1. A beis din is never fewer than three, etc. — The Sma wrote that this is rabbinic, but by Torah law one judge suffices, and so the Rambam writes explicitly in perek 2 of Hilchos Sanhedrin, that he paskens like Rav Acha, and so it is implied in the Asheri (Rosh) at the start of the first perek of Sanhedrin, and not like what is written in the Ir Shushan — see there, end of his words. But in my humble opinion the words of the Ir Shushan are correct. For we say in the Gemara, first perek of Sanhedrin: what is the difference between Rava and Rav Acha? For Rava does not hold like Shmuel that two who judged, their ruling is a valid ruling, while Rav Acha does hold like Shmuel. And since we have established that the halacha is not like Shmuel — as below at the start of se'if 2 — then perforce we hold like Rava, that by Torah law we require three mumchim, since the verse "elohim" is written three times; only that Chazal enacted that three hedyotos suffice, so as not to lock the door before borrowers. And the view of the Rosh too is proven to be this way, according to what I wrote, for he paskened like Rabbi Abahu and not like Shmuel. And what he wrote at the beginning of the perek — the words of Rav Acha too are only to teach that we require one who is gamir, and to teach that on this point Rava does not argue with Rav Acha; for if he did argue, the Gemara should have said "this is the difference between them." So it appears to me in the view of the Rosh, and not like the Sma and the Bach in his view. And the Rosh wrote further, explicitly, that the halacha is like Rabbi Abahu, since we hold that from Abaye and Rava onward the halacha is like the later authorities, and we say in the Gemara that Rava does not hold like Shmuel — end of his words — and the Beis Yosef brings it. And from here too there is a great difficulty on the Sma and the Bach in the view of the Rosh. And this is precise in the view of the Ir Shushan, for below in se'if 2 he wrote: since from the verses we derive that there must be three, from the three "elohim," therefore fewer than three, their ruling is not a valid ruling, etc. — and this is exactly according to the sugya of the Gemara that I mentioned.

2. And further, on the Rambam it is difficult for me: since he paskened that fewer than three, their ruling is not a valid ruling, how did he write in accordance with the words of Rav Acha? For we say in the Gemara that according to Rav Acha the law of Shmuel holds. And likewise it is difficult for me on the Sma"g. And further it is difficult for me on their words: for in the Gemara, perek HaChovel (Bava Kamma daf 84) and perek HaMegaresh (Gittin daf 88 amud beis), it states explicitly that the reason we judge admissions and loans [nowadays] is because we act as agents of them, of the "elohim"; and so the Rambam himself writes in perek 3 of Hilchos Sanhedrin, and the Sma"g, in this language: "therefore we judge admissions and loans and the like outside the land, even though the beis din of chutz la'aretz are not 'elohim,' for they perform the agency of the beis din of Eretz Yisrael," end quote. This shows that by Torah law we do not judge admissions and loans except through mumchim, and that is like Rava, for according to Rav Acha, by Torah law a single hedyot suffices, as is proven explicitly in the Gemara, and so it is in the Asheri (Rosh). And perhaps one can resolve the words of the Rambam and the Sma"g with difficulty, but the main point appears that we hold like Rava and not like Shmuel, and as is implied in perek HaChovel and perek HaMegaresh, that we require "elohim." And so too the view of the Rif appears explicitly, for he did not bring the words of Rav Acha at all, and wrote the beginning of the sugya in the first perek of Sanhedrin in accordance with Rava, that by Torah law we require three mumchim — see there. And so wrote the Ravan, daf 111, start of amud gimmel, that the sugya is like Rava, that we require three mumchim, and on account of locking the door before borrowers three hedyotos suffice, etc. And so wrote the Nimukei Yosef explicitly. At the time I wrote the above words I did not have before me the sefer Kesef Mishneh, for I learned this while fleeing from the wars of the destroyers, and now I have looked into the Kesef Mishneh and seen that he sensed there the difficulty I raised above on the Rambam — how did he pasken like Rav Acha and yet immediately write that two who judged, their ruling is not a valid ruling — and he brings there the responsum of the Rashba, who resolves the Rambam's words on this, and so too in the sefer Lechem Mishneh. And in my humble opinion their words are forced in this, and also the language of "what is between them" and "the difference between them is, etc." in the Gemara does not imply so — analyze this. And in any case the rest of the difficulties I wrote above on the Rambam remain, and the Rashba and the Kesef Mishneh and the Lechem Mishneh did not sense them — see there.

