SHALISH

SHALISH (Heb. שָׁלִישׁ), one with whom an article or money is deposited and who has authority to dispose of it according to law or in accordance with stipulated conditions.

Types of Deposit

The deposit can be effected by a single person who deposits something with the shalish to give to another person or to buy some article, or by two people who have greater trust in a third party than in one another, as, for instance, where there is a difference of opinion between them and they deposit an object with the shalish until it is established who is entitled to it, or where a debtor has paid his creditor only part of the debt and they deposit the bill of debt with a shalish until the balance is paid (Ket. 5:8, 6:7; bb 10:5; Tosef., bm 1:10; cf. Rema, Ḥm 56:2).

The conditions to which the shalish is subject may at times be affected by the defect of *asmakhta, as in the following example: If a debtor repays part of his debt and gives his bond to a shalish saying: "If I do not give you [the balance] by such at date, give the creditor his bond, so that he can again claim that part of the debt is already paid" (bb 10:5); the tannaim disagree on whether the shalish must act in accordance with this condition, and the Talmud explains that the dispute stems from the argument that the condition is defective because of asmakhta (bb 168a). The halakhah established that the condition is void and the shalish need not return the bond to the creditor, unless the appropriate procedure has been followed, such as an act of *acquisition in the presence of an important (ḥashuv) bet din in order to rectify the defect of asmakhta (Sh. Ar., Ḥm 55:1).

The status of shalish can arise without any specific act. For example, if a wife has been administering her husband's property, or an administrator has been appointed over a person's property in circumstances where the owner has given the administrator absolute authority over all his possessions and trusted him completely, and the owner then dies, the administrator has the credibility of a shalish (Sh. Ar., Ḥm 56:7, and Siftei Kohen thereto, n. 34).

The Credibility of the Shalish

A shalish is, in general, accorded greater credibility than a single witness. "The admission of a litigant is as good as a hundred witnesses, but the shalish is believed more than both. If one [litigant] says one thing, the other [litigant] another, and the shalish something else, the shalish is believed" (Tosef., bm 1:10). The reason for this special credibility of the shalish is that the depositor has reposed confidence in him (Git. 64a; and see in detail pdr 1:294–5). For this reason it has been concluded that even a shalish who is a relative also merits credibility, despite the fact that a relative is disqualified from giving evidence (Sh. Ar., Ḥm 56:1). The shalish, is believed in preference to the debtor or creditor. If two witnesses contradict him, however, he is not believed (Sh. Ar., Ḥm 56:2, Sma and Siftei Kohen thereto).

If someone has in his possession another's property and claims that its owner handed it to him as a shalish and the owner denies this, one opinion is that the one possessing the property is believed (Sh. Ar., Ḥm 56:1): "Even if the owner claims: You robbed me of it, and the other retorts: It is not so, but you appointed me a shalish between you and so and so, the other is believed" (Sma, Ḥm 56:1 n. 7). On the other hand, some posekim argue that if this were so, anyone could seize his fellow's property and enter into a collusive agreement with another and say, I am a shalish. Accordingly, they hold that the shalish is not believed unless the depositor admits that the property was deposited with him as a shalish (Siftei Kohen, Ḥm 56:1 n. 5).

The shalish is believed without an oath, since he is not a litigant and is backed by the presumption: "A man does not sin when he personally gains nothing by it" (Hai Gaon, in Oẓar ha-Ge'onim, ed. by B.M. Lewin, 10 (1941), 143, no. 352; Sh. Ar., Ḥm 56:1). If the date fixed for the return of the deposit passes and the shalish has not returned it, he is still a shalish and is still believed (Sh. Ar. ibid.). The unique credibility of the shalish continues only as long as the deposit is still in his possession (Tosef., bm 1:10; Sh. Ar., Ḥm 56:1; Divrei Ge'onim, 107:7). It is thus considered a sensible precaution to return the deposit in the presence of the bet din and clarify the facts in its presence, lest a dispute should arise between the parties, and, if the shalish has already parted with the deposit, he would not be believed (Sh. Ar., Ḥm 56:3). One opinion is that it is possible to restore the deposit to the shalish so that he would again have credibility (Siftei Kohen, Ḥm 56, no. 20; Divrei Ge'onim, 107, no. 6).

Liability of a Shalish

A shalish who acts contrary to the conditions made with him may become liable to compensate for any loss caused by his action. If he returns to the creditor a bond deposited with him, contrary to what was stipulated, he is subjected to a ban until he undertakes to compensate the debtor for any loss sustained as a result of the return of the bond. If the shalish does not undertake to compensate, and the creditor obtains payment unjustly by means of the bond returned to him, the shalish does not have to compensate the debtor, since this is only a case of damage caused indirectly by *gerama and the rule is that there is no liability for damages caused by gerama (RemaḤm 55:1; Divrei Ge'onim, 107, no. 10). If, on the other hand, contrary to the stipulation, the shalish returns the bond to the debtor, the shalish must compensate the creditor, for this is a case of garmi (as opposed to gerama), when the tort-feaser is liable to pay (Siftei Kohen, Ḥm 56, no. 4; Divrei Ge'onim 107, nos. 11 and 12).

The shalish is at liberty to retract and restore the deposit to the parties. If the parties do not want to take it back, he can hand it over to the bet din. A shalish who is paid for his services, however, cannot retract (Arukh ha-Shulḥan, Ḥm 56:17).

"The claimant pays the expenses of the shalish (Rema, Ḥm 56:1), for it is always the one for whose benefit and advantage something is effected who has to pay the cost" (Sma, Ḥm 56 n. 13; Arukh ha-Shulḥan, Ḥm 56:23). It is customary to write a deed when something is deposited with a shalish (for the wording of such a deed, see Sefer ha-Shetarot no. 65, and see *Shomerim).

bibliography:

Paḥad Yiẓḥak, s.v. Shalish, Shelishut; I.S. Zuri, Mishpat ha-Talmud, 7 (1921), 53; Gulak, Yesodei, 2 (1922), 191f.; 4 (1922), 161; Elon, Mafte'aḥ, 387–90.

[Nahum Rakover]