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חושן משפט

חושן משפט ב

פרק יח

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 18

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 ז ח ט י יא יב יג יד

18:1 18:2 18:3 18:4 18:5 18:6 18:7 18:8 18:9 18:10 18:11 18:12 18:13 18:14

Sif

הלכה א

כיצד נושאין ונותנין בדבר ושהולכין אחד הרוב ובו ו"ס:
הביא א' מהבעלי דינים עדים לדבריו מכניסין העדים ומקבלים עדותם כראוי כמו שיתבאר בסי' כ"ח ולאחר שיקבלו עדותם יוציאו כל אדם לחוץ וישאו ויתנו בדבר (י"א דטוב להתחיל מן הקטן) (נ"י פרק אד"מ) אם יסכימו לדעת אחת מוטב ואם לאו ילכו אחר הרוב שנים אומרים זכאי וא' אומר חייב זכאי. שנים אומרים חייב וא' אומר זכאי חייב א' אומר זכאי וא' אומר חייב וא' אומר איני יודע ואפי' שנים אומרים זכאי או חייב וא' אומר איני יודע יוסיפו שני דיינים ונמצא שהם חמשה נושאים ונותנים בדבר אם ג' מזכים וב' מחייבים זכאי ואם ג' מחייבים ושנים מזכים חייב שנים אומרים זכאי ושנים אומרים חייב וא' אומר איני יודע יוסיפו עוד דיינים אבל ארבעה אומרים זכאי או חייב וא' אומר איני יודע או שאמרו שלשה זכאי וא' אומר חייב וא' אומר איני יודע בין שהוא אותו שאמר תחלה איני יודע בין שהוא אחר הולכים אחר הרוב: הגה וכן נ"ל עיקר דלא כמ"ש לעיל סי' י"ג סעיף ז' בהיפך והוא דעת החולקים ואפשר דעתו לחלק בין אם נתברר תחלה יותר מג' ובין ירדו מתחלה לג' אך אינו נ"ל רק שחולקים הא' דעת הרמב"ם והשנית דעת הרשב"א קהל שבררו ד' או ה' בירורים אין הולכין אחר הרוב שאין רוב אלא בב"ד ואם אמרו הקהל שילכו אחר הרוב והם שקולים אין אומרים שיבואו אחרים ויכריעו שהרי הקהל לא לקחו רק אלו המבוררים אבל אלו המבוררים יכולים לשאול לאחרים ויפסקו על פיהם מה שירצו (ב"י ס"ס י"ג תשו' הרשב"א):

משנה ברורה

1.

