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Week 111 - Friday - 11 January 2002

SANHEDRIN: CHAPTER 3: MISHNAH 2

If he said to him, "Father is acceptable to me," "Your father is acceptable to me," "Three herdsmen are acceptable to me" - Rabbi Meir says, He may retract, but the Sages say, He may not. If he was legally liable to an oath, and he says to him, "Vow to me by the life of your head" - Rabbi Meir says, He may retract, but the Sages say, He may not.

Kehati

If a person is a relative of the litigant, or if he is a transgressor, he is disqualified as a judge or witness (see the following mishnah and mishnah 4 below). If, however, a litigant agrees that a relative, or transgressor be judge or witness in a case where he could forfeit his rights, or be obliged to pay by the testimony or judgment, his agreement is binding. If he wanted to withdraw his agreement, the halakhah is that if his agreement was accompanied by a kinyan (legal affirmation), he may not retract, for no changes may be made after kinyan. If, however, there was no kinyan, he may, according to all opinions, retract his agreement as long as the case has not been concluded (or regarding the witness - before he gave his testimony in the Court). This mishnah teaches that Rabbi Meir and the Sages disagree if he retracts after the conclusion of the lawsuit.

If he - one litigant, said to him - the other litigant, "Father is acceptable to me," or - "Your father is acceptable to me" - i.e., I agree that my father, or your father, will judge, or will be a witness in our case, even though he is a close relative and is therefore invalid to judge or to testify, as was explained above, or if he said - "Three herdsmen are acceptable to me" - to be our Court, even though they are not experts, for they do not come into town, neither do they see or hear cases involving two litigants, Rabbi Meir says, Even after the completion of the case, he may retract - and state that he wants only eligible judges and witnesses, but the Sages say, He may not withdraw his agreement to a judge after the case is ended, or to a witness after he has testified.

If he was legally liable to an oath - e.g., money was claimed from him; or if a worker claimed his wages; or if one claimed that something had been stolen from him, in all of which cases the Court obliges one party to take an oath so that he can either collect what is his due or avoid payment, and he - the other party, says to him, "Vow to me - i.e., swear to me, by the life of your head" - and I will accept this formula of yours instead of the judicial oath which incorporates "I swear" and the Divine name, and I will then waive my claim against you; or I will pay your claim, according to the circumstances, and he took such a non-judicial oath, Rabbi Meir says, He may retract - and demand that he take the judicial oath but the Sages say, He may not - retract, since he took the oath in the form demanded of him. The halakhah follows the Sages.

SANHEDRIN: CHAPTER 3: MISHNAH 3

And these are ineligible: the player with a kubiya, the usurer, fliers of pigeons, and dealers in shevi'it. Rabbi Shimon said, initially they called them 'collectors of shevi'it,' when the anasim increased, they reverted to calling them 'dealers in shevi'it.' Rabbi Yehudah said, when? When they have no trade except this, but if they have a trade besides this - they are eligible.

Kehati

In mishnah 3:1 we learned that either of the litigants could reject a judge or witnesses chosen by the other litigant, if he brought evidence that they were relatives or ineligible. Mishnah 3:4 will teach who are "relatives" this mishnah deals with the "ineligible," i.e., those who are unfit because of a transgression. Biblically, a "wicked" man is unfit to testify, as it is written, "put not your hand with the wicked to be an unrighteous witness" (Ex. 23:1), which the Sages expounded - do not allow a wicked person to testify. It follows that a transgressor liable to lashes is unfit to testify for those liable to lashes are termed 'wicked' as it is written, "if the wicked man deserves to be beaten" (Deut. 25:2); a fortiori one liable to karet or the Court-imposed death penalty is unfit to be a witness. Similarly ineligible are a thief, a robber or whoever has unlawfully taken others' property even though he is not punished by lashes, but must pay money. The halakhah is that those ineligible to testify are ineligible to judge (Hameiri). Our mishnah, however, lists only those who are "unfit" by Rabbinical law.

And these are ineligible - to judge or to testify: the player with a kubiya - in a game using kubiyot (bones or smooth stones in order to win money according to the rules of a game, i.e., gambling). The Gemara explains: "Because such a man does not contribute to civilized society," i.e., he does not concern himself with things which bring benefit to society, such as Torah, labor, etc.; Hameiri explains that he is not familiar with the worries and troubles of people, and does not care when others lose, nor is he ashamed to lie, for he is accustomed in his playing to employ methods of deception, and does not regard this as a disgrace in the eyes of others; the usurer - even for Rabbinically prohibited interest (see B. M. 5:1-2); not only the lender, the borrower also is disqualified (Gemara), for the prohibition of interest applies both to the lender and to the borrower; fliers of pigeons - the Gemara provides two interpretations of this term: (1) a game of wager, in which pigeons are flown in competition, the owner of the winning pigeon wins the stake money. According to this interpretation, pigeon racing is like playing with a kubiya; (2) fanciers who lure others' pigeons to come to them by making sounds; this constitutes theft by Rabbinic law;

And dealers in shevi'it - who deal in the produce of the shemitah year, and the Torah states, "And the Sabbath-produce of the land shall be for food for you" (Lev. 25:6) - for food, and not for merchandise. Even though this is a Biblical prohibition, the mishnah nevertheless lists the dealers in shevi'it among those who are unfit by Rabbinic law (see introduction to this mishnah), for the mishnah refers to shevi’it at the present time when the Biblical prohibition does not apply (see Tosefot Yom Tov on R. H. 1:5); according to another explanation, the mishnah speaks of people who do not know that this is a Torah prohibition, since they purchase foodstuffs for themselves with the money of shevi'it produce (Rabbeinu Nissim; Hameiri). According to yet another interpretation, the mishnah does not refer to people who are known to deal in shevi'it produce, but rather to people who were generally idle, but when the shemitah year begins, they start to deal in produce, and we assume that they are dealing in the produce of shevi'it (Rambam); the wording of our mishnah supports this interpretation, as it speaks of "dealers in shevi'it," and not of "dealers in shevi'it produce" (Hameiri).

Rabbi Shimon said, Initially they called them collectors of shevi'it - i.e., initially the Sages ruled that even those who collected the produce of shevi'it for their own consumption were ineligible to judge or testify, treating them as 'dealers in shevi'it.' The reason is explained in the Gemara: the poor used to collect the produce and bring it to the traders. They gave them money for it which was a form of commerce. When - after the destruction of the Second Temple, the Roman government imposed taxes on agricultural produce, and the anasim - i.e., tax collectors, increased - and compelled people to bring produce to the government, even during the shevi'it year, the Sages permitted the collection of shevi'it produce in order to pay taxes with it, and therefore they reverted to calling them - the ineligible, 'dealers in shevi'it' - i.e., they invalidated only those who traded in shevi'it produce, but those who collected it for their own use were adjudged eligible to testify or judge.

Rabbi Yehudah said, When - are the player with a kubiya, and usurer, and fliers of pigeons (according to the first interpretation), and dealers in shevi'it (according to the interpretation of Rambam) disqualified? When they have no trade except this - this is their sole occupation, but if they have a trade besides this - occupation, i.e., they are employed in a craft or commerce, they are eligible - to judge and to testify. The Gemara explains that Rabbi Yehudah does not disagree with the First Tanna, but rather interprets his statement, and such is the halakhah.

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