1 it may be asked: Did not R. Abbahu say that all agree that a judgment given by two in monetary cases is not valid? — But why should you seek to show a disagreement between two persons?2
The text [above states]: 'R. Abbahu says all agree that a judgment given by two in monetary cases is not valid.' R. Abba objected and asked R. Abbahu [from the following]: If one has judged a case by himself and pronounced the guilty 'guiltless' and the guiltless 'guilty', or the clean 'unclean' and the unclean 'clean', his act cannot be undone, but he has to pay indemnity from his own pocket?3 — Here we are dealing with a case where the parties accepted the judge. If so, why make him pay indemnity? — Because they had said to him: We agree to abide by your award on condition that you give a decision in accordance with the Torah.
R. Safra asked R. Abba: What did the judge overlook in giving this erroneous decision? Was it a law cited in the Mishnah? But did not R. Shesheth say in the name of R. Ashi: 'If one overlooks a law cited in the Mishnah, he may revoke his decision'? — Hence it must be he erred in deciding against common practice. How can we conceive that? R. Papa said: If, for example, two Tannaim or Amoraim opposed each other's views in a certain matter and it was not clear with whom the true decision lay, but the general trend of practice followed the opinion of one of them, and yet he decided according to the opinion of the other, that is termed 'an error of judgment against common practice'.
Is it true to say that the point of difference [between Samuel and R. Abbahu] had been anticipated by Tannaim in the following controversy? Arbitration is by three, so says R. Meir. The Sages say that one is sufficient. Now the Schoolmen presumed that all agree that the force of arbitration is equal to that of legal decision; their point of difference would accordingly resolve itself into one holding that three are required for legal decision and the other holding that two are enough.4 — No, all [both R. Meir and the Sages] agree that legal decision is by three, and the point in which they differ is this: One [R. Meir] holds that the force of arbitration should be regarded as equal to that of legal decision, while the other disputes it.
May it be assumed then that there are three views held by the Tannaim with regard to arbitration, viz., one [R. Meir] holds that three are needed; another [R. Simeon b. Gamaliel] holds that two are sufficient,5 while the Sages hold that one is enough? — R. Aha the son of R. Ika, or according to others R. Yemar b. Salomi, said: The Tanna who says two are necessary is really of the opinion that a single one is sufficient. And the reason he requires two is that they might act as witnesses in the case, if required.
R. Ashi said: We may infer from this that no Kinyan6 is needed for arbitration, for if it be thought necessary, why does the Tanna in question require three? Surely two should suffice, the two parties being bound by Kinyan!7 The adopted law however, is that arbitration requires Kinyan [even when made by three].8
Our Rabbis taught: Just as for legal judgment three are required, so are three required for settlement by arbitration. After a case has been decided by legal judgment, thou must not attempt a settlement.
(Mnemonic: SaRMaSH BaNKaSH.)1
R. Eliezer the son of R. Jose the Galilean says: It is forbidden to arbitrate in a settlement, and he who arbitrates thus offends, and whoever praises such an arbitrator [bozea'] contemneth the Lord, for it is written, He that blesseth an arbiter [bozea'], contemneth the Lord.2 But let the law cut through the mountain,3 for it is written, For the judgment is God's.4 And so Moses's motto was: Let the law cut through the mountain. Aaron, however, loved peace and pursued peace and made peace between man and man, as it is written, The law of truth was in his mouth, unrighteousness was not found in his lips, he walked with Me in peace and uprightness and did turn many away from iniquity.5
R. Eliezer says: If one stole a se'ah [a measure] of wheat, ground and baked it and set apart the Hallah,6 what benediction can he pronounce? This man would not be blessing, but contemning, and of him it is written, The robber [bozea'] who blesseth, contemneth the Lord.7
R. Meir says: This text refers to none but Judah, for it is written, And Judah said to his brethren, What profit [beza'] is it if we slay our brother?8 And whosoever praises Judah, blasphemes, as it is written, He who praiseth the man who is greedy of gain [bozea'] contemneth the Lord.9 R. Judah b. Korha says: Settlement by arbitration is a meritorious act, for it is written, Execute the judgment of truth and peace in your gates.10 Surely where there is strict justice there is no peace, and where there is peace, there is no strict justice! But what is that kind of justice with which peace abides? — We must say: Arbitration.11 So it was in the case of David, as we read, And David executed justice and righteousness [charity] towards all his people.12 Surely where there is strict justice there is no charity, and where there is charity, there is no justice! But what is the kind of justice with which abides charity? — We must say: Arbitration.
