Siman 3

A beit din is not less than three, and a beit din of three, even laymen, can compel if the defendant refuses to submit to judgment or if he does not want to litigate with the plaintiff in his city. And these words apply when there is among them at least one who knows the laws and has the power of judicial discretion and knows the reasoning in the laws. But without this, they do not have the power to judge with compulsion unless the litigants accepted them upon themselves, according to the law of accepting a relative or one disqualified, which will be explained in siman 22. And nevertheless, they can receive the claims and send them before a posek.

This fact that they have the power to compel the defendant is specifically if he does not want to adjudicate in his city at all. However, if he wants to adjudicate in his city but his desire is to choose other judges, the authority is in his hand, and this one chooses for himself one judge and that one chooses for himself one judge, as is written in siman 13. And this is specifically regarding judges who are not permanent in the city, but if there are permanent judges who were appointed by the city, he does not have the power to say "I will not adjudicate before them." However, to add judges upon the permanent judges, the authority is in his hand [Urim VeTummim]. And as for why we do not protest now when one does not want the permanent judges in the city, it is because we do not have the power to establish the laws of the religion upon their foundation, and the litigant is destined to give an account before the Knower of Secrets if justice is not with him in this.

If there is a dispute between a plaintiff and a defendant, where one says to judge according to the law and the other says to rely on merchants because such is the custom in the place where the transaction was made, the law is with the second one and they shall rely on merchants. Since such is the custom, a custom of this sort nullifies halacha [the Gara"a]:

Fewer than three, their judgment is not a judgment even if they did not err. An admission that one admits before them is like admitting outside of a beit din, and they may change the claims they argued before them. One who denies before them, and afterwards witnesses came, is not established as a liar. They only have the status of witnesses regarding the matter that when one says "you are my witnesses," it is effective, as is written in siman 81, and he is not believed to say "I already paid." However, regarding the future, he is believed when he says "I paid." They do not have the status of judges such that he would not need to say "you are my witnesses," or that he would be established as a liar even regarding the future.

But if the litigants accepted them upon themselves, or if he is a recognized expert, such as when the community accepted the rabbi to judge alone, he has the status of a beit din. An admission before him is considered an admission, and they cannot change their claims. One who denies before him, and afterwards witnesses come, is established as a liar even for the future. He has the power to compel judgment and can receive testimony, and they judge based on that testimony. However, in one matter there is a distinction between him and a beit din of three: for in a beit din of three, an admission before them is like an admission in a document, and another beit din can judge based on their reception of testimony, and based on the claims they received, and based on the ruling they issued, even according to their writing. But with fewer than three, even if they accepted him or he is a recognized expert, although the admission one admits before him is considered like admitting in a beit din, nevertheless his admission is not considered like an admission in a document, but only like an oral admission. And everything he writes, whether the claims or the ruling, does not have the status of a document. Therefore, another beit din does not judge based on that writing, for it is like a witness from the mouth of a witness, which is not considered like a document but only like oral testimony. And if another beit din were to judge based on this writing, it would be from the mouth of their writing of witnesses, and the Torah said "from their mouths" and not from the mouth of their writing. Therefore, if another beit din needs to judge based on what was received in the beit din of this individual, they must hear it from his mouth and not from the mouth of his writing. But in this beit din itself, when he judges in this matter further, there is no distinction between him and a beit din of three [Netivot HaMishpat].

Even though an expert individual is permitted to judge alone, nevertheless, it is a commandment of the sages that he should seat others with him if possible. And there is one who says that one must be careful not to judge alone even if the litigants accepted him upon themselves, unless he says to them explicitly that he does not know how to judge according to Torah law and that they explicitly accept him upon themselves whether for the law or for an error [Shach]. But I have not seen this practiced, and in all the small cities where there is only a single rabbi, he judges by himself and does not make any conditions at all. And it must be said that since everyone knows that he is a single individual, from the outset their intention is such when they come before him: that he should judge according to his intellect and understanding, and they are in agreement even if he does not reach the depth of the law, and automatically it is as if they accepted him whether for the law or for an error.

