Komentarz do Sanhedryn 3:2

אָמַר לוֹ נֶאֱמָן עָלַי אַבָּא, נֶאֱמָן עָלַי אָבִיךָ, נֶאֱמָנִין עָלַי שְׁלֹשָׁה רוֹעֵי בָקָר, רַבִּי מֵאִיר אוֹמֵר, יָכוֹל לַחֲזֹר בּוֹ. וַחֲכָמִים אוֹמְרִים, אֵינוֹ יָכוֹל לַחֲזֹר בּוֹ. הָיָה חַיָּב לַחֲבֵרוֹ שְׁבוּעָה וְאָמַר לוֹ דּוֹר לִי בְחַיֵּי רֹאשְׁךָ, רַבִּי מֵאִיר אוֹמֵר, יָכוֹל לַחֲזֹר בּוֹ. וַחֲכָמִים אוֹמְרִים, אֵין יָכוֹל לַחֲזֹר בּוֹ:

Gdyby ktoś powiedział: „Ufam mojemu ojcu” [być sędzią, chociaż Tora wyklucza go z osądzania mnie, zarówno za uniewinnienie, jak i za odpowiedzialność, a mianowicie. (Księga Powtórzonego Prawa 24:16): „Ojcowie nie będą zabijani przez synów”], „Ufam twemu ojcu”, „Ufam trzem pasterzom bydła” [sądzą (jako świadkowie są oni kasher)]—R. Meir mówi: On może się wycofać [nawet po orzeczeniu, po tym, jak sędzia przyjął zeznanie i powiedział: „Tak i tak jesteście uniewinnieni”]. Mędrcy mówią: On nie może się wycofać. [Rabini różnią się od R. Meira tylko (w jednym przypadku) tam, gdzie ogłoszono werdykt; ale zanim to zostało ogłoszone, mędrcy zgadzają się z R. Meirem, że może się wycofać. A także jeśli oni (sędziowie) „wynieśli z jego ręki” (przez symboliczny akt), że przyjmie zeznanie lub osąd pewnego człowieka, to nawet przed werdyktem nie może wycofać się, ponieważ „nic nie wyprzedza przejęcia (kinyan) ”. A to jest halacha.] Jeśli ktoś był winien swojemu bliźniemu przysięgę, a on (ten drugi) powiedział mu: „Przysięgnij mi na życie swojej głowy” [a ja dam ci to, o co prosisz (i, jest rzeczą oczywistą: „Zrzekam się mojego roszczenia wobec ciebie”), a on przysiągł, że albo „nabyli z jego ręki” (że przysiągł), chociaż jeszcze tego nie uczynił, nie może wycofać się (jak mówią mędrcy. To jest halacha.)] R. Meir mówi: On może się wycofać. Mędrcy mówią: On nie może się wycofać.

Bartenura on Mishnah Sanhedrin

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].”

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English Explanation of Mishnah Sanhedrin

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

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Bartenura on Mishnah Sanhedrin

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

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English Explanation of Mishnah Sanhedrin

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.

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Bartenura on Mishnah Sanhedrin

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.

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English Explanation of Mishnah Sanhedrin

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.

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Bartenura on Mishnah Sanhedrin

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.

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English Explanation of Mishnah Sanhedrin

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.

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Bartenura on Mishnah Sanhedrin

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.

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English Explanation of Mishnah Sanhedrin

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?

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Shulchan Arukh, Choshen Mishpat

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.

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