Sanhedrin 061

1:
After the first witness has been examined by the arbitrators and the details of his testimony have been established, he leaves the court and the other witness is introduced. The two witnesses may not hear each other's testimony. The second witness is subject to the same examination as the first: firstly his evidence must demonstrate that there is a case to answer; secondly his evidence must present the details of the case. If their evidence is technically at variance then the case is dismissed. But assuming that their evidence establishes the same fact (of the loan having been made) and the same details (amount, conditions and so forth) – then the arbitrators must debate the matter among themselves.

2:
The Hebrew word for "debate" is "Diyyun", and this is the etymology of all terms connected with this topic: the "Dayyan" is one who takes part in this legal debate; the "Bet Din" is the place where this debate takes place – and so forth. Thus, after the evidence has been heard it is the task of the judges to evaluate the evidence. In this we see a major difference between Halakhic jurisprudence and western jurisprudence. In the middle ages English barons managed to extract from the crown an agreement that none of their number could be tried except by his "peers" (equals) and not by a superior, such as the king. From this has developed the western custom of trial by a "jury of one's peers" – fellow citizens. The jurors swear an oath (from the old French spoken by the aristocracy in Medieval England: juror, to swear an oath) that they will faithfully and honestly evaluate the evidence presented in the case. Thus there is a dichotomy of tasks: the jury decides the facts whereas the judge decides the law. In Halakhic jurisprudence the Dayyanim judge both fact and law.

3:
Thus the "debate" of which our mishnah speaks must be understood as being very similar to what goes on in a jury room in cases tried under western law – except that the "Din" of course, took place in the "Bet Din" (courtroom) and could be heard by the public. We shall discuss this in much greater detail when we come to study Dinei Nefashot [capital crimes], so we shall just note the fact at this stage without discussing it.

4:
It is inevitable that the judges will come to differing conclusions. Indeed, in Dinei Nefashot a unanimity of the judges in favour of condemnation is considered a serious drawback. In Dinei Mamonot (the monetary matters that are the subject of our present mishnah) unanimity is not a problem, but diversity is expected. The legal rule (which we shall also discuss at length in connection with Dinei Nefashot, and not now) is that the outcome of the case is decided according to the majority. Thus it is enough for two of the three judges to concur for the matter to be decided according to their view and the differing view of the third judge can be ignored (since he has failed to convince at least one of the others to accept his view).

5:
However, if one of the judges declines to give an opinion he is not "judging". This leaves only two judges, which is against Halakhic legal procedure. Rambam [Sanhedrin 8:2] says that two more arbitrators are co-opted from the public, and they now become part of a five-man panel, which starts the debate all over again. If a majority view is reached the matter is decided according to the majority, even if one is still undecided (since the requirement of deciding a matter with at least three judges has now been fulfilled). However, if one is still undecided and the other four are equally divided, Rambam says that two more must be co-opted to form a seven-man panel, and the evaluation starts all over again. In theory this could continue until a panel of seventy-one members (!) has been created. If this panel is still "hung" because they are equally divided and one insists that he "does not know" how to decide, then, says Rambam, the case must be decided according to the legal presumption that "money belongs to its possessor" at this moment. Rambam's great "antagonist" Rabbi Avraham ben-David of Posqières in the French Provence [1125-1198] reads the situation entirely differently, but again let us leave this to be discussed in detail under the rubric of Dinei Nefashot.

In our last shiur I wrote that the provisions of our mishnah must seem very strange to modern usage. We ask ourselves why anyone who had lent someone else a sum of money would not secure the loan with the debtor's signature on an IOU at the very least. Somewhat surprisingly, this innocent remark has generated more correspondence than usual – some of it very interesting and very original.

Jeffrey Morris writes:

This doesn't seem strange to me. Suppose I was illiterate what good would a piece of paper written by a scribe be to me? How do I verify that the document was written correctly?

I respond:

I don't see why we should presume illiteracy, which – it seems from historical evidence – was comparatively rare in most periods and in most parts of the Diaspora. But even assuming illiteracy, one could ask someone else to check the contents of the IOU before handing over the money. (One of the tasks of the Court is to decide whether you are being "done" by your debtor or not.)