Even though a beit din of three is a complete beit din, nevertheless, as long as they are more, it is praiseworthy, and it is better that the law be decided by eleven than by ten. And all those who sit in judgment must be Torah scholars and fit for this. And a sage should not sit in judgment until he knows with whom he sits, lest they seat him among people who are not upright and he will be found in the category of a conspiracy of traitors and not in the category of a beit din [the Rambam and the Tur]. And even though they wrote a language of prohibition regarding this, it appears to me that it is not an absolute prohibition, for there is no prohibition except to sit with one who is known to be wicked, as is written in siman 7. Furthermore, the sages, of blessed memory, said this regarding the pure-minded of Jerusalem who would do so, that they would not sit in judgment unless they knew with whom they were sitting [beginning of the third chapter of Sanhedrin], and if there is a prohibition in this by law, what is the greatness of the pure-minded? Furthermore, the average Israelite is presumed to be of proper standing. Furthermore, why should we suspect the litigants that they would seat a wicked person in judgment? Therefore, it appears that the language of prohibition that the Rambam and the Tur wrote regarding this is not exact, and it is merely a matter of excellence, as the pure-minded of Jerusalem practiced.

One who is neither learned nor possesses legal reasoning, and the litigants did not accept him, even if he received authorization from any place, his judgment is not a judgment. And one who comes circuitously to judge against the will of the community, and the community is forced to remain silent for some reason, he causes distress to the community and there is no end to his punishment. Regarding such a person, there is an enactment of the early authorities from Rabbeinu Tam, the Rashbam, the Ra'avyah, and one hundred and fifty rabbis. Likewise, it is forbidden to make any appointment for oneself or for another against the will of the community. The essence of the community consists of the householders who follow the path of the Torah and the Torah scholars who fear G-d. One who does so will not see good in this world or in the World to Come.

That which has been explained, that there is no beit din of fewer than three, the Rambam, of blessed memory, wrote in the second chapter of Sanhedrin: Even though there is no beit din of fewer than three, it is permitted for one to judge according to the Torah, as it is said, "In righteousness shall you judge your fellow," but according to the words of the scribes, there must be three; and two who judged, their judgment is not a judgment. One who was an expert for the public or who received permission from the beit din, behold, it is permitted for him to judge alone, but he is not considered a beit din, etc. Thus far his words. And they questioned him, for in the Gemara [at the beginning of Sanhedrin] it is explicitly explained that according to the one who holds that from the Torah even one is valid, two who judged, their judgment is a judgment. And it appears to me that in the Gemara they said this regarding the law of the Torah, for certainly according to the one who holds that from the Torah even one is valid, two who judged, their judgment is a judgment and they are called a beit din according to the Torah. But according to the Rabbis, since they required three because of "corner-sitters" who do not know the laws, and only with three is it impossible that there is not one among them who has learned some laws, it is necessary to say that with fewer than three their judgment shall not be a judgment, for if not so, the concern remains in its place. And that which from the Torah even one is valid, this was specifically with an ordained judge, which does not exist in this time, and therefore in this time we only perform the mission of the earlier ones, as I wrote at the beginning of siman 1, and even with one who is authorized, from the Torah the name of beit din is not upon him, only that his judgment is a judgment [and this is what the Shas says there: what is the difference between Rava and Rabbi Abba? There is between them that which Shmuel said, "two who judged, their judgment is a judgment," etc. According to Rabbi Abba, he holds like Shmuel, meaning that from the Torah their judgment is a judgment and they are called a beit din. And therefore it is not difficult why it did not say Shmuel and Rabbi Abbahu are between them, because for the practical law even Rav Aha holds like Rabbi Abbahu because of the enactment, as I wrote, and Shmuel and Rabbi Abba also disagree regarding the Torah law, as is proven in HaNehenakin, chapter 11, regarding a rebellious elder, see there and examine carefully].

How was the semikha performed during the time the Beit HaMikdash existed and after the destruction? The Rambam, of blessed memory, wrote in the fourth chapter of Sanhedrin: How is the semikha for generations? Not that they should lean their hands upon the head of the elder, but rather that they call him "Rabbi" and say to him, "Behold, you are ordained and you have the authority to judge even cases of fines." Thus far his words. And not that he should judge alone, but rather to join with two other ordained individuals [Lechem Mishneh]. And that which has been explained that according to the Torah even one is valid, that is regarding admissions and loans [and so wrote Rashi, of blessed memory, ibid. 3a]. And that which Moses our teacher leaned his hands upon Joshua, and the Holy One, Blessed be He, commanded him so, as it is written, "And you shall lean your hand upon him," it was not for the purpose of judging and instructing, but rather so that the Shekhinah should rest upon him, as it is written there, "And you shall put some of your honor upon him" [and so it is implied from the wording of the Rambam, of blessed memory, see there].

