ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Sanhedrin 23
***** Perek Zeh Borer *****
We initially explain 'Diynei Mamonos bi'Sheloshah, Zeh Borer Lo Echad,
ve'Zeh Borer Lo Echad' to mean - that each litigant picks one Beis-Din, and
then the Tana'im argue over who picks the third Beis-Din.
(a) According to Rebbi Meir in our Mishnah ...
1. ... after each litigant has chosen one Beis-Din (ultimately, we will
explain it to mean one judge), the two of them choose a third. The Chachamim
say - that the two chosen Batei-Din (or judges) pick a third one.
(b) The problem with ...
2. ... each litigant has the right to disqualify the other one's Beis-Din
(or judge). The Chachamim maintain - that he may only do so if he can prove
them to be relatives or Pasul.
3. ... each litigant has the right to disqualify the other one's witnesses.
Again, the Chachamim say - that he may only do so if he can prove them to be
relatives or Pasul.
1. ... our initial understanding of 'Zeh Borer Lo Echad' (as we just
explained it) is - that seeing as one only requires three judges to begin
with, what is the point of each litigant picking three judges?
(c) And we answer by citing Rebbi Yochanan later 'Hacha be'Ercha'os
she'be'Surya Shanu' - where the judges were not expert in Torah-law, and to
which even the debtor could refuse to go.
2. ... the answer (that if each one rejects the other's Beis-Din, they pick
a third Beis-Din between them) is - a statement by Rebbi Elazar, authorizing
the creditor to force the debtor to attend whichever Beis-Din he names, but
not vice-versa (due to the principle 'Eved Loveh le'Ish Malveh').
(d) Rav Papa establishes our Mishnah by the Batei Din of Rav Huna and Rav
Chisda (even though they were expert judges) - where even the debtor had an
equal say, since both Batei-Din were in the same town, and there was no
great effort involved to go to the one rather than the other.
(a) If we interpret 'Zeh Borer Lo Echad' as we have until now, the problem
1. ... the Chachamim, who say 'Sh'nei Dayanim Borerin Lahen Od Echad'
(assuming that 'Sh'nei Dayanim' means the two Batei-Din) is - how can judges
who have been disqualified have the authority to appoint other judges?
(b) So we finally explain 'Zeh Borer Lo Echad ... ' to mean - that when each
litigant has picked one judge, the two of them go ahead and pick the third
2. ... the Lashon 'Zeh Borer Lo Echad ... ' is - that it implies that this
is the regular procedure (rather than referring to a case where the
litigants disqualify each other's judges).
(c) The Chachmei Eretz Yisrael in the name of Rebbi Zeira explained the
advantage of this system, particularly according to Rebbi Meir (who holds
that the litigants themselves pick the third judge) - by pointing at a. the
litigants, who, having chosen all the judges, will trust their judgment, and
b. the judges themselves, who will leave no stone unturned to find a just
and fair solution for those who chose them.
(a) Rav Yehudah Amar Rav states that witnesses who sign a document - will
not sign unless they know who the other witnesses are.
(b) We attempt to connect the first Machlokes between Rebbi Meir and the
Chachamim in our Mishnah with Rav Yehudah Amar Rav's statement - by equating
the Chachamim with it, inasmuch as the two judges (like the witnesses, as we
shall soon see), need to know with whom they are sitting, which is why they
are the ones who need to choose the third judge (whereas Rebbi Meir
disagrees with Rav Yehudah Amar Rav).
(c) We reject this suggestion however, on the grounds that they could well
both agree with Rav Yehudah Amar Rav, and they argue over - whether the
consent of the litigants is also required (Rebbi Meir) or not (the
(d) Rav's statement is borne out by a Beraisa, which presents three cases
pertaining to the 'Neki'ei ha'Da'as she'bi'Yerushalayim', who would not a.
sign on a Sh'tar without knowing who the other witnesses were - b. judge
without knowing who their co-judges were, and c. enter a banquet without
knowing with whom they were sitting.
(a) The reason for the first and third of the previous statements is like
this. A person would care who ...
