Rambam - 3 Chapters a Day

The Rambam chooses such an instance because if both litigants are harsh, the one vindicated will defend the judge against the other litigant (see Tosafot, Sanhedrin 6b). The Radbaz explains that this is unlikely; no litigant will risk his own welfare to defend a judge. Instead the Rambam is referring to a common situation. The same principles apply if both litigants are harsh. The Ramah (Choshen Mishpat 12:1) differs and maintains that if both litigants are harsh, the judge is obligated to adjudicate the case.

The verse continues: “for the judgment is God’s.” Implied is that the command applies at the time of judgment (Sefer Me’irat Einayim 12:2).
Sefer HaMitzvot (negative commandment 276) and Sefer HaChinuch (mitzvah 415) count this as one of the 613 mitzvot of the Torah.

For the community will protect him (Radbaz).

See Chapter 1, Halachah 7, which states that students should sit before the court.

Similarly, the law applies in a situation when both litigants are poor or both rich (Sefer Me’irat Einayim 9:18).

And allows the judge to decide the case without considering that factor.

For in this way, the student will not be able to inform him if he deviates from the proper path [Shulchan Aruch (Choshen Mishpat 9:6)].

Our translation is based on authoritative manuscripts and early printings of the Mishneh Torah. The version in the standard printed text is slightly different.

Instead, in a reverent manner, he should ask: “Master, did you not teach us such and such?” [Shulchan Aruch (Choshen Mishpat 9:8)]. See also Hilchot Talmud Torah 5:9.

Pesharah, the Hebrew term for compromise, is derived from poshrin, meaning “lukewarm water.” Just as water is brought to that temperature by mixing hot and cold water together, the court negotiates a compromise by taking into consideration the perspectives of both litigants (the Rambam’s Commentary to the Mishnah, Ketubot 10:5). It must, however, be emphasized that a compromise is negotiated through the guiding influence of a judge who knows the legal principles involved. Unlike a judgment which must remain true to those principles without bending an inch, in a compromise, there is room for flexibility. Nevertheless, the basis for the compromise is the Torah’s guidelines.

See the Introduction to the Rambam’s Commentary to the Mishnah where he mentions similar concepts.

For generally, judgment does not lead to peace. The litigant who loses the case will think that he has been wronged.

For generally, a judgment is not charitable. Instead it should be executed without consideration of the situation of the litigant who loses.

The Sefer Me’irat Einayim 12:9 states that even though the litigant whose claim would have been vindicated will forgo a certain amount of financial gain, it is considered to his advantage to negotiate a compromise. For the benefits of peace and goodwill outweigh the financial loss.

I.e., the judgment should be executed regardless of the difficulties.
The Radbaz and the Shulchan Aruch (Choshen Mishpat 12:2) state that a compromise can be negotiated even after the judgment has been rendered if an oath is involved and the judges fear that a false oath might be taken. The Siftei Cohen quotes the Shiltei Giborim who rules that the judges cannot impose an arbitrated compromise settlement after the judgment has been rendered. Nevertheless, if the judges suggest a settlement and it is accepted by the litigants, it is binding.

Although the litigants agreed to a compromise, if they did not affirm their agreement with a kinyan, their agreement is not binding and they can retract [Shulchan Aruch (Choshen Mishpat 12:7)]. Hence the judges have the authority to push towards a judgment in the hope that this will compel the parties to agree on a compromise.

But a judgment rendered by three ordinary people is binding in most instances as stated in Chapter 2, Halachah 10.

The Rambam uses a plural form. The Radbaz explains that this form was employed only for literary reasons, so that the second clause will parallel the first. If, however, one expert judge negotiated a compromise, it is also binding. In his Kessef Mishneh, however, Rav Yosef Caro cites opinions that require two judges and in his Shulchan Aruch (Choshen Mishpat 12:7), he cites both views.

The narrative is related in Sanhedrin 31a.

