Siman 13

It has already been explained in siman 3, section 2, that in a place where there are no permanent judges in the city, one of the litigants does not have the power to compel his fellow to agree to the judges he selected. And how do they act when they do not agree on their selection? Each one selects for himself one judge that he desires, and the two judges select for themselves another third judge; and it is not necessary that the third be with the consent of the litigants. In what case does this apply? When they were selected for din Torah, for then, since they were selected as judges, they can compel the litigants to accept upon themselves the third whom they selected. But if they were selected for a compromise and not for din Torah, the power of the judges is not effective in this; rather, it is necessary that the third also be with the consent of the litigants. And now the custom even in din Torah is that the two litigants select for themselves a third judge to be a third party and a decider between the two judges. And when these three have been selected, they judge them, and through this the judgment emerges in its truth; for since this one selects for himself one and that one selects for himself one, the litigants obey them, and the judges—each one turns over the merit of the one who selected him in everything possible from the perspective of the law, and the third hears the words of both of them, and they rule the truth.

And if they are unable to agree upon the third judge, the leaders of the city shall provide them with a third. And if there are no leaders in the city, the plaintiff shall go before three, and they shall compel the defendant to litigate before them since there is no other choice. And similarly, if the defendant uses artifice to choose a judge who is not fit, they compel him to litigate before three, or that he choose a fit judge. And if the plaintiff uses artifice to choose a judge who is not fit, the defendant does not need to answer him until he chooses a fit judge. But when one of the litigants chooses a fit judge, even though he is not comparable to the stature of the second judge, the second cannot protest. And "fit" refers to one who is at least learned, or whom the public has appointed over them, and who possesses fear of Hashem [Shach]. And if the two judges who were chosen are fit, but are related to one another, the defendant has the upper hand and can compel the plaintiff to choose another judge for himself [the Rema in a Responsum].

That which we have written, that every dayan seeks the merit of the one who selected him, the intention is not that he should seek his merit through falsehood or through cunning and artifice, Heaven forbid; rather, the intention is that he should seek his merit as much as possible according to the law, in truth and justice.

Even though the arbitrators have all the laws of judges, and if so, it is forbidden for each litigant to present his arguments before his arbitrator without his fellow litigant present, nevertheless, it has already become the custom that each one presents his arguments before his arbitrator. Since both sides do this and such is the custom, it is as if both sides accepted this upon themselves in this manner, and there is no prohibition in this. However, the arbitrator must be careful that the litigant who selected him and promised him his fee for his effort shall give it to him whether he wins the case or whether he does not win. For if not so, it is forbidden for him to sit in judgment, as he would be one who has a personal interest in the matter, and his heart will incline him even toward falsehood so that he may take from his side what they promised him.

If one of the litigants says that his desire is to choose two dayanim from his side and that his counterpart should also choose two, and they will choose an additional fifth as a third party, the authority is in his hand; for as long as there are more dayanim, the judgment emerges more truthfully. However, if they see that he says this because of some craftiness or artifice, they do not permit him, and one dayan from each side is sufficient, as has been written, and they compel him to this.

If the two borrerim are able to agree between themselves on the law or on the compromise, there are those who say that there is no need to select a third dayan, and neither of the litigants can protest. There are those who disagree with this [Taz]. And it appears that the primary view is like those who disagree, for everyone knows that when they select dayanim, one from each side, the intention is to select another third for a third, and if so, with what could they compel one of the litigants if he delays until they select a third? And so one should rule. And one cannot say: what will the third avail, for even if he will be against them, surely we follow the majority? For it can be said that perhaps when the third states his opinion, the two will recant because of the reasons he will state to them. Furthermore, in a compromise we do not follow the majority, as I wrote in siman 12, section 15, and even regarding the law, the law is so for the previous reason.

They write: "So-and-so chose such-and-such a dayan, and so-and-so chose such-and-such a dayan." As long as they have not written this, they may retract; once they have written it, they may not retract. Therefore, they do not write except with the consent of both of them, and both of them pay the scribe's fee. The same law applies if they performed a kinyan from their hands regarding this, they may not retract. This is not a kinyan devarim, for the kinyan is that he obligates himself to pay or to waive whatever these dayanim shall say, and this is like a kinyan regarding a relative or one disqualified from testifying, which will be explained in siman 22. Some say that once they have pleaded before them, they may not retract even if they have not written and have not performed a kinyan. In a place where the custom is not to write at all "So-and-so chose such-and-such," etc., as in our times, everyone agrees that once they have pleaded before them, they may not retract. In any case where they cannot retract, one side does not have the power to add dayanim if the other side does not agree to it. The dayanim themselves have the power to add dayanim if all the dayanim desire so, even without the consent of the litigants, for the litigants cannot protest when the dayanim want the din or the compromise to emerge more clearly. There is one who says that this rule—that the litigant cannot add dayanim—applies specifically in a case of "this one chooses one and this one chooses one," but otherwise, even when they are judging before the established beit din of the city, one of the litigants may add dayanim even after they have pleaded before them. See siman 18.

