Halakhah к Шмот 22:8

The Torah (Shemot 22:8) commands that the litigants’ “words should be spoken to the judges.” The Mechilta comments that this verse teaches that the litigants (ba’alei din) may not use lawyers in beit din. The Torah Temimah explains:

The commandment on the court to judge the case of a plaintiff and a defendant: That we have been commanded to judge the case of a plaintiff and a defendant in a court, meaning to say that we adjudicate the case of anyone who makes a claim against his fellow about anything - or that he lent him or deposited with him or that [the other] stole from him or exploited him or extorted him - as it is stated (Exodus 22:8), "About any misdeed, etc. about which he will say that this is it." And the explanation comes about this expression of "that this is it," that we do not make an oath by writ of the Torah unless the defendant admits to part of the loan. But if he says, "There never were [such] things," or " I returned it all," with a loan and even with a deposit, he is exempted from an oath by writ of the Torah (Bava Kamma 106b). And this is what they, may their memory be blessed, said in the Gemara (Bava Kamma 107a) that when it is written, "that this is it," it is written about a loan; meaning to say about the claim of a loan, which is that I paid it or that there were never [such] things. But about the claim of guardians - which is a claim of matters beyond his control or [of] theft - even if he does not admit to part [of the claim] but rather says that everything was beyond his control, he is obligated to take an oath. And included in this verse are all of the claims between people that bring with them admission or denial.

To not curse the judge: To not curse the judges, as it is stated (Exodus 22:27), "Lords (elohim) shall you not curse." And the understanding of elohim [here] is judges, as [in] (Exodus 22:8), "that the elohim deem guilty." And the verse [chose] this expression [which can also mean, God], so that another negative commandment would be included in this negative commandment, and that is the negative commandment of 'blessing' God. As they, may there memory be blessed, said in the Mekhilta and the Sifri, "The warning for 'blessing God' is from that it is written, 'Elohim shall you not curse.'" And that which is written in another place, "And the one that blasphemes the name of the Lord will surely die" (Leviticus 24:16), is [the mention of] its punishment. But the warning (prohibition) is from here. As mention of the punishment of a commandment without its warning is not sufficient for us. And this is what our Rabbis, may their memory be blessed, always said (Sanhedrin 54a), "We have heard the punishment, from where is the warning?" And the matter is because of this: That if the prevention of God did not come to us in the matter, but it would [only] state, "One who does thing x will be punished with this," it would be implied that there is permission to transgress the commandment in the hand of anyone who is willing to take the punishment and is not concerned with his pain, and that he will not go against the will of God and His commandment with this. And [so] the matter of the commandment will turn into a type of give and take, meaning to say that one who wants to do thing x, can give such and such and do it, or bare his shoulder to suffer such and do it. And the intention of the commandments is not like this, but rather that God prevented us from things for our [own] good, and informed us in some of them of the punishment that comes to us immediately, besides transgressing His will, which is weightier than anything. And this is [the meaning] of that which they, may their memory be blessed, said in every place (Yoma 81a), "He did not punish, unless He warned," meaning to say, God did not inform of the punishment that comes for a sin, unless He first informed us that His will is that we do not do that thing for which the punishment is coming.

And this prohibition is practiced in every place and at all times by males and females. And one who transgresses this negative commandment is obligated to pay, as is explicit in Scripture (Exodus 21:37, 22:3). If he stole a gold coin or clothing or a donkey or a camel, he pays twice their value, and it comes out that he loses that which he sought to remove from his fellow. And payments of double are practiced for everything except for an ox and a sheep, as there are situations in which he pays four and five for them - such as if he slaughtered or sold [them], as appears clearly in Scripture. And when he pays double - or four or five for an ox and a sheep - it is specifically when witnesses testified about him, and he paid according to their [testimony] in a court. But one who admits on his own (Bava Kamma 75a) is exempted with the payment of the principal alone, as it is stated (Exodus 22:8), "the one that the powers deem guilty shall pay two" - and they, may their memory be blessed, expounded (Bava Kamma 64b), "To exclude one who deems himself guilty." And this is the law for all penalties, that one who admits [his guilt] is exempt. And I have already written above (Sefer HaChinukh 49) that we only judge cases of penalties in the Land.