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חושן משפט

חושן משפט א

פרק יז

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 17

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א ב ג ד ה ו ז ח ט י יא יב

17:1 17:2 17:3 17:4 17:5 17:6 17:7 17:8 17:9 17:10 17:11 17:12

Sif

הלכה א

להשוות הבעלי דינין בכל דבר ובו י"א סעיפים:
בצדק תשפוט עמיתך איזהו צדק המשפט זו השוויית שני הבעלי דינים בכל דבר לא יהא א' מדבר כל צרכו וא' אומר (לו) קצר דברך ולא יסבירו פנים לא' וידבר לו רכות וירע פניו לאחר וידבר לו קשות ואם היה אחד מהם מלובש בגדים יקרים והשני מלובש בגדים בזוים אומרים למכובד או הלבישהו כמותך או לבוש כמוהו ולא יהא א' יושב וא' עומד אלא שניהם עומדים ואם רצו ב"ד להושיב את שניהם מושיבים ולא ישב א' למעלה וא' למטה אלא זה בצד זה בד"א בשעת משא ומתן (דהטענות) אבל בשעת גמר דין שניהם בעמידה לכתחלה איזהו גמר דין איש פלוני אתה זכאי איש פלו' אתה חייב והעדים לכתחלה לעולם בעמידה: הגה ועמידה ע"י סמיכה מקרי שפיר עמידה לענין זה (ריב"ש סי' רס"ו) וע"ל סי' כ"ח:

משנה ברורה

1.

