Shulchan Arukh in English

Every Judge) or one who is not a Mumḥeh but was accepted by the litigants to try the case, or three laymen even if they were not accepted by the litigants. However, the decision of one or two laymen is not considered valid even if authorization was obtained from the Resh Galutha (Exilarch) and even if the decision was not given in error — M.E. Thus Alfasi, viz., that the litigant may retract even if they (one or two laymen) did not err. But if it is impossible to retract, e.g., where one left for abroad or the like (v. Caro anon), the Judge must make restitution from his own pocket even if he did not take aught from one litigant and give to the other litigant with his own hand. For even where the Judge took and gave with his own hand, and in reality this should be returned by the litigant who received it in error, the Judge must pay the litigant who suffered a loss, and then collect from the other litigant who received payment on account of the erroneous decision of the Judge. RaZaH contra Alfasi rules that since the decision is invalid, then even if the layman Judge took and gave with his own hand, he is exempt from making payment, for the litigant is responsible since he knew well that the decision of such a Judge is invalid. If the Judge compelled the litigant to give aught to the other litigant, he is considered a robber and must make restitution. ShaK rules in accord with Alfasi where the Judge took and gave with his own hand. who adjudicated monetary cases and gave an erroneous decision — [the law is that] if he erred in evident and known matters, e.g., laws that are explicitly stated in the Mishna VI, Derived from Mishna San. 32a: ‘In monetary cases the verdict may be reversed (on discovering that the verdict was erroneous) either (from conviction) to acquittal or (from acquittal) to conviction.’ Gemara ibid. 33a: ‘But the following disagrees with it: If one adjudicated a case (by himself) and pronounced him who was guilty, not guilty, or the one who was not guilty, guilty; the clean, unclean, or vice versa : his verdict stands, but he must pay compensation (for any damage resulting from his erroneous decision) out of his own pocket (Mishna Bek. 28b. Thus we see that the verdict may not be reversed)? — R. Joseph stated: There is no contradiction: here it (our Mishna) has reference to a Mumḥeh (He had authority to upset his former decision); there (Mishna Bek.) to one who is not a Mumḥeh (His decision stands but he must pay indemnity). But do we reverse the verdict in the case of a Mumḥeh? Have we not learned: If he was recognized by the Beth Din as a Mumḥeh he is exempt from making payment! — R. Naḥman replied: Here (in our Mishna) we deal with a case where there is a Court superior to this one in learning and numbers (therefore, the superior Court can reverse the verdict of the lower Court); but in the other Mishna there is no other Court superior to this one in learning and numbers (i.e., in both Mishnahs the verdict was issued by a Mumḥeh, but where there is no superior Court available, one of the litigants may oppose reversing the verdict). R. Shesheth answered: Here we deal with a case where he (the Judge) overlooked a law cited in a Mishna (Hence, the verdict may be reversed); there he erred in weighing of opinions. For R. Shesheth stated on the authority of R. Assi: If he overlooked a law cited in the Mishna, the verdict is reversed; if he erred in weighing of opinions, the verdict is not reversed. Rabina asked R. Ashi: Is this also applicable if he erred in connection with a teaching of R. Ḥiyya or R. Oshaia (who were held to be the editors of the Tosefta which is not as authoritative as the Mishna)? — Yes, he answered. And even with respect to a saying of Rab and Samuel (whose dicta were not as authoritative as the Tosefta)? — Yes, he answered. Even regarding a law stated by you and me? — Are we reed-cutters in a marsh (i.e., illiterate), he answered. What is meant by the statement, Weighing of (conflicting) opinions? — R. Papa stated, E.g., if two Tannaim or Amoraim are in dispute and it was not stated with whom the law accords and it happened that he (the Judge) ruled according to the opinion of one of them, whilst the general practice (accepted by the majority of Judges. Thus Rashi ) follows the other (opinion), — this is considered a case of (erring) in the weighing of (conflicting) opinions … R. Ḥisda stated (in order to remove the contradiction between the Mishnahs supra ): Here (the Mishna in Bek.) we deal with a case where he (the Judge) took with his own hand (from one litigant) and gave (to the other in which case the verdict stands); here (the Mishna in San.) where he did not take and give with his own hand (in which case the verdict is reversed).’ Hence, our ruling is in accord with R. Shesheth. Cf. also Ket. 100a; Sheb. 38b; San. 6a. or in the Gemara or in the rulings of the Codifiers, on the authority of Asheri and Kes. Mish. to Yad ibid. Derived from San. ibid. , supra n. 2: ‘Are we reed-cutters in a marsh?’ Regarding a Talmudic question which remains unanswered ( תיקו ) where the law is that ‘the claimant must produce evidence,’ and the Judge erred in his verdict by giving a decision according to which the possessor should relinquish the disputed article — it is regarded as ‘overlooking a law cited in the Mishna’ ( N.Yos .), and if the Judge had already given the litigant a right to seize the article, — the law is that this hinges on the difference of opinion stated by the Codifiers whether ‘taking possession’ in the case of a disputed article concerning which the Talmud leaves the question undecided, is valid or not. Tummim holds that possession in this case is valid save that the other party has a right to demand payment by the Judge. Nethiboth, however, states that the Judge is exempt from making payment according to all authorities. the verdict is reversed and it [the case] is adjudicated in accordance with the law.) and were accepted by the litigants to try the case, since they erred in a law cited in the Mishna — Tur and Asheri. Gloss : Yet some say that if it appears to the Judge and to his contemporaries (s.v. ולא תגמרו ) it means: ‘Do not pronounce judgment on the basis of my verdict but issue your ruling in accord with the opinion which you are inclined to accept because everything depends upon the discernment of the Judge.’ From this we infer that one may rule in accordance with one’s opinion and discernment even in the case where it is contrary to the written verdict of his teacher. on the strength of indisputable proof that the law does not accord with that mentioned in the Codifiers, he can differ with it , the Geonim if it is not explicitly mentioned in the Talmud — Tur and Asheri. since it is [ a law that is ] not mentioned [ explicitly ] in the Gemara. on the authority of Asheri — G. , B.M. 86a where it is stated that R. Ashi and Rabina arranged the vast material which accumulated up to their times and they represented the authentic body of legislation as editors of the Talmud. Consequently, the body of teachings edited by them represented the authoritative Code and hence, a law not mentioned in the Talmud could be disputed. Nevertheless, one should not adopt a leniency in a matter that the [ authors of ] the [ former ] compilations [ on Hebrew Law ] that have spread among the large majority of Israelites were stringent, unless one has it on tradition from his teachers that we do not adopt that stringency . of Isserlein s. 241 — G. , A.Z. 36a whence RaN derives three important principles, a) If a prohibition issued by one Court has spread among the large majority of Israelites, another Court cannot annul this decision even if it is superior to the former Court in wisdom and numerical strength; b) If the prohibition of one Court has