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חושן משפט

חושן משפט ב

פרק טו

א ב ג ד ה ו ז ח ט י יא יב יג יד טו טז יז יח יט כ כא כב כג כד כה כו כז כח כט ל לא לב לג לד לה לו לז לח לט מ מא מב מג מד מה מו מז מח מט נ נא נב נג נד נה נו נז נח נט ס סא סב סג סד סה סו סז סח סט ע עא עב עג עד עה עו עז עח עט פ פא פב פג פד פה פו פז פח פט צ צא צב צג צד צה צו צז

Choshen Mishpat

Choshen Mishpat 2

Chapter 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97

א ב ג ד ה ו

15:1 15:2 15:3 15:4 15:5 15:6

Sif

הלכה א

איזה דין דנין תחלה ודין דין מרומה ובו ה סעיפים:
צריך הדיין שיקדים לדון הדין שבא לפניו תחלה אבל צריך להקדים דין של תלמיד חכם אפילו בא לבסוף וכן מצוה עליו להפך בזכותו מה שיכול: הגה ואם הת"ח בעצמו לפני הדיינים אפי' פתחו כבר בדין אחר דנין אותו תחלה שלא יתבטל מלמודו אבל אם קרובו בא לדין אם פתחו בדין אחר אינו צריך לפסוק ואם לאו צריכין לדון אותו תחילה משום כבוד החכם (ב"י בשם הריטב"א):

משנה ברורה

1.

The Judge is required to give priority to the adjudication of a lawsuit that comes before him first [in order];1San. 8a: ‘Ye shall hear the small and the great alike (Deut. I, 17). Resh Lakish stated: (This verse intimates) that a lawsuit of a Perutah should be regarded by you as equally important as one involving a hundred Maneh. For what practical issue is this law stated? If it is to insist that we study the case carefully, is this not obvious! Rather, it is to give preference to the case if it is first in order.’ ‘A lawsuit that comes before him first (in order),’ means that the litigant pleaded his case first and the Judge prepared himself to listen to his case although the claim may have been filed in Court later — M.E. but he must give priority to a lawsuit of a scholar2Whether he is the claimant or the defendant — K.H., A.H. Derived from Sheb. 30a: ‘R. ‘Ulla, the son of R. Elai had a case before R. Naḥman. R. Joseph sent (a communication) to him (R. Naḥman): Our friend ‘Ulla is a fellowman (i.e., a colleague, a scholar) in Torah and precepts. Said (R. Naḥman): Why did he send (this communication) to me? (Did he mean) that I should favour him in Court? (Certainly not!) Then he (R. Naḥman) said: (Perhaps he meant) that I should decide his case first (so as not to detain him); or, (with respect to) discretionary judgment (i.e., to which of the claimants to adjudicate the claim in a case that does not depend on witnesses or an oath but rather on the discretion of the Judges. R. Joseph, therefore suggested that if ‘Ulla’s case was of such a nature, then because he was a scholar he should give preference to his case).’ The latter alternative possibility is omitted here because we rule today that in matters pertaining to the descretion of the Judges (שודא דדײני) the Judge must be a Mumḥeh (v. Glos.). , infra § 240, 3, Gloss and Ket. 94b, Tosaf. s.v. אימיה. even if it comes last [in order].3In accord with the second interpretation of Sheb. 30a, Tosaf. s.v. למישרי because the positive precept of showing respect for the Torah takes precedence over the positive precept Ye shall hear the small and the great alike. So too, is he [the Judge] religiously dutibound to seek whatever [points] he can [find] in his [the scholar's] favour.4Shab. 119a: ‘Raba said: May I receive Divine reward for that when a disciple appeared before me with a lawsuit I did not rest my head upon my pillow before I had found (points) to his advantage (not as a result of partiality but rather because a scholar would not come with a lawsuit unless he was sure that he had a just claim).’ , Sheb. 30a, Tosaf. s.v. למאי. The majority of Codifiers rule that nowadays, too, a scholar enjoys this privilige — P.Tesh., A.H. a.o. Gloss: And if the scholar himself [appears] before the Judges, [then] even [if] they had already begun [to adjudicate] another lawsuit, they should judge him [the scholar] first, so that he should not be disturbed from his studies.5, B.B. 22a whence we see that in the case of scholars or Rabbis we adopt leniencies so that they should not be disturbed from their studies. However, if his [the scholar's] relative appeared for trial, [then] if they had [already] begun [to adjudicate] another lawsuit, there is no need to interrupt [the adjudication]; but if they had not [begun], they [the Judges] must judge him [the relative] first on account of showing respect for the scholar.6B.Yos. on the authority of RITBA — G. , Ket. 106a whence we derive that one must also give priority to the lawsuit of a scholar’s relative. Hence, the law is that when the scholar himself appears in Court, or sends a mandatory to replace him, or informs the Court of Law that he is sending his relative to be tried, although the latter’s case has nothing to do with the scholar, we give priority to the scholar or his relative. However, if the scholar’s relative came with a lawsuit and the scholar did not inform the Court concerning his relative’s case, he has no priority rights, for in this case we are not obliged to show respect for the scholar’s relative save in the case of the scholar’s wife who enjoys the same privileges as her husband — A.H.