In righteousness shalt thou judge thy neighbour.'1Lev. XIX, 15. What is considered righteousness of the Law? — It means to regard the two litigants as equals in every respect, [viz., that] one should not be permitted to speak as long as he needs and the other be told, 'Make your speech brief;'2Yad, Sanhedrin XXI, Derived from Sheb. 30a: ‘Our Rabbis taught: In righteousness shalt thou judge thy neighbour (intimates) that one of the litigants should not sit and the other stand; that one be not permitted to speak as long as he needs and the other be told, Make your speech brief.’ In Y. San. III, 9(21c); Y. Sheb. IV, 1(35b) this is derived from Deut. XIX, 17: Then the two men, between whom the controversy is etc.,’ since men means at least two, consequently, two is superfluous (in addition to the fact that there are suits involving more than two litigants), but it teaches that the litigants be treated as two equals. It would likewise be forbidden even if the Judge were to say only to one of the litigants, ‘Make your speech brief,’ and not give the other litigant instructions to speak at length. However, he may say to both, ‘Make your speech brief or long — BaḤ, M.E., ShaK, A.H. [that] one should not be favourable to one [litigant] and speak soft words to him, and severe to the other [litigant] and speak harsh words to him.3Yad ibid. Derived from Tosef(Z). Sanhedrin VI, 2; Y. Sheb. IV, 1(35b); Y. Yoma VI, 1(43b): ‘He (the Judge) should not be forbearing (מאריך פנים) towards one of the litigants, nor severe (Tosef. has מעײן ‘investigative;’ Y. has מעיז פנים ‘insolent’) towards the other, for it is written, In righteousness shalt thou judge thy neighbour.’ Cf. also Ket. 46a: ‘That text (Thou shalt not go up and down as a talebearer among thy people — Lev. XIX, 16) is a warning to the Court not to be lenient with one (litigant) and severe to the other.’ If one of them is wearing expensive garments and the other is wearing shabby garments, they [the Judges] should say to the one who is well dressed, 'Either dress him like you, or dress like him.'4Yad ,Sanhedrin XXI, 2. Derived from Sheb. 31a. , text supra § 14, n. 40. Nowadays we are not particular about this — RaShaL, M.E., ShaK a.o. Nor should one [litigant] sit and the other stand, but both should stand.5 supra n. 2. According to Tosef(Z). ibid.: ‘The Judge should not make one stand (מעמיד) and the other sit (מושיב),’ whence it follows that if one sits down and the other remains standing of their own accord, it would be permissible — BaḤ. This is however, rejected by Keneseth ha-Gedolah — P.Tesh. If, however, the Court of Law desires to permit them both to sit, they may do so.6Sheb. 30a: Tosef(Z). ibid. in accord with R. Judah: ‘Our Rabbis taught: And the two men shall stand (Deut. XIX, 17): it is a religious duty that the litigants stand. R. Judah stated: I heard that if they (the Judges) desire to permit them both to sit, they may do so.’ Although R. Judah represents an individual opinion and we would ordinarily rule in accordance with the Rabbis who represent the majority, nevertheless, since the second Baraitha (v. supra n. 2) and all the cases cited in Sheb. 30a,b harmonize with R. Judah’s view, the law rests with him. The litigants, however, are not permitted to sit down of their own accord, and if they did so, the Judge must ask them to rise, and subsequently, if they desire to permit them to sit, they may do so. According to this explanation it is understandable why King Jannai who was summoned to be present during the trial of his slave who killed a man (v. San. 19a) was told by Simeon b. Shetaḥ when the latter noticed that Jannai sat down after he arrived at Court, ‘Stand on your feet King Jannai and let the witnesses offer testimony against you’ (v. San. ibid., Tosaf. s.v. ינאי; Sheb. 30a, Tosaf. s.v. שאם who point out a difficulty which is removed by this explanation) — P.Tesh. Nor should one [litigant] sit on a higher level and the other on a lower level, but one next to the other.7Yad, Sanhedrin XXI, 3. Cf. Tanḥ(B). Shofetim VI to Deut. XVI, 19: Thou shalt not respect persons: ‘(This text) is a warning to the Nasi not to seat one who is worthy to be (only) on a lower level — on a higher level, and one who is worthy to be on a higher level — on a lower level.’ However, this text implies that it would be permissible to seat one on a higher level who is worthy of this honour and likewise one who only deserves to be seated on a lower level should not be seated higher than his position demands. Hence, this text contradicts our present ruling. Nevertheless, since we deal in our ruling with individuals who are considered equals, therefore our text does apply (v. ‘Eẓ Yosef in cur. edd. of Tanḥ.). Should, however, one litigant stand on a higher level and the other on a lower one, it does not matter — M.E. The underlying reason for regarding the litigants as equals is in order to avoid disheartening on the part of a litigant who is not treated as an equal and thereby forgets his pleas. When does this apply?8That if the Court desires to permit them both to sit, they may do so. — At the time of the discussion of the pleas,9Sheb. 30b: ‘R. Huna sated: The controversy of opinion is with respect to the time of the discussion (i.e., while the case is being debated), but at the time of the conclusion of the case (when the verdict is given) all agree that the Judges sit and the litigants stand, for it is written, And Moses sat to Judge the people; and the people stood (Ex. XVIII, 13).’ but at the time of the conclusion of the case, both litigants must stand in the first instance.10For in the case of witnesses it is only in the first instance that they must stand (v. infra n. 12), but if they gave their testimony while sitting, it is valid ex post facto. , Sheb. 30b: ‘Ulla stated: The controversy of opinion is with respect to the litigants, but with respect to witnesses all agree that they must stand, for it is written, And the two men shall stand … Another version (reads): The controversy of opinion is with respect to the time of discussion, but at the time of the conclusion of the case all agree that the Judges sit and the litigants stand, for witnesses are like the conclusion of the case (when they offer their testimony the case is completed), and it is written with respect to them: And the two men shall stand.’ Hence, the law that litigants must stand at the time of the conclusion of the case is derived from witnesses whose testimony is like the conclusion of the case, and therefore, the law should not be more stringent in the case of the litigants than in that of the witnesses. Consequently, as in the case of witnesses the law that testimony must be offered while standing is applicable in the first instance, but if the evidence was given while sitting it is considered valid ex post facto, so too, in the case of the litigants it is valid ex post facto if presented in a sitting position. What is considered the conclusion of the case? — [When the verdict is pronounced,] '[So-and-so, You are not guilty,' or 'So-and-so, you are guilty.'11Mishna San. 29a. , infra § 19, 1 and cf. supra § 12, 2. [With respect to] the witnesses [the law is that] in the first instance they must always [testify] while standing.12Sheb. 30b in accord with ‘Ulla. , supra n. 10; Git. 71a (ref to Mishna ibid. 67b: ‘If one is struck dumb and they said to him, Shall we write a Get for your wife? and he nodded his head, they must test him three times. If for no he said no, and for yes he said yes, they write and deliver it’): ‘In the same manner as he (one who is struck dumb) is examined with reference to a Get, so too, is he tested regarding transactions, testimony and bequests’ (cited from Tosef(Z). VII(V), 1). Testimony is explained by R. Joḥanan in Y. Git. VII, 1(48d) to refer to ‘one who offers testimony while sitting.’ This according to W.G. refers to one who is sick, since one who is struck dumb must have become so as a result of sickness and yet, we see that his testimony is considered valid through the test of nodding the head. Hence, it follows that if one testified while sitting, his testimony is considered valid ex post facto (cf. Tosef. ibid. where חולה ומשותק is mentioned). , also Zeb. 16a and Tosaf. s.v. מיושב. Gloss: And standing by being supported is indeed regarded as standing with respect to this matter.13RIBaSh s. 266 — G. Meg. 21a (ref. to Mishna: ‘One who reads the Megillah may do so while standing or sitting’): ‘A Tanna stated: This (namely, that one may read the Megillah while standing or sitting) does not apply to the Torah (the reading of the Torah in public). Whence is this derived? — R. Abbahu said: Because the Scriptural verse states, But as for thee, stand thou here by me (Deut. V, 28) … One verse states, And I sat (ואשב) in the mount (Deut. IX, 9) and another verse states, And I stood (עמדתי) in the mount (ibid. X, 10) — Rab said: He (Moses) stood when he learnt and sat when he reviewed (his learning). R. Ḥanina said: He was neither standing nor sitting but stooping.’ Hence, we see that stooping is designated neither standing nor sitting and yet the verse (I stood) refers to it as standing. Consequently, standing while leaning against something (equivalent to stooping) is still called standing. Leaning would therefore, include both standing and sitting. It is designated standing where this would be the requirement of the law as in the present ruling, and sitting where the law requires it as infra § 28, 26 where standing (in the case of Judges) by being supported is not considered standing but rather sitting in accord with the First Tanna in Zeb. 19b. Cf. E.H. § 169, 45; Zeb. 19b, Tosaf. s.v. וליתיב; Yoma 25a and Tosaf. s.v. אין; Y. Meg. IV, 1(74d). Hence, if Judges who are required to sit, stood by means of some support, or if witnesses who are required to stand, did so only by means of support, we adopt a leniency in both cases and consider standing by means of support in the case of Judges as sitting and in the case of witnesses as standing. This however, would not be valid if in the same lawsuit that is being tried both the Judges and the witnesses stood by being supported — M.E. , however, infra § 28, [26].

