Babylonian Talmud: Tractate Sanhedrin

Folio 23a

CHAPTER III

MISHNAH. CIVIL ACTIONS [ARE TO BE TRIED] BY THREE. EACH [LITIGANT] CHOOSES ONE, AND THE TWO JOINTLY CHOOSE A THIRD: SO HOLDS R. MEIR. BUT THE SAGES RULE: THE TWO JUDGES NOMINATE THE THIRD. EACH PARTY MAY OBJECT TO THE JUDGE CHOSEN BY THE OTHER, SO HOLDS R. MEIR. BUT THE SAGES SAY: WHEN IS THIS SO? ONLY IF THE OBJECTOR ADDUCES PROOF THAT THEY ARE EITHER KINSMEN OR [OTHERWISE] INELIGIBLE; BUT IF FIT OR RECOGNISED BY THE BETH DIN AS MUMHIN,¹  THEY CANNOT BE DISQUALIFIED.

EACH PARTY MAY REJECT THE WITNESSES PRODUCED BY THE OTHER:²  SO HOLDS R. MEIR. BUT THE SAGES SAY, WHEN IS THIS SO? ONLY WHEN PROOF IS BROUGHT THAT THEY ARE EITHER KINSMEN OR [OTHERWISE] INELIGIBLE; BUT IF THEY ARE [LEGALLY] ELIGIBLE, NO ONE CAN DISQUALIFY THEM.

GEMARA. Why should each of the parties choose one [Beth din]:³  do not three [judges] suffice? — The Mishnah is meant thus: If each party chose a different Beth din, [so that one is not mutually accepted], they must jointly choose a third.⁴  Can then the debtor too reject [the Beth din chosen by the creditor]? Did not R. Eleazar say:⁵  This refers only to the creditor; but the debtor can be compelled to appear for trial in his [the creditor's] town? — It is as R. Johanan said [below]: we learnt this only in reference to Syrian lawcourts;⁶  and so here too; but not Mumhin.⁷  R. Papa said: It may even refer to Mumhin, e.g., the courts of R. Huna and R. Hisda,⁸  for he [the debtor] can say: Am I giving you any trouble?⁹

We learnt: THE SAGES RULE: THE TWO JUDGES NOMINATE THE THIRD. Now, should you think it means as we have said, viz., Beth din;¹⁰  can a Beth din, after being rejected, go and choose them another?¹¹  Again, how interpret, EACH PARTY CHOOSES ONE?¹²  — But it means thus: Each [litigant] having chosen a judge, these two [litigants] jointly select a third. Why should they do so? — They said in 'the West'¹³  in the name of R. Zera: Since each selects a judge, and together they [the litigants] select the third, a true judgment will be rendered.¹⁴

BUT THE SAGES RULE etc. Shall we say that they¹⁵  differ in regard to the law cited by Rab Judah in the name of Rab? For Rab Judah said in the name of Rab: Witnesses may not sign a deed unless they are aware who is to sign with them:¹⁶  R. Meir thus disagreeing with the dictum of Rab Judah given in the name of Rab,¹⁷  while the Rabbis accept it?¹⁸  — No, all agree with Rab Judah's statement in Rab's name and none dispute that the [third judge] must have the consent of his colleagues; they only differ as to whether the consent of the litigants is necessary. R. Meir maintains that the consent of the litigants is also required, while the Rabbis hold, only that of the judges is required, but not that of the litigants.

The [above] text [states]: Rab Judah said in Rab's name: Witnesses may not sign a deed etc. It has been taught likewise: The fair minded¹⁹  of the people in Jerusalem used to act thus: They would not sign a deed without knowing who would sign with them; they would not sit in judgment unless they knew who was to sit with them; and they would not sit at table without knowing their fellow diners.

EACH PARTY MAY OBJECT TO THE JUDGE CHOSEN BY THE OTHER.

Has then anyone the right to reject judges? — R. Johanan said: This refers to the Syrian courts.²⁰  But [you say that] Mumhin cannot be rejected? Surely since the last clause states, BUT THE SAGES SAY: WHEN IS THIS SO? ONLY IF THE OBJECTOR ADDUCES PROOF THAT THEY ARE EITHER KINSMEN OR [OTHERWISE] INELIGIBLE; BUT IF FIT OR RECOGNISED BY THE BETH DIN AS MUMHIN, THEY CANNOT BE DISQUALIFIED: does it not follow that R. Meir refers even to Mumhin! — It is meant thus: But if they are fit, they rank as Mumhin appointed by the Beth din, and so cannot be disqualified.

