Shulchan Arukh Choshen Mishpat · Siman 20

Shulchan Arukh Choshen Mishpat 20 — English translation

Translation: Code of Hebrew Law by Chaim N. Denburg, Montreal, 1955. Section numbers match the Hebrew text above.

1. 1One who was found guilty in the Court of Law and [subsequently] produced witnesses or proof in his favour, it can upset the verdict and [the decision] is reversed, VII, 6. Derived from Mishna San. 31a. , supra § 16, 1 and notes. although [the trial] had already been concluded and even if he [the guilty party] had already made payment, § 16, 1, n. 4): ‘Rabbah b. R. Huna stated: The law follows Rabban Simeon b. Gamaliel. Rabba b. R. Huna also said: The law does not follow the Sages. But is this not self-evident; since he states that the law follows Rabban Simeon b. Gamaliel it automatically follows that the law does not rest with the Sages? — What you might have said is that his statement (that the law follows Rabban Simeon b. Gamaliel) applies only at the outset (i.e., even if evidence was produced after the thirty days it should be accepted); but ex post facto (i.e., where his proof was rejected by the Court and a decision was given accordingly) it holds good: we are therefore informed by the second statement, (viz., that the law does not follow the Sages) that even then (the verdict) is upset.’ According to the interpretation of R. Zeraḥiah ha-Lewi, this latter statement ‘but ex post facto etc.,’ should be understood as referring to a case where money had already been exacted from one party, and we might have thought that in this case the law should rest with the Sages and the verdict should not be upset, we are therefore informed otherwise. This is the source of the present ruling ‘even if he had already made payment.’ Hence, according to this interpretation ‘at the outset’ ( לכתחילה ) means that the verdict was given but not yet carried out, and ‘ex post facto’ means that the verdict was already carried out. — [yet] as long as he produces proof, it upsets [the verdict]. [If] the Judges told him, 'All proofs which you have in your possession, produce within thirty days' — [the law is that] although he produced proof [only] after thirty days, it upsets the verdict; for if this were not so, what is he to do if he did not find [evidence in his favour] within the thirty [days] but only after the thirty days? § 16, 1, n. 4. However, if they told him to produce witnesses or proof, and he stated, 'I have none,' — [the law is that] although he found [proof or witnesses] subsequently, — it is of no legal effect. in accord with the Sages who oppose Rabban Simeon b. Gamaliel because he might have forged a document or engaged false witnesses. For we take for granted that when he gave them a negative reply he made a thorough investigation whether he has evidence or witnesses. Thus Rashi. M.E., writes that even if it becomes apparent that he did not engage false witnesses, nevertheless, if he is of majority age and gave them a negative answer at the outset, we no longer accept these afterwards. And needless to say, if they said to him, 'Do you have witnesses?' and he replied, 'I have no witnesses,' [or they said to him], 'Do you have proof?' and he replied, 'I have no proof,' and they tried him and found him guilty, and [then] on seeing that he is convicted, he said, 'Admit So-and-so and let them testify in my favour,' or he [then] produced [documentary] evidence from his funda, i.e., [ a garment in the form of ] a small shirt [ sewn ] by stitches similar to wallets , s.v. אפנדה where this definition is found. — it has no legal effect, VII, 7 in accord with all the authorities. and they pay no attention to him nor to his proof. Gloss : However, if he did not say, 'I have no proof' [ or 'I have no witnesses' ], [ then ] although he was silent until he was convicted by Law and afterwards he said, 'Admit So-and-so and So-and-so and let them testify in my favour', it can upset the verdict . Rule VI, s. 15 and Rule XIII, s. 19 — G. The statement in the Mishna ibid .: ‘On seeing that he was about to be convicted he said, Admit … my favour etc.,’ refers only to a case where he previously stated, ‘I have no proof or witnesses’ whence we infer that had he remained silent we would now accept his evidence. Likewise, if he has additional pleas in his defence, as long as they do not contradict his original pleas, he is permitted to state them — Asheri. When does this apply? — When the proof was in his possession and the witnesses [were residents] with him in [the same] country; but if he stated, 'I have no witnesses and I have no proof,' and subsequently witnesses arrived [to testify in] his favour from overseas or his father's saddle-bag a bag with two pouches. containing the documentary [proof] was deposited with strangers, — and some say likewise his own documents , — G. But the one with whom they were deposited is in another country. — and [then] the trustee arrived and produced his proofs, — [the law is that] in this case he may bring forward [the new evidence] and it can upset [the verdict] VII, 8. Derived from San. 31b in accord with R. Samuel b. Judah on the authority of R. Joḥanan. because he can plead by saying, 'This statement [viz., that] I have no witnesses and I have no proof I made [previously] because they [the witnesses or proof] were not accessible to me.' And [ this applies ] only where witnesses came [ and testified ] that those documents were among the deposited documents . to San. III end. Derived from Tosef(Z). VI, 4. And as long as he can advance a plea and state, 'On account of such and such circumstances I stated [that] I have no witnesses or I have no proof,' and there was substance in his pleas, — [the law is that under] these [circumstances] he did not declare his case to be closed and it can [still] upset [the verdict]. VII, 8. Derived from San. 31b in accord with R. Samuel b. Judah on the authority of R. Joḥanan. Therefore, if he explicitly stated, 'I have no witnesses at all neither here nor overseas,' or 'I have no proof at all neither in my possession nor in the possesssion of strangers,' it cannot upset [the verdict]. When does this apply? — In the case of an adult, but a legatee who was a minor when his legator died and claims were brought against him on account of his legator after he came of age, and he stated, 'I have no witnesses' or 'I have no proof,' and after he left the Court of Law [where he was pronounced] guilty, strangers said to him, 'We are aware of testimony on your father's behalf whereby you may upset this verdict, or a certain individual said to him, 'Your legator deposited this proof [with me],' — [the law is that] he may produce [this evidence] forthwith and it upsets [the verdict], — for a minor legatee is not [supposed] to know all the [available] proofs of his legator. Gloss : This entire [ aforementioned law ] applies to an undefined case , but if the adult subsequently produced proof and witnesses [ to prove ] that he was unaware of these witnesses [ or proofs ] which he subsequently produced, or [ in the case of ] a minor [ legatee regarding ] whom witnesses came and stated that his father's documents were in his possession and [ that ] he knew about them when he went to law, — [ the law is that ] we accept them . to San. III end — G. In the former case we upset the verdict though he is of age and the witnesses and proofs were available in his city; in the latter case the verdict stands even though he is a minor.

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