1 Why then did they [the Sages] declare that monetary cases are not subject to this exacting procedure? In order not to 'bolt the door' against borrowers.2 But if non-Mumhin are competent to adjudicate in monetary cases, ought they not to be protected against any claim of compensation in case of their having given an erroneous decision? — All the more then would you be 'bolting the door' against borrowers.
If it be so, [that cases of indebtedness require three, why does R. Abbahu say that the Tanna adds an explanatory clause, and not simply that] the Mishnah teaches two separate laws; viz. MONETARY cases are tried by three laymen3 whilst cases of LARCENY AND MAYHEM are tried by three Mumhin.3 Moreover, if the two clauses merely explain each other, why mention 'three' in each? — indeed, said Raba,4 the Tanna teaches two separate laws; and cases of indebtedness need no Mumhin for the reason given above by R. Hanina.
R. Aha the son of R. Ika says: According to Scriptural law, even a single person is competent to try cases of indebtedness as it is said: In righteousness shalt thou judge thy neighbor.5 Three, however, are needed in case traffickers6 presume to act as judges. But even with the provision of three might they not all be traffickers? — It is, however unlikely that none of them should have any knowledge of the law. If this be so, they should be exempt from liability in case they erred? — But how much more would traffickers presume in such circumstances to act as judges!7 Wherein then lies the difference between Raba and R. Aha the son of R. Ika [since both agree that mere laymen are competent]? Their difference centres round the opinion of Samuel who said: 'if two [laymen] have tried a monetary case, their decision holds good. but they are called a presumptuous Beth din.' Whereas Raba8 does not agree with Samuel, R. Aha does agree with him.
CLAIMS FOR FULL OR HALF DAMAGES etc.
Do not FULL DAMAGES come under the category of MAYHEM9 [why then this specification]? — Since the Tanna had to state HALF DAMAGES he mentions, also FULL DAMAGES. But is not HALF DAMAGES also included in the same category? — The Tanna speaks of two classes of payment — kenas10 [fine] and indemnity. This opinion would be in accord with the Amora who considers HALF DAMAGES kenas, but how meet the difficulty according to the one who regards it as indemnity?11 — Since the Tanna had to state DOUBLE AND FOUR- OR FIVE-FOLD RESTITUTION, which is an indemnity
Whence do we deduce that three are needed [for the composition of a court]? — From what our Rabbis taught: 'It is written: The master of the house shall come near unto the judge. here you have one; and again: the cause of both parties shall come before the judge, here you have two; and again: whom the judge shall condemn,1 so you have three.' So says R. Josiah. R. Jonathan holds the initial reference to judges occurs In the first passage above, and cannot as such, be employed for exegetical purposes.2 But [the deduction is as follows:] The cause of both … judge, here you have one; again whom the judge shall condemn, here you have two; and since a court must not be of an even number, another is added, making the total of three. Shall we say that R. Josiah and R. Jonathan have as point of dispute the question whether or not first citations can be used for exegetical purposes. R. Josiah being of the opinion that they can be used, and R. Jonathan that they cannot? — No! Both agree that first citations cannot be used. R. Josiah nevertheless employs one such in this case because were its purpose merely to indicate the need of a judge, the text should have stated The master… unto the Shofet [judge]. Why does it say 'Elohim'? — To enable us to infer that the first citation is to be used to derive from it the number of three judges. R. Jonathan, however, argues that the verse employed the popular term ['Elohim' for a recognised judge]. even as the current saying goes; 'Whoever has a trial let him go to the Dayyan.'3
And is not R. Josiah of the opinion that a court must consist of an uneven number of judges?4 Has it not been taught; R. Eliezer the son of R. Jose the Galilean says: 'What is the signification of the phrase to incline after many to arrest judgement?'5 The Torah implies: Set up for thyself a court of an uneven number, the members of which may be able to incline to one side or the other? — R. Josiah is of the opinion of R. Judah that the Great Sanhedrin consisted of seventy. For we learnt: THE GREAT SANHEDRIN CONSISTED OF SEVENTY-ONE … R. JUDAH SAYS OF SEVENTY. It might, however, be objected that R. Judah has been known to express this view only regarding the Great Sanhedrin [and that on Biblical authority]; but have you heard him express it with regard to other courts? Should you presume to say that [R. Judah] makes no such distinction, how then explain what we learnt: THE LAYING OF HANDS BY THE ELDERS AND THE CEREMONY OF BREAKING THE HEIFER'S NECK [REQUIRE THE PRESENCE OF] THREE. SO HOLDS R. SIMEON. R. JUDAH SAYS FIVE. And it has been stated. 'What is R. Judah's reason? He finds it in the text, the elders shall lay.6 the plural in each word indicating at least two, and so four in all, and since there cannot be a court of an even number, a fifth is added.'7 R. Josiah's opinion goes further than that of R. Judah. Whilst the latter is of the opinion that only the Great Sanhedrin needs an uneven number, but not other courts, R. Josiah extends that requirement to all courts.
But [on R. Josiah's opinion] how is 'to incline' explained?8 — He applies it to capital but not to monetary cases. If so, what of the ruling which we learnt that in [monetary] cases: if two of the judges acquit the defendant and the third condemns him, he is acquitted; if two condemn him and one acquits, he is condemned.9 Can it be said it does not accord with R. Josiah's view?10 — No! you can correlate that Mishnah's ruling even with that of R. Josiah [for he will agree that the decision of the majority is valid even in civil cases] by virtue of a kal wahomer11 from capital cases. If in capital cases that are so grave, the Divine Law12 vested the authority in the majority, all the more so in monetary cases.
Our Rabbis taught: Monetary cases are tried by three. Rabbi says, by five, so that in case of a division there will be a majority verdict, i.e., of three. But surely even in the case of three there is possible a majority verdict [namely, of two]? — What Rabbi means is that an unanimous decision of three is required for the verdict. Hence he holds that the stage at which three judges are prescribed is the final decision. This opinion was ridiculed by R. Abbahu, for the Great Sanhedrin would accordingly have to consist of one hundred and forty one, in order that the final verdict might be given [in case of a division] by a majority of at least seventy-one; and the small Sanhedrin would have to consist of forty-five, in order that the final verdict might be given by twenty-three? This however cannot be maintained, since the text, Gather unto me seventy men of the elders of Israel13 prescribes seventy at the time of gathering; and likewise, the verse, The congregation shall judge, and the congregation shall deliver14 refers to the time when the congregation proceeds to judge. Similarly it may be concluded that the verse, The master of the house shall come near unto the judges15 [from which the need of three judges in monetary cases is derived], is to be explained as referring to the time when the plaintiff appears before the Court, at which point three judges are required. [Whence then does Rabbi deduce that three are needed?] — Rabbi derives this from the plural form of the predicate 'yarshi'un' [they shall condemn], arguing that the subject 'Elohim' [judges] is here a plural, indicating at least two; and similarly the earlier 'Elohim'16 in the same context denotes two. So we have four. Adding another, since a court cannot consist of an even number, there are five;
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