not spread among the large majority of Israelites, but the majority of people are able to abide by it, then another Court that is superior to the former Court in wisdom and numerical strength can annul the decision; c) If the prohibition of one Court did not spread among the large majority of Israelites because the majority of people are not able to abide by it, then even another Court that is inferior in wisdom and numerical strength can annul it. The law stated here refers to ritual law, for in civil suits the claimant is required to produce evidence — M.E. However, if it is impossibe to reverse [the verdict], e.g., where the one who received the money illegally [as a result of the erroneous decision] left for abroad or [in a case] where he is a stern individual [and refuses to return the money] or where [the Judge] pronounced aught that, is 'clean,' 'unclean,' or gave a decision regarding a Kosher animal that it is Terefah and they gave it to the dogs to eat, or anything similar to this, — [the law is that] these are [cases where] he [the Judge] is exempt from making compensation n. 2): It once happened that a cow’s womb was removed and R. Tarfon gave it to the dogs to eat (i.e., he declared the cow Terefah ). When the case was presented before the Sages in Yabneh, they declared her permissible (for human consumption), for Theodos (or Theodoros), the Physician said that no cow or sow leaves Alexandria of Egypt unless the womb is first cut out, in order that she may not breed (This precaution was taken so as to limit its breeding only to Egypt and thus compel buyers to come to Alexandria). Said R. Tarfon: Your ass is gone, Tarfon! (i.e., I will now have to sell my ass in order to compensate the owner of the cow for having erroneously declared it Terefah ). But R. Akiba said to him: You are exempt from reparation, since he who is publicly recognized as a Mumḥeh is exempt from making compensation (Mishna Bek. 28b; San. 93a). Now, if your opinion (R. Shesheth that one who overlooks a law cited in the Mishna may reconsider his verdict) has substance, he (R. Akiba) should have said to him: You overlooked a law cited in the Mishna (cf. Mishna Hul. 54a: If the womb is gone the animal is not rendered Terefah ) and he who overlooks a law cited in the Mishna may reconsider his verdict (Hence, even if R. Tarfon were not an expert, he should be exempt. Consequently, if the cow were still here, R. Tarfon could rescind the verdict and therefore the person who gave it to the dogs should be held responsible)! — He (R. Akiba) gave him two reasons: Firstly, you have overlooked a law cited in the Mishna, and he who overlooks a law cited in the Mishna may rescind his verdict. Secondly, Even if your error was made against common practice (Lit. ‘weighing of opinions’), you are a publicly recognnized Mumḥeh, and as such you are exempt from making reparation. Said R. Naḥman b. Isaac to Raba: What is the objection that R. Hamnunah raised against R. Shesheth from the case of the cow? But the cow had already been given to the dogs to eat and was no longer in existence for it to be returned to its owner (i.e., a reconsideration of the verdict would be of no avail)! — This is what he meant: Were you to say that one who overlooks a law cited in the Mishna may not reconsider the verdict, it is right, for then the verdict stands and R. Tarfon was fearful and (R. Akiba) said to him: You are recognized by the Beth Din as a Mumḥeh and exempt from reparation. But if you say that he who overlooks a law cited in the Mishna may reconsider his verdict, then (R. Akiba) should have said to him: Since if the cow were still available your verdict would have been invalid and you would have done nothing, so too, now (that the cow is no longer in existence) you have done nothing (i.e., you did not give it to the dogs yourself and it was the owner’s bad luck to have carried out your verdict [v. B.K. 100a]. Consequently, since R. Akiba did not present this argument, we conclude therefrom that if one overlooks a law cited in the Mishna, he must not reconsider the verdict).’ The present ruling accords with the interpretation of R. Ḥisda in removing the contradiction between the Mishnahs in San. and Bek. , supra n. 2. and although he was the cause of the damage, he did not cause damage intentionally. and BaḤ differ with ShaK and maintain that since the Judge did not have the express intention to cause damage, then even if he took and gave with his hand, the law is that if he over-looked a law cited in the Mishnah, he is not held responsible. Gloss : And some differ [ with this opinion ]. on the authority of Asheri and other Codifiers — G. e., the Judge is held responsible in a case where the article cannot be returned and the Judge erred by overlooking a law cited in the Mishna and we follow R. Meir’s opinion. As to the case of R. Tarfon (v. supra n. 11), it accords with the view of the Sages who oppose R. Meir and hold that liability is not adjudicated in an action of damage done indirectly. , supra n. 12. The dissentient view holds that even three Mumḥin who were accepted by the litigants are held responsible because we follow R. Meir’s opinion that liability is adjudicated in an action of damage done indirectly — M.E. ShaK concludes that if he is a publicly recognized Judge and was accepted by the litigants, then even according to the dissentient view recorded here, the Judge is exempt contra M.E. Tummim agrees with ShaK, but states that if the Judge took and gave with his own hand, although he is legally exempt yet as far as acting beyond the requirement of the law is concerned, he is held responsible. However, if he did not take and give with his own hand and erred in a law cited in the Mishna and is a Mumḥeh, — then even from the point of acting beyond the requirement of the law he is exempt as in the case of R. Akiba who exempted R. Tarfon and did not consider him liable beyond the requirements of the law. If one asks the advice of a Sage whether he should purchase certain meat or fruit, and the latter informed him that the fruit is ‘clean’ or the meat ‘Kosher’ and on the strength of this advice he purchased same and subsequently, it was found that the Sage had erred — ShaK holds that if he overlooked a law cited in the Mishna, the purchase is invalid and he may retract; but if he erred ‘in the weighing of opinions’ the purchaser may not retract save that the Sage or Judge is liable to make compensation if he is not a recognized authority but was only accepted by the litigants. Tummim disputes this ruling and maintains that the purchase is void and the vendor must return the money and take back his fruit or meat. And with regards to decisions in ritual law , — if he [ the Judge ] has attained [ the age of ] ordination, although he is not [ officially ] ordained, his legal status is as that of an authoritative [ Judge ]. to San. IV beg. — G. This ruling according to N.Yos. refers to a Judge who erred in ‘weighing of opinions’ in a monetary suit but not to one who erred in a law cited in the Mishna in which case the Judge is legally held responsible to make compensation unless he is an authoritative Judge ordained by the Court in the Land of Israel, or has authorization from the Resh Galutha; but in ritual law ( איסור והיתר ) if the Judge is an expert who is versed in the law ( גמיר ) and has the capacity for making logical deductions ( סביר ), he is not held responsible. Consequently, since the present ruling refers only to one who erred in a law cited in the Mishna, Isserles should have stated this law in the next par. which deals with the law of ‘erring in the weighing of opinions’ — M.E. ShaK writes that no distinction should be made between monetary and ritual cases contra N.Yos. and Isserles. , Y.D. § 242 on the law of Ordination nowadays .

