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Sanhedrin veha’Onashin haMesurin lahem - Chapter 23

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Sanhedrin veha’Onashin haMesurin lahem - Chapter 23

1Deuteronomy 16:19 states: “Do not take a bribe.” Needless to say, this command applies if the intent is to pervert judgment.1 The verse is teaching that it is forbidden for a bribe to be given even to vindicate the just and to obligate the one who is liable. In such an instance, the judge transgresses a negative commandment.2 Such a person is included in the malediction, Deuteronomy 27:25: “Cursed by he who takes a bribe.”א"לֹא תִקַּח שֹׁחַד" (דברים טז, יט). אֵין צָרִיךְ לוֹמַר לְעַוֵּת אֶת הַדִּין; אֶלָא אַפִלּוּ לְזַכּוֹת אֶת הַזַּכַּאי וּלְחַיֵּב אֶת הַחַיָּב - אָסוּר, וְעוֹבֵר בְּלֹא תַעֲשֶׂה. וַהֲרֵי הוּא בִּכְלַל "אָרוּר לֹקֵחַ שֹׁחַד" (דברים כז, כה).
He is required to return the bribe if he is demanded to by the giver.3וְחַיָּב לְהַחֲזִיר הַשֹּׁחַד כְּשֶׁיִּתְבְּעֶנּוּ הַנּוֹתֵן.
2Just as the recipient transgresses a negative commandment; so, too, does the giver, as Leviticus 19:14 states: “Do not place a stumbling block before the blind.”4בוּכְשֵׁם שֶׁהַלּוֹקֵחַ עוֹבֵר בְּלֹא תַעֲשֶׂה, כַּךְ הַנּוֹתֵן, שֶׁנֶּאֱמַר "וְלִפְנֵי עִוֵּר לֹא תִתֵּן מִכְשֹׁל" (ויקרא יט, יד).
3Any judge who sits and seeks to amplify his reputation in order to cause the wages of his attendants and scribes to be enhanced5 is included among those who seek after profit. This is what the sons of Samuel did. Hence I Samuel 8:3 describes them as being “inclined to profit and taking bribery.”6גכָּל דַּיָּן שֶׁיּוֹשֵׁב וּמְגַדֵּל מַעֲלָתוֹ, כְּדֵי לְהַרְבּוֹת שָׂכָר לְחַזָּנָיו וּלְסוֹפְרָיו - הֲרֵי הוּא בִּכְלַל הַנּוֹטִים אַחֲרֵי הַבֶּצַע. וְכֵן עָשׂוּ בְּנֵי שְׁמוּאֵל. וּלְכַּךְ נֶאֱמַר בָּהֶם "וַיִּטּוּ אַחֲרֵי הַבָּצַע וַיִּקְחוּ שֹׁחַד" (שמואל א ח, ג).
The above applies not only to a bribe of money, but a bribe of all things.7וְלֹא שֹׁחַד מָמוֹן בִּלְבַד, אֶלָא אַפִלּוּ שֹׁחַד דְּבָרִים.
An incident occurred concerning a judge who stood up in a small boat, as he was crossing a river.8 A person extended his hand and helped him as he was standing. Later that person came before the judge with a case. The judge told him: “I am unacceptable to serve as a judge for you.”וּמַעֲשֶׂה בְּדַיָּן שֶׁהָיָה עוֹלֶה בְּדוּגִית קְטַנָּה לַעֲבֹר בַּנָּהָר, וּפָשַׁט אֶחָד יָדוֹ וְסִיְּעוֹ בַּעֲלִיָּתוֹ, וְהָיָה לוֹ דִּין, וְאָמַר לוֹ הַדַּיָּן 'הֲרֵינִי פָּסוּל לְךָ לַדִּין'.
Another incident took place where a person removed a feather from a fowl from a judge’s scarf and another person covered some spittle that was lying before the judge and the judge told them: “I am unacceptable to serve as a judge for you.”וּמַעֲשֶׂה בְּאֶחָד שֶׁהֶעֱבִיר אֶבְרָה שֶׁל עוֹף מֵעַל רְדִיד הַדַּיָּן, וְאַחֵר כִּסָּה רֹק מִלִּפְנֵי הַדַּיָּן, וְאָמַר לוֹ 'הֲרֵינִי פָּסוּל לְךָ לַדִּין'.
Another incident took place concerning a person who brought one of the presents given to priests9 to a judge who as a priest. The judge told him: “I am unacceptable to serve as a judge for you.”וּמַעֲשֶׂה בְּאֶחָד שֶׁהֵבִיא מַתָּנָה מִמַּתְּנוֹת כְּהֻנָּה לְדַיָּן כֹּהֵן, וְאָמַר לוֹ 'פָּסוּל אֲנִי לְךָ לַדִּין'.
