TWO THAT JUDGED A MONETARY CASE (cont.)
(R. Avahu): All agree that if two judged a monetary case, this is not a judgment!
Question (R. Aba - Mishnah): If a judge judged and acquitted the guilty or obligated the innocent, or he declared Tamei what is Tahor or declared Tahor what is Tamei, what he did stands, and he must pay for the loss he caused.
Answer: The case is, the parties accepted him to judge alone.
Question: If so, why must he pay?
Answer: They accepted him to give the law of the Torah, and he did not.
Question (Rav Safra): How did he err?
Suggestion: He erred in a clear-cut matter.
Rejection: R. Asi taught that if one erred in a clear-cut matter, we retract the judgment!
Answer: He erred in Shikul ha'Da'as.
Question: What does this mean?
Answer (Rav Papa): Two Tana'im or Amora'im argue with each other. The Halachah was not decided like either, but the discussion on it (Gemara) favors one opinion, and the judge ruled like the other opinion.
Suggestion: Shmuel and R. Avahu argue like the following Tana'im do.
(Beraisa - R. Meir): Compromise requires three judges;
Chachamim say, one judge suffices.
We are thinking that both of these Tana'im equate compromise and judgment.
Suggestion: R. Meir says that judgment requires three judges, and Chachamim say that two (Ran - or even one) suffice.
Rejection: No, all agree that judgment requires three judges;
R. Meir equates compromise and judgment, but Chachamim do not.
Suggestion: There is a three-way argument among the Tana'im about compromise. R. Meir requires three judges, R. Shimon ben Gamliel requires two, and Chachamim require one.
Rejection (Rav Acha brei d'Rav Ika): No. R. Shimon ben Gamliel said two, but he holds that even one suffices;
He said two in order that there will be witnesses to the compromise.
Inference (Rav Ashi): We learn from this that compromise does not need a Kinyan;
If it did, why would R. Meir require three, two would suffice, they will make a Kinyan, the parties agree to whatever the judges decide! (Rather, three judges are needed to empower the decision even though no Kinyan was made.)
The Halachah is, compromise needs a Kinyan.
(Beraisa): Compromise requires three judges, just like judgment;
Once judgment was passed (Rashi; Tosfos - once the judges know the verdict), they may not suggest compromise.
R. Eliezer son of R. Yosi ha'Glili says, (if the parties came for judgment) one may not give a compromise; if one gives a compromise, he transgresses;
If one praises one who compromises, he angers Hash-m - "u'Votze'a Berech Ni'etz Hash-m";
Rather, the law pierces the mountain (we follow it, no matter what it is).
This was Moshe's approach. Aharon loved Shalom, pursued Shalom, and made Shalom between people - "...b'Shalom uv'Mishor Halach Iti v'Rabim Heshiv me'Avon."
R. Eliezer says, if one stole wheat, made bread, separated Chalah and blessed, this only angers Hash-m - "u'Votze'a Berech Ni'etz Hash-m."
R. Meir says "Botze'a" refers to Yehudah - "...Mah Betza Ki Naharog Es Achinu."
If one praises what Yehudah said, he angers Hash-m - "u'Votze'a Berech Ni'etz Hash-m."
R. Yehoshua ben Korchah says, it is a Mitzvah to compromise - "Emes u'Mishpat Shalom Shiftu b'Sha'areichem";
Question: If there is Mishpat, there is not Shalom. If there is Shalom, there is not Mishpat!
Answer: The Mishpat that brings Shalom is compromise.
Question: "Va'Yhi David Oseh Mishpat u'Tzedakah" - Mishpat and Tzedakah do not go together!
Answer: The Mishpat that has Tzedakah is compromise.
The first Tana expounds the verse as follows:
David ha'Melech acquitted the innocent (Levi) and obligated the liable party (Reuven). David saw that Reuven was poor, so he paid on behalf of him - this is Mishpat and Tzedakah;
It is Mishpat for Levi. He receives what he deserves;
It is Tzedakah for Reuven. David paid for him.
Question (Rebbi): Why does it say "Va'Yhi David Oseh Mishpat u'Tzedakah l'Chol Amo"? Tzedakah is only for the poor!
Answer: Rather, even though David did not pay on behalf of Reuven, he did Mishpat and Tzedakah:
It is Mishpat for Levi. He receives what he deserves;
It is Tzedakah for Reuven. David stopped Reuven from stealing.
R. Shimon ben Menasiya says, if two people come for judgment, until you sense what the verdict will be, you may suggest that they compromise;
Once you sense what the verdict will be, you may not suggest that they compromise. "Poter Mayim Reishis Madon v'Lifnei Hisgala ha'Riv Netosh" - before the (verdict) of the dispute is known, you may abandon the dispute (and pursue Shalom, i.e. compromise).
R. Yehoshua ben Lakish says, if two people come for judgment, and one is tough and the other is not, you may withdraw from the case (lest you obligate the tough one and be in danger of reprisal) as long as you do not know which way the verdict leans;
Once you know which way the verdict leans, you may not withdraw - "Lo Saguru Mipnei Ish."
(R. Yehoshua ben Korchah): If a Talmid in front of his Rebbi sees that the poor person is innocent and the rich person is guilty, he may not be silent - "Lo Saguru Mipnei Ish", do not withhold your words due to a person's honor.
(R. Chanin): The witnesses should know Whom they testify about (i.e. if they testify falsely, they force Hash-m to fix things), in front of Whom they testify, and Who will punish false witnesses - "v'Omedu... Lifnei Hash-m."
The judges should know Whom they judge (i.e. wrong judgment will force Hash-m to fix things), in front of Whom they judge, and Who will punish improper judges - "Elokim Nitzav ba'Adas Kel", "Ki Lo l'Adam Tishpetu Ki la'Shem."
Suggestion: Perhaps a judge will say 'I should not judge, lest I err and be punished!
Answer: "V'Imachem bi'Dvar Mishpat" - a judge judges according to what he sees. (If he does so, he will not be punished.)
Question: What is a final verdict?
Answer (Rav Yehudah): It is 'Ploni, you are liable. Almoni, you are Zakai (you receive, or are exempt).'
(Rav): The Halachah follows R. Yehoshua ben Korchah (who said that it is a Mitzvah to compromise).
Question: Rav Huna was Rav's Talmid, and he would offer the parties Din (law) or compromise!
Answer: R. Yehoshua ben Korchah means that it is a Mitzvah to offer (Din or) compromise.