Sanhedrin 23a — the Talmud in English

Mishna:

Monetary cases with three.

It was explained in the first chapter that cases of admissions and loans are adjudicated even before three laymen, whereas cases of robbery and bodily injury require an expert court.

Three experts, and even three laymen [see Tosafot 5a, s.v. dan], and even a single expert, can compel the defendant to come to litigate before him if the defendant refuses.

But if the defendant does not refuse to litigate, and is prepared to come to court, except that he claims that this court is not acceptable to him, whether because they are laymen, or because they are relatives, or because he wishes to go to another court in that city—then the litigants “choose” for themselves judges agreed upon by both of them.

In the beginning of our Mishna, the Mishna explains how they choose judges for themselves.

One litigant

chooses for himself

a court

one,

which consists of three judges, and likewise the second litigant

this

other one

chooses for himself

a court

one,

which consists of three judges.

And both,

the two litigants,

choose for themselves עוד

a court

one,

and together they are nine judges. These are

the words of Rabbi Meir.

And the Sages say: two judges.

That is, the two courts

choose for themselves עוד

a court

one,

and not the litigants.

And the Gemara will explain why nine judges are needed, when we learned: “Monetary cases with three.”

And now the Mishna explains whether one litigant can disqualify the judges [or judge] whom the opposing litigant chose, and say: I will not litigate before him!

One litigant

disqualifies the judge of the other, and one litigant

disqualifies the judge of the other [

and the Gemara will explain how it is possible to disqualify him], 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

by witnesses

that they are relatives [

of the claimant or of the defendant, or relatives of one another], so that they are not permitted to judge in this case,

or

that they are

disqualified

from judging altogether, such as robbers and transgressors, who are not permitted to judge at all.

But if the

chosen judges

were fit,

who are neither relatives nor transgressors,

or

if they are

experts by authorization of the court,

that is, experts for the public,

he cannot disqualify them.

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

One litigant

disqualifies the witnesses of the other, and one litigant

disqualifies the witnesses of the other.

These are

the words of

Rabbi Meir. [

And the Gemara will explain: how is it possible to disqualify witnesses who are neither relatives nor disqualified, according to Rabbi Meir? For if they are relatives or disqualified, the Sages also agree that it is possible to disqualify them.]

And the Sages say: When

can he disqualify them?

When he brings concerning them,

concerning the witnesses,

proof

by witnesses

that they are relatives,

who are disqualified from testifying,

or disqualified,

robbers and transgressors.

But if they were fit—

he cannot disqualify them.

Gemara:

We learned in our Mishna: This one chooses for himself one and this one chooses for himself one. And it implies that each one chooses for himself a court of three, and another three are chosen by the litigants or by the court, and all nine judge; therefore the Gemara asks: are not three judges sufficient for monetary cases!

What

is the meaning of

“This one chooses for himself one and this one chooses for himself one”?

For

with three,

three judges,

it is sufficient

to adjudicate!

And the Gemara answers:

This is what he is saying: when this one chooses for himself one court, and this one chooses for himself one court,

and there is no agreement between them—

both choose for themselves

another court

one

agreed upon by both of them.

That is, indeed, three will judge. And the interpretation of the Mishna is as follows: if one litigant wishes to litigate before one court, and the second litigant wishes for another court, then they do not litigate before this one or before that one, but before a third court agreed upon by both sides [and briefly: one side cannot determine before which court they will litigate except with the agreement of both sides].

The Gemara asks:

And

does this mean

even the borrower can prevent

and can 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 court of assembly, which is a place where Torah scholars gather, and he says this intentionally so that the other side will be embarrassed by them, he can compel him to litigate at the court of assembly.

And concerning this law

Rabbi Elazar said: They taught nothing

that he can compel him to go to the court of assembly—

except

when the

lender

says: Let us go to the court of assembly, in which case the borrower is obligated to go there with him and stand there for judgment.

But if the

the

borrower

wishes to go to the court of assembly, the lender is not obligated to agree to this; rather,

they compel him

the borrower, and he

judges before the court

that is

in his city.

