Powtórzonego Prawa 16:20 Halacha: Shulchan Arukh, Choshen Mishpat

It is a religious duty to say to the litigants at the outset, 'Do you wish [to resort to] law or [to submit to] arbitration?' If they consented [to submit to] arbitration, they bring about a settlement between them.⁷Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. And just as [the Judge] is cautioned not to pervert judgment, so too, is he cautioned not to direct the arbitration [in favour of] one party more than the other.⁸Thus Tur. Derived from San. 32b: ‘It has been taught: Justice, justice shalt thou follow (Deut. XVI, 20); the first (mention of justice) has reference to a verdict based on strict law; the second, to arbitration.’ , Rashi a.l., s.v. אבל קראי who writes that the second mention of justice means that the Judge should justify the arbitration according to what he sees with his own eyes. R.A.Eger states that just as in the case of strict law, if the Judge perverts justice through error, he must reconsider the case and retract from his former decision, so too, in bringing about an arbitration. Shebuth Ya‘akob reports the following case: A and B consented to submit their case to arbitration and entered into same by symbolic agreement (קנין), A contests the legality of the decision on the following grounds: a) According to strict law, A was obliged to take a number of oaths in order to justify himself in the eyes of the Court. When the matter was submitted to arbitration, it was ruled that A be exempt from the imposition of an oath on condition that he pay instead a certain amount of money. A, however, claims that B too, was originally obliged to take a number of oaths, — yet, in the latter case the arbitrator did not decide that he be exempt therefrom by paying money instead. In addition, A claims that certain oaths were overlooked entirely. b) The original agreement upon submitting the case to arbitration referred only to the elimination of oaths, but not to any other part of the case. However, according to the decision of the arbitrator, the settlement took into account the case as a whole. Hence, A contends that the entire decision is invalid. Responsum: Argument a) is not valid because undoubtedly the arbitrators have their reasons for acting thus only with respect to the oaths that A was required to take. Argument b), however, is a valid one and consequently, it must be reconsidered. We do not apply the principle that since one of the argument is valid then the whole case should be reconsidered. Should A, however, show that one argument depends upon the other, there is the possibility that the entire case must be reconsidered, but this must first be clearly established before invalidating the decision. Where the Judge is requested to arbitrate a case and render a decision that would be related to strict law (פשרה קרובה לדין), the law is that not more than one third less than the amount the defendant would have to pay according to strict law, is regarded a valid settlement in such a case. E.g., if according to strict law he would have to pay 300 dollars, then 200 dollars would be regarded as a valid settlement — P.Tesh. Every Court of Law that always brings about a settlement is considered praiseworthy.⁷Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. When does this apply?⁹San. 6b: ‘When do we regard a legal decision as rendered (so that arbitration is no longer permitted) ? — Rab Judah on the authority of Rab states: (When they say) : So-and-so you are guilty; So-and-so you are not guilty.’ — Before the conclusion of the trial, — even though one has heard their pleas and knows which way the judgment will incline, — it is a religious duty to attempt a settlement;¹⁰San. 6b-7a in agreement with the First Tanna contra R. Simeon b. Manasya. Caro’s ruling accords with the interpretation of Rashi, San. 6b, s.v. נגמר הדין contra Tosaf. Cf. infra n. 11. Suggesting a settlement is not regarded as deception on the part of the Judge, since a man is willing to forego a certain part of his claim as long as everyone will be at peace — M.E. but after the Judge concluded the trial and made the pronouncement, 'So-and-so, you are innocent, So-and-so, you are guilty,' he is not permitted to attempt a settlement between them.¹¹It is forbidden to say to one who was pronounced not guilty, ‘Make a settlement with the other party because I am afraid that I might have erred and the other Judges will reverse my decision’ — M.E. BaḤ agrees with Tosaf. contra Rashi (v. supra n. 10) that even before the pronouncement of the verdict, so long as the case has been thoroughly examined by the Judges, arbitration should not be proposed. ShaK opposes BaḤ, but the latter is defended by Bir. Yos., who shows that many other authorities agree with Tosaf. According to Tosaf., even if the Judge did not state to the guilty party, ‘Go and pay him whatever you owe him,’ it is still considered the ‘conclusion of the trial’ (v. B.K. 69a, B.M. 17a s.v. חייב). SeMaG, however, regards the trial as concluded only after this statement is made — ShaK. According to Shilte