Commento su Sanhedrin 3:13

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.

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.

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.

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

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

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.

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.

נאמן עלי אבא – to be a judge. Even though he is ineligible from the Torah to judge me neither for acquittal nor for guilt, as we derive it from (Deuteronomy 24:16): “Parents shall not e put to death for children [nor children be put to death for parents: a person shall be put to death for his own crime].”

Introduction This mishnah deals with the ability of the litigant to retract on a deal he made before the trial began.

נאמנים עלי שלשה רועי בקר – to judge, for if it were for giving testimony, shepherds of cattle are valid.

This mishnah contains another two disputes between Rabbi Meir and the Sages. The subject in this mishnah is a litigant’s ability to retract when he has allowed the opposing litigant to suspend the usual court rules.

רבי מאיר אומר: יכול לחזור בו – even after the final decision has been rendered, after the judge has received and the testimony and declared that so-and-so, you are innocent/acquitted.

If one litigant said to the other, “I accept my father as trustworthy”, or “I accept your father as trustworthy”, or “I accept three herdsman as trustworthy”, Rabbi Meir says, “He may retract.” But the Sages say, “He cannot retract.” Usually relatives of either litigant are invalid as either judges or witnesses. Furthermore, criminals are not accepted as judges or witnesses. Herdsman were assumed to be thieves, since it was assumed that they would allow their herds to graze in others’ fields. However, Rabbi Meir and the Sages agree that if one was to accept a relative or a criminal as a judge or witness they could act as such. On the other hand, Rabbi Meir says that if, during the trial or even after the trial the litigant who accepted the relative or criminal were to change his mind, he could do so and ask for a retrial. The Sages say he may not retract. Once he has accepted the relative or the criminal he must accept the decision they make.

אינו יכול לחזור בו – after the final decision has been rendered alone, that the Rabbis dispute the [opinion of] Rabbi Meir, for prior to the final decision being rendered,, the Sages agree with Rabbi Meir that he can retract. And also if they acquired [something] from his hand, when he receives the testimony of a certain person or the judgment of a certain person, even prior to rendering a final decision, he cannot retract, because there is nothing after an affirmation/acquisition (by handing over an object from one to the other contracting parties). And this is the Halakha.

If one must take an oath before his fellow, and his fellow said to him, “Vow to me by the life of your head”, Rabbi Meir says, “He may retract.” But the Sages say, “He cannot retract.” In certain circumstances the defendant will have to take an oath that he doesn’t owe the plaintiff money or property (on rarer occasions the plaintiff is allowed to take an oath and collect from the defendant). The usual oath is one taken in front of a court, and it was considered an extremely grave matter. However, all agree that the other litigant could allow the litigant who must take the oath to take a more personal oath, one by his own head, and not have to take an oath in front of the court. Again, according to Rabbi Meir, if at a later point he wanted his opposing litigant to take an oath in front of the court, an oath that was considered to be graver, he may do so. As in the previous case, Rabbi Meir allows him to retract, whereas the Sages do not.

דור לי בחיי ראשך – Let us make a vow by the life of your head and I will give you what you demand/claim, and you do not have to say: “You are remitted for what I have that is with you.” And he makes a vow or acquires it from his hand, even though he had not yet taken a vow, he may not retract, according to the words of the Sages. And the Halakha is according to the Sages.

Questions for Further Thought:
• Why does Rabbi Meir allow the person to retract? What effect will Rabbi Meir’s permission to retract have on the opposing litigant?

ואלו הן הפסולים – to judge or to testify [as witnesses].

Introduction Mishnah three lists those people disqualified from testifying and judging.

המשחק בקוביא – is ineligible for testimony because he does not engage in the welfare of the world. For it is forbidden for a person that he should engage himself other than in [the study of] Torah and deeds of lovingkindness, or in business and crafts or work which have [as its purpose] the welfare of the world.

