Siman 5

It is forbidden to judge on Shabbatot and Yom Tov, for the sages, of blessed memory, decreed so lest they write down the claims and the verdict. Therefore, there is one who is stringent that the beit din should not sit on Shabbat and Yom Tov in the place designated for the sitting of the dayanim [Birkei Yosef], so that they do not appear as if they are sitting in judgment. And a remembrance for this matter is that even the Sanhedrin, who sat all week in the Lishkat HaGazit, did not sit there on Shabbat and Yom Tov but rather in the Cheil, as I have written in siman 1, section 21. And if this place is also designated for public needs, there is no concern in this, for it is permitted to engage in public needs on Shabbat, as is explained in Orach Chaim siman 306. And on Chol HaMoed one may judge, as is written there in siman 545; see there.

Also on Erev Shabbat and Erev Yom Tov, they cannot compel one to beit din because every person is preoccupied with the burden of preparing for Shabbat and Yom Tov. And even if they warned the litigant on Erev Shabbat or Erev Yom Tov to come after Shabbat or Yom Tov and he did not come, they do not penalize him, for he can say that due to the burden of preparation, he forgot the warning.

And even when the two litigants come before the dayanim on Erev Shabbat and Erev Yom Tov, the dayanim may withdraw from judging them today because they must be deliberate in judgment, and on a day such as this the dayanim themselves are preoccupied and perhaps they will not descend to the depth of the law. Therefore, if the litigants are satisfied whether for a true judgment or for an error, they may judge today [Netivot HaMishpat]. And to receive the claims on Erev Shabbat and Erev Yom Tov and to issue the ruling after Shabbat and Yom Tov is proper in every case on the part of the dayanim, if the litigants agree to this.

And our teacher, the Rema, wrote that in this time it is customary to judge on Erev Shabbat and Erev Yom Tov because of the bitul Torah of the teachers, for on Erev Shabbat they are free, and throughout the week there would be bitul Torah when they would need to judge. Therefore, when the beit din sees some need to judge on Erev Shabbat and Erev Yom Tov, it is permitted [Levush]. And even according to this custom, it is only from the perspective of the permission of the judges, but to compel the litigants is not within their power [Sma]. And specifically in a monetary matter is it permitted, but in a matter of prohibition that requires great deliberation, such as gittin and chalitzot, one should not arrange them ab initio on Erev Shabbat and Erev Yom Tov, except in a case of pressing need, as is written in Even HaEzer siman 154 and 169.

One does not set a time in Nisan and Tishrei until after the festival to summon to a beit din one who is not in the city, for he cannot come to the city due to the preoccupation of the festival. However, if they warned him to come after the festival and he did not come, they penalize him. This is not similar to what was written in section 2, that he can say that due to the preoccupation of Shabbat and Yom Tov he forgot the warning; for the preoccupation of the festival, for which he has much time, is not similar, and the preoccupation is not so great that we should say he forgot the warning, to the preoccupation of Erev Shabbat and Erev Yom Tov, which is only a short time from the warning until the Shabbat and the festival, and therefore he is believed there to say that he forgot the warning. And there are those who wrote that in Nisan and Tishrei, even after the festival, one does not summon to a beit din due to the preoccupation of the festival. And in Sivan, one warns him except for Erev Shavuot, for since the festival is a short time, there is not such a preoccupation.

For one who is in the city, they summon him to beit din in Nisan and Tishrei, except for the eve of the festival and the eve of the holiday, for in the city itself, the preoccupation of the festival does not hinder him so much that he would be unable to come during the entire month. And likewise, if the litigants from outside the city came in Nisan and Tishrei before the beit din, they judge them, and from the perspective of the judges, there is no prohibition in the matter [Netivot HaMishpat].

A groom is not summoned to a beit din during all seven days of the feast, nor for three days prior to the wedding canopy when he is preparing himself. A widower who married a widow has only three days after the wedding canopy, as is written in Even HaEzer siman 64.

