PICKING THE BEIS DIN
(Mishnah - R. Meir): Monetary cases require three judges. Each (party) picks one (this will be explained), and both agree upon a third;
Chachamim say, the two judges (picked by the two parties) agree upon a third.
R. Meir says, either party can disqualify a judge picked by the other;
Chachamim say, this is only if he can prove that he is a relative or invalid to judge. One cannot disqualify a Kosher or Mumcheh judge.
R. Meir says, either party can disqualify the other's witnesses;
Chachamim say, to do so he must prove that they are relatives or invalid witnesses.
(Gemara) Version #1 (Rashi) Question: Why does it say that each (party) picks one (Beis Din, and then they pick a third)? Three judges suffice!
Version #2 (Tosfos) Question: Why must they first select different Batei Din? It suffices to pick only the third (the one that they agree to)! (end of Version #2)
Answer #1: It means, if each picks a different Beis Din, they must pick a third Beis Din together.
Question: Can the borrower really reject the Beis Din of the lender?
(R. Elazar): The lender can force the borrower to go to the Beis ha'Va'ad (a better Beis Din in another city), but the borrower cannot force the lender (if the lender wants to go to a Beis Din in his city).
Answer #1: The case is like R. Yochanan said (to answer a different question). He can reject only a Beis Din like those of Surya (i.e. it is unlearned!)
Answer #2 (Rav Papa): Even if the Beis Din is Mumcheh, if both Batei Din are in the same area (Tosfos - not far apart), like the Batei Din of Rav Huna and Rav Chisda, the borrower can reject the lender's choice, for this is not a burden.
Objection #1 (Mishnah - Chachamim): The two judges agree upon a third.
If the first Batei Din were rejected, why do these judges pick the third?
Objection #2: The words of the Mishnah imply that each party must pick one!
Answer #2: It means, each party picks one judge, and both parties agree upon a third judge.
Question: Why do they do it this way? (Both parties should agree to all three judges!)
Version #1 (Rashi) Answer (R. Zeira): Each party will think 'the judge that I picked tried his best to be Mezakeh me', so he will accept the verdict.
Version #2 (Tosfos) Answer (R. Zeira): Since each party had equal input in picking the judges, the judges will strive to be Mezakeh both sides equally, and they will reach the correct verdict.
(Mishnah - Chachamim): The two judges agree upon a third.
Suggestion: They argue about Rav Yehudah's law.
(Rav Yehudah): A witness should not sign a document until he knows the other witnesses (lest one of them is a relative or invalid witness, and this will be Mevatel the testimony).
Chachamim hold like Rav Yehudah. (Likewise, one should not judge a case until he knows the other judges, lest one of them is a relative or invalid, and this will disqualify the verdict). R. Meir argues with Rav Yehudah.
Rejection: No, all agree with Rav Yehudah. All require that the judges agree to each other;
They argue about whether the parties must agree to the judges. R. Meir says that they must, and Chachamim say that they need not.
Support (for Rav Yehudah - Beraisa): Nekiyei ha'Da'as (very pious people) of Yerushalayim would not sign documents until they knew the other witnesses, they would not judge until they knew the other judges, and they would not sit to eat until they knew the others at the meal.
(Mishnah - R. Meir): Either party can disqualify a judge picked by the other.
Question: Can he really do this (without good reason)?!
Answer (R. Yochanan): He can disqualify judges of Batei Din of Surya (i.e. who are unqualified).
Inference: He cannot disqualify qualified judges.
Question (Mishnah - Chachamim): To disqualify him, he must prove that he is a relative or invalid to judge. He cannot disqualify a Kosher or Mumcheh judge.'
Inference: R. Meir says that he can disqualify a Mumcheh!
Answer: Chachamim mean that a Kosher judge (i.e. he is not a relative or disqualified from judging, even if we do not know whether or not he is learned) is like an established Mumcheh, and one cannot disqualify him.
Question (against R. Yochanan - Beraisa): Chachamim told R. Meir 'one cannot disqualify Mumchim!'
Answer: It means, one cannot disqualify judges that many people (i.e. of Surya) accepted upon themselves to consider them like Mumchim.
Support (for R. Yochanan - Beraisa - R. Meir): A party may reject the other's judges, unless he accepted in front of a Beis Din of Mumchim. (If one could reject Mumchim, he could retract his acceptance!)
Question: Witnesses are like Mumchim (they are not disqualified due to ignorance), and R. Meir says (in our Mishnah) that either party can disqualify the other's witnesses!
Answer #1: Reish Lakish explained, the awesome R. Meir would never say this!
Rather, R. Meir says that either party can disqualify the other's witness!
