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חושן משפט

חושן משפט א

פרק טז

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

Choshen Mishpat

Choshen Mishpat 1

Chapter 16

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א ב ג ד ה

16:1 16:2 16:3 16:4 16:5

Sif

הלכה א

כמה זמן נותנין להביא ראיה ודין הטלת חרם ובו ה"ס:
אמר אחד מבעלי הדין יש לי עדים להביא נותנין לו זמן ל' יום ולאחר ל' יום פוסקין הדין (וצריך לשלם) (מרדכי ס"פ ז"ב) ואם מביאן אחר כך יסתור הדין ואם גלוי וידוע לב"ד שפלוני ופלוני הם עדים בדבר והרחיקו נדוד נותנים לו זמן עד שיוכל להביא: וה"ה אם ידוע לב"ד שיוכל לברר דבריו תוך שלשים אין נותנין לו זמן לבטלה (ב"י בשם הריטב"א) וע"ל סי' צ"ח סעיף ד':

משנה ברורה

1.

[If] one of the litigants1Whether the claimant or the defendant. said, '[Give me an extension of time because] I can produce witnesses,' they allow him thirty days,2B.K. 112b: ‘Raba said: The law is that a document may be verified by its signatories even not in the presence of the other party; and even if he cries aloud before us (that the document was forged). But if he says, Give me time until I can produce witnesses, and I will impair the document, we allow him time (generally thirty days — B.M. 118a).’ If the defendant is willing to take an oath but the claimant would rather wait until he produces his witnesses or other evidence, we grant him a postponement of thirty days only (v. infra par. 2), provided the property of the defendant depreciates in value (i.e., where he must sell his estate at a high price and should there be any delay in the settlement of his counter-claim, this opportunity would not present itself later); but if, as a result of the postponement, the defendant’s property does not depreciate in value, we allow the claimant an unlimited extension of time. Should, however, the claimant not state that he can verify the matter were he to be given more time, and the property of the defendant depreciates in value, the law is that even the thirty days are not given — M.E. Cf. infra § 24. The extension of thirty days is given to people in general, but if it is definitely knows that the litigant is a powerful person who defies the law, v. infra § 98, 4 — M.E. and after thirty days [if no witnesses were produced by him], they issue the verdict, and he is obliged to make payment.3Mord. to San. III end — G. Or if the defendant is willing to take an oath and thus be exempt he may do so. Cf. also supra § 14, If, however, he produces them [the witnesses] later, it [the Court] can upset the verdict.4Mishna San. 31a: ‘Whenever he (any of the litigants) can produce proof, the Court can reverse the verdict. However, if they said to him, Produce all the proofs that you may have within thirty days, and he produced them within thirty days, the Court reverses the verdict; but (if he produced proof) after thirty days, the Court cannot upset the verdict. Rabban Simeon b. Gamaliel stated: What should he do who did not find (evidence) within the thirty days but found it after thirty days?’ The present ruling is in accord with Rabban Simeon b. Gamaliel. Cf. also infra § 87, 30. If it is well known to the Court of Law that So-and-so are witnesses in the matter but they have moved far away, he is given time until he can produce [them].5Thus Asheri in Resp. Derived from B.K. 46b: ‘R. Naḥman stated on the authority of Rabbah b. Abbuha: Whence do we know that the Court should attend to the first claimant (i.e., when A brought legal proceedings against B [and according to some versions of Rashi, A has witnesses or a document substantiating his claim, so that B cannot say that he paid] and the latter made a counter-claim against A. Thus Rashi. Tosaf. [according to one interpretation] s.v. שאין, explain as follows. After A instituted an action against B, the latter stated that there were witnesses available at the time of the act who could corroborate his counter-claim, and we deal here with a case where the Court also knows that witnesses were available at the time of the act. Consequently, were it not for the Biblical text [v. anon] we might have said that under these circumstances the Court should give him ample time until he produces the witnesses. Therefore, we are informed that this is not so, but we give prior consideration to A’s claim)? — For it is said: If any man have any matters to do, let him come unto them (Ex. XXIV, 14), (i.e.,) let him cause his matters to come (first) before them.’ Tosaf. ibid. (according to a second interpretation) explain that we deal here with a case where A claims that B injured him, and B advances a counter-claim, in which case the law is that A’s claim is given prior consideration even if B states that he can produce witnesses in a day or two — because no extension of time is given in the case of injury (B.K. 91a). Tosaf. accept the second interpretation, viz., that we deal here with cases of injury. Consequently, the above verse refers only to cases of injury. Hence, according to the first interpretation of Tosaf. to which the above verse does not apply, B would be given time until he can produce his witnesses. This is the source of Caro’s text on the authority of Asheri. Thus W.G. , Be’er Eliyahu. Likewise if it is known to the Court of Law that he can verify his statements within the thirty [days], they do not give him [additional] time for nothing.6B.Yos. on the authority of RITBA — G. , B.M. 118a, Tosaf. s.v. זמן end. This ruling means that even where no loss would be sustained by the fellow-litigant were we to give the claimant an extension of time. Even if we are not aware whether he deliberately wishes to postpone the case for the present or not, but we know that his opponent suffers a loss thereby, the law is that he must produce evidence within thirty days — M.E., ShaK. , infra § 98, 4.

