Translation:Shulchan Aruch/Choshen Mishpat/34

From Wikisource
Jump to navigation Jump to search
Shulchan Aruch
by Yosef Karo, translated from Hebrew by Wikisource
Choshen Mishpat 34
2522433Shulchan Aruch — Choshen Mishpat 34Yosef Karo

Paragraph 1- A wicked person is disqualified from testifying. Even a valid witnesses that knows his colleague is wicked, but the judges are unaware, is prohibited from testifying with him, even though the testimony is accurate. All the more so in a case where a valid witness has testimony for a party and he knows that his co-witness is a false witness, is he prohibited from testifying with him.

Paragraph 2- Who is considered wicked? One who violates a prohibition that is deserving of lashes. All the more so in a case where he is deserving of court-prescribed death. It does not matter if he violated it out of desire or out of spite. If one violated a prohibition that is not deserving of lashes, he is rabbinically disqualified from testifying.

Paragraph 3- If the sin he violated was rabbinical, he is rabbinically disqualified. There are those that say that one is only disqualified for a rabbinical sin that was done because of desire of money.

Paragraph 4- Those that have a buried a body on the first day of Yom Tov are able to testify, even if a nidui was placed on them and they repeated the violation because they believe they are doing a mitzvah and the nidui was simply for atonement purposes. The same applies to any prohibition where we are able to say that he violated it out of error. See earlier Siman 24. One who lifts his hand to strike his friend is rabbinically disqualified from testifying.

Paragraph 5- One who violates an oath, whether it was an oath in vain, a false oath on a monetary matter or an oath of commitment, is disqualified from testifying, even if he merely violated a cherem that the public placed on him. There are those that say that he is only disqualified if he violated an oath he made regarding an event in the past because at the time of the oath it was a lie, but an oath for a matter in the future, such as I will or will not eat this item, would not disqualify him. If witnesses testify on someone that he violated his oath, he is not believed to say he is still valid because the violation was a mistake or was done under duress.

Paragraph 6'- If a butcher produces a neveilah or treifah animal, he is disqualified from testifying. See Yoreh Deah Siman 119 where this matter is explained.

Paragraph 7- Thieves and robbers are disqualified from testifying from the time of the theft or robbery until they repent, even if they returned the item. See earlier Siman 29. One who divvies up with a thief is not disqualified from testifying. See later Siman 92 regarding at what point a guardian who denies receiving a deposit is disqualified.

Paragraph 8- A witness who was impeached, even on a monetary case where he reimbursed the party, is biblically disqualified from all testimonies. At what point is he disqualified? From the time he testified in court, notwithstanding the fact that he wasn’t impeached until a later date.

Paragraph 9- Witnesses on a document cannot be impeached unless they said in court that the document was written on its date and was not delayed. If, however, they did not say that, even if the document has a date of 1 Nissan in Jerusalem and witnesses testify that the document’s witnesses were with them in Babylon on the date of this document, the document and the witnesses are both valid because it is possible that they wrote it and postdated it. We say that when they were in Jerusalem on 1 Adar they wrote this document and postdated it for Nissan. If they said we wrote it on its date and they were impeached and there are witnesses that know the date they wrote the document or there were witnesses that saw the document on a certain date, their impeachment would disqualify them retroactively from the date that we know the document had been signed because signed witnesses are considered as if their testimony was investigated in court at the time of the signature. If, however, there were no witnesses that saw them sign or saw the document on an earlier date, the witnesses will only be disqualified from the time they testified in court that this is their handwriting and it was written on its date because it is possible that it was actually signed on the date it they testified in court and they had the document around for many years and they lied and said it was written on its date. Witnesses that deliberately signed on a predated document as disqualified from testifying.

Paragraph 10- One who lends with interest is disqualified from testifying. Both the lender and borrower are disqualified. If it was literal interest, they are biblically disqualified. If it was rabbinical interest, they are rabbinically disqualified. There are those that say the only the lender, and not the borrower, would be disqualified if lending with avak ribbis.

Paragraph 11- One who lends money of orphans out with interest, even literal interest, would not be disqualified from testifying because he thinks he is doing a mitzvah by having the orphan’s property turn a profit.

Paragraph 12- If a witness that signed on a document had died, and witnesses testify that the deceased would lend to other Jews with literal interest and it is well-known that he was a guardian or the agent of a gentile we assume that he lent the gentile’s money with interest. Similarly, if he was a guardian, we assume he lent the orphans’ money with interest. If, however, he did not have such a reputation, we do not make this assumption until it becomes clear to us. If witnesses testify on a person who is known as valid that he lent with interest, he would not be disqualified because we assume he lent in a manner that was not prohibited or that he erred and thought the manner he did it in was not prohibited.

