is the reason of R. Eleazar? (who maintains that direct usury is collectible through the Judges), for the Biblical text says: That thy brother may live with thee (Lev. XXV, 36) thus teaching that he must restore the interest so that he (the borrower) may live with you.’ Consequently, since the law rests with Raba (excluding certain cases), bribes are equated to usury and are collectible through the Judges, which means that the donor claims it. M.E. writes that if the donor does not claim the return of the gift, the Judge is not obliged to return it, because the donor gave it willingly for the purpose of being acquitted contrary to usury concerning which it is written That thy brother may live with thee. TaZ disagrees with M.E. on the basis of Rashi to B.M. 61b, s.v. ע״כ ריבית קצוצה according to whom the Court may also compel him to return the usury only if he claimed it. Thus also TaZ to Y.D. § 161, 5, n. 3. Even if the donor claimed the bribe after a considerable time had elapsed, yet, as long as he did not renounce his rights to it, he may still make a claim. However, it is proper that the recipient of the bribe should return it of his own accord if he wishes to do his duty towards G-d and repent — P.Tesh. Just as the one who receives it transgresses a negative command, so does the donor transgress [the negative command], 'Thou shalt not put a stumbling block before the blind.'4Lev. XIX, 14. Thus Yad ibid., derived from the law of usury, for just as we deduce the law of returning bribes from the law of usury so too do we deduce from the law of usury that the one who gives bribes transgresses the negative injunction, And thou shalt not put a stumbling block before the blind, i.e., the one who offers a bribe tempts the Judge and thereby places a stumbling block before him. , Mishna B.M. 75b: ‘These transgress a negative injunction : the lender, the borrower, the surety and the witnesses. And the Sages add: the scribe too. They transgress the injunction, Thou shalt not give (him thy money upon usury) [Lev. XXV, 37] and Take thou (no usury) of him (Lev. XXV, 36) and Thou shalt not be to him as a usurer (Ex. XXII, 24) and Neither shall ye lay upon him usury (Ex. XXII, 25) and Thou shalt not put a stumbling block before the blind, but thou shalt fear thy G-d: I am the Lord (Lev. XIX, 14).’ Gemara ibid.: ‘Abaye said: The lender transgresses all (the injunctions); the borrower: Thou shalt not cause thy brother to take usury (Deut. XXIII, 20. Heb. תשיך is in the Hiph‘il which is causitive. Hence, it refers to the debtor), but unto thy brother thou shalt offer no usury (ibid. v. 21), and thou shalt not put a stumbling block before the blind. The surety and the witnesses: only, neither shall ye lay upon him usury.’ One is forbidden to give a bribe to a Gentile Judge on the basis of and thou shalt not put a stumbling block before the blind, for civil laws are also binding upon all Noaḥides. But if it is evident that the Gentile Judge desires to pervert justice in favour of one of the litigants, it is permissible (Ḥatam Sofer) — P.Tesh. And not only a bribe of money [is forbidden] but even a bribe of words [or acts].5Ket. 105b: ‘Our Rabbis taught: And thou shalt take no bribe. (Ex. XXIII, 8); it was not necessary to speak of a monetary bribe, but (the following was intimated) : Even a bribe of words (or acts) is also prohibited, for it is not written, And thou shalt take no GAIN (Heb. בצע which would refer to a monetary bribe only).’ Cf. the cases of Samuel and Amemar a.o. mentioned ibid., who refused to act as Judges for people who acted in a manner that would be tantamount to a bribe of words or acts. Cf. Y.D. § 161, where the same applies to usury. , supra § 7, n. 33. Every Judge who borrows aught is ineligible to adjudicate the lawsuit of the owner of the lent object. This applies only when the Judge possesses naught to lend [to the latter], but if he had things to lend [to him],6Even if he did not lend him anything as yet, for since he has things to lend him, the borrowing does not constitute a bribe — M.E. he is fit [to adjudicate his case], since the latter too may borrow from him.7Yad ibid. par. 4. Derived from Ket. 105b: ‘Rabbah b. R. Shilah said: Any Judge who is wont to borrow is ineligible to adjudicate a lawsuit (for the owner of the lent object). This applies only when he possessed naught to lend to others, but if he has things to lend it does not matter. But is this really so? Did not Raba borrow things from the household of Bar Merion though they borrowed naught from him? — There he desired to make them feel important (i.e., the borrowing was not for his own benefit). Gloss: [This, viz., that the Judge who borrows is forbidden to pronounce judgment for the owner of the lent objcet applies] only when he is in the habit of borrowing from him, but [if the borowing is merely] incidental, and it is not evident that he does [this] on account of the [lender's] lawsuit, it is not [forbidden].8MaHaRIK Rt. 16 — G. Since we compare the prohibition of bribes to that of usury, we likewise learn that a gift constitutes a bribe only when it is clearly evident that it was given for that purpose. , B.M. 75b: ‘It has been taught: R. Simeon b. Yoḥai stated: Whence is it derived that if one is his neighbour’s creditor for a Maneh, the latter must not extend a greeting to him if he was not in the habit of doing this? — From the Biblical verse, Usury of any word which may be usury (Deut. XXIII, 20), — even speech is prohibited.’ Thus we see that it is forbidden only when the debtor was not in the habit of extending a greeting to the creditor, for then it is clearly evident that the purpose of the greeting is on account of the loan he received. But if it was his usual practice to extend a greeting, we consider the debtor’s greeting as of a mere incidental nature. Cf. B.M. 64b, Tosaf. s.v. אבל חצר. Similarly in the present case. If the Judge was in the habit of borrowing, he is forbidden to adjudicate the case of the lender, but if he borrowed from him by mere chance, and it is not evident that the owner of the lent object does it on account of his lawsuit, the prohibition does not stand.