[If] one of the litigants produced witnesses to [substantiate] his pleas, they bring in the witnesses and receive their testimony properly as will be explained [infra] § 28.1Tur and Yad, Sanhedrin XII, 9. Derived from San. 30a: ‘(ref. to Mishna ibid. 29a: ‘When the Judges arrived at their verdict they brought them in’) Whom (do they bring in)? Shall we say the litigants: but they are present there already? (In the Mishna ibid. no mention is made that they had to leave)… In reality, the litigants are referred to and this accords with the view of R. Neḥemiah (i.e., during the discussion of the case the litigants were ordered out). For it was taught: R. Neḥemiah stated: This was the custom of the pure-minded in Jerusalem: (first) the litigants were brought in and their pleas were heard; (then) the witnesses were brought in and their statements were heard. Then they were ordered out and the case was then discussed.’ And after they receive their testimony they should order every person out2So that the litigants should not know who declared them guilty or not guilty. Furthermore, so that the litigants should not hear the case discussed by the Judges and learn therefrom to advance false pleas — M.E. However, others who are present there should not be ordered out, especially one who is a distinguished student (תלמיד ותיק) should be permitted to remain. An uncultured disciple should be ordered out (v. supra § 9, 6) — BaḤ and Beth Ya‘akob in Resp. Shebuth Ya‘akob maintains that according to Maim., Tur and Caro everyone should be ordered out in accordance with He that goeth about as a talebearer revealeth secrets (Prov. XI, 13) save a disciple of the law unless he is uncultured may remain — P.Tesh. and discuss the case. Some say that it is proper to begin [the discussion with the opinion of] the minor [Judge].3N.Yos. to San. IV, — G. Derived from San. 36a: (ref. to Mishna ibid. 32a: ‘In monetary cases, in cases concerning cleanness and uncleanness [the Judges declare their opinion] beginning with the most distinguished [of the Judges], but in capital cases we begin [with the opinion of] those [that sit] on the side [benches]’): ‘Rab said, I was one of the voters in the school of Rabbi and with me they commenced (It was the law concerning a title to property purchased from the Sikarikon. , Git. 59a. Hence, it deals with a monetary case). But have we not learnt, We begin with the most distinguished (of the Judges)? … The voting in the school of Rabbi was different because in all their voting they began (with the opinion) of those who sit on the side (on account of Rabbi’s humility).’ Hence, when the Mishna states that we begin the voting with the opinion of the most distinguished it means that we may begin with the most distinguished Judge because we do not apprehend that the other Judges will refuse to differ with him; but if they wish to adopt a stringency and begin with the opinion of the minor Judges who sit on the side benches it is a more proper approach, and since this was the procedure adopted in the school of Rabbi, it follows that it is permissible to do so. , also San. ibid.: ‘But in capital cases we begin (with the opinion of those that sit) on the side (benches): Whence do we know this? — R. Aḥa b. Papa stated: Scripture says, Thou shalt not speak al rib (in a case) [Ex. XXIII, 2. Rib רב is taken as rab רב] (i.e.,) you should not speak al rab against the most distinguished (of the Judges).’ This means that it is proper to begin with the side opinion, for if the most distinguished Judge will state his opinion first, the minor Judges will refuse to oppose him and will not have the courage to contradict his opinion. , however, Tosaf. San. ibid., s.v. דיני נפשות; Tosaf. Yom Tob to San. IV, 2. If they unanimously agree, it is good; and if not, they follow the majority.4 Ex. XXIII, 2: To incline after the majority and cf. Mishna San. 2a. We follow the majority even if the third Judge is much greater in learning than the other two Judges who oppose him provided they are informed of his reasoning and yet oppose him (cf. Yeb. 14a in the case of Beth Shammai and Beth Hillel) — A.H. Although the adopted principle is that ‘we do not follow the majority in monetary disputes’ (B.K. 27b) — this refers only to such cases where the minority is existent; but in the present ruling the minority opinion is regarded as non-existent — A.H. In monetary matters we follow a majority of one; in capital cases a majority of two — M.E. , Mishna San. ibid. [If] two say, 'He is not guilty,' and one says, 'He is guilty,' he is not guilty; [if] two say, 'He is guilty,' and one says, 'He is not guilty,' he is guilty; [if] one says, 'He is not guilty,' and one says, 'He is guilty,' and one says, 'I know not [how to decide],' and even if two state, 'He is not guilty,' or 'He is guilty,' while one says, 'I know not [how to decide],'5Mishna San. 29a. We follow the majority only when all the three Judges discuss the matter and state their opinions; but when one Judge states ‘I know not,’ he is regarded as non-existent, for were there in his stead another Judge who would state his opinion, it is quite likely that the other two Judges would concur with him. This however, applies only to the first three Judges who discuss the case; but after the number of Judges is increased, — then even if one Judge says ‘I know not,’ nevertheless, since originally when the Court convened their intention was to reach a verdict through three Judges, we follow the majority — M.E. Beth Ya‘akob in Resp. writes that if two of the three Judges declare him to be not guilty and the opinion of the third is that he is guilty, the latter cannot withhold his opinion in order for them to increase the number of Judges because we apprehend that this will bring contempt on the Court (cf. San. 8a, Tosaf. s.v. מוציא). Shebuth Ya‘akob a.o. reject the ruling of Beth Ya‘akob and hold that it is permissible for the Judge to say ‘I know not.’ Birkath Ya‘akob agrees with Beth Ya‘akob — P.Tesh. they must add6Despite the fact that had he declared his opinion he would still have been overruled by the majority, yet since he says, ‘I know not,’ he is regarded as non-existent, and we require that the case be tried by three Judges — Rashi to Mishna San. 29a, s.v. אפילו. two Judges,7As in capital cases where two Judges are added. , Mishna San. 40a; Tosef. San. VI, 4; Tosef(Z). San. VI, 3 and notes. , Yad, Sanhedrin VIII, 2. and consequently, there are five [Judges] who discuss the case.8San. 17a: ‘You might have thought that the one who states, I know not (how to decide) is regarded as an existing member (of the Court) and that whatever he says should be considered. We are therefore taught that he who states, I know not (how to decide) is considered as non-existent and should he offer a reason (for a certain decision) we do not listen to him.’ Consequently, Caro’s text following Maim. (Yad ibid.) presents a difficulty, since it regards the undecided member as existent (note the words of Caro. ‘consequently, there are five [Judges] who discuss the case)’. For otherwise, after the number of Judges is increased there should be four members. It seems, however, that Maim. and Caro after him maintain that in capital cases only is the undecided member considered as non-existent but not in monetary matters. Cf. San. 33b, Tosaf. s.v. אחד. Lebush writes that to add only one Judge would be insufficient, for it is quite likely that the Judge who was at first undecided might change his mind and agree with the opinion of the added Judge and thus there will be an even number of those who are for acquittal and those who are for conviction — P.Tesh. Cf. also supra § 13, 17, n. 34. Lebush reason is not accepted by some of the Codifiers (v. P.Tesh. and cf. Be’er Eliyahu a.l.) and in reality there are instances where one Judge would make the number uneven, e.g., where they originally commenced the legal proceedings with five Judges and one was found to be ineligible, — then only one Judge should be added. This explains why the number of Judges added in monetary cases is not mentioned in Mishna San. 29a. But in capital cases where the conviction must be effected by a majority of two, it is mentioned (v. San. 40a). If three declare him not guilty and two declare him guilty, he is not guilty; if three declare him guilty and two declare him not guilty, he is guilty; [if] two say, 'He is not guilty,' and two say, 'He is guilty,' while one states, 'I know not [how to decide],' they must add more Judges.9Tosef. San. ibid. e., two more Judges are added. Thus Yad ibid. However, [if] four say, 'He is not guilty,' or 'He is guilty,' while one states, 'I know not [how to decide],' or [if] three stated, 'He is not guilty,' and one says, 'He is guilty,' while one states, 'I know not [how to decide]' — [the law is that] whether he is the [same] one who stated at the beginning, 'I know not [how to decide]' or whether he is another [Judge], we follow the majority.10Likewise if three are for acquittal and two state ‘We know not how to decide,’ we follow the majority. But if two are for acquittal, one for condemnation and two state ‘We know not how to decide,’ the number of Judges must be increased since there is no majority against those who are undecided (RaShaL) — M.E. Caro follows Maim., viz., that after the number of Judges is increased, the one who states, ‘I know not how to decide’ does not invalidate their decision as long as there is a majority of Judges who issue the verdict. Y. San. V, 5 (23a): ‘It was taught: Why are the Judges increased (in civil suits)? — So that if two of the first (Judges) were for acquittal (and one said ‘I know not how to decide’ and they increased the number of the Judges by two) and one of the latter (Judges who were added was also for acquittal and one stated ‘I know not how to decide’), — (the law is that) the proceedings are completed (i.e., sentence is pronounced) by three (since we now have a majority and we do not say that since one stated ‘I do not know’ he is considered as nonexistent and consequently we should again increase the number by two. The point is this: At the outset there were only two Judges who concurred and since the verdict is not valid if given by two Judges, the number had to be increased; but now that there are three who agree, sentence is pronounced and it matters not whether one of the added Judges was for condemnation or was undecided). Said R. La (Heb. לא abbrev. of אילא), Since (two Judges have been added) it seems that the final verdict should be pronounced by four (Judges, because the one who was undecided is regarded as non-existent and now that one of the added Judges is also undecided, he too is regarded as non-existent. Consequently we have only three Judges who declare their opinions and therefore the law is that) we do not conclude the proceedings by three (but we should increase the number again by two more Judges). R. Jose said, You may deduce from this (i.e., from the first opinion recorded here, that we issue the verdict by three), (the law stated in Y. Shebi. X, 4(39c)) — (that) if three (Judges) confirmed (a document) and one of them dies (before they sign it), the two (Judges) sign it and they must write: Although two of us signed it, we judged (confirmed) it by three (For as in our case we do not require that four Judges offer their opinion, so too, in the case of the document we do not have to add another Judge but it suffices that two Judges sign it. Hence, this is in agreement with the First Tanna and not with R. La). Said R. Ḥaggai, the Mishna (too) states this (v. Shebi. X, 4: ‘This is the formula of a Prozbul: I declare before you.....................the Judges, in the place....................., that I shall collect any debt that I may have outstanding with...................., whenever I desire.’ According to Deut. XV, 2 the Sabbatical year cancels a loan and in order to protect the creditor, a declaration was made in Court to the effect, that the law of limitation by the entrance of the Sabbatical year shall not apply to the loan transacted): The Judges sign below or the witnesses (Thus we see that though the declaration was made before a Court of three, nevertheless, it is valid even if two signed the document of Prozbul. Likewise, in the present case where three Judges pronounced the verdict. Hence, we see that this accords with the first opinion contra R. La). But do we apply the rules of Prozbul to ordinary claims? — (Yes), he (R. Ḥaggai) found that it was taught: We apply the rules of Prozbul to ordinary claims.’ It is evident, therefore, that Caro’s opinion recorded in the present ruling, following Yad ibid., accords with the first opinion in Y. contra R. La. Gloss: Thus seems to me to be the fundamental principle, not as he [Caro] writes supra § 13, par. 7 the reverse which is the opinion of those differing with [this view].11 infra par. 4 and notes. Perhaps, however, he [Caro] is of the opinion [that it is necessary] to make a distinction between [a case] where [a Court] was selected at the outset [consisting of] more than three [Judges] and one [where] they went down at the outset [to hold a judicial session consisting of] three [Judges].12Isserles’ words are incomprehensible because RaShBA states explicitly in a Resp. (cited by Kesef Mishneh to San. VIII, 2) that if one member of a Court of three stated, ‘I know not how to decide,’ and then two more Judges were added, and subsequently one of the four Judges said, ‘I know not how to decide,’ — the law is that the verdict is given by the three remaining Judges as if the original judicial session was to be conducted by three Judges, and if two of three declare him guilty or not guilty and one opposes them, we follow the two Judges who represent the majority (v. Y. cited supra n. 10). On the other hand, v. supra § 13, 7, the source of which is also RaShBA which contradicts Resp. The difficulty may be removed by making the following distinction: Here we deal with a case where the original session began with three, in which case RaShBA agrees that the majority is valid; in § 13, 7 we treat of a case where the original session commenced with ten. Hence, all of them must submit their views, and we follow the majority. Cf. San. 5b. As to Isserles’ statement anon that if the community chose four or five arbiters, we do not follow the majority, it should be borne in mind that there is a difference between choice made by a community and that made by litigants — M.E. Yet, [this distinction] does not seem plausible to me; but they [really] differ, — the first [representing] the opinion of Maimonides and the second [representing] the opinion of RaShBA.13Maim. holds that in monetary cases the one who is undecided is considered existent. Consequently, in § 13, 7 supra according to Maim. if one of the ten is undecided, the question may be decided by the majority. However, according to RaShBA who maintains that the undecided Judge is considered non-existent even in monetary cases, in agreement with RaBaD, it follows that since they agreed to be tried by a Court consisting of ten Judges, consequently there are no ten present — Be’er Eliyahu. [In the case of] a community that chose four or five arbiters [to decide a case] we do not follow the majority,14 supra § 12, 18, n. 44. The reason being that since they agree to choose more than three, — the minimum number required for a Beth Din, — their decision must therefore be unanimous, and if there is no unanimous agreement, the defendant is exempt until it can be proven otherwise — M.E. for [the principle of following the] majority applies only in a Court of Law.15Where there is a doubt regarding the meaning of a communal measure (ספק בלשון התקנה) we adopt a leniency with respect to the defendant on the principle that ‘the claimant must produce evidence’ (המוציא מחברו עליו הראיה). Should, however, the defendant be guilty in the eyes of strict law, but on the basis of the doubt regarding the communal measure, he claims that he is exempt, — the law is that he is placed under the jurisdiction of the law and must pay. A Rabbinical measure found in the Talmud is on the same footing as strict law — P.Tesh. Cf. however, supra § 13, 7. However, if [the members of] the community stated that they [the arbiters] may follow the majority and they are even-balanced, we do not say that others should come and cast the deciding vote, for the [members of] the community have accepted only those who were [originally] chosen [to decide the case]. However, those who were [originally] chosen may ask whatever advice they desire from others and [then] render a verdict accordingly.16B.Yos. supra § 13 citing RaShBA in Resp. end — G. , supra § 14,