Our teacher, the Rema, wrote that there are those who say one should not lodge a complaint in the beit knesset during Nisan nor during the Yamim Noraim, even against villagers who came for a minyan; rather, we set a time for them after the festival. However, if they see that there is an element of evasion or deception in this, they adjudicate immediately. And that which was written in Orach Chaim, siman 545, that it is permitted to lodge a complaint during Chol HaMoed, refers to a case where there is an element of evasion or deception. It is also possible that there it does not refer to the matter of standing for judgment, but rather to compel him to pay in a matter where there is no dispute [ibid.]. And now the custom is that at any found time they lodge complaints in the beit knesset. He further wrote that there are places where the custom is that if they began to adjudicate before Nisan or Tishrei, we set a time even during them; and wherever a custom is established, it is established.

By Torah law, one does not judge at night at the beginning of a case, but if they began to judge during the day, they may finish even at night. Thus our teachers received the tradition, for in one verse it says, "And they shall judge the people at all times," and in the section of inheritances it is written, "And it shall be for the children of Israel a statute of judgment," and it is written, "And it shall be on the day he causes his sons to inherit." This "on the day" is superfluous, as it should have written, "And it shall be when he causes his sons to inherit"; rather, regarding the matter of the judgment of inheritances, when they need to perform any judgment in this, it is only by day. It is implied from this that a "statute of judgment" is only by day. Our sages of blessed memory received the tradition that the beginning of a judgment is only by day, while the conclusion of a judgment is even at night, and the receiving of testimony is only by day. All of this is specifically regarding the matter of coercion, but when the litigants come of their own will, it is permitted to judge them. When they accepted upon themselves to be judged at night, the acceptance is effective in the manner that the acceptance of a relative or an unfit person is effective, as will be explained in siman 22. From what will be explained there—that in a case of two deficiencies acceptance is not effective unless he performed a kinyan sudar—it is explained that if they accepted upon themselves to be judged before two people at night, the acceptance is not effective without a kinyan regarding the matter that an admission he admits before them should be like an admission in beit din such that he cannot retract his words, and regarding the receiving of testimony, for there are two deficiencies: night and fewer than three judges [Netivot HaMishpat]. However, for a beit din of three, acceptance is effective without a kinyan. There is one who wrote that since they light a candle at night, it is like day regarding judgment, but his words were rejected as this has no root in the halacha. As for that which they were accustomed even from old to warn a litigant at night, it is because when they send for him and he comes to beit din, it is as if he accepted upon himself that they should judge him at night. In truth, if it is not his will to come at night, we do not coerce him and we do not penalize him. To warn him at night that he should come tomorrow is perfectly fine, and if he does not come tomorrow, we penalize him, and he is not believed to say that he forgot the warning. If they transgressed and judged at night by coercion, some say their judgment is a judgment, and some say their judgment is not a judgment. In the Yerushalmi, chapter "Amar Rabbi Akiva," it is explicit according to the first opinion, and in the Babylonian Shas it is implied according to the latter opinion [Yevamot 104a, see there in Tosafot]. If they received testimony at night, it is unfit according to everyone, and if they judged based on that testimony, there is no substance to the judgment, and they must receive the testimony anew and judge afterward [Netivot HaMishpat]. However, if by the will of the litigants they received testimony at night, their testimony is testimony, as will be explained in siman 28.

