Halakha Bilangan 16:12: Gray Matter II & Shulchan Arukh, Choshen Mishpat

From where do we know that an agent of beit din is sent to summon a defendant? As it is written (Bemidbar 16:12), “Moshe¹See Nimukei Yosef (Mo’eid Katan 8a in the Rif’s pages s.v. Ata Uploni) regarding whether Moshe was considered the equivalent of an actual dayan or merely a messenger of the beit din in the dispute with Korach. sent forth to summon Datan and Aviram the sons of Eliav.” [How do we know that] we inform the defendant that he will be judged in the presence of a great man? As it is written (Bemidbar 16:16), “Moshe said to Korach, ‘You and your entire assembly, appear before Hashem.’” [How do we know that] we mention the plaintiff? As it is written (ibid.) “You, they, and Aharon.” [How do we know that] a set date is mentioned in the hazmanah? As it is written (ibid.), “Tomorrow.” [How do we know that] a second hazmanah is sent? As it is written (Yirmiyahu 46:17, as explained by Rashi; however, see Ritva), “Place Paroh, King of Egypt, in excommunication for having ignored his appointed time more than once.” From where do we learn that the agent of the court [who delivers the summons] is permitted to report to the beit din [about the actions of a recalcitrant defendant] without concern for violating lashon hara (slander) prohibitions? As it is written (Bemidbar 16:14), “Even if you would gouge out the eyes of those men, we shall not go up.” [The court agent must have told Moshe that Datan and Aviram made these remarks, or else he would not have known about the remarks in order to respond angrily – Rashi s.v. Ha’einei.] From where do we derive that we excommunicate (nidui) one who refuses to appear in beit din? As it is written (Shoftim 5:23), “Curse Meroz [for their refusal to join the battle against Chatzor].”

It is also forbidden to behave irreverently towards the messenger of the Court,⁴⁴Kid. 12b; Yeb. 52a: ‘Rab decreed punishment for him . . who acts irreverently (דפקיר! Thus in Yeb.; דמצער ‘who harasses’ in Kid. Hence, Caro employs both terms) towards the messenger of the Rabbis (either the representative of the Beth Din sent to summon him to Court — thus Rashi; or the messenger of any Rabbi — So Tosaf.). , also Kid. 70b and cf. Yad, Sanhedrin XXV, and he who harasses him [the messenger], — [the law is that] the Court has the authority to inflict upon him the penalty of chastisement.⁴⁵Heb. מכת מרדות Lit. ‘stripes for rebellion,’ i.e., punishment for disobedience left to the discretion of the Court in contradistinction to the Biblically ordained punishment of 40(39) lashes. This ruling is applicable only when there are witnesses who testify that he harassed him; but on the statement of the messenger alone, the recalcitrant defendant may only be placed under the ban, although the decree of the ban is regarded as more severe than lashes, yet, so far as reliance on testimony is concerned, the statement of the Court messenger is not valid in order to inflict the penalty of chastisement upon the defendant. This may be derived from the fact that we do not accept the testimony of the Court messenger alone in order to make the defendant pay for the expense of the Court warrant, much more so in the case of bodily punishment. Cf. B.K. 112b: ‘The messenger of the Rabbis is as reliable (when informing the Court that the defendant refuses to appear) as two witnesses; this is the case only with reference to decreeing the ban (Shameta), but for writing a warrant (Pethiḥa, at the defendant’s expense), since he (the messenger) puts him (the recalcitrant defendant) to expense, — for the latter has to pay the scribe (for drafting the writ of excommunication), it is not so (i.e., the Court messenger’s statement is not as credible as the testimony of two witnesses)’ — M.E. , infra § 11, 1. The messenger is as credible as two [witnesses, viz.,] to testify that he [the defendant] insulted him, so that they place him [the defendant] under a ban.⁴⁵Heb. מכת מרדות Lit. ‘stripes for rebellion,’ i.e., punishment for disobedience left to the discretion of the Court in contradistinction to the Biblically ordained punishment of 40(39) lashes. This ruling is applicable only when there are witnesses who testify that he harassed him; but on the statement of the messenger alone, the recalcitrant defendant may only be placed under the ban, although the decree of the ban is regarded as more severe than lashes, yet, so far as reliance on testimony is concerned, the statement of the Court messenger is not valid in order to inflict the penalty of chastisement upon the defendant. This may be derived from the fact that we do not accept the testimony of the Court messenger alone in order to make the defendant pay for the expense of the Court warrant, much more so in the case of bodily punishment. Cf. B.K. 112b: ‘The messenger of the Rabbis is as reliable (when informing the Court that the defendant refuses to appear) as two witnesses; this is the case only with reference to decreeing the ban (Shameta), but for writing a warrant (Pethiḥa, at the defendant’s expense), since he (the messenger) puts him (the recalcitrant defendant) to expense, — for the latter has to pay the scribe (for drafting the writ of excommunication), it is not so (i.e., the Court messenger’s statement is not as credible as the testimony of two witnesses)’ — M.E. , infra § 11, 1. Gloss: The Court messenger can report to the Court [that he was treated insolently by the defendant] and this is not regarded slander [on the messenger's part].