Siman 25

Any judge who erred in a law explicitly stated in the Gemara or in the poskim, it is not called a judgment at all. Even if they are three expert judges and the litigants accepted them upon themselves, nevertheless, since the error is so great, the judgment is reversed and they judge it according to the halacha. And even if the judge took from the hand of the liable party according to his error and gave into the hand of his fellow litigant, they take the money back from his hand and judge according to the halacha. And if it is impossible to reverse the judgment, such as where the recipient is a violent person or went to a distant land, if the judge did not physically take and give from the hand of the liable party to the winning party according to his error, but rather that according to his command he paid him, and similarly in a ruling where according to the judge he declared a pure item impure or ruled regarding a kosher animal that it is treifa and the owners threw it to the dogs, the judge is exempt from paying. And even though we hold like Rabbi Meir who judges "dina d'garmi" as written in siman 386, nevertheless, he did not intend to cause damage and the owners are the ones who damaged themselves, and even lifnim mishurat hadin he is exempt [Urim VeTumim]. And even though there are those who disagree on this and hold that he is liable to pay by the laws of garmi, nevertheless, the great later authorities decided like the first opinion. And if the judge physically took and gave and it is impossible to return it, if he is an expert and they accepted him such that he did not judge through coercion, he is exempt; nevertheless, lifnim mishurat hadin he is liable [ibid.]. And if they did not accept him, even if he is an expert, or if they accepted him and he is not an expert, he is liable to pay, for he should not have performed a physical act. And an expert judge exists for this law even in this time if he is of great strength in Shas and poskim and a possessor of straight reasoning and is known and famous as an expert [Shach]. And it appears that every rabbi in his city who was appointed by the community has the status of an expert regarding this matter, except in places where they appoint from the outset those who are not great in Torah. And "accepted him" is called whenever they came before him for judgment not through coercion; and even if they warned him via a messenger of the beit din and he came to judgment, it is not called coercion unless he did not want to go and they coerced him to come—that is coercion. And in all this, there is no difference between one judge and three judges.

But if the error was in the weighing of judgment, meaning in a matter that is a dispute among the poskim and the halacha was not explicitly clarified like one of them, but the custom spread in the province according to one opinion and the dayan ruled contrary to the custom—and this is called the weighing of judgment—and he did not know of the dispute at all, or he knew but ruled without reason or decision like one of them contrary to the custom: if he was an expert and the people of the city accepted him as a teacher and dayan, even if the litigants did not accept him for this case as he judged them by compulsion, or if the people of the city did not accept him but the litigants accepted him as a dayan for this matter, the judgment stands even though it is possible to retract [Shach], for this does not have the status of an error in the law, and he is exempt from paying even when he took and gave with his hand. And in matters of forbidden and permitted, even if the dayan himself threw it to the dogs, he is exempt from paying. Only if there is a greater Torah scholar than him in the city, he retracts the judgment and the ruling if it is still possible to retract it and with the consent of the dayan. And if it is impossible to retract, he is exempt from paying even if he took and gave with his hand, since he is an expert and the people of the city or the litigants accepted him. And it appears that even beyond the letter of the law he is exempt, since he did not err in a matter of Mishnah and he is an expert. And if this sage decided with proofs to judge according to an opinion that did not spread, this does not have the status of an error at all, and such is the way of the Torah.

Three laymen whom the litigants accepted upon themselves, their judgment is like that of a single expert. However, in accepting them they are not similar to an expert, for regarding an expert, when they come before him for judgment it is called "they accepted him," but regarding laymen it is not called "they accepted them" unless they say to them explicitly: "Behold, you are accepted upon us for judgment and we request of you to judge us." And then their judgment is like that of a single expert for all that has been explained [Netivot HaMishpat]:

