Translation:Arukh ha-Shulchan/Choshen Mishpat/5

by Yechiel Michel Epstein

This chapter contains five sections: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12

Section 1

It is forbidden to hear cases on Shabbos and Festivals-'Yom Tov" since that might lead to the writing of claims and rulings. Therefore, there are those that rule that judges should not sit in any room that functions as a court on these days to prevent a misimpression that court is in session (Birchei Yosef). This rule also functions as a remembrance of the Great Court at the Temple, that sat in the Stone Chamber all week except for Shabbos and Festivals (as is written in chapter 1, section 21). If, however, this room is also used as a gathering place to discuss the communal needs it is permitted to assemble there, since communal needs may be discussed on Shabbos and people will assume that is what is taking place, as it states in Shulchan Aruch Orach Chaim, chapter 306. Court sessions can be held on the intermediate days of a Festival - 'Chol Hamoed', as is written in the Orach Chaim volume, chapter 545.

Section 2

One cannot be summoned to court on Friday or the day before a Festival because all are busy preparing for the following day. Even if the defendant is warned on these days to appear after the Shabbos or Festival he is not fined for not appearing as he can claim that it was forgotten due to his preparation for the Festival.

Section 3

Even if litigants appear before the judge on Friday or the day before a Festival the judges can decline to hear the case as a judge needs to exercise careful, deliberate judgment and the responsibilities of the day may prevent that. If the litigants agree to accept the decision regardless of whether it is right or wrong the case can proceed (Nesivos haMispat). Finally, if the litigants agree it is perfectly acceptable to record the claims of both sides and rule after Shabbos or the festival.

Section 4

Our Rabbi, the Rama has written that in current times we do judge on Friday and the day before a Festival to prevent the interruption of the scholars' teaching and studies, for all week they are engaged in their studies and on Friday they usually have a lighter schedule and are available to judge. Therefore, if the court sees the need to judge on these days it is permissible (Levush). This custom is based on the judge's acquiescence only. Litigants cannot force each other to appear at court on these days (Sefer Mi'eros Anayim). These rules pertain only to civil cases. Cases of religious ritual law, like divorces and Chalitzah (ceremony to refuse levirate marriage and permit all parties to remarry) require much study and should not be scheduled on Friday and the day before a Festival unless there is an overriding need, as is explained in Shulchan Aruch Even Ezer, chapters 154 and 169.

Section 5

In the months of Nisan (Passover time) and Tishrei (Rosh Hashana through Succos time) one does not schedule court appearances in the city for those outside the city until after the Festivals, due to the responsibilities of the Festival. If one was ordered before the Festivals to appear afterwards and did not he may be fined for failure to comply. The law is different than by Friday and the day before a festival mentioned above because here there is time to prepare the needs of the Festival and he should not be so overwhelmed as to forget the court order as by Friday and Festival eve where the time is short and it is much easier to forget the court order.

There are opinions that remove all court schedules from the months of Nisan and Tishrei even after the festivals because the festival responsibilities can continue past the festivals as well. During the month of Sivan, though, one can order court appearances after Shavuos on the day before as it is a short Festival with little in the way of physical preparation.

Section 6

When the litigants are present in the city, court appearances may be scheduled in the months of Nisan and Tisrei (except on Friday or the day before the Festival). This is because for one present in the city the festival needs are not so all-consuming as to prevent their appearance in court the entire month. If litigants living outside the city decide to come to the city and appear before the court in Nisan and Tishrei their case is heard, as there is no prohibition on the judges to preclude this. (Nisevos ha'Mishpat).

Section 7

All seven days of Sheva Brachos (the seven day celebratory period following one's wedding), and for three days before the wedding (when the groom is preparing for the wedding), a groom cannot be summoned to court (Urim v'Tumim). If a widower marries a widow he only receives a three day exemption period after the wedding, as is written in Shulchan Aruch Even Ezer, chapter 44.

Section 8

Our teacher the Rama writes that there is an opinion that forbids hearing a case in the synagogue in the moth of Nisan or during the High Holidays, even from town dwellers who come to the city for the prayer quorum -'minyan' that they need during the festival. Rather, they are scheduled for a time after the festivals. If there appears to be a pressing need, or if there appears to be some unethical maneuvering by the either litigant the case may be heard immediately.