Ron Kaminsky writes:

Personally, in such a situation, I would be a bit nervous about being one of only two witnesses to a large transaction. The debtor would have a large financial incentive to kill me, or silence me in some other way. And in addition, it would seem only prudent of the creditor that more than two witnesses should be present, because of the risk of one or more witnesses dying a natural death before the debt is repaid. Is there any historical information about the general relationship between transaction size and the number of witnesses used? Regarding the "cultural considerations at play", the most obvious explanation would be that a large percentage of the population was illiterate.

I respond:

There has never been any legal relationship between the size of the loan and the number of witnesses: two are enough! I have already indicated that I do not see why we should assume widespread illiteracy.

Arnie Kuzmack writes:

In order to understand loans in the Talmud, we have to realize that these were not commercial transactions. Since interest was forbidden, there is no economic reason for anyone to make a loan. Rather, they were acts of friendship bordering on charity. So it is not hard to understand that the lender might not want to implicitly accuse his friend of dishonesty by asking him to sign an IOU (with witnesses). That many of these cases ended up in court shows again that "loan oft loses both itself and friend". On a minor point, the shvuat heset is Talmudic, not an invention of later poskim. See Shvuot 40b. Also, the American legal allowance for affirmation rather an oath is in deference to the sensibilities of Christian groups (such as the Quakers and Jehovah's Witnesses), though for much the same reason. The option of an affirmation is provided for in the U.S. Constitution wherever an oath is required.

I respond:

I am sorry that my infelicitous phrasing gave Arnie to understand that Shevu'at Heset was a later innovation. It is, of course, Talmudic, as he writes.

David Weinstock supplies some details that Arnie mentioned:

Re: swearing v. affirming The same choice is offered in the U.S. Constitution (Art.II, sec. 1) in the Presidential oath of office; the President can "swear (or affirm)." In 18th century America, this choice was certainly not offered to accommodate Jews. Many Christian denominations forbid all oath-taking and swearing.

In connection with this last topic Reuven Boxman takes me to task:

I think you missed the intent of Sherry's question, or at least your answer didn't answer for me the moral, rather than religious question. Your reply gives only a "halachik" answer which I might paraphrase as "if you as an individual can possibly avoid swearing an oath (i.e. can get by with an affirmation), you should do so, to avoid taking God's Name "in vain", unnecessarily."

I respond:

That is a fair description of what I wanted to say. Reuven continues:

However, wouldn't a judge or juror attach more veracity to testimony given under oath (rather than mere affirmation), knowing that the witness not only faces civil punishment for perjury, and heavenly punishment for bearing false witness, but in addition heavenly punishment for violating the oath? Likewise wouldn't the person taking the oath or affirmation be demonstrating less than total commitment by choosing an affirmation rather than the oath? In other words, by taking the 'lesser' route, isn't one hedging, and demonstrating less than 100% commitment to the subject of the oath or affirmation, (i.e. telling the truth, or performing a duty)?

I respond:

Here we part ways. Why should any legal system that recognizes the right of a person to forego "taking God's Name in vain" suspect that he is doing so for any but the most elevated of motives. The same God that warns us not to take His Name in vain also warns us "to keep yourself far from untruth" [Exodus 23:7]. (And with irreligion being as widespread as it is today, I suspect that there are many people for whom a promise made "on their word of honour" has greater clout than the fear of in what way Heaven might punish them for perjuring themselves.) Furthermore, I am certain that the legal penalties for misleading the court whether under oath or affirmation are the same or similar. In Israel they are identical. Affirming rather than swearing is not "taking the lesser route" or hedging. You might just as well suspect Shabbat observers of laziness, or Kashrut observers of "being finicky about their food". In a legal system that does not recognize the right of the citizen to refrain from swearing, I can understand how judges might misinterpret such a request; but under such circumstances it is permitted for a Jew to swear.

Shabbat Shalom to everybody.