Mishnah Berurah

הלכה ב

היו לפניו דינים הרבה מקדימין דין היתום לדין האלמנה ודין האלמנה קודם לדין ת"ח ודין ת"ח קודם לדין עם הארץ ודין האשה קודם לדין האיש:

משנה ברורה

2.

[If] before him [the Judge] there were many lawsuits [awaiting a legal decision],7The laws of precedence here are applicable only when they all appeared simultaneously in Court, but if one appeared first, he receives precedence save in the case of a scholar versus an illiterate person where the law is that even if he appeared last, he receives precedence (v. par 1 supra). we give priority to the orphan's lawsuit over the lawsuit of the widow,8Tur citing Yad, Sanhedrin XXI, 6. Derived from Judge the orphan, plead for the widow (Is. I, 17) quoted by Yad, ibid. Cf. however, Ye shall not afflict any widow or orphan (Ex. XXI, 21) where the widow is placed before the orphan. This presents no difficulty because the latter text speaks of affliction of the widow or orphan who are forlorn and heartbroken (v. Yad, De‘oth VI, 10) in which case the widow suffers more than the orphan (cf. San. 22b: ‘The death of a man is felt by none than his wife’). But young orphans are not mature enough to realize the gravity of their loss. Hence, in this respect the Bible gives priority to the widow. However, in the case of a lawsuit the orphans are weaker than the widow. Consequently, the orphans receive precedence — Be’er Eliyahu. and the lawsuit of the widow takes precedence over the lawsuit of a Scholar,9Whence it follows that the lawsuit of an orphan certainly takes precedence over that of a Scholar which contradicts the ruling in par. 1 supra which is derived from Ket. 105b-106a: where it is related that R. Anan who once accepted a gift (v. reason a.l) from a man who brought a lawsuit to him sent the latter to R. Naḥman to whom he also sent (the following communication): ‘Will the Master adjudicate (the case of) this man because I, Anan, am ineligible to act as Judge for him. Since he dispatched such a message to me, (R. Naḥman) thought, he must be his (R. Anan’s) relative (and one is forbidden to act as Judge or witness in a relative’s action). An orphan’s lawsuit was going on before him and he pondered: This one (i.e., to judge an orphan) is a positive precept and that one (to show respect for a Scholar and consequently, for his relative too) is also a positive precept, but the positive precept of showing respect for the Torah (i.e., for a Scholar on account of his learning) takes precedence. Consequently he put aside the orphan’s lawsuit and placed before him that man’s suit. When the other litigant noticed the honour he (R. Naḥman) was showing him (his opponent whom R. Naḥman thought was R. Anan’s relative) he had nothing to say (i.e., he was intimidated).’ In order to remove the contradiction between the present ruling and that of par. 1 supra the following point should be made: In par. 1 we deal with a case where the legal guardian (אפוטרופוס) of the orphans brought the lawsuit. This is substantiated by the expression דינא דיתמי (not והוו יתמי קמיה) employed in Ket. ibid., the source of the ruling that we give priority to the Scholar’s lawsuit; in the present ruling we refer to the orphans themselves who appeared in Court — Be’er Eliyahu. and the lawsuit of a Scholar takes precedence over the lawsuit of an illiterate person,10, supra n. and the lawsuit of a woman takes priority over the lawsuit of a man.11Yeb. 100a: ‘In former times, when a man and a woman (with different lawsuits) appeared before me for a legal decision, I used to settle the man’s lawsuit first, because I was of the opinion that a man (should receive precedence) being subject to the fulfilment of all the commandments (a woman is exempt from some); when, however, I heard this (the reason why a woman should be given her share of the poor man’s tithe first. , Gem. a.l), I settle a woman’s lawsuit first. Why! So as to save her from degradation (it would be a degradation for her to have to wait her turn in a company of men).’

