Halakhah sa Exodo 21:1: Shulchan Arukh, Choshen Mishpat, Gray Matter II, Gray Matter III & Shev Shmateta

Nowadays¹e., after the dissolution of the Jewish Commonwealth. Derived from Git. 88b; B.K. 84b; San. 2b-3a, according to which non-Mumḥin (v. infra. n. 13) may adjudicate cases of admissions and transaction of loans which are matters of frequent occurrence and involve a monetary loss, thereby carrying out the commission of the Sanhedrin of the Land of Israel. The present ruling applies today to the Land of Israel too. Cf. Git. ibid., Tosaf. s.v. במלתא. Thus also Asheri and Tur. The underlying reason for this law is given by the Codifiers as follows: ‘Judges and officers thou shalt make thee in all thy gates which the Lord thy G-d giveth thee tribe by tribe (Deut. XVI, 18. This has reference to the Land of Israel only) — (this means that) in your gates (i.e., in Israel) tribunals should be set up in every district as well as in every city. However, outside the Land (of Israel) you should set up tribunals in every district but not in every city’ (Mak. 7a). This, of course, applied only to those times when the original form of ‘ordination’ (Semikah, סמיכה) was in vogue, but nowadays all judges have no authoritative power to adjudicate legal questions Biblically, as it is written, — ‘And these are the judgments which thou shalt set before them (Ex. XXI, 1) — before them (i.e., authoritative judges, specially ordained) and not before non-Mumḥin (laymen judges)’ — Git. ibid. Consequently, today we merely act as agents of the former authoritative judges and deal only with matters of frequent occurrence which also involve a monetary loss (Tur) — M.E. On the question whether we carry out today the commission of the former duly ordained judges Rabbinically or Biblically, there is a difference of opinion among the Codifiers. N and RaShBA hold that our commission is Rabbinical. Nethiboth maintains that it is Biblical. the Judges may adjudicate cases of admissions²Heb. הודאות admissions. This refers to proceedings resting on evidence of witnesses attesting to the defendant’s admission of his indebtedness. הלוואות transaction of loans has reference to evidence offered by witnesses who were present at the time of the transaction of the loan. Today the judges may also deal with cases where there are no witnesses, e.g., where one has to take a consuetudinal or equitable oath (שבועת היסת i.e., if one who is sued for a debt denies the latter entirely (כופר הכל) in contradistinction to the legal or Biblical oath which is required when the defendant admits a part of the claim (מודה במקצת), it being presumed that nobody will go to law unless he have a claim. Consequently, it is a matter of equity to put the opponent to an oath, to which he may in turn put the claimant — M.E. and transaction of loans,²Heb. הודאות admissions. This refers to proceedings resting on evidence of witnesses attesting to the defendant’s admission of his indebtedness. הלוואות transaction of loans has reference to evidence offered by witnesses who were present at the time of the transaction of the loan. Today the judges may also deal with cases where there are no witnesses, e.g., where one has to take a consuetudinal or equitable oath (שבועת היסת i.e., if one who is sued for a debt denies the latter entirely (כופר הכל) in contradistinction to the legal or Biblical oath which is required when the defendant admits a part of the claim (מודה במקצת), it being presumed that nobody will go to law unless he have a claim. Consequently, it is a matter of equity to put the opponent to an oath, to which he may in turn put the claimant — M.E. marriage contracts,³Containing among other things, the settlement of a certain amount due to the wife on her husband’s death or on being divorced. Heb. Kethubah (כתובה), — the wife’s settlement. inheritances,⁴Thus Asheri and Tur derived from San. 3a, Tosaf. s.v. שלא. gifts⁴Thus Asheri and Tur derived from San. 3a, Tosaf. s.v. שלא. and damage done to another person's chattel,⁵Yad, Sanhedrin V, 9 derived from B.K. ibid. which are matters that are of frequent occurrence and involve a monetary loss;⁶In the case of ‘inheritances’ and ‘gifts’ which are of frequent occurrence there is also the possibility of a loss involved, for no doubt the claimant must have rendered some service to the bequeather or the donor (Thus A.H.). The underlying reason in the case of admissions and the transaction of loans is ‘in order not to shut the door against borrowers’ (שלא תנעול דלת בפני לווין). For a creditor will refuse to grant a loan should he find it difficult to collect his debt. The same reason applies to the other matters enumerated here. This (viz., that we deal only with matters of frequent occurrence which involve a monetary loss) has reference only to monetary claims. But in the case of other important matters, such