Geborim, even after the conclusion of the trial, if the Judges inform the litigants concerning the nature of the settlement, and the latter agree to submit the case to arbitration, it is permissible, provided there was no coercion. Moreover, it is considered a meritorious act — ShaK. Many other authorities, however, oppose Shilte Giborim — P.Tesh. However, another person who is not a Judge is permitted to attempt a settlement between them,¹²B.Yos. on the authority of Agudah. , San. 6b where both the First Tanna and R. Simeon b. Manasya use the second person, viz., ‘When two come before you for judgment,’ whence it follows that you refers to a competent Judge, but another individual who is not a Judge, is permitted to attempt a settlement. Cf. also San. ibid.: ‘Aaron loved peace, pursued peace and made peace between man and man, as it is written, The law of truth was in his mouth, unrighteousness was not found in his lips, he walked with Me in peace and uprightness and did turn many away from iniquity’ (Mal. II, 6) and cf. Tosaf., a.l., s.v. אבל who explain that since Aaron was not a Judge, because all matters of a legal nature were brought before Moses, then for him arbitration was permissible. [provided] that this is not [attempted] in a Court sitting that is appointed for the purpose [of holding] legal [sessions].¹³RaShBA, Resp. on the authority of R. Hai Gaon. For whatever is done in the presence of the Judges is regarded as if it were carried out with the consent of the Judges — M.E. If the Court of Law imposed an oath upon one of them, the Court of Law is permitted to bring about a settlement between them [even after the conclusion of the trial],¹⁴Thus Tur. so that [the one who is bound to take an oath] should be exempt from the responsibility thereof.¹⁵San. 6b, Tosaf. s.v. נגמר הדין. The Court of Law cannot compel one to fall in with [the principle of equity, i.e., actting] beyond the requirements of the line of justice, although that would appear to them to be the proper thing [to do].¹⁶B.Yos. on the authority of R. Yeruḥam and Asheri — G. Cf. the following passages: B.K. 99b: ‘Rabbah b. Bar Ḥanah said on the authority of R. Joḥanan : An expert slaughterer who did not slaughter properly (as a result of which the animal became ritually unfit for consumption) is held responsible even if he was as skilled as the slaughterers of Sepphoris… Did not Rabbah b. Bar Ḥanah state that a similar case came before R. Joḥanan in the Synagogue of Maon and he said to the slaughterer, Go and bring proof that you are an expert to slaughter hens and I will exempt you? — There is no difficulty. The latter law (has reference to a slaughterer who worked) gratuitously; the former (where the slaughterer does it) for hire… A certain woman showed a Denar to R. Ḥiyya and he informed her that it was good. Subsequently, she came to him again and said to him, I showed it later (to others) and they informed me that it was bad, and I could not pass it. He then said to Rab, Go and exchange it for a good one … R. Ḥiyya (although he was an expert and needed no further instruction in this matter, and consequently, would be exempt) acted beyond the requirements of the line of justice, as R. Joseph learnt: And shalt show them (v. Ex. XVIII, 20) refers to their livelihood; the way refers to acts of lovingkindness; they must walk refers to visiting the sick; wherein refers to burial and the work refers to law; which they must do refers to (acting) beyond the requirements of the line of justice.’ , also B.M. 30b in the case of R. Ishmael b. R. Jose. Hence, we see that acting beyond the requirements of the law, although it is derived from a Biblical text, and in the eyes of the Judges it would be the proper thing to do, yet, it cannot be enforced by the Court of Law. Cf., however, B.M. 83a: ‘Some carriers (negligently) broke a barrel of wine that belonged to Rabbah b. R. Huna (Thus Alfasi. Cur. edd. : ‘b. Bar Ḥanan’). Thereupon he confiscated their cloaks; so they went and told Rab about it. Give them back their cloaks, said the latter. Is this the law, he asked. Yes, he answered, That thou mayest walk in the way of good men’ (Prov. II, 20). Hence, we may ask why this is not derived from the above-mentioned text? RI of Orleans in B.K. 100a, Tosaf s.v. יפנים explains that acting ‘beyond the requirements of the law’ has reference only to a) a case where others under the same circumstances would be liable to pay but not he, as in the case of R. Ḥiyya and R. Ishmael b. R. Jose mentioned above, whereas in b) a case where there is no distinction between him and others (i.e., everyone would be exempt) as in the case of Rabbah b. Bar Huna, such action is merely a case of That thou mayest walk in the way of good men. Consequently, in a) acting beyond the requirements of the law is considered Biblical, whereas in b) it is based on post-Mosaic tradition. Hence, our present ruling refers to a). Cf. also B.M. 24b and Tosaf. s.v. לפנים. There are thus three degrees of acting beyond the requirements of the law: a) where the responsibility is such that it does