Mishnah Berurah

הלכה ג

הדיין שבא לפניו דין שיודע שהוא מרומה לא יאמר אחתכנו ויהיה הקולר (פי' שלשלת העון) תלוי בצואר העדים כיצד יעשה ידרוש בו ויחקור הרבה בדרישה וחקירה של דיני נפשות: הגה ומ"מ אין דינו כדיני נפשות שאם אמר בא' מן החקירות אינו יודע שיתבטל העדות אלא ר"ל שיחקור בדין מרומה כל מה שאפשר (ריב"ש סי' רס"ו) אם נראה לו לפי דעתו שיש בו רמאות או שאין דעתו סומכת על דברי העדים אע"פ שאינו יכול לפסלן או שדעתו נוטה שבע"ד זה רמאי ובעל ערמה והשיא את העדים אע"פ שהם כשרים ולפי תומם העידו וזה הטעם או שנראה לו מכלל הדברים שיש שם דברים אחרים מסותרים ואינם רוצים לגלותם כל אלו הדברי' וכיוצא בהם אסור לו לחתוך אותו הדין אלא יסלק עצמו מדין זה וידוננו מי שלבו שלם בדבר והרי הדברים מסורים ללב וכשהיה רואה הרא"ש באומדנא דמוכח שהדין מרומה הי' כותב ונותן ביד הנתבע שאין לשום דיין להשתדל בדין זה:

משנה ברורה

3.

