8. If the house fell down on a man and his father, or upon a man and any from whom he inherits, and he was liable for his wife’s Ketubah or to a creditor, the father’s heirs may say, ‘The son died first and the father died afterward’, and the creditors may say, ‘The father died first and the son died afterward’. The School of Shammai say: Let the claimants share. The School of Hillel say: The property falls to the heirs.
9. If the house fell down on a man and his 'wife, the husband’s heirs may say, ‘The wife died first and the husband died afterward’,10 and the wife’s heirs may say, ‘The husband died first and the wife died afterward’. The School of Shammai say: Let the claimants share. The School of Hillel say: The property falls to the heirs — the Ketubah to the husband’s heirs and the property that comes in and goes out with her to her father’s heir’s.11 10. If the house fell down on a man and his mother, they agree that the claimants must share. R. Akiba said: I agree here12 that the property falls 4 i.e. they were sinners, deserving of a curse, and they were punished by the rule being waived to their detriment. 7 As an act of assignment. 8 See Shab. 7*.
10 Therefore the husband's heirs inherit the wife’s property. 11 Cf. Yeb. 4’; Ket. 8*.
11 With what the School of Hillel decided in the preceding cases.
FOURTH DIVISION: NEZIKIN to the heirs. Ben Azzai said to him: We already grieve over those things wherein they differ; but thou art come to bring dissension over that wherein they agree!
10. 1. An unfolded document has the signatures within1 [the single page]; a folded2 document has the signatures behind [each fold]. If in an unfolded document its witnesses signed behind, or if in a folded document its witnesses signed within, they are invalid. R. Hanina b. Gamaliel says: If in a folded document its witnesses signed W'ithin, it is valid, since it can be made into an unfolded document. Rabban Simeon b. Gamaliel says: Everything should follow local custom.
2. An unfolded document requires two witnesses; a folded one three. If an unfolded document has but one witness or a folded one but two, both are invalid. If there was written in a bond of indebtedness, ‘100 zuz which are 20 selas ’,3 the creditor can claim only 20 selas; and if ‘100 zuz which are 30 selas’, he can claim only 100 zuz. [If there was written therein,] ‘Silver zuzim which are...’ and the rest was effaced, [he can claim] not less than two zuz; and if ‘silver selas which are...’ and the rest was effaced, [he can claim] not less than two selas; ' dories 4 which are...’ and the rest was effaced, [he can claim] not less than two. If at the top there was written ‘too zuz' and at the bottom ‘200 cue’, or ‘200 zuz' at the topand ‘100 zuz’ at the bottom, everything must follow the bottom figure. Why, then, do they write the upper figure: So that, if a sign of the lower figure was effaced, they can learn from the upper figure.
3. They may write a bill of divorce for the husband even if his wife is not with him, or a quittance5 for the wife even if her husband is not with her, provided that he6 knows them; and the husband must pay the fee. They may write a bond for the debtor even if the creditor is not with him, but they may not write a bond for the creditor unless the debtor is with him; and the debtor must pay the fee. They may write a deed of sale for the seller although the buyer is not with him; but they may not write it for the buyer unless the seller is with him; and the buyer must pay the fee.
4. They may not write deeds of betrothal or marriage save with the consent of both the parties; and the bridegroom must pay the fee. They may not write deeds of tenancy7 save with the consent of both the parties, and he that assumes the tenure must pay the fee. They may not write a deed of arbitration or any document drawn up before the court save with the consent of both the parties, and both must pay the fee. Rabban Simeon b. Gamaliel says: Two documents are written for the two parties, a separate one for each.
5. If a man had paid part of his debt and the bond was placed with a 1 i.e. at the bottom of the single page of writing.
1 One or two lines are written and then the written part is folded over, and a signature endorsed on the back of the fold; one or two more lines are written, and this written portion is similarly folded over and a second signature endorsed on the back of this second fold, and so on until the document is completed. A document so drawn up can never be so short as to require less than three witnesses. If one of the backs of the folds is unsigned it is described as ‘a bald’ document. Cf. Gitt. 8“. * Eighty xux.