That it is impossible there should not be among them one, etc. — The Sma wrote: and this is not the "gamir and savir," etc., and it is obvious, as is proven explicitly in the Gemara and poskim. However, one can say that we do at least require [one who is] gamir, and so implies the plain language of the Gemara, "one who is gamir," etc., and so wrote the Maharam Paduah in a responsum, siman 43. And the Bach challenged him, that we do not require fully gamir but rather somewhat gamir, and through that he knows some of the reasonings in the dinim, etc. — but his words are not compelling, see there. And see the responsa of Ibn Lev, first volume, siman 123, end of daf 151, where he wrote that the muchzak (one in possession) can claim "kim li" like the Rameh, that we require all three to be gamir. But this does not appear correct to me; rather the words of the Rosh appear primary in the Gemara. And it is possible that even the Rameh concedes, and means specifically that there be among them those who are gamir — for therefore the Tur wrote "and it appears from his words," that is, that it so appears on the surface, but it is not so compelling. And so implies the view of R' Zerachya Halevi and the Ramban and the rest of the poskim that I brought below in siman 25, that it suffices when there is among them one who is gamir — see there, and this is primary.

But if there is not among them, etc. — however, if the public appointed them over themselves, even three "sitters at the corners" (i.e. unlearned commoners) are valid, as below at the start of siman 8 and siman 22, end of se'if 1.

Or that he does not wish to litigate with the plaintiff in his city, etc. — see above [/ below], siman 14, what is written on this.

Their ruling is not a valid ruling, etc. — The Bach wrote that regarding kiddushin (betrothal) one should be stringent like Shmuel, that their ruling is a valid ruling. But in my humble opinion it appears primary that we do not hold like Shmuel, as the Rif, Rambam, Rosh, Tur, and many other poskim ruled, and as is proven in the Gemara, perek HaChovel (Bava Kamma daf 84) and Gittin perek HaMegaresh (Gittin daf 88), and as I wrote above in seif katan 1. And so it is implied in the Gemara, second perek of Kesubos, regarding kiyum (verification of documents), and perek Zeh Borer, regarding odisa (an admission), for it says there: "but perhaps the Rabbanan of the academy of Rav Ashi hold like Shmuel," etc. And what Tosfos wrote there — that we hold like Shmuel regarding kiyum and odisa, and only on this [matter of judging] we do not hold like him — is a great stretch; firstly, because the language of the Gemara does not imply so; and further, because Shmuel only said his statement regarding judging; and further, why should we require three for kiyum and odisa more than for judging? And so ruled the Ravan, daf 111, start of amud gimmel, and the Baal HaIttur daf 51, and the Nimukei Yosef, and the Sma"g, and the Ritva in the second perek of Kesubos, not like Shmuel — see there, and this is primary.

Or that he is an expert to the public, etc. — see below, siman 13.

That he may judge alone l'chatchilah — but regarding exemption from payment if he erred, or if he judged b'dieved, there is an expert [whose status matters], as I wrote below in siman 25, seif katan 13, letter daled.