And the reason is that the borrower is subordinate to the lender, because of “A borrower is servant to a lender.”

And if so, it is difficult: how did they wish to interpret the Mishna as saying that each side can refuse to go before the court chosen by the other side?

And the Gemara answers that 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 [“courts in Syria”].

And according to this, our Mishna is speaking of courts in Syria.

As

it is

as Rabbi Yohanan said

later in the Mishna:

They taught [this] with regard to courts in Syria,

that the Mishna speaks of judges who are not experts .

Here too,

in the beginning,

they taught [this] with regard to courts in Syria,

and therefore the defendant can refuse to litigate before them.

But if the claimant sues him before

an expert court,

he may not

the defendant refuse.

Rav Pappa adds another explanation, according to this approach: that it concerns two courts in the same city, and both are experts. In that case the defendant can choose a court according to his will, since he does not trouble the claimant to go a great distance to the place of the court of assembly. And in this manner the Mishna says that if they do not agree, each to the court of the other, then they choose for themselves a court agreed upon by both.

Rav Pappa said:

It is not necessary to establish the Mishna specifically with regard to courts in Syria.

Even if you say

that it is speaking

of experts,

but it is speaking of,

such as the court of Rav Huna and

the court

of Rav Hisda,

for both of them were in one city, so that if the claimant chose one of them as his court, the defendant can still refuse to litigate before it and demand to litigate with him in the other court, because

he says to him

the defendant to the claimant:

Am I troubling you,

am I troubling you to go a great distance?

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

Rather, there must be a court agreed upon by both, and in these circumstances the Mishna writes that both choose for themselves a court agreed upon by both.

But in an expert court, if he proposes going to the court of assembly, the lender [the claimant] can refuse to litigate before it. And the borrower cannot trouble the lender to go to the court of assembly; rather, he must litigate before the court chosen by the lender. And in this circumstance the Mishna is not speaking.

The Gemara asks that this explanation of the Mishna, although it is correct as law, and although it is possible to interpret Rabbi Meir’s words in this manner, cannot explain the continuation of the Mishna’s language. For:

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

which according to this explanation means the two courts]

choose for themselves עוד

a court

one.

And if it enters your mind,

if it has entered your mind,

as

we

say,

as we explained, that

the court

are the ones who choose another court for themselves, then

a court, after they disqualify them,

for the two sides place no trust in them,

go and choose for themselves

go and choose

another court,

another court?! Who would agree to this? After all, they are not acceptable to the litigants, and this authority is not granted to them, because of the lack of trust.

And furthermore,

there is a difficulty with this explanation:

what

is the meaning of

“This one chooses for himself one, and this one chooses for himself one,”

whose language implies that this is the law? But according to this explanation, this matter applies only in a particular case: when they do not agree, then they choose a third court. According to this explanation, the language of the Mishna should have been: “If this one chose one,” and so on.

Therefore, the Gemara retracts the explanation that the two litigants or the two courts choose a third court for themselves, and explains that each litigant chooses one judge for himself, and the third judge is chosen either by the litigants or by the judges. And the first question is resolved.

Moreover, the intention is not that they are obligated to do so, but that it is desirable to constitute a court in this manner. And the Gemara will explain what benefit there is in the matter.

Rather, this is what the tanna is saying

of the Mishna:

This one chooses for himself one “judge,” and this one chooses for himself one “judge,” and both choose for themselves עוד

a judge

one.

And now the Gemara discusses:

Why do they do this?!

Why do they do so—that is, why do they not litigate in the fixed court in the city, and what is the benefit [and advantage] of the matter?

They say in the West,

they said in the Land of Israel

in the name

of

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

whom he trusts to argue in his favor to the fullest extent,

and

likewise

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

the two litigants

choose for themselves one more

agreed upon by both of them, and who argues in favor of both of them, therefore

the judgment emerges in truth.

So that both litigants will be satisfied with the judgment, and even the one who loses the case will heed the ruling [as opposed to when he loses in the fixed court in the city, when he will not be satisfied with the judgment] .

