Translation:Shulchan Aruch/Choshen Mishpat/17

From Wikisource
Jump to navigation Jump to search

Warning: This page does not provide {{Header}} information. If you'd like to help, add a comment, or edit the page and replace "{{no header}}" with the following and fill in at least the title and author fields:
 | title      = 
 | author     = 
 | translator = 
 | section    = 
 | previous   = 
 | next       = 
 | notes      = 

Paragraph 1- “Bitzedek tishpot amisecha.” What is righteous judgement? Treating both parties the same for all matters. We cannot let one party speak as much he wishes and tell the other party to speak briefly. A judge cannot show a pleasant face and speak softly to one, and a negative face and speak harshly to the other. If one of the parties is wearing expensive clothing and the other is wearing cheap clothing, we tell the more respectable one to either provide similar clothing to the other or to wear cheap clothing like the other. One party should not sit while the other stands. Rather, both must stand. If the court desires to have both sit, they may do so. One should not sit above while the other sits below. Rather, they must sit next to each other. This is true during the give and take and the recital of the claims. During the conclusion of the case, however, ideally they should both stand. What is the conclusion of the case? So and so, you are innocent, and so and so, you are liable. Ideally, the witnesses should always stand. Standing via leaning is considering standing for this matter. See later Siman 28.

Paragraph 2- If a scholar and ignoramus come to be judged, we have the scholar sit and we tell the ignoramus to sit too. If the ignoramus does not sit, we are not concerned. If a scholar comes to be judged, one may stand up for him and we are not concerned that his adversary claims will be silenced.

Paragraph 3- Following the times of the Talmud, all of the Jewish courts have the custom to seat the parties as well as the witnesses, in order to remove quarreling since we do not have the power to uphold the rules correctly.

Paragraph 4- If there are numerous plaintiffs and the defendant says he want his friends and relatives to be next to him when he is making his claim in order to ensure that his claims are not silenced by the fact that the plaintiffs are many, he is entitled. Therefore, the partners should choose one of them to make the claim for all of them or each one will make his own claim, one after the other. This way the defendant will not bring his friends with him. See later 176:35.

Paragraph 5- A judge is prohibited from listening to one party without his adversary being present. This is only where the judge knows that he will be judging the case. If, however, he hears one of the claims and later the other party accepts him as a judge, he may judge the matter. A scholar may not write a ruling to one of the parties in an “if this is so…” fashion nor should he write his view without a ruling so long as he not heard both parties’ claims because a party may learn to lie based on his words. We are also concerned that the other party may respond in a different manner and the scholar will need to write the reverse of that which he wrote, which is degrading to the scholar. The party is also required to follow this rule. A student who has a case in front of his teacher should not come before his adversary so that it does not look like he came early to set forth his claims while his adversary was absent. If the student has a set time to come and learn with the teacher, he is permitted to come at that time.

Paragraph 6- A judge should not hear the parties’ claims via a translator if he recognizes their language and understands their claims. If, however, he does not know the language well enough to respond with his ruling, he may set up a translator. See earlier 13:3 regarding whether one may make claims in writing. If one of the parties wants to use one language and the other wants to use a different one, one of the parties cannot compel the other.

Paragraph 7- A judge must listen to the parties’ claims and repeat them, for the pasuk says “Vayomer hamelech zos omeres bini hacahi etc.” He must clarify the ruling in his heart and then decide it.

Paragraph 8- A judge who provides a ruling but his heart troubles him that he is mistaken, should not attempt to bolster his case by bringing additional proofs because he is too embarrassed to retract. Rather, he should review the case from all sides to ensure a truthful ruling. A judge should not become the attorney of one of the parties. Rather, he should say what he needs to and be quiet. He should not teach a party anything. Even if a party brings a solo witness, he should not say to him we will not obligate your counterparty based on a solo witness. Rather, we say to the defendant, this witness has testified against you and let the defendant say this witness is not believable to me. The same applies for anything similar.

Paragraph 9- If a judge sees a merit for one of the parties, and the party wants to say it but is unable to formulate the words, and the judge sees that he is having difficulty defending himself with truthful claims because of anger or he is erring because of his intellect, the judge is permitted to assist him and explain to him the matter because of “psach picha lielem.” One must be very careful with this so that he does not become an attorney.

Paragraph 10- A judge should not have mercy on a poor person. He should not say this person is poor while his adversary is rich and is required to support him. I will find for the poor person in this case and he will end up receiving support in an honorable fashion. The judge must not show favor to a great person. If a great, wealthy scholar comes in front of him with a poor simpleton, he should not honor him and ask of his welfare so as not to stifle his adversary’s claims. He should not say how I could I find against him and embarrass him and instead I will exempt him and later tell him to give his adversary what is rightfully his. Rather, he should rule the case truthfully. If a righteous and wicked person come before him, he should not say this person is wicked and assumed to be lying whereas this person never says anything untruthful so I will twist the ruling against the wicked. Rather, each party should be in his eyes as wicked and each one should be assumed to be lying. He should judge the way it appears from the words of the case. When they leave him, they should both be considered righteous in his eyes when they accept his ruling. He should judge each one favorably.

Paragraph 11- A judge must rule immediately after it becomes clear to him. If he delays the ruling and stretches it out with obvious matters just to cause pain to one of the parties, it is included in “lo laasu avel.”

Paragraph 12- If one of the parties exaggerates to his adversary in front of the judge and says you will owe me this amount by law if this is not correct, the judge must tell him that you are lying. If a party claims a small amount from his friend and the judge realizes that he really owes him more by law, the judge should not rule on more than the plaintiff claimed. If he does rule on more than was claimed, it is a mistaken ruling and the ruling will be reversed.