And they are not experts to the public, etc. — The Sma wrote that the Rambam holds that even a [single] mumcheh, and even two mumchim [do not make an admission before them binding], and this is what the Mechaber concludes when he writes "even if they are ordained," for whoever is ordained is presumably a mumcheh; and it is astonishing regarding the Rama that he mixed the two opinions together and did not write them in the language of a dispute as the Tur did; and one can answer, with difficulty, that what the Rama wrote "mumcheh la'rabim" means that the public appointed them over themselves, for in such a case it helps — end of the Sma's words. But this is not illuminating, for what does it matter that the public appointed them over themselves — they are still not a beis din; and also the language does not imply so; and further, from where did he derive this din? Rather, certainly the Rav's (Rama's) intent is according to its plain sense, and the reason he did not write it in the language of a dispute is because, since in the Mechaber's own language there is not so much of a proof — for one can say [the Mechaber means] semuchim who are not mumchim (since the Rosh and Tur hold below in siman 25 that semichus helps even for one who is not a mumcheh — see there in seif katan 22 — and so it is implied in the Ir Shushan, who wrote that two, even if ordained, their ruling is not a valid ruling, and immediately after wrote that a single mumcheh may judge against [the litigant's] will) — whereas in the Rambam's own language that the Tur brings it is explicitly stated "even a mumcheh," see there — therefore the Tur wrote it in the language of a dispute, and so is the way of the Rama in many places, and this is clear. And regarding the law: what the Tur wrote, that from the words of the Rosh it appears there is no distinction between a single mumcheh and three hedyotos for any matter — in my humble opinion this is not so, for the Rosh equated a single mumcheh with three hedyotos only regarding judging, not regarding admission; and it appears primary like the Rambam and the Mechaber. And so wrote the Baal HaTerumos, sha'ar 42, chelek 1, in the name of a responsum of the early authorities, and the Tur brings it below in siman 81 se'if 27; and so appears the view of the Ir Shushan, who omitted here what the Rama glossed, "and they are not mumchim," etc. And so wrote the Baal HaIttur, in the section on admission, daf 105 amud alef, in this language: "and these matters are before three, but before a single mumcheh his admission is not [a binding] admission," end quote. And so is implied also in the second perek of Kesubos (daf 22 amud alef) and in perek Zeh Borer (Sanhedrin daf 30 amud alef), regarding kiyum and odisa, concerning "and Ravna Ashi said to us," according to the girsa of the Rif and the Rambam and their school there. And so wrote Rabbeinu Yerucham, nesiv 1 chelek 7, regarding admission — see there — that even though Rav Ashi was a mumcheh, it only helps with three. And so wrote the Ritva in the second perek of Kesubos in the name of his teacher, and agreed with him, and I brought it below in siman 46 se'if 4 seif katan 8. And so wrote the Maharshal explicitly in perek HaGozel Basra siman 11, that [a single mumcheh helps] specifically regarding judging and the annulment of vows and the like, but regarding kiyum and odisa, in every place that requires a beis din there is no distinction — even the Reish Galusa, or the singular [authority] of his generation [it does not help] — see there.

He is not established as a denier — The Sma wrote that this is as long as he did not say before them "atem eidai" (you are my witnesses), etc. But to me it appears that it deals even with where he did say before them "atem eidai," only that it teaches us that they have not the status of a beis din, only the status of witnesses, regarding the point that he is not established as a denier going forward to say afterward "I paid you," as below in siman 79 se'if 9 — see there, and this is clear.

Even though, etc., it is a mitzvah of the Chachamim, etc. — See the responsum of the Maharshal siman 35, who ruled that even where they accepted him upon themselves and he is a mumcheh, it is forbidden for him to judge alone, and he brought proofs; and in the responsa Sheiris Yosef siman 17 he disagreed with him and rejected his proofs, and so ruled the Bach. And in truth, the incident of the Yerushalmi that is brought in the long Mordechai and in the Baal HaIttur daf 51 amud beis is a refutation of the Maharshal, for it states there explicitly that Rabbi Abahu would judge alone, and his students said to him, "but we learned, do not judge alone," and he answered them, "since they come of their own accord to be judged before me, it is as if they accepted me," etc. — see there; and so it is explained more in the Yerushalmi itself at the start of the first perek of Sanhedrin — see there. However, regarding the law nowadays, in this time when there is no mumcheh, it requires study, for one can say that Rabbi Abahu is different, since he was a mumcheh, and acceptance helps specifically with a mumcheh; and so it is proven in the Yerushalmi there, which establishes Rabbi Abahu's [explanation of] the Mishnah in Bechoros — "one who judged the din, etc., what is done is done and he pays from his own [pocket]" — as referring to where they said to him "behold you are accepted upon us as three, on condition that you judge us by Torah law," that he pays from his own [pocket] since he was presumptuous to judge Torah law, for we learned "do not judge alone," etc. — end of the Yerushalmi's words, and the Baal HaIttur brings it there. (And therefore the latter clause of the Mishnah in Bechoros teaches "and if he was a mumcheh for the beis din he is exempt from paying.") And one cannot say that there it is different, because they stipulated with him explicitly that he should judge Torah law, for the Rosh and Tur write below in siman 25 that a plain acceptance before one who is not a mumcheh is with the intent that he judge Torah law — see there. But with one who is not a mumcheh, one can say that he should not judge l'chatchilah; and so it is implied explicitly in the Rosh, perek Echad Dinei Mamonos, who wrote in this language: "since he undertook from the outset to judge and he is not a mumcheh, it is fitting that he pay from his own [pocket], and even though they accepted [him] upon themselves, nonetheless he should not have judged alone since he is not a mumcheh," end quote. And according to this, those who are accustomed to judge alone where [the parties] come of their own accord to be judged, or even where they accepted him, are not acting properly, since nowadays there is no mumcheh. And it is possible that those who are accustomed to judge alone, that is in matters that are common and simple, in which they are mumchim; or it is possible that this itself is the reason — that since nowadays there is no mumcheh, and there is none wise in judgment nowadays, as it states in the Yerushalmi (and the Sma"g brings it, siman 107, and the Tur below siman 12, that nowadays there is none wise enough in judgment to judge Torah law) — then when they accepted him plainly, presumably they accepted him both for [correct] judgment and for error, and it resembles what the Nimukei Yosef wrote at the start of the first perek of Sanhedrin in the name of "some say," that if they accepted upon themselves yoshvei keranos (unlearned commoners), their ruling is a [valid] ruling, and even if they erred they are not liable to pay, for they cannot say that they accepted them with the intent that they judge them Torah law, for they surely know that they do not know Torah law. However, this requires study, for all the poskim did not bring the Yerushalmi that nowadays there is none wise enough to judge Torah law; and it appears that even the Sma"g and the Tur who brought it, it is only regarding that one should do whatever is possible to make a compromise (peshara), and so it is implied explicitly from the fact that they brought it regarding making a peshara, and wrote "the judges must distance themselves with all their ability that they should not accept upon themselves to judge Torah law, for we learned in the Yerushalmi, etc." — which implies explicitly that it is specifically l'chatchilah that they must distance themselves in this; but certainly even nowadays they know how to judge Torah law in many dinim that are explicit in the Gemara and poskim. Therefore, certainly when [the parties] come from the outset to be judged before him and accepted him, presumably they accepted him with the intent to be judged by Torah law, as the poskim and the Rosh and Tur write below siman 25; and therefore one must be careful not to judge alone even where they accepted him, unless he explicitly states "I do not know how to judge you by Torah law," or it is a simple din and he is a mumcheh and accustomed in it, for in such a case there is a mumcheh even nowadays — analyze this.

