Rambam - 3 Chapters a Day

The Sefer Me’irat Einayim 13:3 states that this law applies when neither of the two litigants desire to have the case adjudicated by the local court. If, however, one of them has that intent, the case should be adjudicated by that court, and not by a court made up through this selection process.

The litigants themselves, however, have no say in the selection of the third judge. Instead, the judges themselves select an authority whomthey feel is fitting to adjudicate the case. Sanhedrin 23a quotes a difference of opinion regarding this matter between the Sages and Rabbi Meir. The opinion quoted above follows the perspective of the Sages, while Rabbi Meir maintains that the litigants chose the third judge. Although there are editions of the Mishneh Torah which follow a version which appears to follow Rabbi Meir’ s opinion, the version above is both corroborated by the ancient manuscripts and accepted by the later Rabbis.

The Jerusalem Talmud (Sanhedrin 3:1) states that each of the judges selected by the litigants will protect the interest of the party who appointed him, and the third judge will discern which of the positions should be accepted. Rabbenu Asher (in his halachic gloss to Sanhedrin, ch. 3) emphasizes that these judges are judges, not lawyers. The litigants who chose them are not their clients whose case they are obligated to argue. Instead, they are objective authorities. That said, they have a greater tendency to look out for the interest of the litigant who selected them and bring out the positive points in his argument. Since each of the judges selected will thus present a clear picture of the two litigants’ claims, arguments, and defenses, together with the guidance of the third judge, they will be able to clarify whose position is vindicated by the Torah. See Kessef Mishneh who elaborates on this issue.

The Radbaz emphasizes that the judge chosen by the second litigant must be more or less comparable to the first. A sage of great eminence cannot be required to sit on a court together with a commonplace individual.

The disqualification of relatives as witnesses is discussed in Hilchot Edut, Chapter 13.

The Siftei Cohen 22:1 explains at length that this law applies when the litigant makes this commitment before an acceptable court.

Ordinarily, he would not be bound by such a commitment. Nevertheless, since he performed a specific act to affirm his willingness to accept such a witness or judge, he is obligated to abide by his commitment. The act performed - a kinyan suder - involves the transfer of a handkerchief or another piece of movable property from one litigant to the other. As explained in Hilchot Mechirah, the latter portion of Chapter 5, a kinyan indicates the sincerity of a person’s commitment and his willingness to obligate himself in a binding manner. See also Chapter 22, Halachah 6.

I.e., the verdict is rendered. The exact wording used by the judge when rendering the verdict - e.g., “Go out and give it to him,” or “You are obligated to give it to him” - is not significant. Since a verdict has been rendered, the case is considered as concluded.

Our translation is based on the interpretation of the Radbaz (see his gloss and see also Vol. V of his Responsa, Responsum 82) and the Kessef Mishneh. A literal translation of the version in the printed text of the Mishneh Torah would be: “If he expropriated money in this judgment....”

For if he could retract even then, there would be no point in having the matter judged at all.

See Hilchot Edut, Chapter 10, which describes the violation of which transgressions render a person to be considered as unacceptable to serve as a witness or a judge.

I.e., not only is the person who is unacceptable allowed to function as a judge, he is allowed to serve in that capacity alone, although generally, the matter would be adjudicated by three judges. The Tur and the Ramah (Choshen Mishpat 22:1) differ with regard to the latter point, explaining that if a litigant accepts an unacceptable person as one judge, his commitment is binding, but if he accepts him as three judges, he may retract. For making two extensions beyond the norm is considered excessive. Hence, if the litigant did not affirm his commitment with a kinyan, he is allowed to retract even after the judgment was rendered.

This represents a reduction in the severity of the oath. As Hilchot Sh’vuot 11:8-9 states, generally an oath must be taken “on God, the Lord of Israel.”

The Radbaz interprets the conclusion of the case as meaning that the judges obligated the litigant to take an oath and the oath was taken. The Sefer Me’irat Einayim 22:17,22 quotes the opinion of Rabbenu Asher who interprets it as meaning “when the litigants left court,” i.e. they left court without taking the oath. They are then obligated to pay

A defendant who claims to be totally free of obligation to the plaintiff was required by our Sages to take a less severe oath. Moreover, our Sages ruled that, if he desired, the defendant could give the plaintiff the option of taking the oath and then the plaintiff could collect his claim. See Hilchot To’en ViNitan 1:6.

The Yemenite manuscripts of the Mishneh Torah state “a severe oath,” i.e., an oath that must be taken while holding a sacred article. This is likely the Rambam’s intent (- whether or not the text reads that way or not). For there are few occasions when a defendant is released without having to take an oath at all. Hence the intent is rather than be required to take only a sh’vuat hesset, he offers to take a severe oath.

Our translation is based on the gloss of the Sefer Me’irat Einayim 22:22 who explains that since the oath is not required of the person, he has the option of retracting until he takes the oath. The delivery of the judgment by the court is not significant.