1. ... his co-witness is - so as to avoid the ensuing embarrassment should
he turn out to be Pasul.
(b) In our Mishnah, Rebbi Meir permits one litigant to disqualify the judge
picked by the other. To answer the Kashya 'Kol Kemineih de'Pasil Dayna',
Rebbi Yochanan establishes the Mishnah by the (Jewish) law-courts of Syria,
where the judges were not conversant with Torah-law.
2. ... else attends a banquet - because it is degrading for a Talmid-Chacham
to sit with Amei-ha'Aretz at a Se'udah.
(c) Rebbi Yochanan will then amend the Chachamim's words ...
1. ... 'Aval Im Hayu Kesheirim O Mumchin mi'Pi Beis-Din, Eino Yachol
le'Poslan' (implying that Rebbi Meir is speaking about expert judges, too)
to read - 'Aval Im Hayu Kesheirim, Na'asu ke'Mumchin mi'Pi Beis-Din, v'Eino
2. ... in a Beraisa 'Lo Kol Heimenu she'Posel Dayan she'Mumcheh le'Rabim'!
to read - 'Lo Kol Heimenu she'Posel Dayan she'Himchuhu Rabim Aleihem'!
(d) We finally prove Rebbi Yochanan right - by citing a Beraisa that
(a) We nevertheless query both Rebbi Yochanan and the Beraisa from Rebbi
Meir's ruling with regard to Kasher witnesses - who always have the status
of experts, and whom he nevertheless permits the litigants to disqualify.
(b) And we answer this with a statement of Resh Lakish, who said about Rebbi
Meir 'Peh Kadosh Yomar Davar Zeh?'?, by which he meant - that Rebbi Meir
cannot possibly have permitted a litigant to disqualify two Kasher
(c) What Rebbi Meir must have really said was - 'Zeh Posel Eido shel say'.
(d) The problem with this, assuming the Mishnah is referring to ...
1. ... Mamon is - that the Torah has already disqualified a witness from
2. ... a Shevu'ah is - that the Torah has accepted him like two witnesses,
in which case our original Kashya remains.
(a) We therefore establish the one witness of Rebbi Meir - in a case where
the litigants accepted the testimony of one witness in lieu of two (even
though the Torah disqualified him). And it is in such a case, that Rebbi
permits either litigant to retract.
(b) Rebbi Meir rules in the next Mishnah that 'Ne'eman Alai Aba, Ne'eman
Alai Avicha ... ' - is permitted to retract.
(c) Rav Dimi B'rei de'Rav Nachman establishes the Mishnah - when they accept
him as one of the three judges.
(d) The problem with Resh Lakish's interpretation of our Mishnah is - why
Rebbi Meir and the Chachamim find it necessary to argue over what is
essentially the same point twice in two consecutive Mishnahs.
(a) Having presented the Machlokes between Rebbi Meir and the Chachamim by
1. ... 'Aba' and 'Avicha', the Tana nevertheless saw fit to repeat it in the
case of 'Chad ke'Bei-T'rei' to teach us - that even there, where this
witness is never Kasher (unlike 'Aba ve'Avicha' where, as one of three
judges, he would be Kasher if the litigants would be somebody else), the
Rabbanan forbid either litigant to retract.
(b) The problem with the current interpretation of our Mishnah ('Chad
ke'Bei-T'rei') is - from the Lashon 'Dayno' and 'Eidav' used by the Tana,
implying that he deliberately establishes the Seifa when there are two
witnesses, and not just one, like Resh Lakish learns?
2. ... 'Chad ke'Bei-T'rei', the Tana needed to repeat it in the case of
'Aba' and 'Avicha' - to teach us - that even there (where the judge would be
Kasher with other litigants), Rebbi Meir permits him to retract.
(c) Rebbi Elazar therefore establishes the Mishnah when the one litigant
disqualifies the other litigant's witnesses together with a second witness.
The problem with this is - how a litigant can be believed even as a second
witness, seeing as he is prejudiced.