One who is not a mumcheh, etc. — The Sma wrote: meaning one who is neither gamir nor savir, etc., and the Sma wrote so further below in siman 25. But his words are not correct, as I challenged him below in siman 25 se'if 3 seif katan 22 and se'if 4 seif katan 39 at length — see there.

However, if the community accepted him by order of the king's writ — for one might have thought that since they did not accept him of their own will he cannot judge, it teaches us [otherwise]; and all the more so if they accepted him of their own will without the king's writ, so wrote the Bach; and see what I wrote below in siman 25 seif katan 33.

He may judge, but he is not exempt from payment if he erred — however, if he is gamir and savir, their acceptance of him by order of the king helps to exempt him from payment, according to the view of the Tur, and not like what appears from the words of the Rambam, who wrote that the king's writ does not help at all where he erred, even where they accepted [him] upon themselves — end of the Bach's words. But in my humble opinion nothing appears from the Rambam [to that effect], and the Rambam too concedes to this — see there, analyze this.

For if he is gamir [and savir, the king's authorization helps] — even though the Rama wrote above in se'if 2 that l'chatchilah there is no mumcheh in this time, nonetheless if he is gamir and savir, the king's authorization helps him even in this time, regarding that he may judge; however, it appears that regarding judging alone it does not help.

The king's authorization helps him even to exempt him if he erred — like the authorization of the Reish Galusa below in siman 25 se'if 2, and so wrote the Rivash; and the Bach wrote that from the words of the Tur it implies that even for one who is gamir and savir the authorization does not help, and not like the Rivash; also not like what is found in the writings of the Maharshal, that for a mumcheh la'rabim the king's authorization helps to exempt him if he erred — for it is not so, but rather it appears clear that he is not exempt, and so wrote the Rambam in his Commentary on the Mishnah (perek Zeh Borer), in this language: "if a king appointed them, etc., if they were mumchim their ruling is a [valid] ruling and accepted, since they did not err, etc.," which shows that where they erred they pay even though they are mumchim — end quote. But his (the Bach's) words are not compelling, for the Tur is not speaking of one who is gamir and savir regarding payment; and likewise the Rambam there is not speaking at all of payment, but rather his intent is to say that if they erred in the din it is reversed, and so it implies there explicitly to one who examines it there. And even though the Tur does not hold this way, nonetheless the reasoning of the Rivash is correct in this, since the authorization of the Reish Galusa, who was appointed by the king, helps in this, all the more so a king or minister himself, for "the law of the kingdom is law" (dina d'malchusa dina), for it is among the statutes of the king and the ministers to appoint judges and dayanim in the land, and if so, it is no worse than the Reish Galusa who comes by his (the king's) authority — analyze this. And see the responsum of the Rama, siman 123.