Sanhedrin 23a (כג.) — the Talmud in English

Mishna:

Monetary cases are adjudicated by three.

It was explained in the first chapter that cases involving admissions and loans may be adjudicated even before three ordinary laymen, whereas cases involving robbery and personal injury require an expert court,

three experts, and also three ordinary laymen [see Tosafot 5a, s.v. dan]. Even a single expert may compel the defendant to come and litigate before him if the defendant refuses.

But if the defendant does not refuse to litigate and is prepared to come before a court, but claims that he does not accept this court—either because its members are ordinary laymen, or because they are relatives, or because he wishes to go to another court in that city—then the litigants “choose” judges acceptable to them both.

The first clause of our Mishna explains how they choose judges.

One litigant

chooses for himself

a court

of one, consisting of three judges; and likewise the second litigant

this

other one

chooses for himself

a court

of one,

consisting of three judges.

And both of them,

the two litigants,

choose for themselves another

court

of one,

so that together there are nine judges. These are

the words of Rabbi Meir.

And the Sages say: Two judges.

That is, the two courts

choose for themselves another

court

of one,

and not the litigants.

The Gemara will explain why nine judges are needed, when we learned: “Monetary cases are adjudicated by three.”

The Mishna now explains whether one litigant can disqualify the judges [or judge] chosen by the opposing litigant and say: “I will not litigate before him!”

One litigant

disqualifies the judge of the other, and the other litigant

disqualifies the witnesses of the other.

disqualifies the judge of the other [

the Gemara will explain how it is possible to disqualify them]. These are

the words of Rabbi Meir.

And the Sages say: When

can he disqualify him?

When he brings against them

against the judges

proof

through witnesses

that they are relatives [to the claimant or the defendant, or relatives of one another], and therefore may not adjudicate this case,

that they are relatives [to the claimant or the defendant, or relatives of one another], and therefore may not adjudicate this case,

or

that they are

disqualified

from adjudicating altogether, such as robbers and violators of mitzvot, who may not adjudicate at all.

But if the

selected judges

were qualified,

not relatives or offenders,

or if they were

that they are

experts appointed by a court,

that is, experts recognized by the public,

he cannot disqualify them.

The Mishna now explains whether one side can disqualify the witnesses of the other side.

One litigant

disqualifies the witnesses of the other, and the other litigant

disqualifies the witnesses of the other.

disqualifies the witnesses of the other.

These are

the words of Rabbi Meir. [

The Gemara will explain how, according to Rabbi Meir, it is possible to disqualify witnesses who are neither relatives nor otherwise disqualified, since if they are relatives or disqualified, the Sages also agree that they may be disqualified.]

And the Sages say: When

may he disqualify them?

When he brings concerning them,

concerning the witnesses,

proof

through witnesses

that they are relatives,

who are disqualified from testifying,

or disqualified,

such as robbers and violators of mitzvot.

But if they were qualified—

he cannot disqualify them.

Gemara:

We learned in our Mishna: “This one chooses one, and that one chooses one.” This implies that each one chooses a court of three, and another three are chosen either by the litigants or by the court, and all nine adjudicate. Therefore the Gemara asks: Surely three judges suffice for monetary cases!

What

is the meaning of

“This one chooses one, and that one chooses one”?

After all,

three

three judges

suffice

for adjudication!

The Gemara answers:

This is what it is saying: When this one chooses one court, and that one chooses one court,

and they do not agree between them,

they both choose for themselves

another

court

of one,

acceptable to them both.

That is, indeed, three judges will adjudicate. The meaning of the Mishna is as follows: If one litigant wishes to litigate before one court, and the second litigant wishes to appear before another court, they do not adjudicate before either of these courts; rather, they appear before a third court acceptable to both sides [in brief: one side cannot determine before which court they will litigate without the consent of both sides.]

The Gemara challenges this:

And

can

even the borrower prevent it,

that is, can he say, “I will not litigate before the court chosen by the lender”?!

But

in another discussion below they said that the borrower cannot prevent it. There the Gemara said that if one side wishes to go to the beit ha-va'ad, the place where Torah scholars gather, and says so intentionally in order to cause the other side embarrassment before them, he can compel him to litigate at the beit ha-va'ad.

And concerning this law

Rabbi Elazar said: They taught this only

that he can compel him to go to the beit ha-va'ad—

but

if the

lender

says, “Let us go to the beit ha-va'ad,” then the borrower is obligated to go there with him and stand trial there.

But if

the

borrower

wishes to go to the beit ha-va'ad, the lender is not obligated to agree; rather,

he is compelled

the borrower

and adjudicates

before the court that is

in his city.

The reason is that the borrower is subordinate to the lender, as it is stated: “A borrower is servant to a lender.”

