1 came before him [Mar 'Ukba] for trial. But the latter said to them: I am ineligible to try your suit. They answered: What is your opinion; is it as R. Judah's [in the Mishnah]? We can produce a letter from 'the West'2 that the halachah does not rest with R. Judah! He retorted: Am I then stuck to you by a kab of wax?3 I told you that I was disqualified from acting as your judge only because [I knew] that you do not accept court decisions.4
BY 'FRIEND' ONE'S GROOMSMAN IS MEANT. How long [is he regarded as such]? — R. Abba said in R. Jeremiah's name in Rab's name: The whole seven days of the [marriage] feast.5 The Rabbis said on Raba's authority: After the very first day [he is no longer regarded as such].
BY 'ENEMY', ANY MAN etc. Our Rabbis taught; And he was not an enemy;6 then he may give evidence. Again, neither sought his harm;7 then he may be his judge.8 Here we find [the exclusion of] an enemy. Whence is deduced [the exclusion of] a friend? — Read [these texts] thus: And he was not his enemy, nor his friend, — then he may give evidence, neither sought his harm, nor his good, — then he may be his judge. Is then 'his friend' actually stated?9 — But it is a matter of logic. Why is an enemy [excluded]? Because of his disaffection.10 Then a friend too [is ineligible] because of his friendly inclination.11 Now, how do the Rabbis12 interpret this text, And he was not his enemy, neither sought his harm?13 — One [expression] intimates [his unfitness to be] a judge;14 the other they interpret as has been taught: R. Jose son of R. Judah said, And he was not his enemy, neither sought his harm; from this we deduce that two scholars who hate each other may not sit together as judges.
MISHNAH. HOW ARE THE WITNESSES EXAMINED? — THEY ARE BROUGHT INTO A ROOM,15 AND AWE IS INSTILLED INTO THEM.16 THEN THEY ARE SENT OUT,17 SAVE FOR THE OLDEST [WITNESS] TO WHOM THEY [THE JUDGES] SAY, TELL US, HOW DOST THOU KNOW THAT SO AND SO OWES [MONEY] TO SO AND SO? IF HE ANSWERS: HE PERSONALLY TOLD ME: 'I OWE HIM [THE MONEY],' OR, 'SO AND SO TOLD ME THAT HE OWES HIM,' HIS STATEMENT IS WORTHLESS,18 UNLESS HE DECLARES, 'IN OUR PRESENCE,19 HE ADMITTED TO HIM THAT HE OWES HIM TWO HUNDRED ZUZ.'20 AFTER THAT THE SECOND WITNESS IS ADMITTED AND SIMILARLY EXAMINED. IF THEIR STATEMENTS TALLY, THEY [THE JUDGES] PROCEED TO DISCUSS THE CASE. SHOULD TWO FIND HIM NOT LIABLE AND ONE LIABLE, HE IS DECLARED NOT LIABLE; TWO LIABLE, AND ONE NOT LIABLE, HE IS DECLARED LIABLE; ONE LIABLE, AND ONE NOT LIABLE, OR TWO EITHER NOT LIABLE OR LIABLE, WHILE THE THIRD IS UNDECIDED,21 THE NUMBER OF JUDGES IS INCREASED.
AND WHENCE DO WE KNOW THAT HE [ONE OF THE JUDGES] WHEN LEAVING, MUST NOT SAY, 'I WAS FOR ACQUITTAL WHILST MY COLLEAGUES WERE FOR CONVICTION, BUT WHAT COULD I DO, SEEING THAT THEY WERE IN THE MAJORITY?' — OF SUCH A ONE IS IT WRITTEN: THOU SHALT NOT GO ABOUT AS A TALEBEARER AMONG THY PEOPLE,24 AND AGAIN, HE THAT GOETH ABOUT AS A TALEBEARER REVEALETH SECRETS.25
GEMARA. How are they26 cautioned? Rab Judah said: We admonish them thus: As vapours and wind without rain, so is he that boasteth himself of a false gift.27 Raba remarked: They might say [inwardly]: Though a famine last seven years it does not pass the artisan's gate.28 But, said Raba, this is what is said to them: As a maul and a sword and a sharp arrow, so is a man that beareth false witness against his neighbour.29 R. Ashi demurred: They might say: Though a plague last seven years, no one dies before his time! But, said R. Ashi, Nathan b. Mar Zutra told me, We warn them thus: False witnesses are despised [even] by their own employers, as it is written, And set two men, base fellows, before him, and let them bear witness against him, saying, Thou didst curse God and the King.30
IF HE ANSWERS, HE [PERSONALLY] TOLD ME: I OWE HIM [THE MONEY];' OR, 'SO AND SO TOLD ME THAT HE OWES HIM,' HIS STATEMENT IS WORTHLESS, UNLESS HE DECLARES, 'IN OUR PRESENCE HE ADMITTED THAT HE OWES HIM TWO HUNDRED ZUZ. This31 supports Rab Judah. For Rab Judah said in Rab's name: One must definitely instruct them [those who witness a transaction]: Ye are my witnesses.32 It has been stated, likewise: R. Hiyya b. Abba said in R. Johanan's name. [If A says to B,] 'You owe me a maneh',33 and B admits it; and if he demands it from him the following day, and B answers, 'I was only jesting with you,'34 he is not liable.35 So also it has been taught: [If A says to B,] 'You owe me a maneh'; and B answers, 'Yes, it is so;' but on the following day, when the former demands it, the latter replies. 'I was but jesting with you,' he is not liable. Moreover, if he hid witnesses behind a fence and said to him: 'You owe me a maneh', and B answered, 'Yes;' and A added, 'Are you willing to make this admission in the presence of so and so?' And he replied: 'I am afraid to do so, lest you compel me to go to court;' and if on the following day, on his [A's] demanding it from him, B retorts; 'I was only jesting with you', he is not liable. But we do not plead [thus] on behalf of a Mesith.36 Mesith? Who mentioned him?37 — The text is defective, and should read thus: If he himself did not plead [this],38 we do not plead it for him. But in capital charges, even if he himself does not plead,39 we plead on his behalf. Yet no such plea is made on behalf of a Mesith. Wherein does a Mesith differ? — R. Hama b. Hanina said: I heard it said in a lecture40 by R. Hiyya b. Abba: A Mesith is different, because the Divine Law states, Neither shall thine eyes pity him; neither shalt thou conceal him.41