not even come within the purview of acting beyond the requirements of the law. Consequently, one who out of equity acts thus, walks in the way of good men. E.g., the carriers who negligently broke a barrel of wine belonging to Rabbah b. R. Huna who suffered damages; b) where everyone would be exempt and should not even come under the category of acting beyond the requirements of the law, but since no damage was caused as in a), one should act beyond the requirements of the law. E.g., the case of the ‘found asses’ in B.M. 24b (v. passage infra n. 17) ; c) where everyone else would be held responsible, in which case acting beyond the requirements of the law is based on a Pentateuchal text, although such action cannot be enforced. E.g., the case of R. Ḥiyya. Our present ruling refers to c). , also BaḤ for other interpretations. However, some differ with [this opinion].¹⁷Mord. to B.M. II, — G. Derived from B.M. 24b: ‘R. Judah once went after Mar Samuel in a street of whole meal dealers and asked him: What is the law if one found a purse here? — (Mar Samuel) answered: It belongs to the finder. What is the law if an Israelite came and produced an identification mark? — (Mar Samuel) answered: He would be required to return it. Both (views contradict each other)! — (Mar Samuel) answered: One should act beyond the requirements of the law. So too, the father of Samuel found asses in a desert and (yet) he returned them after a year of twelve months: he (acted) beyond the requirements of the law.’ In this passage, the expression ‘it belongs to the finder’ (הרי אלו שלו) indicates that legally it belongs to the finder. Consequently, the subsequent statement ‘he would be required to return it’ (חייב להחזיר) refers to doing one’s duty towards G-d. In addition the expression ‘he returned them etc.,’ (אהדרינהו למרייהו) indicates thhat he did this on his own. Moreover, he was only obliged to return their worth (v. Tosaf., B.M. ibid. s.v. לבתר). Derived also from the case of the ‘carriers’ (B.M. 83a. Cf. passage quoted supra n. 16), since it is not stated that they came before Rab for trial but rather ‘they went and told Rab about it,’ i.e., to use his influence by means of words of persuasion. Thus also Asheri to B.M. II who considers this a case of acting beyond the requirements of the law and cites the Biblical text which they must do (v. supra n. 16) and would be contra Tosaf. Hence, according to this opinion all cases of acting beyond the requirements of the law are similar and in all cases mentioned above we cannot compel anyone to act beyond the requirements of the law. The interpretation here follows W.G. and Be’er Eliyahu. , BaḤ for other interpretations.

If both parties to a lawsuit are stubborn, one saying, 'Let us go to law here,' and the other saying, 'Let us go to the Supreme Court of Law,'¹Yad, Sanhedrin VI, 6 adds: ‘Lest these Judges err and exact payment illegally.’ they compel him²The one who demands to go to the Supreme Court of Law. and he attends the Court in his home town.³Yad ibid. Derived from San. 31b: ‘R. Safra said on the authority of R. Joḥanan: If two litigants are in obdurate dissension regarding (the venue of) a lawsuit, one saying, Let us go to law here, and the other saying, Let us go to the place of Assembly, they compel him (the one who demands to go to the place of Assembly) and he attends the Court in his home town.’ According to Maim. (Yad ibid.) followed here by Caro no distinction is made between the Supreme Court of Law (Beth Din ha-Gadol) and the place of Assembly (Beth ha-Wa‘ad, a meeting place for scholars). Tosaf. (B.K. 112b, s.v. מצי); Asheri; Tur and RaShaL state that this ruling has reference only to the place of Assembly, viz., that only when the plaintiff demands of the defendant to go to the place of Assembly, the latter must submit but not if the defendant demands it (even if he offers to defray the travelling expenses. Thus N). However, if the defendant demands to have the case tried by the Supreme Court of Law, and needless to say if the plaintiff makes this demand, he is obeyed. Cf. also Isserles anon — M.E., ShaK. Cf. supra § 3, 1, n. 11 and B.K. 112b. And if he stated, 'Write down the reasons for your verdict and give [them] to me, for you may have erred,' — they write [them] down and give [them] to him⁴Yad ibid. Derived from San. ibid.: ‘If he (the litigant who was compelled to attend Court in the plaintiff’s home town) stated: Write down the reasons for your decision and give them to me (in order to establish the legality of the verdict), they write them down and give him the document.’ Only the arguments of the litigants and the verdict are recorded. For only when the litigant doubts the impartiality of the Judge, the latter must inform him the grounds of his verdict (B.M. 69a-b). , infra par. 4, Gloss. The Court must state in the written verdict that they give permission to examine the verdict. Otherwise, it is forbidden to judge a case where the verdict had already been given by others because of the principle that ‘one Court of Law is not careful in its examination of a case already tried by another Court of Law’ (בי דינא בתר בי דינא לא דייקא), v., Yeb. 106a; B.B. 138b: ‘We are not afraid of (i.e., we do not provide against) an erring Court of Law.’ Needless to say that a written verdict is given only by a smaller Court. The reason why Isserles does not explain this here (viz., that only the arguments and the verdict are recorded) is simply because here we deal with a case where one was compelled to attend the local Court. Hence, it is understood that the defendant has a right to ask for this document — M.E. However, where the defendant was not compelled to be tried, but appeared willingly, then even a smaller Court is not required to give the verdict to the litigant in writing even for the purpose of referring the case to the Supreme Court of Law — A.H. and afterwards they exact payment from him [in accordance with their verdict].⁵Payment must be made forthwith, and if he subsequently produces written evidence from the Supreme Court wherein it is stated that the local Court erred, they must return his money. , infra par. 4, Gloss and D.M. a.l. — M.E. Cf. B.B. 41b: ‘R. Kahana retorted: I can bring you a letter from the West (i.e., the Land of Israel, from the Supreme Court) that the Halachah does not rest with R. Simeon b. Eleazar. Said R. Judah to him: (My verdict stands) until you produce it.’ Thus we see that the verdict is enforced immediately. If A and B appeared for trial and the Judge required B to take an oath in order to disprove A’s claim, whereupon B demands that the Judge give him a document stating the grounds on which he is required to take an oath, the law is that B is legally justified in his demand. Hence, they give him the document and exact payment from him forthwith. Needless to say that we deal here with a case where the defendant was compelled to appear in the local Court — P.Tesh. If it was necessary to consult the Supreme Court of Law, they set down [their inquiry] in writing and send it on and seek advice [from them],⁶, supra § 13, n. 28. This means that even if the members of the local Court are unversed in the laws of adjudication and they must consult the Supreme Court, nevertheless, the defendant cannot argue that since they are unversed in the laws and in order to avoid unnecessary expenses in sending messengers to the Supreme Court, the litigants should go directly to the Supreme Court — M.E. and they [the inquiring Court of Law] try them [the litigants] in their own town according to the [ruling contained] in the document of the Supreme Court of Law,⁷, supra § 13, 6, n. 15. and both litigants pay the messenger's fee.⁸Cf. Mishna B.B. 167b. The reason being that both parties are vitally interested in having the matter clairified. Consequently, they must share the costs. , Be’er Eliyahu. Gloss: However, if one of the litigants or the Judges desires to send [the inquiry] to a distant country while there is a scholar close by them who is worthy to try the case, — [then] they send [the inquiry] to the one close by, although the one who is at a distance is a greater scholar, for he [the litigant] has no authority to be the cause of a loss to his [fellow-] litigant, [viz.,] to increase the fee for the message [dispatched], and so much the more if there is another scholar in their town who is worthy to adjudicate [the case].⁹Mord. to San. III end — G. Derived from San. 23a in accord with R. Papa’s interpretation (v. text supra § 13, n. 6) according to which the debtor must not put the creditor to additional trouble (and similarly additional expenses. , Be’er Eliyahu a.l.) and likewise in the case of two litigants where there is a local authority available. Cf. also Y. San. III, 2(21a): ‘R. Eleazar stated: If one (litigant) demands to attend Court in Tiberias and the other (litigant) demands to be tried in Sepphoris (where there was a more renowned Court), we comply with the request of the one (who wishes to be tried) in Tiberias … R. La said … this (has reference only to a case) where they dwell in the same city (according to others ‘the same distance’ from both cities), i.e., from here (the locality of the litigant) to here (Tiberias) there are nine Mils and from here (the locality of the other litigant) to here (Sepphoris) there are (also) nine (Thus version of N.Yos.) Mils.’ Hence, if Tiberias would be farther away than Sepphoris the litigant cannot be compelled to be tried in Tiberias despite the fact that it possesses a more renowned Court of Law. If two Scholars are close by at an equal [distance], we accept as authority the greater one.¹⁰N.Yos. to San. III beg. — G. Derived from Y. San. ibid. , previous note. When does this apply?¹¹That neither litigant may be compelled to attend the Supreme Court of Law. — In connection with other laws, [viz.,] where one [litigant] is a claimant and the other [litigant] is [also] a claimant, or where the creditor says,¹²Thus M.E. Cur. edd. have ‘said.’ 