5 The receipt for her Ketubah which she delivers to the husband on divorce.
6 The scribe or the witnesses.
7 The Hebrew text gives here the technical terms for the two kinds of lease: one according to which the tenant agrees to give the owner a prescribed proportion of the crop, and the other, according to which he agrees to give a fixed quantity regardless of what may be the resulting crop.
third party,1 and the debtor said to him, ‘If I have not paid thee by such a day, then give him his bond’, and the time came and he had not paid, R. Jose says: He should give it to him. R. Judah says: He should not give it to him.
6. If a man’s bond of indebtedness was effaced he must call the testimony of the witnesses thereto, and come before the court, and they draw up for him this attestation: ‘Such-a-one, son of such-a-one, his bond was effaced on such a day, and such-a-one and such-a-one are witnesses to what was contained therein’. If a man has paid part of his debt, R. Judah says: He should change the bond for another. R. Jose says: He should write him out a quittance. R. Judah said: Then he must needs guard his quittance, too, from the mice. R. Jose answered: Thus it is good for him2 * and no ill is done to the rights of the other.5 7. If there were two brothers, the one poor and the other rich, and their father left them a bath-house or an olive-press, and he had made them such as to let out for hire, the hire is to their common advantage; but if he had made them for his own use alone, the rich brother may say to the poor brother, ‘Buy thee slaves that they may clean out the bath-house’, or ‘Buy thee olives and prepare them in the olive-press’. If there were two in the same town and the name of the one was Joseph ben Simon and the name of the other was Joseph ben Simon, neither can bring forth a bill of in¬ debtedness against the other, and another person cannot bring forth a bill of indebtedness against them; and if some person finds among his documents [one wherein it is said] ‘The bond of Joseph ben Simon is discharged’, the bonds of them both are discharged. What should they do? They should write their names [and their fathers’ names] to the third generation, and if the names of the three generations were alike, they should give themselves a descriptive name, and if their descriptive names were alike they should write ‘Cohen’ [or ‘Levite’]. If a man said to his son, ‘One of my bonds is discharged but I do not know which’, then all are deemed discharged; or if two bonds were found pertaining to the one debtor, the larger one is deemed discharged4 and the smaller undischarged. If a man lent his fellow money on a guarantor’s security, he may not exact payment from the guarantor; but if he had said, ‘On the condition that I may exact payment from whom I will, he may exact payment from the guarantor. Rabban Simeon b. Gamaliel says: If the borrower had property, in neither case could he exact payment from the guarantor. Moreover Rabban Simeon b. Gamaliel used to say: If a man was guarantor for a woman’s Ketubah and her husband divorced her, the husband must vow to derive no further benefit from her, lest he make a conspiracy5 against the property of the guarantor and take his wife back again.
8. If a man lent his fellow money on the security of a bond of indebted¬ ness, he may recover the debt from mortgaged property; but if [he had lent it only] before witnesses he may recover the debt only from unmortgaged property. If [the creditor] brought forth another’s note-of-hand [asevidence] 1 Cf. p. 348, n. 10. 2 He will make the more haste to pay his debt.
2 By reducing the creditor’s hold on the security through a new bond being drawn up for a smaller sum.
♦ The debtor had paid part of his debt and a new bond for the smaller sum was drawn out.
s Cf. Arak. 6*. He has no money, so he divorces his wife and the guarantor must pay her her Ketubah; and on remarriage the husband has the use of this money.
FOURTH DIVISION: NEZIKIN that he was indebted to him, the creditor may recover the debt only from unmortgaged property. If a man signed as guarantor after the signa¬ tures to bills of indebtedness, the creditor may recover the debt only from [the guarantor’s] unmortgaged property. Such a case came before R. Ishmael and he said: He can recover the debt only from [the guarantor’s] unmortgaged property. Ben Nanos answered, He may recover the debt neither from mortgaged nor from unmortgaged property. He said to him, Why? He answered, If a man seized a debtor by the throat in the street and his fellow found him and said to him, ‘Let him alone, I will pay thee’,1 he is not liable, since not through trust in him had the creditor lent the debtor money. But what manner of guarantor is liable? [If a man said,] ‘Lend him money and I will pay thee’, he is liable; for he had lent him the money through his trust in the guarantor. And R. Ishmael said: He that would become wise let him occupy himself in cases concerning property, for there is no branch of the Law greater than they; for they are like a welling fountain; and he that would occupy himself in cases concerning property, let him serve [as the pupil of] Simeon ben Nanos.
