הלכה אויף שמות 24:14

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.

[If] one of the litigants¹Whether the claimant or the defendant. said, '[Give me an extension of time because] I can produce witnesses,' they allow him thirty days,²B.K. 112b: ‘Raba said: The law is that a document may be verified by its signatories even not in the presence of the other party; and even if he cries aloud before us (that the document was forged). But if he says, Give me time until I can produce witnesses, and I will impair the document, we allow him time (generally thirty days — B.M. 118a).’ If the defendant is willing to take an oath but the claimant would rather wait until he produces his witnesses or other evidence, we grant him a postponement of thirty days only (v. infra par. 2), provided the property of the defendant depreciates in value (i.e., where he must sell his estate at a high price and should there be any delay in the settlement of his counter-claim, this opportunity would not present itself later); but if, as a result of the postponement, the defendant’s property does not depreciate in value, we allow the claimant an unlimited extension of time. Should, however, the claimant not state that he can verify the matter were he to be given more time, and the property of the defendant depreciates in value, the law is that even the thirty days are not given — M.E. Cf. infra § 24. The extension of thirty days is given to people in general, but if it is definitely knows that the litigant is a powerful person who defies the law, v. infra § 98, 4 — M.E. and after thirty days [if no witnesses were produced by him], they issue the verdict, and he is obliged to make payment.³Mord. to San. III end — G. Or if the defendant is willing to take an oath and thus be exempt he may do so. Cf. also supra § 14, If, however, he produces them [the witnesses] later, it [the Court] can upset the verdict.⁴Mishna San. 31a: ‘Whenever he (any of the litigants) can produce proof, the Court can reverse the verdict. However, if they said to him, Produce all the proofs that you may have within thirty days, and he produced them within thirty days, the Court reverses the verdict; but (if he produced proof) after thirty days, the Court cannot upset the verdict. Rabban Simeon b. Gamaliel stated: What should he do who did not find (evidence) within the thirty days but found it after thirty days?’ The present ruling is in accord with Rabban Simeon b. Gamaliel. Cf. also infra § 87, 30. If it is well known to the Court of Law that So-and-so are witnesses in the matter but they have moved far away, he is given time until he can produce [them].⁵Thus Asheri in Resp. Derived from B.K. 46b: ‘R. Naḥman stated on the authority of Rabbah b. Abbuha: Whence do we know that the Court should attend to the first claimant (i.e., when A brought legal proceedings against B [and according to some versions of Rashi, A has witnesses or a document substantiating his claim, so that B cannot say that he paid] and the latter made a counter-claim against A. Thus Rashi. Tosaf. [according to one interpretation] s.v. שאין, explain as follows. After A instituted an action against B, the latter stated that there were witnesses available at the time of the act who could corroborate his counter-claim, and we deal here with a case where the Court also knows that witnesses were available at the time of the act. Consequently, were it not for the Biblical text [v. anon] we might have said that under these circumstances the Court should give him ample time until he produces the witnesses. Therefore, we are informed that this is not so, but we give prior consideration to A’s claim)? — For it is said: If any man have any matters to do, let him come unto them (Ex. XXIV, 14), (i.e.,) let him cause his matters to come (first) before them.’ Tosaf. ibid. (according to a second interpretation) explain that we deal here with a case where A claims that B injured him, and B advances a counter-claim, in which case the law is that A’s claim is given prior consideration even if B states that he can produce witnesses in a day or two — because no extension of time is given in the case of injury (B.K. 91a). Tosaf. accept the second interpretation, viz., that we deal here with cases of injury. Consequently, the above verse refers only to cases of injury. Hence, according to the first interpretation of Tosaf. to which the above verse does not apply, B would be given time until he can produce his witnesses. This is the source of Caro’s text on the authority of Asheri. Thus W.G. , Be’er Eliyahu. Likewise if it is known to the Court of Law that he can verify his statements within the thirty [days], they do not give him [additional] time for nothing.⁶B.Yos. on the authority of RITBA — G. , B.M. 118a, Tosaf. s.v. זמן end. This ruling means that even where no loss would be sustained by the fellow-litigant were we to give the claimant an extension of time. Even if we are not aware whether he deliberately wishes to postpone the case for the present or not, but we know that his opponent suffers a loss thereby, the law is that he must produce evidence within thirty days — M.E., ShaK. , infra § 98, 4.