Translation:Shulchan Aruch/Choshen Mishpat/28

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Shulchan Aruch by Yosef Karo, translated from Hebrew by Wikisource
Choshen Mishpat 28

Paragraph 1- Anyone who knows testimony that another has a use for, and is fit to testify, is obligated to testify if he is called to testify in court. This is true whether he is solo or has another witness with him. If he withholds his testimony, he is exempt from judgement by man but is liable by the laws of the heavens. A solo witness should only testify on monetary matters where he may require an oath or for a matter of prohibition where he is causing someone to separate from the prohibition. If the prohibition was already done, however, he should not testify because he is merely gossiping about the individual. A person is prohibited from testifying regarding a matter he does not know, even if it was told to him by a truthful person. Even if one were to tell him to merely stand with another witness, but not actually testify, in order to intimidate the borrower who will think he has two witnesses and get the borrower to confess, the witness may not do so.

Paragraph 2- A person is permitted to place a cherem in the synagogue on anyone who knows testimony for him to come and testify. He cannot, however, force them to swear. If they don’t testify, they will carry their sin. Nevertheless, if the court sees a need to have them swear to say the truth, they may do so. See earlier 17:3 and later 71:7-8. There are those that say that when a cherem is placed, even relatives and the party himself must testify. There are those that disagree and this is the primary ruling. See Yoreh Deah Siman 232 regarding a king who commands the placement of a cherem for testimony.

Paragraph 3- If a gentile calls a Jew to secular court, and there is a Jew who is the only one that knows testimony for the gentile, and it is a situation where secular courts obligate payment based on a solo witness, the Jew is prohibited from testifying for him. If he testifies, we place a shmuti on him. The witness is not obligated to pay, however, because he can say I testified truthfully. If, however, one can determine that he testified falsely, he is obligated to pay. If the party admits that the testimony was true, we do not place a shmuti on him. If the gentile originally designated him as a witness, it is a desecration of God's name not to testify and he must testify for him.

Paragraph 4- If a Jew calls a gentile to court who denies the claims, and the gentile has a solo witness, he may testify for him. All the more so can two witnesses testify because even a Jewish court would obligate payment based on their words. The same applies in a situation where we would take away money based on a solo witness, and he can testify. Two relatives are like one witnesses because under our laws we do not take away money based on a solo witness.

Paragraph 5- If a scholar knows testimony for a Jew and is called to testify in front of a court that is inferior to him, he is not obligated to go and testify in a monetary case unless they send someone to him to have him testify. If, however, there is a possibility of having someone refrain from violating a prohibition, he is obligated to go and testify. Anyone who has a proof via witnesses is required to make the effort to bring them to court. If the court knows that his adversary is tough, and the plaintiff claims that the witnesses are afraid of testifying because of the adversary and he has proof to this claim, the court may force the adversary to bring those witnesses. The same applies to similar issues that arise for a tough person. Ideally, witnesses must stand while testifying. If a witness is a scholar, we have him sit. See later at the end of this Siman.

Paragraph 6- Ideally, the judges should sit while accepting testimony. They must understand the language of the testimony and they may not hear it via a translator. If they understand what the witnesses are saying, they may use an interpreter if they don’t know how to respond. See earlier 17:6.

Paragraph 7- We intimidate the witnesses in front of everyone. We inform them of the power of false testimony and the embarrassment a false witnesses faces in this world and the next and that he is considered lowly in the eyes of the one that hired him.

Paragraph 8- They subsequently have everyone go outside and they leave the eldest of the witnesses. They tell him, “tell us how you know that this person owes money to this one.” If he says, he told me he is liable, or so-and-so who is valid and reliable told me he owes him money, he has said nothing. He must say that he himself saw the lending of the money or say that the party confessed in front of me that he is liable.

Paragraph 9- They then bring in the second witness and examine him. If he testifies the same as the other witness, we give and take on the matter and conclude the case.

Paragraph 10- If the witnesses relate their testimony in the exact same fashion, we must be consider the fact that they are lying and conspired to testify. The judge must extensively investigate them. If one witnesses says his testimony and the second says "I say the same thing," it would not work unless he went overseas and he cannot testify explicitly.

Paragraph 11- A testimony sent in writing to the court is not testimony because the Torah states, “al pi shenayim edim”- it must be from their mouths and not from their writing. This is in fact our custom, not like those who allow it for otherwise valid witnesses who are not mutes.

Paragraph 12- We can decide monetary cases based on testimony from a document- even if the witnesses are not around- so that we do not ultimately shut the door on borrowers. See later 61:2 with respect to what is a considered a document. Also see later 46:10. Paragraph 13- A person may testify so long as he has a recollection of the matter. We are not concerned that he does not remember it as well because of the significant passage of time, even if he only remembers the testimony via a writing provided to him. If he wrote it in his documents so as to remember, and then forgot, and now only remembers because of the writing, he can still testify, so long as he remembers the actual matter once he sees the writing. See later 46:10.

Paragraph 14- Similarly, if the witness remembers the matter only after someone else reminded him, he may still testify. This is true even if the person that reminds him is the second witness. If, however, the party reminds him and he remembers, he may not testify. If the witness is a scholar, he may testify even if the party reminded him because the scholar certainly would not testify if he did not remember.