But the following interpretation of this verse will accord with the First Tanna [who holds arbitration to be prohibited]: In rendering legal judgment, David used to acquit the guiltless and condemn the guilty; but when he saw that the condemned man was poor, he helped him out of his own purse [to pay the required sum], thus executing judgment and charity, justice to the one by awarding him his dues, and charity to the other by assisting him out of his own pocket. And therefore Scripture says, David practised justice and charity towards all his people.13
Rabbi, however, objected to this interpretation, for in that case [he said], the text ought to have read 'towards the poor' instead towards all his people? Indeed, [he maintained,] even if he had not given assistance out of his own pocket, he would nevertheless have executed justice and charity; justice to the one by awarding him his dues, and charity to the other by freeing him from an ill-gotten thing in his possession.
R. Simeon b. Manasya says: When two come before you for judgment, before you have heard their case, or even afterwards, if you have not made up your mind whither14 judgment is inclining,15 you may suggest to them that they should go and settle the dispute amongst themselves. But if you have already heard their case and have made up your mind in whose favour the verdict inclines, you are not at liberty to suggest a settlement, for it is written: The beginning of strife is as one that letteth out water. Therefore, leave off contention before the quarrel break out.16 Before the case has been laid bare, you may leave off [give up] the contention;17 after the case has been laid bare, you cannot leave it off.
The view of Resh Lakish18 is as follows: When two men bring a case before you, one weak [i.e. of small influence], the other strong [of great influence], before you have heard their case, or even after, so long as you are in doubt in whose favour judgment is inclining, you may tell them: 'I am not bound to decide in your case', lest the man of great influence should be found guilty, and use his influence to harass the judge. But, if you have heard their case and know in whose favour the judgment inclines, you cannot withdraw and say, I am not bound to decide in your case', because it is written: Ye shall not be afraid of the face of any man.19
R. Joshua b. Korha says: Whence do we know that a disciple, who is present when his master judges a case and sees a point which would tell in favour of a poor man or against a rich man, should not keep silence? From the words of the text: Ye shall not be afraid [lo taguru] of the face of any man.20 R. Hanin explains this word to mean, 'Ye shall not hold back your words because of anyone.21 Further, witnesses should know against whom they are giving evidence, before whom they are giving evidence and who will call them to account [in the event of false evidence]. For it is written: Then both the men, between whom the controversy is, shall stand before the Lord.22 Judges should also know whom it is they are judging, before whom they are judging, and who will call them to account [if they pervert justice], as it is written: God standeth in the Congregation of God [in the midst of judges doth He judge].23 And thus it is said, concerning Jehoshaphat, He said to the judges, Consider what ye do, for ye judge not for man, but for the Lord.24 And lest the judge should say: Why have all this trouble and responsibility? It is further said: He is with you in giving judgment.24 The judge is to be concerned only with what he actually sees with his own eyes.
When is judgment to be regarded as rendered [i.e. at which point is arbitration forbidden]? — Rab Judah, in the name of Rab. says: On the pronouncement of the words: So and so, thou art guilty; or, so and so, thou art not guilty.
Rab says: the halachah is in agreement with R. Joshua b. Korha [who holds arbitration to be a meritorious act]. How can this be? Was not R. Huna a disciple of Rab, and yet, when a case was brought to him, he would ask the litigants whether they desired to resort to law or to a settlement?25 As to the expression, 'meritorious act which R. Joshua b. Korha uses, he means
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