It is forbidden to appear for trial before heathen Judges and in their Courts of Law, § 14, n. 56. i.e., [ the locality wherein ] permanent judicial sessions are held by the [ civil ] magistrates, even regarding a lawsuit that they [the heathen Judges] adjudicate like the Israelite Law. (Ex. XXI, 1), i.e., before them and not before heathens.’ This applies even to a matter where a person is permitted to take the law into his own hands in order to safeguard his interests. , supra § 4, Gloss — M.E. Even if the two litigants agreed to be tried before them, it is forbidden. to Ex. ibid. And whosoever appears for trial before them is considered a wicked person and is as though he blashphemed, reproached and rebelled against the Law of Moses. XXVI, 7; Tur a.l., and Rashi to Ex. ibid. , also Tanḥ. Mishpatim By forsaking the Israelitish Law he thereby indicates that the Torah is not a Law of Truth. Gloss : The [ Israelite ] Court of Law has the authority to pronounce against him the less severe [ Niddui ] and [ even ] the more severe [ Herem ] ban § 11, n. 9. until he suspends the [ legal ] rights [ which he delegated to ] the heathen [ authorities ] from upon his fellow [- litigant ]. Rt. 154 — G. B.K. 117a regarding the two persons who were in dispute about a certain net. When one of them surrendered it to the public office for confiscation, Abaye ruled that the latter could plead that when he surrendered it it was his own property. But Raba maintained that we must pronounce the ban against him until he brings back the net and appears for trial before the Court. , supra § 4, n. 6. Hence, in the present ruling where one resorts to heathen Courts even Abaye would agree with Raba. For in the case of the net, if it is really his, there is no prohibition involved by giving it to the heathen Court; but where it still has to be ascertained whether the article is his, even Abaye will agree with Raba — Be’er Eliyahu. Likewise, is the ban pronounced against him who strengthens the hand [ s ] of the one who goes to law before a heathen [ Court ]. s. 102 — G. Sheb. 47b: ‘Simeon b. Tarfon states: Whence do we know that there is a prohibition against one who follows up the voluptuous (to procure prostitutes for him)? — For it is said: Thou shalt not commit adultery (Ex. XX, 13): thou shalt not cause adultery to be committed (the Heb. text may be pointed as the Hiph‘il ). Hence, one who strengthens the hands of those who commit severe transgressions is also subject to the ban. Resorting to heathen Courts is a severe transgression. , supra n. 4. And even if he does not go to law before a heathen [ Court ] but compels him [ his adversary ] by means of a heathen [ Court ] , next par. to appear with him for trial [ before ] a Jewish [ Court of Law ] , — he is fit to be laid out on the post [ for a flogging ]. to B.K. IX — G. , infra § 388. One who resorted to heathen Courts and was pronounced guilty by their laws, and then he [ the guilty person ] summoned him [ his fellow-litigant ] again before Israelite Judges, — some say that we do not attend to his [ case ]; Rt. 188 (found in Rt. 196) — G. Cf. Ned. 20a: ‘It was taught: If one made a vow of Neziruth and then transgressed his vow, his case is not attended to, unless he observes his vow for the full period that he had transgressed it … R. Joseph said: Since the Sages have ruled, his case is not to be examined, if a (Jewish) Court of Law attended to it (before the required time), it does not act well. R. Aḥa b. Jacob said: The ban is pronounced against it.’ The same principle operates in the present ruling. Since he transgressed the law by resorting to a heathen lawcourt, we should not attend to his case. while others say that we do attend to his [ case ] to B.K. X — G. unless he was the cause of a loss to his fellow-litigant before the heathen [ Courts ]. — G. So too, if he had already made payment in accordance with the ruling of the heathen Court and were he to be tried by the Jewish Court of Law, he would have to pay more, — the law is that we do not attend to his case — M.E. However, the former opinion seems to me to be fundamental .