⁴⁶Yad, Sanhedrin XXV; M.K. III — G. , M.K. 16a: ‘Whence do we derive that if one acts irreverently towards the messenger of the Court and the latter comes and reports it, this is not considered slander? — For it is written, (And Moses sent [i.e., a messenger] to call Dathan and Abiram, the sons of Eliab; and they said: We will not come up…) Wilt thou put out the eyes of these men? (We will not come up).’ , Num. XVI, 12-14. Yad ibid. par. 6. Thus it is evident that the messenger’s report is not considered slander. Otherwise, G-d would have instructed Moses not to include it in the Bible. Likewise, can he [the messenger] take the law into his own hands [in order to execute the Court order] should he [the defendant] act rebelliously towards him, [i.e., he is permitted] to strike him [the defendant],⁴⁷B.K. 28a: ‘And putteth forth her hand (Deut. VXV, 11) excludes the messenger of the Court (from any liability for degradation caused by him while executing the Court order).’ This means that even if the messenger could have employed other means in order to fulfil his mission, such that would not lead to any damage to the defendant or his property, nevertheless, he is still exempt. , Gemara a.l. and so too, if he caused damage to his [the defendant's] property, he is exempt.⁴⁸R. Yeruḥam (in Mesharim), Path XXXI, Pt. 2; N.Yos. to B.K. III beg. — G. , B.K. 28a: regarding the ox who threw himself upon the back of another ox with the intention to kill it. If the owner of the ox that was beneath could have extricated his ox from beneath so as not to kill the other ox directly by pushing him from above, he is held liable. But a messenger of the Court would be exempt from liability even if he had other means of enforcing the Court order. , previous note and supra § 4, nn. 4 and 13. Some, however, maintain that if the Court messenger does have other means at his disposal, he should not take the law into his own hands (Shebuth Ya‘akob) — P.Tesh., A.H. , infra §11 beg.

In which manner is a defendant summoned to appear in Court? — The [members of the] Court send their messenger to him in order that he come on the appointed day to Court. [If] he did not appear [on the appointed day], they summon him a second time; [if] he did not appear [after the second summons], they summon him a third time; [if] he [still] did not appear, they wait for him all day, and if he did not appear, they place him under the ban on the morrow.¹M.K. 16a: ‘Raba said: Whence do we derive that we send a Court messenger (in a legal summons) ? — For it is written, And Moses sent to call Dathan and Abiram, the sons of Eliab (Num. XVI, 12). Whence do we derive that we summon him to appear (in person) ? — For it is written, And Moses said to Korah, Be thou and all thy congregation before the Lord, thou and Aaron (tomorrow) (ibid. v. 16). (Whence that one is to appear) before a distinguished personage? — For it is written, Before the Lord (ibid. v. 16). (That both parties should be named) thou and So-and-so? — For it is written, Thou and they (that are with them) and Aaron (ibid. v. 16). That we appoint a time? — For it is written, Tomorrow (ibid.). One term and then another term (after one more term) ? — They called there, Pharaoh the king of Egypt, (the cause of) commotion; he hath let the appointed time pass by; (As I live, saith the King, the Lord of Hosts, surely like Tabor among the mountains and like Carmel by the sea, so shall he come) (Jer. XLVI, 17-18. , Rashi and Targum a.l.)’ That he is placed under the ban only after the third summons is derived from Tosaf. a.l., s.v. מתרינן in accord with the opinion of ‘some explain.’ Thus also Tur. Cf. also B.K. 113a: ‘R. Ḥisda said: (In a legal summons) we appoint a time for the person to appear) on Monday, (then) on Thursday, and (then) on (the following) Monday (The Beth Din held its sessions on Mondays and Thursdays — B.K. 82a), (i.e.,) one term and then another term after one more term (in case of failing to appear) and on the morrow (of the last fixed) we write (the Pethiḥa).’ , supra § 8, 5, n. 45. The defendant has a right to say to the claimant before appearing in Court, ‘Tell me the nature of your claim,’ and if the claimant refuses to comply with his request, the defendant can say, ‘I will not go to Court with you until you tell me, for it is quite possible that when I hear your claim I will settle with you and indemnify you’ — ShaK contra Be’er Sheba. In the latter case, the defendant should report the claimant’s refusal to disclose the nature of his claim to the Court messenger — A.H. The expenses for the summons should be defrayed by the claimant and not by the defendant — ShaK. The claimant can summon the defendant to appear only on the days that Court sessions are held according to the adopted custom of the community unless the local usage is to hold a Court session whenever the need arises. The writ of summons, however, may be sent to the defendant at any time for it has no fixed time — M.E. When does this apply? — In [the case of one] who was in country towns and departs from and returns to [the city],²For there may have been unavoidable circumstances which prevented the defendant from appearing after the first two summonses were sent. Where, however, he does not habitually depart from and return to the city, only that he spends a week or two away from home in the country towns or villages, it seems that he does not come under this ruling, and they appoint a time for him to appear for trial in accordance with his preoccupation — M.E. but [in the case of one] who is usually in the city, only one date is fixed for him [in a legal summons],³Thus Tur and Yad, Sanhedrin XXV, 8, derived from B.K. 113a: ‘R. Assi happened to be at R. Kahana’s and saw that a certain woman was summoned to appear before the Court on the preceding evening (and when she failed to appear) he wrote a Pethiḥa against her on the following morning. He then said to R. Kahana: Does not the Master hold the opinion of R. Ḥisda (v. supra n. 1)… He replied: This has reference only to a man who might be prevented by an unavoidable interference, through being out of town, but a woman who is (always) in town and if she fails to appear, is regarded contumacious (after the first act of refusal).’ The adopted custom nowadays is to send three summonses even for one who is in town (Tummim, Nethiboth) — P.Tesh. and if he did not appear on that entire day, they place him under the ban on the morrow.⁴Yad ibid. has לערב ‘in the evening.’ , infra par. 3. Gloss: [If] the [members of the] Court went to another place, he [the defendant] is required to go after them [in order to be tried before them], and if he did not go, they place him under the ban.⁵B.Yos. — G. Tur and Yad do not state this law and on the basis of the Mishna in R.H. 31b [‘should the Head of the Court be in another place, the witnesses (who give evidence for the New Moon) should still go only to the place of Assembly (and the Court declares the sanctification of the New Moon without the Head’)], R. Moses Ibn Ḥabib in his Shamoth ba-Areẓ rejects the present ruling of Isserles. For the law (R.H. ibid.) rests with R. Ashi that all laws are comparable in this respect to the sanctification of the New Moon, contra Amemar (ibid.) who distinguishes between the sanctification of the New Moon and other laws, because in the former case, the witnesses would refrain from giving evidence were we to insist that they go to the place of the Head, but in other cases, the borrower is a servant to the lender (Prov. XXII, 7). Hence, since the law rests with R. Ashi, Isserles’ ruling must be rejected. Other authorities defend Isserles — P.Tesh. According to A.H., Isserles’ ruling would apply only in a case where the defendant does not live in the same locality as the Judge, and if the Judge or the Court are in a different locality now, and the defendant, who was originally summoned to appear for trial in the first place, is not any further away from the second place, he must appear, otherwise he is placed under the ban. The Court messenger is relied upon to state,⁶ supra § 8, 5, nn. 44-45. In all the following cases we place the recalcitrant defendant under the ban. '[The defendant] behaved insolently towards me⁷Kid. 70b. , supra § 8, 5, nn. 44-45. or towards the Judge⁸Kid. 