1. 1. Cases concerning property3 [are decided] by three [judges]; cases concerning theft4 or personal injury, by three; claims for full damages or half-damages, twofold restitution,5 or fourfold or fivefold restitution,6 and [claims against] the violator,7 the seducer8 and him that hath brought an evil name 9 [are decided] by three [judges]. So R. Meir. But the Sages say: He that hath brought an evil name [must be judged] by three and twenty, for there may arise therefrom a capital case.10 2. [Cases concerning offences punishable by] scourging11 [are decided] by three. In12 the name of R. Ishmael they said: By three and twenty.13 The intercalating of the month14 and the intercalating of the yearls [are decided upon] by three. So R. Meir. But Rabban Simeon b. Gamaliel says: The matter is begun by three, discussed by five, and decided upon by seven; but if it is decided upon by three the intercalation is valid.
3. The laying on of the elders’ hands,16 and the breaking of the heifer’s neck17 [are decided upon] by three. So R. Simeon. But R. Judah says: By five. The rites of halitzahli and Refusal19 [are performed] before three. The fruit of fourth-year plantings20 and Second Tithe21 whose value is not known [are redeemed]22 before three, and things dedicated to the Temple23 [are redeemed]24 before three. [Property pledged as security25 for] vows of valuation,26 if movable property [must be sold] before three [judges] (R. Judah says: One must be a priest), and if pieces of land, before nine and a priest; and similarly [for the valuation vow of] men.27 1 Some texts omit ‘I will pay thee’.
2 As its title implies, this tractate deals with the constitution and procedure of courts of law, and, particularly, with the administering of capital punishment.
3 Disputes arising out of loans, inheritances, safes, and the like. 4 Lev. 6*a.
10 The woman concerned is liable to be stoned.
11 Deut. 2 5*“’. 11 Some texts omit the following sentence.
u It is a capital charge. This is deduced by the verbal analogy between Deut. 25' (rasha', wicked) and Num. 35" (’guilty — Heb. rasha ' — of death'). Since death applies to the latter it applies also to the former. 14 See R. Sh. 31.
4. Cases concerning offences punishable by death [are decided] by three and twenty [judges]. A beast that commits or suffers unnatural crime [is judged] by three and twenty, as it is written, Thou shall slay the woman and the beast;1 and again it says, And ye shall slay the beast.* The ox that is to be stoned3 [is judged] by three and twenty, as it is written, The ox shall be stoned and its owner also shall be put to death 4 — in like manner as the owner is put to death so is the ox put to death. The wolf,5 the lion, the bear, the leopard, the panther, or serpent [that have killed a man], their death [is decided upon] by three and twenty [judges]. R. Eliezer says: If any killed them before [they were brought before the court] he has acquired merit. ButR. Akibasays: Theirdeath [isdecided upon] by threeand twenty [judges].
5. A tribe,6 a false prophet,7 or the High Priest may not be tried save by the court of one and seventy; they may not send forth [the people] to a battle waged of free choice8 save by the decision of the court of one and seventy; they may not add to the City or the Courts of the Temple9 save by the decision of the court of one and seventy; they may not set up san¬ hedrins for the several tribes save by the decision of the court of one and seventy, and they may not proclaim [any city to be] an Apostate City10 save by the decision of the court of one and seventy. No city on the frontier should be proclaimed an Apostate City, nor three together, but only one or two.