And another incident took place concerning a sharecropper of a field belonging to a judge who would bring him figs from his field every Friday. Once he came earlier and brought him the figs on Thursday, because he had a judgment over which he desired that the judge preside. The judge told him: “I am unacceptable to serve as a judge for you.”וּמַעֲשֶׂה בְּאָרִיס אֶחָד שֶׁל דַיָּן שֶׁהָיָה מֵבִיא לוֹ תְּאֵנִים מִתּוֹךְ שָׂדֵהוּ מֵעֶרֶב שַׁבָּת לְעֶרֶב שַׁבָּת. פַּעַם אַחַת הִקְדִּים וְהֵבִיא בַּחֲמִישִׁי בַּשַּׁבָּת, מִפְּנֵי שֶׁהָיָה לוֹ דִּין. וְאָמַר לוֹ הַדַּיָּן 'הֲרֵינִי פָּסוּל לְךָ לַדִּין'.
This applies although the figs belonged to the judge. Since he brought them earlier than the ordinary time, that favor caused him to be disqualified as a judge.אַף עַל פִּי שֶׁהַתְּאֵנִים מִשֶׁל דַיָּן, הוֹאִיל וֶהֱבִיאָן שֶׁלֹּא בִּזְמַנּוֹ, נִפְסַל לוֹ לַדִּין.
4Whenever a judge borrows an article, he is unacceptable to serve as a judge for the person who lent him the article.10דכָּל דַּיָּן שֶׁשּׁוֹאֵל שְׁאֵלָה, פָּסוּל לָדוּן לְזֶה שֶׁהִשְׁאִילוֹ.
When does the above apply? When the judge does not have articles to lend him in return. If, however, the judge possesses articles to lend in return, it is acceptable for him to serve as a judge, for that person will also borrow from him.11בַּמֶּה דְּבָרִים אֲמוּרִים? בְּשֶׁלֹּא הָיָה לַדַּיָּן לְהַשְׁאִיל. אֲבָל הָיָה לוֹ לְהַשְׁאִיל - כָּשֵׁר, שֶׁהֲרֵי גַּם זֶה שׁוֹאֵל מִמֶּנּוּ.
5Whenever a judge takes a wage for adjudicating a case,12 his judgments13 are nullified. This applies only when it is not evident that he is receiving compensation for losing his wages.14הכָּל דַּיָּן שֶׁנָּטַל שְׂכָרוֹ לָדוּן - דִּינָיו בְּטֵלִים. וְהוּא, שֶׁלֹּא יִהְיֶה שָׂכָר הַנִּכָּר.
If, however, he was involved in his profession and two people came to him for a judgment and he told them: “Provide me with a person who will work instead of me and I will adjudicate your case or pay me for the wages that I will forfeit,” this is permitted.15אֲבָל אִם הָיָה עוֹסֵק בִּמְלַאכְתּוֹ וּבָאוּ לְפָנָיו שְׁנַיִם לַדִּין, וְאָמַר לָהֶן 'תְּנוּ לִי מִי שֶׁיַּעֲשֶׂה תַּחְתָּי עַד שֶׁאָדוּן לָכֶם, אוֹ תְּנוּ לִי שְׂכַר בַּטָּלָתִי' - הֲרֵי זֶה מֻתָּר.
This leniency is permitted provided it is evident that the wage is merely in lieu of his hire, but no more, and he takes equal payment from both of the litigants, receiving payment from each one in the presence of the other.16וְהוּא שֶׁיִּהְיֶה הַדָּבָר נִכָּר שֶׁהוּא שְׂכַר הַבַּטָּלָה בִּלְבַד וְלֹא יוֹתֵר, וְיִטֹּל מִשְּׁנֵיהֶם בְּשָׁוֶה זֶה בִּפְנֵי זֶה - כְּגוֹן זֶה מֻתָּר.
6A judge may not17 adjudicate the case of a friend. This applies even if the person is not a member of his wedding party18 or one of his more intimate companions.ואָסוּר לַדַּיָּן לָדוּן לְמִי שֶׁהוּא אוֹהֲבוֹ, אַף עַל פִּי שֶׁאֵינוֹ שׁוֹשְׁבִינוֹ וְלֹא רֵעוֹ אֲשֶׁר כְּנַפְשׁוֹ.
Similarly, he may not adjudicate the case of one he hates. This applies even if the person is not his enemy and one whose misfortune he seeks. Instead, the two litigants must be looked upon equally in the eyes and in the hearts of the judges.וְלֹא לְמִי שֶׁשּׂוֹנְאֵהוּ, אַף עַל פִּי שֶׁאֵינוֹ אוֹיֵב לוֹ וְלֹא מְבַקֵּשׁ רָעָתוֹ. אֶלָא צָרִיךְ שֶׁיִּהְיוּ שְׁנֵי בַּעֲלֵי דִּינִין שָׁוִין בְּעֵינֵי הַדַּיָּנִים, וּבְלִבָּם.
If the judge does not know either of them and is not familiar with their deeds, this is the fairest judgment that could be.וְאִם לֹא הָיָה מַכִּיר אֶת אֶחָד מֵהֶם, וְלֹא מַעֲשָׂיו - אֵין לְךָ דִּין צֶדֶק כָּמוֹהוּ.