He further wrote: Originally, anyone who was ordained would ordain his students, but the sages showed honor to Hillel the Elder and enacted that no person should be ordained except with the permission of the Nasi, and that the Nasi should not ordain unless the Av Beit Din was with him, and that the Av Beit Din should not ordain unless the Nasi was with him. However, regarding the rest of the group, each of them may ordain with the permission of the Nasi, provided that there are two others with him, for there is no semikha with fewer than three. Thus far his words. And in the Yerushalmi, the first chapter of Sanhedrin, it is stated: Originally, each and every one would appoint his students, etc. They then showed honor to this House; the Beit Din said: A Beit Din that appointed without the knowledge of the Nasi, their appointment is not an appointment, but a Nasi who appointed without the knowledge of the Beit Din, his appointment is an appointment. They then enacted that the Beit Din should not appoint except with the knowledge of the Nasi, and that the Nasi should not appoint except with the knowledge of the Beit Din. Thus far his words. And it appears that all of this is not an absolute requirement, but rather during the time they dwelt on their land in tranquility; for we find in the Gemara [Sanhedrin 14a] that Rabbi Yehuda ben Bava ordained five elders between two large mountains, and it implies that it was without obtaining permission from the Nasi, as it was during a time of decree; see there.

One does not ordain in chutz la'aretz, and even if those ordaining were ordained in Eretz Yisrael and they are also now in Eretz Yisrael, but the one they wish to ordain now is in chutz la'aretz, they do not ordain him; and certainly so if those ordaining are in chutz la'aretz and those being ordained are in the Land. But when both are in the Land, even though those being ordained are not before those ordaining, they may ordain not in their presence, and they send word to the one being ordained via a messenger or in writing that he is ordained, and they give him permission to judge cases of knassot, since they are all in the Land. The Rambam, of blessed memory, wrote that all of Eretz Yisrael is fit for s'mikhah, even in a place held only by those who ascended from Egypt and not those who ascended from Babylon. And even though the Rambam himself ruled in the first chapter of Terumot that the first sanctity did not sanctify for the future time, nevertheless regarding s'mikhah it is called Eretz Yisrael. And it appears to me regarding his reasoning, of blessed memory, because he wrote there that regarding the air it retains its status as Eretz Yisrael, for its air does not impart impurity. And the reason for s'mikhah, which is practiced only in Eretz Yisrael, is because of its sanctity; therefore, since its air is pure, s'mikhah is also practiced there. And Moshe Rabbeinu, who ordained Yehoshua and the elders in the wilderness, did so because then the primary sanctity was in the wilderness—the Shekhinah and the Ark. [And the Kesef Mishneh wrote that he derived it from the cities on the borders; I wonder at this, for there it is only effective to judge there, as he wrote there in halakhah 14, and not to ordain there].

He further wrote that those who ordain may ordain even one hundred at one time, and King David ordained thirty thousand in one day. Thus far his words. And before us, the version in the Yerushalmi, Sanhedrin, chapter Chelek, is that he ordained ninety thousand in one day; see there. And they have the authority to appoint the ordained person for whatever they desire or for other matters, provided that he is fit for all matters. How so? A distinguished sage who is fit to rule on the entire Torah, the beit din has the authority to ordain him and give him permission to judge but not to rule on matters of issur ve-heter, or vice versa, or for this and that but not for fines, or for fines but not to permit firstborn animals regarding blemishes. Or they may give him permission only to annul vows alone, or to examine stains and the like. Similarly, those who ordain have the authority to give permission until a certain time, and to say to the ordained person: You have permission to judge or to rule until the Nasi arrives here, or as long as you are not with us in the province, and so too anything similar to this. And a distinguished sage who is blind in one eye, even though he is fit for monetary laws, nevertheless they do not ordain him for monetary laws because he is not fit for all matters, and so too anything similar to this. Thus far the words of the Rambam, of blessed memory. And that which he wrote regarding ordination for issur ve-heter, this refers to the matter of being exempt when he errs in judgment, as I wrote in siman 25; but to rule, it is sufficient when he takes permission from his teacher [Lechem Mishneh]. And in the Gemara it is implied somewhat that regarding this, that they do not give him permission for all matters, some reason is required for this, such as to show honor through this to another great man, or for instance that this ordained person is exceedingly distinguished in one matter until they would marvel at his rulings and the like [Sanhedrin 5a, which answers "in order to show honor to Rav Babi bar Abaye" or "because he was more expert"].

