Perek Zeh Borer

1)

(a)How do we initially explain 'Dinei Mamonos bi'Sheloshah, Zeh Borer lo Echad, ve'Zeh Borer lo Echad'?

1)

(a)We initially explain 'Dinei Mamonos bi'Sheloshah, Zeh Borer lo Echad, ve'Zeh Borer lo Echad' to mean that - each litigant picks one Beis-Din of three.

2)

(a)According to Rebbi Meir in our Mishnah ...

1. ... after each litigant has chosen one Beis-Din, the two of them choose a third. What do the Chachamim say?

2. ... each litigant has the right to disqualify the other one's Beis-Din (or judge). What do the Chachamim say?

3. ... each litigant has the right to disqualify the other one's witnesses. What do the Chachamim say?

(b)What problem do we have with ...

1. ... our initial understanding of 'Zeh Borer lo Echad'?

2. ... the answer (that if each one rejects the other's Beis-Din, they choose a third Beis-Din between them? What did Rebbi Elazar say about the creditor's rights that negates it?

(c)And we answer by citing Rebbi Yochanan later 'Hacha be'Ercha'os she'be'Surya Shanu'. How does that answer the question?

(d)Rav Papa establishes our Mishnah by the Batei Din of Rav Huna and Rav Chisda (even though they were expert judges). How does that answer the Kashya?

2)

(a)According to Rebbi Meir in our Mishnah ...

1. ... after each litigant has chosen one Beis-Din, the two of them choose a third. The Chachamim say - that the two chosen Batei-Din 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 that they are 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 that they are relatives or Pasul.

(b)The problem with ...

1. ... our initial understanding of 'Zeh Borer lo Echad' 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.

(c)And we answer by citing Rebbi Yochanan later 'Hacha be'Ercha'os she'be'Surya Shanu' - where the judges are not expert in Torah-law, and to which the debtor may 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.

3)

(a)If we interpret 'Zeh Borer lo Echad' as we have until now, what problem do we have with ...

1. ... the Chachamim, who say 'Sh'nei Dayanim Bor'rin lahen Od Echad'?

2. ... the Lashon 'Zeh Borer lo Echad ... '?

(b)So how do we finally explain 'Zeh Borer lo Echad ... '?

(c)How did the Chachmei Eretz Yisrael in the name of Rebbi Zeira explain the dual advantage of this system, particularly according to Rebbi Meir (who holds that the litigants themselves pick the third judge)?

3)

(a)If we interpret 'Zeh Borer lo Echad' as we have until now, the problem with ...

1. ... the Chachamim, who say 'Sh'nei Dayanim Bor'rin lahen Od Echad' 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 (to disqualify each other's Beis-Din ... ).

(b)So we finally explain 'Zeh Borer lo Echad ... ' to mean - that each litigant picks one 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.

4)

(a)What does Rav Yehudah Amar Rav say about witnesses who sign a document?

(b)How do we attempt to connect the first Machlokes between Rebbi Meir and the Chachamim in our Mishnah with Rav Yehudah Amar Rav's statement?

(c)We reject this suggestion however, on the grounds that they both agree with Rav Yehudah Amar Rav, and that they argue over whether the consent of the litigants is also required. What does each one then hold?

(d)Rav Yehudah's statement is borne out by a Beraisa. Which other two cases does the Tana present there with regard to the 'Neki'ei ha'Da'as she'bi'Yerushalayim', besides a witness signing on a Sh'tar?

4)

(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 Yehudah'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.

5)

(a)What is the reason for the first and third of the previous statements. Why should anybody care who ...

1. ... his co-witnesses are?

2. ... else attends a banquet?

(b)In our Mishnah, Rebbi Meir permits one litigant to disqualify the judge picked by the other. How does Rebbi Yochanan establish the Mishnah, to answer the Kashya 'Kol Kemineih de'Pasil Dayna'?

(c)How will Rebbi Yochanan 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?

2. ... in a Beraisa 'Lo Kol Heimenu she'Posel Dayan she'Mumcheh le'Rabim'!

(d)How do we finally prove Rebbi Yochanan right?

5)

(a)A person would indeed care who ...

1. ... his co-witnesses are - so as to avoid the ensuing embarrassment should they 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 banquet.

(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.

6)

(a)How do we nevertheless query both Rebbi Yochanan and the Beraisa from Rebbi Meir's ruling with regard to Kasher witnesses?

(b)And we answer this with a statement of Resh Lakish. What did Resh Lakish mean when he said about Rebbi Meir 'Peh Kadosh Yomar Davar Zeh?'?

(c)Then what did Rebbi Meir really say?

(d)What problem do we have with this, assuming the Mishnah is referring to ...

1. ... Mamon?

2. ... a Shevu'ah?

6)

(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 (singular) shel Zeh'.

(d)The problem with this, assuming the Mishnah is referring to ...

1. ... Mamon is that - the Torah has already disqualified one 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.

7)

(a)How do we therefore establish the one witness of Rebbi Meir?

(b)What does Rebbi Meir rule in the next Mishnah in a case of 'Ne'eman alai Aba, Ne'eman alai Avicha ... '?