And these are they which are not qualified [to be witnesses or judges]:
A dice player, a usurer, pigeon racers, or traffickers in Seventh Year produce. Rabbi Shimon said: “In the beginning they called them ‘gatherers’ of Seventh Year produce, but after the oppressors grew many they changed this and called them ‘traffickers’ of Seventh Year produce.” Rabbi Judah said: “This applies only if they have no other trade, but if they have some other trade other than that, they are not disqualified.” There are four types of people who are disqualified from acting as witnesses or judges: 1) The first is a dice player, in other words a gambler. Such a person cannot testify since he is known to be a liar, especially with regards to monetary matters. Another reason is that he doesn’t participate constructively in building society. 2) A usurer. He is also probably considered to not be trustworthy in monetary matters. 3) A pigeon racer. Racing pigeons was a form of gambling. 4) Those who sell produce grown during the Seventh Year. According to Lev. 25:5-7 produce grown in the fields during the Seventh Year may be eaten by its owners, but it may not be sold. One who therefore sells Seventh Year produce is engaging in forbidden business practices which according to our mishnah make him not trustworthy to testify or act as a judge. Rabbi Shimon points out that this law actually was different in an earlier period. According to Rabbi Shimon at first the law was stricter and forbade even those who gathered Seventh Year produce from testifying or judging. Although eating from the fields was permitted, a person who gathered the produce was suspected of later selling it, which was prohibited. Therefore, they originally forbade even those who gathered Seventh Year produce from testifying. However, once the oppressors grew too many they relaxed the prohibition. In the Talmud it is explained that the “oppressors” refers to the Roman government which demanded taxes from the produce grown on the land, even during the Seventh Year. The Rabbis therefore permitted a person to gather his produce and give it for taxes. When this happened they decided to allow people who gathered Seventh Year produce to testify. Rabbi Judah adds an important qualification on those who are prohibited from testifying. These people are disallowed to testify only if they have no other profession. If gambling or racing pigeons was only a hobby or an irregular activity they could still act as witnesses or as judges.

ומלוה בריבית – both the borrower and the lender are ineligible, and we hold that both the lender and the borrower violate a negative commandment.

Questions for Further Thought:
• What is the reasoning behind Rabbi Judah’s opinion?

ומפריחי יונים – there are those who explain this – as one of a kind of game/competition: “If yuour dove will come before my dove, I will give you such and such.” And there those who explain this as one who raises doves who know how to bring [other] doves to the house of its master against their will. And there is in this theft because of the ways of peace, but not complete theft.

וסוחרי שביעית – who do business with seventh year produce, and the Torah stated: (Leviticus 25:6): “But you may eat whatever the land during its sabbath will produce...,” but not for business.

רבי שמעון אומר: – In the Gemara, it explains this matter of Rabbi Shimon as such: At first, they would call them “people who collect seventh-year produce for themselves,” who were ineligible for testimony, just like those who engaged in the business of seventh-year produce.

משרבו האנסין – those who request portions of the King – such and such Korim of grain in each year. And they needed to gather the grain of the seventh year to pay off from it the portions of the king. And they went back to call only those who do business with grain of the seventh year are ineligible [to serve testify] but those who collect grain of the seventh year to give to the king are valid for testimony, and since they don’t collect it to store for themselves. But with regard to Halakhic decision-making, whomever transgressed a sin which makes him liable for death by the Jewish court or extirpation or flogging, is ineligible for testimony. And those liable for death are called רשע/wicked, as it is written (Numbers 35:31): “[You shall not accept a ransom for the life of a person] who is guilty of a capital crime; [he must be put to death].” And regarding those who are liable for flogging, it is written (Deuteronomy 25:2): “And if the guilty one is to be flogged…” And the Torah stated (Exodus 23:10): “You shall not join hands with the guilty to act as a malicious witness.” And the Rabbis expound on “You shall not join guilty hands.” And if he is flogged, he returns to his validity [as a witness], as it is written (Deuteronomy 25:3): “Your brother be degraded before your eyes.” Since he was flogged, he is like your brother. And if he took money, not according to the law, even though he is not liable by it for death or flogging, he ineligible for testimony, such as a thief and a robber and one who lends at interest. But if he took monies which have a Rabbinical prohibition, he is Rabbinically ineligible for testimony, such as those who are dove-racers (i.e., pigeon-racers), and an extortioner who gave money and took an object that the owners did not want to sell, and the which the tax-collectors and the customs collectors , who took it for themselves, and those who receive tzedakah in public from the heathens, these and those like them are Rabbinically ineligible for testimony. And their testimony is not nullified until they announce about them and make them public knowledge. But those who are ineligible to testify from the Torah do not require announcement, and all who are ineligible to testify whether from the Torah or from their words (i.e., the Rabbis), if it is known from their affairs that they completely repented and the monies that they took illegally were returned and that they made a fence and a partition (i.e., a guard against transgressing the law) for themselves in that matter where they had sinned so that they would not add to do this any further; behold, these returned to the validity [for testimony]. But those who are dice players, even though there is now theft, even from their words (i.e., the Rabbis), they are ineligible for testimony, because they do not engage in the welfare of the world and lack the fear of heaven. And especially because they have no work or craft other than this, according to the words of Rabbi Yehuda. And this is the Halakha. And when is their return? When they break their dice and accept upon themselves that even for free they should not do this.

Introduction Mishnah four lists which relatives are forbidden to testify or act as judges at a trial.