So that he has the possibility of taking it a higher court for review; see Chapter 6, Halachah 6, and notes. In this halachah, the Rambam is focusing only on the manner in which the text of the record is composed, emphasizing how - in keeping with the statements of the previous halachah - the opinions should not be associated with the judges by name.

This wording indicates that there was a difference of opinion among the judges, but allows each to preserve his anonymity. The Sefer Me’irat Einayim 19:3 states that if the judges of the court are unanimous in their decision, it is sufficient to say: “So-and-so was vindicated” or “So-and-so was held liable.”

The Bayit Chadash (Choshen Mishpat 18) states that this refers to the litigants and the witness. Others, however, may stay. Indeed, it is desirable for the students of the judges to remain to listen to the debate and offer suggestions as indicated by Halachot 2 and 3. The Pitchei Teshuvah (Choshen Mishpat 18:1) clarifies the intent of the Bayit Chadash, stating that people are not allowed to remain indiscriminately. Instead, the court considers whether the presence of a person will be valuable or not and asks all others to leave.

To preserve their anonymity as above, and also to make sure that the judges will not try to curry favor with the litigants [the Rambam’s Commentary to the Mishnah (Sanhedrin 3:7)].

Since he would always be the spokesman, there is no way of knowing which of the judges supported either of the litigants. If, however, this was not the case, one might think that the judge announcing the verdict was the one who pushed for its acceptance (Sefer Me’irat Einayim 19:1).

This applies even when he knows that he will deliver an honest and just judgment (Sefer Me’irat Einayim 7:26).

See Chapter 2, Halachah 14.

Lest an unacceptable witness sign with them, the document be nullified, and they become embarrassed (Sanhedrin 23a).

For it is humiliating for a sage to sup together with common people (Berachot 43b). See Hilchot Deot 5:2.

For that is forbidden. under all circumstances as stated in Chapter 20, Halachah 6.
See also Hilchot Teshuvah 4:3 which states that taking a bribe to pervert judgment is one of the transgressions for which it is impossible to achieve full-hearted repentance.
When a person receives payment - or even a favor - from another person, he will be predisposed to support him in his claim. We are not speaking necessarily about a conscious desire to act on that person’s behalf. Instead, the intent is that in the judge’s unconscious - in his cognitive processes over which he does not usually exercise control - there will be a motivation to help his benefactor. This is. the rationale for all the stringencies the Rambam mentions in Halachah 3.

Sefer HaMitzvot (negative commandment 274) and Sefer HaChinuch (mitzvah 83) count this as one of the 613 mitzvot of the Torah.

As a source, the commentaries cite I Samuel 12:3 which relates that Samuel told the people: “From whom have I taken money that I will turn my eyes away from him? [Tell me,] and I will make restitution.” See also the Minchat Chinuch (mitzvah 83) who writes that even if the giver does not demand restitution, the judge is obligated to return it.

As the Rambam states in Hilchot Rotzeach 12:14, this prohibition forbids placing moral stumbling blocks in a person’s path.

I.e., even though he does not take the profit for himself, causing his attendants to be rewarded is also considered as resembling receiving bribery.

Shabbat 56a offers this interpretation of Scripture’s words of censure.

We have offered an interpretation of the Hebrew term devarim that fits the examples cited by the Rambam. It must, however, be noted that the term devarim can also be interpreted as meaning “words.” The Sefer Me’irat Einayim 9:4 explains that words- e.g., giving a judge a greeting when one would not ordinarily do so, praising him, or speaking on his behalf - can also be considered a bribe, just as it can be considered as interest (see Hilchot Malveh ViLoveh 5:12).

All these examples are cited in Ketubot 105b. The Kessef Mishneh states that according to the Rambam, all the examples that follow reflect conduct mandated by law. They are not merely illustrations of pious behavior that would be desirable to emulate, as suggested by Tosafot, Sanhedrin 8a.

E. g., Terumah, the offering of grain given to the priests, challah, a portion of dough, or the first of a sheep’s shearings. See Hilchot Bikkurim, Ch. 1, where the 24 presents given the priests are mentioned.