6. The greater Sanhedrin was made up of one and seventy [judges] and the lesser [Sanhedrin] of three and twenty. Whence do we learn that the greater Sanhedrin should be made up of one and seventy? It is written, Gather unto me seventy men of the elders of Israel;M and Moses added to them makes one and seventy. R. Judah says: [The greater Sanhedrin is made up of] seventy [only]. And whence do we learn that the lesser [Sanhedrin] should be made up of three and twenty? It is written, The congregation shall judge, also The congregation shall deliver 12 — one congregation judges and another congregation delivers; thus we have twenty. And whence do we learn that a congregation is made up of ten? It is written, How long shall I bear with this evil congregation /,J [which was the twelve spies] but Joshua and Caleb were notincluded. And whence do we learn that weshould bring yet three others [to the twenty]? By inference from what is written: Thou shall not follow after the many to do evil 14 — I conclude that I must be with them to do well.IS Then why is it written, [To follow] after the many to change judgement}16 [It means that] thy verdict of condemnation shall not be like thy verdict of acquittal, for thy verdict of acquittal is reached by the decision of a majority of one, but thy verdict of condemnation must be reached by the decision of a majority of two.17 The court must not be divisible equally, therefore they add to them yet one more. Thus they are three and twenty. And how many should there be in a city that it may be fit to have a Sanhedrin? A hundred and twenty men. R. Nehemiah says: Two hundred and thirty, so that [the Sanhedrin of three and twenty] shall correspond with them that are chiefs of [at least] groups of ten.18 * Lev. 20'*. 1 Lev. 2ou. J That killed a man or woman. ♦ Ex. 21”.
s Some texts omit ‘The wolf’. 6 Of which the majority have committed idolatry.
17 Twelve at least must condemn. Therefore (since a ‘congregation’, ten, shall deliver) the total is twenty-two. 18 Cf. Ex. 18s1.
384 FOURTH DIVISION: NEZIKIN 2. i. The High Priest can judge and be judged, he can act as a witness and others can bear witness against him; he can submit to halitzah and others can submit to halitzah at the hands of his widow or contract levirate marriage with his widow,1 but he cannot contract levirate marriage since he 1 is forbidden to marry a widow.2 If any of his near of kin die he may not | follow after the bier,3 but he may go forth with the bearers as far as the city gate, if he and they come not within sight of one another. So R. Meir. But R. Judah says: He may not go forth from the Temple, for it is written, Neither shall he go out of the Sanctuary.« And when he comforts other mourners the custom is for all the people to pass by, the one after the other, while the appointed [priest]3 places him between himself and the people; and when he receives comfort6 from others, all the people say to him, ‘May we make expiation for thee’, and he replies, ‘Be ye blessed of Heaven’. When they make for him the funeral meal7 all the people sit around on the ground and he sits on a stool.
2. The king can neither judge nor be judged, he cannot act as a witness and others cannot bear witness against him. He may not submit to halitzah nor do others submit to halitzah at the hands of his widow; he may not contract levirate marriage nor may his brothers contract levirate marriage with his widow. R. Judah says: If he was minded to submit to halitzah or to contract levirate marriage it is reckoned to his credit. They answered: They should not listen to him. None may marry his widow. R. Judah says: The king may marry the widow' of a king, for so have we found it with David, who married the widow of Saul, as it is written, And I gave thee thy master's house and thy master's wives into thy bosom f 3. If any of his near of kin die he may not go forth from the door of his palace. R. Judah says: If he is minded to follow the bier he may follow it, for so have we found it with David, who followed the bier of Abner, as it is written, And king David followed the bier.9 They answered: That was but to appease the people. When they make for him the funeral meal all the people sit on the ground and he sits on a couch.
4. He may send forth [the people] to a battle waged of free choice by the decision of the court of one and seventy. He may break through [thej private domain of any man] to make himself a road and none may protest against him: the king’s road has no prescribed measure.10 Whatsoever the people take by plunder they must lay it before him and he first takes his portion. Nor shall he multiply wives to himself11 — eighteen only.12 R. Judah j says: He may multiply them to himself provided that they do not turn away his heart. R. Simeon says: If there was but one and she would turn away his heart he may not marry her. Why then is it written, Nor shall he multiply mves to himself? — even though they be like Abigail.13 He shall not multiply horses to himself — enough for his chariot only. Neither shall he s The same word as in Shek. 51 (‘officer’). Here he is identical with the ‘prefect’ ( Yom. 7!; I Sot. 7J) or deputy High Priest. Cf. Yom. 31; Tam. 3L *> Cf. Ber. 2\ 11 Detit. 17". The rest of the chapter is an example of a midrash on Deut, I72*"1*, a verse by verse commentary, the system of teaching which probably preceded the system of the Mishnah. See Introduction, p. xix; App. I. 27.
