Translation:Shulchan Aruch/Choshen Mishpat/90

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Paragraph 1- What is the process with respect to a victim of theft? If witnesses saw an individual enter into another’s home to take possession of an item without permission and when he entered the thief had nothing under his clothing but when he left they saw vessels under his clothing and the witnesses do not know what they are, and the homeowner makes a claim on such and such items that were stolen from him, in all cases the homeowner would swear while holding a holy item and collect that which he claims. This is true whether the thief says it is true that he entered to take possession but he did not take anything, or the vessels that he took belong to him, or he says I never entered your house to take anything or he says I only took this vessel and the homeowner says you took others as well and even if the witnesses did recognize some of the vessels but the homeowner claims the thief hid others that the witnesses did not see. This only applies where the homeowner makes a claims on items that he would be profiled to have or items that he would be profiled to receive as a deposit and the items must be those that can be placed under the thief’s clothing. There are those that say that the homeowner must make a claim on items that are typically placed in the area the thief entered. If the homeowner makes a claim on items that he is not profiled to have or items that cannot be hid under clothing, there are those that say that the defendant would take a heses oath and be exempt and there are those that say that he would not swear but we would place a cherem on anyone who denies his counterparty’s money and does not pay.

Paragraph 2-If the witnesses saw the defendant enter to take possession of the homeowner’s items but did not see him when he left or if they saw him when he left but did not see anything under his clothing, and the homeowner makes a claim on such and such items, the defendant would be exempt, even if he says he never entered the homeowner’s house, thereby contradicting the witnesses because had he said I entered but did not take anything he would take a heses oath that he did not take anything and would be exempt since it is possible he entered to steal but did not end up stealing. There are those that say that since that the witnesses contradict him and he is not believed with an oath, it is a migu opposing witnesses which one is not believed to make. Rather, the homeowner would swear and collect.

Paragraph 3- If a solo witness testified that the defendant entered to take possession and took vessels under his clothing and the witness does not know what they are and the defendant says he did not steal anything or that he took the items as payment for his debt, because the witness does not know what was under the defendant’s clothing, the defendant would swear that he did not steal. See above 75:13 and later 364:3.

Paragraph 4- Just as a homeowner is believed to swear and collect, so too is the homeowner’s guardian, or even the guardian’s wife, able to swear that the defendant took such and such and the thief would pay the homeowner. A hired worker or paid grain-gatherer of the homeowner whom were not tasked with watching the house, however, are not included in this rule.

Paragraph 5-If when the defendant entered to take possession without permission and the witnesses saw him leave with vessels under his clothing, the homeowner is not present and thus cannot swear how much was stolen from him, and the witnesses do not know how much was taken, we would not have the thief swear because he is suspect with respect to swearing. Rather, we place a general cherem on anyone who takes vessels from another’s home and does not confess in court. Even if the thief were to partially confess on the theft, he would only return that which he confessed to because the homeowner is not making a certain claim against him.

Paragraph 6- If the witnesses testified that the homeowner had such and such vessels and that they saw someone enter the homeowner’s home and leave and no other person entered and before anyone else could enter they counted those vessels and some were missing and there was no place where those vessels could have fallen, there are those that say that the homeowner could, without an oath, collect those vessels that were missing from the defendant the witnesses testified entered his home.

Paragraph 7- If one lights a fire on his friend’s property, he has granted believability to the victim to swear and collect whatever is profiled as belonging to the victim or as being deposited with the victim, in the manner that will be explained in Siman 418.

Paragraph 8- If one has witnesses against him that he had informed on another’s money and they don’t know how much loss he caused and the victim says you caused me this amount of a loss which the informer denies, the law will be explained in Siman 388.

Paragraph 9- If one damaged another’s property and does not know how much he damaged, the victim would swear in accordance with the rabbis’ institutions and would collect, so long as he claims items that he is profiled to have, as will be explained in Siman 388.

Paragraph 10- If one deposited a bag of pebbles with another and the guardian was negligent and the depositor says there were gold ornaments and pearls in the bag and the guardian says he doesn’t know and perhaps there was refuse or sand in the bag, the owner of the deposit would swear and collect, so long as he makes a claim on something he is profiled to own or have deposited with him. If the guardian says he is certain that the bag was full of refuse and sand, he would swear and be exempt. If the guardian says I know there was gold but I don’t know how much, the depositor would collect without an oath. There are those that say that the guardian would swear that he does not know and would be exempt. This will be explained further in 298:1.

