by R. Gil Student
I.The Ludmir Decision
In 16th century Poland, leading rabbis debated whether a single rabbi, a Torah giant, can effectively resolve a monetary dispute. In general, a religious court requires at least three judges. However, the Gemara (Sanhedrin 5a) says that a single expert can resolve monetary cases. While the Tur (Choshen Mishpat 3) says that according to his father, the Rosh, this means that the expert serves as a court, Rambam (Mishneh Torah, Hilkhos Sanhedrin 5:18) disagrees. According to Rambam, an expert resolves the matter but does not stand in for a court. Therefore, confession to, or denial of, a debt in front of this single expert does not invoke the Torah rules familiar from the Talmud, such as modeh be-miktzas (confessing to part of a debt) or hoda’as ba’al din (confession by one of the litigants).
In approximately 1547, one litigant (“Shimon”) bought a region’s liquor monopoly for three years from the local nobleman. Before the three years were done, someone else (“Reuven”) bought the monopoly for the next three years for a higher price. Shimon complained that Reuven elbowed into his territory and stole his livelihood. The two litigants agreed to have their dispute adjudicated by the rabbi of Ludmir. Rav Yitzchak ben Betzalel of Ludmir, whose grandson is known as the Taz, was the chief rabbi of the region and a leading Torah scholar of the time. Maharshal sent two of his responsa (nos. 1 & 15) to Rav Yitzchak for approval. Both litigants agreed that Rav Yitzchak would judge the case by himself, serving as a court by himself. Rav Yitzchak ruled that Shimon can retain the monopoly. Additionally, since Reuven raised the price, he must compensate Shimon for the extra cost.
Reuven was not satisfied with this conclusion and sent the case to Maharshal, Rav Shlomo Luria. Maharshal does not mention the name of the original rabbi (which we know from elsewhere) but strongly disagrees. In fact, he wrote such a lengthy treatise that it is divided into two in his published responsa (nos. 35 & 36). Maharshal is famous for his harsh critiques, even of leading Torah scholars whom he otherwise seems to have held in high esteem.
II. Never Judge Alone
In responsum 35, Maharshal discusses whether a single rabbi can serve as a judge on a monetary case. Maharshal points out that the original rabbi violates the dictum in Pirkei Avos (4:11): “Judge not alone, for none may judge alone except One.” Rambam (Commentary, ad loc.) explains that this does not contradict the Gemara above which says that an expert can judge monetary matters alone because this is advice not to do so, even though technically it is allowed. Maharshal criticizes Rav Yitzchak for failing to heed this advice.
A key element of disagreement is Rav Moshe of Coucy’s discussion of this subject in his Semag (Aseh 97). Semag says that the guidance not to judge alone even applies to an expert. Maharshal deduces from this that even when the litigants accept a single judge and agree to follow his decision, the judge is wrong to adjudicate the case. Because Semag says that the advice applies even to an expert, that means he believes it also applies to a single inexpert judge. How can an inexpert judge rule? Only if the litigants agree to follow his decision. Even then, he is advised not to judge alone. From there we see that acceptance of the litigants, even for an expert, does not remove the need for additional judges in the court. (Maharshal continues to address at great length this case, concluding in Reuven’s favor. Due to space considerations, we will have to address the details a different time.)
III. Expert and Inexpert Judges
Maharshal sent his treatise to Rav Yosef Katz, the author of She’eris Yosef whose sister married the Rema a few years after this incident. Rav Katz agrees with Maharshal’s conclusion but very little of his argumentation. In particular, Rav Katz disagrees with Maharshal’s reading of Semag. The fact that an inexpert judge rules on a case does not mean that the litigants knowingly accepted his authority. Quite the opposite, if people explicitly accept an arbitrator, of course he has the right to follow their wishes and they, in turn, have to follow his decision regardless of his expertise. That is the nature of their agreement. But in an ordinary case in which litigants go to a religious court for a ruling, one rabbi — whether expert or not — should gather a court of (at least three) rather than rule alone.
Shakh (Choshen Mishpat 3:10) quotes these responsa and argues in favor of Rav Yosef Katz’s view based on a story in the Talmud Yerushalmi (Sanhedrin 1:1). Rabbi Abahu used to sit at the gates of Caesaria and judge cases alone. His students asked him from the above Mishnah and he answered that the litigants see him sitting alone and accept him as a single judge. From here, Shakh deduces that an expert may judge alone if the litigants accept him. However, he adds that nowadays we do not have experts so no one should judge alone unless the matter is simple or the litigants explicitly say they want an arbitration ruling and not a Torah ruling.
Ketzos Ha-Choshen (ad loc., 4) believes a judge should never rule alone. He explains that, as discuss above from Rambam, the rules of confession to, or denial of, a debt do not apply in front of a single judge. In fact, litigants can change their claims multiple times in front of a single judge without acquiring the status of a liar. Therefore, we should always follow the Mishnah’s advice note to judge alone.