The Judge before whom a lawsuit comes [up] which he knows to be fraudulent, should not say, 'I will decide it [in accordance with the testimony of the witnesses] and the collar12Heb. קולר from the Lat. collare, ‘collar,’ the Roman prisoner’s iron collar or chain around the neck. [of responsibility], i.e., the chain of guilt, will hang around the neck of the witnesses.'13Yad, Sanhedrin XXIV, Derived from Sheb. 30b-31a: ‘Whence do we know that a Judge who knows that a lawsuit is fraudulent (having reached a conclusion from the testimony of the witnesses that they spoke falsely), should not say, Since the witnesses bear testimony, I will decide the case (in accordance with their testimony) and the collar (of responsibility) will hang around the neck of the witnesses? — For it is said: From a false matter keep far (Ex. XXIII, 7).’ In what manner should he act? — He should investigate and inquire into the matter closely by means of [the methods employed in the] cross-examination and investigation of capital cases.14San. 32b: ‘R. Papa stated (in reconciling the views of the Mishna [San. 32a] that both monetary and capital cases require examination and inquiry, and the Baraitha [ibid.] according to which examination and inquiry in civil suits are not necessary) … In our Mishna the lawsuit is fraudulent (therefore, there must be a thorough examination and investigation), but in the other (Baraitha) the lawsuit is not fraudulent. This accords with Resh Lakish, for Resh Lakish pointed out an incongruity (between two verses): It is written, In justice (E. ‘righteousness’) shalt thou judge thy neighbour (Lev. XIX, 15); and (elsewhere) it is written, Justice, justice shalt thou follow (Deut. XVI, 20. The repetition of the word justice indicates a more thorough investigation). How is this possible? — The latter verse refers to a lawsuit that is fraudulent; the former verse to a lawsuit that is not fraudulent.’ However, this passage contradicts the passage in Sheb. ibid. (v. previous note) according to which the Judge is required to withdraw from adjudicating a fraudulent lawsuit. There are in the main three views held among the Codifiers in order to reconcile these two Talmudic sources. a) Tosaf. (San. 32b, s.v. כאן) maintain that in Sheb. we deal with a lawsuit that we know to be fraudulent. Hence, the Judge is obliged to withdraw from such a case; while in San. we deal with a lawsuit that is suspected of being fraudulent. Consequently, examination and inquiry are required in order to determine for certain the fraudulence in the case. b) Maim. (Yad, ibid.) holds that both in Sheb. and San. we deal with a fraudulent lawsuit only that in Sheb. examination and inquiry had already been applied (note the expression ‘A Judge who knows that a lawsuit is fraudulent).’ Consequently, we apply the verse, From a false matter keep far and the Judge must withdraw from the case. In San., however, we deal with a fraudulent lawsuit where examination and inquiry were not conducted as yet. Accordingly, there is no difference whether the plaintiff made a fraudulent claim or whether the defendant presents a dishonest case, — the Judge must withdraw. And although the defendant may benefit according to this view, nevertheless, we are not responsible (This perhaps explains the version found in some texts of Yad ibid.: וידון אותו מלכו של עולם ‘Let the King of the world judge him’ instead of וידוננו מי שלבו שלם ‘One whose heart [intelligence] is perfect should judge it.’ In other words, even if the defendant will benefit, the ‘King of the universe’ will eventually see that justice is carried out). c) Asheri reconciles the passages as follows: In Sheb. the plaintiff is the one who makes the false plea. Therefore, the Judge should withdraw; while in San. we deal with a case where the defendant is a fraudulent person. Hence, in order for the latter not to benefit, the Judge must not withdraw. , infra par. 4. Gloss: Nevertheless, the law [of cross-examination in this case] is not [as strict] as [in] capital cases where if [a witness] stated during one of the inquiries, 'I know not,' that the testimony becomes void; but what is meant to be said is that he [the Judge] should inquire into a fraudulent lawsuit as much as it is possible.15RIBaSh s. 266 — G. If it appears to him [the Judge] according to his understanding that there is fraud therein, or where his common sense [directs him] not to rely upon the statements of the witnesses although he cannot [find grounds] to disqualify them, or where his [practical] judgment inclines [to assume] that this litigant is a deceiver and a cunning person and mislead the witnesses although they are eligible [witnesses] and gave evidence in ignorance of its legal bearing, and this party [the deceiving litigant] led them astray, or it appears to him [the Judge] from the general contents of the statements that there are other concealed matters therein and they are not willing to reveal them, — [then the law is that in] all these [aforementioned] matters and anything similar to these, he is forbidden to render a legal decision in that lawsuit, but he should withdraw from this case and one whose heart [intelligence] is perfect in [the examination of] such a case should judge it and these are matters entrusted to the heart [intelligence].16Yad ibid. followed by Tur who also cite, For the judgment is G-d’s (Deut. I, 17). When Asheri would notice on the basis of a well-grounded assumption that the lawsuit is fraudulent, he would prepare a document and place [it] in the possession of the defendant [to the effect] that no Judge should make an effort to try this lawsuit.

Mishnah Berurah

הלכה ד

במד"א שהתובע רמאי אבל כשהנתבע רמאי אין הדיין יכול להסתלק שלא ישתכר הרמאי ברמאותו אלא ידרוש ויחקור יפה לבטל רמאותו ואם נראה לו באומדנא דמוכח שהוא חייב יחייבנו אם הוא דיין מומחה ויחיד בדורו: הגה ובדרך זה יוכל הדיין לומר להנתבע ג"כ שלא יתן לו זמן עד שיעמיד ערבות כי אין לדיין באלו הדברים רק מה שעיניו רואות (מהרי"ק שורש י"ד) ויכול אפילו להשביע במקום שאינו חייב שבועה מצד הדין אם עושה כדי לברר האמת (שם שורש קפ"ז):

משנה ברורה

4.