7Whenever two Torah scholars hate each other, they are forbidden to act as judges together.19 For this will lead to a contorted judgment. The hatred each one of them bears for the other will cause him to overturn his colleague’s words.זכָל שְׁנֵי תַּלְמִידֵי חֲכָמִים שֶׁשּׂוֹנְאִים זֶה אֶת זֶה - אֲסוּרִין לֵישֵׁב בַּדִּין זֶה עִם זֶה, שֶׁדָּבָר זֶה גּוֹרֵם לִיצִיאַת מִּשְׁפָּט מְעֻקָּל, מִפְּנֵי הַשִּׂנְאָה שֶׁבֵּינֵיהֶן דַּעַת כָּל אֶחָד נוֹטָה לִסְתֹּר דִּבְרֵי חֲבֵרוֹ.
8A judge should always see himself as if a sword is drawn on his neck20 and Hell is open before him.21 חלְעוֹלָם יִרְאֶה הַדַּיָּן עַצְמוֹ כְּאִלּוּ חֶרֶב מֻנַּחַת לוֹ עַל צַוָּארוֹ, וְגֵיהִנָּם פְּתוּחָה לוֹ מִתַּחְתָּיו.
He should know who he is judging,22 before Whom he is judging, and Who will ultimately exact retribution from him if he deviates from the path of truth, as indicated by Psalms 82:1: “God stands among the congregation of the Almighty.” And II Chronicles 19:6 states: “See what you are doing. For you are not judging for man’s sake, but for God’s.”23וְיֵדַע אֶת מִי הוּא דָּן, וְלִפְנֵי מִי הוּא דָּן, וּמִי עָתִיד לְהִפָּרַע מִמֶּנּוּ אִם נָטָה מִקַּו הָאֱמֶת, שֶׁנֶּאֱמַר "אֱלֹהִים נִצָּב בַּעֲדַת אֵל" (תהילים פב, א), וְאוֹמֵר "רְאוּ מָה אַתֶּם עֹשִׂים כִּי לֹא לְאָדָם תִּשְׁפְּטוּ כִּי אִם לַה'" (ראה דברי הימים ב יט, ו).
9Whenever a judge does not render a genuinely true judgment, he causes the Divine presence to depart from Israel.טכָּל דַּיָּן שֶׁאֵינוֹ דָּן דִּין אֱמֶת לַאֲמִתּוֹ - גּוֹרֵם לַשְּׁכִינָה שֶׁתִּסְתַּלֵּק מִיִּשְׂרָאֵל.
Whenever a judge expropriates money from one litigant and gives it to the other unlawfully, God exacts retribution from his life, as Proverbs 22:23 states: “He will exact payment from the soul of one who exacts payment.”וְכָל דַּיָּן שֶׁנּוֹטֵל מָמוֹן מִזֶּה וְנוֹתְנוֹ לְזֶה שֶׁלֹּא כַּדִּין - הַקָּדוֹשׁ בָּרוּךְ הוּא גּוֹבֶה מִמֶּנּוּ נְפָשׁוֹת, שֶׁנֶּאֱמַר "וְקָבַע אֶת קֹבְעֵיהֶם נָפֶשׁ" (משלי כב, כג).
Conversely, when a judge adjudicates a case in a genuinely true manner for even one moment, it is as if he has corrected the entire world and he causes the Divine Presence to rest within Israel, as implied by the verse: “God stands among the congregation of the Almighty.”וְכָל דַּיָּן שֶׁדָּן דִּין אֱמֶת לַאֲמִתּוֹ, אַפִלּוּ שָׁעָה אַחַת - כְּאִלּוּ תִּקֵּן אֶת כָּל הָעוֹלָם כֻּלּוֹ, וְגוֹרֵם לַשְּׁכִינָה שֶׁתִּשְׁרֶה בְּיִשְׂרָאֵל, שֶׁנֶּאֱמַר "אֱלֹהִים נִצָּב בַּעֲדַת אֵל" (תהילים פב, א).
If a judge will ask: “Why should involve myself in this difficulty?” He should know that it is written: II Chronicles, loc. cit.: “He is with you in the matter of judgment.” Nor should the judge worry about erring. A judge may only base his judgment on what his eyes see.וְשֶׁמָּא יֹאמַר הַדַּיָּן 'מַה לִי וְלַצָּרָה הַזֹּאת'? תַלְמוּד לוֹמַר "וְעִמָּכֶם בִּדְבַר מִשְׁפָּט" (דברי הימים ב יט,ו) - אֵין לַדַּיָּן אֶלָא מַה שֶׁעֵינָיו רוֹאוֹת.
10At the outset, a judge should always look upon the litigants24 as if they were wicked and operate under the presumption that both of them are lying. He should adjudicate according to his perception of the situation.ילְעוֹלָם יִהְיוּ בַּעֲלֵי הַדִּין לְפָנֶיךָ כִּרְשָׁעִים, וּבְחֶזְקַת שֶׁכָּל אֶחָד מֵהֶן טוֹעֵן שֶׁקֶר, וְדוּן לְפִי מַה שֶׁתִּרְאֶה מִן הַדְּבָרִים.
When they depart, having accepted the judgment, he should view them both as righteous, seeing each of them in a favorable light.25וּכְשֶׁיִּפָּטְרוּ מִלְּפָנֶיךָ, יִהְיוּ בְּעֵינֶיךָ כְּצַדִּיקִים שֶׁקִּבְּלוּ עֲלֵיהֶם אֶת הַדִּין, וְדוּן כָּל אֶחָד מֵהֶם לְכַף זְכוּת.