Mishnah Berurah

הלכה ב

ת"ח וע"ה שבאו לדון מושיבין את החכם ואומרים לע"ה שב ואם לא ישב אין מקפידין בכך: הגה ת"ח שבא לדין מותר לעמוד לפניו ולא חיישי' שיסתתמו טענות שכנגדו (ר"ן פ' שבועת העדות):

משנה ברורה

2.

[In the case of] a Rabbinical scholar and an illiterate person who appeared for trial, [the law is that] we urge the scholar to sit down, and we [also] say to the illiterate person, 'Sit down!' And if he [the illiterate person] did not sit down, we do not mind.14Yad, Sanhedrin XXI, 4. Derived from Sheb. 30b: ‘Rabbah b. R. Huna said: When a scholar and an illiterate person are in dispute with each other (and appear for trial), we urge the scholar to sit down; and to the illiterate person we also say, Sit down, and if he stands we do not care.’ If they told the illiterate person to be seated but the Court-messenger made him stand up, it is not obligatory for the Judge to tell him to sit down again. This is derived from Sheb. ibid.: ‘Rab b. Sherabya had a lawsuit tried before R. Papa. He told him to sit down and told his opponent also to sit down. However, the Court-messenger came and insulted (lit. ‘kicked’) the illiterate person and made him stand up and R. Papa did not say to him, Sit down. How could he act thus; will not the other’s plea be stopped up (i.e., he will be intimidated on seeing that R. Papa accords more honour to his opponent)? — R. Papa may say: He (the ignorant man) will say, He (R. Papa) has requested me to sit down, but the (court-) messenger was not appeased by me (i.e., I have not given him a gratuity, so he made me stand).’ Gloss: [When] a scholar comes to Court for trial, it is permissible to rise before him and we do not apprehend that the pleas of his opponent will be stopped up.15RaN to Sheb. IV — G. This applies only to a scholar because all know that one must rise before him and likewise to the wife of a scholar who is still living (and intimidation would not apply); but if the scholar is no longer alive, we do not accord his wife this honour. An old man, although he is an illiterate person, has the status of a scholar with respect to this ruling (v. Lev. XIX, 32) — Tummim. Cf. also supra § 15, 1 and notes.

Mishnah Berurah

הלכה ג

כבר נהגו כל בתי דיני ישראל לאחר התלמוד שמושיבין בעלי דינים וגם העדים כדי להסיר המחלוקת שאין בנו כח להעמיד משפטי הדת על תלם:

משנה ברורה

3.

It has already become the adopted practice [among] all the Courts of Law in Israel after the [close of] the Talmud that they permit the litigants and also the witnesses to be seated16Yad, Sanhedrin XXI, 5. Since ex post facto this would be valid because the requirement for the litigants to stand at the time of the conclusion of the case and that of the witnesses during testimony is similar. , supra n. 12. in order to eliminate dissension,17For very often this may lead to strife. Nevertheless, both the witnesses and the litigants who are G-d-fearing people should adopt a stringency in this matter and thus comply with the Biblical verse, And the two men shall stand (BaḤ) — ShaK. However, many Courts of Law even nowadays adopt the practice to have the litigants and the witnesses stand especially during the conclusion of the trial — A.H. for we are [nowadays] powerless to maintain the laws of our faith in conformity with their original authoritativeness.18Heb. על תלם. , Josh. XI, 13, RaDaK and Targum a.l.

Mishnah Berurah

הלכה ד

אם (התובעים רבים) והנתבע אומר אני חפץ שישבו אוהבי וקרובי אצלי כשאני טוען עמכם כדי שלא יסתתמו טענותי כי אתם הרבים הדין עמו (לכן) השותפים יבררו להם א' מהם לטעון בשביל כולם או יטעון כל א' לעצמו זה אחר זה וגם הנתבע לא יקח אוהביו אצלו וע"ל סי' קע"ו סל"ה:

משנה ברורה

4.

If the claimants are many and the defendant states, 'I desire that my friends and relatives sit near me when I plead against you so that my pleas be not stopped up because you are the majority,' — the law rests with him.19Mord. to Sheb. IV on the authority of R. Meir of Rothenberg. , Sheb. 31a, Rashi s.v. לבוש (text cited supra § 14, n. 40) on the principle that his pleas should not become stopped up on account of intimidation. Therefore, partners should select one of them to plead on behalf of all of them, or each one pleads consecutively. And the defendant also should not take his friends with him.20So that they do not employ hints and gestures whereby he might be influenced to state false pleas. It follows, therefore, that the Court compels both parties to act accordingly — M.E. BaḤ rules that it depends upon the litigants — Tummim, Neth. The partners are given the choice either to select one individual to plead for them or each partner pleads after the other. On the same principle as infra § 176, 35. , infra § 176, par. 35.