The Rambam, of blessed memory, wrote in chapter 4: Whether it is the Great Beit Din, or a small Sanhedrin, or a beit din of three, it is necessary that one of them be musmakh from the mouth of one who is musmakh. Moses our teacher gave semikha to Joshua, and likewise the seventy elders, Moses our teacher gave them semikha and the Shekhinah rested upon them, and those elders gave semikha to others, and others to others, etc. And it is the same whether one is musmakh from the mouth of the Nasi or from the mouth of one of those who are musmakh, even if that musmakh was never in the Sanhedrin. Thus far his words. And in Halakha 3 he wrote: And they do not perform semikha, which is the appointment of elders to the judgeship, except with three, provided that one of them is musmakh from the mouth of others as I have written. Thus far his words. And in Halakha 11 he wrote: Behold, if there was only one musmakh in the Land of Israel, he seats two at his side and gives semikha to seventy at once or one after another, and afterwards he and the seventy shall form the Great Beit Din and give semikha to other courts. Thus far his words. And behold, that which he wrote in Halakha 1, "it is necessary that one of them be musmakh," he means each one of them, for a beit din of three requires that all of them be musmakh, and certainly a Sanhedrin; and two who are not musmakh are of no avail except to join with the musmakh and give semikha to another, as he wrote in Halakha 3. And that which he wrote in Halakha 11, that the Great Beit Din of those who received semikha shall form other courts, his intention is not that without them it is impossible to form courts, for behold, the one musmakh can seat two at his side and give semikha to courts just as they gave semikha to all seventy; rather, his intention is because of the burden upon this musmakh, so that he will not need to give semikha alone to all the courts in the country.

He further wrote there: It appears to me that if all the sages in Eretz Yisrael agree to appoint judges and ordain them, they are indeed ordained and have the authority to judge cases of fines (kenasot) and have the authority to ordain others. If so, why were the sages distressed over ordination, lest the laws of fines be abolished from Israel? Because Israel is dispersed and it is impossible for all of them to agree; but if there were one ordained by an ordained person, he does not require the consent of all, but rather judges cases of fines for everyone, since he was ordained by a beit din. However, the matter requires a definitive ruling. Thus far his words. And his intention is that first, all the sages of Eretz Yisrael must agree to appoint one as head of the yeshiva, and his status will be like the head of the Sanhedrin and like one who is ordained, and afterwards he shall join two other sages with him and ordain whomever he sees fit. And he wrote similarly in the Commentary on the Mishnah, the first chapter of Sanhedrin, and this is his wording: And it appears to me that when there is agreement from all the sages and students to dedicate over themselves a man from the yeshiva and place him at the head, provided that this is in Eretz Yisrael as we mentioned, behold, that man’s status in the yeshiva is established and he is considered ordained, and he may afterwards ordain whomever he wishes. For if you do not say so, it is impossible that the Great Beit Din will ever be found, since we would require each of them to be ordained in any event. And the Holy One, Blessed be He, promised that they would return, as it is written: "And I will restore your judges as at the first," and this will undoubtedly be when the Holy One, Blessed be He, prepares the hearts of men and their merit and their longing for the Name, may He be blessed, and for the Torah increases, and their wisdom grows before the coming of the Messiah. Thus far his words. And I do not know from where the Rambam, of blessed memory, derived that the agreement of all the sages in Eretz Yisrael constitutes ordination even though none of them are ordained. And perhaps it is because of this very reasoning that he wrote, for if not so, how will it be in the future, if it please G-d? And one cannot say it will be by means of a prophet, for behold, "it is not in heaven," and a prophet is not permitted to innovate anything; rather, it must be by the agreement of all the sages of Eretz Yisrael. And the reason may be said: the primary reason we require ordination from one who is ordained is that otherwise, perhaps the ordainer and the ordained are not fit for ordination. But one who is ordained by an ordained person back to Yehoshua and back to Moshe Rabbeinu certainly knows whom to ordain. Therefore, when all the sages of Israel in Eretz Yisrael agree upon one person, he is certainly fit and worthy for this, and he becomes ordained and can ordain others as well. And already more than three hundred years ago, there were many of the sages of Eretz Yisrael who wanted to renew ordination based on the words of the Rambam, of blessed memory, and they began the ordination, but there were sages who were not comfortable with this, and the matter was nullified.

