Commentary for Sanhedrin 3:1

דִּינֵי מָמוֹנוֹת, בִּשְׁלֹשָׁה. זֶה בּוֹרֵר לוֹ אֶחָד וְזֶה בּוֹרֵר לוֹ אֶחָד, וּשְׁנֵיהֶן בּוֹרְרִין לָהֶן עוֹד אֶחָד, דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים, שְׁנֵי דַיָּנִין בּוֹרְרִין לָהֶן עוֹד אֶחָד. זֶה פּוֹסֵל דַּיָּנוֹ שֶׁל זֶה וְזֶה פּוֹסֵל דַּיָּנוֹ שֶׁל זֶה, דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים, אֵימָתַי, בִּזְמַן שֶׁמֵּבִיא עֲלֵיהֶן רְאָיָה שֶׁהֵן קְרוֹבִין אוֹ פְסוּלִין, אֲבָל אִם הָיוּ כְשֵׁרִים אוֹ מֻמְחִין, אֵינוֹ יָכוֹל לְפָסְלָן. זֶה פּוֹסֵל עֵדָיו שֶׁל זֶה וְזֶה פּוֹסֵל עֵדָיו שֶׁל זֶה, דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים, אֵימָתַי, בִּזְמַן שֶׁהוּא מֵבִיא עֲלֵיהֶם רְאָיָה שֶׁהֵן קְרוֹבִים אוֹ פְסוּלִים. אֲבָל אִם הָיוּ כְשֵׁרִים, אֵינוֹ יָכוֹל לְפָסְלָן:

Monetary litigations (are presided over) by three (judges). One [of the litigants] selects for himself one [judge], and one selects for himself another, and the two [litigants together] select for themselves another, [a third judge. In this way, a true judgment is secured. For the litigants accept the verdict, saying: "They judged us fairly." For the one found liable says: "I myself selected one judge, and if he could have found something in my favor, he would have." And the third judge himself is inclined to find something in favor of both, both having selected him.] These are the words of R. Meir. The sages say: The two judges select a third, [without the knowledge of the litigants, so that the third judge not be inclined to either one of them. The halachah is in accordance with the sages.] Each (of the litigants) may disqualify the judge of the other. [He may say to him: "I do not wish the case to be tried by the beth-din that you chose."] These are the words of R. Meir. The sages say: When is this so? When he brings proof against them [(the judges that the other selected)] that they are kin or (otherwise) unfit. But if they were kasher or expert, he cannot disqualify them. [This is the intent: But if they were kasher, i.e., neither kin nor (otherwise) unfit, even if they were "corner-sitters," they are regarded as experts, and he cannot disqualify them. The halachah: If the litigants accept someone to judge their case (whether one or many), and he rendered a decision, his ruling stands and they cannot controvert it, even if he is not "an expert for the many." And if it were found that he erred — If he erred in a ruling of the Mishnah or in something adduced in the Gemara, the case is returned and judged as per the halachah. And if it cannot be returned (as when the one who was awarded money erroneously, went abroad), the judge is exempt from payment; for even though he contributed to the (financial) loss, he did not do so intentionally. And if he erred in his judgment, in something where tannaim, amoraim, or geonim differ, the ruling being in accordance with one, and this judge ruling in accordance with that gaon whose ruling is not the accepted one — If he had not taken (money from one) and placed (it) into the hand (of the other), the case is returned. And if it cannot be returned, he pays from his pocket. And if had "taken and placed in hand," what is done is done, and he pays from his pocket. And a judge who had not been accepted by the litigants, but who arose (to judge) of himself, or one who had been appointed by the king or by some of the elders of the congregation — If he is not "an expert for the many," even if he was granted permission by the Exilarch, his ruling is no ruling, whether or not he erred, and he is not in the class of the judges, but in that of the "despots." And either of the litigants, if he wishes, may controvert his ruling and return the case to beth-din. And if he erred, and did not "take and place in hand," the case is returned. And if it cannot be returned, he pays from his pocket, as per the halachah for all who contribute to (monetary) loss. And if he "took and placed in hand," he pays from his pocket and he then takes (the money back) from the litigant he awarded it to contrary to the halachah. And "an expert to the many" who was accepted by the litigants or who was granted permission by the Exilarch — Even if he was accepted by the litigants; or if he were granted permission by the Exilarch, even if the litigants did not accept him — since he is an expert, if he erred, whether in a ruling of the Mishnah or in his judgment, and the case cannot be returned, he need not pay. And an expert who was granted permission by the Exilarch may compel the litigants to try their case before him, whether they wish to or not, both in Eretz Yisrael and outside it. And if one were granted permission by the Nassi in Eretz Yisrael, he can compel the litigants only in Eretz Yisrael. An "expert" is one who is versed in the written and the oral law and who can reason, draw comparisons, and understand one thing from another. And when he is recognized and acknowledged by the men of his generation, he is called "an expert to the many," and he may judge alone, even without having been granted permission by the Exilarch.] Each (of the litigants) may disqualify the witnesses of the other. These are the words of R. Meir. The sages say: When (may he do so)? When he brings proof against them that they are kin or (otherwise) unfit. But if they were kasher, he cannot disqualify them. [The Gemara construes the difference between R. Meir and the sages as obtaining in an instance where a litigant says: "I have two pairs of witnesses in this case," and he brought the first pair, and the other litigant and one other (witness) arose and said: "They are unfit." R. Meir says that they may do so, not being considered "interested witnesses," the first litigant maintaining that he has another pair. And if he seeks (that pair) and cannot find them, it is his loss. And the rabbis hold that even though he says at first that he has two pairs of witnesses, he may retract and say: "I have only these," so that the ones who come to disqualify them are considered "interested witnesses" and their testimony is invalid. The halachah is in accordance with the sages.]