Mishnah Berurah

הלכה ה

אסור לדיין לשמוע דברי בעל דין האחד שלא בפני בעל דין חבירו: הגה ודוקא שיודע הדיין שיהיה דיין בדבר אבל אם שמע טענות הא' ואח"כ נתרצה השני לדון לפניו מותר להיות דיין בדבר (תשו' מהרי"ל קצ"ה) ולא יכתוב שום חכם פסק לא' מבעלי הדינין בדרך א"כ או שיכתוב לו דעתו בלא פסק כל זמן שלא שמע דברי שניהם שמא מתוך דבריו ילמדו לשקר גם משום שאח"כ יטעון השני בדרך אחר ויצטרך לכתוב להיפך ואיכא זילותא לחכם (רשב"א וריב"ש סי' קע"ט) וכן הבעל דין מוזהר על כך ותלמיד שיש לו דין לפני רבו לא יקדים לבוא קודם בעל דינו שלא יהא נראה כמקדים כדי לברר טענותיו שלא בפני חבירו ואם יש לו עת קבוע לבא ללמוד לפניו ובא העת ההיא מותר:

משנה ברורה

5.

It is forbidden to the Judge to hear the words [pleas] of one litigant in the absence of his fellow-litigant.21Yad, Sanhedrin XXI, 7. Derived from Sheb. 31a: ‘Whence do we know that a Judge must not hear the claims of one litigant before his fellow-litigant arrives? — For it is said: ‘From a false matter keep far (Ex. XXIII, 7).’ San. 7b: ‘Hear (the causes) between your brethren and judge righteously (Deut. I, 16). Said. R. Ḥanina, This is a warning to the Court of Law not to hear the claims of one litigant before his fellow-litigant arrives (Because in the absence of the other party he will not refrain from stating false pleas).’ However, if the Judge had already heard the claims of one litigant in the absence of the other litigant, it is permissible for him to try the case. But, if after listening to one litigant, he gave the latter a written ruling in accordance with the majority of the Codifiers and Responsa, then he is forbidden to try the case because he is considered an interested party, since he will not contradict his own ruling — ShaK, Tummim. , Zohar wa-Yesheb 179b: ‘Who is regarded as a cunning knave (רשע ערום)? — One who pleaded his cause before the Judge before his fellow-litigant arrived (cf. Sot. 21b), as it written, He that pleadeth his cause first seemeth just (the litigant who pleads first states every point in his favour and when he is through it looks as if he is right); but his neighbour cometh and searcheth him out (Prov. XVIII, 17, i.e., the statements of the second party appear false and the Judge searches him out. Hence, both parties should be heard together). This is forbidden even if one litigant states both his cause and that of his adversary — P.Tesh. Zikron Ya‘akob writes that if one litigant presented his case before one whom he knows will act as Judge in his case, i.e., the litigant stated: ‘So-and-so has done me violence,’ — the law is that if the Judge does not investigate into the circumstances surrounding the case under which the violence was committed, he is permitted subsequently to act as Judge. MaHaRIL, however, implies that even pleading in such a form is forbidden (v. D.M.) — P.Tesh. Gloss: And this applies only when the Judge knows that he will act as Judge in the case; but if he had [already] heard the pleas of one party and subsequently the second party was satisfied to be tried before him, he is permitted to act as Judge in the case.22MaHaRIL Resp. 195 — G. This means that the Judge is also aware that the other litigant will have to appear before him, in which case the law is that in the first instance he should not hear the cause of the single litigant for perhaps the second litigant will not be satisfied to be tried before him since the Judge had already heard the pleas of his adversary. Furthermore, when the Judge knows that he will act as Judge, the pleas of the litigant who appeared alone will make an impression upon him, which is not the case, however, where the Judge does not know that he will act as Judge, — then he is permitted to listen to one litigant alone in which case he may try the case only if he tells the second litigant that he had already heard the pleas of the other party, and the second litigant agrees to appear before him, although he heard the pleas of the first litigant — M.E. For this may be equated to a case where one agrees to be tried by a relative of the other party or one who is otherwise unfit to judge — A.H. Moreover, since he was unaware that he would act as Judge in the case, the pleas of the first litigant do not impress themselves upon him — A.H. No Sage should write a decision for one of the litigants in [the following] manner, [viz.,] 'If such [are the circumstances of the case which this litigant set forth before me, then the law would be as follows],'23 Aboth I, 8: ‘Do not make yourself to be like legal advisers (i.e., be careful as Judge not to suggest an advice to one of the litigants).’ or [even] write for him [the litigant] his opinion without [giving] a [definitive] decision as long as he did not hear the words [claims] of both [litigants] lest from his [the Judge's] words they will learn to utter lies,24Aboth I, 9: ‘Simeon b. Shetaḥ would say: Be thorough in the examination of the witnesses and be cautious in your words lest from them (your words) they will learn to utter lies.’ Although this text deals with the interrogation of witnesses, v., however, Bertinora a.l. who refers this both to the witnesses and the litigants. Cf. also ibid. I, 8, Rashi (on the authority of R. Jehudai Gaon) and R. Jonah. [and] furthermore because later the second [litigant] will plead in a different manner and he [the Judge] will [then] be obliged to write the reverse and disrepute will be brought thereby on the Sage.25RaShBA and RIBaSh s. 179 — G. Although the ruling is that ‘we disregard any disrepute that may be brought on the Court’ (v. B.B. 31a; Ket. 26b), and consequently, in the present ruling we should not be concerned with the fact that the Judge on hearing the second litigant will have to alter his judgment and thereby bring contempt on himself, nevertheless, this applies only ex post facto where the Judge is compelled to give a verdict, but not in the present case where he is not obliged to hear the litigants separately. Hence, in the latter case we are afraid of bringing contempt on the Judge. , W.G. and Be’er Eliyahu. However, if the Judge notices that by not giving a decision a wrong might result, e.g., where the inquirer desires to dissolve an engagement or the like, or where dissension might ensue, or where he might save one from being defrauded — then he is obliged to give his decision — A.H. Likewise, is the litigant cautioned against [acting] thus.26San. 7b: ‘R. Kahana stated: This (v. first part of text supra n. 21) can be derived from, Thou shalt not take up (tissa) a false report (Ex. XXIII, 1, תשא) which may (also refer to the litigant) by reading tashshi (תשיא, the Hiph‘il from rt. נשא ‘to deceive’ or ‘to mislead,’ i.e., if one litigant pleads in the absence of his opponent the Judge might be mislead and won over).’ San. ibid.: ‘Hear (the causes) between your brethren and judge righteously (Deut. I, 16). Said R. Ḥanina, this is a warning … to the litigant not to explain his case to the Judge before his adversary appears. Shamo‘a (hear) can also be read shamme‘a (in the Pi‘el which has a causative meaning, i.e., ‘to make hear,’ ‘to explain’).’ In Sheb. 31a this is derived from From a false matter keep far (Ex. XXIII, 7). , also Sot. 21b. Cf. supra n. 21. If it happens that one of the litigants arrives first, he should not sit in the presence of the Judge so as not to be under suspicion — A.H. A scholar who has a case before his teacher should not arrive [at Court] first, [i.e.,] prior to his opponent so that it should not appear that he is [arriving first] in order to clarify his pleas in the absence of his fellow [-litigant]. However, if he has an appointed time to come and study before him and that time had arrived, he is permitted.27Sheb. 30b: ‘Rabbah b. Huna stated: If a scholar and an illiterate person are in dispute with one another, the scholar (and much more so a stranger who is not his student — M.E.) should not arrive first and sit down (before the Judge prior to the arrival of his opponent), because it will appear (i.e., he will be suspected even if he keeps his silence — Rashi) as if he is presenting his case. And we say this only where he has not an appointed time with him (to study); but if he has an appointed time with him, we do not care (i.e., if the Judge is his teacher and they have an appointed time to conduct their studies, then the scholar may come prior to the arrival of his opponent), because he (the opponent) will say, He is occupied with his appointment (for study).’

