A Suspicious Case - Rav Ofer Livnat

Publicized in the weekly leaflet Hemdat Yamim - Eretz Hemdah

 
This week in the Daf Hayomi we begin the fourth chapter of Sanhedrin, which begins with the differences between judging monetary cases and capital punishment cases. The Gemara (32) explains that, by Torah law, judges have to interrogate the witnesses both in monetary cases and in capital punishment cases. However, the Sages eliminated the interrogation of witnesses for monetary cases. The reason for this is that the Sages were concerned that if a person would know that he will have a difficult time obtaining his money in Beit Din, because the judges will interrogate his witnesses, then he will refrain from lending. Therefore, the Sages eliminated the interrogations in order to encourage people to lend money.

The Gemara states that, even after this institution, if the judge is suspicious that someone is being dishonest, then he must interrogate the witnesses even for monetary cases. The Rishonim ask that the Gemara here appears to contradict the Gemara in Shevu'ot (30b), which states that if a judge is suspicious of dishonesty, he must refrain from ruling and remove himself from the case. A few answers were suggested to resolve this apparent contradiction.

The Tosafot (Sanhedrin 32b d"h kan) explain that if the judge is certain that someone is being dishonest, he must refrain from ruling. However, if he is only suspicious, he should interrogate the witnesses.

The Rambam (Sanhedrin 24, 3) rules that if a judge is suspicious, he should first interrogate the witnesses as judges interrogate in capital punishment cases. If, after he interrogates them, he is no longer suspicious, then he can issue a ruling. However, if he is still suspicious, and he believes things are being concealed from him, he should remove himself from the case.

The Rosh (Sanhedrin 4, 1) suggests another resolution to this contradiction. He explains that the difference depends on who the judge suspects. If the judge is suspicious of the plaintiff, then he should refrain from ruling, and in this way the plaintiff will lose out. However, if he is suspicious of the defendant, if he refrains from ruling, the defendant will only gain. Therefore, he must interrogate until he can prove his suspicion of the defendant. 

:Summary and Ruling

The Shulchan Aruch (Choshen Mishpat 15, 3-4) integrates the opinion of the Rambam with that of the Rosh. He rules that, when a judge is suspicious of dishonesty, he must first interrogate, as judges interrogate in capital punishment cases. If after the interrogation he is still suspicious, if he is suspicious of the plaintiff, he should refrain from ruling. However, if he is suspicious of the defendant, he must continue to interrogate in order to prove his suspicion.    

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