'Let us attend Court here,' and the debtor says, 'Let us go to the Supreme Court of Law;'¹³But if the creditor is going there in any case he may be compelled to be tried by the Supreme Court — M.E. and Nethiboth contra ShaK who on the authority of BaḤ rejects this and rules that the creditor may compel the debtor to be tried by the local Court even if the creditor has to be in the vicinity of the Supreme Court in any case. The present ruling is derived from San. 31b: ‘When R. Dimi arrived (from the Land of Israel), he stated on the authority of R. Joḥanan: One who forces his fellow to stand with him for trial (Thus Yad Ramah), and one of them (the more powerful one) says, Let us attend Court here, while the other says, Let us go to the place of Assembly (v. supra n. 3), he is compelled to go to the place of Assembly. R. Eleazar said in his presence, Rabbi! One who has a claim against his neighbour in the amount of a Maneh, must he expend another Maneh in addition to the (first) Maneh (in travelling expenses)? (Certainly not), but he is compelled to be tried (by the local Court) in his (the creditor’s home town.’ Ibid.: ‘Amemar said: The law is that he (the plaintiff) is compelled to go to the place of Assembly. Said R. Ashi to him: Did not R. Eleazar say, He (the defendant) must attend Court in his (the plaintiff’s) home town? — This applies only where the debtor demands of the creditor (to be tried at the place of Assembly); but if the creditor (demands this, the debtor must yield, because) ‘The borrower is servant to the lender (Prov. XXII, 7).’ We thus see that only where the reason ‘the borrower is servant to the lender’ applies that we compel the debtor to go to the place of Assembly if such is the creditor’s wish; but where this reason is not applicable, e.g., where both litigants are claimants, they are tried in the local Court. This follows Maim. and Caro’s interpretation of place of Assembly (v. supra n. 3). but if the creditor said, 'Let us go to the Supreme Court of Law,' — they compel the debtor and he goes up with him [the creditor].¹⁴For only in the case where both are claimants we do not obey the wish of the one who demands to be tried before the Supreme Court (cf. the expression שנים שנתעצמו in San. ibid.). And this applies both to a claim regarding a loan, robbery or damages, since they are both claimants concerning aught which is not in the possession of either of them. In short, it is not firmly established that one of them is a defendant (נתבע), but both are claimants (זה טוען וזה טוען), in which case we do not yield to the demands made by the one who says, ‘Let us be tried by the Supreme Court.’ However, where the litigants fall into the category of a claimant (תובע) and a defendant (נתבע), then we submit to the demand of the claimant — TaZ. Cf. M.E. Likewise, if one party claimed that one injured or robbed him and the claimant wishes to go up [and have the case tried by the Supreme Court of Law], [then] the Court of Law that is in his town compels the defendant to go up with him, and so too, in all analogous cases.¹⁵Yad, Sanhedrin VI, 7. For in these cases too, the defendant is a servant of the claimant until he pays for the damages or establishes that he was not the cause of the damages. Cf. San. 31b regarding the message that was sent to Mar ‘Ukba in Babylon by the Court of Israel with respect to ‘Ukban, the Babylonian, who complained that his brother Jeremiah wronged him, and instructions were given to ‘Ukban to try him in Babylon, and should the latter not accept the verdict, to see to it that he appears before the Court in Tiberias. Thus we see that not only in the case of a creditor and debtor may we compel the defendant to be tried in the Land of Israel before the Supreme Court, but also in all other cases of injury. Thus also Ket. 16b, Tosaf. s.v. כותבין; Asheri to San. ibid. Cf. Ket. 41b; B.K. 15b. N.Yos., however, holds that the principle ‘the borrower is servant etc.,’ applies only to loans but not to other types of injury. [Furthermore,] when does this apply?¹⁶That the defendant may be compelled to attend the Supreme Court of Law. — When the one robbed or the one who was injured or the creditor produce witnesses or proof [to substantiate their claim],¹⁷So that not everyone should make a claim against his fellow and demand to be tried before the Supreme Court of Law in order that the defendant who will have to lose time and money by going there be forced to make a settlement with the claimant. but [where the claimant puts forth] an unfounded claim, we do not require the defendant to leave at all save that he takes an oath and is free [from payment].¹⁸Since the principle the borrower is servant to the lender does not apply because we have no proof that he is a borrower. So too, is the law nowadays when no Supreme Court of Law exists there.¹⁹Yad, Sanhedrin VI, 9. Derived from San. 32b: ‘Our Rabbis taught: Justice, justice shalt thou follow (Deut. XVI, 20) means, Follow a renowned Court of Law, e.g., (follow) R. Eliezer (b. Hyrkanus) to Lydda, R. Joḥanan b. Zakkai to Beror Hail.’ Some say that an eminent Court of Law in every generation according to whatever standing it may have, is regarded as the Supreme Court of Law.