Bartenura on Mishnah Sanhedrin

זה בורר לו אחד – One of the litigants selects for himself one judge for adjudicate for him and change his verdict to innocence. And similarly, the second [litigant] chooses for himself a judge, and two of the litigants together choose another third judge, and through this, a faithful and truthful judgment will result, for both litigants will listen the judgment and they will say that truth was adjudicated for us. For the guilty party will hold: “Behold, on my own, I chose the one, and if he is able to change the verdict to innocence, he would change it. And the third judge on his own is willing to change the verdict to innocence for both of them , because both of them (i.e., the litigants) chose him.

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English Explanation of Mishnah Sanhedrin

Cases concerning property [are decided] by three [judges].
This [litigant] chooses one and this [litigant] chooses one and then the two of them choose another, according to Rabbi Meir. But the Sages say: “The two judges choose the other judge.”
This [litigant] can invalidate this one’s judge, and this [litigant] can invalidate this one’s judge, according to Rabbi Meir. But the Sages say: “When is this so? When they bring proof against them that they are relatives or otherwise invalid; but if they are valid and experts, he cannot invalidate them.
This [litigant] may invalidate this one’s witnesses and this [litigant] may invalidate this one’s witnesses, according to Rabbi Meir. But the Sages say: “When is this so? When they bring proof against them that they are relatives or otherwise invalid; but if they are valid, he cannot invalidate them.
Chapter Three begins to discuss the court procedure in cases of financial matters, which only require three judges. The first mishnah discusses the selection of judges.
This mishnah contains three disputes between Rabbi Meir and the Sages with regards to the selection of judges and witnesses in cases concerning property disputes. All agree that the first two judges are selected by the litigants themselves, each litigant choosing one judge. However, Rabbi Meir and the Sages dispute with regards to the selection of the third judge. Rabbi Meir holds that the litigants together select a third judge and the Sages hold that the first two judges, those already selected by the litigants, are the ones to select the third judge.
With regards to the invalidation of the judges, Rabbi Meir holds that each litigant can indiscriminately invalidate the judge who was chosen by the opposing litigant. The Sages hold that the judges may only be invalidated on objective grounds, for either being relatives of the litigant or otherwise invalid. (We will learn more about the what cause a person to be invalid to be a a judge in mishnah three). If the judges are otherwise valid the opposing litigant may not disqualify them.
The Sages and Rabbi Meir have basically the same dispute with regard to witnesses. Note, that in this case Rabbi Meir’s opinion is much more radical. If a litigant can disqualify his rival’s witnesses without any due cause, how could anyone ever be convicted. The Talmud deliberates at length on this problem and makes several suggestions: 1) the litigant can only disqualify witnesses when there is only one witness. In such a case, since there are not the requisite number of witnesses, the litigant is not truly destroying his rival’s case; 2) the mishnah deals with a case where a person has two sets of witnesses, and the rival disqualifies only one set; 3) the rival has another witness who testifies with him that the other witnesses are disqualified; 4) the litigant claimed that the judges and witnesses were not valid. When it is established by independent evidence that he told the truth about the judges, he is believed with regard to the witnesses.
In any case, from the fact that there are four solutions to this problem, we can see how puzzling Rabbi Meir’s opinion truly is.