We learned in our Mishna:

And the Sages say:

two judges choose for themselves one more.

The Gemara thought that the reason of the Sages is that the two judges do not agree that just anyone should sit with them. Whereas Rabbi Meir does not agree with this reasoning.

Therefore the Gemara asks:

Shall we say

that

in [the dispute concerning] what Rav Judah said in the name of Rav

they disagree,

the Sages and Rabbi Meir disagree?

For Rav Judah said in the name of Rav: The witnesses do not sign a document

with just anyone

unless they know

and recognize

who

is the second witness who

signs with them,

lest he be an unfit witness and the entire testimony be nullified, and these witnesses will be found embarrassed by the matter.

Rabbi Meir does not hold

he does not accept the law

of Rav Judah who said in the name of Rav,

and therefore, with judges too, he holds that the agreement of the two judges concerning the third who will sit with them is not required.

And

if

the Rabbis do hold the ruling of Rav Judah who said in the name of Rav,

therefore they hold that the judges choose the third for themselves [and it is difficult to say that the law of Rav Judah who said in the name of Rav is not accepted by all the tannaim].

And the Gemara answers:

No,

it is not necessary to say so.

Rather, everyone

all the tannaim

holds the ruling of Rav Judah who said in the name of Rav.

And concerning the view of the judges—

everyone does not disagree,

there is no dispute,

that we require

that they agree with whom they will sit to judge.

When they disagree,

in what Rabbi Meir and the Sages disagree concerning the view of the litigants as to who all their judges will be.

Rabbi Meir holds: the view of the litigants—

we also require,

so that the litigants will be satisfied with the judgment.

And

if

the Rabbis hold: the view of the judges—

we require; the view of the litigants—

we do not require.

And since they brought the statement of Rav Judah who said in the name of Rav, they bring a beraita that teaches additional similar laws [and ethical practices].

The matter itself,

we learned above,

Rav Judah said in the name of Rav: The witnesses do not sign a document unless they know who signs with them.

It was taught likewise:

and so we also learned in a beraita in accordance with his words:

This was how the pure-minded men of Jerusalem would act: 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 disqualifies the judges

of the other, and this one disqualifies the judges of the other.

And the Gemara raises an objection:

Is it within his power,

does he really have such power in his hands,

that he disqualifies the judges!?

That he is able to disqualify the judge whom the other party selected?! But does he not bring proof against him that he is a relative or disqualified?!

And the Gemara answers: Indeed, if he selected expert judges, even Rabbi Meir concedes that he is unable to disqualify them; rather, the Mishna is speaking of a case in which he selected judges who are not experts.

Rabbi Yohanan said: In the courts in Syria

they taught

the words of Rabbi Meir. And he is able to disqualify them.

But

judges

who are experts—

not

does Rabbi Meir maintain that he can disqualify them and say, “I do not wish to litigate before them.”

And the Gemara raises an objection to this interpretation:

But,

is it not so that

from

what

is taught in the latter clause,

it is implied that Rabbi Meir maintains that he can disqualify even experts, since we learned afterward in the Mishna:

And the Sages say: When

do we concede that he can disqualify them?

When he brings

one side

proof

through witnesses

that

the judges whom the other party selected

are relatives or disqualified. But if they were valid or experts by authority of a court

of law—

he cannot disqualify them.

And by implication

we learn from the words of the Sages that

Rabbi Meir—

also says experts

that he can disqualify them, for if not, in what do the Sages disagree with Rabbi Meir?

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

Therefore the Gemara establishes an interpretation according to which there is no dispute between Rabbi Meir and the Sages concerning experts: certainly he cannot disqualify them. And likewise there is no dispute concerning relatives and disqualified persons: certainly he can disqualify them. Rather, they dispute concerning the courts in Syria: according to Rabbi Meir he can disqualify them, while according to the Sages he cannot disqualify them. And this is the meaning of the words of the Mishna:

This is what they say

the Sages:

But if they were valid,

that is, they were not relatives or disqualified, then even though they are people who sit at street corners,

they became like

those who are

experts by authority of a court, and he cannot disqualify them.