Paragraph 13- One who violates rabbinical theft is rabbinically disqualified from testifying. How so? If he stole a found-item from one was who deaf, a fool or a minor or if he is a chamsan- one who takes land or movable items without the owner’s permission and pays for it. The same applies if he is a shepherd of his own animals- whether of small or large animals. He is disqualified because there is an assumption that he participates in theft and allows his animals to graze in the fields and gardens of others.

Paragraph 14- A tax-collector is assumed to be disqualified because we assume they take more than they are entitled by law of the land. The collectors of the king’s tax, however, is assumed to be valid. If it is known that he took more than he was entitled to- even just one time, he is disqualified. There are those that say that the definition of a tax-collector is one who collects a tax based on his decision-making with no affixed amount. Therefore, we presume it is invalid because we assume he plays favorites with some individuals and is difficult with others. Therefore, the city-appraisers who place a tax on the all the people in the city based on their estimation must be careful not to flatter one person while mistreating another and thereby disqualifying themselves from testifying and taking oaths.

Paragraph 15- A sharecropper that took a small amount of the early fruits in Nissan or Tishrei, prior to the conclusion of its work and some say for a fruit that’s work was finished, even without the knowledge of the owner, is not a thief and is able to testify because a field-owner is not strict about this. The same applies to anything similar.

Paragraph 16- Those that teach birds how to capture other birds from a nest in a populated area are disqualified from testifying because we assume they are stealing other’s birds. The same applies to those that sit idle and then grab fruits when shmitah comes and start participating in commerce because we assume they are doing business with fruits of shmitah. The same applies to those that that gamble with stones assuming they have no other trade because they are not participating with the settling of the world and have the status of those that eat from gambling, which is quasi-theft. This does not only apply to stones, but also to those that play with nut-shells and pomegranate shells. Similarly, this does not only apply to birds but even to those that play with domesticated animals, wild animals and any type of birds and say whoever’s comes first or defeats its opponent will receive double. The same applies to any similar game assuming he has no other trade other than this game, and he will be disqualified from testifying. These are all rabbinical disqualifications.

Paragraph 17- One who is not familiar with Chumash, Mishna or the ways of the worlds is in the category of wicked and is rabbinically disqualified from testifying. Therefore, we do not give or accept testimony from an ignoramus unless he is established as someone who participates in mitzvos and good deeds and goes in the straight path and is civilized, notwithstanding the fact that he is an ignoramus and is not familiar with Chumash or Mishna. In sum, any scholar is assumed to be valid until he is disqualified and any ignoramus is assumed to be invalid until he is established as someone who goes in the right path. Anyone who accepts the testimony of an ignoramus before he is established as going in the right path or before witnesses come and testify that he keeps the mitzvos and is civilized, is a fool and will have to answer for his actions in the future because he is destroying Jewish money based on the words of the wicked.

Paragraph 18- Low-lives are rabbinically disqualified from testifying. These are people who walk and eat in the market in front of everyone. People like this go naked in the market when they are working on a disgusting matter or something similar in that they do not have any shame and are considered like dogs and do not care about testifying falsely. Included in this are those that publicly accept charity from gentiles, even though it is possible for them to be supported privately. They degrade themselves and have no care. All of these are rabbinically disqualified. Anyone who accepts payment to testify has his testimony nullified just like someone who takes payment to judge as was explained above in 9:5. No formal announcement is required. The ruling and testimony are void automatically. If he returns the money, his ruling and testimony are valid because it is not like other disqualifications where a formal announcement and repentance are required. It is merely a fine that the rabbis instituted that any action he takes should be void if he accepts payment. This all applies to witnesses that already saw the incident and are obligated to testify just as a person is obligated to judge between two litigants. However, it is permitted for someone who is not required to testify to accept payment to go and see the future incident. If a judge already ruled and a party brings him a gift for advocating for him, he is prohibited from accepting the gift. Anything a person testifies because of fear of pain has no substance.

Paragraph 19- A gentile and slave are disqualified from testifying.

Paragraph 20- One who hates another and says publicly “I will go and hand over your money to the authorities” is disqualified from testifying.

Paragraph 21- A mamzer, a person with crushed testicles, a person with a cut-off penis and one who is uncircumcised because his bothers died from circumcision are all allowed to testify.

Paragraph 22- Snitches, heretics and mumarim are of a lower level than gentiles and are disqualified from testifying. A snitch cannot testify, even if the victim forgave him, until he repents. An apostate who agrees to repent is valid immediately even if he has not yet done it.

Paragraph 23- The testimony of one who is biblically disqualified is void even if they did not make a formal proclamation in the synagogues and study halls. If one who is rabbinically disqualified testified before a formal announcement, the testimony is valid. Even a biblical disqualification should only be used in a case where we are certain, but not in a case of doubt, such as where he testified in court and witnesses subsequently came and testified that he violated a sin that would biblically disqualify him but we are unsure whether he violated it before his testimony or after. In such a case, we keep the individual in his original status and anything that he testified on is valid until we know that he violated the sin before his testimony. If an individual required a formal announcement for a rabbinical disqualification and he received a public punishment for the sin, such as his removal from the synagogue, it is as if they made a formal announcement.

