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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Sanhedrin 23


***** Perek Zeh Borer *****

1) 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.
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.
(b) The problem with ...
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?
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').
(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.

(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 with ...
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?
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).
(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 judge.

(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 Chachamim).

(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.
2. ... else attends a banquet - because it is degrading for a Talmid-Chacham to sit with Amei-ha'Aretz at a Se'udah.
(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.

(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 Yachol le'Poslan'.
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 supports him.
(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 witnesses.

(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 extracting money.
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.
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.
(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?

(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 testimony.

(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 Le'varer'.

(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.

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