A written document.

The Shulchan Aruch (Choshen Mishpat 20:1) states that even if a defendant has already paid a plaintiff, if the support he brings appears substantial, the judgment should be rescinded.

In his Kessef Mishneh and his Shulchan Aruch (Choshen Mishpat 20:1), Rav Yosef Karo points to the text of Sanhedrin 31a and on that basis restates this clause as follows:
If they told him to bring witnesses or proof and he said: “I do not have,” even though he discovers them afterwards, they are of no consequence. Needless to say, it applies if they asked him: “Do you have witnesses?” and he replied: “I do not have witnesses.”

Sanhedrin, loc. cit., records this point as a difference of opinion between Rabban Shimon ben Gamliel and the Sages. Generally, in such situations the halachah follows Rabbi Shimon ben Gamliel’s approach. This and two other situations are exceptions and the Sages’ opinion is followed.

For the fact that he denied having witnesses or proof when asked to produce them creates a suspicion that he is lying. If he knew about the possibility of these witnesses testifying or using this support, he should have stated so. Hence we assume that until he knew that he would be held liable, he was not willing to risk falsehood. After he was held liable, he tried to perpetrate deception to exonerate himself (Sefer Me'irat Einayim 20:4-5).

At the time he made his statements.

The Sefer Me’irat Einayim 20:6 states that even if the proof was not in his possession, if it is easily accessible to him, he must have acknowledged it at the outset.

Or even his own satchel with his own legal documents [Ramah (Choshen Mishpat 20:6].

I.e., there is evidence that indicates to the court that he is telling the truth. The Ramah (loc. cit.) states that witnesses must corroborate his statements.

That the judgment cannot be rescinded.

In a suit involving his own property or liability.

If he did not bring or at least mention the proofs or witnesses at the outset, it is a clear indication that he had no proof and is in fact forging the documents or bringing witnesses who lie.

I.e., a complaint was lodged that the person was not the legitimate owner of the property.

For until he comes of age, no suits can be lodged against him. Although Sanhedrin 31a, speaks of this situation with regard to a yanuka, “a young child,” the Rambam interprets that as meaning that the child was young at the time he inherited the property, but came of age before the suit was brought to court (Radbaz; Kessef Mishneh).
Tosafot and Rabbenu Asher interpret the passage as applying even when the child was still a minor, e.g., the case involved a promissory note, in which instance, the case can be prosecuted even against a minor.
Rabbenu Asher takes the issue a step further and differs with Rambam, explaining that if the minor indeed came of age, he can no longer protest. For we assume that since he knew he was being sued, he familiarized himself with his father’s affairs before the matter was brought to court. The Kessef Mishneh explains that this is not necessarily the case. It is possible that he was unaware of the matter entirely and did not know how to begin investigating the matter. The Shulchan Aruch (Choshen Mishpat 20:6) quotes the Rambam’s view. The Ramah states that if it is known that the minor turned adult had knowledge of the witnesses or the proof beforehand, yet did not mention this at the outset, he cannot have the judgment rescinded.

The Sefer Me’irat Einayim 21:1,6 states that in the first instance, the kinyan must be undertaken in an important court, while in the second instance, that is not necessary. The Siftei Cohen 21:5 quotes both more lenient and more stringent views.

The plaintiff.

The defendant.

Since he affirmed his commitment with a kinyan, we assume that he sincerely agreed to the stipulation. We do not consider it as an asmachta, a commitment which the person never intended to keep (see Hilchot Mechirah 11:13).
The Ramah (Choshen Mishpat 21:1) emphasizes that the kinyan must be made at the time of the stipulation. Otherwise, it is considered as an asmachta, and is not binding.

The commentaries note that this law applies even if he was held back by forces beyond his control only on that day. Although he could have fulfilled his commitment beforehand, since he was not able to do on the last day, he is not held liable.
This relates to a halachic issue of a general scope: Is the fact that a person is held back by forces beyond his control only on the last day significant or not? See the comments of the Ramah (Yoreh De’ah 232:12) and the glosses of the Ketzot HaChoshen and the Netivot HaMishpat 55:1 which discuss this issue.

Since he was held back by forces beyond his control, we do not cause him to forfeit his rights because he did not keep his commitment.
Similarly, he may take an oath and collect the property that was due him (Siftei Cohen 21:4).

Sefer HaMitzvot (positive commandment 175) and Sefer HaChinuch (mitzyah 78) count this as one of the 613 mitzvot of the Torah.

See Hilchot Mamrim 1:3 which describes the process of reaching a majority decision.

See Chapter 5, Halachah 3, where this subject is also discussed.

Sefer HaMitzvot (negative commandment 282) and Sefer HaChinuch (mitzvah 76) count this as one of the 613 mitzvot of the Torah.

Since the third judge says that he does not know, it is considered as if he is not present.

