Siman 22

It has already been explained in siman 7 that a relative or an unfit person are unfit for judgment and for testimony. Nevertheless, since any condition in monetary matters is valid, as I wrote in siman 21, therefore, one who accepted upon himself a relative or an unfit person, whether as a judge or as a witness—and even if he accepted the unfit person as two valid witnesses or as a beit din of three experts, whether he accepted upon himself to lose his rights or whether he accepted upon himself to give whatever he will be obligated based on the testimony of this unfit person or based on his judgment—his words are valid. This is so even before the final verdict or before the acceptance of the testimony if they performed a kinyan from him that he obligates himself in whatever this unfit person shall rule against him or whatever this unfit person shall testify against him, and he cannot retract. If they did not perform a kinyan from him, he can retract, but specifically until the final verdict. However, after the final verdict, such as when he said "Go out and give to him," he cannot retract [Shach]. And so too, even if this relative or unfit judge merely said, "Ploni, you are liable" and "Ploni, you are exempt," and they left the beit din, or even if they are still in the beit din but they turned their attention away from this matter and engaged in other things, this too is considered like a final verdict. Regarding testimony, as soon as he testified, he cannot retract even without a kinyan, for in testimony, it is considered a final verdict when he testified his testimony in beit din.

That which we said, that after the completion of the verdict he cannot retract when he accepted him upon himself, some say that this is specifically when the acceptance was before a fit beit din [Shach]. And some say that even if he did not accept him upon himself before a fit beit din, since he pleaded before the disqualified person or the relative and accepted upon himself to fulfill whatever he would rule, and the disqualified person or the relative issued his verdict as we explained, he cannot retract. And so wrote the later authorities, and so one should instruct [Urim VeTummim and Netivot HaMishpat], for in what way is the matter stronger when he accepted in a beit din? For the concept of "the power of the beit din is superior" is not relevant in this case, as the primary fulfillment is the completion of the verdict. However, if this relative or disqualified person adjudicated not in his presence, he can retract [Netivot HaMishpat], for regarding this matter, the power of the disqualified person is certainly not as superior as a fit beit din when they did not perform a kinyan from him, and it does not have the status of a legal ruling since it was not in his presence.

When one accepts upon himself a relative or one who is disqualified, he must say explicitly: "I accept upon myself the judgment or the testimony of this specific relative or this specific disqualified person." However, if he only deposited funds with a third party as security for this judgment in the hand of the relative or the disqualified person, we do not say that since he deposited it in his hand, he accepted his judgment, for as long as he did not accept it explicitly, it is not called an acceptance and his judgment is void. And behold, this is certainly so if this third party is not a judge at all but merely a third party, and he deposited funds in his hand so that he should fulfill according to what emerges by law; certainly there is no relevance for the third party to judge by himself when they did not speak so at the time of the deposition, and even if the third party is not a relative or disqualified, for does every third party have the authority to judge in a matter that was deposited in his hand? Rather, even if this third party is a permanent judge and it is the way of litigants that they go to him and deposit funds with him with the intent that he should do with them according to what emerges from the verdict from him, and even if they do not say explicitly that he should judge, it is like an explicit statement since he is a permanent judge. Nevertheless, if one of the litigants is a relative of the judge and they came to him and deposited in his hand, we do not say that this is like they accepted him upon themselves since the entire city does so; for since he is a relative, it is not effective until they state it explicitly [as it appears to me in the explanation of the words of our teacher, the Rema, in section 1, for if not so, there is no explanation for this; and so it is proven from the Responsa of the Rivash, siman 311, which is the source of this law, and there the case was so, see there].

That which we explained in section 1, that even when one accepted a relative or one disqualified as two witnesses or as a beit din of three it is effective even without a kinyan if the judgment was finalized, there are those who disagree on this and hold that specifically if they accepted him as one witness or as one judge is a finalized judgment effective; but if they accepted them as two or as three judges, it is a double deficiency and a finalized judgment is not effective and he may retract. And if they performed a kinyan from him, in any case he cannot retract. And if he accepted upon himself one valid judge as three experts, or one valid witness as two witnesses, and the judgment was finalized, even according to this opinion he cannot retract [Acharonim, not as the Shach].

If it became known that the relative or the disqualified person erred in the law, or if they accepted him for judgment and he performed a compromise, even if they performed a kinyan from his hand, it is retracted, for it was like a kinyan in error. But in an ordinary case, the litigant is not believed to say that he erred, and they cannot retract even when both litigants want to retract from his judgment if, by retracting from the judgment of the disqualified person or the relative, they will cause harm to others—for example, if he obligated one of them to pay his fellow, and from his fellow it is owed to others, and similar to this [Shach]. But if there is no harm to others in this, they may retract from his judgment if both of them desire it, and the scholar who ruled has no right to hinder them for the sake of his honor [Acharonim, not like our teacher, the Beit Yosef].

One who emerged liable from such a beit din and claims, "I never accepted him as a judge," and there are no witnesses to the matter, he shall swear a shevuat hesset. Even if the judge also contradicts him, he is not considered as a witness to bring him to a shevua de'oraita, since he is a relative or disqualified; rather, he swears a shevuat hesset. And if the judge is fit and the liable party claims that he did not accept him as a judge and the judge contradicts him, if the judge already found him liable, it is called a denial of money and he swears a shevua de'oraita, for this is like an oath to contradict a witness. And if he has not yet found him liable, in that he has not yet issued the ruling, and one of the litigants says that he did not accept him as a judge and the second says that they did accept him, even if the judge also says that they accepted him and he is fit to judge for him, nevertheless he is not liable for an oath, for this is not a denial of money and he has only a shevuat hesset against him. And if the judges are two and are fit, it is simple that they are believed when they say that both litigants accepted them as judges, and they judge them against their will [Netivot HaMishpat].