These are the relatives [that are not qualified to be witnesses or judges]:
A suitor’s father, brother, father’s brother, mother’s brother, sister’s husband, father’s sister’s husband, mother’s sister’s husband, mother’s husband, father-in-law, or wife’s sister’s husband them and their sons and their sons-in-law; also the suitor’s step-son only [but not the stepsons’ sons]. Rabbi Yose said, “Such was the mishnah of Rabbi Akiva, but the first mishnah taught: ‘a suitor’s uncle, or his uncle’s son, and all that are qualified to be his heir. The first section lists relatives who are disqualified from testifying. The list is self explanatory, and only a few require explanation. A mother’s husband refers to someone who is not the suitor’s father. Any son or son-in-law of any of these listed relatives is likewise forbidden to testify. For instance one’s father’s brother’s son (a cousin) is forbidden to testify. The only exception is that the suitor’s stepson, i.e. his wife’s son from another marriage, is forbidden to testify but stepson’s son is allowed. Rabbi Yose gives us a glimpse into the development of the Mishnah. The previous clause was the mishnah of Rabbi Akiva, who lived from about 50-135 C.E. Rabbi Yose then relates the way it was taught before this time. While there are some legal differences between the two formulations, the most basic difference is that “first mishnah” used language that approximated Biblical style (see Lev. 25:49). This change from the earlier language to the later style which was more distinct from the Biblical language, may signify the growing independence of the Oral Torah from the Written Torah. It seems likely that in an earlier stage the Oral Torah was usually preserved as an exegesis or midrash on the verses of the Torah. The advantage to this system was that the Torah was a text known to most. The second advantage was that it was clear that Rabbinic law attained its authority by its being an interpretation of Biblical law. However, the biggest detriment was its lack of organization. Many laws appear in parallel forms in several books of the Torah. For instance laws concerning slavery appear in Exodus, Leviticus and Deuteronomy. Laws concerning the redemption of the first born appear in Exodus, Leviticus, Numbers and Deuteronomy. One who wished to know the law would not know where to find it. One of the innovations of Rabbi Akiva was to sort Jewish law into topical tractates. In our mishnah we see that as this processed developed the language of the laws changed from Biblical to Rabbinic Hebrew. As far as substantive differences between the first mishnah and Rabbi Akiva’s mishnah. There are three potential differences: his mother’s sister’s husband, his mother’s husband and his wife’s sister’s husband. These three men are not potential inheritors and therefore could testify according to the first mishnah, but they may not according to Rabbi Akiva’s mishnah.

Moreover all that were kinsmen at the time [are disqualified]; but kinsmen that have ceased to be kinsmen become qualified.” Rabbi Judah says: “If a man’s daughter died and left children, her husband still counts as a kinsman.” Only if the relative is a current relative may he not testify. If the relationship is by marriage and it is severed through divorce before the trial, the formal relative may testify. Rabbi Judah states that there is one exception to this rule. If a daughter married a man and had children the husband cannot testify, even after the daughter dies. Since the children bind the husband to the grandfather, he is still considered to be a relative.

שושבינו – this friend from the days of his wedding, he is ineligible to him all the days of the wedding [week].

A friend or an enemy [is disqualified]. “A friend”: this is one’s groomsman. “An enemy”: anyone whom he has not spoken to in three days because of anger.
They replied: “Israelites are not suspected of such.”
Mishnah five continues to discuss those people who are disqualified from testifying or acting as judges.
The first clause in the mishnah states that one may not testify or judge in a trial involving one’s friend or enemy. The next two clauses define the first clause. “A friend” who is disqualified from testifying or judging is a man’s groomsman, a person who helped him celebrate his wedding. “An enemy” is anyone with whom one has not spoken for three days due to anger.
It must be assumed that the first three clauses are a continuation of Rabbi Judah’s words, begun in the previous mishnah. The Sages in section 1d respond to Rabbi Judah by claiming that Jews are not suspected of lying in court because they are testifying with regards to a friend or enemy. Therefore, a person may testify and judge in cases involving a friend or an enemy.

לא נחשדו ישראל על כך – to testify falsehoods because of enmity and love. And such is the Halakha. And especially in testimony, the Rabbis dispute this, but by law, the Rabbis admit that he is ineligible to judge, for if he would be merciful to him, he would not be to see him as guilty; and it he hates him, he would not be able to reverse his ruling to make him innocent.

ומאיימין עליהם – we inform them that those who hire false witnesses despise them themselves and we call them “wicked,” as it is written concerning Naboth [and his vineyard] (I Kings 21:10): “And seat two scoundrels opposite him and let them testify against him: [You have reviled God and king!]...,” for the advisers of the king who were advisers who had been hired, we call them, “scoundrels.”

