Translation:Shulchan Aruch/Choshen Mishpat/37

1. A person is disqualified from any testimony in which he gains some kind of benefit by testifying. Therefore, if two people are partners in land and a third party attempts to remove the land from one of the partners by claiming that the individual who sold the land to them had originally stolen it from him, the other partner may not testify on behalf of his partner to disqualify the plaintiff’s witnesses. His testimony would not even help for his partner’s portion unless he removed himself from the field and they made a kinyan to give his portion to this partner. If the kinyan was not done until after the third party comes, it would still be valid. The testifying partner must accept that if his creditor were to come and collect from the partner that he would pay the partner the value of the taken land. He should make a condition that if a third party were to come to claim the land based on other claims, such as saying it was stolen from him or something similar, then he would not indemnify his partner. If, however, the plaintiff is only making a claim on partner’s share, such as a claim that the partner sold it to him, then he may testify because he has no stake in the testimony at all.

2. If one makes a complaint in connection with a field that grows fruits, the sharecropper cannot testify because the sharecropper wants the field to remain in the hands of the current owner so that he could take his share of the fruits. If the field has no fruits he may testify assuming he gains no other benefit from the testimony.

3. If witnesses admitted that they had a portion of a debt they had already testified on, the admission is of no effect. If, however, they admitted to it before the testimony, the testimony is void.

4. If Reuven calls two defendants claiming that he lent to them, and one the defendants denied the loan while the other confessed that both he and his co-defendant are liable, the one who confessed is not believed regarding his co-defendant if they took accepted the money as partners. The party who confessed will be liable for the entire amount.

5. If one produces a loan document against three defendants and they all claim they have already paid it back, if each one owed 10 gold coins individually and the co-defendants had no partnership in it, each one’s testimony may be used for his co-defendants.

6. If one of the partners makes a claim that negatively affects him and his partner, he has the believability of a solo witness and will obligate his partner to take an oath or will exempt the counterparty from taking an oath. If both partners testified to their detriment, they are believed regarding their other partners. See later 77:5. 7. There is no issue with selling a loan to one of the witnesses. See later 123:11-12 regarding whether an inheritor and his relative may testify.

8. Pashranim, judges and guardians are allowed to testify. See above Siman 23 regarding the laws of judges and pashranim, as well as later 46:24. For the laws of guardians see later Siman 290.

9. Hekdesh-treasurers are able to testify so long neither them nor their relatives have any right to the hekdesh properties or their fruits. All the more so are the treasures’ relatives allowed to testify, notwithstanding the fact that the treasurer may hand out the money as he sees fit, according to the opinion that a kickback is not considered money. Although the treasurer may subsequently distribute the money to his poor relatives we would not void the testimony because there was no recognizable benefit at the time of the testimony.

10. Testimony is valid in a situation where in his current state the witness gains no benefit from his testimony but if he were to become rich then he would gain benefit.

11. If Reuven has a loan document out against Shimon, and Reuven gave it over to Levi via handing it over and writing down the gift, and Shimon was one of the witnesses on the gift, Shimon is disqualified. See later 66:21-22 regarding whether one of the signed witnesses who buys the loan is considering as having a stake in the matter.

12. If a renter has the rent in his hands and says whomever ,this land belongs to should come and collect the rent, the renter may testify for the individual who rented it to him. Once the renter has already given the rent to the owner, he can no longer testify for the owner because if land were to be given to the complainant, the renter would need to pay another rental. If the owner returns the rent money to the renter so that he can pay whomever wins the case, the renter may then testify for him. This is all in a case where there are witnesses that the renter lived in the house. If, however, there are no such witnesses, the renter is believed in all cases because he has a migu that he could have remained silent. [note: A migu is a reason that a claim that would otherwise be rejected by a Jewish civil court should be accepted based on the fact that the litigant could have prevailed in the case based on a different claim were he disposed to lie. To be effective, the logic underlying the migu must be impeccable and there are a variety of cases in which the Migu argument is invalid].

13. If a complaint is brought against a borrower to remove land in his possession and the borrower does not have other land in his possession that is the value of the debt, the lender and co-signer cannot testify to keep the land in the borrower’s possession. If the borrower does have other land in his possession equal to the value of the land, they lender and co-signer may testify for him. There are those that say that a co-signer who is a kablan (contractor) cannot testify in any situation.

14. An original buyer may testify for a subsequent buyer of the same seller to keep the second property in the subsequent buyer’s hands so long as the seller has another unencumbered field equal to the value of the field of the original buyer or the second buyer has another field that he purchased from the seller. Similarly, the second buyer cannot testify for the original buyer unless the seller had land equal to the value of the original purchase.