²⁰Tur — G. Isserles informs us here that even according to Maim. who makes no distinction between the Supreme Court of Law and the place of Assembly (v. supra n. 3) refers in his ruling to localities in the same province, because nowadays we have no power to compel one to leave one province and be tried in another province as was the case when the Supreme Court was in existence. This follows from the fact that Maim. does not employ the term מדינות (provinces) but rather מקומות (localities). Hence, Isserles adduces a dissenting opinion (Asheri, Tur) that even nowadays a renowned Court of Law (בית דין חשוב) has the same authority as the ancient Supreme Court. Consequently, one may be compelled to be tried in another province — TaZ. However, if there are localities in that province²⁰Tur — G. Isserles informs us here that even according to Maim. who makes no distinction between the Supreme Court of Law and the place of Assembly (v. supra n. 3) refers in his ruling to localities in the same province, because nowadays we have no power to compel one to leave one province and be tried in another province as was the case when the Supreme Court was in existence. This follows from the fact that Maim. does not employ the term מדינות (provinces) but rather מקומות (localities). Hence, Isserles adduces a dissenting opinion (Asheri, Tur) that even nowadays a renowned Court of Law (בית דין חשוב) has the same authority as the ancient Supreme Court. Consequently, one may be compelled to be tried in another province — TaZ. wherein there are distinguished Scholars recognized as authorities by the public, and [there are also] localities wherein there are disciples who are not [as distinguished] as they, — [then] if the creditor stated, 'Let us go to a certain locality in a certain country to So-and-so, the distinguished personage, and attend Court before him, — [the law is that] we may compel the debtor [to submit to the creditor's demand] and he goes with him. Gloss: [Provided] if the claimant produces witnesses or proof [to substantiate his claim]²¹This is in accord with Maim. interpretation (v. Caro supra) that just as in the times of the Supreme Court of Law if the claimant had witnesses or other substantial evidence in which case he could compel the defendant to go with him to the Supreme Court of Law, so too, nowadays any authoritative Court of Law falls into the same category. Hence, the claimant may compel the defendant to be tried there — M.E. or²²Thus M.E. , supra § 8, n. 2. it appears to the Court in his home town that there is substance in his claims, but otherwise he [the defendant] is not compelled to go with him.²³Tur — G. And some say that [with respect to] claims put forth [by contesting parties], [viz.,] 'Let us attend the Supreme Court of Law,' there is no difference between a claimant and a defendant, and [the law is that] each one [of the litigants] can compel his fellow [-litigant] to go with him.²⁴Tur on the authority of R. Tam. — G. , supra n. 3. All this is [applicable] from the legal point of view, but nowadays it is already the adopted custom that as long as there is a Court of Law in town, one [litigant] cannot compel his fellow [-litigant] to go with him to another Court of Law,²⁵MaHaRIK Rt. 21 — G. Those who have burial plots reserved in that city are treated as coming under the jurisdiction of the local Court of Law (Isserlein) — M.E. for now we have no Supreme Court of Law or House of Assembly.²⁶For the litigant who demands that he be tried before another Court of Law might be an impostor and deliberately wishes to postpone the case. Cf. B.K. 113a and supra § 5, n. 14. Therefore, [the defendant] cannot put him off; but he [the defendant] can put him off, [i.e.,] not to attend Court with him [the claimant] until the third day.²⁷This applies only if he advances a plausible explanation for the postponement and has reference to people who live in country towns and depart from and return to the city, but not to those who live in the same city — M.E. , supra § 11, 1 and notes. However, they choose the Judges forthwith.²⁸Judges are chosen forthwith so as not to delay the matter on the third day — M.E. But a [transient] lodger who makes a claim against the townspeople, or two [transient] lodgers [who sue each other, — the law is that] one must attend Court with him forthwith and one cannot put him off.²⁹Mord. on the authority of R. Samson of Sens — G. , supra n. 26. , however, N to Deut. XIV, 18 who states that if the two litigants are from another city, they can each demand to be tried before the Court of Law in their own city which contradicts the present ruling. It seems therefore, that in the present ruling we deal with a case of two guests (transient lodgers) from two different cities. Hence, if we do not compel them to be tried here, it will be difficult for the plaintiff to find the defendant later; while N deals with two litigants who are both from the same city where this problem does not arise — P.Tesh. Likewise, a townsman who makes a claim against a [transient] lodger, — [the law is that] wherever he finds him and there is a Court of Law there, he [the townsman] may force him [the lodger] to attend Court in that place.