Sunday, December 04, 2016

Bava Metzia 69a-b: On judicial transparency

In today’s daf, an interesting point emerges about judicial transparency. Here is the relevant gemara:

הנהו תרי כותאי דעבוד עסקא בהדי הדדי אזיל חד מנייהו פליג זוזי בלא דעתיה דחבריה אתו לקמיה דרב פפא א"ל מאי נפקא מינה הכי אמר רב נחמן זוזי כמאן דפליגי דמו לשנה זבון חמרא בהדי הדדי קם אידך פליג ליה בלא דעתיה דחבריה אתו לקמיה דרב פפא א"ל מאן פלג לך א"ל קא חזינא דבתר דידי קא אתי מר א"ר פפא כה"ג ודאי צריך לאודועיה זוזי מי שקיל טבי ושביק חסרי (אמר ליה לא אמר ליה) חמרא כולי עלמא ידעי דאיכא דבסים ואיכא דלא בסים

From Soncino:

Two Cutheans25  entered on a share partnership.26  Then one went and divided the money without his partner's knowledge. So they came before R. Papa.27  Said he to him [the plaintiff]: What difference does it make? Thus did R. Nahman rule: Monies are held to be already divided. The following year they bought wine in partnership. Thereupon the other arose and divided it without his partner's knowledge. Again they came before R. Papa. Said he to him: Who divided it for you? — I see, he replied, that you are biased in my partner's favour.28  Said R. Papa: In such a case1  it is certainly necessary to inform him [of the grounds of my verdicts]: As for coins, would he take good coins and leave short-weight ones [for you]? But in the case of wine, everybody knows that some wine is sweet and some is not.2

See Tosafot on the daf, the Rosh, and Nimukei Yosef (on the Rif) about this.

We see that one of the litigants thinks Rav Papa is biased against him, since he ruled against him in sequential cases which, to him mind, should have had the same ruling. And so Rav Papa says that, in such a case, Rav Papa must surely inform him of the grounds of the verdict.

There is an ambiguity here. Rav Papa says  כה"ג ודאי צריך לאודועיה, “in such a case, certainly one must inform him.” Inform whom? Of what? There are two ways of understanding it. One, what we have seen so far, that Rav Papa must inform the litigant. And thus we see Rav Papa explain his verdict in the next sentences. The other understanding, that one partner should have informed his partner of his intent to sell. The reason being what Rav Papa elaborates, that there is a difference between coins (where one need not inform) and wine (where one needs to inform).

Rosh (who quotes Tosafot and adds an additional point) writes:

That is, he first cites our ambiguous gemara. Then writes (parallel to Tosafot):

The implication is that specifically in this case [bechi hai gavna -- the words Rav Papa used], where there is a reason for [the litigant] opening his mouth, to suspect the judge, it is necessary to inform him of the reason of the ruling, because of [Bemidbar 32:22] “And you shall be deemed innocent by Hashem and by Israel.” But in general, no. From here Rabbenu Tam, za’l, deduces that that which is stated at the end of perek Zeh Borer [Sanhedrin 31b] [writing here the gemara in fuller form]:

If two litigants are in obstinate disagreement with respect to [the venue of] a lawsuit, and one says: Let us be tried here; and the other says: Let us go to the place of Assembly;17  he [the defendant] must attend the court in his18  home town. And if it is necessary to consult [the Assembly], the matter is written down and forwarded to them. And if the litigant19  says 'Write down the grounds on which you made your decision and give them to me,20  they must write them down and give him the document.

This [where they must write down the grounds of the decision] is specifically where they initially compelled him to the court [since he wanted to go to the Assembly]. But if initially he went willingly and they judged him, they don’t write for him.

And some explain that this that Rav Papa said כה"ג ודאי צריך לאודועיה, means that you [the litigant] should have initially informed him [your partner] when you divided.

And [here this is more than what Tosafot writes] even according to the other interpretation, there is no proof from here. For here is its explanation: In such an instance, one [the judge] needs to inform him, even if he [the litigant] did not ask for the reason of his judgement. For here, he [the Cuthean litigant] did not ask that he inform him, but rather said “I see that you are going after me”. But in general, if he asked, he writes it down for him.

See for more detail in Nimukei Yosef:

who brings up the idea that, in general, where there wasn’t a basis for confusion [based on the two seemingly contrary judgements], if someone had the same reaction as this Cuthean, to mock the judgement, he would not be informed of the reason for the judgement, but would rather be placed under the ban.


I think in such a case, the ambiguity of the underlying text plays a strong role in the different conclusions. The simplest reading that occurs is that Rav Papa is justifying himself, after being accused of judicial impropriety. And only when the other way of interpreting the text is pointed out does one come to that realization. And one is left uncertain how to interpret it, and ruminate on it, try to muster proofs from other sources, balance with other gemaras, etc..

At the same time, it seems to be likely that, in many cases, there will be some unconscious cultural influence. How one feels about the role of the court system, whether it should regularly be transparent, whether to empower or condemn a litigant who feels wronged, and so on. These attitudes could color how one reads an ambiguous gemara such as this one, and whether one things reading A or reading B is the more convincing, and how far-reaching (to which cases) reading A would apply.

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