We fear that the fact that the judge borrowed from the lender will cause him to feel indebted to him and hence - knowingly or unknowingly - show favoritism to him.
The Ramah (Choshen Mishpat 9:1) states that this applies in a situation when the judge borrows from the person frequently. Borrowing from him only on occasion is not considered a significant enough factor to have him disqualified as a judge.

Thus there is no sense of the judge being indebted to the lender. For one favor will be repaid by another favor.

He may, however, accept a wage for negotiating a compromise (Siftei Cohen 9:7).

I.e., not only the judgment for which he took a wage, but all of his previous judgments are also nullified (Rabbenu Nissim in his gloss to Kiddushin, Ch. 2). The Shulchan Aruch (Choshen Mishpat 9:5) quotes this concept as law.

Compare to Hilchot Gezelah ViA vedah 12:4.

Ketubot 105a cites the examples of the Sages Karna and Rav Huna who would conduct themselves in this manner.
In his gloss to Hilchot Talmud Torah 3:10, the Kessef Mishneh states that if the judge has no profession other than this, he may be paid a salary. For were he not to accept work as a judge, he would have to find another profession. On the basis of this rationale, from the Talmudic age onward, communities have paid judges salaries from communal funds even though the judges have no other professions.

For if one pays the judge outside the other’s presence, the other litigant may think that the one paid the other more as a bribe. Alternatively, the one paying may think that the judge is taking payment only from him (Kessef Mishneh).

The Radbaz states that from the Talmudic sources (Ketubot 105b; Sanhedrin 27b), it appears that although it is forbidden for a judge to adjudicate such cases, if he violates this prohibition and acts as a judge, his judgment is binding. He maintains that the Rambam’s linking of this issue with bribery indicates, however, that he maintains that the judgment is unacceptable. This is also indicated by the Rambam’s wording in his Commentary to the Mishnah (Sanhedrin 3:5). The Beit Yosef and the Ramah (Choshen Mishpat 7:7), however, follow the initial view.

It was customary for a person to invite his closest friends to share in his wedding celebrations with him. See Hilchot Zechiyah UMatanah, ch. 7, where the Aramaic term the Rambam uses, shushvinin, is discussed.

The Bayit Chadash (Choshen Mishpat 8) rules that if the two judges truly hate each other, the judgment is not binding, even after the fact.

The Rambam follows Rabbenu Yitzchak Alfasi’s version of Sanhedrin 7a. The standard printed text follows a slightly different version.

The sword refers to retribution that is exacted in this world, and Hell to retribution exacted in the world to come (Sefer Me’irat Einayim 8:7-8).

For every Jew has a soul which is an actual part of God.

This was part of the charge King Yehoshafat administered to the judges whom he appointed.

I.e., even if the litigant is a person of stature, the judge must regard him with suspicion and scrutinize his statements carefully.

I.e., even when he holds a person liable, he should not view him as wicked, but rather a person who committed a misdeed inadvertently, for various reasons.

In contrast to laws involving capital punishment, as stated in Chapter 20, Halachah 1.

I.e., he denied a claim and was required to take an oath to substantiate his denial.

I.e., although generally, the word of one witness is not accepted, an exception is made in this case.

This term has a specific halachic meaning: A person who is disqualified from taking an oath, because he is known to have taken a false oath in the past or to have been disqualified to serve as a witness (Hilchot Toen ViNitan 2:2).

Although these individuals are not acceptable as formal witnesses, a judge may choose to rely on their word if he so desires. Ketubot 85a relates that Ravva accepted the word of his wife with regard to such a matter, for he was confident that she would not lie.

Whose testimony is not acceptable. The Rambam mentions only the testimony of non-acceptable witnesses in this instance, for if one acceptable witness testifies that a promissory note has been paid, the bearer must take an oath before expropriating payment even if the judge does not have feelings of certainty that his testimony is true (Hilchot Malveh ViLoveh 14:1).