Come and hear: 'The Rabbis said to R. Meir: It does not rest with him to reject a judge who is a Mumheh for the public'?²¹  — Say [thus]: It does not rest with him to reject a judge whom the public has accepted as a Mumheh. It has been taught likewise: One may²²  go on rejecting judges until he undertakes [that the action shall be tried] before a Beth din of Mumhin:²³  this is the view of R. Meir.²⁴

But witnesses [when not disqualified] are as Mumhin;²⁵  yet R. Meir said: EACH PARTY MAY REJECT THE WITNESSES PRODUCED BY THE OTHER! — Surely it has been stated regarding this: Resh Lakish said: Imagine a holy mouth [sc. R. Meir] uttering such a thing!²⁶  Read [therefore] 'THE WITNESS', [singular].²⁷  But for what purpose is a single witness [competent]? Shall we say, for the actual payment of money?²⁸  then his testimony is Biblically invalid! If for [the administration of] an oath, then his evidence is [legally] as trustworthy as that of two!²⁹  — In fact, he refers to the payment of money, but it [sc. R. Meir's ruling] arises only where both parties have voluntarily accepted his testimony as equivalent to that of two witnesses. Then what does he thereby teach: that he may retract? But we have already learnt this once:³⁰  If one says, I accept my father or thy father as trustworthy,³¹  or I have confidence in three herdsmen,³²  R. Meir says, He may [subsequently] retract; but the Sages rule, He cannot.

1. V. Glos.
2. The Gemara discusses the conditions of such disqualification.
3. Which consists of three judges. By 'ONE' in the Mishnah, the text understands a court, according to which interpretation nine judges are necessary. So Rashi. This, however, is a very strained interpretation, particularly in view of the opening statement of the Mishnah: CIVIL ACTIONS ARE TO BE TRIED BY THREE. Tosaf. therefore states that the question is based on the assumption that the meaning of the Mishnah is this: Each litigant chooses a complete Beth din; and then the two courts jointly nominate a third court, and it is the third court that tries the case. Hence the question: Why such a clumsy proceeding: cannot the two litigants jointly select one court which shall try the action?
4. But it is not meant that the procedure must be so from the very outset.
5. Infra 31b in regard to a dispute as to place of trial.
6. [Tribunals set up by the Romans and in charge of Jewish judges whose decisions were based on precedent and common sense rather than Biblical or Rabbinic Law, cf. Buchler, Sepphoris, 21 ff.]
7. These cannot be disqualified by the debtor.
8. [R. Huna's court was at Sura, and R. Hisda had his school, according to Sherira, at Matha Mehasia on the outskirts of Sura.]
9. For, while it is just that the debtor shall not have the power of putting the creditor to great trouble in choice of locale, seeing that the debtor is under an obligation to the creditor, this objection does not hold good when the two courts are so close to each other.
10. I.e., each litigant chooses a Beth din.
11. Surely not!
12. Which implies that the actual procedure must be so from the beginning.
13. R. Jeremiah, supra 17b.
14. For both parties have confidence in the court.
15. R. Meir and the Sages.
16. I.e., who is the other witness. The reason is that the other witness may prove to be unfit, in which case both signatures are null, and the eligible signatory is thus put to shame.
17. I.e., he does not require the witnesses to know beforehand who will join them; and in the same way, it is unnecessary for the two judges to know beforehand whether the third will be a fit and proper person; therefore the third is selected by the litigants.
18. V. previous note; the reasoning is reversed.
19. [H], [ (a) 'the cautious' (Buchler); (b) 'the pious' (Muller); (c) 'the nobility' (Klein, S. [H] I, 72 ff.)]
20. v. supra p. 130, n. 2.
21. From this it may be inferred that in R. Meir's opinion even Mumhin may be rejected.
22. But not a competent body, in which case R. Meir may agree with the Rabbis.
23. This translation follows an emended text. V. marginal gloss in curr. edd.
24. Hence it is evident that even R. Meir agrees that Mumhin cannot be rejected.
25. All are expert to attest what they have witnessed.
26. Surely it is absurd to suggest that a litigant having produced witnesses in his favour, his opponent can simply reject them.
27. I.e., each can reject only a single witness produced by the other: a single witness, of course, is not on a par with an expert Beth din.
28. I.e., the debtor is to be ordered to pay on his evidence.
29. If the plaintiff has one witness in his support, his testimony is so far admissible as to subject the defendant to an oath; and the defendant cannot reject his testimony, just as he could not reject the testimony of two witnesses.
30. Viz., in the next Mishnah.
31. To act as judges in a dispute, though normally relations of the litigants were ineligible. That the reference is to judges follows from the fact that three herdsmen are mentioned.
32. In those days holding the lowest rank in society.

Sanhedrin 23b

When R. Dimi came [from Palestine]¹⁰  he said in R. Johanan's name: The controversy arises only where [the plaintiff said that he could produce] two pairs of witnesses. Now, R. Meir holds that the litigant is obliged to verify [his statements regarding his second set of witnesses];¹¹  while the Rabbis say that he is not so obliged.¹²  But if only one pair of witnesses [are offered], all agree that they cannot be disqualified.

