Halakha Keluaran 22:6: Mishneh Torah, Hiring, Shulchan Arukh, Choshen Mishpat, Sefer HaChinukh & Mishneh Torah, Positive Mitzvot

These are the three laws that apply to them. If the deposit is stolen from the unpaid bailee or it is lost and, of course, if the deposit is lost through force majeure - for example [the deposit] was livestock and it died or was taken captive: [The bailee] swears that he exercised the ordinary care of bailees and is exempt. As is written "And it is stolen from the man's home" (Exodus 22:6); "And the house-holder shall approach God" (Exodus 22:7). The borrower repays [the owner] in all situations, whether the borrowed item is lost, or stolen, or whether there was force majeure e.g. the borrowed animal died or was injured or taken captive, for thus is written about the borrower: "If [the animal] was injured or died and its owner was not with it - he shall pay" (Exodus 22:13). The same law applies to the paid bailee and to the renter. If the object which [the bailee] rented or was paid to guard was stolen or lost - they pay [the owner]. But if there is force majeure - e.g. there was an animal and it died or was injured or taken captive or became afflicted with a fatal disease - [the paid bailee and the renter] swear that it was force majeure and they are exempt. As it is written: "If it dies or is injured or taken captive and there is no witness" (Exodus 22:9) "the oath of the Lord ..." (Exodus 22:10), and it is written: "If it is stolen from him, he must pay its owner..." (Exodus 22:11). In summary: An unpaid bailee takes an oath in every situation. And a borrower pays in all situations, unless it dies while it is working, as will be explained. A paid bailee and a renter pay for a lost or stolen [deposit], but they take an oath in cases of force majeure such as when the animal is injured or taken captive or killed or develops fatal disease. Or if the object is lost in a boat that sinks or is taken by armed bandits or anything like this that is a case of force majeure.