The law that is written in the Shulchan Aruch Orech Chaim, chapter 545, that permits cases being heard on the intermediate days of the festival - 'Chol haMoed' is indeed referring to when there is a pressing need or an unethical litigant's whose schemes need to be blocked. It is also possible that this law is not speaking of a court hearing per se but rather a summary judgment, when neither side disputes the facts or the application of the law.

Currently it is our custom to hear cases in the synagogue whenever there is a need. There are also locales that have a custom to continue a court case in Nisan or Tishrei if it had begun before the month, and they should remain with their custom.

Section 9

According to Biblical law, a court hearing cannot begin at night. However, if it started during the daytime it can be completed at night. The Rabbis have derived this as follows: There is a verse that reads "Judge the people at all times..." and there is another verse written by the laws of inheritance that reads "This should be to the Children of Israel a decree of law (lit.’judgement')...on the day when one makes his sons inheritors..." . The word 'day' appears to be extra, as it should read "When one makes his sons inheritors...” The requirement to judge in the daytime is derived from this extra word 'day'. Concerning this derivation the Rabbis have received a tradition that a case can only start during the day, though it may continue after nightfall. They have also received a tradition that witness testimony must be heard during the day.

These rules above only apply when litigants are summoned by force. If litigants should agree to be judged at night, they agreement makes the hearing valid, just as they can agree to be judged by relatives or people usually invalid for judgeship (as is explained in chapter 22).

It is worth noting that when litigants agree to forgo the regular laws of court procedure there is a rule known as 'two disadvantages' - "Tarti l'Rei-usah", which states that if they agree to skip more than one requirement, for example to be judged by two judges at night, they must seal this agreement with a physical transfer of ownership of some token object, known as a (lit.) 'transfer of a handkerchief' - 'Kinyan Sudar'. This public, real transfer of ownership demonstrates clearly that the two parties have agreed on a set of terms, and it is considered to be less susceptible to a later dispute than a verbal agreement is. Once they have done this act, any admission they make or witnesses that testify are considered to be before a court and cannot be retracted (Nisevos ha'Mishpat). Of course, if they are before a court of three they do not need this 'Kinyan Sudar' procedure to have witnesses testify at night.

There are those who believe that an artificially lighted court is as good as day but there is no source for this in the law. There apparently is also a custom of some antiquity to summon a litigant to court at night, for if he appears it is as though he agreed to be judged at night as well - this is only valid if he comes willingly, as he cannot be forced to court at night. He can, however, be warned at night to appear the next day, and can be fined if he does not, as he cannot claim he had forgotten the summons. If he was judged at night by force, certain authorities maintain the ruling stands while others dispute this. In Yirushalmi [PEREK?] the law is as the first opinion, while in the Babylonian Talmud the law seems like the latter opinion (Gemara Yevamos, 104.1, see Tosfos). If witnesses are accepted at night (without the litigants permission) their testimony has no validity, and any ruling based on it is void. In this case the witnesses must testify again in the day and the judges' analysis of the case and the laws involved must be begin anew (Nesivos ha'Mishpat). This will be explained further in chapter 28.

Section 10

The Rambam writes in chapter 3 of the Laws of the Court:

"Court cases do not start at night. We learn from accepted tradition that a court case is akin to the examination of the classical biblical plague -'Negaim'. Just as Negaim can only be examined during the day so to a court case must start during the day. Witnesses are also not accepted at night and contracts are not certified by the court at night. Civil cases can be completed at night if started by day, and estate cases as well, since the verse calls estate law 'a decree of judgment...’, which implies that inheritances are a type of court ruling, and are not to be bequeathed at night. If two visit a sick person and he orders a specific distribution to his heirs they can write it down for a court ruling. If there are three they can rule on the distribution themselves. When is this? Only during the day. At night they can only write his instructions down."