R. Ammi and R. Assi said in R. Dimi's presence: What if there is only one pair [of witnesses]? [You ask, what if] there is only one set? Have you not just said, 'but if only one pair of witnesses [are offered] all agree that they cannot be disqualified'? But the question is, what if the second pair is found to consist of kinsfolk or to be [otherwise] ineligible?¹³  — He answered them: The first witnesses have already testified.¹⁴

Others say that R. Ashi gave the above answer.

Shall we say that their [sc. R. Meir and the Rabbis'] dispute is the same as that of Rabbi and R. Simeon b. Gamaliel? For it has been taught: If one comes to be judged on the strength of a deed and hazakah;¹⁵  Rabbi said: The case must be determined by a deed.¹⁶  Rabban Simeon b. Gamaliel ruled: It is determined by hazakah [alone]. But we raised this question thereon: By hazakah [only], and not by deed?¹⁷  But rather say thus: Even by hazakah [alone]. And it is an established fact that their dispute is whether the defendant is obliged to verify [his statement]!¹⁸  — No, according to the view of Rabban Simeon b. Gamaliel, none [i.e. neither R. Meir nor the Rabbis] differ here;¹⁹  they only differ on the basis of Rabbi's opinion. Thus, R. Meir agrees with Rabbi. But the Rabbis can tell thee: Rabbi gives this ruling there only in the case of hazakah, which is valid proof²⁰  only in virtue of there having been a deed.²¹  But here, since the legal standing of one pair is independent of the other, even Rabbi agrees that the claimant need not verify [his statements in full].

When Rabin came [from Palestine]²²  he said in R. Johanan's name: The first clause [of the Mishnah]

1. And since one of the three judges is ineligible by Biblical law, he may retract; so here, since one witness cannot impose payment by Biblical law, although he was accepted as trustworthy, he may retract. Consequently we were already informed of this. It may be asked, Why is R. Dimi's observation mentioned at all: does not the difficulty arise in any case? But without this dictum, it might be said that the litigant can retract in this case because there are two irregularities: (a) one only was permitted to try the suit; (b) even he was Biblically ineligible. But if there is only one irregularity, as in the case under discussion, where a single witness was accepted as the equivalent of two, it might be thought that the litigants cannot retract. Therefore R. Dimi's interpretation is adduced, to show that here too there was only one fault, that one of the judges was a relative (Tosaf.).
2. The Sages.
3. To count as two.
4. By the preceding argument inverted.
5. Which overthrows Resh Lakish's interpretation, hence the original difficulty remains.
6. And two have authority to reject; but actually the reference is to two witnesses.
7. Hence, only one witness is left, and one has no power to overthrow the evidence of two.
8. E.g., that he was the descendant of an unliberated slave whose testimony is inadmissible.
9. And in this matter, the litigant is not an interested party.
10. V. p. 393, n. 1.
11. Therefore, the defendant is not regarded as an interested party when he testifies to the family unfitness of one of the first pair, since the plaintiff is bound to adduce the second set in any case, who are themselves sufficient. Should the plaintiff be unable to adduce a second set, he is the cause of his own loss.
12. Consequently, notwithstanding his first assertion, he can insist on basing his claims on the first pair of witnesses only, and so the defendant becomes an interested party in seeking to disqualify one of these witnesses. — Tosaf. and one interpretation of Rashi. Rashi, however, reverses the reading and gives another explanation.
13. Can we say, since the second pair has thus been rendered ineligible, the defendant is retrospectively discovered to have been an interested party in his testimony disqualifying the first pair, since the second is no longer available, and therefore his evidence in respect to the first is now inadmissible? Or, on the other hand, it may be argued that when the defendant gave his evidence he was a disinterested party, and consequently it still holds good.
14. I.e., the testimony of the defendant in respect to the first, having been accepted, stands good.
15. A claim based on undisturbed possession during a legally fixed period — three years. This means, if one's ownership of land is challenged, and he asserts that he can prove it both by a deed of sale, which he has in his possession, and also by hazakah.
16. And if he failed to produce it, hazakah would not determine ownership. Though hazakah is usually accepted as proof, it is not accepted here, since the defendant asserted that he had the deed of conveyance in his possession.
17. Surely it cannot be maintained that if a deed of sale is produced, three years of undisturbed possession must also be proved!
18. Thus: Rabbi maintains that the whole statement must be verified, and therefore the deed is necessary; whilst R. S. b. G. holds that it need not be verified, just as though he had never made it, and therefore hazakah alone is sufficient (v. B.B. 169b-170a). Rabbi will accordingly agree with R. Meir, and R. S. b. G. with the Rabbis.
19. For it is obviously impossible to reconcile R. Meir with R. S. b. G.
20. Lit., 'which comes'.
21. Three years undisturbed possession proves ownership only when the defendant pleads that he bought the land, was given a deed, but lost it. Therefore, since the defendant asserted in the first place that he could produce the deed, evidence of undisturbed possession is not enough.
22. V. p. 390, n. 1.