How do they check the witnesses?
They bring them in and warn them, and then they take them out and leave behind the most important of [the witnesses].
And they would say to him: “State [for us], how do you know that this one is in debt to this one?” If he said, “He said to me, ‘I am in debt to him’, or ‘So-and-so said to me that he was in debt to him’”, he has said nothing. He must be able to say, “In our presence he acknowledged to the other one that he owed him 200 zuz.”
Afterward they bring in the second witness and check him.
If their words were found to agree, the judges discuss the matter.
If two say, “He is not guilty” and one says, “He is guilty”, he is not guilty. If two say, “He is guilty” and one says, “He is not guilty”, he is guilty. If one says, “He is not guilty”, and one says, “He is guilty”, and even if two declared him not guilty or declared him guilty while one said, “I do not know”, they must add more judges.
Mishnah six begins to describe the process of the interrogation of the witnesses.
This mishnah describes the process by which the judges would examine the testimony of the witnesses. Keep in mind that the mishnaic court system did not include lawyers. Rather the discussion was conducted directly between the litigants and the judges.
(1) The first step is to warn the witnesses of the seriousness of testifying in a court. (2) The second step was to remove all but one of the witnesses, so that they would not merely mimic each other’s testimony. Jewish law is strict in requiring two independent witnesses, and one may not therefore learn of his testimony from another. (3) They could now begin interrogating the most important of the witnesses. The witness is asked how he received that information that so-and-so owes someone money. The only answer that is accepted as valid testimony is for the witness to say that he saw the defendant actually admit to the plaintiff that he is in debt to him. If a third party told the witness that the defendant was obligated, or even if the defendant himself admitted such, the testimony is not accepted. (4) Afterwards they repeat the process with the second witness. (5) If the testimony of all of the witnesses is found to be in agreement, the judges discuss the matter. (6) A majority decision is always accepted as binding, as long as all of the judges have made a conclusive decision. If one of the judges said that he did not know they must add more judges until there are three judges who have actually rendered decisions. In other words, one who cannot render a decision is not counted as one of the necessary three judges to make up a court of three.

הוא אמר לי – the borrower said to me

לא אמר כלום – that a person does when he says “so-and-so loaned me” in order that people should not consider him rich.

הודה לו – for both of them were in our presence and to admit to him tha thtey they had the intention, to be for him witnesses in this matter.

אפילו שנים מזכין או מחייבים ואחד אומר איני יודע יוסיפו הדיינים – and even though that if he had disputed them, he would be nullified in his minority. For when he said, “I don’t know,” it is like he had not sat in judgment; it was found that the judgment was with two and we require three.

היו מכניסין אותן – to the litigants. For after they had heard their claims, they would remove them to the outside, in order that they could engage in give-and-take on the matter and the litigants would not [be able to] hear who declares whom guilty and whom innocent.

When the judges reached their decision they would bring in the litigants.
The chief among the judges says: “You, so-and-so are not obligated”, or “You, so-and-so are obligated”.
And from where do we know that after one of the judges has gone out that he may not say, “I declared him not obligated and my colleagues declared him obligated, so what can I do since they outvoted me?” Of such a one it says, “Do not go about as a talebearer amongst your people” (Lev. 19:16) and it also says, “He that goes about as a talebearer reveals secrets” (Proverbs 11:13).
Mishnah seven describes the court procedures at the end of the trial.
At the end of the trial, when the judges have reached their verdict the most important of them would announce whether or not the defendant was obligated to pay the plaintiff. In addition the mishnah warns judges that when the trial is completed the judge who disagreed with the verdict of the majority may not walk out and announce to the public his disagreement. Such a person is considered to be the type of “talebearer” censured by the Torah.