as, accepting converts, although it is of infrequent occurrence, or in the case of compelling an obstinate husband to grant his wife a divorce although it does not involve a monetary loss, the law is that we may deal with such cases — M.E. but matters that are not of frequent occurrence although they involve a monetary loss,⁷Yad ibid. e.g., cattle that injured other [cattle],⁸As a result of goring with the ‘horn’ (קרן) which is of infrequent occurrence. This, of course, refers not only to damage caused by ‘horn’ but also to all other types of injury or damage of infrequent occurrence (e.g., damage caused by ‘fire’ and ‘pit’ (אש זבור) — Shak. Mishna B.K. I, P.Tesh., however, cites authorities who permit a Jewish Court today to deal in matters pertaining to damage caused by ‘fire’ and ‘pit’). This form of damage is called חבלה. Hence, the term שחבלה used here. In the case of damage or injury which is of frequent occurrence and involves a monetary loss, the legal term used is היזק. infra par. 3 — M.E. or matters that do not involve a monetary loss although they are of frequent occurrence,⁷Yad ibid. e.g., the repayment of the double amount,⁹e., the additional amount to be paid as fine on restoring stolen goods (Ex. XXII, 3; 6-8). This is derived from San. 8a where it is stated that cases of fine must be dealt with by three authoritative Judges (Mumḥin), but not laymen Judges. The repayment of the double amount (תשלומי כפל), it may be asked, in any case belongs to the category of fines (קנסות) mentioned anon, and the payment thereof is collected only by authoritative judges (Mumḥin)? Furthermore, Tur has בושת i.e., payment for indignity suffered which is of frequent occurrence although there is no monetary loss involved. Likewise, in the foregoing example of matters of infrequent occurrence although there is no monetary loss involved, Tur has ‘e.g., if a man injured another man’ instead of Caro’s example (following Maim. in Yad ibid.) ‘cattle that injured other cattle’. The difficulty may be removed if we understand our text as follows: First Caro states examples (e.g., the repayment of the double amount and cattle that injured other cattle) which are specifically of a penal nature (קנס) and then the general proviso, ‘and likewise all fines’ which the Rabbis equated to these examples. Consequently, the examples cited by Tur are included in the general statement concerning fines — M.E. and likewise, all fines that were imposed by the Sages,¹⁰B.K. ibid. dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. as [in the case of] one who boxes his neighbour's [ear] — The meaning [of Toke'a should be understood as] 'He shouts in a [loud] voice into his [neighbour's] ear and frightens him¹⁰B.K. ibid. dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. — or as [in the case of] one who slaps his neighbour — e., He strikes [him] with his hand on the cheek¹¹, Mishna B.K. VIII, 6(90a). Cf. infra § 420, 4 Caro adopts Maim. (Yad ibid.) explanation of תוקע; Isserless accepts the explanation of Rashi and RaN (v. B.K. 90a and Kid. 11b, Rashi s.v. התוקע and cf. RaN ibid.). , B.K. 84b, Rashi s.v. ופגם whence it is implied that if the amount is not definitive it is not regarded as a fine. Yet, since it is of infrequent occurrence and does not involve a monetary loss, we cannot order its collection. The Rabbis, however, called it קנס (fine) because the law thereof is similar to fines. Cf. B.K. 27b, 84b, Tosaf, s.v. קנסא — M.E. — and thus also whosoever pays more than the actual damage done, or one who pays half-damages,¹²B.K. 15b, 27b; Ket. 41b and v. Tur. E.g., the repayment of the double amount (Ex. XXII, 3) or the four or five-fold restitution of stolen goods (Ex. XXI, 37), or on restoring misappropriated property, one fifth of the principal had to be added as a fine (Lev. V, 16, 24; XXVII, 27), or half-damages done by an innocuous animal (תם), i.e., an animal that did not gore three times and did injury before warning had been given, opp. מועד (Ex. XXI, 28-36; B.K. I, 4; II, 4). Cf. infra § 390 and v. Yad ibid. — [the law is that] only authoritative Judges¹³Heb. מומחים i.e., experienced scholars versed in matters of law who alone are referred to by the Scriptural term Elohim meaning ‘Judges’ as in Ex. XXI, 6; XXII, 7-8. , San. 2b; infra § 3, 2. Cf. supra n. duly ordained¹⁴San. 14a. On the question of ‘Ordination’ (סמיכה), v. Yad, Sanhedrin IV and cf. Y.D. § 242; supra n. 1; J.P. Y.D. § 335-403, Int. XI-XI in the Land of Israel may judge it¹⁵e., such a case. save [in the case of the liability for] half-damages [done by] pebbles,¹⁶Kicked by an animal. This is a derivative of ‘foot.’ , B.K. 17a. which is [regarded as] civil and not [as] penal.¹⁷B.K. 15b; Ket. 41b. In addition to the matters mentioned supra, Semikah (Ordination) nowadays is also valid for dealing in matters pertaining to Ḥalizah and Divorce — ShaK.

