Choshen Mishpat - Daily Recordings

The קצות החושן agrees with the סמ״ע that even a mistaken underclaim may bind the claimant because מחילה בטעות הוי מחילה , while the נתיבות המשפט sharply limits that principle: if the claimant was unaware that the additional money was his, there was no real מחילה, and the דיין should award what rightfully belongs to him.

The commentators debate whether a דיין may award more than the claimant requested: the סמ״ע understands the רמ״א broadly and limits the award to the amount claimed even where the claimant erred, while the ש״ך distinguishes between a conscious waiver, which binds the claimant, and a clear mistake, in which case the דיין should award the full amount actually due.

The רמ״א rules that a דיין should not award a claimant more than he actually demanded, even if the דיין believes that the claimant is halachically entitled to a greater amount; this ruling is based on the ריב״ש , and the דרכי משה seeks additional support from a Gemara in בבא בתרא, though that proof is disputed by the later commentators.

If a litigant makes an incorrect halachic assertion in front of the בית דין on a matter other than the dispute presently being adjudicated, the דיין should correct it so that his silence is not interpreted as agreement.

The שולחן ערוך rules that a דיין may not favor the poor, the prominent, or the apparently righteous, must judge both litigants with equal caution, should view them favorably once they accept the דין, and must issue the ruling promptly once the case is clear.

The Rambam gathers several prohibitions that require complete judicial impartiality: no misplaced compassion, no favoritism toward rich or poor, no bias against sinners, no distortion or delay of justice, and special protection against mistreating a גר or יתום; at the same time, a דיין should begin with caution toward both litigants and end by judging them favorably once they accept the ruling.

The Rambam teaches that a דיין may not favor the rich, prominent, or righteous, nor disadvantage a wicked litigant because of his character; judgment must be based solely on the merits of the case, and even unnecessary delay designed to cause suffering is itself a distortion of justice.

The Rambam teaches that compassion cannot override דין: a בית דין may not spare a murderer, waive a קנס, or favor a poor litigant simply because of his poverty; charity and compassion belong outside the judicial determination, while the דין itself must remain impartial.

In סעיפים ח׳–ט׳, the שולחן ערוך brings both major interpretations of שלא יעשה דיין סניגורין לדבריו : a דיין must not defend his own mistaken ruling, nor may he act as an advocate for a litigant; only where a litigant is genuinely unable to articulate his own valid claim may the דיין assist him slightly under פתח פיך לאלם .

Although a דיין may not ordinarily formulate claims for a litigant, the Yerushalmi and Rambam recognize an exception under פתח פיך לאלם — “open your mouth for one who cannot speak” ; the Rambam limits this to modest assistance, while the Tur understands the permission more broadly.

The Gemara teaches that a דיין must not become an advocate for a particular position; רש״י understands this as a warning not to defend one’s own mistaken ruling, while רבינו חננאל and the רמב״ם understand it as a prohibition against teaching a litigant how to formulate his claims.

The שולחן ערוך requires the דיין to repeat the litigants’ claims before deliberation; the מפרשים explain that this confirms the דיין’s understanding, reassures the parties that they were heard correctly, and may even help each litigant understand the other side’s position more objectively.

The ירושלמי learns from שלמה המלך that a דיין should repeat the litigants’ claims before ruling; the מפרשים debate whether this repetition is primarily to ensure that the דיינים themselves have understood the claims correctly, or also to reassure the litigants that they have been fully heard.

The שולחן ערוך requires the דיין to understand the litigants directly, but the מפרשים discuss several possible solutions when this is not possible, including clarification through a translator, representation by a מורשה — authorized representative , acceptance by the parties, and the leniency of the ב״ח in cases of necessity.

The טור quotes the Rambam’s rule that a דיין should hear the litigants directly, while the ב״ח distinguishes between capital and monetary cases and allows a translator even לכתחילה in monetary cases when no דיין who understands the litigants’ language is available.

The Gemara and Rambam establish that a דיין should hear the litigants and witnesses directly rather than through a תורגמן — translator ; however, if the דיין understands their language but cannot speak it fluently, a translator may be used to convey the דיין’s questions and ruling.

Although the רמ״א warns against giving even a theoretical halachic opinion after hearing only one side, the later פוסקים recognize situations in which a חכם who will not serve as דיין may provide general halachic guidance, particularly where there is no concrete dispute or the questioner genuinely seeks to know how to act properly.

The ש״ך distinguishes between a דיין who merely heard one side, who may still be able to judge the case, and a דיין who has already issued a written ruling, who may become נוגע — personally invested in defending his earlier position; later פוסקים therefore stress the severity of avoiding private ex parte discussions altogether.

The שולחן ערוך prohibits a דיין from hearing one litigant without the other present, while the רמ״א limits this to a case where the דיין expects to adjudicate the dispute and further prohibits giving even a theoretical written opinion after hearing only one side.

The רמב״ם treats hearing one litigant without the other as a Torah prohibition derived from לא תשא שמע שוא , applying both to the דיין who listens and to the litigant who speaks, because an unopposed account can implant a false or distorted picture in the דיין’s mind.

The Gemara derives the prohibition against private communication between a litigant and דיין from מדבר שקר תרחק , and goes further by requiring the parties to avoid even conduct that could create the appearance that one side privately presented his case to the דיין.

The Gemara derives a serious prohibition against a דיין hearing one litigant without the other present, and likewise forbids a litigant from presenting his claims privately to the דיין, because doing so can distort both the claims themselves and the דיין’s ability to evaluate the case impartially.

The מהר״ם מרוטנבורג , as codified by the רמ״א, rules that where several partners litigate against one individual, they should not all appear together against him; however, the אחרונים debate whether the בית דין must enforce this when both sides agree to allow additional supporters to be present.

The מרדכי , quoting the מהר״ם מרוטנבורג , extends the principle of equality in בית דין beyond clothing and seating: one side may not appear in numbers in a way that intimidates an individual opponent and causes מסתתמין טענותיו — his arguments to become inhibited .

The שולחן ערוך discusses the special honor shown to a תלמיד חכם — Torah scholar in court and records the later custom for litigants and witnesses to sit, while the מפרשים emphasize that those who wish to fulfill the original halacha may still stand before the בית דין.