A Court of Law must consist of not less than three [Judges]¹Mishna San. 2a and Gemara ibid. 2b-3a in accord with R. Aḥa, the son of R. Ika that Biblically even one is sufficient to judge monetary cases. Three, however, are required Rabbinically on account of idlers who are unversed in the law (v. Isserles anon). Thus also Yad, Sanhedrin II, 10 (v. Kesef Mishneh on the authority of RaShBA) and Asheri to San. I end contra ‘Ir Shushan — M.E. BaḤ writes that in the first instance (לכתחילה) three who are versed in the law are required. Regarding a city wherein all the inhabitants are unversed in the law, v. infra § 8, 1, Gloss. ShaK defends ‘Ir Shushan on the basis of the following text: San. 3a: ‘Said Raba, . . cases of indebtedness require no Mumḥin for the reason advanced by R. Ḥanina (v. infra). R. Aḥa, the son of R. Ika states: Biblically even one individual is qualified to deal with cases of indebtedness, as it is written, In righteousness shalt thou judge thy neighbour (Lev. XIX, 5). Three judges are required on account of idlers who act as judges … What is the difference between Raba and R. Aḥa, the son of R. Ika (since they both agree that laymen Judges are legally qualified to adjudicate monetary cases) ? — They differ with respect to the opinion of Samuel who said: If two laymen Judges adjudicated a monetary case, their judgment holds good but they are called an arrogant court. Raba (who requires three Biblically) does not agree with Samuel; whereas R. Aḥa, does.’ Consequently, continues ShaK, since we do not rule in accordance with Samuel (v. infra par. 2 beg.), we must say that the law agrees with Raba, viz., that Biblically three Mumḥin are necessary, for the term ‘Elohim’ denoting ‘Judges’ is found three times in Ex. XXII, 6-8 with respect to cases of larceny, and on the basis of the principle that there is ‘an interweaving of Biblical sections’ עירוב פרשיות (i.e., clauses of one section are taken over for interpretative purposes to a succeeding section, in this case the term ‘Elohim’ is taken over to the section in Ex. XXII, 24 which deals with cases of indebtedness). Hence, three Mumḥin Judges should be required even in cases of indebtedness. However, this requirement was relaxed and three laymen Judges suffice on account of the reason advanced by R. Ḥanina, viz., ‘in order not to close the door against borrowers’ (people would refuse to advance loans should they subsequently meet with difficulties in having to procure Mumḥin Judges in order to collect their debts). This is also evident from Asheri, for he decides in favour of R. Abbahu that the adjudication of two Judges is invalid contra Samuel (v. supra this note). Furthermore, Asheri states explicitly that the law follows R. Abbahu since we have an established principle that beginning with Abaye and Raba the law always rests with the Later Authorities. Consequently, the law is decided in favour of Raba who disagrees with Samuel. Thus also Alfasi, RABaN and N.Yos. Maim. ruling (v. Yad ibid.) presents the following difficulties: a) On the one hand Maim. rules that three Judges are required and on the other hand, he states that one Mumḥeh is permitted to try monetary cases, which is in agreement with R. Aḥa. But, as we have seen above, R. Aḥa accepts Samuel’s dictum, and such being the case, Maim. should likewise accept Samuel’s ruling that two Judges are sufficient. The same difficulty is found in SeMaG. b) According to B.K. 84b and Git. 88b, the reason why we may adjudicate monetary cases nowadays is because we act as agents of the former authoritative Judges (Elohim). Thus also Yad, Sanhedrin V, 8 and SeMaG (v. supra § 1 notes). Hence, Biblically, monetary cases are tried by Mumḥin, i.e., in accord with Raba, for according to R. Aḥa, one laymen Judge would be sufficient today (v. Kesef Mishneh to Yad, ibid. II, 10 who raises the same question and cites Resp. of RaShBA in order to remove the above difficulties. Cf. also Leḥem Mishneh ibid.). ShaK writes that the solution of the latter authorities is strained. A.H. removes the above difficulties as follows: Samuel’s dictum that ‘If two judges tried monetary cases their decision holds good,’ refers only to Biblical adjudication. And needless to say that the one (R. Aḥa) who maintains that Biblically one Judge is qualified to try monetary cases will certainly hold that if two adjudicated the matter, their decision is valid and they are Biblically designated a Court of Law. However, Rabbinically, all agree that three Judges are required on account of idlers who are unversed in the law. This is what is meant by the text (v. supra), ‘What is the difference between Raba and R. Aḥa? — They differ with respect to the opinion of Samuel who said: ‘If two Judges etc.,’ i.e., Biblically, the decision given by two judges is valid and they are designated a Court of Law according to Samuel. Therefore, the Gemara does not state that the difference between Raba and R. Aḥa centers around the difference of opinion between Samuel and R. Abbahu (the latter holding that the decision of two is invalid), for as far as a valid judgment is concerned, R. Aḥa and Samuel agree with R. Abbahu that three are required Rabbinically, on account of idlers. Samuel and R. Aḥa only differ Biblically. and every [group of] three [Judges] is called a Court of Law even if they be laymen.²San. 2b-3a. previous note. For it is impossible that there should not be among them [at least] one who has a knowledge of logical inferences in [civil] laws.³San. 3a. The expression, ‘who has a knowledge of logical inferences in (civil) laws’ (דיודע סברות בדינים) taken from Tur, is not equivalent to the Talmudic term סביר, i.e., one who has the capacity to reason even regarding matters concerning which he did not study. For this would be equivalent to a Mumḥeh (authoritative Judge). , Shab. 63a a.e. The expression used here has reference to one who merely received reasons for certain laws from others, but is himself not endowed with the power of reasoning — M.E. (v. also Perisha). ShaK agrees with M.E. regarding the term סביר, but maintains that one of the Judges must be versed in traditions (גמיר used in San. ibid.). Thus also R. Meir of Padua contra BaḤ who writes that גמיר refers to partial knowledge. The ruling here, viz., that one is required to be versed in the law follows Asheri contra Mord. who requires the three Judges to be versed in the law even if they have no reasoning power. Thus also R. Zeraḥyah and N. However, if there is not among them [at least] one [who has such knowledge], they are disqualified to judge.⁴Tur on the authority of his father Asheri to San. I beg. — G. Cf. San. 23a. Three Judges who are unversed in the law may adjudicate monetary cases provided the litigants expressly stated that they agree to accept them as Judges — ShaK, P.Tesh. , infra § 8 and § 22. Nevertheless, they may receive the pleas [of the contesting parties] and forward them to one who is qualified to render legal decisions.⁵R. Meir of Padua s. 43 — G. They may try the defendant⁶Lit. ‘the person.’ against his will⁷San. 5a, Tosaf. s.v. דן. Cf. also San. 6a. Thus also Asheri and Sefer ha-Terumoth. Should there be a difference of opinion among the litigants as to the type of adjudication in the contested matter, one demanding that it should be tried by a judicial Court and the other maintaining that businessmen should be appointed to arbitrate the case, — the law is that if the accepted local custom is to submit such a case to arbitration by businessmen, this custom should be followed since ‘an accepted custom overrides a law’ (Y. Yeb. XII, 1(12c) ; Y. B.M. VII, 1(11b) ; Maseketh Soferim XIV, 18) — R.A. Eger, P.Tesh. if the latter⁸Lit. ‘the defendant.’ declines to come down before Court,⁹San. and Tosaf. ibid. or he is not willing to attend the Court with the plaintiff in his¹⁰e., the plaintiff’s. home town.¹¹San. 31b. infra § 14. It is only the defendant who cannot refuse to go to Court with the plaintiff in the latter’s home town, but the plaintiff may compel the defendant to go with him and have the case tried at the place of Assembly (בית הועד) i.e., the meeting place of scholars. And as to the Supreme Court even the defendant may request the plaintiff to have the case tried there (v. infra § 13) — M.E. But if he is willing to attend the Court with him¹²The plaintiff. in his¹⁰e., the plaintiff’s. home town, only that he is not pleased with the three [Judges] whom the plaintiff has chosen, — then [the law is that] each [litigant] chooses one [Judge and the two Judges together choose a third].¹³San. 23a; ibid. 3a, Tosaf. s.v. אי אפשר and cf. infra § 8, 1, Gloss. Gloss: As stated infra § 13. It seems to me [that this applies] only to Judges who are not permanent, but if there are permanent Judges in town he cannot say, 'I will attend Court in their presence only on [the condition that] each [litigant] chooses [one Judge and the two Judges together choose a third]'.¹⁴The defendant may, however, demand that more Judges be added to the number of the permanent Judges — Tummim, P.Tesh. Thus is the accepted custom in our town. , infra § 22, par. 1 end.

The commandment on the court to judge the case of an unpaid guardian: To judge the case of an unpaid guardian, as it is stated (Exodus 22:6), “If a man gives his neighbor silver or vessels to keep, etc.” And the explanation that comes for it (Bava Metzia 94b) is that this section is stated about an unpaid guardian. And therefore it exempted him from [liability for] theft. And the understanding of “unpaid” is that the [guardian] did not receive any wage for his guardianship from the [owner].