Neither of the litigants can compel his fellow litigant to provide his arguments in writing to the beit din, because he can say: "When I do not provide my arguments in writing, I am able to retract my previous argument by means of an explanation that I provide for my words." And even though I would not be able to retract from one extreme to the opposite, as was written in siman 80, nevertheless, I would be able to improve my arguments by means of an explanation; whereas if I provide them in writing, they will not accept from me any correction to my arguments. Furthermore, he can say: "I do not wish for my fellow litigant to be over me like a crouching lion, to look at my arguments and learn things from them and respond to them with falsehood." And on the contrary, he can say to his fellow and compel him not to provide his arguments in writing first, but rather that he should argue orally first, because he can say: "I am not obligated to trouble myself and take a copy of your arguments and delve into them and respond to them." Furthermore, the judges must hear their arguments from their own mouths, for from their words they will learn to understand who is the one arguing the truth and who is arguing falsehood, and not to come with arguments arranged in writing, beautifying them with corrected language according to the false arguments he fabricated from his heart. However, the judges themselves, when they fear that they might forget the arguments, may command their scribe to record the arguments in writing after they have heard them orally. And if both litigants agree to provide the arguments only in writing and not orally, they have the permission to do so, and the judges cannot protest against them, for since they themselves are not concerned about the detriment, why should it matter to us? Therefore, both of them pay the scribe's fee, and they are unable to retract from their arguments at all, as has been written. And see what I wrote in siman 7, section 8, and further on in siman 124, that sometimes arguments are accepted from writing, and see in siman 80, section 5.

If one litigant disqualifies the judge of his fellow with some disqualification, even if there is another witness with him, it is nothing, because he is like one who has an interest in the matter and cannot testify, and the witness who is with him remains alone, and a single witness is not believed.

If the defendant chose a dayan who knows testimony for the plaintiff, and since he will be a dayan he will not be a witness as is written in siman 7, therefore they pressure the defendant with all possible means to choose another dayan. And if the plaintiff chose a dayan who knows testimony for the defendant, the defendant shall not answer him regarding his claims until he chooses another dayan for him.

If the judges needed to ask a question regarding this law upon which they are sitting, they may ask in any place they desire, and the consent of the litigants is not required for this. The respondent shall respond to the judges and not to the litigants, for we require that the litigants stand and plead before the judges who decide the law, and before the respondent they have not pleaded. And that which will be explained in siman 18, that they may decide the law even not in the presence of the litigants, that is when they have already pleaded before them; then they may decide even not in their presence. And even though when two litigants send their pleadings in writing to a sage, the sage may respond to them, this is because since they themselves previously sent their pleadings in writing to this sage, it is as if they are standing before him for judgment. But here, they stood for judgment before these judges, only the judges are in doubt and ask a sage greater than them for the law or the equity; if so, what have the litigants to do with this consulted sage? However, if the judges and the litigants all agree to nullify their judgment and their session, the litigants may afterwards ask whomever they desire. [So it appears to me.]

If one of the dayanim said, "I do not know the law," others are added in his place as will be explained in siman 18. This is more deficient than if he had said the opposite of the two dayanim—where we would follow the majority according to Torah law—because when he says "I do not know," it is considered as if he did not sit at all. We say that perhaps if a third were still sitting and would show them a reason contrary to their opinion, they would agree with him. More will be explained regarding this in siman 18. Similarly, in a pesharah, when they accepted upon themselves to follow the majority and one said "I do not know," others are added in his place, except that in a pesharah the consent of the litigants is required regarding the additional dayanim, as will be explained there. This is certainly true when they did not accept to follow the majority, for another dayan is required, since in a pesharah we do not follow the majority, as I wrote in siman 12, section 15. If that dayan who withdrew later came and said that he agrees with their words, it is effective. It appears that the same applies when he disagrees with them later and shows them reasons and logic; then, if they do not agree with him, we follow the majority. It is forbidden for a dayan to say "I do not know" when he does know and does so for the benefit of one of the litigants; the Knower of Thoughts will exact punishment from him when the truth is not with him, that he truly knows and says "I do not know."