A beit din that was ordained in the Land of Israel and went outside the Land, they may judge cases of fines outside the Land in the same manner as they judge in the Land, for the Sanhedrin is practiced in the Land and outside the Land, provided that they are ordained.

In the time of the sages of the Shas, there were two heads of Israel over all of Israel: one in Eretz Yisrael, and he was the Nasi, and the Roman Caesars consented to their presidency; and the second was in Babylonia, and he was called the Resh Galuta, and he was appointed by the kings of Persia over all of Israel who were in the Diaspora. Both of them were from the seed of David, peace be upon him, but the Resh Galuta was of greater lineage than the Nasi, for the Nasi came from the seed of David through the females, and the Resh Galuta came from the males [Yerushalmi]. Therefore, even though semikhah existed only in Eretz Yisrael, as has been explained, and likewise regarding all wisdom of the Torah, such as for forbidden and permitted and impurity and purity, the people of Eretz Yisrael were greater than the people of Babylonia, and for the laws of the Torah the people of Babylonia were subordinate to the people of Eretz Yisrael [Tosafot Sanhedrin 5a], nevertheless, regarding greatness, the Resh Galuta was greater than the Nasi for the reason that has been explained. Therefore, when the Resh Galuta gave permission to another to judge and to instruct, even though regarding fines he did not have power because of semikhah, which is only in Eretz Yisrael, nevertheless it is effective regarding the expropriation of property, as in the case of hefker beit din. Likewise, if he erred in judgment, he would not be required to pay, as is written in siman 25. Likewise, regarding the ability to compel a legal proceeding, the power of the Resh Galuta was as great as the power of the Nasi, and both of them were able to compel a legal proceeding. And those to whom they gave permission to judge and to instruct were exempt from paying if they erred, and likewise to declare property ownerless because of a fine and the like. Regarding this, the sages, of blessed memory, said that the power of the Resh Galuta was greater than the power of the Nasi, for the Nasi did not have the authority to grant the power to judge and to instruct except in Eretz Yisrael and in the cities situated on the borders, but not in Babylonia or in any of the Diaspora. And even though he had the power to judge in every place, even in laws of fines, this was specifically with the consent of the litigants, but not to compel them. However, the Resh Galuta who gave permission, this person had the power to judge in the entire world even if the litigants did not desire it, whether in the Land or in the Diaspora, except that for laws of fines he needed to obtain permission from the Nasi and from the sages of Eretz Yisrael. And thus the sages, of blessed memory, expounded: "The scepter shall not depart from Judah"—these are the heads of the exiles in Babylonia, who have the authority to rule over Israel in every place; "and a lawgiver from between his feet"—these are the descendants of Hillel, who were the Nasi'im and taught Torah in public; and a scepter's power is greater than a lawgiver's. Nevertheless, the Rambam, of blessed memory, wrote that one who is not fit to judge because he does not know the laws of the Torah well, or because he is not proper in his deeds, the obtaining of permission does not avail him at all, for one who consecrates blemished animals for the altar, the sanctity does not take effect upon them. Thus far his words. And all this was in the time of the Shas, but in our time, we have no power of our own without the government of the Caesar, may his glory be exalted, and the law of the kingdom is the law. And if the two litigants ask to be told the judgment according to the religion of our Torah, then we are obligated to tell them that according to the law of the Torah, your judgment is such and such.