R. Samuel b. Nahman said in R. Jonathan's name: Whence do we know that we do not plead on behalf of a Mesith? — From the [story of] the ancient serpent.42 For R. Simlai said: The serpent had many pleas to put forward but did not do so. Then why did not the Holy One, blessed be He, plead on its behalf? — Because it offered none itself. What could it have said [to justify itself?] — 'When the words of the teacher and those of the pupil [are contradictory], whose words should be hearkened to; surely the teacher's!'43
Hezekiah said: Whence do we know that he who adds [to the word of God] subtracts [from it]? — From the verse, God hath said, Ye shall not eat of it neither shall ye touch it.44
Abaye said: The above ruling47 holds good only if he says: 'I was only joking with you'; but if he pleads:
1 he is adjudged a confirmed liar.2 R. Papa the son of R. Aha b. Adda said to him: Thus we say on the authority of Rab; People do not remember aimless words.3
A man once hid witnesses against his neighbour behind the curtains of his bed, and said to him: 'You owe me a maneh'. 'Yes', he replied. 'May all present, whether awake or asleep be witnesses against you? he asked4 'No', was the reply. R. Kahanah [before whom the trial was brought] observed; Surely he answered, No!5
A man hid witnesses against his neighbour in a grave, and then said to him: 'you owe me a maneh. 'Yes' he answered. 'Shall the living and the dead be witnesses against you?' 'No', he retorted. Said R. Simeon [b. Lakish]: Surely he answered, No!6
Rabina, or some say R. Papa, said: We may infer from the above, that the dictum of Rab Judah in Rab's name, viz., One must definitely instruct them: 'You are my witnesses,' holds good no matter whether the debtor says it, or the creditor says it while the debtor remains silent. For it7 is only because the debtor said, 'no'.8 but had he kept silent, it would indeed have been so.9
A certain man was nicknamed, 'A kab-ful of indebtedness.' [On hearing the name,] he exclaimed: 'To whom do I owe anything but to so and so and so and so?' Thereupon they summoned him before R. Nahman. Said he: A man is wont to disclaim abundance [of wealth].10
A certain man was nicknamed, 'The mouse lying on the denarii.'11 Before he died, he declared: 'I owe money to so and so and to so and so.' After his death they summoned his heirs before R. Ishmael son of R. Jose. Said he to them:12 The dictum, 'A man is wont to disclaim abundance [of wealth],' holds good only in life, but not in death.13 They paid half, and were summoned for the other half, before R. Hiyya. Said he to them: Just as one is wont to disclaim his own abundance [of wealth], so he is likely to disclaim it for his children.14 Thereupon they [the plaintiffs] asked: 'Shall we return [the half we have already received]?' R. Hiyya replied: The Zaken15 has already given his ruling.16
If a man admitted [a claim] in the presence of two witnesses, and they confirmed this by Kinyan,17 they may indite [a note],18 if not, they may not do so.19 [If he admitted] it in the presence of three, and they made no Kinyan: Rab [Ammi]20 said, They may write a note;21 R. Assi ruled, They may not. There was a case once where Rab took into consideration R. Assi's ruling.
R. Adda b. Ahabah said: Sometimes a deed of acknowledgment22 may be drawn up; sometimes it may not. If they [the witnesses] merely happened to be assembled [when he made the admission,] it may not be drawn up; but if he [the debtor] called them together, it is to be drawn up. Raba said: Even then it may not be indited, unless he definitely told them, 'Be you my judges.'23 Mar son of R. Ashi said: Even then, it may not be drawn up, unless the [necessary] meeting place is fixed and he [the debtor] is summoned to appear before the court.24
If a man admitted a claim of movable property, and they [the witnesses] secured a formal title from him, they may record it; but not otherwise. But what if it concerned real estate, and they secured no formal title? — Amemar said: They may not record it. Mar Zutra said: They may. The law is that a deed is to be drawn up.25
Rabina once happened to be at Damharia,26 and R. Dimi son of R. Huna of that town asked him: What of movable property which is still intact [i.e., in the possession of the debtor]? — He answered: It ranks as real estate.27 R. Ashi, however, ruled: Since it still needs collection, it is not so.
A certain deed of [debt] acknowledgment did not contain the phrase: 'He said unto us, Write it, attest it and give it to him [the creditor].'28 Abaye and Raba both said: This case comes under the ruling of Resh Lakish, who said: We may take it for granted that witnesses will not sign a document unless he [the vendor] has attained his majority.29 R. Papi — others say, R. Huna the son of R. Joshua — objected: Can there be anything which we [the judges] do not know, and yet the clerks of the court know?30 But in fact when the clerks of Abaye's court were questioned, they were found to know this law, and similarly the clerks of Raba's court.31
A certain deed of acknowledgment contained the phrase; 'A memorial of judicial proceedings,'32
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