Siman 15

When there are many cases before the judges, they shall prioritize the case that came before them first, meaning that the litigants stood before them first. Nevertheless, the case of a talmid chacham, whether he is the plaintiff or the defendant, takes precedence over others, even if the others stood before the talmid chacham. Moreover, even if they already began another case, if the talmid chacham himself comes to the beit din, they stop the other case and occupy themselves with the case of the talmid chacham because of the honor of his Torah and because of the neglect of his Torah study, for if he must wait, he will be neglected from his learning. And so too, they must turn over his merit with all their ability, meaning to be precise with his words and to examine them to see if a side of merit can be found in them [as is evident from Rashi, Shabbat 119a]. And if the talmid chacham himself did not come to the beit din, but rather sent an authorized representative, or if it is not the business of the talmid chacham at all but rather of his relative, only that the talmid chacham sent word to the beit din that they should judge the business of his relative, then if they began a case, they do not need to stop. But if they have not yet begun, even though the litigants are standing before them, they prioritize the case of the talmid chacham or his relative because of the honor of his Torah. However, a relative of a talmid chacham who comes to court and the talmid chacham did not send word to the beit din that they should judge his case, he has no law of precedence at all, for there is no mitzvah at all to honor the relative of a talmid chacham, except for his wife, who is considered like his own person. And also in this time, there is the law of a talmid chacham for all that has been explained [so it appears to me is the intention of our teacher, the Rema, and that which they questioned him is settled, and this is like the incident of Rav Anan, Ketubot 106a. And examine this carefully].

The case of an orphan precedes the case of a widow, as it is said: "Judge the orphan, plead for the widow." And the case of a widow precedes the case of a talmid chacham, and certainly an orphan precedes a talmid chacham. And the case of a talmid chacham precedes the case of an am ha'aretz. And the case of a woman precedes the case of a man because she suffers shame from standing in a beit din. All these precedences apply when they all come before the beit din at the same time, but if one of them arrived first to stand before the beit din, he is first, except regarding a talmid chacham and an am ha'aretz—the talmid chacham is first even if he arrived last, as has been written. And it appears to me that the precedence of the orphan's case is only when he comes himself to the beit din, for because of his broken heart they prioritize him; but if his apitropos comes, he is not included in this law at all. And so too regarding a widow. And it is not similar to a talmid chacham, for the honor of the Torah exists even when he is not himself here, as it is a mitzvah to honor those who study Torah even not in their presence, which is not the case for an orphan and a widow, whose precedence is due to their situation and their broken heart, which is only in their presence. [And that which they questioned from Rabbi Akiva there, that he postponed the case of orphans, is well-settled; and delve into this.]

A judge before whom a case comes that he knows is fraudulent, yet he is unable to reveal the fraud, should not say, "I will decide the case and the collar will be hanging on the necks of the witnesses." Rather, he is obligated to investigate extensively with inquiry and examination, very thoroughly. And after all these, if it appears clear to him that there is fraud in this which is impossible to reveal, or that the witnesses are testifying falsely and according to the law there is no ability to disqualify them, or if he understands that the litigant in his cunning misled the witnesses to testify falsely even though they themselves are fit and testified in their innocence without wicked intent, or if he understands through his intellect that there are hidden matters here of cunning and trickery that are impossible to reveal and the entire claim of this plaintiff is a lie—even though according to the core of the law there is nothing with which to reject it—nevertheless, since it is clear to the judge that it is a fraudulent claim, he shall not attend to judging it. He shall give a document into the hand of the defendant stating that no judge should attend to this case because it is fraudulent. And so the Rosh, of blessed memory, used to do.

And this is when the plaintiff is a deceiver; but if the defendant is a deceiver and the dayan understands that he is pushing off the plaintiff with false claims or with false witnesses or that he misled the witnesses and the like, the dayan cannot withdraw so that the deceiver shall not profit from his deception. Rather, he should exert himself and investigate very thoroughly to nullify his deception. And if after all the exertion he is unable to nullify his deception, if it appears to the dayan through a proven assessment that the defendant is liable to the plaintiff, he should find him liable if he is an expert dayan. And similarly, permission is given to the expert dayan in other laws as well to act according to his intellect and clear understanding. For example, if the defendant requests time that is due to him according to the law that will be explained in siman 16, if the dayan understands that there is a concern of trickery and artifice in the matter to evade payment, he should not give him time until he appoints a guarantor for him or gives a pledge. And similarly, it is within the power of the dayan to require an oath even if it is not according to the law if he understands that through this the truth will be clarified, and the like in other matters. For the great principle in monetary laws is that one must judge according to the things that his mind inclines toward as being the truth and the matter is established in the heart of the dayan that it is so, even though there is no clear proof for the matter that would be effective according to the law. And the dayan must judge according to the truth that was verified to him in the matter and not according to the claims that deny the truth. And similarly, there are times when a trustworthy person told the dayan the incident, and the dayan knows that this man would not lie under any circumstances, but for testimony he is disqualified by Torah law; the dayan must inquire and investigate very thoroughly until the matter is clarified, or he should labor to make a compromise. And in such matters, it is impossible to explain every single detail that could be, and "give to a wise man and he will become yet wiser." And if the dayan is God-fearing, wise, and discerning, and knows well the ways of the world, he will understand one thing from another and learn one thing from another until the truth emerges in its truest form. And even though the Rambam, of blessed memory, wrote that since batei din that are not possessors of understanding and are not fit have increased, one should not judge based on an assessment of the mind, nevertheless, the Maharik and the Alshich and many other great ones wrote that where there are many assessments and the heart of the dayan is whole in the matter, and he is an expert and established as one who does not show favoritism in judgment, he must judge according to a proven assessment even in this time, provided that his intention is for the sake of Heaven.

If it appears to the beit din that one person robbed his fellow and it is not within their power to extract it from him, they may decree upon him that people shall not engage in business with him; and if it is a woman, that she shall not marry a man, until they remove the stolen object from their possession. And so too regarding anything similar to this, if it is within their power to act, they are obligated to make every effort in order to rescue the oppressed from his oppressor.

Reuven who claimed money from Shimon and Shimon responds, "Swear to me," in a case where according to the law he is able to make him swear—if the dayan understands that Shimon also knows that the truth is with Reuven and his only desire is to cast an oath upon him because he knows that Reuven will not swear even on the truth, it is within the power of the dayan to exchange the oath for a "shak" or for a "chas," and this matter is a great principle in this time. And it requires great understanding in matters of the obligation of oaths, for it is known in our time that the majority of Israel will not swear even on the truth, and the majority of matters are not resolved without oaths, and thus the truth is stricken. Therefore, if the dayan understands according to the matter and according to the value of the man, he can exchange the oath for something lighter than this. However, in such matters one needs much caution and fear of God and wisdom and understanding and great knowledge in the ways of the world, and that his heart be toward Heaven; and any dayan who knows within himself that he is not fit for this should remove himself from such matters.