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

Come and hear,

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

The Sages said to

Rabbi Meir:

It is not entirely within his power

he does not have the power and the right

to disqualify a judge who is

an

expert recognized by the many!

And it is proven that the Sages disagree with Rabbi Meir concerning an expert judge.

And the Gemara answers: In the language of the beraita as well, we must establish that it is speaking of the courts in Syria.

Say,

say and teach in that same beraita that this is what the Sages said to Rabbi Meir:

“It is not entirely within his power to disqualify a judge whom many have accepted over themselves,”

that is, he is accepted in the view of many, despite being one who sits at street corners. And Rabbi Meir disagrees with this and maintains that it is possible to disqualify him, and to say, “I will litigate only before an expert by authority of a court.”

And now the Gemara brings another beraita, from which this interpretation is implied.

It was taught likewise: In every event

he

disqualifies and continues until he accepts him [

before ]

a court that is expert and recognized by the many,

that is, an expert judge,

, the words of Rabbi Meir.

It follows that 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 disqualifies the witnesses of the other, and this one disqualifies the witnesses of the other, the words of Rabbi Meir.” And it is not speaking of his wishing to disqualify him on account of being a relative or disqualified, for from the words of the Sages—“When? When he brings proof concerning them that they are relatives or disqualified; but if they were valid, he cannot disqualify them”—it is implied that Rabbi Meir maintains that even though they are not relatives or disqualified, he can disqualify them.

And if so, the questioner reasons that if Rabbi Meir maintains that one can disqualify witnesses without bringing proof that they are relatives or disqualified, so too he can disqualify a judge without bringing proof that he is a relative or disqualified.

And this is difficult with what they answered: that Rabbi Meir maintains that he cannot disqualify an expert judge.

But

is it not so that

witnesses—

like

those who are

experts are considered,

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

and

nevertheless

Rabbi Meir said: “This one disqualifies the witnesses of the other, and this one disqualifies the witnesses of the other.”

And the Gemara answers that certainly the meaning of Rabbi Meir’s words is not that he can disqualify witnesses without proof of their being relatives or 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 specific manner].

But,

is it not so that

it was stated

we learned

concerning it,

concerning the latter clause of our Mishna:

Reish Lakish said:

Is it possible that Rabbi Meir, who is

a holy mouth, would say this,

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

Rather, Reish Lakish explains and establishes the Mishna:

Teach,

it is necessary to teach in the wording of the Mishna in the singular:

his witness.

For he wishes to disqualify only one witness.

And before the Gemara explains the interpretation of the Mishna according to the words of Reish Lakish, the Gemara clarifies Reish Lakish’s position:

For what purpose,

for what matter did one party bring a single witness, and the other wishes to disqualify him?

If you say

if it is said that it is for

a

testimony concerning

money.

This is difficult: Why does the litigant need to disqualify him? For

the Merciful One disqualified him,

the Torah disqualified a single witness from extracting money on his testimony!

And if

he brings one witness

to

obligate him in

an oath,

it is difficult:

He is trustworthy, he is trustworthy,

the Torah considered him trustworthy as a single witness for imposing an oath,

like two,

like two witnesses with regard to money!

And the Gemara explains the words of Reish Lakish: It is speaking of a case in which the litigants agreed between themselves to trust one witness, and now one party [or both parties] wishes to retract. In such a case Rabbi Meir and the Sages dispute: according to Rabbi Meir, he may retract, and this is the meaning of “This one disqualifies his witness”; while the Sages maintain that he cannot retract, since he accepted him upon himself.

It is necessary

the Mishna is speaking of a case

in which he accepted him upon himself,

the litigant agreed to accept him

like

someone whose testimony has the

two,

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

And the Gemara raises an objection:

What does it teach us?

What is Rabbi Meir coming to teach us,

that he can retract,

that he is able to retract? But this law

we learned,

we learned it in the following Mishna:

He said to him,

one party said to the other, “

My father is trusted by me,”

my father is trusted to judge between us, despite his being disqualified by Torah law from being 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 can retract. And the Sages say: He cannot retract.