When does this apply?17That the Judge should withdraw from a fraudulent lawsuit. , previous par. — Where the claimant is a deceiver. However, when the defendant is a deceiver, the Judge cannot withdraw [from the case] so that the deceiver should not be at an advantage, but he [the Judge] should examine and investigate [the defendant] closely in order to upset his deception.18R. Meir of Rothenberg, Asheri and Tur. , supra n. 14c. And if it becomes apparent to him [the Judge] on the basis of a well-grounded assumption that he [the defendant] is guilty, he may declare him guilty [provided] if he is a recognized Judge and distinguished in his generation.19Asheri Resp. Derived from B.B. 58a: ‘A certain man over-heard his wife say to her daughter, Why are you not more guarded in your immoral conduct? I have ten children and only one is (the issue) of your father. When (the man was) lying on his deathbed, he said, I leave all my possessions to one son. They knew not to which of them he referred, so they appeared before R. Bana’ah (to seek advice in this matter). He (R. Bana’ah) said to them, Go and knock at your father’s grave until he rises and reveals to you which one of you he meant. Thereupon they all went to do so. But the one who was really his son did not go. Whereupon (R. Bana’ah) said to them, All the possessions belong to this one. They went and informed against him (R. Bana’ah) before the king, saying, There is a man among the Jews who exacts money illegally from people without witnesses or any other proof. So they brought him (R. Bana’ah) and imprisoned him etc.’ R. Bana’ah based his opinion on a well-grounded assumption (אומדנא דמוכח) that the real son was the one who did not go to knock at the grave of his father (v. RaShBaM s.v. אמר להן). , further Ket. 78b-79a in accord with Tosaf. s.v. כתבתינהו לברתה in the case of a deed intended as a means of evasion that was torn up by R. Naḥman on grounds of assumption; also B.B. 146b; I Kings III, 16ff. on Solomon’s judgment based on the same principle although it was also a manifestation of the Holy Spirit; cf. also Yad, Sanhedrin XXIV, 1 for more examples of this principle. Should the defendant refuse to answer all the questions put to him by the Judge, he is presumed to be a liar and the Judge pronounces judgment accordingly, i.e., as if the fraudulence of the matter has already been established with certainty — M.E. Gloss: In this manner the Judge can likewise say to the defendant that he will not grant him [an extension] of time [in order to produce witnesses] until he deposits security, — for in such matters the Judge takes into consideration only whatever seems to him [to be correct],20MaHaRIK Rt. 14 — G. On the right to request an extension of time v., infra § 16. and he [the Judge] can impose an oath even where he [the defendant] is legally not bound to take an oath, — [provided] if he does [this] in order to ascertain the truth.21Ibid. Rt. 187 — G. Cf. Shab. 10a: ‘Every Judge who judges in perfect truth even for a single hour it is accounted to his credit as though he had become a partner to the Holy One, blessed be He, in the creation.’ Tosaf. ibid., (s.v. דין) write that this ‘excludes a fraudulent case,’ which means that only in the case of a דין אמת i.e., in a regular suit where no fraudulence or dishonesty is detected, the Judge is required to adopt the regular procedure of examination before rendering a legal decision; but in the case of a דין מרומה i.e., where fraudulence is apparent, the Judge may employ even other means which are legally not valid in order to establish the truth of the matter. , Be’er Eliyahu.