Laws of fines, such as robberies and personal injuries, and payments of double and four or five-fold, and the rapist and the seducer and their like, are only judged by three experts. However, other monetary laws, such as admissions and loans, buying and selling, partnership, agency, hiring, lost objects, and their like, do not require experts; rather, even three laymen, and even a single expert, may judge them, and they can compel one who refuses, as I wrote in section 1. And in siman 1 it was explained regarding the laws of robberies and personal injuries. But capital cases, which existed during the time the Beit HaMikdash stood, are not judged by fewer than twenty-three, who are a small Sanhedrin. And the reason is because it is written regarding capital cases, "and the congregation shall judge and the congregation shall rescue"—a congregation that judges, and they are those who convict, and a congregation that rescues, and they are those who acquit. And a congregation is not less than ten, as it is written regarding the spies, "How long for this evil congregation," and they were ten excluding Yehoshua and Kalev. And of necessity there must be twenty judges: ten who acquit and ten who convict. And later in siman 18 it will be explained that to acquit we follow the majority even by one, such as ten convicting and eleven acquitting, he goes out innocent; but to convict there must be two more than those who acquit, and of necessity there must be twelve convicting, and a beit din cannot be balanced, therefore we require twenty-three. And also regarding the lives of animals, such as the ox that is stoned, and an animal that committed sodomy or upon which sodomy was committed, twenty-three are required, as it is written, "the ox shall be stoned and also its owner shall be put to death," and the tradition has come that as is the death of the owner, so is the death of the ox. And even a lion, a bear, and a leopard, when they have owners and are domesticated animals that do not damage regularly, when they killed by chance, they are judged by twenty-three judges. But a snake that killed does not require a trial, and even one person may kill it; and some disagree even regarding a snake [the Ra'avad]. And one who is liable for malkot is judged by three judges; and even though it is possible that he might die by means of the malkot, nevertheless for the time being this is not capital law, and furthermore, they assess him as to whether it is within his power to receive the malkot. And the breaking of the heifer's neck is by five judges, and it will be explained with the help of Heaven in siman 425. And the intercalation of the month is by three, and the intercalation of the year is by seven, as the Rambam, of blessed memory, wrote in the fourth chapter of Hilkhot Kiddush HaChodesh. And all these judges must be ordained by the Nasi. And now we do not have any of these, and all capital cases, the government of the Caesar judges them, and it is forbidden for us to judge any law of the capital laws.

When a man marries a virgin and brings forth an evil name that she committed adultery after the betrothal, it is written in the Torah that if the matter is found to be true, she is stoned, and if it is found that the matter is false, the husband is lashed and gives a fine of one hundred sela. Therefore, initially, when they sit in judgment of this, they do not judge it in a beit din that is fewer than twenty-three judges. And even though if the matter is false, three would suffice as in the law of monetary matters and lashes, for which three suffice, nevertheless we are concerned lest the matter be true, and there is a judgment of capital law in this. And after the matter is found to be false and the father of the woman comes to claim the fine from him, they judge with three [thus it is according to the opinion of the Rambam, and he ruled like Ulla, Sanhedrin 8a, because all the Amoraim explain the Baraita according to him, see there].

And there are matters that they would not judge during the time the Beit HaMikdash existed except in the Sanhedrin Gedolah, such as establishing a Sanhedrin Ketanah for each and every tribe, or for each and every district and each and every city, as has been written in siman 1. And likewise to judge a tribe that was led astray, who worshipped idols; and likewise to judge a false prophet; and likewise to judge the Kohen Gadol in capital cases; and likewise to designate an Ir HaNidachat; or to judge a Zaken Mamre; and likewise to give the Sotah the water to drink; and likewise to add to the area of Jerusalem and the courtyards; and likewise to go out to an optional war—all these matters are done only by the authority of the Beit Din HaGadol. And likewise when they required the measuring for the Eglah Arufah, they required three from the Beit Din HaGadol, as has been written in siman 425. And a Zaken Mamre, when he becomes a Zaken Mamre by the authority of the Beit Din HaGadol, they judge him to death in a beit din of twenty-three as in all capital cases, and they put him to death in Jerusalem during the festival so that the masses shall hear and fear, as the Rambam wrote in chapter 3 of Mamrim. And all these matters are by tradition, and we derive them from verses.