If so, it is difficult: How could they have wished to explain the Mishna as saying that either side may refuse to go before the court chosen by the other side?

The Gemara answers: The fact that the borrower cannot refuse to go to the court chosen by the lender applies only to an expert court. But he cannot be compelled to litigate before a court that is not expert [“the courts in Syria”].

Accordingly, our Mishna is speaking of the courts in Syria.

As

it is

as Rabbi Yoḥanan said

later in the Mishna:

They taught this concerning the courts in Syria,

that the Mishna is speaking of judges who are not experts .

Here too,

in the first clause,

they taught this concerning the courts in Syria,

and therefore the defendant may refuse to litigate before them.

But if the claimant sues him before an

expert court,

he may not

refuse.

Rav Pappa adds another explanation, following this approach: The case concerns two courts in the same city, both of them expert. In that situation the defendant may choose whichever court he wishes, since he does not force the claimant to travel a distance to the place of the beit ha-va'ad. In this manner the Mishna says that if they do not agree—one choosing the court of one side and the other the court of the other side—they choose a court acceptable to them both.

Rav Pappa said:

It is not necessary to establish the Mishna specifically as referring to the courts in Syria.

You may even say

that it is speaking of

experts,

but the case is

for example, the court of Rav Huna and

the court

of Rav Ḥisda,

both of which were in the same city, so that if the claimant chose one of these courts, the defendant could still refuse to litigate before it and demand to litigate with him before the other court, because

he can say to him

the defendant to the claimant:

“Am I causing you any hardship,

by making you travel a distance?”

In summary: In the courts in Syria, or in two courts in the same city, one side cannot compel the other side to litigate before the court that he chose.

Rather, a court acceptable to both of them is required, and in these circumstances the Mishna says that both choose for themselves a court acceptable to them both.

But in an expert court, if one proposes going to the beit ha-va'ad, the lender [the claimant] may refuse to litigate there. The borrower cannot impose upon the lender the need to go to the beit ha-va'ad; rather, he must litigate before the court chosen by the lender. The Mishna is not speaking of this circumstance.

The Gemara challenges that this explanation of the Mishna, although legally correct and although Rabbi Meir’s words can be interpreted in this manner, cannot explain the continuation of the Mishna’s wording. For:

We learned: And the Sages say, the two “judges” [

which, according to this explanation, means the two courts]

choose for themselves

a court

of one.

And if it enters your mind,

if you were to think

as

we

said, namely, that the

court

is what chooses another court for them, can

a court, after they have disqualified them,

meaning that the two sides do not place their trust in them,

go and choose for them

go and select

another court

for them?! Who would agree to this? After all, the litigants do not accept them, and no such authority is granted to them because of the lack of trust.

Furthermore,

this explanation is difficult:

What

is the meaning of

“This one chooses one, and that one chooses one,”

whose wording indicates that this is the law? According to this explanation, this applies only in a particular circumstance: when they do not agree, they choose a third court. According to this explanation, the Mishna should have said: “If this one chose one,” and so forth.

Therefore the Gemara retracts the explanation that the two litigants, or the two courts, choose a third court, and explains that each litigant chooses one judge, while the third judge is chosen either by the litigants or by the judges. The initial difficulty is thus resolved.

Furthermore, the intention is not that they are obligated to do so, but that it is desirable to constitute a court in this manner. The Gemara will explain the benefit of this arrangement.

Rather, this is what the tanna is saying

of the Mishna:

“This one chooses one ‘judge’ for himself, and that one chooses one ‘judge’ for himself, and both choose for themselves another

judge

of one.”

The Gemara now discusses this:

Why do they do this!?

Why do they do so? That is, why do they not litigate before the permanent court in the city, and what benefit [and advantage] is there in this arrangement?

They said in the West,

in Eretz Yisrael,

in the name

of

Rabbi Zeira: Since this one chooses one judge for himself,

placing his trust in him to argue in his favor as much as possible,

and

likewise

this one chooses one judge for himself, and both of them

the two litigants

choose for themselves another one,

acceptable to them both and one who argues in favor of them both, therefore

the judgment emerges as the true one.

Both litigants will be satisfied with the verdict, and even the party who loses the case will accept their ruling [unlike when he loses before the permanent court in the city, in which case he will not be satisfied with the verdict] .

We learned in our Mishna:

And the Sages say:

Two judges choose another one for themselves.

The Gemara assumed that the reason for the Sages’ ruling is that the two judges do not agree that just anyone should sit with them, whereas Rabbi Meir does not accept this reasoning.

Therefore the Gemara asks: Is it possible that

let us say,

that

they disagree concerning the ruling of Rav Yehuda in the name of Rav—

they disagree,

the Sages and Rabbi Meir?