If the one who erred was an expert but the people of the city did not accept him as a permanent dayan, and also the litigants did not accept him, but rather he exerted himself to judge them through persuasive words; or if he was not an expert but the litigants accepted him upon themselves, as they requested him to judge them, and he erred in the weighing of the opinion—what he did is done, and he must pay from his home. And even if he himself wants to reverse the judgment and reversal is possible, and whether he took and gave with his hand or whether he did not take and give with his hand, and even if there is one greater than him in the city, he does not reverse the judgment. And even if the litigant is here and has the means to pay, he is exempt, for the judgment stands and the dayan pays from his home [ibid.]. And it is not similar to an expert whom they accepted in section 2, where when there is a greater one in the city he reverses the judgment; for in truth, since the error is only in the weighing of the opinion, in that the custom spread to the contrary, but in the essence of the law there is a source for the law that he ruled, if so, it is not within the power of the dayan to reverse the judgment and take back from the one who was acquitted that which he himself acquitted him. And so too regarding a ruling of forbidden and permitted, there is no power to reverse the judgment in such a case. Only in the case of an expert whom they accepted, whose power is great and there is also a greater one in the city to join with him to reverse the judgment, is their power great; which is not the case with one of these, in an expert whom they did not accept or they accepted him and he is not an expert, his power is not great enough that he should reverse the judgment by means of a greater one. And regarding a ruling of forbidden and permitted, if he is an expert, he reverses the ruling by means of a greater one, for in this "they did not accept him" is not so relevant. And in section 5 more of this will be explained.

In all that has been explained, that if one erred in the weighing of the judgment it is not reversed, this is specifically when the verdict has already been executed and they extracted money from this one to that one. But if the verdict has not yet been executed, the judgment is reversed, whether he was an expert or not, whether they accepted him or did not accept him, whether he was an individual or there were three. And even if half of the verdict was executed, nevertheless, that which has not yet been executed, the judgment is reversed; for since the judgment has not yet been executed, why should they not judge according to the halacha [Shach]. And according to this, in matters of issur and hetter, as long as they have not thrown it to the dogs, he returns and instructs the opposite of what he ruled, whether from issur to hetter or from hetter to issur, and even without a great scholar in the city. And according to this, that which we explained in the previous section—that through a great scholar he reverses the instruction—is not applicable, for even without a great scholar he also reverses it, and even if he is not an expert. And it is possible that instruction is not comparable to a judgment; for in instruction, since he instructed for hetter or for issur and there is a reason for his instruction based on the masters of the poskim, even though the practice spread like those who disagree with this opinion, nevertheless, the name of instruction is upon this, and it is impossible to reverse the instruction unless he is an expert and there is a great scholar whose power is effective. This is not so in matters of money; as long as the judgment has not been executed, it is impossible for us to obligate the innocent party based on the general sugya because of the judgment of this one who erred in the general sugya [and perforce one must say so, for otherwise the Shach contradicts himself; see his rules in this siman, section 2, subsection 5, and section 3, subsection 2].

And all these laws apply when they accepted them without specification, but if the litigants explicitly accepted them whether for the law or for an error, they are exempt in every case. And some say further that when they accepted "sitters of street corners," whom it is known do not know how to judge according to Torah law, and they erred, the judgment is upheld; for they certainly intended and accepted however they would judge, since the litigants know that these do not know how to judge Torah law.

Our teacher, the Rema, wrote that in this time, when the community compels the judges according to the decree to be judges against their will, they shall not pay even if they erred, for what could they do, even though they judged under coercion, for they are like those under duress to judge [Shach]. Nevertheless, if they have not yet extracted [the payment] from the hand of the liable party, they must retract when it becomes known that they erred. And if they do not wish to retract and they maintain their words, they are liable to pay. And even when they accepted them whether for law or for error, they can retract before he extracted [the payment] and this opponent merited the money, even after the final verdict [ibid.]. And behold, in these days of ours, coercion by the compulsion of the community has already ceased. Nevertheless, it appears to me that since the majority of the public accepted the Rav or the judge by way of the city leaders and appointed him, it is like the receiving of authorization from the Resh Galuta that was in the time of the Shas. Therefore, in every place where the receiving of authorization is mentioned in the Gemara and poskim, we wrote in the previous sections "the people of the city accepted him," for this and that are one and the same.