Mishnah Berurah

הלכה ב

הא דיהבי זמן שלשים יום דוקא כשתבעוהו תחלה בלא ראיה וחייבוהו ב"ד שישבע וזה טוען יש לי ראיה ואינה מצויה עתה בידי ואיני רוצה לקבל שבועתו אז נותנין לו זמן שלשים יום אבל אם טען תחלה יש לי ראיה ואינה מצויה עתה בידי מה צורך ליתן לו זמן לכשיביא ישיב לו הנתבע וכל זמן שלא יביא לא ישיב לו טענה ואם חזר ואמר אין לי ראיה ישיב לו בלא ראיה יש מי שאומר שנשבע ונפטר ואינו נאמן להביא עוד ראיה: הגה ואם הנתבע מבקש זמן כדי להשיב על טענת התובע אם נראה לב"ד שאינו אלא דחייה אין נותנין לו זמן וצריך להשיב מיד אבל אם נראה לב"ד שצריך זמן כדי לחשוב ולשים לבו על דברים שבינו לבינו נותנין לו זמן כפי הצורך (ב"י בשם תשו' הרשב"א) אבל אם כתוב בשטר שיפרע לו בלי דחייה כל תנאי שבממון קיים (ב"י בשם הריטב"א):

משנה ברורה

2.

As to the ruling7Supra par. 1. that they give [the claimant] a period of thirty days [to bring proof or to produce witnesses] — it applies only8Tur citing R. Isaiah. when they [the Judges] summoned him at first without evidence [submitted by the claimant] and the Court of Law [issued a verdict and] required him [the defendant] to take an oath, while the other party [the claimant] pleads, 'I have evidence, but it is not in my possession at present, and I desire not to accept his [the defendant's] oath,'9Although the claimant may produce witnesses or other proof subsequent to the oath and thus upset the verdict (v. supra par. 1), nevertheless, if we wait until he produces proof, the defendant might confess, but not if he had already taken the oath — M.E. then [the law is that] they give him a period of thirty days [to produce the evidence]. However, if he [the claimant] pleaded at first [i.e., before the verdict was given], 'I have evidence, but it is not in my possession at present,' [then] what need is there to grant him time10Likewise in the case of one who pleaded that he lost his bonds through unavoidable circumstances and it is impossible for him to produce them because of the distance involved in order to obtain them (RIBaSh) — M.E. [to produce the evidence]? [Consequently, the law is that only] when he [the claimant] produces [it], the defendant must respond to him [the claimant], and as long as he [the claimant] produces no [evidence], he [the defendant] must not respond to him [by making] any [counter-] plea. If he [the claimant] returned and stated, 'I have no evidence,' he [the defendant] responds to him without [producing] any evidence11As in the case of all oral claims. [to substantiate his counter-plea]. There is an authority who states that he [the defendant] takes an oath and is exempt and [if the claimant] still [promises] to produce evidence, he is not relied upon.12 Mishna San. 31a: ‘If they said to him, Bring witnesses, and he answered, I have no witnesses, or (if they said), Bring proof, and he said, I have no proof, and subsequently he produced proof or found witnesses, it has no legal effect (since he might have produced false witnesses or brought a forged document). Rabban Simeon b. Gamaliel said: What should he do who did not know that witnesses were available, but found them later, or who did not know that he had proof, but found it later (consequently, both the proof and the witnesses should be accepted)?’ The law in this case rests with the First Tanna. Hence, the ruling here. By stating the ruling here in the name of ‘some say,’ Caro disagrees with it, although none of the Codifiers question this law. It is quite possible that Caro (v. B.Yos.) contests this ruling not because the Codifiers differ with it, but rather because it is not mentioned by the latter — M.E., P.Tesh. Gloss: If the defendant requests [an extension of] time in order to respond to the plea of the claimant, [then] if it becomes apparent to the Court of Law that it is [intended] only [as] a [mere] delay [of the case], they do not grant him [an extension of] time, and he must respond forthwith. However, if it appears to the Court of Law that he does require [an extension of] time in order to examine and consider carefully the matters concerning him and the other party, they give him [an extension of] time as much as he requires.13B.Yos. on the authority of RaShBA in Resp. — G. But if in the bond [produced by the claimant] it is written that he must pay him without delay, [the law is that] every stipulation made in monetary matters is binding.14B.Yos. on the authority of RITBA — G. , B.M. 94a; Ket. 56a a.e., ‘A stipulation made in monetary matters is valid.’ The following is the full text of RITBA: ‘If in the bond it is written that he must pay him at the appointed time without delay and without any demands for an extension of time by the Court, the stipulation is binding.’

