Sanhedrin 6a — the Talmud in English

But if you should say:

and if Rav Naḥman wishes to explain that

the Rabbis disagree with Rabbi Shimon ben Gamliel,

and they hold that the judgment of two who judged is a valid judgment, and Shmuel holds like them.

To this Rava argues:

But did Rabbi Abbahu not say: Two who judged—in the opinion of everyone—

their judgment is not a valid judgment?

For there is no one who disagrees with Rabban Shimon ben Gamliel, and according to everyone their judgment is not a valid judgment; and this is difficult for Shmuel.

And Rav Naḥman answers:

But

are you bringing one man’s words against another man’s words!?

How can you raise an objection from the words of Rabbi Abbahu, who is an amora, against the words of Shmuel, who is also an amora? It can be said that Rabbi Abbahu indeed holds that the Sages do not disagree with Rabbi Shimon ben Gamliel, whereas Shmuel holds that the Sages do disagree, and hold that their judgment is valid, and Shmuel holds like them.

The body of the matter:

Now the Gemara explains Rabbi Abbahu’s words:

Rabbi Abbahu said: Two who judged monetary cases—according to everyone, their judgment is not a valid judgment.

He raised an objection

from

Rabbi Abba to Rabbi Abbahu

from what we learned in the Mishna in tractate Bekhorot [28b]:

An individual who is not an expert

who judged the case

alone and erred,

and declared the liable person innocent [

or]

and declared the innocent person liable,

or

who declared the pure impure,

or

who declared

the impure pure,

and a loss thereby resulted for the litigant.

What he did is done,

his judgment is valid,

and he pays from his own home.

The judge must pay the person against whom he erred in his judgment for the monetary loss, since he is not an expert judge and judged alone.

Thus the Mishna said that his judgment is valid, and this is difficult for Rabbi Abbahu, who holds that according to all the tannaim his judgment is not valid.

And Rabbi Abbahu answers:

With what are we dealing here?

That Mishna is speaking of a case

where they accepted him upon themselves,

where the two litigants agreed to litigate before him; and in this manner Rabbi Abbahu also agrees that his judgment is valid.

But Rabbi Abba asks:

If so,

if it is speaking of their accepting him upon themselves,

why does he pay from his own home?

Why must the judge pay when he erred in the judgment? They agreed to litigate before him.

And Rabbi Abbahu answers that the intention is not that they accepted the judge upon themselves both for judgment and for error, for if that were so, the judge would indeed be exempt for his error.

Rather, that case is speaking of a situation

where they said to him,

when they accepted him upon themselves to judge:

“Judge for us a judgment of Torah law!”

We accept you as a judge only for Torah law, and not for error. Therefore, since he erred, he must pay.

And now the Gemara discusses what sort of error is involved for which the judge must pay.

Rav Safra said to Rabbi Abba: In what did he err?

What error did this judge make?

If you say

that it means

that he erred regarding a matter

explicitly stated in the

Mishna,

if so, why must he pay?

For

did

Rav Sheshet say in the name of Rav Ami: One who erred regarding a matter of Mishna returns

the judgment, and the one who was declared entitled returns the value of the claim to the other, since it is not a judgment at all; so why must the judge pay?

And Rabbi Abba answers:

Rather,

the case is one in which

the judge erred

in

judicial discretion.

And the Gemara explains:

What are the circumstances of judicial discretion?

Rav Pappa said: For example, two tannaim

or

two amoraim who disagree with one another,

disagreeing concerning the ruling upon which this claim depends. If the later amoraim decide the case according to one view and the judge rules according to the second view, he has erred regarding a matter of Mishna. Rather—

the halakha was not stated neither according to this one nor according to that one,

so the halakha was not explicitly decided;

and the general course of reasoning

the majority of judges decide the case

according to one of them,

according to one view,

and he went

this judge decided

and acted according to the other,

according to the second view;

that is judicial discretion,

this is called erring in judicial discretion.