For Rav Yehuda said in the name of Rav: Witnesses may not sign a document

with just anyone,

unless they know

and recognize

who

the other witness is who

signs with them,

lest he be an invalid witness, in which case the entire testimony would be invalidated, and these witnesses would be embarrassed by the matter.

Rabbi Meir does not hold

that he accepts the ruling

of Rav Yehuda in the name of Rav;

therefore, with regard to judges as well, he holds that the consent of both judges to the third judge who will sit with them is not required.

And

if

the Rabbis do hold the ruling of Rav Yehuda in the name of Rav, they therefore maintain that the judges choose the third judge for themselves [and it is difficult to say that the ruling of Rav Yehuda in the name of Rav was not accepted by all the tannaim].

the Rabbis do hold the ruling of Rav Yehuda in the name of Rav, they therefore maintain that the judges choose the third judge for themselves [and it is difficult to say that the ruling of Rav Yehuda in the name of Rav was not accepted by all the tannaim].

The Gemara answers:

No,

it is not necessary to say this.

Rather, everyone

all the tannaim

holds the ruling of Rav Yehuda in the name of Rav.

And with regard to the view of the judges—

everyone agrees,

there is no dispute,

that we require

their consent concerning with whom they will sit to adjudicate.

The dispute is,

with regard to what Rabbi Meir and the Sages hold concerning the view of the litigants as to who all their judges will be.

Rabbi Meir holds: The view of the litigants

is also required,

so that the litigants will be satisfied with the verdict.

And

if

the Rabbis hold: The view of the judges

is required, but the view of the litigants

is not required.

Since the statement of Rav Yehuda in the name of Rav was brought, they bring a beraita teaching additional similar laws [and ethical practices].

The substance of the matter:

we learned above,

“Rav Yehuda said in the name of Rav: Witnesses may not sign a document unless they know who is signing with them.”

It was taught likewise:

And so too we learned in a beraita, in accordance with his statement:

This was the practice of the noble-minded people of Jerusalem: They would not sign a document unless they knew who was signing with them.

And they would not sit in judgment unless they knew who was sitting with them.

And they would not enter a meal unless they knew who was reclining with them,

for it is disgraceful for a Torah scholar to sit with an ignoramus at a meal.

We learned in our Mishna:

This one may disqualify the judge chosen by that one,

and that one may disqualify the judge chosen by this one.

The Gemara raises an objection:

Is it in his power

to have such authority,

that he can disqualify the judges!?

Can he disqualify the judge chosen by the other party?! Yet he does not bring proof that the judge is a relative or otherwise disqualified?!

The Gemara answers: Indeed, if he chose expert judges, Rabbi Meir also concedes that he cannot disqualify them. Rather, the Mishna is speaking of a case in which he chose judges who are not experts.

Rabbi Yoḥanan said: It was taught

with regard to the courts in Syria,

the statement of Rabbi Meir. And he can disqualify those judges.

However,

judges who are

experts—

not:

Rabbi Meir holds that he may disqualify them and say, “I do not wish to litigate before them.”

The Gemara raises an objection to this interpretation:

But,

does not

what

is

taught in the latter clause

indicate that Rabbi Meir holds that he may disqualify even experts? For we learned in the continuation of the Mishna:

And the Sages say: When

do we concede that he may disqualify them?

When he brings

one party

proof,

through witnesses,

that

the judges chosen by the other party

are relatives or otherwise disqualified. But if they were valid or were certified as experts by a court,

of

law, he cannot disqualify them.

By implication

we learn from the Sages’ statement that

Rabbi Meir

also speaks of experts,

holding that he may disqualify them; for otherwise, in what way do the Sages disagree with Rabbi Meir?

If so, the question “Is it in his power?” returns: How can he disqualify expert judges?!

Therefore, the Gemara establishes an interpretation according to which Rabbi Meir and the Sages do not disagree concerning experts—for certainly he cannot disqualify them—and they likewise do not disagree concerning relatives and otherwise disqualified judges—for certainly he can disqualify them. Rather, they disagree concerning the courts in Syria: According to Rabbi Meir, he can disqualify them, whereas according to the Sages, he cannot disqualify them. And this is the meaning of the Mishna:

The Sages are saying this:

the Sages said:

But if they were valid,

meaning that they were not relatives or otherwise disqualified, then although they are unlearned judges,

they have become like

those who are

experts certified by a court, and he cannot disqualify them.

The Gemara now raises an objection to this interpretation from the words of the beraita.

Come and hear:

Come and hear a proof against this interpretation from what we learned in a beraita:

The Sages said

to

Rabbi Meir: It is not in his power,

he has neither the authority nor the right,

to disqualify a judge who is

is

an expert for the many!