Paragraph 11- If one enters into the homeowner’s home in the presence of the homeowner and leaves with vessels hidden under this clothing, which the witnesses see, and the homeowner later says give me the vessels I lent you and here are the witnesses, and the defendant says I purchased them, the defendant would not be believed and the homeowner would take a heses oath on his claim that he did not sell them or give them to the defendant and the court would return the vessels to the homeowner. When is this true? When the homeowner does not have the practice to sell his vessels, the defendant who took the vessels under this clothing does not have the practice to hide vessels and people generally do not have the practice to hide those particular vessels. Because of these factors, the defendant is required to return the vessels because he only hid them so he could deny taking them. With respect to a homeowner that does have the practice to sell his vessels, the defendant would swear a heses oath that he purchased them, even if this person is not a modest person and those vessels are not generally hidden under clothing. Similarly, if the defendant took the vessels out in the open in front of witnesses, he would be believed to say he purchased them, even if the homeowner does not have the practice to sell his vessels because he may have needed the money and sold them. This is true so long as the items are not things that he always lends or rents out. If, however, the vessels were those that he always lends or rents out, they would remain in the status of their owner, even if the defendant took them out in the open and the homeowner does not have the practice to sell his vessels because since the homeowner has witnesses that this vessel is loaned and rented out, he knows that they will remove the item from the defendant immediately, at least until the defendant can bring a proof that he sold or gave the item to him. There are those that say that even if the homeowner claims the items were stolen, the rule would be the same as if he said they were borrowed. There are others that say that they only said this rule where the homeowner claims they were borrowed. If, however, the homeowner says they were stolen, the homeowner would not be believed. This is the primary view. If this defendant has been established and publicized as a thief, even if the homeowner were to claim the items were stolen, the law would be as if he claims they were borrowed.

Paragraph 12- This that a homeowner is believed with respect to items that are generally loaned or rented out is only where he has witnesses that these vessels are his and they now see it in the defendant’s possession. If, however, if they do not now see the vessels in the defendant’s possession, the defendant is believed with a migu that he returned the items to the homeowner.

Paragraph 13- This that we say that the party taking out the vessels is believed with respect to vessels that are not generally loaned and rented out is only where the witnesses are not aware that the vessels came to the party’s possession via a loan or rental. If, however, the witnesses know that the vessels came into the party’s possession via a loan or rental, the party is not believed. See above 72:18.

Paragraph 14- All of the aforementioned is only where the homeowner was present when the defendant entered and took out the vessels. If, however, the witnesses saw the defendant enter the homeowner’s property and take the vessels outside the homeowner’s presence, the defendant would never be believed to say he purchased them. Thus, the defendant must return the vessels to the homeowner. There will be no oath because the witnesses saw what he stole. Once the defendant has returned the items, he may make a claim against the homeowner for whatever he wants to claim and they will judge accordingly.

Paragraph 15- Similarly, if one grabbed an item from another and says he is taking it as payment for his debt, he would not be believed. Rather, if there are witnesses that he grabbed the item from the other’s hands or home, he must return the item. If there is only one witness and the defendant denies the claim, he would swear to contradict the witness. If the defendant does not deny the incident but says that he took possession as payment for a debt, he must return the item. The same would apply where a solo witness testifies that the defendant entered the home of another and took an item outside the presence of the homeowner. See above 75:13.

Paragraph 16- What is the process with respect an assault victim? If witnesses saw the victim go under the control of the defendant whole and come out bruised but they did not witness the actual assault and the victim says the defendant assaulted him and the defendant says he did not assault him, the victim would swear and collect. If there is proof that the defendant assaulted him, such as where the bruise was in a place that it is impossible for one to bruise one’s self (e.g., between the shoulders or somewhere similar) and there was no one else there, the victim can collect without an oath. Even if there was another person there, if it is clear to the witnesses that such other person did not assault the victim, it is as if there is no other person and the victim can collect without an oath.