(c)How does Rav Dimi b'rei de'Rav Nachman establish the Mishnah?

(d)What problem does this create with Resh Lakish's interpretation of our Mishnah?

7)

(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 - where 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 see fit to argue over what is essentially the same point twice in two consecutive Mishnahs.

23b----------------------------------------23b

8)

(a)Having presented the Machlokes between Rebbi Meir and the Chachamim by ...

1. ... 'Aba' and 'Avicha', why does the Tana then need to repeat it in the case of 'Chad ke'bei-T'rei'?

2. ... 'Chad ke'bei-T'rei', why does the Tana see fit to repeat it in the case of 'Aba' and 'Avicha'?

(b)What is the problem with the current interpretation of our Mishnah ('Chad ke'bei-T'rei') from the Lashon 'Dayno' and 'Eidav'?

(c)Rebbi Elazar therefore establishes the Mishnah where the one litigant disqualifies the other litigant's witnesses together with a second witness. What is the problem with that?

(d)So Rav Acha b'rei de'Rav Ya'akov establishes the case where he declares a specific P'sul. Why can this not be speaking where he declared him to be a Gazlan?

8)

(a)Having presented the Machlokes between Rebbi Meir and the Chachamim by ...

1. ... 'Aba' and 'Avicha', the Tana nevertheless needs 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 in the case of other litigants), the Rabbanan forbid either litigant to retract.

2. ... 'Chad ke'Bei-T'rei', the Tana needs 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 the litigant to retract.

(b)The problem with the current interpretation of our Mishnah ('Chad ke'bei-T'rei') is - from the Lashon 'Dayno' (singular) and 'Eidav' (plural) used by the Tana, implying that he deliberately establishes the Seifa where there are two witnesses, and not just one, like Resh Lakish learns?

(c)Rebbi Elazar therefore establishes the Mishnah where the one litigant disqualifies the other litigant's witnesses together with a second witness. The problem with that is - how the 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 where 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.

9)

(a)So which P'sul is the Tana referring to?

(b)Why is he believed according to Rebbi Meir? Why is the litigant not considered prejudiced?

(c)And what do the Rabbanan say?

9)

(a)So it must speak where he claims that - the witness's family is Pasul (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 interests.

(c)The Rabbanan decline to accept that - since the fact he only presents his evidence as a result of the witness appearing in court to testify against him, labels him as prejudiced.

10)

(a)Rav Dimi Amar Rebbi Yochanan establishes our Mishnah where the first litigant claims that he has two pairs of witnesses. How does that explain the opinion of Rebbi Meir?

(b)How do the Rabbanan then hold?

(c)What will they then hold in the case of one pair of witnesses?

(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 relatives or Pasul. What is the gist of their She'eilah?

10)

(a)Rav Dimi Amar Rebbi Yochanan establishes our Mishnah where 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, he will have to produce the second pair of witnesses should he be called upon to do so. That being the case, the defendant is no longer prejudiced (seeing as the witnesses in question are dispensable).

(b)The Rabbanan however 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 - 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 pair of witnesses' testimony was still intact, his testimony stands.

11)

(a)How did Rav Dimi (or Rav Ashi) resolve the current She'eilah?

(b)Why do we prefer this explanation to the literal interpretation of 'K'var Hei'idu ha'Rishonim', (that the first pair of witnesses cannot be disqualified, seeing as the second pair were proven Pasul)?

(c)We refute the current interpretation of the Machlokes however, on two scores. Firstly, because, since the second witnesses became disqualified, how can Rebbi Meir consider this a full clarification? What is the second?

(d)So we conclude that Rebbi Meir holds 'Ein Tzarich Levarer' and the Rabbanan hold 'Tzarich Levarer'. What does 'Tzarich Levarer' mean?

(e)Why is the litigant then believed according to Rebbi Meir? Why is he any less prejudiced than he was according to the first explanation (see Maharsha)?

11)

(a)Rav Dimi (or Rav Ashi) conclude 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' (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 Rav Dimi's explanation).

(c)We refute 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, in any event, 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 Levarer' and the Rabbanan hold 'Tzarich Levarer' - which means that a litigant must substantiate every proof that he claims to possess.

(e)The litigant is believed according to Rebbi Meir - because he is speaking where 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.

12)

(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). Why is that?

(b)What does Rabban Shimon ben Gamliel mean when he says 'Nidon be'Chazakah'? What is his reason?

(c)How do we initially connect this Machlokes with that of Rebbi Meir and the Rabbanan (according to the final explanation, that Rebbi Meir holds 'Ein Tzarich Levarer').

(d)We refute this suggestion however, and conclude that the Rabbanan definitely argue with Rabban Shimon ben Gamliel. Why, on the other hand, might even Rebbi Meir agree with Rebbi? What makes Rebbi's case different than his own?

12)

(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 Levarer'.

(b)When Rabban 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 Levarer'.

(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 Levarer') - by pairing Rebbi Meir with Rabban Shimon ben Gamliel, and the Rabbanan with Rebbi.

(d)We refute this suggestion however, and conclude that the Rabbanan definitely argue with Rabban 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 (even though he otherwise holds 'Ein Tzarich Levarer').

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