If they accepted upon themselves to judge before three of the tuvei ha'ir or from the appointed officials in the city, even if they did not accept with a kinyan and even before the conclusion of the judgment, they cannot retract. For such is the custom, that the power of the tuvei ha'ir in their city is as great as the power of the Great Beit Din, as was written in siman 2. And even if they made a pesharah in a place where they were supposed to judge according to Din Torah, and even if they erred, for such is the custom to accept everything that the tuvei ha'ir do in their city; so wrote our teacher, the Rema. And now, this custom is not established among us. And it has already been explained in siman 8 that in a place where there are no Torah scholars and the public appointed over themselves judges who are not learned, the litigants do not have the power to object, and this too is not practiced now.

If he accepted upon himself the testimony of an Arab, it is effective just as if he accepted upon himself a relative or one disqualified. However, if he accepted upon himself to litigate before an Arab judge, it is nothing, and it is forbidden to litigate before them, as will be explained in siman 26. But if he accepted to rely upon him according to what he would judge based on his own opinion, and not according to their established laws, it is effective like the acceptance of a relative or one disqualified [so it appears to me regarding the intention of the Shach, subsection 15, and such is the primary ruling, and not like the Netivot HaMishpat].

And similarly regarding other matters, in everything that a litigant accepts upon himself even if not according to the law, his words stand, for any condition regarding monetary matters is valid. For example, Reuven who was obligated to Shimon a severe oath in beit din, whether it was an oath to swear and take or whether it was an oath to swear and be exempt, and Shimon said to Reuven: "I am not imposing upon you the severe oath that the beit din obligated you, but rather swear to me by the life of your head and be exempt" if it was an oath to swear and be exempt, or if he said to him: "Swear to me by the life of your head and I will give you everything you claim from me" if it was an oath to take—if they performed a kinyan from Shimon, he cannot retract. And if they did not perform a kinyan from him, he can retract until Reuven swears; and once he has sworn, Shimon can no longer retract. And similarly, one who was obligated a shevuat hesset and turned it over to his fellow litigant, if they performed a kinyan from him or if the fellow litigant swore, he can no longer retract. And similarly, one who was not obligated an oath and said to his fellow litigant: "I will swear to you," if they performed a kinyan from him, he cannot retract; and if they did not perform a kinyan from him, even though he accepted it upon himself in beit din, he may retract. And there are some of our early teachers who say that in all these laws we have explained, even if they did not perform a kinyan from him and even if he has not yet sworn, once he accepted it so in beit din and they exited the beit din, or even if they are still standing in beit din but merely ceased speaking of this matter and began speaking of another matter, he can no longer retract. And with this opinion the great later authorities agreed, that it is proper to rule so. And all the more so one who was obligated an oath and said to the fellow litigant in the presence of beit din: "I do not want to swear, but rather I am paying," and he exited outside the beit din or they ceased speaking of this matter and began speaking of another matter, for it is like a final judgment since he accepted upon himself to pay. And even though there are those who disagree even in this, nevertheless, this is the essence of the law, that this is a final judgment and he cannot retract. But if he said plainly: "I am not swearing," he can say that his intention was to turn it over to the one opposite him. And similarly, when he said in beit din: "I am swearing," and exited outside the beit din, he can turn it over to the one opposite him, and we do not say that since he said "I am swearing" and exited outside the beit din it is a final judgment and he cannot retract; for it is different here, as what he says "I am swearing" is as if he said "I am fulfilling the law," and since according to the law he can turn it over, therefore even when he exited from beit din he can turn it over, and such is the custom [Shach]. And therefore, regarding a Torah oath which by law he cannot turn over, as I wrote in siman 87, and he said to his fellow: "Swear and take," and he accepted it upon himself and said: "I am swearing," and exited from beit din or they began speaking of another matter, he cannot retract [Netivot HaMishpat]. And one should not wonder at the latter opinion, that through mere words the matter should be established such that he cannot retract, for behold, even according to the first opinion one could ask: why with a kinyan can he not retract? For is this not like a kinyan devarim, where there is nothing upon which the kinyan can take effect according to what I wrote in siman 12? Rather, the matter depends on the final judgment, for when the judgment is finalized he cannot retract; and according to the first opinion, the kinyan is like a final judgment, and according to the latter opinion, the acceptance in beit din and subsequent exit from beit din or beginning to speak of another matter is like a final judgment.

One who was obligated to his fellow a Torah oath and said to his fellow, "Swear and take," and his fellow jumped and swore without holding an object, he cannot retract. And even though his intention was certainly, when he said "Swear and take," that he should swear while holding an object, and any oath that must be while holding an object, if it was without holding an object, it is nothing; and if so, it is obvious that his fellow must swear another time while holding an object. What is the reason? Regarding retraction, it is like a final verdict after he jumped and swore, and his fellow must swear another time while holding an object. And there are those who disagree on this, for since he swore without holding an object, it is not like a final verdict, and he can retract until they leave the beit din or they begin to speak of another matter, as above [Shach]. And according to the first opinion, even if he swore outside of the beit din, it is a final verdict.

In all these matters that have been explained, if there is a denial between them—where this one says that he did not say to him at all "swear and take," and this one says that he did say it to him, and similarly in all the matters in this siman—when there is a denial between them, the denier shall swear that he did not say so to him, and they shall return to the Torah law. And there is one who disagrees regarding this, for since his fellow would only merit through an oath, one does not administer an oath for this, as it is not a denial of money, for who is to say that he would have sworn [ibid.]. Furthermore, this is only a factor that causes money and not the money itself. However, it is certain that he can impose upon him a herem stam.