15. If Reuven sold Shimon an unsecured field and Yehuda brings a claim against Shimon to remove the field from his possession, Reuven may not testify for Shimon even though the field was unsecured because Reuven wants the land to stay in Shimon’s possession so that Reuven’s creditor may collect a debt and Reuven will not be considered a “wicked borrower who does not pay back.” This is only applies where Yehuda’s claim is via the seller. If, however, the claim is via the buyer in that Yehuda says that Shimon owes him money, then Reuven may testify for Shimon.

16. If Reuven sold an unsecured cow or garment to Shimon and Yehuda brings a claim against Shimon to remove the item from his possessions on the basis that Reuven obtained it from a thief, Reuven may testify for Shimon because he gets no benefit if the item remains in the hands of Shimon since Reuven’s creditor may not collect moveable items, even if they were designated as the method of collection. In modern times, even if the borrower were to place a lien on moveable items together with real property, the lender would still not be able to collect from the moveable items that were sold. If, however, Yehuda claims that Reuven himself stole the property, then Reuven would not be able to testify if it is a situation where Yehuda would need to pay Shimon because of the regulation instituted for commerce purposes and Yehuda would then be able to go and collect the money from Shimon.

17. If Reuven stole a garment or field from Shimon, and Yehuda brought a claim against Reuven saying that this field or garment is his, Shimon would not be able to testify that this is not Yehuda’s field or garment because Shimon just wants the field or garment to remain in Reuven’s possession because it might be easier to remove it from Reuven’s possession than it would be to remove it from Yehuda’s possession. Similarly, if Reuven sold or bequeathed the stolen field to Levi and Yehuda brings a claim against Levi, Shimon cannot testify that it does not belong to Yehuda. If Shimon sold the stolen garment to Levi, Shimon gave up on reclaiming it and Yehuda brings a claim against Levi, Shimon may testify that it is not Yehuda’s if Reuven had died because this garment will never go back to Shimon since the buyer already acquired it with the giving up of hope and the transfer of possession and Reuven the thief had died, so there is no one to collect the money from. If, however, Reuven was still alive, Shimon may not even testify on the garment because there is a benefit to him for the garment not to go to Yehuda so that he can bring a proof that Reuven stole it and Reuven will have to pay. Similarly, if the garment was in the possession of Reuven’s inheritors, Shimon may not testify because it will eventually go back to Shimon if the inheritors can maintain possession. The same applies to anything similar. Even in a case where Reuven died, Shimon may only testify if the sale was unsecured. If, however, the sale was secured, Reuven’s estate would be liable and thus Shimon has a stake in the testimony. Now that the rabbis have instituted that a creditor may even collect from moveable time, a victim of theft may not even testify in a case where the thief died and the sale was unsecured because the victim still has a stake in the testimony. This all applies only where Shimon wants to testify that the field or garment does not belong to Yehuda. If, however, he wants to testify that it belongs to Reuven, he may testify in every case because once he confesses that it belongs to Reuven he can no longer bring a claim that it is his. Thus, he does not have a stake in the testimony.

18. If a person brings a claim on a bathhouse or city street against the citizens of city, a citizen of the city cannot testify or judge until he removes himself with a complete kinyan. There are those that say that is impossible to remove one’s self from an item which is a public good unless they have another similar item. This is the primary ruling. 19. If a city had its Torah stolen, since the Torah is intended for listening purposes, which a person cannot possibly remove himself from, we would not use the city’s judges nor would we bring a proof from the people of that city. The same applies to anything similar. See above 7:12 which states that if the city has another Torah, it would be permitted. The same applies to anything similar, such as a synagogue or other books or something similar, in which case the judges of that city may rule on the case.

20. If one says give money to the poor people of my city, we cannot use the judges of that city nor can we bring a proof from the people of that city. When is this true? When the poor people rely on the city and the city distributes charity to them. Even if two people from that city were to say we will give the set amount and we will testify, we would not listen to them because there is still a benefit to them for these poor people to become wealthier since they rely on the people of the city. The same applies to anything similar. See above Siman 7 for the laws of taxes in a city.

21. These matters are dependent on the perception of the judges and the depth of their understanding. They must understand the primary rules, know the consequences of each matter and dig deeply to see if this witness gains any benefit from this testimony. The witness may not testify nor may he be a judge, even if it is an incredibly distant benefit.

22. Today we have the custom to accept witnesses from the public regarding their institutions, agreements, consecrations and any other topics. They are even valid for their own relatives because they accepted them. We do not use the principle of two is like 100 on any matter which is dependent on the city custom. Rather, we follow the majority. The same applies to anything similar where we do not need literal witnesses. Similarly, we do not use the principle of “we did not see is not a proof.” Rather, not seeing is in fact a proof. With respect to living status or something similar in connection with the needs of the city, we can even judge via distant hearsay because the entire public has a stake in the testimony anyway. See later Siman 156 and 163 regarding these laws. City activists who were appointed to deal with public or private needs have the status of judges and we cannot appoint one who is disqualified from judging due to wickedness.