Mishnah Berurah

הלכה ב

היו מחצה על מחצה וא' אומר איני יודע הרי אלו מוסיפין ב' אחרים וכן אם נסתפק הדבר מוסיפין והולכים עד ע"א הגיע לע"א ואמרו ל"ה זכאי ול"ה חייב וא' אומר איני יודע נושאים ונותנים עמו עד שיחזור לצד הא' ונמצא ל"ו מזכין או מחייבין ואם לא חזר לא הוא ולא אחד מהם הרי הממון ספק ומעמידים הממון בחזקת בעליו:

משנה ברורה

2.

[If] they were half against half and one says, 'I know not [how to decide],' they add two other [Judges]. Likewise, if the matter was [still] in doubt, they continue to increase [the number of Judges] up to the limit of seventy-one. [When the number] seventy-one is reached and thirty-five [members] stated, 'He is not guilty,' and thirty-five [members stated], 'He is guilty,' and one says, 'I know not [how to decide],' they debate with him until he turns to one side with the result that there are thirty-six for acquittal or [thirty-six] for condemnation.17Yad, Sanhedrin VIII, Derived from Mishna San. 40a. , Tosef(Z). where it is evident that both in monetary and capital cases we adopt the same procedure. Cf. also Y. San. V, 5(23a). But if neither he18e., the one who is undecided. nor any one of them changed [his viewpoint], — [then] the monetary claim is considered doubtful and we let the [disputed] money continue to remain in the possession of its owner.19San. 42a: (Ref. to Mishna ibid. 40a: ‘The two sides discuss the case together until one of those who condemn concurs with etc.’) ‘What if they do not agree? — R. Aḥa stated: He is discharged.’ The same applies to a case where one Judge was undecided, and just as this is the law in capital cases, so too, in monetary suits money is not exacted from him.

Mishnah Berurah

הלכה ג

כל מי שאומר איני יודע א"צ לתת טעם לדבריו ולהודיע מאיזה טעם בא לו הספק כדרך שמראה המזכה מאיזה טעם מזכה והמחייב מאיזה טעם מחייב:

משנה ברורה

3.