Mishnah Berurah

הלכה ג

טען אחד מבעלי דינים יש לי זכות בעדים או בראיה ואיני יודע ביד מי הוא חייב הדיין להטיל חרם על כל מי שיודע לו זכות בעדים או בראיה שיודיע לדיין אפי' אם הזכות של העדים והראיה יודע בהם מי שכנגדו חייב להגיד: הגה וע' ל' סי' ע"א סעיף ז' וח' כיצד נותנים חרם וע' ל' סי' צ"ב סעיף ו' אם טוען שכנגדו הוא פסול לישבע אם נותנים חרם על זה:

משנה ברורה

3.

[If] one of the litigants pleaded, 'There are witnesses or [other] evidence in my favour but I know not through whom this [could be made available],'15Tur citing Asheri in Resp. the Judge is obliged to pronounce the ban against any person who knows [aught] in his favour through witnesses or [other] evidence, [viz.,] that he make this known to the Judge,16 B.K. 56a where among the acts which are enumerated by R. Joshua for which an offender is exempt from the judgments of man but held responsible to the judgments of Heaven, is found the following: ‘One who knows evidence in favour of his fellow but does not testify on his behalf. What is the case before us? If a case where there are two (witnesses), is it not self-evident that it is based on a Biblical verse (why then should it be mentioned here?), (for it is written), If he do not utter it then he shall bear his iniquity (Lev. V, 1)? — It refers to a case where there is one (witness whose testimony merely imposes an oath upon the defendant — v. Sheb. 40a).’ We thus see that two witnesses who withhold evidence commit a Scriptural offence and even in the case of one witness, he is still held responsible to the judgments of Heaven. Consequently, we should do everything in our power to restrain one from transgression. , infra n. 21. even if the one who is his opponent [in Court] knows about the favourable opinion of the witnesses and the [other] evidence, he is obliged to state [it].17B.K. ibid.: ‘To hire false witnesses to give evidence (is an offence for which the offender is exempt from the judgments of Man, but is held responsible to the judgments of Heaven). What are the circumstances? If for his own benefit (i.e., in order to exact money illegally) should he not be required to pay the money (which he obtained through the false witnesses) and would he not be held responsible even to the judgments of Man? — It means for the benefit of his neighbour.’ Hence, we see that where he knows that his fellow is right, he would be liable to return the illegitimately acquired object. Cf. Tosaf. a.l. s.v. ממונא. , infra § 28, 2, Gloss. Gloss: , infra § 71, 7-8 in what manner we pronounce the ban and v. infra § 92, 6 [the law] if [the litigant] pleads that his opponent is ineligible to take an oath whether we pronounce the ban concerning this.

Mishnah Berurah

הלכה ד

האומר לחבירו שטר שבידך זכות יש לי בו אם הלה מודה שיש לזה בו זכות חייב להוציאו בב"ד וב"ד יעתיקו מה שכתוב בו מזכותו אבל אם הלה אומר שאין בידו שטר שיהא בו שום זכות לזה אין מחייבין אותו להראות שטר לשום אדם אבל אם ירצה זה להחרים חרם סתם לכל מי שיש בידו שטר שיש לו זכות בו מי שיראנו יחרים ואם טען זה בודאי שהוא יודע שהשטר שיש לו זכות בו הוא אצלו הרי זה נשבע היסת שאינו אצלו:

משנה ברורה

4.