Se’if 2ב׳

אם קדם התובע ושלח מנחה לדיין קודם שיזמין לנתבע לדין אין הנתבע יכול לפוסלו אא"כ הדיין רוצה לחשוך עצמו מאותו דין ממדת חסידותו (כגון שיודע שנתקרב דעתו לזה) (טור):

If the claimant9Who is in the habit of sending gifts to the Judge from time to time — A.H. sent a gift to the Judge beforehand, [i.e.,] before he [the Judge] summons the defendant to appear in Court, the latter cannot declare him [the Judge] unfit,10Even if at the time he sent the gift, it was generally known that he has a claim to make — M.E. It must be clearly evident that the claimant sends the gift not on account of his lawsuit, but rather because it is his usual practice to send the Judge gifts — A.H. unless the Judge desires to refrain from [adjudicating] that lawsuit out of piety,11Geonic Responsum cited by Tur. Ket. 105b: ‘A man once brought to R. Anan a bale of small fish living among the reeds in the swamps. What are you doing here, the latter inquired of him? I have a lawsuit, the other answered. (R. Anan) did not accept it from him. I am ineligible to try your suit. I do not require, the other said to him, your decision (in the case) ; accept (the gift) so as not to restrain me from offering my first-fruit? (v. Ex. XXIII, 19). For it was taught: And there came a man from Baal-shalishah and brought the man of G-d bread of the first-fruits, twenty loaves of barley, and fresh ears of corn in his sack (II Kings IV, 42) ; but was Elisha (who was not a Kohen. , Pes. 68a and Asheri a.l.) permitted to eat first-fruit? — This was meant to inform you that one who brings a gift to a scholar is regarded as if he had offered first-fruits. I had no intention to accept your gift (R. Anan) replied to him, but now that you have given me a reason, I will accept it. He then sent him to R. Naḥman to whom he sent (the following message), Will the Master adjudicate (the lawsuit of) this man, for I, Anan, am ineligible to act as Judge for him.’ Legally, R. Anan was not disqualified to act as Judge since the gift was given to him before the writ of summons was sent to the other litigant, and the reason that he refused to act as Judge was an added stringency out of piety. , Tosaf. a.l. s.v. לא and San. 8a, Tosaf. s.v. פסילנא. Cf. supra § 7, n. 33. MaHaRDaK writes that it is considered a measure of piety to refuse to act in such a case only if the donor gave his gift not in the presence of the fellow-litigant, but if this was done in the latter’s presence, it is legally forbidden for the Judge to try the lawsuit, for under the circumstances the arguments or pleas of the defendant will become closed (נםתתמו טענותיו) — M.E., ShaK. e.g., where [the Judge] knows that he has become well disposed towards this [donor].12Tur — G. And even if the Judge did not become well disposed towards him, only that he has a feeling that the claimant sent him the gift on account of the lawsuit, the Judge is legally forbidden to sit in judgment (BaḤ) — P.Tesh.