Whosoever states, 'I know not [how to decide]' is not obliged to offer a reason for his statement and to make known on what grounds the [state of] uncertainty was arrived at in the same manner as the one who is for acquittal indicates the grounds for acquittal and the one who is for condemnation [indicates] the grounds for condemnation.20Yad, Sanhedrin VIII, Derived from San. 17a: ‘R. Abbahu stated: When the number of Judges is increased, an evenly-balanced Court of Law may be appointed in the first instance. But is this not self-evident (for this has already been mentioned in the Mishna cited ibid., for when the number of the Judges is increased by two when the twenty-third is undecided, the Court consists of an even number)? — You might have thought that the one who states, I know not (how to decide) is considered as existent and that we should pay attention to what he says. We are therefore informed that the one who says, I know not (how to decide) is considered as non-existent and if he offers a reason (for a particular verdict, i.e., he advances reasons both for acquittal and conviction and on account of this he is in doubt — Thus Rashi), we do not pay attention to him.’ Hence, it follows that since his reasons are not considered should he offer them, consequently, he is not obliged to give reasons for his dubious attitude. Actually, since Maim. and Caro after him hold that in monetary cases the undecided member is considered existent (v. supra n. 8) he should be obliged to offer reasons for his dubious attitude, nevertheless, since in capital cases even if he offers reasons for a particular decision, we do not pay any attention to him, it is proper to conclude that in monetary cases he is not obliged to offer reasons.

Mishnah Berurah

הלכה ד

שלשה שישבו לדין וסילק א' מהם עצמו אין השנים יכולים לגמור הדין: הגה וה"ה אם נבררו מתחלה יותר מג' ונסתלק א' כמו שנתבאר לעיל ס"ס י"ג:

משנה ברורה

4.

Three [Judges] who held a judicial session and one of them withdrew himself [from the case], — [the law is that] the two [remaining Judges] cannot conclude the trial.21Hag. Asheri to San. , San. 30a (Ref. to Mishna ibid. 29a: ‘If two declare him not guilty etc.’) ‘How is the verdict phrased? — R. Joḥanan said: (The defendant is) not guilty. Resh Lakish said: So-and-so (of the Judges) are for acquittal; So-and-so are for conviction. R. Eleazar said: The defendant has been acquitted by their (the Court’s) verdict. Wherein do they differ? — Whether he shares in making compensation (in the case of an erroneous decision together with the others [v. San. 6a, 33a]). According to the opinion (that the verdict is to be phrased): He (the defendant) is not guilty, he (the dissenting Judge) must pay his share (because without him the other two could not issue a verdict); while according to the opinion (that the verdict should be worded): So-and-so are for acquittal and So-and-so are for conviction, he must not make payment (because his opinion is contained in the verdict). But even according to the opinion (that the verdict should be phrased): He is not guilty, he (the dissenting Judge) might argue, Had you not accepted my viewpoint, you too would not have to share in making compensation! — But they differ regarding their liability to pay his share (in addition to their own). On the view (that the verdict is worded thus): He is not guilty, they pay (the entire) liability (since their view was finally adopted); but according to the view: So-and-so (of the Judges) are for acquittal and So-and-so are for conviction, they do not pay (the share of the dissenting Judge). But even on the view (that the wording should be): He is not guilty, why should they pay (the entire amount)? They could argue (with the third Judge): Had you not been with us, the trial would have had no legal consequences at all!’ This latter statement means that they say to him, ‘You should have withdrawn from the case, having noticed that our opinion is erroneous, and consequently we would not have been able to conclude the trial. Hence, by remaining you too, are to blame and must share in the payment. ShaK writes that we deal here with a case where the Judges are not aware what the outcome of the trial will be. But if they know what the outcome will be, he may withdraw (i.e., even if the withdrawal is not on account of fear that the litigant who will be pronounced guilty is a powerful individual and will persecute the Judge [v. supra § 12, 1], but simply because he has no time to wait until the trial is concluded — P.Tesh.) and the remaining two Judges conclude the case. Nethiboth contends that even the conclusion of the trial (i.e., So-and-so you are guilty etc.) must be made by three Judges. Gloss: Likewise, if at the outset more than three [Judges] were chosen and one [of them] withdrew as has been explained supra § 13 end.22Caro places the law of an undecided Judge and that of one who withdraws from the case on an equal footing, viz., that in both cases the law is not decided by the remaining Judges. Isserles, however, rules (v. supra par. 1) contra Caro (supra § 13, 7) and yet in the present case he agrees with him. It is quite likely that the case of ‘one who withdraws’ is different, for had he been present, he might have advanced a reason for his opinion which would have met with the approval of the other Judges — M.E. Cf. supra n. 12.

