Translation:Shulchan Aruch/Choshen Mishpat/18

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Shulchan Aruch by Yosef Karo, translated from Hebrew by Wikisource
Choshen Mishpat 18

Paragraph 1- If one of the parties brings witnesses supporting his claims, we bring in the witnesses and accept their testimony as will be explained in Siman 28. Once they have accepted the testimony they send everyone outside and they give and take on the matter. There are those that say that it is good to start with the inferior judge. If they are unanimous on the ruling, that is good. If not, they follow the majority. If two say innocent and one says guilty, he is innocent. If two say guilty and one says innocent, he is guilty. If one says innocent, one says guilty and one says I don’t know, or even if two both say guilty or innocent and one says I don’t know, they would add two judges. The result would be that they had five individuals giving and taking on the matter. If three say innocent and two say guilty, he is innocent. If three say guilty and two say innocent, he is guilty. If two say innocent, two say guilty, and one says I don’t know, they would add more judges. If, however, four say guilty or innocent and one says I don’t know, or three say innocent, one says guilty and one says I don’t know, regardless of whether or not that one was the same one who said he didn’t know originally, we follow the majority. This seems to be to be the primary law. This is the reverse of what was cited earlier in 13:7, which is the opposing view. It is possible that the Mecahber's intention was to differentiate between a case where they originally started with three and a case where they started with more than three, but this does not appear correct to me. Rather, the first view is that of the Rambam and the second is that of the Rashba. A congregation that chose four or five decision-makers, does not follow the principle of majority because majority is only a concept in court. If the congregation said to follow the majority, and there is a tie, we do not say to add others to resolve the issue because the congregation only selected these individuals. Rather, these decision-makers can ask others and decide accordingly based on their response.

Paragraph 2- If the judges were tied, and one says I don’t know, they would add two others. Similarly, if they were still unsure, they would keep adding until they hit 71. Once they hit 71, if 35 said innocent and 35 said guilty and one said I don’t know, we give and take until one switches sides, resulting in 36 saying guilty or innocent. If neither he nor any of the judges switch, the money is in doubt and we would keep the money in the possession of its current owner.

Paragraph 3- Any judge who says he does not know must not provide a rationale and explain the reason behind his doubt unlike one who says innocent must provide a reason and one who says guilty must provide a reason.

Paragraph 4- If three judges sat to judge and one of them recused himself, the other two cannot complete the case. The same applies where they sat down with more than three and one of them recused, as was explained above at the end of Siman 13.

Paragraph 5- This that the Gemara says a teacher and student can only count for one, is only where the teacher is teaching the student the law and the student is relying on him. Even in such a case, if the student is like Rav Ami or Rav Asi in that they need a teacher for knowledge but not for logic, they can learn during the case and judge with him. If, however, he is not teaching him during the case, we can count a student as a second judge so long as he has a slight understanding in the give and take. In cases of purity and impurity or issur and hetter, even if he needs his teacher for logic, they can count as two.

Paragraph 6- A court can rule on monetary cases outside the presence of the parties.