II 2 Sam. 3** gives David six wives, and 2 Sam. 12* (lit. ‘I would have added unto thee the like of these and the like of these’) implies that twice as many more was permissible.
greatly multiply to himself silver and gold — enough to pay [his soldiers’] wages only. He must write out a scroll of the Law for himself; when he goes forth to battle he shall take it forth with him, and when he returns he shall bring it back with him; when he sits in judgement it shall be with him, and when he sits at meat it shall be before him, for it is written, It shall be with him and he shall read therein all the days of his life.
5. None may ride on his horse and none may sit on his throne and none may make use of his sceptre. None may see him when his hair is being cut or when he is naked or when he is in the bath-house, for it is written, Thou shalt in anywise set him king over thee' — one whose awe shall be over thee.
3. 1. Cases concerning property [are decided] by three [judges]. Each suitor chooses one and together they choose yet another. So R. Meir. But the Sages say: The two judges choose yet another. Each may refuse to accept the judge chosen by the other. So R. Meir. But the Sages say: This applies only if they can bring proof against them that they are kins¬ folk or otherwise ineligible; but if they are not ineligible or have special skill none may refuse to accept them. Each may refuse to admit the other’s witnesses. So R. Meir. But the Sages say: This applies only if they can bring proof against them that they are kinsfolk or otherwise ineligible; but if they are not ineligible none may refuse to admit them.
2. If one suitor said to the other, ‘I accept my father as trustworthy’, or ‘I accept thy father as trustworthy’, or ‘I accept three herdsmen as trust¬ worthy’, R. Meir says: He may retract. But the Sages say: He cannot retract. If a man must take an oath2 before his fellow, and his fellow said to him, ‘Vow to me by the life of thy head’, R. Meir says: He may retract. But the Sages say: He cannot retract.
3. And these are they which are not qualified [to be witnesses or judges]: a dice-player, a usurer, pigeon-flyers, or traffickers in Seventh Year pro¬ duce.3 R. Simeon said: Beforetime they used to call them ‘gatherers4 of Seventh Year produce’, but after oppressors5 grew many they changed this and called them6 ‘traffickers in Seventh Year produce.7 R. Judah said: This applies only if they have none other trade, but if they have some other trade than that they are not disqualified.
4. These are the kinsmen [that are not qualified to be witnesses or judges]: a suitor’s father, brother, father’s brother, mother’s brother, sister’s husband, father’s sister’s husband, mother’s sister’s husband, mother’s husband, father-in-law, or wife’s sister’s husband, together with their sons and their sons-in-law; also the suitor’s step-son only [but not the stepsons’ offspring]. R. Jose said: Such was the Mishnah of R. Akiba, but the First Mishnah® included also a suitor’s uncle, first cousin and all that are qualified to be his heirs. Moreover all that were kinsmen at the time [are not qualified]; but kinsmen that have ceased to be kinsmen become qualified. R. Judah says: If a man’s daughter died and left children, her husband still counts as a kinsman.
1 Deut. it14.
1 Deut. it14.
2 As, for example, when a claim for repayment is made against him. Cf. Shebu. 8ia.
* When all crops were deemed ownerless property and free to all. Lev. as1®.
* i.e. who did not let their fields He fallow.
s Tax-gatherers, who exacted dues even in the Seventh Year.
* This category of ineligible witnesses and judges.
7 And did not penalize those who gathered the produce only for their own use.
* i.e. the rule in force before R. Akiba (c. a.d. 100-35). Cf. Ket. 5’; Gitt. 5*; Naz. 6‘; Eduy. 7*.
386 FOURTH DIVISION: NEZIKIN 5. A friend or an enemy [is disqualified]. By friend is meant a man’s groomsman,1 and by enemy any that through enmity has not spoken with him for three days. They replied: Israelites should not be suspected for such a cause.
