Sanhedrin 062

1:
It may be useful at this point to review the stages of Dinei Mamonot, since such a reminder may serve to obviate certain questions. Dinei Mamonot (in our present context) refers to a case in which the plaintiff claims that the defendant owes him (or her) money. Such a case may be heard before a Court of Arbitration which consists of three arbitrators – two chosen, one each, by the litigants, and the third appointed by the common consent of the arbitrators. These arbitrators may well be ordinary lay people (provided that one of them has a modicum of Torah knowledge). The witnesses to the fact that the loan was actually made and in the amount claimed are examined in full court and the litigants may state their claims as well as they can. The court is then cleared of litigants and witnesses and the arbitrators discuss the evidence. They must reach a verdict by a majority of two to one or unanimity. This is the point reached at the start of our mishnah.

2:
Having reached a verdict the litigants are re-introduced into the court and the "President" of the arbitration panel announces their verdict. Rambam [Moses Maimonides, North Africa, 12th century CE] points out in his halakhic compendium Mishneh Torah [Sanhedrin 23:9] that the reason why the verdict is delivered by only one of the judges is connected with the rule developed later in our mishnah that the litigants may not know how each of the individual judges voted.

3:
In my translation of our mishnah I have used the terms of "finding for" and "finding against". The actual terminology used by our mishnah in Hebrew is Zakkai and Ĥayyav. These terms have been borrowed from Dinei Nefashot, since they have the connotation of "innocent" and "guilty"' which in English is not really appropriate.

4:
There is one stage in the proceedings that is not mentioned at all by our mishnah and it is most relevant. The sages were well aware that in Dinei Mamonot more often than not the situation is not "black and white" but "grey". If the law takes its course they will have no choice but to find for one or other of the parties, even though such a decision might involve a modicum of injustice to one of the parties. That is why the sages introduced a prior stage, a stage in which the court must try to dissuade the litigants from going to law at all and to settle their differences by mutual accommodation and compromise, which the court would then ratify. The discussion of the Gemara on this topic [Sanhedrin 6a, at the very bottom of the page] is based on the very first mishnah of our Tractate, which stated categorically that "civil suits [Dinei Mamonot] are heard before three judges". The Gemara now quotes a baraita (that originates in Tosefta Sanhedrin 1:3):

(For an explanation of technical terms such as Gemara, Baraita and Tosefta please consult the "Brief Introduction" in our website archives: use this link.

This leads to a discussion on the ethics involved:

In this passage (originating in the Sifré, a halakhic midrash on the book of Devarim) two opposing views are discussed. Moses is conceived as the prototype for the demand for absolute justice: even if the demands of justice require a mountain to be split in two – let justice be done; compromise is anathema to a sense of justice – and justice comes from God [Deuteronomy 1:17]. On the other hand, Moses' brother, Aaron the High Priest, is seen as one who believes that peace (which is a Hebrew word that also has tones of harmony, goodwill and wellbeing) – can only be achieved through a compromise in which both sides have to cede something. Thus we see two supreme values being contrasted here: Justice and Peace (compromise). The Gemara continues:

Rabbi Yehoshu'a ben-Korĥah presents the very opposite view to that propounded above by Rabbi Eli'ezer, the son of Rabbi Yosé ha-Gelili. The demands of justice must be tempered with the requirements of equity and peace.

When one party sues another true justice probably lies somewhere between the two claims, but both see their positions as being "absolute". If one strives for strict justice, one party will emerge triumphant, but the other might well feel that they have been wronged. Where a compromise can be effected between the parties, neither will achieve all of their demands, but both may achieve some of their demands – and neither can feel completely wronged.

Of course, there are limits that must be set to the propriety of a judge suggesting a compromise between the litigants. The Gemara [Sanhedrin 6b] quotes Rabbi Shim'on ben-Menasya as saying that

We can now return to the discussion in the Gemara on these two opposing views: that of Rabbi Eli'ezer, the son of Rabbi Yosé ha-Gelili, favouring strict justice and that of Rabbi Yehoshu'a ben-Korĥah favouring an attempt at compromise.

Thus the Gemara decides that a compromise between the contesting parties is preferable to each of them standing upon their right to maintain the integrity of their separate claims.

Sherry Fyman writes:

Now that we see the role of witnesses and how critical they were, the process for qualifying them becomes a bit easier to understand. I would assume that everyone knew the ground rules and that therefore they wouldn't ask someone to be their witness if that person could be disqualified if it came to trial.

I respond:

All things being equal obviously Sherry's assumption would be correct. However, what would one do if the only witnesses to the loan could be disqualified? – let's say that they are all near relatives. Would a person in such a situation just assume that there was no way for her to recover her losses? I suspect that she would "try it". This, of course, is a wonderful example of where the intervention of the judge is called for, and his suggestion that compromise would suit the demands of justice better than litigation.