We are now beginning the study of Tractate Sanhedrin, Chapter 1, Mishnah 1. The focus of the entire chapter is the composition of the various courts - how many judges are required for each type of case. First, we will discuss the smallest of the courts, a beis din of three.
"Dinei mamonos bishloshah" - monetary cases are judged by three:
The simple meaning of the words is: lawsuits and Torah cases concerning monetary matters are judged by three. The Bartenura explains that this refers primarily to admissions and loans, meaning situations involving loans that must be repaid.
As a rule, all the courts mentioned in the mishnayos before us, even a beis din of three, refer to three experts - meaning ordained judges with semichah, as was explained in the introduction. However, this specific law regarding admissions and loans may be judged even before lay judges who do not have semichah, and in fact, before any judge. Furthermore, even a single judge can adjudicate in place of a beis din of three, if he is publicly recognized as an expert.
The reason for the leniency: "shelo tin'ol deles bifnei lovin" - so as not to lock the door before borrowers:
The leniency stems from the concern of Chazal about locking the door before borrowers. The ability to borrow money is a vital resource, and granting a loan is an act of kindness in the Jewish community. If a lender thinks he will have a hard time collecting his money due to stringent requirements - such as the need for a special beis din that might not be available - he will hesitate to lend in the first place, and consequently, the borrower will be unable to obtain funds. Therefore, Chazal enacted a special provision: although a beis din of ordained experts is generally required, for loan matters we make an exception and validate a lesser beis din, or even a single expert. This ensures that the lender can be confident he will be able to collect his money if the borrower starts playing games with him.
The source for the basic law that a beis din consists of three expert judges is found in Parashas Mishpatim: there, the Torah refers to the judges three times with the term "Elohim." Although this word usually refers to Hashem, since it denotes one with power and authority, it can also refer to a beis din. Since the term "Elohim" is mentioned three times in the context of courts, we learn that a beis din must specifically consist of three judges - three justices.
The two types of cases included in this leniency, which the Bartenura terms "admissions and loans," both involve a lender collecting his debt:
Admissions - a case where the borrower admitted in front of two witnesses that he owes money to the lender.
Loans - a case where witnesses can testify that the loan was given to the borrower at a specific time and for a specific amount in the past.
Both of these are considered loan matters, and they are judged by three even if the judges are not experts.
"Gezelos vachavalos bishloshah" - robberies and injuries are judged by three:
These too are judged by three, but here three expert judges are required:
"Gezilos" - literally robberies or thefts. This refers to any situation where a person took something that does not belong to him, and it does not necessarily have to be an actual robbery in a technical sense. For example: a person entrusted his bicycle to his friend, and the friend misappropriated it or denies having it and tries to steal it, as well as withholding wages and similar cases.
"Chavalos" - injuries and damages, when a person injures his fellow. In such a case, he must pay five payments: damage - the physical damage; pain - the physical pain; medical expenses - the medical costs; embarrassment - the emotional suffering; and unemployment - the compensation for lost work days. These payments are determined in a court of three experts.
It is worth noting the words of the Gemara in Bava Kamma (84a): very common types of cases that involve financial loss, which judges are proficient and accustomed to, and see frequently, can be judged even by judges who are not ordained. This includes payments for a kesubah and inheritance, and according to many opinions, even robbery. For this reason, there are courts today that judge these matters even though they do not have ordained judges.
"Nezek v'chatzi nezek":
"Nezek" is seemingly a repetition of the injuries mentioned in the previous line, and this also includes a person's property damaging his fellow's property. "Chatzi nezek", as we recall from the beginning of Tractate Bava Kamma, deals with a tame and calm animal like a cow, which does not typically cause damage. If the cow gored his fellow's cow, this is unexpected damage, and the owner of the damaging cow pays the owner of the injured cow half the damage.
This payment is a type of fine. Fines are penalties where the payment does not exactly correspond to the financial loss that was caused. Usually, the fine is greater than the loss, while here it is less than it, and nevertheless it is a fine, since it is not a one-to-one payment compensating for the loss. And since the Mishnah opens here with matters of fines, it began with the lightest of them - half damage - and tangentially also mentioned full damage, hence the repetition in its wording.
"Tashlumei kefel v'tashlumei arbaah vachamishah":
These fines are also judged in a court of three experts:
"Tashlumei kefel" - apply whenever a person steals, not as a robber who takes it with the victim's knowledge, but secretly and stealthily, such as in the dead of night, when the owners are unaware. If he is caught, brought to court, and proven to be the thief, he must return not only what he stole or its value, but also an additional fine called kefel.
"Tashlumei arbaah" - a person who secretly steals a sheep, meaning a goat or a lamb, and slaughters it or sells it to a third party, pays a special fine. If the sheep is worth one hundred, and the thief slaughtered it and ate it or sold it, he pays one hundred as the principal, an additional hundred as kefel, and another two hundred - a total of four hundred, four times its value: the principal, the kefel, and two more.