In a case where the judges are obligated to pay if they erred, if all the judges agreed to this error, they all pay equal portions. However, if two of the judges overrode the third, they pay two portions, and the litigant loses the third portion; for the two can say that since without the third we would not have been able to conclude the judgment—as civil laws require three—therefore, we are only obligated to pay one third each. And the third judge is certainly exempt, for he did not agree to their judgment, rather, by the decree of the Torah to "follow the majority," his opinion was nullified, so why should he pay? And if there were five judges and three overrode two, they are obligated to pay everything, for the judgment could have been concluded even with three, and they cannot say that if not for the two they would not have been able to conclude the judgment.

One who is not an expert, who is neither learned nor possesses reasoning skills, and the litigants did not accept him, even if he received authorization, his authorization is nothing. He is included among the men of violence, and his judgment is not a judgment and his ruling is not a ruling, whether he erred or did not err. Each of the litigants may return and litigate before a beit din, and an admission made before him is not considered an admission, and the summons to beit din that he gave is nothing [Netivot HaMishpat]. And if he erred in the law and took and gave with his hand, he is liable to pay from his house and returns and takes from the litigant to whom he gave not according to the halakha, even if the error was only in the weighing of opinion, because his decision is not considered a legal ruling at all. And if he did not take and give with his hand, the case returns. And if it is impossible to return it, such as if he is a man of violence, or in matters of purity that he rendered impure, or in a ruling of forbidden and permitted foods that he fed to the dogs—if he coerced him to do so, even if the error was only in the weighing of opinion, he shall pay according to the law of one who causes damage. And if he did not coerce him to pay or to render impure and cast to the dogs, but rather according to his decision he acted of his own volition, he is exempt from paying [Shach], and he is the one who caused himself loss for listening to him.

A judge who erred and obligated an oath upon one who is not obligated in it according to Torah law, and there was only a prohibition upon him by law, and because he did not wish to swear he made a compromise with his litigant and revealed his intention that he is making a compromise because he does not wish to swear, and afterwards it became known that he was not obligated in an oath at all, the compromise is nothing even though they performed a kinyan from him, for it is a kinyan in error and he may retract. And so too, any compromise in error may be retracted, such as where the judge ruled that he should give a certain sum and he compromised with his fellow even with a kinyan for a certain sum, and afterwards it became clear that the judge erred, even if the error was only in the weighing of judgment, he may retract from the compromise, for behold the kinyan was at any rate in error and the compromise was in error, for had he known of this he would not have made a compromise at all. And specifically when he has not yet given the money, but if he gave the money and the error was only in the weighing of judgment, what he did is done, as I wrote in section 2. And so too, when they compromised on an inheritance for a small matter because he thought that the assets were few, and afterwards it became known that there are more, it is a kinyan in error and he may retract, and so too anything similar to this.

If one pardoned his fellow for that which is in his fellow's possession in exchange for the oath that the judge obligated him, and afterwards it became clear that the judge erred in the legal reasoning, for according to the general consensus he is exempt from an oath, the one who was pardoned can say: I am seizing that which is in my possession in exchange for the oath. For this is like one who errs in legal reasoning and they extracted money where the judgment stands; so too here, since this one is the possessor, it is as if the judgment stands [Shach], and it requires further study.

If there is a dispute between the poskim and the judge is not great in Torah such that he has the ability to decide with proofs, and the common practice has not spread regarding this law like one of them, how shall he act? If it is a Torah prohibition, he shall rule stringently, and regarding a rabbinic prohibition, he shall rule leniently. Regarding monetary laws, they do not extract money from a state of doubt, for it is a great principle in monetary laws that they give the leniency to the defendant and the stringency to the claimant. However, in a place where many poskim disagree with an individual, he shall follow the many, whether for leniency or for stringency. See in Yoreh Deah siman 242.

Whether a litigant can say "kim li" like this posek, opinions and details have multiplied regarding this, and there is no firm foundation to rely upon in this matter; therefore, we have not elaborated on this. However, this is certain: one cannot say "kim li" like a single posek against many. Furthermore, regarding an opinion that was not brought in our teachers, the authors of the Shulchan Aruch, one cannot say "kim li" [Urim VeTummim]. Also, this is a great principle: that the litigant himself does not have the ability to say "kim li" except at a time when some eminent sage agrees with him, for if not so, you would not leave life for any judgment, and never would the judgment emerge to the light.