Mishnah Berurah

הלכה ה

הא דאמרי' בגמ' הרב ותלמידו אין מונים להם אלא אחד היינו דוקא בשעה שמלמדו הרב הדין ועל פיו סומך ואפי' בכהאי גוונא אם הוא תלמיד כרב אמי ורב אסי דלגמריה דרב הוו צריכי ולסברתיה לא הוו צריכי יכול ללמדו בשעת הדין ודן עמו אבל אם אין מלמדו בשעת הדין אע"פ שהוא תלמידו מונים להם שנים רק שיהיה לו קצת סברא להבין לישא וליתן: הגה ולענין איסור והיתר או דיני טומא' וטהר' אפי' צריך לסברתיה מונים להם שנים (נ"י):

משנה ברורה

5.

[With respect to] that which we say in the Gemara, [viz., that] the teacher and his disciple are counted as one23San. 36a: ‘Rab stated: In capital cases one may teach his disciple (the laws affecting such cases) and pass judgment with him (they count as two votes). They raised an objection: In cases of cleanness and uncleanness, a father and his son or a teacher and his disciple count as two (since the decision may be rendered by one and only in cases of dissension a vote is taken); but in monetary suits, capital cases, cases of flagellation, the sanctification of the month, the intercalation of the year, a father and his son, or a teacher and his disciple count only as one (since a fixed number of Judges is required to deal with such matters)? — Rab had reference to (disciples) such as R. Kahana and R. Assi who required Rab’s traditional teaching (of the laws) but not his argumentation (in applying these traditions. Consequently, their reasoning is considered independent).’ it refers only to the time when [the teacher] instructs him [in] the Law and he [the disciple] relies upon his [the teacher's] instruction,24Thus Mord. to San. and even in this manner,25e., when the teacher instructs the disciple. — [the law is that] if he is a disciple such as R. Ammi26Cur. edd. have ‘R. Kahana.’ , supra n. 23. and R. Assi who needed Rab's traditional teaching but needed not his reasoning, he [the teacher] can instruct him [even] during the trial and may [still] pass judgment with him.27And be counted as two. However, if he does not instruct him during the trial, [then] even if he is his disciple, they are counted as two save that he [the disciple] should have some [capacity for] logical deductions [in order] to understand how to present arguments [in the case]. Gloss: With regards to ritual law or the laws of uncleanness and cleanness — [the law is that] even if he [the disciple] requires his logical deductions, they are counted as two.28N.Yos. — G. , Rashi ibid. s.v. הטמאות.

Mishnah Berurah

הלכה ו

ב"ד פוסקים בדיני ממונות שלא בפני בעל דין:

משנה ברורה

6.

The Court of Law may render decisions in civil cases in the absence of the litigant.29Thus RaShBA in Resp. Cf. San. 19a (regarding the case of the slave of King Jannai who killed a man) whence we learn that the defendant must be present during the time that the verdict is issued only in capital charges. Cf. also B.K. 112b regarding the case of authenticating a document in the absence of the other party to the suit. Hence, once the litigants have put forward their pleas which is similar to the case of authenticating a document, the verdict may be given in the absence of the other party. , § 13, 6, n. 29.

Mishnah Berurah

חושן משפט חושן משפט ב פרק יח

Choshen Mishpat Choshen Mishpat 2 Chapter 18