One who says to his fellow,18This has reference even to a stranger and not only to the fellow-litigant. 'You possess a document in which there are rights in my favour,' — [then] if the latter admits that the person concerned has rights therein, he is obliged to produce it in the Court of Law and the Court of Law makes a copy of whatever is recorded therein concerning his rights.19RaShBA in Resp. , B.B. 168a: (Ref. to Mishna ibid. 167b: ‘. . all [other] legal documents are not written save with the consent of both parties, and both parties pay the fee [for the preparation of the documents]. Rabban Simeon b. Gamaliel stated: Two [documents] may be written [by the witnesses] for both parties, one for each’]. ‘Shall we say that they differ as to whether we may use force against unfairness (i.e., where one claims a privilege which causes the neighbour no loss) for one Master (the first Tanna) holds that force is exercised (Hence if one of the litigants demands a separate copy for which he offers to pay and consequently the other litigant must pay for another copy, we exercise force and only one document is prepared and both share the costs); and the other Master (Rabban Simeon b. Gamaliel) maintains that we do not use force (Therefore a separate document may be prepared for each litigant)! — No; both (concur that) force is used, but the reason of Rabban Simeon b. Gamaliel is thus: Because (one can) say to the other, I do not like your rights to be next to my rights, for you appear to me like a lurking lion (i.e., I have no confidence in you).’ Thus we infer that were the reason ‘you appear to me like a lurking lion’ not applicable, we would use force and only one document would be written for both to be produced by either litigant when necessary, or when a stranger has such a document establishing the rights of another party. If he states, ‘I do not know whether the document contains any rights in your favour,’ he must show it to the Court and they will be able to clarify the matter (Thus Yad, To‘en we-Nit‘an V, 7) M.E. However, if the other party says that he possesses20This has reference to a stranger and not the claimant — A.H. But if he is his fellow-litigant, then even when he states that he is certain that the document contains nothing in his favour, he is not relied upon and must present it to the Court — A.H. , Yad, ibid. V, 8. no document wherein any rights in favour of the person concerned are found, they do not require him to show a document to any person. But if the person concerned desires to proclaim a general ban,21Heb. חרם. On the meaning of this term, v. supra § 11, n. 9. — [viz.,] that whosoever has in his possession a document wherein there are rights [recorded] in his favour should show it [to the Court of Law], — he may do so.22If the defendant states that it is true that such a document was in his possession, but it was lost, then if the party that demands the document does not know whether the document was really lost or not, he may place him (whether his fellow-litigant or a stranger) under the ban. However, the defendant is not required to take an oath, since the assertion of the claimant is not made with certainty. And if the person concerned pleaded with certainty that he knows that the document wherein there are [recorded] rights in his favour are in his [the other person's] possession, [then] the latter takes an equitable oath23Heb. היסת. , supra § 1, n. 2. that it is not in his possession.24Here the assertion is made with certainty. This refers even to one who is not his fellow-litigant. We do not exempt him from taking an oath on the principle of Miggo (i.e., on grounds that had he intended to tell a lie, he might have said, I never had such a document) — A.H.

Mishnah Berurah

הלכה ה

המוציא שטר על חבירו והלה טוען שיש בו זיוף ושאל שיתנו לו הטפסת השטר כדי לדקדק בו נותנים לו אע"פ שכתוב בו בלא טפיסת טופס מזה השטר:

משנה ברורה

5.

One who produces a note [of indebtedness] against his fellow, and the latter claims that there is a forgery25According to Caro and Isserles (v. B.Yos. infra § 60 end) he must give the claimant a copy of the note if a plea of forgery is advanced. Otherwise, he presents it directly to the Court without making a copy because the holder of the note may state that the claimant merely desires to obtain the document in order to devise subtle and tricky arguments against its validity. In the case of heirs whose rights are contested and they desire to examine the text of the document, it must be given to them — P.Tesh. M.E., however, maintains that even without the plea of forgery one has a right to demand a copy. ShaK and BaḤ agree with Caro. The matter should left to the discretion of the Judges — A.H. in it, and he demanded that they give him a copy of the document in order to examine it carefully, — [the law is that] they give it to him although there is written in it, '[This note is binding] without [any stipulation for additional] copies of this document to be made.'26Maim. and Asheri in Resp.

Mishnah Berurah

חושן משפט חושן משפט א פרק טז

Choshen Mishpat Choshen Mishpat 1 Chapter 16