The Ra’avad objects to this ruling, maintaining that the alleged creditor should not be given the opportunity to collect his claim, even with an oath. The Kessef Mishneh explains that the Rambam’s perspective is also reflected in the rulings of Rabbenu Chananel and Tosafot (Ketubot 85a). According to this view, the unique dimension of this teaching is that based on the judge’s trust, the woman or servant is given the same status as an acceptable witness. They are not, however, given greater credibility than that.

I.e., the debtor has sufficient financial resources to pay only one of the promissory notes.

He may not, however, destroy the promissory note and thus the bearer may take it to another judge who may decide to act upon it.

Without informing his family that the article had been entrusted to him (Ketubot 85b).

For if he would frequent the deceased's home, the fact that he could identify the article is not significant. He could have seen it during his visits.

Generally, heirs are given the benefit of the doubt. Although the heirs are not aware of the details, the court presents any argument that the deceased could have advanced on their behalf. Thus we might think that since the deceased could have claimed that the article belonged to him, that claim would be advanced on behalf of the heirs. This, however, is not the case, because the deceased did not have the means to own the article (Kessef Mishneh). The above ruling applies even when there are no witnesses that the alleged owner entrusted the article.

If, however, he does not have the means to own such an article, it is not given to him even though he identifies it, stating precise descriptive characteristics. Compare to Hilchot Sha’alah UPikadon 6:4, Hilchot Nachalot 11:1.

I.e., if we rely on the judges' discernment, why did the Torah require witnesses?

The Radbaz states that the Rambam’s wording implies that if the judge feels strongly that witnesses are lying, he may refuse to accept their testimony even if he has no firm proof to substantiate his assumptions. He may not say: “The perversion of justice is the witnesses’ responsibility; I am merely acting upon their testimony.” Instead, he must act according to his own scruples. See Halachah 3.

The Radbaz states that the Rambam’s statements are based on the rulings of Rabbenu Yitzchak Alfasi and the Geonim who preceded him. They are quoted by the Shulchan Aruch (Choshen Mishpat 15:5. It must, however, be noted that in a responsa (Responsum 108), the Maharik writes that even in the present age, a judge should rely on his own appreciation of the truth. His words are cited by the Sefer Me’irat Einayim 15:15.

I.e., the testimony of at least two acceptable witnesses. In his Kessef Mishneh, Rav Yosef Karo writes that, in contrast to the concepts mentioned previously, the reservation against expropriating property from orphans is not mentioned by Rabbenu Yitzchak Alfasi. Neither is it mentioned by Rabbenu Asher or the Tur. In his Shulchan Aruch (Choshen Mishpat 15:5), Rav Yosef Karo quotes the Rambam, but the Sefer Me’irat Einayim 15:16 questions why the Ramah does not cite the other view.

I.e., because he is only one witness, the judge could not decide the case according to his testimony unless he used the license mentioned in the previous halachah and, as stated above, this is not the practice at present. Hence, the judge should follow one of the courses of action mentioned by the Rambam.

See Chapter 22, Halachot 4-6, which explain the virtues of negotiating a compromise. These concepts are particularly relevant in the present age because of the decline in the level of the courts. See the Hagahot Maimoniot which elaborates on this issue; see also the notes to the following halachah.

As stated in the following halachah.

And is based on the testimony of witnesses who are lying.

See Hilchot Edut 1:4-5. Although generally, this cross-examination procedure is suspended in cases involving monetary law (Ibid. 3:1-2), a judge has the right to make an exception and employ these measures.

I.e., the cross-examination of the witnesses resolved the doubts that had initially troubled him.