Mishnah Berurah

הלכה ו

לא יהיה הדיין שומע מפי המתורגמן אם היה מכיר בלשונם ושומע טענותיהם אבל אם אינו יודע בלשונם כל כך שיודע להשיב להם להודיעם פסק הדין מותר להעמיד מתורגמן: הגה ע"ל סי' י"ג סעיף ג' אם טוענין בכתב אם א' רוצה לטעון בלשון א' והשני בל' אחר אין א' יכול לכוף חבירו (מהרי"ו סי' ק"א):

משנה ברורה

6.

The Judge should not hear [the pleas of the litigant] from the mouth of an interpreter.28Yad, Sanhedrin XXI, 8. Derived from Mak. 6b: ‘Certain foreigners came (with a lawsuit) before Raba and he appointed an interpreter. How could he act thus? Have we not learnt (in the Mishna a.l. ref. to another interpretation of the words, At the mouth of two witnesses [Deut. XVII, 6]) that the Sanhedrin should not hear (the evidence) from the mouth of an interpreter? — Raba knew well what they were saying but he did not know how to reply.’ Maim. in Yad ibid. explains that the above case (in Mak.) of ‘foreigners’ refers to litigants (note the expression דאתו לקמיה דרבא ‘who came before Raba’), i.e., the Judge must not hear the pleas of the litigants from the mouth of an interpreter, but it does not refer to the witnesses. However, all the commentators state that the above case refers to witnesses (v. RaN ibid.) , W.G. to § 26, 6 infra where the same applies to the witnesses and in reality it refers to witnesses too, since Mak. ibid. (v. Mishna) speaks of witnesses. The underlying reason for the prohibition against hearing the pleas from the mouth of an interpreter is that when the Judge listens to the claims of the litigants directly, he has first hand information and is in a much better position to clarify the case. If the Judge requires no interpreter even to reply, only that one of the litigants desires to have an interpreter repeat his pleas, it is permissible. So too, if the litigant appointed the interpreter to be his mandatory, it is permissible, for then the interpreter has the status of the litigant. In the case of litigants who speak only a foreign language, it is permissible to have an interpreter, for then it is as though they agreed to be tried under these conditions (כקבלו עליהם) — M.E. In monetary cases the prohibition against an interpreter is applicable only in the first instance (לכתחילה. Mak. ibid. deals with capital cases), but ex post facto it is valid — BaḤ. [However,] if he knows their language and understands their pleas, save that29The translation follows corrected text by Neth. he does not know their language well enough that he should know how to reply to them, [viz.,] to inform them the verdict, — he is permitted to appoint an interpreter. Gloss: , supra §13, par. 3 whether they may present their pleas in writing. If one party desires to plead in one language and the other party in another language, [the law is that] one [litigant] cannot compel his fellow [litigant] to plead in his language].30MaHaRIW s. 101 — G.