The Rambam, of blessed memory, in chapter 3 of Sanhedrin, wrote: We do not begin legal proceedings at night. From the oral tradition they learned that legal proceedings are like nega’im, as it is said, "Every dispute and every nega." Just as the viewing of nega’im is by day only, so too legal proceedings are by day only. And so too we do not receive testimony and we do not validate documents at night. And in monetary laws, if they began by day, it is permitted to finish the judgment at night. And inheritances are like legal proceedings, as it is said regarding them, "a statute of judgment"; therefore, we do not distribute inheritances at night. Two who entered to visit a sick person and he gave instructions in their presence, they write it down but do not perform a legal act. And if there were three, if they wish they write it down, and if they wish they perform a legal act. When does this apply? By day. But at night, they write it down and do not perform a legal act. Thus far his words. And it appears to me that his explanation is that this is the meaning: that all laws of inheritance are Torah law and not a gift, even though it is his money. Therefore, he cannot give in the language of inheritance to one who is not his heir, as is written in chapter 6 of Nachalot. And the reason is because it is written, "a statute of judgment." And even if he comes to increase for one of the heirs or to diminish, for which the Torah gave him permission as is written there and as will be explained in siman 281, nevertheless, this too is a legal proceeding, and one must conduct oneself in this as in all legal proceedings, which require a beit din and must be by day and not by night. Therefore, those who entered to visit the sick person, if he does not increase or diminish for one of the heirs, there is no need for his instructions at all. And so too if he gives some gift, whether a gift of a healthy person or a gift of a shekhiv mera, this is not a matter of inheritances; and even though a gift of a shekhiv mera is like an inheritance, this is rabbinic [Bava Batra 149a]. And according to the Rambam, the entire essence of a gift of a shekhiv mera is only rabbinic, as he wrote in chapter 8 of Zekhiya. And this law applies only when he increased or diminished for the heirs. Therefore, the Rambam did not write this law in the laws of a gift of a shekhiv mera as the Tur and Shulchan Arukh wrote in siman 253, but rather wrote them in the laws of judges and inheritances [and he does not interpret like the Rashbam and Tosafot, Bava Batra 113b; and see Rashi, Sanhedrin 34b; and delve into this]. And that which he wrote, that we learned legal proceedings from nega’im, even though in the Gemara [ibid. and Niddah 50a] it is explained that only Rabbi Meir expounds it and the sages disagree with him, and the halacha is like the sages, as the Rambam himself wrote in the Commentary on the Mishnah in Niddah and in the laws of the uncleanness of tzara’at chapter 9, that a person does not view his own nega’im but views the nega’im of his relatives, not like Rabbi Meir in chapter 2 of Nega’im who equates nega’im to legal proceedings. And in the Gemara Sanhedrin there, Rava said that we learn legal proceedings from "and it shall be on the day he causes his sons to inherit." The Rambam, of blessed memory, holds that according to the conclusion there, that it refers to the law of inheritances and the entire passage was weakened to be a legal proceeding, it must be that we have a derivation even according to the sages that legal proceedings are only by day. And even according to the sages, one must say that we learned the beginning of a legal proceeding from nega’im, and whether it is capital laws or monetary laws, we learned from there. And only for the conclusion of the judgment in monetary matters did we learn from the verse "and they shall judge," that they may finish even at night. And automatically, when the Torah wrote regarding inheritances "a statute of judgment," we learned that inheritances are also only by day. Therefore, he ruled that one blind in both eyes is disqualified because we learned from nega’im, and in one eye he is fit, which is like the conclusion of the judgment [not like Tosafot, Niddah ibid.]. And so too in nega’im, for himself he is disqualified as the law, and for his relatives he is fit, because we do not equate them to each other entirely, like the conclusion of the judgment [and Rava there held like the plain meaning of the Baraita of "and it shall be on the day," but according to that which it rejected, "you are speaking of the law of inheritances," it is not so. And as for what they questioned, "there is no partial juxtaposition," I am wonderstruck, for even according to Rabbi Meir they are not equated for all matters, as nega’im do not require a beit din as is explained there and in Yevamot 104a. This is the meaning: "Let us say etc." that one master holds we equate even for the conclusion of the judgment and one master holds we do not equate for the conclusion of the judgment but only for the beginning of the legal proceeding. And it rejected it, that everyone holds that if it is from nega’im, even the conclusion of the judgment would not be, and they disagree whether it is like the beginning of the legal proceeding or the conclusion of the judgment. And it is a mere rejection according to Rava, and perforce one must say so, for if not so, there is no explanation for what he said, "that if we equate even the conclusion of the judgment etc." for it does not deal with this at all. And with this, all that the commentators questioned on the Rambam is settled; and delve into this].