Question: What could one witness do if he were not disqualified?
Suggestion: He obligates paying.
Rejection: Two witnesses are required for this!
Suggestion: He obligates an oath.
Rejection: For this he is like two witnesses, i.e. the other party cannot disqualify him!
Answer: He could have obligated money. The case is, the other party accepted to believe the witness like two witnesses.
Question: If so, (in the Mishnah) R. Meir says that he can retract from his acceptance, and Chachamim say that he cannot. Another Mishnah teaches this!
(Mishnah - R. Meir): If one party said 'you may use my father (or your father, or three cattle shepherds) to judge our case', he may retract;
Chachamim say, he may not retract.
(Rav Dimi brei d'Rav Nachman): We discuss accepting his (or his opponent's father) to be one of the judges. (Since he is Pasul mid'Oraisa, R. Meir says that he can retract. The same applies here!)
Answer: They must argue in both cases.
Had they argued only about accepting a father to judge, one might have thought that only there Chachamim say that he cannot retract, for he is valid to judge others, but Chachamim admit that one may retract from accepting one witness like two witnesses (for he is never believed like two);
Had they argued only about believing one witness like two, one might have thought that R. Meir admits that one cannot retract from accepting a father to judge (for he is valid to judge others).
Objection: Since the Reisha of our Mishnah says that he may reject the other's judge (singular), and the Seifa says that he may reject the other's witnesses, surely, it discusses rejecting two witnesses!
Answer #2 (R. Elazar): The case is, a party (Reuven) and one witness (David) are believed to say that the other's (Shimon's) witnesses are invalid.
Objection: Surely, Reuven is not believed. He is Noge'a (partial, he may gain by saying this)!
Answer (Rav Acha brei d'Rav Ika): The case is, Reuven explains why the witnesses are invalid.
Question: What does he say?
Surely, he is not believed to say that they are thieves. He is Noge'a!
Answer: He says that their lineage disqualifies them from testifying (i.e. they are slaves).
R. Meir says that Reuven's testimony is primarily about lineage, and automatically the witnesses are disqualified;
Chachamim say that since his testimony helps himself, he is Noge'a.
Answer #3 (Rav Dimi): The case is, Shimon said that he has two pairs of witnesses;
Version #1 (our text): R. Meir says that Shimon must defend his claim (therefore, Reuven can (Ramah; Tosfos - join David to) disqualify one pair of Shimon's witnesses. Reuven is not Noge'a, for in any case Shimon must bring other witnesses);
Chachamim say, Shimon need not defend his claim. (Therefore, Reuven is Noge'a, and he cannot (join to) disqualify witnesses.)
Version #2 (Rashi): R. Meir says that Shimon need not defend his claim (therefore, Reuven can join to disqualify one pair of Shimon's witnesses, since it suffices for Shimon to bring the other pair of witnesses);
Chachamim say, Shimon must defend his claim (therefore, Reuven cannot join to disqualify witnesses, for this would destroy Shimon's claim, Reuven is Noge'a). (end of Version #2)
All agree that if Shimon never claimed to have two pairs of witnesses, Reuven cannot join to disqualify witnesses.
Question (Rav Ami and Rav Asi): If Shimon has only one pair of witnesses, what is the law (according to R. Meir)?
Question: We said that all agree in this case that Reuven cannot (join to) disqualify witnesses!
Answer: The question is, if one pair of witnesses was later found (undisputedly) to be relatives or invalid witnesses, what is the law?
Version #1 - Rashi - Answer (R. Yochanan or Rav Ashi): We already accepted the testimony of the first witnesses (Reuven and David, who disqualified Shimon's witnesses. Reuven was not Noge'a at the time).
Version #2 - Answer (R. Yochanan or Rav Ashi): We already accepted the testimony of the first witnesses (who testified for Shimon. Since the other pair was disqualified, Reuven is Noge'a, so he cannot (Ramah; Rashi - join to) disqualify the Kosher pair.) (end of Version #2)
Suggestion: R. Meir and Chachamim argue as Rebbi and R. Shimon ben Gamliel argue.
(Beraisa - Rebbi): If Levi says that he has a document and a Chazakah for his land, he must produce the document;
R. Shimon ben Gamliel says, he brings witnesses of Chazakah.
Question: Would R. Shimon ben Gamliel say that the document is not enough?!
Answer: No. He means, he may bring witnesses of Chazakah or the document.
Rejection: Granted, R. Shimon ben Gamliel must hold like Chachamim, but Chachamim could hold like Rebbi;
Rebbi said that one must defend both his claims only regarding a Chazakah based on a document. Here, neither pair of witnesses depends on the other, so he need not defend both claims!