Mishnah Berurah

הלכה ז

צריך הדיין לשמוע דברי הבעלי דינים ולשנות אותם שנאמר ויאמר המלך זאת אומרת בני החי וגו' ומצדיק הדין בלבו ואח"כ חותכו:

משנה ברורה

7.

The Judge must hear31e., ‘to understand,’ ‘to comprehend’ — BaḤ. the claims of the litigants and [then] repeat them,32Yad, Sanhedrin XXI, 9. Derived from Y. San. III, 9(21b). Cf. also Deut. R. V, 6; Koh. R. The Judge must repeat the pleas immediately after they are presented by the litigants before the discussion of the case by the Judges and thereby the litigants will know whether the Judges have understood their pleas well — M.E. BaḤ writes that if there were three or more Judges present, it is not necessary to repeat the pleas before the litigants save that one Judge repeats the pleas before the other Judges not in the presence of the litigants and then they in turn repeat the pleas before the other Judge. R. Jonathan ha-Kohen agrees with M.E. for it is written, 'Then said the king: The one saith: This is my son that liveth [and thy son is the dead; and the other saith: Nay; but thy son is the dead and my son is the living],'33I Kings III, 23 in the case of the harlots. and he makes the case clear in his heart [mind] and then decides it.34San. 7b: ‘You shall judge righteously (Deut. I, 16): Resh Lakish says that it means: Make the case clear and then decide it.’

Mishnah Berurah

הלכה ח

דיין שדן דין ולבו נוקפו (פי' מכהו ונחבט בקרבו) לומר שהוא טועה לא יחזיק דבריו להביא ראיות להעמידם שהוא בוש לחזור אלא לכל הצדדים יחזור להוציא הדין לאמתו לא יעשה הדיין מליץ לדבריו של בע"ד אלא יאמר מה שנראה לו וישתוק ולא ילמד לא' מבעלי הדין כלל אפי' הביא א' מבעלי הדין עד א' לא יאמר לו אין מחייבין ממון על פי עד א' אלא יאמר לנטען הרי זה העיד עליך עד שיטעון ויאמר עד א' אינו נאמן עלי וכן כל כיוצא בזה:

משנה ברורה

8.

A Judge who renders a legal decision and his heart smites him, i.e., it strikes him and he is conscience-smitten, that is to say, he [realizes that he] is erroneous [in his decision], should not strengthen his words to advance proofs [in order] to substantiate them being ashamed to retract, but he should again [re-examine] all the points [of the case] in order to execute the law in accordance with its truth.35Sheb. 30b: ‘Whence do we know that a Judge should not appoint advocates for his words (i.e., he should not endeavour to fortify his decision, — which he now realizes is erroneous, — by advocates, i.e., by trying to advance additional arguments to substantiate it because he is ashamed to alter his view — Rashi)? — For it is said: From a false matter keep far (Ex. XXIII, 7).’ According to Maim. in Yad, Sanhedrin XXI, 10, the above text, ‘Whence… his words,’ means that the Judge should not act as an advocate for the litigant’s words, i.e., he should not say that the litigant pleads well. , following note. The Judge should not act as an advocate for the litigant's words, but he [the litigant] should state whatever appears to him [as valid argumentation relating to his case] and he [the Judge] should keep his silence.36Thus the interpretation of Maim. (v. previous note). Caro, as it may be seen offers both the interpretation of Rashi and that of Maim. The translation ‘but he (the litigant) … and he (the Judge) etc.’, follows the interpretation of M.E. , however, Perisha. [The Judge] must not instruct at all [any] one of the litigants [by furnishing him with directives in pleading]. Even if one of the litigants produced [only] a single witness, he [the Judge] should not say to him [the litigant], 'We do not make one liable to pay money on the testimony of a single witness,' but he should [merely] say to the defendant, 'Behold this party has testified against you,' [and he should not furnish him with directives in pleading] until he [the litigant himself] pleads and states, 'A single witness is not reliable concerning me.' And likewise, anything similar to this.37Y. San. III, 8(21c): ‘R. Huna spoke with disrespect of a Judge who says (to the litigants): Do you accept (the testimony of) a single witness? Rather they (the litigants should state (this).’ According to M.E., — Asheri and Tur reject this ruling. Consequently, it is difficult to understand why Isserles does not cite here the conflicting view. TaZ, however, does not accept the interpretation of M.E., viz., that Asheri and Tur reject this ruling. It is not necessary that the litigant in contradicting his opponent use the phraseology ‘A single … me.’ As long as he contradicts his adversary, it is sufficient — P.Tesh.