Quiz Yourself on Sanhedrin veha’Onashin haMesurin lahem - Chapter 23

Footnotes
1.

For that is forbidden. under all circumstances as stated in Chapter 20, Halachah 6.
See also Hilchot Teshuvah 4:3 which states that taking a bribe to pervert judgment is one of the transgressions for which it is impossible to achieve full-hearted repentance.
When a person receives payment - or even a favor - from another person, he will be predisposed to support him in his claim. We are not speaking necessarily about a conscious desire to act on that person’s behalf. Instead, the intent is that in the judge’s unconscious - in his cognitive processes over which he does not usually exercise control - there will be a motivation to help his benefactor. This is. the rationale for all the stringencies the Rambam mentions in Halachah 3.

2.

Sefer HaMitzvot (negative commandment 274) and Sefer HaChinuch (mitzvah 83) count this as one of the 613 mitzvot of the Torah.

3.

As a source, the commentaries cite I Samuel 12:3 which relates that Samuel told the people: “From whom have I taken money that I will turn my eyes away from him? [Tell me,] and I will make restitution.” See also the Minchat Chinuch (mitzvah 83) who writes that even if the giver does not demand restitution, the judge is obligated to return it.

4.

As the Rambam states in Hilchot Rotzeach 12:14, this prohibition forbids placing moral stumbling blocks in a person’s path.

5.

I.e., even though he does not take the profit for himself, causing his attendants to be rewarded is also considered as resembling receiving bribery.

6.

