신명기 21:16 할라카: Shulchan Arukh, Choshen Mishpat, Gray Matter III & Sefer HaChinukh

[Civil suits] are not tried on the eve of a Sabbath or on the eve of a Festival.³Y. San. IV, 7(22b) ; Y. Beẓ. V, 2(63a); Y. Ket. I, 1(24d) where it is stated that the Mishna in San. 32a: ‘Capital cases are not tried on the eve of a Sabbath or Festival’ (since in case of condemnation the verdict must be carried out on the following day which is impossible were the trial to be held on the eve of a Sabbath or Festival. Moreover, it would be against the law to leave judgment in suspense until after the Sabbath or Festival — San. 35a. Cf. M.K. 14b) implies that civil suits may be tried on the eve of a Sabbath or Festival. Hence, Caro’s ruling presents a difficulty. Y. (ibid.) therefore, explains that the prohibition against adjudication of civil suits on the eve of a Sabbath or Festival is merely a Rabbinical measure. Thus also Yad, Sanhedrin XI, 3; Alfasi and Asheri to San. ibid. Even if the litigants agreed to appear before the Judges on the eve of a Sabbath or Festival, the prohibition still stands. For the Judges must be deliberate in judgment and since they are busy preparing for the Sabbath or Festival, this is not possible (contra ‘Ir Shushan who writes that the reason is that the people are busy making the festive preparations and should therefore, not be summoned then). This is substantiated by Isserles’ Gloss (anon), ‘but where a prohibition is involved (e.g., divorce or Ḥalizah proceedings) the lenient view should not be adopted’ and in D.M., Isserles adds, ‘for they (the Judges) are busy with the Sabbath preparations and cannot be deliberate in judgment.’ Thus we see that it is on account of the preoccupation of the Judges. This applies only to adjudication, but as regards hearing the pleas of the litigants and issuing the verdict after the Sabbath or Festival, it would be permissible from the Judges’ standpoint to meet for this purpose on the eve of the Sabbath or Festival (Thus RaN to Ket. beg.). The litigants, however, cannot be compelled to appear. This is the meaning of the following statement of Caro, ‘If they summoned a litigant to appear . . he is not obliged to come,’ i.e., even if the summons was for the purpose of hearing the pleas only, or it may mean that even if the Judges are free (e.g., others make the festive preparations for them), yet, the litigants cannot be compelled to appear — M.E. Nethiboth, however, maintains that if the litigants are willing to accept the verdict even if it is erroneous, the Judges may try their case even on the eve of a Sabbath or Festival. If they summoned a litigant to appear before the Court of Law [on these days], he is not obliged to come.⁴B.K. 113a; Yad, Sanhedrin XXV, 9. , end of previous note. Even if they summoned [him on the eve of a Sabbath or Festival] to appear after the Sabbath or Festival, and he did not come, we do not penalize him.⁵B.K. ibid. For he may offer the reason that he was busy preparing for the Sabbath or the Festival and did not take notice of the summons (Gemara ibid.) — M.E., ShaK. Gloss: There is an authority who writes that nowadays we may conduct legal proceedings on the eve of a Sabbath or on the eve of a Festival on account of the neglect of [Torah instruction by] teachers.⁶For throughout the week if they should have to appear in Court, the study of the Torah would be neglected. Hence, on the eve of the Sabbath or Festival when they are free from teaching, it is their only opportunity to appear in Court, if necessary. Hence, if the Beth Din finds it necessary to adjudicate cases on the eve of a Sabbath or Festival, it is permissible. A substantiation for this leniency may be derived from the following Mishna San. 24a: ‘If one (of the contesting parties) said to the other: I accept my father or your father as trustworthy (to act as a Judge), or I accept three herdsmen as trustworthy, R. Meir says, He may (subsequently) retract; but the Sages say, He cannot retract.’ The law is in accord with the Sages, viz., that he cannot retract. It follows therefrom that no prohibition exists against a Beth Din which is Biblically ineligible to adjudicate the case, provided the litigants agreed to accept the ineligible Judges. This applies, of course, to a community where no eligible Judges are available, and such a Beth Din is valid under the circumstances (v. infra § 8, 1; § 22, 1). This is binding only in civil lawsuits, but not where a prohibition is involved. Hence, the ruling of Isserles anon — W.G. (in accord with interpretation of Be’er Eliyahu). And only with respect to a monetary lawsuit may we adopt this lenient view, — for an expropriation made by the Court is valid,⁷Even if the Judges erred because they could not be deliberate in their judgment — M.E. but where a prohibition [is involved], the lenient view should not be adopted.