Mishnah Berurah

הלכה ט

ראה הדיין זכות לא' מהם ובע"ד מבקש לאמרו ואינו יודע לחבר הדברים או שראוהו מצטער להציל עצמו בטענות אמת ומפני החימה והכעס נסתלקה ממנו או נשתבש מפני הסכלות הרי זה מותר לסעדו ולהבינו תחלת הדבר משום פתח פיך לאלם וצריך להתיישב בדבר זה הרבה כדי שלא יהיה כעורכי הדיינים:

משנה ברורה

9.

[If] the Judge noticed aught in favour of one of the parties and the litigant [who is aware of this] desires to state it but knows not how to put together [his] arguments, or they [the Judges] saw him having trouble to defend himself in [the presentation of his] true pleas and [only] on account of [his] excitement and anger [this valid argumentation] escaped him, or he became confused because of ineptitude, — [the law is that] in such a case he [the Judge] is permitted to assist him and give him to understand [how to present] the opening of [his] case on account of 'Open thy mouth for the dumb.'38Y. San. III, 8(21c): ‘When R. Huna would know of a plea in favour of a party to a lawsuit and he (the litigant) would not know of it (i.e., he is unable to plead his own cause), he (R. Huna) would suggest (this) to him because of Open thy mouth for the dumb (Prov. XXXI, 8).’ On the principle Open thy mouth for the dumb, v., Ket. 36a; B.B. 41a; Git. 37b. However, one must give very careful consideration regarding this matter in order not to play the part of an advocate.39e., to be careful as Judge not to suggest an advice to one of the litigants. If the litigant is an imbecile (שוטה), we may plead in his behalf, for he is unable to plead his cause as in the case of orphans — Tummim.

Mishnah Berurah

הלכה י

אין לדיין לרחם בדין על דל שלא יאמר עני הוא זה ובעל דינו עשיר וחייב לפרנסו אזכנו בדין ונמצא מתפרנס בכבוד ולא להדר פני גדול שאם באו לפניו עשיר וחכם גדול עם עני והדיוט לא יכבדנו ולא ישאל בשלומו שלא יסתתמו דברי בעל דינו ולא יאמר היאך אחייבנו בדין ונמצא מתבייש אלא אפטרנו ואח"כ אומר לו שיתן לו את שלו אלא יחתוך הדין מיד לאמיתו ואם באו לפניו אחד כשר וא' רשע לא יאמר זה רשע וחזקתו משקר וזה בחזקת שאינו משנה בדיבורו אטה הדין על הרשע אלא לעולם יהיו שני בעלי הדין בעיניו כרשעים ובחזקה שכל א' מהם טוען שקר וידון לפי מה שיראה לו מן הדברים וכשיפטרו מלפניו יהיו בעיניו ככשרים כשקיבלו עליהם את הדין וידון כל אחד לכף זכות:

משנה ברורה

10.

A Judge should not show mercy towards a poor person [who is a party] in a lawsuit, [viz.,] that he [the Judge] should not say, 'This man is poor and his adversary is wealthy and he is required to support him; [therefore,] I will pronounce judgment in his favour and he [the poor man] will thus make a respectable living.'40Tur cited from Yad, Sanhedrin XX, 4. Derived from Sifra to Lev. XIX, 15 (cf. also Ex. XXIII, 3): ‘Thou shalt not respect the person of the poor: (This verse intimates) that you say not, This is a poor man (and) since I and this wealthy person are obliged to support him, I will pronounce judgment in his favour and he will make a decent living (i.e., not be dependent on charity); therefore, it is said, Thou shalt not respect the person of the poor.’ The very same exposition is found in Sifre to Deut. I, 17: ‘Ye shall hear the small and the great alike.’ Nor may [the Judge] favour the person of the mighty, [viz.,] that if there appeared before him a wealthy person or a distinguished scholar with a poor man or an ignorant person [respectively], he should not show him [the wealthy person or scholar] honour,41Nevertheless, the Judge should rise before the scholar (v. supra par. 2 Gloss) — M.E. He should not honour him more than he is legally required. nor should he extend a greeting to him, so that the words of his adversary [the poor or ignorant person] should not become stopped up; nor should he [the Judge] say, 'How can I pronounce him guilty at the trial for he will thus be put to shame, only I will acquit him and subsequently I will say to him that he should give him whatever rightfully belongs to him,' — but [the law is that] he should issue the verdict forthwith in accordance with its truth.42Derived from Sifra ibid. (Nor favour the person of the mighty) and Sifre ibid. If before him appeared one [litigant who] is a worthy person and another [litigant who] is a wicked person, he should not say, 'This one is a wicked person and has the status of making false statements and that one has the status that he does not change [i.e., stands by] his word,43Cf. supra § 15, 1, n. 4. [consequently,] I will turn the verdict against the wicked person,'44Yad, Sanhedrin XX, 5. Derived from Mekilta to Ex. XXIII, 6: ‘Thou shalt not wrest the judgment of thy poor in his cause: This verse speaks of a wicked person, viz., a wicked person and a worthy person stands before you in judgment, (and the verse intimates) that you say not, Since he is a wicked person, I will turn the verdict against him; it is therefore, written, Thou … cause, (i.e.,) he is poor in precepts (אביון is taken from the rt. אבה ‘to desire’ ‘to long for).’ — but the two litigants should be regarded by him as if they were [both of them] wicked [guilty] on the presumption that each one of them is making a false claim.45This refers to a case where the claimant demands more than he is entitled to, and the defendant denies even that which he is legally bound to pay — M.E. In other words, their pleas are contradictory. A Judge should not look intently or piercingly at the countenance of a wicked person — ShaK. However, superficial gazing is permissible and psychologically it has the effect of restraining the litigant from making false pleas — P.Tesh. And the [Judge] should adjudicate [the lawsuit] according to that which becomes apparent to him [as a result of] the arguments, and when they leave his presence they should be regarded by him as if they were [both of them] worthy [guiltless] after having accepted the verdict,46Yad, Sanhedrin XXIII, Derived from Aboth I, 8. and he should judge each one in the scale of merit.47Yad ibid. Derived from Aboth I, 6: ‘And judge all men in the scale of merit.’ Although one of the litigants was refuted, yet, we should endeavour to judge him in the scale of merit because it is quite likely that he had a claim of an outstanding loan (מלוה ישנה) against his fellow-litigant, and consequently, acted thus, on the assumption that the latter would confess (v. infra § 92, 3) — M.E.