Shabbat 56a offers this interpretation of Scripture’s words of censure.

7.

We have offered an interpretation of the Hebrew term devarim that fits the examples cited by the Rambam. It must, however, be noted that the term devarim can also be interpreted as meaning “words.” The Sefer Me’irat Einayim 9:4 explains that words- e.g., giving a judge a greeting when one would not ordinarily do so, praising him, or speaking on his behalf - can also be considered a bribe, just as it can be considered as interest (see Hilchot Malveh ViLoveh 5:12).

8.

All these examples are cited in Ketubot 105b. The Kessef Mishneh states that according to the Rambam, all the examples that follow reflect conduct mandated by law. They are not merely illustrations of pious behavior that would be desirable to emulate, as suggested by Tosafot, Sanhedrin 8a.

9.

E.g., Terumah, the offering of grain given to the priests, challah, a portion of dough, or the first of a sheep’s shearings. See Hilchot Bikkurim, Ch. 1, where the 24 presents given the priests are mentioned.

10.

We fear that the fact that the judge borrowed from the lender will cause him to feel indebted to him and hence - knowingly or unknowingly - show favoritism to him.
The Ramah (Choshen Mishpat 9:1) states that this applies in a situation when the judge borrows from the person frequently. Borrowing from him only on occasion is not considered a significant enough factor to have him disqualified as a judge.

11.

Thus there is no sense of the judge being indebted to the lender. For one favor will be repaid by another favor.

12.

He may, however, accept a wage for negotiating a compromise (Siftei Cohen 9:7).

13.

I.e., not only the judgment for which he took a wage, but all of his previous judgments are also nullified (Rabbenu Nissim in his gloss to Kiddushin, Ch. 2). The Shulchan Aruch (Choshen Mishpat 9:5) quotes this concept as law.

14.

Compare to Hilchot Gezelah ViA vedah 12:4.

15.

Ketubot 105a cites the examples of the Sages Karna and Rav Huna who would conduct themselves in this manner.
In his gloss to Hilchot Talmud Torah 3:10, the Kessef Mishneh states that if the judge has no profession other than this, he may be paid a salary. For were he not to accept work as a judge, he would have to find another profession. On the basis of this rationale, from the Talmudic age onward, communities have paid judges salaries from communal funds even though the judges have no other professions.

16.

For if one pays the judge outside the other’s presence, the other litigant may think that the one paid the other more as a bribe. Alternatively, the one paying may think that the judge is taking payment only from him (Kessef Mishneh).

17.

The Radbaz states that from the Talmudic sources (Ketubot 105b; Sanhedrin 27b), it appears that although it is forbidden for a judge to adjudicate such cases, if he violates this prohibition and acts as a judge, his judgment is binding. He maintains that the Rambam’s linking of this issue with bribery indicates, however, that he maintains that the judgment is unacceptable. This is also indicated by the Rambam’s wording in his Commentary to the Mishnah (Sanhedrin 3:5). The Beit Yosef and the Ramah (Choshen Mishpat 7:7), however, follow the initial view.

18.

It was customary for a person to invite his closest friends to share in his wedding celebrations with him. See Hilchot Zechiyah UMatanah, ch. 7, where the Aramaic term the Rambam uses, shushvinin, is discussed.

19.

The Bayit Chadash (Choshen Mishpat 8) rules that if the two judges truly hate each other, the judgment is not binding, even after the fact.

20.

The Rambam follows Rabbenu Yitzchak Alfasi’s version of Sanhedrin 7a. The standard printed text follows a slightly different version.

21.

The sword refers to retribution that is exacted in this world, and Hell to retribution exacted in the world to come (Sefer Me’irat Einayim 8:7-8).

22.

For every Jew has a soul which is an actual part of God.

23.

This was part of the charge King Yehoshafat administered to the judges whom he appointed.

24.

I.e., even if the litigant is a person of stature, the judge must regard him with suspicion and scrutinize his statements carefully.

25.

I.e., even when he holds a person liable, he should not view him as wicked, but rather a person who committed a misdeed inadvertently, for various reasons.

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
Download Rambam Study Schedules: 3 Chapters | 1 Chapter | Daily Mitzvah
Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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Vowelized Hebrew text courtesy Torat Emet under CC 2.5 license.
The text on this page contains sacred literature. Please do not deface or discard.