Mishnah Berurah

הלכה ה

יש לדיין לדון דיני ממונות ע"פ הדברים שדעתו נוטה להם שהם אמת והדבר חזק בלבו שהוא כך אע"פ שאין שם ראיה ברורה ומשרבו בתי דינים שאינם הגונים ובעלי בינה הסכימו שלא יהפכו שבועה אלא בראיה ברורה ולא יפגמו שטר ויפסידו חזקתו על פי עדות אשה או קרוב אע"פ שדעתו סומכת על דבריהם וכן אין מוציאים מהיתומים אלא בראיה ברורה לא בדעת הדיין ולא באומדן המת או הטוען ואעפ"כ אם העיד אדם נאמן בדבר מכל הדברים ונטתה דעת הדיין שאמת הוא אומר ממתין בדין ואינו דוחה עדותו ונושא ונותן עם בעלי דינים עד שיודו לדברי העד ודורש וחוקר עד שיתברר הדבר או יעשו פשרה או יסתלק מן הדין כמו שנתבאר: הגה ואם נראה לב"ד שאחד גוזל חבירו ולא יוכלו להוציאו ממנו בדין יכולין לגזור על שאר בני אדם שלא ישאו ויתנו עמו ואם היא אשה שלא תנשא לאיש ולא יעסקו בשידוכיה עד שתוציא מידה שאינה שלה (פסקי מהרא"י סי' ר"ס) וע"ל סי' שנ"ח סעיף ה':

משנה ברורה

5.