⁸Terumath ha-Deshen s. 227 and Hag. SeMaK — G. , supra n. 3. ‘A prohibition’ refers to divorce proceedings or the performance of the Ḥaliẓah ceremony which requires extremely conscientious deliberation. In the case of an emergency (שעת הדחק), the lenient view may be adopted. Cf. E.H. § 154 and § 169. And it seems to me that [this applies] only to [a Court of] a temporary nature [that meets but] occasionally, but we do not establish a Court [for the purpose of meeting] permanently⁹Where the days are fixed and the Judges come of their own accord. on the eve of a Sabbath or on the eve of a Festival. Thus is the accepted practice. We do not fix a date [that a judicial session be held] during Nisan and Tishri¹⁰B.K. 113a. e., until after the Festival because one is then busy on account of the Holidays (according to Rashi because it is the agricultural season). But after the Festival a date may be fixed. The reason mentioned supra n. 5 does not apply here since there was ample time for him to take notice of the summons. Thus Isserles anon — ShaK. In the month of Sivan it would be permissible to summon one to Court because Shabuoth which occurs in this month consists only of two days in the Diaspora (and one day in the Land of Israel) and the question of preoccupation does not apply. On the eve of Shabuoth it would still be forbidden for the reasons stated above — M.E. Some authorities, contra ShaK, forbid the entire months of Nisan and Tishri. There are twenty-one days during which a Groom should not be summoned to appear in Court, viz., seven days prior to the wedding; the seven days of the wedding-feast; seven days following the wedding-feast. Other authorities hold that a Groom should not be summoned only three days before and seven days after the wedding. A widower who marries a widow is not to be summoned during the three days after the marriage (E.H. § 64). In other cases of religious duties, e.g., a circumcision, the Sandek or the father of the child, should they have to appear in Court, the days to be fixed for the hearing should be left to the discretion of the Judges — P.Tesh. for one who is not [a resident] in town, to appear for trial;¹¹But a resident in the same town may be judged. Thus Tur on the authority of Mord., whence we infer that if the contending parties agree to appear for trial from another town, they may be judged throughout the month of Nisan or Tishri (except on the eve of the Festival) — M.E. The opinion of Tur. and Mord. is substantiated by M.K. 14b where it is taught (derived from Tosef. M.K. II, 11) that monetary cases are dealt with by the Courts during Ḥol ha-Moed. This refers to a litigant who lives in the same town and consequently, may be tried even against his will. B.K. 113a, the source of Caro’s ruling deals with a litigant who came from another town. but if they summoned [him] during Nisan and Tishri to appear later, he is penalized if he does not come.¹²B.K. ibid. Gloss: Some say that suit should not be brought in the Synagogue during Nisan or the High Holy Days even against villagers who came to the Minyan [to pray], but we may [then] fix for them a date [to appear] after the Festival,¹³ Tur and Sh. ‘Ar. O.Ḥ. § 546, 11: ‘One is permitted to bring charges (against his fellow) on account of debts (owing to him) on Ḥol ha-Moed.’ Thus Caro. But Isserles does not make any comment (ibid.) as in the present ruling, although Mord. is the source of the ruling in O.Ḥ. too. It is quite possible that Caro in O.Ḥ. is dealing with a case where it is permissible to bring charges in the month of Nisan, e.g., where the accused was one of the townsmen or there was deliberate postponement and deception on the part of the accused party, in which case as stated here, it is permissible. Hence, in O.Ḥ. under the above conditions, it is not forbidden to bring charges — M.E. This interpretation is questioned by Ba’er Heteb a.l., for Isserles states here that even villagers who came from out of town are not to be tried whence we infer that much more so in the case of residents is this forbidden. M.E. may, however, be defended for in O.Ḥ. § 539, 3 Isserles does comment, viz., ‘He is permitted to bring charges (against his fellow) in (the place of) judgment on account of his debts.’ M.Abr. rejects the interpretation of M.E., for in O.Ḥ. we deal with bringing charges before a heathen Court, which is permissible during the Festival. This is what is meant by the term משפט (‘in the place of judgment’) employed in O.Ḥ. M.E. is defended by Shebuth Ya‘akob because M.E. refers to § 546 where Caro states the law without using the term משפט (‘in the place of judgment’), i.e., even before a Jewish Court. Maḥaẓith ha-Shekel and Peri Megadim defend M.Abr. for in O.Ḥ. § 546 too, the source is Mord. Tummim makes the following distinction: In the present ruling we deal with a case of one who not only brings charges against his fellow but also, demands that the matter be adjudicated, which is forbidden during this period; whereas in O.Ḥ. we deal with a case where the plaintiff demands payment and refers to a matter which is not contested by the accused party. Hence, it is permissible to be done on Ḥol ha-Moed — P.Tesh. and if we [are able to detect that] there is [deliberate] postponement and deception [on the part of the summoned party in order to avoid justice], we may adjudicate [the matter] forthwith.