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Week 112 - Sunday - 13 January 2002

SANHEDRIN: CHAPTER 3: MISHNAH 6

How do they examine the witnesses? They would bring them in and intimidate them, and send forth every man outside and leave the greatest among them, and they say to him, "State, how do you know that the defendant is in debt to the plaintiff?” If he said, "He said to me that ‘I am in debt to him,'" "So-and-so said to me that that he is in debt to him" - he has said nothing, until he says, "In our presence he admitted to him that he is in debt to him two hundred zuz." And afterwards they bring in the second and examine him. If their words corresponded, they discuss the matter. If two say, "Not liable," and one says, "Liable" - he is not liable. If two say, "Liable," and one says, "Not liable" - he is liable. If one says, "Not liable," and one says, "Liable," and even if two find not liable or two find liable, and one says, "I do not know" - they will add judges.

Kehati

This mishnah discusses the examination of witnesses by the Court, as well as the verdict.

How do they examine the witnesses - in monetary litigation? Even though there is a Rabbinic ordinance that there is to be no investigation and examination of witnesses in monetary litigation (as will be explained below, 4:1), they nevertheless examined the witnesses, in order to direct their minds to testimony (Hameiri). How so? They would bring them - the witnesses, in - to the Court, and intimidate them - by admonitions, impressing upon them the severity of the sin of giving false testimony, which leads to severe tribulations for the world; and telling them that in addition to the harsh punishment awaiting a false witness, he is even despised by the person for whom he falsely testifies; it follows that he is regarded as evil both by Heaven and by his fellow man; and similar warnings, and send forth every man outside - according to another version, "And they send them forth" i.e., after the admonitions they remove the witnesses from the Court (see Tosefot Yom Tov), and leave - with the judges, one witness, the greatest - the most important, among them - for the witnesses are not examined in each other's presence, so that one will not learn to lie from his partner, and they say to him, "State, how do you know that the defendant is in debt to the plaintiff?" If he - the witness, said, "He - the defendant himself, said to me that 'I – the defendant, am in debt to him,"' or if he said, "So-and-so - whom I trust, said to me that he is in debt to him," or any similar statement, he has said nothing - his testimony carries no legal weight, for even if he heard from the defendant that he was in debt to the plaintiff, this is not evidence, for people say that they are in debt so that others will not think them rich. Similarly, if he heard from a third person that A is in debt to B, this is second-hand evidence, and it is not valid, until he says, "In our presence he - the defendant, admitted to him - the plaintiff, that he is in debt to him two hundred zuz" - i.e., and that he intended us to be witnesses in this matter (Gemara; Rashi; Rambam); and if the witness said, “In our presence he loaned him two hundred zuz," then his testimony is certainly accepted.

And afterwards they bring in the second - witness - and examine him - in the manner that they examined the first witness. If their words corresponded - there is no contradiction between the two, they – the judges discuss the matter - on the basis of the testimony that they received, and they give a verdict by majority vote.

If two say, "Not liable," and one says, "Liable" - he - the defendant, is not liable. If two say, "Liable," and one says, "Not liable" - he - the defendant, is liable. If one says, "Not liable," and one says, "Liable" - and the third one says, "I do not know," and even if two find - the defendant - not liable or two find liable, and one says, "I do not know" - even though if he had disagreed with them, he would have been outnumbered (one against two) if he says, "I do not know," it is as though he had not sat in judgment, consequently, the case has been conducted before two judges, and three are required; therefore, they the two will add judges - and once again discuss the matter (see Rambam, Hil. Sanhedrin 8:2). The method of adding judges will be explained further in 5:5, below.

SANHEDRIN: CHAPTER 3: MISHNAH 7

They concluded the matter, and brought them in. The senior judge says, "So-and-so, you are not liable"; “So-and-so, you are liable." And whence when one of the judges goes out, he may not say, ''I find not liable but my colleagues find liable, so what can I do, my colleagues outnumbered me?" - Regarding this it is said, "You shall not go up and down as a talebearer among your people" (Lev. 19:16), and it says, "He that goes about as a talebearer reveals secrets" (Prov. 11:13).

Kehati

This mishnah teaches the laws of the announcement of the verdict to the litigants.

After they - the judges, concluded the matter - the deliberations among themselves and decided upon a verdict by majority vote, and brought them - the litigants in - after the Court had heard their arguments, they were taken out as no one was allowed to be present with the judges whilst they were deliberating. After they had decided upon a verdict they brought the litigants in, to announce the verdict to them. The Senior judge says - to the defendant, "So-and-so, you are not liable"; or, "So-and-so, you are liable" - and this is the end of the lawsuit.

And whence - do we learn that - when one of the judges goes out, he - the judge, may not say - to one of the litigants, "I find - my opinion is that you are - not liable but my colleagues find - their opinion is that you are - liable, so what can I do, my colleagues outnumbered me" - and decided the verdict against you? Regarding this it is said, "You shall not go up and down as a talebearer among your people," and it says, another verse - "He that goes about as a talebearer reveals secrets" - for the deliberations of the judges are secret, for no one may be present in the courtroom at this time, as was explained above. The litigants are excluded so that they shall not know who was for conviction and who for acquittal, and thus the judges would not come to be hated. The judge who reveals this secret transgresses the prohibition of "You shall not go up and down as a talebearer among your people."

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