הבא ראיה – document of innocence/acquittal

So long as a litigant can produce proof he may overturn the verdict.
If they had said to him, “Bring all of the proofs that you have within thirty days” and he brought them within thirty days, the court may overturn the verdict. But if he brought any proof after thirty days, the court cannot reverse the verdict. Rabban Shimon ben Gamaliel said: “What could he have done that he did not find [the proof] within thirty days but found it after thirty days?”
If they had said to him, “Bring witnesses” and he said, “I have no witnesses”, or [if they said], “Bring proof”, and he said, “I have no proof”, and he later found proof or witnesses, then they are totally invalid. Rabban Shimon ben Gamaliel said: “What could he have done that he did not know that he had witnesses, then found witnesses, or that he did not know that he had proof, then found proof?
If they had said to him, “Bring witnesses” and he said, “I have no witnesses”, or [if they said], “Bring proof”, and he said, “I have no proof”, but when he saw that he was about to be found obligated, he said, “Come near, so-and-so and so-and-so and testify for me!”, or if he brought forth some proof from his wallet, then they are totally invalid.
Mishnah eight discusses the ability of the litigants to overturn the verdict by bringing new evidence (physical proof or witnesses) after the trial.
Mishnah eight discusses the situation where a person did not bring proof or witnesses until after he was found to be obligated. If the court had not told him that he had a time limit on bringing such evidence, he may always bring it and thereby give the judges reason to overturn the verdict. If, however, the court had set a time limit on his bringing proof or witnesses, and that time limit elapsed, he may no longer attempt to overturn the verdict. Since the court set a time limit, anything brought afterwards is not considered relevant to the trial. Rabban Shimon ben Gamaliel disagrees with this time limit. According to him even if a time limit was set, if the defendant should find new evidence he may bring it to the court’s attention and have the decision overturned. In other words there is a dispute between Rabban Shimon ben Gamaliel and the Sages (the anonymous opinion), the former holding that time limits are irrelevant and the latter that they are valid.
The final clause of the mishnah contains an opinion to which even Rabban Shimon ben Gamaliel agrees. Even though he generally allows evidence to be brought later, if it is clear that the defendant could have known about the evidence and chose not to use it and then produced it just at the moment when the verdict was about to be delivered against him, the evidence is invalid. In such a case we may rightfully wonder why he didn’t bring the evidence earlier and we suspect him of lying.

הרי זה אינו כלום – For behold he said, “I don’t have it.” And we suspect that lest it is forged or he hired false witnesses.

אמר רבן שמעון בן גמליאל – But the Halakha is not according to Rabban Shimon ben Gamaliel.

קרבו פלוני ופלוני והעידוני – In this, even Rabban Shimon ben Gamaliel admits, that since he had known about them and said “I don’t have it.” He is definitively a liar. But the person who claims that he has witnesses or proof abroad, we don’t listen to him to delay the execution of capital punishment until he sends [for the materials that are] abroad. But we decide the law according to what we see from him right now. And when he brings witnesses or proof, we overturn the verdict and return and judge according to the witnesses or the proof that he brought.

אפונדתו – girding, wearing apparel for travelling; and there are those who explain it as clothing that is close to his skin.