Therefore, the litigant who prevailed in the judgment need not return what he received, since in any event the judge ruled according to one genuine view, which was not refuted and against which no contrary halakha was decided. But the judge must pay from his own home, since the custom of the majority of judges is to rule according to the opposing view, and his error was one of judicial discretion. After we have explained the disagreement between Shmuel and Rabbi Abbahu, whether the judgment is by one or by three, the Gemara asks whether their disagreement might be a disagreement among tannaim.

Let us say:

Shmuel and Rabbi Abbahu disagree

as a dispute among tannaim,

in the same dispute in which the tannaim disagreed.

For we learned in a beraita:

Compromise,

a compromise is made

by three;

these are

the words of Rabbi Meir, and the Sages say: A compromise

is made even

by one.

They assumed,

the questioner assumed that

according to everyone,

both Rabbi Meir and the Sages hold

that we compare compromise to judgment,

that we equate compromise with judgment, because compromise is called “judgment and righteousness” [see page 6b], and therefore resembles judgment.

Therefore,

is it not

that we shall explain

that this is where they disagree,

that Rabbi Meir and the Sages disagree for this reason:

this master

Rabbi Meir

holds that the judgment

is

by three,

like Rabbi Abbahu,

and this master holds

the Sages hold

that the judgment is by two,

like Shmuel?

If so, it is difficult: “Let us say it is a dispute among tannaim.”

And the Gemara answers:

No,

they do not disagree about this. Rather,

according to everyone,

Rabbi Meir and the Sages hold

that judgment is by three,

like Rabbi Abbahu.

And here,

with regard to compromise,

this is where they disagree,

about this principle:

this master holds,

Rabbi Meir holds,

that we compare compromise to judgment,

and just as judgment is by three, so compromise is by three.

And this master holds,

the Sages hold,

that we do not compare compromise to judgment,

and therefore, although judgment is by three, compromise is by one.

The Gemara still asks:

Let us say,

shall we say

that there are three tannaitic opinions regarding compromise?

There are three different opinions of tannaim concerning the law of compromise:

this master,

Rabbi Meir,

holds

that it is made

by three. And this master,

Rabban Shimon ben Gamliel in the earlier beraita,

holds, by two. And this master,

the Sages,

holds,

they hold

by one.

And the Gemara answers:

Rav Aḥa, son of Rav Ika, said, and some say

that

Rabbi Yemar bar Shelamya

said: There are only two opinions.

And the one who says two

holds that

even one also

can make a compromise. Since we have said that compromise is not compared to judgment, there is no advantage of two over one.

And this that he says two

is

so that they may be witnesses for him.

So that the two can testify to the existence of the compromise if one of the litigants denies the compromise, or if he denies its details.

Therefore, he holds that it is made by two.

It can be learned from what we answered that Rabbi Shimon ben Gamliel holds that compromise may be made even by one, and at most two are required so that they will be witnesses. If so, it is difficult: Why did Rabbi Meir say three? The litigants who make a compromise can do whatever they wish, so why is a court required for this?

We must say that the reason is in order that the compromise should have the strong force of a court, so that if one of the litigants wishes to retract from the compromise, they can compel him to fulfill the compromise.

Therefore,

Rav Ashi said: Learn from this that a compromise does not require an act of acquisition.

They need not transfer ownership to one another by an act of acquisition so that they will not retract from the compromise.

For if it enters your mind

that you should hold that

it requires an act of acquisition,

if so, it is difficult:

according to the one who says

that a compromise

requires three, why do I need

three judges to strengthen the compromise, so that they cannot retract from it?

Two should suffice,

two should be sufficient,

and he should acquire from him,

and they should transfer ownership to one another; then surely they could not retract, for even ordinarily, one who gave a gift cannot retract if he performed an act of acquisition.

Rather, it follows that a compromise does not require an act of acquisition.

And the halakha:

the ruling is:

a compromise requires

an act of acquisition,

even if it was made by three.

The Sages taught: Just as adjudication is with three, so too compromise,

compromise

with three.