The judges are not obligated to sit in judgment all day, but rather from the morning until close to midday, and immediately after the prayer they shall sit. The Rambam, of blessed memory, wrote until the end of six hours in the day, and so wrote the Tur. Some say that their intention is not until the end of six hours exactly, but rather close to this, so that they may eat within the sixth hour, as this is the time for the meal of a Torah scholar; that is, that at the end of the sixth hour they shall begin to eat [Sma and Bach]. Our teacher, the Beit Yosef, wrote until the end of the fifth hour, and so it appears from the Rif and the Rosh in the first chapter of Sanhedrin. It appears to me that they do not disagree in the law, for the time of the meal is throughout the sixth hour, and therefore until the beginning of the sixth hour they are obligated to sit, and from then until the end of the sixth, but not including it, they are not obligated to sit, and if they wish, they are permitted to sit. From then onward, they are not permitted to sit without eating. Know that in the Zohar, Mishpatim, it warned very much not to sit in judgment after a meal, and it supports it from the verse "Execute judgment in the morning," and from the verse "You shall not eat over the blood," see there. From what has been explained, there is a kind of support for this from the fact that they only sit until the time of the meal; however, we have not found this in the Gemara or the poskim. On the contrary, even regarding capital laws, the sages of blessed memory said [Moed Katan 14b] that on Chol HaMoed they eat and drink and afterward conclude his judgment, see there, and certainly so regarding monetary laws. Rather, it is certainly merely a stringency. It is implied in the Gemara [Shabbat 10a] that in the time of the Talmud it was so, that they did not sit in judgment after the meal, but now I have not seen in the beit din chambers that they conduct themselves so. Also, the Great Sanhedrin sat in the Chamber of Hewn Stone all day; however, there is no proof from there, for the primary purpose of the Great Sanhedrin was to instruct on all doubts for all of Israel, as it is written "If there arise a matter too hard etc.," and its primary purpose was not for judgments. The proof is that we find in the Jerusalem Talmud, Sanhedrin chapter 1, that Rabbi Tzadok and his brother sat there, and for judgment relatives are disqualified. From the Gemara in Moed Katan it can also be refuted, for because of the honor of the festival they permitted eating before the conclusion of the judgment. Nevertheless, it is certain that if the litigants agree, they may sit in judgment even after a meal, and it is no worse than a relative or one disqualified. It appears that the Small Sanhedrin also only sat until the time of the meal. Even regarding the Great Sanhedrin, who must sit all day, the Rambam, of blessed memory, wrote in chapter 3 of Sanhedrin that they do not all need to sit all together in their place in the Temple, but rather at the time they need to assemble, they all assemble, and at other times, anyone who had business would go out to his business and return, provided that no fewer than twenty-three remain there. Therefore, if one of them needed to go out, he sees if there are twenty-three there, he goes out, and if not, he does not go out until another arrives. Thus far his words.

It is forbidden to sit in judgment when the time of mincha gedola arrives, which is the seventh hour, because we fear that perhaps they will be drawn into the judgment and forget to pray mincha. And even to conclude a judgment that they began yesterday, they do not sit at the time of mincha gedola, for we fear that perhaps the judges will see some novelty in the judgment and overturn the entire judgment, and it will be the beginning of the judgment. If they began before the time of mincha gedola, they do not stop even when the time of mincha ketana arrives, provided that there remains for them time to pray after the judgment according to their assessment. And even if they began in a forbidden manner, such as sitting after the time of mincha gedola, nevertheless they do not stop when there still remains time to pray. However, when they sat close to mincha ketana, which is after nine hours, they stop even when they sat for the conclusion of the judgment. Thus wrote our teacher, the Beit Yosef, and this is according to the Rif and the Rambam, of blessed memory, and he ruled accordingly in Orach Chaim siman 232. But I wonder about our teacher, the Rema, why he did not provide a gloss here in the Shulchan Aruch as he did there, where he brought the opinion of Rabbeinu Tam, of blessed memory, that it is permitted ab initio to begin the conclusion of a judgment close to mincha gedola, and the opinion of the Maor that even the beginning of a judgment is permitted, and if they began even close to mincha ketana they do not stop. And the great Acharonim wrote that now it is customary to be lenient in this because they call to the synagogue to pray or they announce the time of mincha and there is no fear that they will forget to pray [Urim VeTummim]. And from when is it called the beginning of the judgment such that they do not stop? From when the judges wrap themselves in their wraps according to their custom to sit in judgment; and if they sat in judgment for another case beforehand, then the beginning is from when the litigants begin to plead.