One [of the litigants] who accepted a relative¹Yad, Sanhedrin VII, 2. Derived from Mishna San. 24a: ‘If one (of the litigants) said to the other, I accept my father as trustworthy,’ or ‘I accept your father as trustworthy,’ or ‘I accept three oxherds as trustworthy.’ R. Meir says, He may (subsequently) retract; but the Sages maintain, He cannot retract.’ By stating ‘father’ we derive that accepting a relative is valid. or an [otherwise] ineligible person²Mishna ibid.: ‘I accept three oxherds as trustworthy,’ whence we derive the law of accepting an ineligible person. For an oxherd is ineligible to judge or to testify — v. San. 25b: ‘Raba stated: The oxherds to whom (the Sages) have made reference include the oxherds of both large and small cattle.’ Therefore, we are informed that if they were accepted by the litigants, it is valid. , also ibid. 24b: ‘Raba stated: If one accepted a relative or an (otherwise) ineligible person (to act as Judge or witness), he may retract before the conclusion of the trial, but not afterwards.’ Gemara concludes that Raba’s statement agrees with R. Joḥanan according to the view of the Sages in the Mishna. to act as a Judge³San. 25b: ‘For we learnt: (If one says), I accept three oxherds as trustworthy (they are acceptable [which means that otherwise they are ineligible]). Does this not (mean that ordinarily they are ineligible) for witnesses? — No, for Judges. This is also apparent from the expression three oxherds; for if it means eligible as witnesses, why three?’ Hence, if they were accepted, it is valid and according to the Sages, he may not retract. or a witness⁴San. 23b whence it is derived that acceptance of an otherwise ineligible person to act as witness is on the same par as accepting him to judge. The entire Mishna in San. 24a deals with a case where the acceptance took place before a Court of three eligible Judges (v. Y. San. III, 5(21a)). For if outside of the Court and there was no formal agreement made by Kinyan, the law is that even after the conclusion of the trial, he may retract according to all the authorities — Hag. Asheri on the authority of O.Z. N.Yos. and R. Yeruḥam (to B.B. VIII) on the other hand, maintain that the relatives or otherwise ineligible persons were not accepted before a Court; but if their acceptance was before a Court, then even before the conclusion of the trial, he may not retract — ShaK. Tummim writes that actually there is no difference whether they were accepted before a Court of Law or not. For once the pleas are presented before them they enjoy the status of a Court and it is regarded as if the acceptance took place before a Court of Law. The acceptance of a relative is valid only where the litigant knew that this was his relative, but if he pleads that he was unaware that he was his relative, the law is that he must take an equitable oath (v. supra § 1, n. 2) and may retract (BaḤ). However, if the litigant used to visit him and now he states that he was unaware that he is his relative, he is not regarded trustworthy (v. infra § 36, 2). Where the litigant claims that he was unaware that the accepted person was ineligible, the following distinction should be borne in mind: If the person is Rabbinically ineligible, in which case a public announcement is usually made in Court proclaiming him as such — then the litigant is not believed (v. ShaK infra § 71, n. 31) because all judicial matters are publicized; whereas in the case of an ineligible person who does not require a public announcement proclaiming him as such — the litigant is regarded trustworthy — P.Tesh. If the relative reveals that he is obliged to help and support the litigant, the latter’s acceptance of him is invalid (Keneseth ha-Gedolah). Shebuth Ya‘akob reports a case concerning a woman who left instructions prior to her death that if any dissension will arise between her sons, a certain relative of hers should adjudicate their case, and the sons obligated themselves by means of ‘striking hands’ (תקיעת כף) to follow the decision of that relative, and now one of the sons refuses to be tried before him, claiming a) that the latter is an illiterate person who is incompetent to adjudicate such matters, or at least others should be co-opted forming a Beth Din; b) that this person is more favourably disposed to one of the other brothers. Resp.: The law is that regarding the Talmudic principle ‘It is a religious duty to carry out the instructions of a dying person’ (Ket. 68b-70a; Git. 14b, 15a, 40a), it would not be applicable in this case (v. infra § 252, 2; Y.D. § 232, 17, Gloss); but as far as the obligation effected through ‘striking hands,’ the instructions must be carried out, and as to a) he knew about this at the outset and yet accepted him; b) every vow, the release of which, brings in its wake the ‘least suspicion of sin’ (נדנוד עבירה), should not be annulled (v. Y.D. § 230, Gloss). Hence, in the present case there is still a ‘suspicion of sin’ against his mother because he should carry out the instructions of his mother, albeit in the category of ‘fulfilling his duty beyond the requirements of the law,’ although strictly speaking this is not applicable in the present case — P.Tesh. — Gloss: the acceptance is regarded [valid] only when [the litigant] accepted him to act as Judge; but if he deposited money with him regarding which they were in dispute, it is not designated [valid] acceptance⁵RIBaSh s. 311 — G. This refers to a case where one took an oath to pay his fellow on a certain date, and when the time for payment arrived, he deposited the money with the town Judge in order to fulfil his obligation effected through the oath, and instructed the Judge not to deliver the money to the other party because he had a claim against him and the Judge was related to him. Consequently, since the litigant did not accept the Judge explicitly, the acceptance is not valid and the judgment has no legal consequences — M.E. — even if he accepted one of those ineligible on account of sin as [equivalent to] two eligible witnesses to testify on his behalf or [he accepted him] as three of a Court of Law [of] authoritative [Judges] to adjudicate [the case] for him.⁶Yad, Sanhedrin VII, 2. Derived from San. 24a (ref. to Mishna ibid.): ‘R. Dimi b. R. Naḥman b. R. Joseph stated: (The Mishna has reference to a case) e.g., where he (the litigant) accepted him (i.e., one of those mentioned) as one (of the three Judges).’ According to Rashi this refers to R. Meir’s viewpoint and it means that even if there are two other eligible Judges, R. Meir maintains that he may retract, whence it follows that according to the Sages, both if he accepted him as one of the Judges or as three, he cannot retract. ‘An ineligible person’ is mentioned here in order to introduce a remarkable feature, viz., that even one who is disqualified to offer testimony in any other case. Much more so in the case of a ‘father,’ who is eligible to offer testimony in other cases, is the acceptance considered valid where the latter was accepted as two witnesses or three Judges — M.E. Gloss:⁷This Gloss should come after ‘he can … legal proceedings are closed’ anon — M.E. Some differ [with this ruling] and are of the opinion that [this is applicable] only if he accepted a relative or an [otherwise] ineligible person as one Judge or as one witness; but if he accepted him as two [witnesses or as three authoritative Judges] in which case there are two irregularities — [the law is that] even after the legal proceedings are closed, he may retract.⁸Thus Alfasi to San. III contra Gaon who maintains that even if a formal Kinyan was made before a Beth Din, he may retract, since it was a Kinyan made in error. Cf. Sheb. 42a: ‘A certain (man) said to his fellow: You are believed by me like two whenever you claim that I have not paid you. He went and paid him before three. Said R. Papa: He believed him like two but like three he did not believe him. To this R. Huna b. R. Joshua objected: Two are like a hundred and a hundred are like two! But if he said to him: Like three, and he went and paid him before four (witnesses, the lender is not believed), for since he cares to mention a certain number of opinions (that he believes him like three people) he means (exclusively) that number of opinions (for otherwise he would have mentioned only two who are equivalent to any number).’ There must have been a formal Kinyan made, for if the statement of credence was made at the time the loan was transacted it is equivalent to Kinyan; otherwise formal Kinyan is required. We thus see that as far as two are concerned the lender is believed according to all opinions, although there were two irregularities (תרתי לריעותא), a) he believed the lender himself; b) he considered him as two witnesses. Likewise in the present ruling there are two irregularities, a) one Judge was accepted like three; b) even he was Biblically ineligible. Hence even in the case of two irregularities, once a Kinyan was made he may not retract on the principle ‘nothing else is required after Kinyan is effected’ (אין לאחר קנין כלום). Should he, however, appoint another Court to deal with the case, the latter must adjudicate the case in accordance with the pleas and admissions presented before the first Court (provided there was a formal Kinyan made. Thus Nethiboth) — M.E. on the authority of RaShBA Resp. If he accepted one eligible Judge like three experts (Mumḥin) or one eligible witness like two and the trial was concluded he may not retract (since there is only one irregularity) — M.E. and later authorities contra ShaK. , P.Tesh. Likewise, if he accepted three ineligible persons (simultaneously. , P.Tesh) like three eligible ones, he may not retract, since there is only one irregularity — Tummim. , however, K.H. Thus is the common consent of the majority of the Codifiers.⁹In accord with San. 23b, Tosaf. s.v. ואמר who point out that R. Dimi’s statement (v. supra n. 6) refers to the view held by the Sages, viz., that he may not retract; but if he accepted one as the equivalent of a complete Court, even the Sages will agree that he may subsequently retract on account of two irregularities involved. ShaK, however, cites many authorities who accept the first opinion. However, if they made a formal agreement with him by means of a Kinyan, in nowise may he retract.¹⁰e., even if they accepted one witness as two — M.E. Thus Alfasi. Derived from Sheb. 42a. , supra n. 8. Whether he accepted to forfeit his rights and to remit whatever he claimed in accordance with their verdict or he accepted to pay whatever claim his fellow [-litigant] will make against him according to the evidence of this ineligible person or according to his legal decision¹¹San. 24b: ‘R. Naḥman b. R. Ḥisda sent a query to R. Naḥman b. Jacob: Will our Master kindly teach us, Is the difference of opinion (between R. Meir and the Sages) before or after the verdict (is given), and with whom does the law accord? — He sent back word: The difference of opinion has reference to the close of legal proceedings (i.e., after the verdict is given) and the law rests with the Sages. R. Ashi stated: This was the query he sent: Do they differ in a case where (the defendant says) I will pay your claim, (if such is the verdict), or with regards to (a case where the plaintiff says) Let my claim against you be remitted (should this be the final verdict. The point is this: In the former case money will be transferred from one party to another, and consequently more power must be exercised; in the latter case, less authority is required, since the possessor has a presumption of ownership) and with whom does the law accord? — He replied: The controversy is with reference to I will pay you and the law accords with the Sages.’ — [the law is that] if they made a formal agreement with him by means of a Kinyan relative to this [matter], he cannot retract; but if they did not make a formal agreement with him by means of a Kinyan, he can retract before the legal proceedings are closed.¹²San. 24b: ‘A message was dispatched from the School of Rab to Samuel as follows: Will our Master kindly teach us, (If one of the parties) made a formal agreement by Kinyan (not to retract), what (if he desires to retract) before the verdict is given? — He sent back word: After a formal agreement is made by means of Kinyan, nothing (can be done to retract from the pledge).’ Although this (i.e., not to retract) appears to be ‘a mere verbal agreement’ (קנין דברים), i.e., that of which ownership is acquired by means of the Kinyan is only a verbal promise, and does not involve any concrete article, — yet, we do find that the Kinyan binds him in his undertaking (v. B.M. 67b; B.B. 3a; supra § 12, n. 31). Thus N.Yos. RaBaN maintains that the Kinyan is binding only when the litigant pledges himself to follow the verdict of the Court or to accept the evidence of the witnesses — ShaK. Supra § 12, 2 it has been explained what is considered the close of legal proceedings.¹³e., when the pronouncement is made: ‘So-and-so, you are guilty’ or ‘So-and-so, you are not guilty,’ and much more so when they say to him ‘Go and pay him’ which indicates that a definitive decision has been reached. Not so, however, when they say to him, ‘You are obliged to pay him,’ for such a statement is indicative that they are still in doubt — M.E. ShaK adds that the legal proceedings are also considered closed when the litigants leave Court. And as to the matter of evidence, — [the law is that] as soon as [the witnesses] have testified, he cannot retract.¹⁴RIBaSh s. 490 and Mord. — G. Thus also majority of Codifiers. , Sheb. 30b. [As soon as] the legal proceedings are closed, he cannot retract¹⁵San. 24b. , supra n. 1 Yad, Sanhedrin VII, 2 has ‘Once the legal proceedings are closed and money was exacted through the verdict of this ineligible person or through his testimony, he may not retract.’ Kes. Mishneh explains that it does not necessarily mean that money had been exacted, but that since the legal proceedings are closed it is as though money had been exacted. The litigants are not permitted to retract even if they both agree, the reason being that out of deference to the Judge, the verdict must stand unless the litigants wish to make a complete remission to each other — B.Yos. provided it did not become known that [the Judges] erred [in their decision].¹⁶San. 6a: ‘R. Abbahu stated: All concur that a decision given by two (Judges) in civil cases is not valid. R. Abba raised an objection (from the following): If one adjudicated a case by himself and pronounced the guilty, not guilty, and the not guilty, guilty, or the unclean, clean, his act cannot be upset, but he (the Judge) has to pay from his own pocket (This clearly shows that the decision of one Judge also stands)? — We deal here with a case where the litigants accepted the Judge. If so, why should the Judge) pay indemnity? — Because they (the litigants) said to him: Adjudicate the case for us in accordance with the law of the Torah.’ The Talmud (ibid.) concludes that if the Judge erred in his decision by overlooking a law stated in the Mishna, he may revoke his decision; but if he made a mistake in deciding against common pratice, his act cannot be undone and he must pay from his own pocket. It is thus evident that whenever the litigants accept the Judge, even if he is ineligible, then even if a Kinyan was effected, it is only on condition that no error should be made. Otherwise they may retract. Cf. Git. 14a: ‘R. Naḥman said, If a formal agreement by means of Kinyan was effected in error, the money must be returned.’ In a case where the Judges erred in their decision and the litigant is then permitted to retract, he is allowed to present his case anew and even alter his original pleas. Furthermore, the second Court of Law gives the litigant a new extension of time to produce his proofs or other required evidence. If the litigants accepted the Judges to adjudicate their case in accordance with strict law, and they (the Judges) made a settlement through arbitration, this too, is considered an error in judgment and even if the litigants bound themselves by a Kinyan, they may retract — M.E., ShaK. However, if they are [the] duly appointed [Judges] in the city or the representatives of the town, he cannot retract,¹⁷For in such a case it was known that the Judges are incompetent, and consequently, when they were accepted by the litigants, it meant that their decision would be followed even if it were erroneous since they are the representatives of the town. , infra § 25. In this case even if the litigants accepted them to Judge in accordance with the law of the Torah and the latter instead made a settlement by arbitration, their decision is still binding — M.E. If the Judges were accepted before the representatives of the town (even three of the representatives. Not necessarily the entire seven) even Kinyan is not required (v. infra § 163 end) — M.E., ShaK. Hence, even before the conclusion of the trial, one may not retract. Not so, however, if the acceptance took place before three Judges who are not the town representatives. In this case one may retract only before the conclusion of the trial — ShaK. for thus is the adopted practice [viz.,] that whatever a person accepts before the heads of the town, he cannot retract.¹⁸Tesh. Maim. to Shofetim end — G. If [the litigant] denies [this] and states, 'I did not accept [him] to act as Judge,' and there are no witnesses [to confirm this] statement, he must take an oath that he did not accept him [as Judge] even if the Judge contradicts him and stated that he [the litigant] did accept him.¹⁹Tur and Asheri in Resp. e., he takes an equitable oath (שבועת היסת), because the Judge is not regarded as a witness in order to obligate the litigant to take a Biblical oath (שבועה דאורײתא) for the following reasons: a) Since we deal here with a relative or one otherwise ineligible; b) The litigant does not deny any monetary claim save that he did not accept him as Judge in which case a Biblical oath is not imposed — M.E. ShaK (followed by W.G.) rejects the latter reason and maintains that this is certainly regarded as a denial of a monetary claim. Hence, where the Judge is eligible, the litigant would have to take a Biblical oath. Nethiboth writes that we consider the litigant’s statement a denial of a monetary claim only after he was pronounced guilty by the Judge; but if he was not yet pronounced guilty save that the Judge claims that the litigant accepted him by means of a Kinyan to act as Judge, it is not considered a denial of a monetary claim. If two of the Judges are eligible persons all agree that they are believed when they state that they were accepted as Judges. [In the case of] a public that has recognized unlearned Judges as authorities over them, the litigants cannot prevent [them from trying their case].²⁰R. Yeruḥam Path II, Pt. 13 — G. , supra § 8, 1 and notes. Cf. supra n. 17.