One who curses an Israelite, 36a. and even [ if ] he curses himself , — G. Mishna and Gemara ibid .: ‘For it is written, Only take heed to thyself, and keep thy soul (life) diligently (Deut. IV, 9. In Ber. 32a this verse is taken to mean that one should take good care of the body and its needs and not subject himself to dangers whence it is implied that it is forbidden to curse oneself) and … wherever it is said, take heed, lest, or not, it is nothing but a negative precept (Hence, in this verse take heed to thyself also means ‘do not invoke any curse upon thyself’).’ — by the [Divine] Name or by a substitute,.: ‘(If one said to witnesses, I adjure you) by Alef-Daleth (the first two letters of Adonai, the Lord) or by Yod-He (the Tetragrammaton) or by Shaddai (the Almighty) or by Ẓebaoth ([Lord] of Hosts) or by the Merciful and Gracious One, or by Him that is long-suffering and of great kindness, or by any of the substitutes of the Name, they are liable … If a man cursed himself or his fellow by any of them, he transgresses a negative precept.’ Gemara ibid. 36a: ‘R. Jannai said: This is the view of both (i.e., R. Meir and the Sages both agree that one who curses himself or his neighbour not merely by the Name, but even by any of the substitutes, transgresses a negative precept).’ or by one of the names that the heathens call the Holy One, Blessed be He, XXVI, 3 and Tur a.l. — if this took place in the presence of witnesses and [was preceded by] warning, he receives lashes etc. (Deut. XXVIII, 58. The verse continues: That thou mayest fear this glorious and fearful name, the Lord thy God, which intimates that one should not utter the Divine Name in vain and likewise one who curses his neighbour with the Divine Name is included in the same category). And it is written, Then the Lord will make thy plagues wonderful (v. 59). Now I do not know what is the nature of this wonder (peculiarity of punishment). But when it says ( ibid. XXV, 2): That the judge cause him to lie down to be beaten ( והפילו which is similar to the expression והפלא He will make … wonderful ), this indicates that the wonderful (punishment) refers to punishment with lashes … Why not say … since he transgresses two things, first in uttering the Lord’s Name in vain and then in irritating his fellow, consequently, punishment with lashes should not suffice? — You cannot say thus, for it is written, Thou shalt not curse the deaf (Lev. XIX, 14 whether with or without the Divine Name).’ Thus also in Y. Sheb. IV, 10(35d) in accord with R. Jose contra the Colleagues. , however, RaBaD to Yad ibid. who on the basis of Y. ibid. deduces that if one cursed with a substitute he is not punished by lashes. It is only when he curses with the Tetragrammaton, although no act is performed, yet lashes are administered. , Kes. Mish. to Yad ibid. who defends Maim. against RaBaD ’s stricture. on account of [the negative precept] 'Thou shalt not curse the deaf,' includes all persons. The deaf was singled out, although he does not hear and is not subjected to any suffering, so that people should not take advantage of his infirmity. Thus Yad, Sanhedrin XXVI, 1 and Tur a.l. — M.E. Cf. also Sifra to Lev. ibid. and if [the cursed person] was a Judge, he receives additional lashes on account of [the negative precept] 'Thou shalt not curse the Judges.' And [if one cursed by] Arur it is considered a form of curse.