70a., and Rashi s.v. שמתיה. Cf. supra § 7, n. 32. or refused to appear for trial,'⁶ supra § 8, 5, nn. 44-45. In all the following cases we place the recalcitrant defendant under the ban. and they decree the Shammeta,⁹Heb. שמתא i.e., ‘an imprecation,’ used loosely as the equivalent of the Heb. נידוי ,חרם or the Aram. אחרמתא. Niddui and Ḥerem are Mishnaic terms while Shammeta was used in Babylon. The legal signification of these terms is discussed in Ned. 7a-b and later in Geonic literature. According to Rashi, Shammeta is less severe than Niddui. Maim. Yad, Talmud Torah VII, 2 maintains that they are identical. N in Mishpat ha-Ḥerem claims that Shammeta is a general term for Niddui and Ḥerem. Cf. Lewin B.M. in Oẓar ha-Geonim IV, on Mashkin, Responsa § 29ff, pp. 17-19. (i.e., the ban or excommunication,⁹Heb. שמתא i.e., ‘an imprecation,’ used loosely as the equivalent of the Heb. נידוי ,חרם or the Aram. אחרמתא. Niddui and Ḥerem are Mishnaic terms while Shammeta was used in Babylon. The legal signification of these terms is discussed in Ned. 7a-b and later in Geonic literature. According to Rashi, Shammeta is less severe than Niddui. Maim. Yad, Talmud Torah VII, 2 maintains that they are identical. N in Mishpat ha-Ḥerem claims that Shammeta is a general term for Niddui and Ḥerem. Cf. Lewin B.M. in Oẓar ha-Geonim IV, on Mashkin, Responsa § 29ff, pp. 17-19. [the etymology of Shammeta being], 'there is death'),¹⁰M.K. 17a: ‘What is (the etymology of) Shammeta? — Rab said, שם מיתה “there is death;” Samuel said, שממה יהיה (MS.M. שמה; ‘Ar. שם תהא read שמה תהא), He shall be (be thou) a desolation.’ , Jastrow. against him on his [the Court messenger's] testimony, but we do not write a warrant of excommunication on his [the messenger's testimony] until two witnesses appear and testify that he [the defendant] refused to come.¹¹ supra § 8, 5, n. 45. The messenger of Court is not held responsible in reporting [this] information on grounds of slander.¹² supra § 8, 5, n. 46. Gloss: One who states that he is not afraid of the Court order or the Sage, — [the law is that] although he does appear in Court [for trial], they place him under the ban, for since he states that he comes not on account of the [Court] order, it is regarded as contempt of the law.¹³M.K. 16a: ‘This (viz., that warning is given three times) applies only if he disregards a monetary case, but for contempt of the law (אפקרותא) the ban is pronounced forthwith.’ , Y.D. § 334, [par. 43]. If he stated, 'I do not wish to be tried before you, only before another Court,' v., infra § 14.¹⁴Cf. supra § 3. One who is not able to come to Court because he is required to go to distant countries, should inform the Court thereof, and make excuses [for the postponement of the trial] and request another date [for the hearing], and if he did not do [this] they place him under the ban, although he was not able to come.¹⁵MaHaRIK Rt. 11 — G. Derived from B.K. 112b: ‘Raba said: The law is that we may authenticate a document (either by oral evidence or by comparing the signatures) even not in the presence of one of the litigants… and even if he complains aloud before us (that the document was forged). But if he says: Give me time until I produce witnesses and invalidate the document, we give him time. If he comes (with witnesses), then he comes; but if he does not come we wait for him (the following) Monday and Thursday and Monday. If he still does not come we write a Pethiḥa against him (that goes into effect after) ninety days. For the first thirty days we do not go down (to take possession of his property) since we say that he is busy trying to borrow money; during the following thirty days we likewise do not go down to take possession of his property, as we say perhaps he was unable to raise a loan and is trying to sell his property; the last thirty days we likewise do not go down to take possession of his property since we may still say that the purchaser (of his property) is busy himself trying to raise money. If he still does not come (after all this), we write an Adrakta (legal permission to a creditor to trace the debtor’s property for the purpose or having it seized, assessed, offered for public sale and eventually delivered to him) on his property.’ Hence, we see that although he is unavoidably prevented from producing witnesses in which case we give him time to bring proof, yet, he must appear before Court to justify the delay; otherwise, the ban is decreed against him. Cf. also ibid. 113a: ‘Raba said: If a Pethiḥa was written against a recalcitrant offender for not coming before Court, we do not destroy it so long as he does not come before the Court… this however, is not so; for as soon as he states his intention to obey, we must destroy the Pethiḥa.’ One who accepted [to be tried before] a Court of two by making an agreement by means of a Kinyan,¹⁶Heb. קנין. Symbolical for making an agreement binding by handing over an object from one to the other of the contracting parties. In the present ruling should there be no agreement by symbol, the defendant may retract. , infra § 22, and they summoned him and he did not appear, — [the law is that] they [have the power to] place him under the ban as¹⁷Thus reading of M.E. (Cur edd. have בבייד ‘in a Court of etc.’). e., although the agreement by symbol was made only before two Judges, nevertheless, they have the right to decree the ban against him as a Court of three — M.E. a Court of three.¹⁸B.Yos. on the authority of RaShBA Resp. — G.