The explanation appears to me to be that all estate law has a status of a Biblical decree and not a gift, even though it is his money. That's why a person cannot legally bequeath property to someone who is not an heir (Chapter 6, Laws of Inheritance). The reason seems to stem from the words 'a decree of judgment', which also gives him the Biblical right to increase the portion of one heir and decrease the portion of another (as explained the Rambam, chapter 6 and later in chapter 281). This is also a type of inheritance and is like an act of the court that requires daytime. Therefore, if two visit a sick person and he does not wish to change the Torah mandated default distribution he need do nothing. If he wishes to bestow a present to someone, whether he is giving the present as a basically healthy person or a critically ill person -'Shchiv M'ra' (which has different laws) this is an act outside the laws of inheritance and would not require daytime. It is true that the majority opinion ('the Rabbis' in Gemara Baba Basra 149.1 ) consider these presents a type of rabbinical inheritance, nevertheless the Rambam in chapter 8 of the Laws of Acquisition clearly defines these presents as being a rabbinical enactment not related to inheritances at all. That is why he does not write about increasing or decreasing the portion of the heirs by the laws of the gifts of the critically ill, because that is an inheritance related law, not a gift related law. This is in contrast to the Shulchan Orech, chapter 253, which lists the gift of the critically ill in the laws of inheritance, as is it a type of legal inheritance. [In this the Rambam differs from the Rashbam and Tosfos on Gemara Baba Basra 113.2. In addition, see Rashi, Gemara Sanhedrin, 34.2]

Another issue of contention here is the Rambam's statement that we derive the rule to only hear cases in the daytime from a verse written in the Torah dealing with the laws of a plague -'Negaim' (Gemara Nidda 50.1). Actually, Rabbi Meir, the minority opinion, purports this derivation. The majority opinion in the Gemara uses a different source. In fact, the Rambam himself rules according to the majority opinion in his commentary on the Mishna (Niddah) and in the The Laws of Plagues, chapter 9, where he states that although one cannot inspect his own plague he is trusted to inspect a plague his relative has. This contradicts Rabbi Meir's opinion (chapter 2 of Negaim) of the bi-directional connection - 'Hekesh' between the laws of plagues and court judgments. According to him, just as judges cannot rule on a relative's cases so to one cannot inspect a relative's plague. Additionally, in Gemara Sanhedrin the Amora Rava states that the law requiring a daytime distribution of inheritances is derived from a different verse: (Devarim 21.16) "And on the day when he will cause his son to inherit...".

The answer to this problem is that the Rambam believes that the Rabbis do agree with Rabbi Meir's derivation, that a connection between the verses of plagues and that of judgment leads to the conclusion that monetary and capital court cases must start during the day. However, while Rabbi Meir's position is that the complete case must be processed during daytime, the Rabbis derive from the verse: "You shall judge the people at all times..." that monetary cases can be concluded at night. Similarly, when the Torah states regarding inheritances "...a decree of judgment..." it is qualifying that inheritances are also apportioned during the day. Another related result of the plauge-court connection, albeit unrelated to this specific topic, is that a person who is blind in both eyes cannot function as a judge just as he cannot inspect a plague. A person who is blind in one eye is permitted to judge, though not to inspect plagues (although Tosfos there in Gemara Niddah disputes this). This is true because although there is a bi-directional connection between the verses of plagues and judgments, all the qualities of each law are not necessarily applied to the other. As another example, one can inspect the plagues of his relative's even though one cannot be a judge on his relative's court case.

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Section 11

Judges are not obligated to be present in court all day to receive cases; rather they sit from morning until close to noon. They begin directly after the morning prayer -'Shacharis'. The Rambam writes that they remain available until the 6th hour of the day. The Tur writes the same. Some say they do not mean until the end of the 6th hour, just close to it, so that the judges can retire for lunch in the 6th hour, as that is time given in the Talmud for when sages have their midday meal. [Sefer Mi'eros Anayim and Bayis Chadash]. Our teacher the Beis Yosef writes that they sit until the 5th hour, and the Rif and Rosh in the first chapter of Gemara Sanhedrin concur.

It seems to me that they are not arguing about the actual law, as the whole of the 6th hour is set aside for lunch, so that until the beginning of the 6th hour they hold court and from then until the completion of the 6th hour, without the completion included, they are not required by law to hold court. If they wish they do not have to break and may continue the court session in this hour. However, once the 6th hour has passed they are required to break and eat if they wish to continue holding court further into the day.