"Tashlumei chamishah" - a person who steals a cow and slaughters it or sells it to another, pays five times its value: once for the principal, once for the kefel, and the additional three times are the special fine the Torah imposed on stealing cattle and slaughtering or selling it.
For example, regarding double payments: a person stole a wallet in the middle of the night. The wallet itself was worth ten dollars, and it contained five dollars that he spent, so that when he was caught he only had the wallet left in his possession. When brought to court and verified to be the thief, he must return the wallet he stole (ten) and the five he spent, a total of fifteen, which is the principal - the original value of what he stole. In addition, he must pay another fifteen as kefel, as a fine for stealing property worth fifteen.
All of these are fines, and they must be judged in a court of three expert judges.
"Ha'ones v'hamefateh v'hamotzi shem ra bishloshah":
We will start with the rapist and the seducer, which stand on their own, and afterward we will discuss the dispute regarding the defamer. Regarding the rapist and the seducer, everyone agrees that a court of three experts is required, since they are fines:
Oness - One who forces an unmarried young woman to sleep with him against her will.
Mefateh - One who seduces an unmarried young woman to sleep with him, and she is persuaded and willingly agrees, without physical force.
In both cases, a fine of fifty shekels applies. With a Mefateh, if the two desire they may live together and marry, but that is not our concern here; the main point is that there is a potential fine of fifty here.
Regarding a defamer, the wording of the Mishnah is: "Hamotzi shem ra bishloshah, divrei Rabbi Meir. Vachachamim omrim: motzi shem ra be'esrim veshloshah, mipnei sheyesh bo dinei nefashot" - A defamer is judged by three, the words of Rabbi Meir. And the Sages say a defamer is judged by twenty-three, because it involves capital cases - since the matter could evolve into a death penalty.
What is a defamer:
A man betroths a woman, usually a very young girl. He gives her the ring and she becomes betrothed - a married woman in every respect - but she remains living in her father's house, sometimes for an additional year: a twelve-year-old living with her father, and at age thirteen she moves to her husband's house and enters into marriage. Even while she is a betrothed woman who received kiddushin, she is a married woman living in her father's house, and it is forbidden to sleep with her, and one who does so incurs the death penalty.
After a year, the marriage arrives, and then the husband claims that his wife was not a virgin, and that she slept with another man after the betrothal. This severe accusation can yield two consequences:
Even if he has no witnesses, we assume he is telling the truth. There is a presumption that a person does not go through the trouble of arranging an entire wedding and paying all its expenses just to get rid of his wife the next day, and therefore he is believed to the extent that he can divorce her without paying a kesubah. (According to the Mishnah, a man may divorce his wife whenever he wants, and therefore the discussion revolves around the payment of the kesubah alone: he claims "I am not paying a kesubah, for I was deceived here, and this woman was not a virgin".)
If he had witnesses confirming that she slept with someone else in the meantime, this is bad news, and she could face the death penalty.
Our Mishnah states that three are required, out of the assumption that there are no capital cases here but only a monetary claim, and therefore Rabbi Meir says that three alone are sufficient.
The Rishonim disagree on the definition of the claim, and in practice both approaches amount more or less to one thing:
First approach: The case has already been decided, and it was found that the husband who claimed that his wife was with another man brought false witnesses, and he is a defamer who slandered her. Now her father may sue him for the fine of one hundred shekels, the largest fine in the Torah, and this lawsuit against the swindling groom is nothing more than a monetary Torah law. Rabbi Meir says that three are sufficient, and the Sages say that even here twenty-three are required - lest for his defense the groom find new witnesses who will testify that she indeed committed adultery, and then we would find ourselves returning to a potential situation of capital cases; and due to this possibility, twenty-three are required from the very beginning.
Second approach: The husband himself seeks to be exempt from paying the kesubah, and this is merely a monetary consideration, and therefore three judges are sufficient. He claims: "I have no witnesses, I want to discuss the monetary matter alone". And even here the Sages say that twenty-three are required, for one never knows what might come out of the discussion: perhaps evidence will be discovered, witnesses will suddenly appear, and immediately we are situated in the midst of capital cases.
The halachah is decided in accordance with the Sages: in the case of a defamer, if such an incident happens, God forbid, we open and conduct the entire discussion with twenty-three, lest the matter lead to a situation where there are witnesses who are liable to bring the woman to a death sentence.
In conclusion: In this Mishnah we learned the compositions of the courts required for different types of cases: monetary cases of admissions and loans by three, and even by laymen or a single expert, due to the concern "so that you will not lock the door in the face of borrowers"; robberies and injuries by three experts, including the five payments of one who injures; fines - damage and half-damage, double payments, fourfold and fivefold, Oness and Mefateh - by three experts; whereas for a defamer, Rabbi Meir and the Sages disagreed, and the halachah is decided in accordance with the Sages that it is judged by twenty-three, because it involves capital cases.
In the following Mishnayos, we will continue discussing the composition of the courts for other cases.