Paragraph 24- If they testified about someone that he violated a specific sin, even though he did not receive a warning and therefore does not receive lashes, that individual is disqualified from testifying. This is true where he violated a sin that all of the Jews know is a sin. If, however, they saw him commit a sin on something that is close to a mistake, they must warn him first and then disqualify him. How so? If they saw him tying or untying on Shabbos they must inform him that this is a desecration of Shabbos because most people don’t know this. Similarly, if they saw him doing work on Shabbos or Yom Tov, they must tell him that it is Shabbos because he may have forgotten. Similarly, one who consistently plays with stones or becomes a tax collector or a collector that adds for himself, the witnesses must inform him that anyone that does this is disqualified from testifying because most people don’t know these things. The same applies to anything similar.

Paragraph 25- A person cannot disqualify himself due to sin. Rather, witnesses must testify against him because a person cannot establish himself as wicked. Nevertheless, we would not make him a witness in the first instance as is discussed later in 92:5. Similarly, we do not disqualify based on a rumor or mere suspicion such as where someone is suspect in the area of immoral relations because he often secludes himself with forbidden relations and rumors have spread. Such a person is valid for all testimony with exception of testimony for a woman. For the laws of those that are suspected, see Yoreh Deah Siman 119.

Paragraph 26- If a borrower testified against a lender that he lent him with interest and the borrower has another witness join with him to disqualify the lender, although a person cannot establish himself as wicked, we can split his words and we believe him with respect to the lender but not with respect to himself. Similarly, if he testifies that so and so had sexual relations with him- even if consensual, or he testifies that so and so had sexual relations with his wife or animal, he and another person may join together and testify to disqualify him. The same applies with respect to a theft victim who may testify against the thief just like a borrower can testify against the lender, so long as he gets no gain out of his testimony.

Paragraph 27- There are those that say that where one takes an oath to contradict a solo witness, that witness and the party that was the recipient of the oath may join together to disqualify the person that took the oath. The same applies if he took an oath to two counterparties, and they can testify against him to disqualify him. There is no distinction whether he swore to both in one oath or one after the other. There are those that disagree and hold that even if there were two counterparties who each had their own witness, they would not be able to join together once he stood in judgement and he swore on the testimony. Prior to this, however, they are able to testify against him.

Paragraph 28- If two witnesses testify about a person that he is disqualified based on one of these sins and two others come and testify that the person repented or received lashes, the individual is valid. If, however, two come and contradict the witnesses and say he never committed this sin and is not disqualified, the disqualification is in doubt. Therefore, he may not testify. We would not transfer money on the basis of his testimony and he may not judge until it is known that he repented. Two witnesses that testified about a person that he is invalid, such as where one said he stole and the second said he lent with interest, may combine together to disqualify him.

Paragraph 29- Anyone who is liable to receive lashes, once he receives the lashes in court, he returns to his valid state. With respect to other witness disqualifications that are due to money that was taken or stolen, however, even if he paid back, he must repent. He would remain disqualified until it is know that he has repented from his evil ways. When do we know a person repented from lending with interest? Once they tore up their documents on their own and made a full repentance and agreed not to lend with interest- even to a gentile. He must return any interest he took to its owners. If he doesn’t know who he took it from, he must perform public needs. There are those that say that this only applies to one who often committed theft or robberies. With respect to someone who only committed theft or robbery on occasion, however, as soon as he returns what he stole, he has repented. This is only where he returned it on his own. If, however, he only returned it because the court forced him to, his return will not help until he repents.

Paragraph 30- When does repentance for those that play with rocks occur? Once they break their stones and perform a complete repentance and commit not to play- even without money.

Paragraph 31- When does repentance for those that train birds occur? Once they break the vessels they use to trap the birds and perform a complete repentance and commit not to do trap again- even in the desert. There are those that say that both in this case and in the case of playing with rocks, they must return the profits they made.

Paragraph 32- When does repentance for those that deal in shmitah fruits occur? Once shmitah occurs and they refrain. They cannot just repent with words. They must write, “I so and so the son of so and so, gathered 200 zuz of shmitah fruits and I am giving them away as a gift to the poor.”

Paragraph 33- When does repentance of one that committed a sin with an oath occur? Once he comes to a court that does not recognize him and says “I am suspect” or when he is obligated to take an oath in a court that does not recognize him for a significant sum of money and he chooses to pay and not take the oath.

Paragraph 34- With respect to repentance of a butcher who supervised himself and a sold a treifah, he must wear black, cover himself in black and go to a place that is unfamiliar with him and return a lost item of significant value or get rid of a trefiah in his possession of a significant value. See Yoreh Deah Siman 119.

Paragraph 35- The repentance of an impeached witness is to go to a place that is unfamiliar with him, and they give him a significant amount of money to testify falsely and he does not want to.