¹⁴Mord. to B.K. X beg. and Hag. Maim. — G. B.K. 113a: ‘R. Naḥman said: We never summon the participants of the Kallah (the assembly of Babylonian students in the months of Elul and Adar) to appear in Court during the period of the Kallah or the participants of the Festival sessions which are held during the festive season (which begins thirty days prior to the Festival). When plaintiffs would come before R. Naḥman (and requested that summonses be issued during this season) he would say to them: Have I assembled them for your individual benefit? But now that there are impostors (who take advantage of this privilege) there is apprehension (that they came to the assemblies for the sake of avoiding justice) !’ The last part of this statement, ‘and now that there are impostors’ is explained by Mord. to mean that we investigate the matter in order to determine whether there is a deliberate postponement or deception on their part in order to avoid justice. Hence, if we discover that this is really the case, we do fix a date for them to appear in Court during the Kallah and the festive sessions. There are some localities where the adopted custom is that if they had begun to adjudicate [the matter] before Nisan and Tishri, we may fix a date [for the continuation of the hearing] even therein,¹⁵e., during Nisan and Tishri. Although according to the reasons mentioned above for not summoning one to a judicial session during Nisan or Tishri there is actually no difference between the commencement of the trial or the conclusion thereof, yet, there is support for the custom mentioned here, in Mishna Shab. 9a: ‘If they began, they need not interrupt.’ Cf. also anon: ‘We do not try cases at night … but if they had begun to try monetary cases during the day, they may conclude at night.’ and wherever such is the custom it may be practiced.¹⁶Decisions of Isserlein s. 207 — G. We do not try cases at night with respect to the commencement of the trial, but if they had begun to try monetary cases during the day, they may conclude at night.¹⁷Mishna San. 32a. Gemara (ibid. 34b) : ‘Whence is this derived? R. Ḥiyya b. Papa said: From the verse, And let them judge the people at all times (Ex. XVIII, 22 i.e., even at night). If this is the case, then even the commencement of the trial may (be held at night) — It is as Raba expounded. For Raba pointed out an incongruity (between two verses) : It is written, And let them judge the people at all times (ibid.); but elsewhere it is written, And in the day that he causeth his sons to inherit (Deut. XXI, 16. Here day is emphasized whence it follows that not only cases of inheritance must be decided by day but likewise all civil claims. Hence, this verse contradicts the preceding one). How now is this (reconciled)? — The day is for the commencement of the trial, the night for the conclusion of the trial’ (for, and they shall judge … at all times implies rendering judgment which is the essential factor). In Resp. of Isserles he writes that if the contesting parties agreed to be judged at night, it is permissible to do so, for this should not be regarded different from a case where the litigants accepted as Judge a relative or one who is ineligible. For this reason we adopt the lenient practice nowadays to judge at night, for when the parties appear for trial and come willingly, it is regarded as though they accepted him. Hence, the proceedings may be held at night. Thus M.E. P.Tesh cites dissenting opinions. Caro’s ruling that ‘they may conclude at night’ has reference to cases where there was not enough time to complete the proceedings during the day — P.Tesh. Some say that if they violated [this ruling] and tried cases at night [even with respect to the commencement of the trial], their decision holds good.¹⁸RaShBaM (to B.B. 114a, s.v. אפילו) — G. Derived from Y. San. IV, 6(22b). Tosaf. Yeb. 103b, s.v. מר םכר emends text of Y., whence it follows that only the conclusion of the trial may be held at night but not the commencement of the trial. Hence, emended text of Y. according to Tosaf. corresponds to Babli San. 34b (v. supra n. 17). Cf. infra § 28, 24; San. 11b: The sanctification of the month must take place during the day. This is based on the verse, For this is a statute for Israel, a judgment of the G-d of Jacob. Thus we see that the sanctification of the month is equated to Judgment which is executed during the day. ShaK rules, contra the present ruling that if the entire legal proceedings were conducted at night, the decision is not valid.

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.

The Torah (Devarim 21:16-17) commands us to give a firstborn male a double portion of his father’s estate.²A full presentation of the details concerning the special entitlement of the bechor appears in Shulchan Aruch C.M. 277 and Pitchei Choshen 8:2. Thus, if the deceased was survived by five sons, the bechor receives two-sixths of the inheritance, and the other sons each receive one-sixth.