It should be known that the Zohar in Mishpatim warns strongly that one should not hold court after he eats, basing this on the verse (Yirmuyahu 21.12) "Execute justice in the morning..." and the verse (Vayikrah 19.26) "Do not eat with the blood...", (see further there). There is a support to this warning somewhat from the basic law that forbids holding court once the time of the midday meal is reached, although it is true that this idea is not found explicitly in the Talmud or in later authorities. Truth be told, the opposite is found in Talmud (Gemara Moed Katan 14.2), where it states that on the intermediate days of the Festival, court rulings were issued after the festive meal (see there). Therefore, this idea is just understood as an extra stringency. The Gemara in Shabbos 10.1 intimates that this was the accepted practice in Talmudic times (not holding court after meals); however in modern times I have not seen courts adhere to this stringency. Even the Great Court that once sat in the Stone Chamber in the Temple sat in session all day, although that is not much of a proof as the majority of that court's work was defining unclear concepts in the law as opposed to ruling on actual cases (as the verse states "If the law shall be beyond you..."). That court didn't even always follow the technical requirements necessary for a ruling court, as we see in Yirushalmi Sanhedrin, chapter 1, where Rabbi Tzadok and his brothers (who were, of course, relatives) sat and ruled on matters. Also, the Gemara in Moed Katan that seemed to permit holding court after meals is not a clear proof, as eating might have been allowed in that instance due to the honor of the Festival. One thing is certain: If the litigants agree to let the case be heard after a meal that is perfectly fine, just as they are able to agree to be judged by a relative or one invalid for judgeship. Finally, it appears that a court of 23 only sat until lunch time, while regarding the Great Court in the Temple, the Rambam states in the Laws of the Court, Chapter 3, that although they sat all day, they only sat when there was a need, and even then every member was not required to be present all day. Those members who had other responsibilities or needs came and went, as long as there were not less than 23 present at any given time. If one had to leave he only had to make sure the number of judges present would not fall below 23, otherwise he had to wait until another showed in the chamber.

Section 12

Once the seventh hour arrives, also known as the Great Mincha -'Mincha Gedolah', it is forbidden to start a court session. This is because of the concern that those involved in the deliberation will forget to pray the afternoon prayer, 'Mincha'. Even to just formally issue a final ruling that was decided yesterday is forbidden at this point, as the judges might see a mistake in their analysis and become once more involved in the deliberations. If, however, the judges began the case before this time they may continue to finish it after this time arrives, even past the time of the 'Minor Mincha', which is even later in the day. This permission is only applicable if they leave themselves enough time for the afternoon prayer after they finish the court session, according to their estimation.

If they ignored the prohibition and started a court session after the seventh hour, they can continue post facto. If they start a session close to the 'Minor Mincha' they must stop and they cannot even issue an agreed upon ruling. Such is the ruling of the Beis Yosef based on the Rif, Rambam, and as recorded in the Shulchan Aruch Orech Chaim, chapter 232. I wonder though why the Rama did not note here in Choshen Mishpat what he notes there in the Orech Chaim, that Rebbeinu Tam rules that it is permitted at the onset to start a session close to the seventh hour. The Maor also rules that starting a session is permitted, and that even if it is started close to the 'Minor Mincha' it is not stopped post facto. Many of the later authorities have agreed to allow this, as now synagogues call to prayer when the time nears, or at least establish a daily schedule of prayer times, so that there is no worry that the court members will forget to pray (Urim v'Tumim).

How is the 'beginning of a court session' defined? When the judges wrap themselves in the robes of their position before they sit in their respective places. If they were already seated from a previous case, the beginning is defined as when the litigant starts to present his claim.

Reference Links

English - Judaica Press Tanach with Rashi

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Hebrew - Tanach with Rashi, Ramban, Rashbam, Ibn Ezra, Radak, and others

Hebrew - Rambam | (Bio) with commentaries

Hebrew - Shulchan Aruch, Chapter 7 | (Bio) with Sefer Mi'eros Anayim (Bio) and the Shach (Bio)

Hebrew - Nesivos haMishpat | (Bio)

Hebrew - Urim v'Tumim | (Bio)

Hebrew - Birkei Yosef | (Bio)

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