³⁰MaHaRIK Rt. 14 — G. All this is [applicable] when there is a Court of Law [available] in their home town, but if there is no Court of Law [available] there, each one [of the litigants] can force his fellow [-litigant] to go with him to a Court of Law to be tried with him.³¹Mord. to San. III end and Decisions of Isserlein s. 65 — G. The claimant must go after the defendant if the latter is in another city, although in the claimant's home town the Court of Law is more eminent,³²MaHaRIK Rt. 1 — G. Derived from B.K. 46b: ‘R. Samuel b. Naḥmani said: Whence do we derive that on him (the claimant) that would exact aught from his fellow lies the burden of proof (onus probandi)? For it is said: If any man have any matter to do, let him come unto them (Ex. XXIV, 14), (which implies): Let him bring proof before them. But R. Ashi objected: Do we require a Scriptural verse to inform us this? Is this not founded on reason that he who feels sick goes to the physician?’ Likewise, in the present ruling the claimant who ‘has pains’ must go to the city of the defendant. and even [if] the defendant had money in [the form of a] bailment in the claimant's home town or in another town, unless he [the claimant] can retain³³By means of a saisie-arret. This, of course, means that the claimant must be able to show that he has a right to seize the money, e.g., where he will not be able to take the defendant to law later or where there are other logical reasons for going through with the seizure (v. infra § 73, 10). If after the money was seized the defendant demands his money, he must then go to law with the claimant in the local Court where the money was seized — M.E. his [the defendant's] money in his home town, [and if so,] it is then necessary to inform the defendant thereof³⁴And the expense for sending the message to the defendant must be defrayed by the claimant — M.E. and consequently, he [the defendant] must attend Court in the locality wherein his money [is found].³⁵Terumath ha-Deshen s. 305 and in Decisions of same s. 62 — G. MaHaRIK writes that the custom has spread to seize the defendant’s money wherever it may be. Accordingly, it seems that the claimant may sue the defendant wherever he seized the money. Cf., however, Isserles infra § 73, 10 whence this inference does not follow — M.E. Although the defendant now becomes a claimant, nevertheless, he cannot appoint a mandatory (מורשה) to act on his behalf — P.Tesh. , infra § 73 [wherein] I wrote when [it is possible that] he [the claimant] can retain³³By means of a saisie-arret. This, of course, means that the claimant must be able to show that he has a right to seize the money, e.g., where he will not be able to take the defendant to law later or where there are other logical reasons for going through with the seizure (v. infra § 73, 10). If after the money was seized the defendant demands his money, he must then go to law with the claimant in the local Court where the money was seized — M.E. his [the defendant's] money. A father [or mother]³⁶Thus A.H. who has a claim against his [or her] son, [the law is that] the son, although he is the defendant, must go after his father [or mother] as has been explained.³⁷Y.D. § 240, 8 — G. This applies even if the father has a claim against another person in the same locality where his son lives. The travelling expenses, however, must be paid by the father (Y.D. ibid.). Cf. Kid. 31a and Tosaf. s.v. וטורדו. The same ruling applies to a distinguised teacher (רב מובהק) and his disciple — P.Teah. A wealthy individual who is known as a stern person³⁸e., all fear him and are partial towards him. Cf. supra n. 15 and § 13, n. 27 end. This applies equally whether he is the plaintiff or the defendant and despite the fact that the members of the local Court are very learned, — for we apprehend that because of his influential position they will not render an impartial verdict. However, if he is not a powerful person but is only highly respected in his city on account of his wealth or wisdom and his fellow-litigant demands to be tried in another city, then it depends upon the discretion of the Judges, viz., that if they really feel that they might be partial towards him, he may be compelled to attend Court in another city; if not, they try him here — P.Tesh., A.H. in his home town, is taken out to be tried in another city, although the Court of Law in his home town is more eminent.³⁹Benjamin Ze’eb s. 418 — G.

