Sanhedrin 049

Today's shiur is dedicated by Reuven Boxman to the memory of his father, Daniel ben Yitzchak ha-Cohen, whose Yahrzeit falls on Shabbat, 2nd Av.

7:
We now come to the Emtza'ita [middle section] of our mishnah. This section of our mishnah is concerned with the right of each of the parties to accept or reject the judge selected by the other party. Here again we see that there is difference of opinion between Rabbi Me'ir and the sages. Rabbi Me'ir holds that when the claimant puts forward the name of the judge that he would like to sit on the panel of arbitration, the defendant has the right to reject that name and ask the claimant to choose another, and so forth. Rabbi Me'ir, of course, sees this right as being mutual. While the sages in our mishnah agree in principle they would limit the right of the parties in this regard to disqualification for purely technical reasons, and not for reasons of suspected animus – or any other reason whatsoever. The technical grounds for disqualification are that the proposed judge has a family relationship to the party making the appointment or that he is otherwise disqualified according to law.

8:
The Gemara [Sanhedrin 23a] even further reduces the scope of disqualification. It asks Rabbi Me'ir, as it were, "Can any Tom, Dick or Harry disqualify a judge!?" Rabbi Yoĥanan suggests that Rabbi Me'ir was only granting the right of disqualification in areas where it could be reasonably expected that the proposed arbitrators might not be sufficiently knowledgeable, but that where the judges are licenced [Mumĥeh la-Rabbim] they may not be disqualified so cavalierly. However, the Gemara points out that the very language of the Sages in disagreeing with Rabbi Me'ir precludes such an assumption: "but if they were valid or a licenced judge they may not disqualify them". It seems therefore that Rabbi Me'ir and the Sages are referring to two different situations. Rabbi Me'ir permits mutual disqualification of judges when the court is Bet-Din shel Hedyotot – a court composed of lay arbitrators, but would agree with the Sages in the case of licenced judges that they may only be disqualified for reasons stipulated in the law.

9:
A similar difference of opinion seems to exist between Rabbi Me'ir and the Sages in the Seifa [last section] of our mishnah. The witnesses referred to in this section are the two witnesses that Re'uven produces who can testify that Shim'on owes him money because they were present when the loan was effected, or Shim'on admitted receiving the loan from Re'uven in their hearing, and so forth. The Gemara [Sanhedrin 23a-b] makes it clear that Rabbi Me'ir and the sages can not possibly be discussing the possibility of Shim'on having the right to disqualify Re'uven's two witnesses, because this would be illogical and unjust: perhaps Re'uven only has these two witnesses. We must assume that both Rabbi Me'ir and the Sages agree that the two witnesses – and not less! – upon whose testimony the whole case is based can not be disqualified except for reasons stipulated by law. I quote now the summary of the discussion in the Gemara given by Rambam [Moses Maimonides, North Africa, 12th century CE] in his Commentary on the Mishnah:-

Re'uven claims that Shim'on owes him money, and produces two witnesses who substantiate this claim. Re'uven then produces two more witnesses who give exactly the same testimony. According to Rabbi Me'ir, if Shim'on now claims that all four witnesses are disqualified this must be accepted and the onus of proof that they are indeed valid witnesses now lies on Re'uven. This would be because we may assume that Re'uven only produced the second batch of witnesses because he expected "problems" with some of them, and we do not know which of these four are "problematic". The Sages, on the other hand, see no reason why Re'uven should not produce another set of witnesses. This would be because we may assume that his reason for doing so was to further bolster up his case and not because of any fear that he might have at the validity of any of them. Thus the onus of proving their disqualification is on Shim'on. The Halakhah follows the opinion of the Sages throughout.

This explanation by Rambam is different from that given by Rashi [Rabbi Shelomo Yitzchaki, Western Europe, 11th century CE] in his commentary on the Gemara [Sanhedrin 23b]. But the explanation given by Rambam seems simpler and less problematic.

Sherry Fyman asks: "What mechanism was there to compel a defendant in a monetary dispute to submit to artibration? Did the size of the dispute in any way effect the proceedings? Was the decision by the panel final or was there an appeal procedure? What happened if the dispute was between people who lived in different parts of the country – where were the judges chosen from? Especially since the judges were lay people, were judges chosen from people who had an publically acknowledged expertise in the area of the dispute?

I respond:

Sherry has asked here five questions, and I shall do my best to answer them as briefly as possible seriatim:

1. In the absence of a police force, the ultimate means of compelling a recalcitrant defendant was public pressure. The claimant could ask a Mumĥeh la-Rabbim [licenced judge] to summons the defendant to appear within thirty days. If the defendant did not do so, where the judge considers it justified he may declare the defendant to be an outlaw, social outcast [be-Ĥerem]. This would make it illegal for any one else to have any kind of social or commercial contact with the defendant, not even to speak to him or to sell him food and so forth. This was usually enough to secure the presence of the defendant.
2. It is absolutely forbidden for a judge to take the size of a claim into account. In Sanhedrin 8a, the great Amora of Eretz-Israel, Resh Lakish, interprets the verse "You shall hear small and great alike" [Deuteronomy 1:17] thus: "Let a case involving one Perutah be as precious to you as one involving one hundred talents."
3. The only appeal possible was that the judge (or arbitrators) misunderstood established law or ignored it. If the appeal were upheld, the judgment was reversed on the spot. However, there are repercussions. Let us say that judgment has been found in favour of Re'uven and on that basis Shim'on has had to pay Re'uven 1000 dinars. Shim'on successfully appeals on the basis of a misjudgment. There is no reason why Re'uven should restore the money to Shim'on, since he obtained the sum in a perfectly legal way and by now could have invested it, or even squandered it. If the judges were arbitrators [Hedyotot] they must re-imburse Shim'on out of their own resources! If the judge was licenced he was immune to such a problem.
4. The case was always heard wherever the claimant so chose: Eved loveh le-ish malveh – the debtor is subject to the creditor.
5. This was entirely at the discretion of the parties concerned. If the sum was a small one, my guess is that they would agree to arbitration by three cronies from the local Synagogue; if a meaningful sum were involved the claimant, at least, would presumably want the case to be heard before a reliable and seasoned judge.