(d) So Rav Acha B'rei de'Rav Ya'akov establishes the case when he declares a
specific P'sul, not when he declared him to be a Gazlan - because there too,
where the sole purpose of his evidence is to clear himself, he is obviously
prejudiced and cannot be believed.
(a) So it must speak when he claims - that the witness's family is Pasul
(i.e. they descend from an Eved). And he is believed ...
(b) ... according to Rebbi Meir - because his evidence is accepted
independently (to declare that family Avadim), and not necessarily connected
with his own personal interest.
(c) The Rabbanan decline to accept that - since he only presents his
evidence as a result of the witness appearing in court to testify against
him, labeling him as prejudiced.
(a) Rav Dimi Amar Rebbi Yochanan establishes our Mishnah when the first
litigant claims that he has two pairs of witnesses. That explains the
opinion of Rebbi Meir - who holds that a claimant is obligated to back-up
all the proofs that he claims to have, and that consequently. Consequently,
he will have to produce the second pair of witnesses should he be called
upon to do so, and the defendant is no longer prejudiced.
(b) The Rabbanan hold - that a claimant is not obligated to back-up all his
proofs. Consequently, the two initial witnesses that he produces constitute
the only proof that concerns us, rendering the defendant prejudiced.
(c) In the case of one pair of witnesses however - both Tana'im will agree
that there is no way that one litigant can disqualify them with his
(d) Rav Ami and Rav Asi asked Rav Dimi what the Din will be if the second
pair of witnesses are subsequently proved to be relations or Pasul. Their
She'eilah is - whether now that in retrospect, the first pair of witnesses
were the only ones, the defendant is prejudiced, and his initial testimony
void, or whether, seeing as when he testified, the second witnesses'
testimony was still intact, his testimony stands.
(a) Rav Dimi (or Rav Ashi) replied - that since, at the time when they (the
litigant and his co-witness) testified against the first pair, they were not
prejudiced and their testimony was accepted, it remains intact (like the
second side of the She'eilah).
(b) We prefer this explanation to the literal interpretation of 'K'var
Hei'idu ha'Rishonim' (meaning that the first pair of witnesses cannot be
disqualified, seeing as the second pair were proven Pasul) - because the
word 'K'var' implies that they testified before the second witnesses arrived
(conforming with the first explanation).
(c) We repudiate the current explanation however, on two scores. Firstly,
because, since the second witnesses became disqualified, how can Rebbi Meir
consider this a full clarification" The second - because, even if he did,
the litigant is still prejudiced when testifying, seeing as the claimant
will lose, should he not be able to bring the second pair of witnesses.
(d) So we conclude that Rebbi Meir holds 'Ein Tzarich Le'varer' and the
Rabbanan hold 'Tzarich Le'varer'. The litigant is believed according to
Rebbi Meir - because he speaks when the claimant actually brought the two
pairs of witnesses to Beis-Din. Consequently, even if the second pair would
now be disqualified, the testimony of the first pair would remain intact, in
which case, the defendant is not prejudiced.
(a) If Reuven comes to claim from Shimon with both a Sh'tar and a Chazakah
of three years, Rebbi holds in a Beraisa that he must bring the Sh'tar (and
is not believed on the basis of the Chazakah) - because he holds 'Tzarich
(b) When Raban Shimon ben Gamliel says 'Nidon be'Chazakah' - he means that
he has the option of proving his Chazakah, should he so wish, because he
holds 'Ein Tzarich Le'varer'.
(c) Initially, we connect this Machlokes with that of Rebbi Meir and the
Rabbanan (according to the final explanation that Rebbi Meir holds 'Ein
Tzarich Le'varer') - by pairing Rebbi Meir with Raban Shimon ben Gamliel,
and the Rabbanan with Rebbi.
(d) We refute this suggestion however, and conclude that the Rabbanan
definitely argue with Raban Shimon ben Gamliel. Rebbi Meir, on the other
hand, might well agree with Rebbi and require specifically the proof of a
Sh'tar - since Chazakah was only instituted as a substitute for someone who
has lost his Sh'tar. Consequently, once he claims that he has not lost it,
we obligate him to bring it.