The Judge before whom a lawsuit comes [up] which he knows to be fraudulent, should not say, 'I will decide it [in accordance with the testimony of the witnesses] and the collar¹²Heb. קולר from the Lat. collare, ‘collar,’ the Roman prisoner’s iron collar or chain around the neck. [of responsibility], i.e., the chain of guilt, will hang around the neck of the witnesses.'¹³Yad, Sanhedrin XXIV, Derived from Sheb. 30b-31a: ‘Whence do we know that a Judge who knows that a lawsuit is fraudulent (having reached a conclusion from the testimony of the witnesses that they spoke falsely), should not say, Since the witnesses bear testimony, I will decide the case (in accordance with their testimony) and the collar (of responsibility) will hang around the neck of the witnesses? — For it is said: From a false matter keep far (Ex. XXIII, 7).’ In what manner should he act? — He should investigate and inquire into the matter closely by means of [the methods employed in the] cross-examination and investigation of capital cases.¹⁴San. 32b: ‘R. Papa stated (in reconciling the views of the Mishna [San. 32a] that both monetary and capital cases require examination and inquiry, and the Baraitha [ibid.] according to which examination and inquiry in civil suits are not necessary) … In our Mishna the lawsuit is fraudulent (therefore, there must be a thorough examination and investigation), but in the other (Baraitha) the lawsuit is not fraudulent. This accords with Resh Lakish, for Resh Lakish pointed out an incongruity (between two verses): It is written, In justice (E. ‘righteousness’) shalt thou judge thy neighbour (Lev. XIX, 15); and (elsewhere) it is written, Justice, justice shalt thou follow (Deut. XVI, 20. The repetition of the word justice indicates a more thorough investigation). How is this possible? — The latter verse refers to a lawsuit that is fraudulent; the former verse to a lawsuit that is not fraudulent.’ However, this passage contradicts the passage in Sheb. ibid. (v. previous note) according to which the Judge is required to withdraw from adjudicating a fraudulent lawsuit. There are in the main three views held among the Codifiers in order to reconcile these two Talmudic sources. a) Tosaf. (San. 32b, s.v. כאן) maintain that in Sheb. we deal with a lawsuit that we know to be fraudulent. Hence, the Judge is obliged to withdraw from such a case; while in San. we deal with a lawsuit that is suspected of being fraudulent. Consequently, examination and inquiry are required in order to determine for certain the fraudulence in the case. b) Maim. (Yad, ibid.) holds that both in Sheb. and San. we deal with a fraudulent lawsuit only that in Sheb. examination and inquiry had already been applied (note the expression ‘A Judge who knows that a lawsuit is fraudulent).’ Consequently, we apply the verse, From a false matter keep far and the Judge must withdraw from the case. In San., however, we deal with a fraudulent lawsuit where examination and inquiry were not conducted as yet. Accordingly, there is no difference whether the plaintiff made a fraudulent claim or whether the defendant presents a dishonest case, — the Judge must withdraw. And although the defendant may benefit according to this view, nevertheless, we are not responsible (This perhaps explains the version found in some texts of Yad ibid.: וידון אותו מלכו של עולם ‘Let the King of the world judge him’ instead of וידוננו מי שלבו שלם ‘One whose heart [intelligence] is perfect should judge it.’ In other words, even if the defendant will benefit, the ‘King of the universe’ will eventually see that justice is carried out). c) Asheri reconciles the passages as follows: In Sheb. the plaintiff is the one who makes the false plea. Therefore, the Judge should withdraw; while in San. we deal with a case where the defendant is a fraudulent person. Hence, in order for the latter not to benefit, the Judge must not withdraw. , infra par. 4. Gloss: Nevertheless, the law [of cross-examination in this case] is not [as strict] as [in] capital cases where if [a witness] stated during one of the inquiries, 'I know not,' that the testimony becomes void; but what is meant to be said is that he [the Judge] should inquire into a fraudulent lawsuit as much as it is possible.¹⁵RIBaSh s. 266 — G. If it appears to him [the Judge] according to his understanding that there is fraud therein, or where his common sense [directs him] not to rely upon the statements of the witnesses although he cannot [find grounds] to disqualify them, or where his [practical] judgment inclines [to assume] that this litigant is a deceiver and a cunning person and mislead the witnesses although they are eligible [witnesses] and gave evidence in ignorance of its legal bearing, and this party [the deceiving litigant] led them astray, or it appears to him [the Judge] from the general contents of the statements that there are other concealed matters therein and they are not willing to reveal them, — [then the law is that in] all these [aforementioned] matters and anything similar to these, he is forbidden to render a legal decision in that lawsuit, but he should withdraw from this case and one whose heart [intelligence] is perfect in [the examination of] such a case should judge it and these are matters entrusted to the heart [intelligence].¹⁶Yad ibid. followed by Tur who also cite, For the judgment is G-d’s (Deut. I, 17). When Asheri would notice on the basis of a well-grounded assumption that the lawsuit is fraudulent, he would prepare a document and place [it] in the possession of the defendant [to the effect] that no Judge should make an effort to try this lawsuit.