Paragraph 15- We do not accept testimony if the party is not in court. If they accepted the testimony, they cannot rule based on it. They can re-testify in front of the party. If they changed their testimony from the original testimony, we follow the second testimony that was in front of the party, even if they testified originally with a cherem, because any testimony not in front of a party is as if it was given outside of court. There are those that disagree and say that once testimony has been accepted outside the court, it is okay after the fact. Therefore, if the party is strong and the witnesses are afraid to testify in front of him, we can accept the testimony not in front of the party, and judge accordingly. However, if it is possible to force the strong party in the way that was explained in paragraph 5 of this Siman, that would be preferred. There are those that say that the concept of not accepting testimony if not in front of the party is only by monetary cases, but not for quarreling and fighting where we are concerned that if they testify in front of the parties they will fight with one another and with the witnesses. The Geonim instituted that for such a case we accept testimony not in front of the parties and we do not reveal the identity of the witnesses. It seems to me that this is only where the court does not want to judge strict law and punish, but instead wants to quiet the fighting and rule based on the needs of the particular dispute. If, however, they want to punish and judge one of them, they must accept the testimony in front of him, as will be explained in Even Haezer 11:4.

Paragraph 16- If a party or the witnesses were sick, we may accept testimony not in front of the party. If the witnesses wanted to go overseas, and the party is sent for but does not come, or he is not in the city, we may accept testimony not in front of him. If they did not tell the party, however, they may not accept, unless there was a concern that the witnesses would leave by the time they told him, as will be explained later. If the defendant is sick, we do not accept testimony if not in front of him, even if there is a concern that his properties will transfer to his orphans and the plaintiff will not be able to litigate with them, as will be explained in Siman 110. There are those that say that any time they send after someone and he does not come to court, we can accept testimony not in front of him if they began the claims in front of him, or even where they did not begin the claims if it’s a situation where he is required to be judged in front of those judges, as was explained in Siman 14. Similarly, if there is a pressing need and it is impossible to accept the testimony later, such as where the witnesses or plaintiff were sick and in danger of dying or where the witnesses are going overseas and we cannot wait to tell him, we may accept even without sending for him. This seems correct based on that which is ruled later in 140:10.

Paragraph 17- If Reuven makes a claim against Shimon and Reuven's witnesses are in a different place, the court will tell Shimon that he can decide whether to go to the place of the witnesses so that they can testify in front of him or, alternatively, a court in the place of the witnesses will accept their testimony not in front of him and relay it to this court where the parties are and they will judge based on such acceptance of testimony. The same applies where he located his witnesses in another city and there is no time to send for the other party or they will not be able to find them again. The court may accept the testimony not in front of the parties, and judge based on that testimony. This is the widespread custom in our countries, notwithstanding the fact that there are those that argue and hold one cannot accept testimony not in front of the parties if they did not send for the party first, even in a situation where there is a concern that the testimony will be lost if they insist on accepting in front of the party. That is not our custom- rather, we have the aforementioned custom.

Paragraph 18- The entire concept of not accepting testimony if not in front of the parties was only said where the plaintiff brings witnesses supporting his claim. We do, however, accept testimony from witnesses that are brought to exempt a party.

Paragraph 19- We do not accept witnesses against a minor, even if in front of the minor, because in front of a minor is the equivalent of not in front of him. The specifics of this rule will be explained in Siman 110.

Paragraph 20- Two people are not qualified to accept testimony. If they accepted testimony, it is meaningless.

Paragraph 21- The acceptance of testimony requires three experts who are familiar with the rules of valid and invalid witnesses and are careful that each testimony conforms with the other, as the Mishna says, “one must be careful with his words lest he learn to lie from them.” Anyone who accepts testimony and is not fit to judge, is as if he accepted false testimony. One cannot judge based on such a document. Rather, they rely on the actual witnesses.

Paragraph 22- It is appropriate for those that accepted the testimony to publicize who the witnesses are in the document of the acceptance of testimony. However, there is no harm if they did not write who the witnesses are.

Paragraph 23- If the community wants to institute that the two scribes accept the testimony and collect based on their words or if they want the signature of the scribe to count as two witnesses if a witness that was called to testify had to leave, such rules would be valid because on all these matters the public has permission to institute as they see fit in their cities.

Paragraph 24- If one claims that he has two sets of witnesses and one set says that they do not know anything, the party does not forfeit his rights and may be bring the second set. We only accept testimony during the day. If they accepted it at night- even where the witnesses were being chased overseas, we may not judge based on that acceptance of testimony. If, however, the parties accepted the right to accept testimony at night, we may even accept in the first instance.

Paragraph 25- We cannot accept testimony before the defendant responds to the plaintiff because the defendant may confess and we will not need the witnesses. There is no need to burden the court.

Paragraph 26- If the court was standing while accepting the testimony from the witnesses, what’s done is done. If they were leaning, it is even permitted in the first instance because leaning is like sitting. In Siman 17 we explained that today we have the custom to seat the witnesses.