An even number of judges is always added so that there will not be an even number of judges sitting on the court. Although the judge who says “I don’t know” is considered as if he is not present, he is not disqualified from the court. Instead, he can change his mind at any time. Thus if only one judge were added, it would be possible that the court would ultimately be evenly balanced (Radbaz).

Rav Moshe Cohen (as quoted by the Kessef Mishneh) notes that in cases involving capital punishment, a judge who says “I don’t know” is not allowed to take part in the debate further if he desires to convict the defendant. Making such a statement does not, however, prevent a judge from judging financial cases or even judging cases involving capital punishment if he discovers a rationale to exonerate the defendant.

I.e., the judge who originally said: “I don’t know” now took a position.

Similarly, if three hold the defendant liable, one supports his claim, and one says “I don’t know,” the defendant is held liable.
If, however, two hold the defendant liable, one supports his claim and two say “I don’t know,” there is a difference of opinion among the Rabbis. The Rashba states that the defendant is held liable. Rav Shlomo Luria explains that since the Rambam counts the judges who say “I don’t know” as part of the court, the matter is considered as undecided and more judges are added. For there is not a majority of the court that holds the defendant liable.

For 71, the number of judges on the Supreme Sanhedrin is the maximum number of judges that are ever included on a court.

For if one of the other judges change their opinion, there will still be a majority even if the other judge remains undecided.

We follow the principle: “A person who desires to expropriate property from a colleague must prove his claim.” Since the plaintiff cannot prove the validity of his claim, for it is not supported by the majority of judges, the money is allowed to remain in the possession of the defendant.

In the Yemenite manuscripts of the Mishneh Torah, the version is “Whenever a judge says: ‘I don’t know,’ he is required... to explain the reason why he is in doubt, just like [a judge] who rules that [a litigant’s claim] is vindicated must state why he vindicates [the claim].” This version allows for an easier flow of the Hebrew. The commentaries and the Slzulchan Aruch (Choshen Mishpat 18:3) follow the version stated in the standard printed text.

See Chapter 10, Halachot 1,4.

From the comparison to the wording of the following halachah, one might think that this applies only with regard to the Supreme Sanhedrin. The Radbaz clarifies that this is not the case and the law applies to an ordinary Sanhedrin as well.

And in such a situation, this is unlikely to happen, for all of the judges rule that he is liable. Since the Torah’s criteria for execution- that there be “a congregation that saves,” i.e., judges who argue on the defendant’s behalf are not met, he is exonerated (Likkutei Sichot, Vol. 29, p. 166ff.).

For a majority of one is enough to exonerate a defendant (Chapter 8, Halachah 1).

For a majority of one is not enough to convict him (Ibid.).

One judge is not added, so that the court will not have an even number of judges.

Since it is as if this judge does not exist, it is as if there are only 22 judges on the court and 23 are necessary. Therefore, we make an addition.

The Radbaz and the Kessef Mishneh state that this judge can change his mind and decide to acquit the defendant, but cannot rule to convict him. From Chapter 10, Halachah 2, it appears that he can also, however, vote with those who hold the defendant liable at the time of the final judgment. Since he can change his mind, two judges are added and not only one.

The twenty-fifth judge says: “I don’t know.” This ruling has aroused the attention of the commentaries who a) question why the defendant is acquitted when there is not a majority of judges issuing such a verdict, and b) note that it appears to contradict his ruling a few lines later.
The Lechem Mishneh explains that since there are an ample number of judges who seek to acquit him, the fact that there are an equal number who wish to convict him is not significant. We follow the principle: With regard to doubt in cases involving capital punishment, we rule leniently.
The Tosafot Yom Tov (Sanhedrin 5:5) maintains that there is a printing error in the text of the Mishneh Torah and it should read: “Thirteen say that he should be exonerated and twelve say that he is liable....”

I.e., either the judge who originally said: “I don’t know” still maintains that position, or he changed his mind and adapted a different position, but another judge became doubtful.

As mentioned above, this clause appears to contradict the Rambam’ s previous statements. Some explain that in this instance, we are speaking about a situation where at the outset, there were twelve judges who ruled that he was liable and eleven who ruled that he should be acquitted. From the two judges who were added, one ruled that he should be exonerated, while the other said: “I don’t know.” In this instance, since originally, there was a majority voting in favor of conviction, the defendant is not exonerated because of the doubt and more judges are added (Radbaz, according to one interpretation).

I.e., we are unable to reach a resolution.

Since there is a doubt, we rule leniently and release him. The Meiri and others rule that the judges should continue debating until they come to a resolution.

This addition is made on the basis of one of the responsa of the Radbaz (Vol. V, Responsum 1690) who explains that this clause refers to a theoretical issue that relates to capital punishment, while the latter clause refers to an actual case involving a suspect brought before the court.

For we never make a court larger than 71, as stated above.