Mishnah Berurah

הלכה יא

צריך הדיין לפסוק הדין מיד אחר שיתברר לו שאם מענה את הדין ומאריך בדברים הברורים כדי לצער א' מבעלי הדינים הרי זה בכלל לא תעשו עול:

משנה ברורה

11.

The Judge is obliged to issue the verdict forthwith, [i.e., immediately] after it becomes absolutely certain to him, for if he delays48Lit. ‘oppresses.’ judgment and [unduly] prolongs [the examination of] established matters in order [thereby] to afflict one of the litigants, such a one falls into the category of 'Ye shall do no unrighteousness [in judgment].'49Lev. XIX, 35. Thus Tur and Yad, Sanhedrin XX, 6. Derived from Aboth V, 8. , San. 35a and Rashi a.l. s.v. לדײניה.

Mishnah Berurah

הלכה יב

כשא' מבעלי דינים מגזם לחבירו בפני הדיין ואומר לו כך וכך תתחייב לי בדין אם אין הדין כך צריך הדיין לומר לו שקר אתה דובר: הגה בעל דין שתבע חבירו בעד דבר מועט והדיין רואה שיתחייב לו על פי הדין יותר ממה שתבע אין לו לדיין לפסוק יותר ממה שתבע ואם פסק לו יותר הוי טעות בדין וחוזר (דעת עצמו מפ"ק דב"ב רוניא אקפיה רבינא וכו' וכ"כ הריב"ש בסי' רכ"ז):

משנה ברורה

12.

When one of the litigants threatens his fellow [-litigant] in the presence of the Judge and says to him, '[Were I to make] such and such [a claim] you would be held liable to [pay] me according to the law,' — [then] if the law is not so, the Judge is obliged to say to him, 'You are making a false statement.'50Thus R. Tam in Tosaf., Ket. 69a s.v. ואישתיק. The reason being that should the Judge remain silent, then one who overhears this boastful statement will be under the impression that this is the law. The threatening statement was made by the litigant as follows: ‘Were I to desire, I would have made such and such a claim and the law would have been in my favour, but now I do not wish to make this claim against you.’ Consequently, if the law is not as stated by the litigant, the Judge is obliged to say to him, ‘You are making a false statement, for the law is not as you state.’ The reason for this requirement is that since the facts mentioned in the litigant’s statement do not enter into the fashioning of the final verdict, one who overhears this will say that the litigant is right since the Judge was silent (Tummim) — P.Tesh. Gloss: A litigant who made a claim against his fellow for a small amount and the Judge sees that according to the law [the defendant] would be liable [to pay] more than the amount which was claimed, the Judge should not give a decision [that the defendant pay] more than that which was claimed, and if he [the Judge] decided for him [the claimant] a larger [amount than he claimed], it is considered an error in judgment and he may retract.51His (Isserles’) own opinion derived from B.B. 5a in the case of Ronya who had a field enclosed on all four sides by fields of Rabina. Thus too, RIBaSh s. 227 — G. The underlying reason for this ruling is that no person will forego his rights without valid grounds, and since the claimant himself did not make this additional claim, apparently he is not entitled to it. Or it is quite possible that the reason the claimant does not make the additional claim is due to the fact that he is aware that the defendant has a counter-claim for the surplus or he may have foregone his claim for some other valid reason. However, if the Judge knows that the claimant is a G-d-fearing person, but is unversed in the law, and this being the reason for his not making a larger claim, since he is afraid that he would be robbing the defendant — the Judge may say to him, Know you that in accordance with the law you are entitled to more, — then if the claimant had foregone his rights or when he owes the defendant the difference, he will state this before the Judge since he is a G-d-fearing person. If the claimant said that he erred in the amount of his claim because he is unversed in the law he is relied upon; or if the Judge himself feels that he has additional rights, he must tell this to the claimant. Otherwise, he must keep his silence, unless the claimant is a G-d-fearing person — A.H. This interpretation removes many objections raised against Isserles’ ruling by M.E., ShaK a.o.

Mishnah Berurah

חושן משפט חושן משפט א פרק יז

Choshen Mishpat Choshen Mishpat 1 Chapter 17