6. How did they prove witnesses? They brought them in and ad¬ monished them; then they put them all forth and kept back the chief among them and said to him, ‘Say, how dost thou know that he is in debt to the other?’ If he said, ‘He said to me “I am in debt to him”,’ or ‘Such-a-one said to me that he was in debt to him’, he has said nothing: he must be able to say, ‘In our presence he acknowledged to the other that he owed him 200 zuz'.1 Afterward they brought in the second witness and proved him. If their words were found to agree together, the judges discussed the matter. If two said, ‘He is not guilty’, and one said, 'He is guilty’, he is not guilty; if two said, ‘He is guilty’, and one said, ‘He is not guilty’, he is guilty; if one said, ‘He is not guilty’, and one said, ‘He is guilty’, and even if two declared him not guilty or two declared him guilty while one said, ‘I do not know’, they must add to the judges.
7. When the judges reached their decision they brought in the suitors. The chief among the judges says, ‘Thou, such-a-one, art not guilty’, or ‘Thou, such-a-one, art guilty’. And whence do we know that after one of the judges has gone forth he may not say, ‘I declare him not guilty and my fellows declare him guilty; but what may I do, for my fellows outvoted me?’ Of such a one it is written, Thou shalt not go up and dovm as a talebearer among thy people;3 and it also says, He that goeth about as a talebearer revealeth secrets [but he that is of a faithful spirit concealeth the matter].* 8. So long as a suitor can produce any proof the court may reverse the verdict. If they had said, ‘Bring all the proofs that thou hast within thirty days’, and he brought them within the thirty days, the court may reverse the verdict; but [if he brought any proof] after the thirty days, the court cannot reverse the verdict. Rabban Simeon b. Gamaliel said: What should he do that did not find it within thirty days but found it after thirty days? If they had said to him, ‘Bring witnesses’, and he said, ‘I have no witnesses’, or [if they said,] ‘Bring proof’, and he said, ‘I have no proof’, and he later found proof or found witnesses, then they are in no wise valid. Rabban Simeon b. Gamaliel said: What should he do that did not know that he had witnesses, then found witnesses, or that did not know that he had proof, then found proof? If they had said to him, ‘Bring wit¬ nesses’, and he said, ‘I have no witnesses’, or, ‘Bring proof’, and he said, ‘I have no proof, but, when he saw that he would be accounted guilty, he said, ‘Come near, such-a-one and such-a-one, and bear witness for me!’ or if he brought forth some proof from his wallet, then it is in no wise valid.
4. 1. Non-capital1 and capital cases are alike in examination and inquiry, for it is written, Ye shall have one manner of law.6 In what do non-capital cases differ from capital cases? Non-capital cases [are decided] by three and capital cases by three and twenty [judges]. Non-capital cases may begin either with reasons for acquittal or for conviction, but capital cases must begin with reasons for acquittal and may not begin with reasons for conviction. In non-capital cases they may reach a verdict either of acquittal s Lit. ’cases concerning property’; it includes all charges not entailing penalty by death.
or of conviction by the decision of a majority of one; but in capital cases they may reach a verdict of acquittal by the decision of a majority of one, but a verdict of conviction only by the decision of a majority of two. In non-capital cases they may reverse a verdict either [from conviction] to acquittal or [from acquittal] to conviction; but in capital cases they may reverse a verdict [from conviction] to acquittal but not [from acquittal] to conviction. In non-capital cases all1 may argue either in favour of con¬ viction or of acquittal; but in capital cases all may argue in favour of acquittal but not in favour of conviction. In non-capital cases he that had argued in favour of conviction may afterward argue in favour of acquittal, or he that had argued in favour of acquittal may afterward argue in favour of conviction; in capital cases he that had argued in favour of conviction may afterward argue in favour of acquittal, but he that had argued in favour of acquittal cannot afterward change and argue in favour of con¬ viction. In non-capital cases they hold the trial during the daytime and the verdict may be reached during the night; in capital cases they hold the trial during the daytime and the verdict also must be reached during the