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Bartenura on Mishnah Sanhedrin

וחכמים אומרים: שני הדיינים בוררים להם אחד – without the knowledge of the litigants, in order that the heart of the third judge would not lean towards one of them. And the Halakha is according to the Sages.

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Bartenura on Mishnah Sanhedrin

זה פוסל דיינו של זה – He can say, I will not judge before the Jewish court that you have selected

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Bartenura on Mishnah Sanhedrin

בזמן שהביא עליהן ראיה – for this one brings evidence on one judge that he selected to invalidate him.

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Bartenura on Mishnah Sanhedrin

אבל אם הם כשרים ומומחים – This is how it should be understood: But if they were worthy in that they are neither relatives nor invalid, even though they sit on street corners, they became like specialists and he cannot invalidate them. The Halakhic decision on this is that when the litigants accepted who would judge them, whether for an individual or for the public, and he made a legal decision for them, his judgment is law and they cannot reverse his judgment even though he is not a specialist recognized by the public, and if it is known that he erred, if it is something from the Mishnah that he erred in or something explicitly written in the Gemara, they revoke the matter and re-judge it according to Halakha. But if it is impossible to revoke the matter such as the case that the person who took the money illegally went abroad, the judge is exempt form payment after they had accepted him [as judge] over them, for even though he caused for damage [to be done], he did not intend to cause damage. And if he had erred in his weighing between opposing views, and this is a matter that the Tannaim or Amoraim or Gaonim disputed about, but the general practice is like one off them, and the judge adjudicated like according to the words of that Gaon whose opinion was not like the general practice, if he did not engage in give and take by hand, he should retract the judgment, but if it is impossible to retract, he should pay from his own estate, and if he engaged in give-and-take by hand , what is done is done and he should pay from his own estate. But a judge whom the litigants did not accept but stood up on his own [to be a judge] or a king appointed him or some of the elders of the community appointed him, if he is not a specialist recognized by the public, even though he received permission from the Exilarch his judgments are not law, whether he erred or whether he did not err. And he is not amongst the judges but rather amongst those who act by force, and each one of the litigants if he wants, he reverses the decision and the judgment returns before the Jewish court. And if he erred and did not engage in give-and-take by hand, the judgment should be reversed, and if it is impossible to reverse it, he should pay from his estate according to the law of all who cause damage, and if he engaged in give-and-take by hand he should pay from his estate and return from what the litigant gave him which was not according to Halakha. But specialist recognized by the public whom the litigants accepted or that he received permission [to judge] from the Exilarch even though the litigants did not accept him, for such he is a specialist, if he erred in a matter whether from the Mishnah or from making a decision after weighing between opposing views, and it is impossible to reverse the decision, he is exempt from making payment. And a specialist who received permission from the Exilarch must force the litigants before him that they will adjudicate before him, whether they wanted to or did not want to, whether in the land of Israel or outside the land of Israel. And whomever received permission from the Nasi in the land of Israel cannot force the litigants other than only in the land of Israel. And he who is a specialist, is one who learned the Written Torah and the Oral Torah and knows how to think, to make analogies and to understand a thing from the midst of another thing (and he is called a specialist). And when he is recognized and known and his character/substance has gone out [and become known] among the men of his generation, he is called an expert recognized by the public, and he may judge singularly (i.e., alone) and even if he did not receive permission from the Exilarch.

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Bartenura on Mishnah Sanhedrin

זה פוסל עדיו של זה – This is a dispute between Rabbi Meir and the Rabbis which is maintained in the Gemara, for when a litigant said: “I have two sets of witnesses in the manner” and he brings the first set and the opposing litigant stands with one another [person] and says, they are invalid, Rabbi Meir states he and another [person] may invalidate them, and he is not an interested witness, for he said that he has another set [of witnesses], but if he requested and did not find [them] he loses. And the Rabbis think that even though he said at first: “I have two sets of witnesses,” he can retract and say “I do not have ought of these, and the person who comes to invalidate them is an interested witness but they are not invalidated by his mouth. And the Halakha is according to the Sages.

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