1. Anyone who knows testimony that another has a use for, and is fit to testify, is obligated to testify if he is called to testify in court. This is true whether he is solo or has another witness with him. If he withholds his testimony, he is exempt from judgement by man but is liable by the laws of the heavens. A solo witness should only testify on monetary matters where he may require an oath or for a matter of prohibition where he is causing someone to separate from the prohibition. If the prohibition was already done, however, he should not testify because he is merely gossiping about the individual. A person is prohibited from testifying regarding a matter he does not know, even if it was told to him by a truthful person. Even if one were to tell him to merely stand with another witness, but not actually testify, in order to intimidate the borrower who will think he has two witnesses and get the borrower to confess, the witness may not do so.

1- Once the witnesses have testified in court (and it is past kidei dibur), they cannot retract. How so? If the witness said I erred, I made a mistake and now I remember the matter differently or I said it out of fear, we do not listen to him- even if he provides a rationale to his retraction. Similarly, he cannot add a condition to his testimony. (There are those that say he may add a condition) (Tur in the name of the Rosh). However, in a situation where it is clear that he erred, such as where the court demanded he bring witnesses to testify that he is not a fraudster, he brings them and the court asks him do you know him as a fraudster, and they say yes, and the party responds “you know that I am a fraudster?!” and they say we said you are not a fraudster, we believe their latter statement because it is assumed that a person does not bring witnesses to harm him and they certainly erred. Similarly, in any error that witnesses often make, they themselves are believed and there is no issue of re-testifying. Similarly, if they don’t contradict the substance of their words, such as where there words were vague and can be interpreted in one of two ways- one more probable than the other, we can conform their testimonies in any practical way in the same manner that we explain two witnesses that contradict each other in order that the testimonies conform. RAMA: In a situation where they placed a cherem in the synagogue that anyone who has testimony should testify before he leaves the synagogue, and the witnesses come after they leave the synagogue and say we didn’t recall at the time but now we remember, they may testify since they were originally silent and never said they did not know (Mordechai). Even in a case where they said they don’t know, if they can provide a rationale as to why they said it, they may testify since they did not say the reverse of what they said later (Beis Yosef in the name of the Rambam and the Tur)