The Torah (Shemot 21:1), in introducing monetary laws, commands, “And these are the laws that you shall present to them.” The Gemara (Gittin 88b) interprets “them” as referring to ordained dayanim (rabbinical judges), whereas one may not approach “non-Jews or unqualified Jews” to adjudicate a case against a fellow Jew. The Gemara adds that even if the non-Jewish courts judge according to Halachah, we nevertheless may not submit our internal disputes to them.¹This prohibition applies even if both Jewish litigants wish to adjudicate in civil court. Rav Uri Dasberg (Techumin 24:49-50) offers an interesting suggestion as to why the Halachah prohibits litigating in civil courts, even in cases where civil law and Halachah coincide. He argues that the role of a beit din is not merely to rule on the disputed monies, but also to offer moral criticism. Beit din might recommend that a litigant pay more than the strict law requires, as an act of decency. Moreover, beit din demands of the litigants that they conduct themselves in an ethical manner, above and beyond the strict letter of the law (see our previous chapter). By contrast, a civil court judge has no mandate to demand more than the letter of the law. Thus, a Jew who adjudicates in civil court, even if the court rules just as a beit din would have ruled, rejects the value system that we strive to integrate into our legal system. The Tashbetz (vol. IV, Tur Hashelishi 6) rules that this prohibition even precludes the use of non-Jewish judges who do not practice idolatry, such as Muslims.

A woman is ineligible to judge.¹⁵B.K. 15a (v. parallel passages) : ‘In the School of Eleazar it was taught: Now these are the ordinances which thou shalt set before them (Ex. XXI, 1), — the Scriptural text places a woman on the same level with a man as regards all the judgments of the law’ (i.e., with respect to civil suits). Tosaf. s.v. אשר raises the question that before them refers only to those who are eligible to judge but not to those who are judged (v. Torah Temimah a.l.). Cf. Git. 88b: ‘before them, but not before laymen,’ and a woman is ineligible to judge, for the Mishna Nid. 49b states that ‘Whoever is fit to judge is fit to testify’ and since a woman is unfit to testify (v. B.K. 88a; Sheb. 30a), it follows that she is unable to judge. Consequently, the above passage that equates man and woman as regards all the judgments of the law refers to woman only from the point of view of being judged in cases where she has monetary claims against another person, but she herself may not act as Judge. As to Deborah, the prophetess concerning whom it is stated that She judged Israel at that time (Judges IV, 4) whence we see that a woman may judge, it may be said that it was permissible only on account of a Divine order, or that she merely taught the Law. But the text serves as no precedent that a woman may judge. , also Y. Yoma VI, 1(43b); Y. Sheb. IV, 1(35b) where it is stated that a woman may not judge because she is ineligible to testify. Cf. also Yad, Melakim I, 5 and RIDBaZ a.l.; Sifre to Shofetim XVII, 15. Although a woman may not judge, nevertheless, a learned woman may instruct law and offer legal directives (cf. supra on Deborah and Sefer ha-Ḥinnuk § 83 and § 152; Sha‘are Teshubah to O.Ḥ. § 461, n. 17 — P.Tesh.