Translation:Shulchan Aruch/Choshen Mishpat/3

by Yosef Karo

Paragraph 1

1. A Court of Law (Beis Din) must consist of at least three Judges . And every group of three Judges is called a Beis Din even if they are lay people . For it is impossible that there should not be among them at least one who has a knowledge of logical inferences in civil laws . However, if there is not among them at least one person who has such knowledge, they are (all) disqualified to judge. (Tur in the name of his father, the Rosh, beginning of Sanhedrin) . Nevertheless, they may receive the pleas of the contesting parties and forward them to one who is qualified to render legal decisions. (Maharam Padua, section 43). And they can judge a person against his will if the defendant refuses to descend to judgment or if he is not willing to attend the Court with the plaintiff in the plaintiff’s hometown ; But if the defendant is willing to attend the Court with the plaintiff in the plaintiff’s hometown but he just does not desire the three judges that the plaintiff selected, then the plaintiff chooses one judge and the defendant chooses one judge. RAMA: Like below in Siman 13. It seems to me that this applies only to Judges who are not permanent judges. But if there are permanent Judges in town he cannot say, 'I will attend Court in their presence only on the condition that each litigant chooses one Judge ' . This the accepted custom in our towns. See Siman 22, at the end of Seif 1.

Paragraph 2

If less than three Judges tried a monetary case their decision is not binding , even if they made no error in the decision, unless the litigants accepted to abide by their ruling, or in the case of one who is a recognized Mumcheh . Nowadays we do not judge monetary cases by a recognized Mumcheh because he would judge alone against the parties’ will (Mahariv section 147). Every group that does not consist of three Judges and the litigants did not agree to abide by their decision and they are not recognized Mumchin, (Tur), even if they were ordained in the Land of Israel, the law is that an admission of indebtedness made in their presence is regarded as an admission made outside the Court and the litigants may alter their original pleas which they put forth before the Judges . One who denies anything before the Judges, and subsequently witnesses arrived and refuted him, is not presumed to be a liar . However, regarding the Court which consists of three Judges, although they are not duly ordained — the law is that the admission of indebtedness made in their presence is regarded as one made before a competent Court of Law. Likewise, in the case of one who denies anything and subsequently witnesses came and refuted him — he is presumed to be a liar and cannot amend his pleas.

Paragraph 3

Even though an expert fit to guide the many is permitted to judge alone, it is a commandment of sages that others sit with him.

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Even though a Court of three judges is a full Court, whenever there are many judges, they are praiseworthy. And it is better that they split the judgment with eleven rather than with ten . It is required that all who sit in the Court of Law must be scholars and fit to do so. It is forbidden for a wise man to sit in judgment until he knows with whom he sits, lest he sit with people who are not suitable for the task and is then found to be included in a council of traitors and not in a Court of Law. One who is not a Mumḥeh and the litigants did not accept him upon themselves, although he obtained authorization from the Exilarch , his decision is not binding even if he made no mistake in his ruling. Consequently, each one of the litigants may, if he so desires, retract and plead his case again before a competent Court of Law. RAMA: The permission that an idolatrous king gives currently means nothing . However, if the community accepted him in accord with the written decree of the ruler, he may act as Judge. (Tur). And there are those who say that if the judge is learned and wise, permission of the king (Rivash section 271) or the officer appointed in his town would take effect, and this is in the category of dina demalchuta (Law of the State) , to appoint as Judges and Magistrates whomever he desires. Nevertheless, someone who does this without permission of the congregation distresses the congregation, and will in the future be accountable in judgment (Responsa of Rashba, section 737).