A Judge should try monetary cases in accordance with those facts to which his [practical] judgment inclines [to assume] that they are true and [provided that] the matter becomes firmly established in his heart [mind] that it is actually so, although no clear evidence is available thereon.22Tur on the authority of Yad, Sanhedrin XXIV, 1. Derived from Ket. 85a: ‘A certain woman was declared bound to take an oath in the Court of Raba, but when the daughter of R. Ḥisda (Raba’s wife) said to him, I know that she is suspected of swearing falsely, Raba transferred the oath to her opponent (cf. Sheb. 44b where the claimant in such a case receives the amount claimed on confirmation by oath).’ Cf. ibid. a and b for similar cases. However, from the time that Courts of Law [whose members] are not virtuous, — [and were they even virtuous in their deeds, are not sufficiently learned],23Thus Maim. in Yad ibid. XXIV, 2. nor possess understanding, — became numerous, they agreed not to transfer an oath [to an opponent] save on [the basis of] clear evidence,24Yad ibid. XXIV, 2. Thus also Alfasi to Ket. ibid. For this applies only in the case of R. Ḥisda’s daughter where Raba was certain that he could rely upon her evidence and therefore transferred the oath although he had no substantial proof for acting thus, but not nowadays. MaHaRIK Rt. 108 writes that even nowadays the Judge is dutibound to judge in accordance with the facts which appear to him as true and not in accordance with the pleas of the litigants if they contradict the truth. Thus also RaShBA in Resp. — M.E., ShaK. , also P.Tesh that nowadays one may judge on the basis of a well-grounded assumption. nor to impair a bond and [thereby] cause damage to its legal status on the testimony of a woman or a relative,25Ket. ibid.: ‘Once R. Papa and R. Adda b. Mattena sat before him (Raba) when they brought a certain bond before him. Said R. Papa to him, I know this bond has been paid up. Is there (Raba) asked him, any other person with the Master (to substantiate your statement)? No, he answered. Said the other to him, Although the Master is present (to offer testimony, the evidence of) one witness is legally not binding (Alfasi, Asheri and R. Isaiah Trani omit ‘one … binding.’ In accordance with the latter reading Raba required the corroborative testimony of another person because R. Papa was a relative to one of the contesting parties. , Tosaf. Caro follows this latter reading). Said R. Adda b. Mattena to him, Should not R. Papa be (regarded as trustworthy) as the daughter of R. Ḥisda (whose evidence was considered adequate to invalidate the defendant from taking an oath)? — (As far as) the daughter of R. Ḥisda (is concerned) I am certain of her (i.e., I deem her evidence reliable); I am not certain, however, about the Master (because he is related to one of the parties. This follows Alfasi’s reading supra). Said R. Papa, Now that the Master has stated (that the assertion of a Judge), I am certain of a person is considered reliable, I would tear up a bond on the testimony of my son Abba Mar of whose trustworthiness I am certain. I would tear up! Is that imaginable (certainly the testimony of two witnesses is required)? — But (what he meant was), I would impair a bond on his testimony (i.e., the one who produces the bond would have to substantiate the contents thereof by taking an oath before payment could be demanded — Tosaf.).’ although his [practical] judgment [is inclined to] rely on their statements.26Note the expression ‘I am certain’ employed in Ket. ibid. Consequently, if the evidence of R. Papa who was referred to by Rabba as a very learned and wise man (v. Men. 71a; Nid. 12b on the expression סודני in accord with the interpretation of Rashi and R. Gershon) was not deemed reliable, much more so nowadays we cannot rely on such evidence even if we are certain that it is trustworthy. , however, supra n. 24 end. Thus too, we do not make orphans surrender [aught nowadays] save on [the basis of] clear evidence,27, infra § 297, 1 where this ruling is explained. Cf. Ket. 85b where a number of cases are reported that when a person dies intestate and a claim is made against the orphans to return a deposit, which the latter maintain might have belonged to the deceased from whom they inherited it, the law is that a) if the deceased was not a wealthy man and consequently could not have been the owner of the deposit, and b) the claimant indicates identification marks, and c) the depositor was not a frequent visitor at the house of the bailee and did not see the deposit, — we return the deposit to the claimant, but not nowadays. Alfasi and Asheri maintain that even today this ruling would be in force. Hence, it is not understandable why Isserles does not report their ruling in the present par. — M.E. nor [do we make them surrender aught] on [the basis of] the knowledge of the Judge,28As stated in Ket. 85b where the expression ‘I know that he (the person who died intestate) was not wealthy’ (ידענא ביה דלא אמיד) is employed, i.e., the Judge himself must be certain and even witnesses are not accepted (v. infra § 297, derived from Yad, She’elah VI, 4. Cf. Maggid Mishneh a.l.). For according to Alfasi, Maim. a.o. the principle of שודא דדײני i.e., a decision based on the discretion of the Judges means that the Judge must be personally acquainted with the facts. nor [on grounds of] the financial position of the deceased29As stated in Ket. ibid.: ‘I know that he (the deceased) was not wealthy.’ This, however, is no proof because a person may appear to be poor but in reality is wealthy or may have received the object as a gift. or the claimant.30As stated ibid.: ‘Who indicates identification marks.’ Nevertheless, if a reliable person offered testimony in any one of the [aforementioned] matters and the [practical] judgment of the Judge inclined [to assume] that [whatever] he [the witness] is stating [is] the truth,31Alfasi to Ket. ibid. The Judge himself must be certain that the witness is a reliable person. — [the law is that] he [the Judge] should be patient in giving his decision and should not dismiss his testimony but should discuss [the matter] with the litigants until they confess to the statements of the witness32, supra par. 3 and notes on a ‘fraudulent lawsuit’ in accord with Maim. and he [the Judge] should examine and inquire [into the case] until [the veracity of] the matter is established,32, supra par. 3 and notes on a ‘fraudulent lawsuit’ in accord with Maim. or [until] they [the litigants] make a settlement by arbitration,33, supra § 12, 5, and notes. or [until] the Judge withdraws from the lawsuit as has been explained [supra].32, supra par. 3 and notes on a ‘fraudulent lawsuit’ in accord with Maim. Gloss: If it becomes apparent to the Court of Law that one [of the litigants] robbed his fellow, but legally they cannot compel him to surrender it [the object acquired illegitimately], — [the law is that] they can issue a decree against other people not to have any dealings with him, and if it is a woman, — that she be not married to any man nor should they conduct negotiations preliminary to her betrothal until she surrenders that which does not belong to her.34Decisions of Isserlein s. 260 and v. infra § 358, 5 — G.

Mishnah Berurah

חושן משפט חושן משפט ב פרק טו

Choshen Mishpat Choshen Mishpat 2 Chapter 15