It is thereby demonstrated that the Sages disagree with Rabbi Meir concerning an expert judge.

The Gemara answers: The language of the beraita, too, must be interpreted as referring to the courts in Syria.

Say

instead and revise the wording of that beraita, so that the Sages said the following to Rabbi Meir:

It is not in his power to disqualify a judge “whom the many appointed over themselves,”

meaning, one who is accepted by the many despite being an unlearned judge. Rabbi Meir disagrees with this and holds that he may disqualify him, saying, “I will litigate only before an expert certified by a court.”

The Gemara now cites another beraita, which indicates in accordance with this interpretation.

It was taught likewise: In fact,

he

may continue disqualifying him until he accepts upon himself [

before]

a court that is expert for the many,

that is, an expert judge,

, the words of Rabbi Meir.

Thus, Rabbi Meir concedes that he cannot disqualify an expert judge.

But the Gemara raises an objection to this interpretation from the continuation of the Mishna.

For we learned in our Mishna: “This one may disqualify the witnesses of that one, and that one may disqualify the witnesses of this one, the words of Rabbi Meir.” This cannot mean that he wishes to disqualify them on the grounds that they are relatives or otherwise disqualified, since from the Sages’ statement, “When? When he brings proof concerning them that they are relatives or otherwise disqualified, but if they were valid, he cannot disqualify them,” it follows that Rabbi Meir holds that even though they are not relatives or otherwise disqualified, he may disqualify them.

If so, the questioner reasons, if Rabbi Meir holds that he may disqualify witnesses without bringing proof that they are relatives or otherwise disqualified, then likewise he should be able to disqualify a judge without bringing proof that he is a relative or otherwise disqualified.

This is difficult with regard to what they answered: that Rabbi Meir holds that he cannot disqualify an expert judge.

But

surely

witnesses are

like

like

experts,

that is, he disqualifies them without proof that they are relatives or otherwise disqualified,

and

nevertheless

Rabbi Meir said: This one may disqualify the witnesses of that one, and that one may disqualify the witnesses of this one.

The Gemara answers that certainly Rabbi Meir’s statement does not mean that he may disqualify witnesses without proof that they are relatives or otherwise disqualified [and the Gemara will explain this at length and establish that the Mishna is not to be understood according to its plain meaning, but in a particular manner].

But,

surely

it was stated

that we learned

concerning

the latter clause of our Mishna:

Reish Lakish said:

Is it possible that Rabbi Meir, who is

a holy mouth, would say such a thing,

that a litigant may arbitrarily disqualify witnesses brought by the opposing party without bringing proof concerning them that they are relatives or otherwise disqualified?!

Rather, Reish Lakish explains and establishes the Mishna as follows:

Teach

that the wording of the Mishna must be stated in the singular:

his witness.

He wishes to disqualify only one witness.

Before the Gemara explains the interpretation of the Mishna according to Reish Lakish’s statement, the Gemara clarifies Reish Lakish’s position:

For what purpose,

did one party bring a single witness, whom the other now wishes to disqualify?

If you say

that it was

for

testimony concerning

a monetary

matter, this is difficult: Why does the litigant need to disqualify him?

The Torah disqualified him,

as the Torah disqualified the testimony of a single witness for extracting money on the basis of his testimony!

And if

he brought a single witness

for

obligating him to take an oath,

an oath,

this too is difficult:

He is believed;

the Torah trusts a single witness to obligate an oath,

like two,

as two witnesses are treated with regard to monetary matters!

The Gemara explains Reish Lakish’s statement: The case is one in which the litigants agreed between themselves to grant credibility to a single witness, and now one party [or both parties] wishes to retract. Rabbi Meir and the Sages disagree in such a case: According to Rabbi Meir, he may retract, and this is the meaning of “This one may disqualify the witness of that one”; whereas the Sages hold that he may not retract, since he accepted the witness upon himself.

It is necessary

for the Mishna to be speaking of a case

in which he accepted him,

the litigant agreed to accept him

like

someone whose testimony has the

two witnesses,

so that his testimony would have the reliability of the testimony of two witnesses, and now he wishes to retract his acceptance.

The Gemara raises an objection:

What does this teach us?

What did Rabbi Meir come to teach us?

That he can retract,

that he may retract? But this law

we learned,

in the following Mishna:

He said to him,

one party said to the other,

“My father is trusted by me,”

meaning, “My father is trusted to judge between us,” despite the fact that according to Torah law he is disqualified from serving as a judge because he is a relative; or he said to him,

“Your father is trusted by me,”

or he said to him,

“Three cattle herders are trusted by me,”

ordinary people who are not experts, and now he wishes to retract,

Rabbi Meir says: He may retract. And the Sages say: He may not retract.