Se’if 3ג׳

נהגו לעשות לב"ד קופה שפוסקין ממון לפרנסת ב"ד ומגבין אותה בתחלת השנה או בסופה ואין בו משום תורת שוחד ותורת אגרא כי חובה על ישראל לפרנס דייניהם וחכמיהם וגם אם יש נדבות או הקדישות סתם לוקחים מהם: הגה ויותר טוב לגבות מתחלת השנה שיהא מוכן להם כדי שלא יצטרכו להחניף או להחזיק טובה לשום אדם (טור):

It was [formerly] customary to provide a fund13Lit. ‘to make… a Kuppah.’ for the [members of the] Court, [i.e.,] they [the townspeople] undertake to pay a fixed sum of money for the maintenance of the Court, and they collect it [from the townspeople] at the beginning of the year or at the end thereof, and it does not bear the designation of a bribe or the designation of remuneration [for pronouncing judgment],14Ket. 105a: ‘The Legislators of Civil Law in Jerusalem received their wages out of the Temple fund (the amount of) ninety-nine Maneh. If they were not pleased, the amount was increased. (You say), They were not pleased? Are we dealing with wicked persons? (A Judge is entitled to receive only enough for his living costs — Rashi). But (the meaning of this is that if the amount was) not enough (for the cost of living), an increase was given to them even if they refused.’ Tosaf. a.l., s.v. גוזרי writes that this would not be considered a transgression of, Thou shalt take no gift (Ex. XXIII, 8. , supra par. 1 and notes) because a) it was not given by the litigants but by the entire community, b) here we refer to permanent Judges whose sole work consists of sitting in judgment, and consequently, must be maintained. for it is obligatory for Israel to support its Judges and scholars.15Derived from And the priest that is highest among his brethren (Lev. XXI, 10), which is explained that when the High-priest is poor, they (the brethren) are bound to make him independent by a collection from his brethren (Hor. 9a) — M.E. Cf. Y.D. § 246, 21. In addition, if there are free-will offerings or undefined dedications16e., the donor did not specify the purpose of the dedication. Otherwise, if the dedication is designated for a specific purpose, it is forbidden to employ the donation for another purpose. , O.Ḥ. § 153; Y.D. § 256 — M.E. for a sacred purpose [available], they [the townspeople] may take therefrom [for the support of the Judges].17Tur on the authority of R. Judah of Barcelona. Gloss: However, it is better to make the collection at the beginning of the year, so that [the money for their support] should be prepared for them [in advance] in order that they should not have to resort to flattery or be grateful to any person [during the year].18Tur — G. , Ket. 105b: ‘When R. Dimi came (from Israel to Babylon) he stated that R. Naḥman b. Kohen expounded as follows: What was intimated by the text The King by justice establisheth the land, but he that loveth gifts overthroweth it? (Prov. XIX, 4) If the Judge is like a King who needs nothing (who is rich and does not have to flatter anyone) he establisheth the land, but if he is like a Priest who goes around among the threshing floors (for the priestly dues), he overthroweth it.’ Consequently, if the money is collected from the townspeople at the beginning of the year, the Judges will be secure and comparable to a King who does not have to flatter the people. The custom nowadays is to pay weekly salaries — A.H.