The Hagahot Maimoniot and the Shulchan Aruch (Choshen Mishpat 15:4) state this ruling applies when the plaintiff is a deceiver. Different rules apply if, however, it is the defendant who is a deceiver - and thus by withdrawing himself, the judge will allow the transgressor to get his way. For the money claimed will remain in the defendant’s possession. Instead, the judge should continue the process of cross-examination until the truth comes to the fore. Moreover, if he is a judge of stature, he may expropriate the funds from the defendant even if he has no proof that his assumptions are correct.
Even when it is the plaintiff who is the deceiver, Rabbenu Asher [and his conduct is cited as law by the Shulchan Aruch (Choshen Mishpat 15:3)] would compose a court decision exonerating the defendant and preventing the plaintiff from pursuing the matter in other courts. The Sefer Me’irat Einayim 15:12 understands this to be a direct contradiction to the Rambam’s approach.

The Sefer Me'irat Einayim 15:11 offers two interpretations of this conclusion: a) God will assist him in delivering a just judgment and perceiving whether or not deception is involved. b) God sees into the person's heart. Therefore he cannot excuse himself by saying: "I did not perceive any injustice" when in fact he did.

According to the Shulchan Aruch (Choshen Mishpat 2:1), this applies even with regard to the courts of the present age. Some commentaries have questioned that ruling based on a comparison to the wording of the following halachah.

Similarly, they have right to impose fines (Ibid.; see Halachah 6).

The Sefer Me’irat Einayim 2:3 states that such decrees can be enforced even if the conduct of people at large is appropriate and it is only one individual who oversteps the ordinary bounds.

Allowing such licentious behavior would lead to immorality (Hilchot Issurei Bi'ah 21:14).

The Greeks forbade the observance of the Sabbath. Our Sages feared that any laxity in its observance might have widespread repercussions among the people.

Who practiced witchcraft.

For all these reasons, we cannot say that Shimon ben Shetach sentenced them to death according to the requirements of law. Instead, he exercised the special dispensation granted judges, as the Rambam states.

Hilchot Sotah 2:14.

See Hilchot Talmud Torah, Chapter 7, which describes the nature of these bans and the restrictions they involve.

See Ibid., the conclusion of Chapter 6.

The court attendant should convey this message to the person being ostracized or being excommunicated, so that he will realize that the action was taken by a judge of stature and hence, he will hurry to amend his conduct (Kessef Mishneh).

This malediction was pronounced by the prophetess Deborah in her song of victory after the defeat of the Canaanites. She cursed Meroz, an important personage of that time, because although he lived near the battlefield, he did not join Barak's troops (Radak). The Rambam cites this (quoting Mo'ed Kattan 16a) as an example of the fact that the transgression performed by the person must be publicized.

These activities were performed by Nechemiah to influence the people to send away the gentile wives they had taken.

This is a somewhat unique ruling on the Rambam’s part, for no where else in the Torah literature is the concept of imprisonment mentioned. Although the Rambam’s ruling is based on the interpretation of the verse from Ezra in Mo’ed Kattan 16a, Rashi - in both his commentary on the Tanach and on the Talmud - interprets the phrase as referring to binding a person to the pillar against which he is lashed. See also Hilchot Malveh ViLoveh 2:1 which states that a person should not be imprisoned for financial matters and the Ramah (Choshen Mishpat 97:15) who allows such a practice.

The king of Persia granted Ezra permission to punish transgressors as he saw fit. The Rambam’s ruling is based on the interpretation of the verse in Mo’ed Kattan, loc. cit.

Our translation is based on the gloss of the Bayit Chadash (Choshen Mishpat 2) who explains that at times, such measures are employed because of the severity of the individual’s actions and at times, because of the climate in the society at large.

I.e., there should not be any sense of personal vendetta, heaven forbid.

For example, see Hilchot Evel 3:14 which states that in order to show honor to people at large, a priest is granted license to enter into an area which is ordinarily forbidden for him according to Rabbinic Law as a safeguard to the prohibitions involving ritual impurity. See also Hilchot Kilayim 10:29.

Avos 4:8. In his Commentary to the Mishnah, the Rambam interprets the phrase “honors the Torah” as meaning “honors its commandments by showing eagerness to fulfill them, honors its scholars who carry its [standard], and honors the texts composed about it.”