Witnesses On Monetary Matters Do Not Require an Interrogation and the Testimony Must Be Complete : Paragraph 1- Witnesses on monetary cases do not require an investigation, with the exception of witnesses on a physical altercation. How so? If the witnesses said this person lent this person money in this year, even if the month, place and type of money- whether it was this coin or that coin- do not conform, the testimony is valid. If it appears to the judge that this is a dishonest case, he must investigate in order to produce a true ruling. RAMA: See earlier Siman 15. With respect to witnesses testifying on a prohibited act, see Even Haezer 17:21 and 42:4 regarding whether an investigation is required. Also see 14:4.

The Laws of Numerous Sets of Witnesses: Paragraph 1- In a situation where two sets of witnesses contradict each other and one witness from each set comes and testifies on another matter, the testimony is not valid because it is certain that one of them is a false witness. If each set comes in its own, we can accept their testimony.

Witnesses Who Witnessed a Confession Must Relate the Words As Is and a Case Where a Party Says He Was Kidding: Paragraph 1- If Reuven says in front of witnesses that he owes Shimon a maneh, the witnesses should not testify simply that Reuven confessed in front of them that he owes Shimon a maneh. Rather, they should say the words exactly as is because it is possible that Reuven can exempt himself by saying he was kidding or that his intention was so as not to make himself look wealthy in the manner that will be explained in Siman 81. The court will be able to evaluate whether or not these claims would work for these words.

Disqualified Testimony Due To Familial Relationship or a Woman or Slave, 18 Seifim: Paragraph 1- Any individual who is disqualified from judging is also disqualified from testifying with the exception of one who likes or hates a litigant who is qualified to testify notwithstanding his disqualification from judging.

Witnesses Disqualified Due to Sin. 35 Seifim: Paragraph 1- A wicked person is disqualified from testifying. Even a valid witnesses that knows his colleague is wicked, but the judges are unaware, is prohibited from testifying with him, even though the testimony is accurate. All the more so in a case where a valid witness has testimony for a party and he knows that his co-witness is a false witness, is he prohibited from testifying with him.

1. The Disqualification of the Blind, Deaf, Foolish and Minors, 14 Seifim: Paragraph 1- A minor is disqualified from testifying, even if he was smart and wise, until he brings two hairs following his 13th birthday. If a long time passed from this 13th birthday before they had a chance to check for hairs and when they checked they found two hairs, he has the status of adult from the time he turned 13. If he had a full beard he does not require checking.

Many Testified and One Was Discovered To Be a Relative or Disqualified, 2 Seifim: Paragraph 1- If there were numerous witnesses and one was discovered to be a relative or otherwise disqualified, the entire testimony is void. When is this true? In a situation where they all intended to testify. If, however, they did not all intend to testify, the testimony can be sustained with the remaining witnesses. How do we investigate the matter? The court would ask them if when they saw the incident they were there with the intention to witness or merely to see the incident. The court would separate anyone who says they came to testify. If a relative or someone otherwise disqualified is found among those that intended to testify, their testimony is void (even if they were not aware of each other). If all of the witnesses were valid- both those that intended to testify and those that did not but happened to see- and their testimony conforms, we would rule based on their testimony. RAMA: They are not, however, able to write a document regarding the incident even if they witnessed a kinyan and the presumption of a kinyan is that it should be writing, because the party did not call them for that purpose. (Teshuvos HaRashba) (and see above Siman 39, Seif 5) There are those that say that even if they intended to see in order to witnesses they would not be disqualified unless they came to court and actually testified because two elements are required: intention to see for the sake of testifying and actually coming to court and testifying. RAMA: If a document contains the signature of a disqualified witness, thereby voiding the entire testimony, the valid witnesses may still testify by themselves in front of the court if they are reminded of the testimony by viewing the document. The court would then document their testimony and it would be considered a formal document (Rosh). A public regulation that has the signature of a disqualified witness or a document that contains the signature of a party, is still valid with other witnesses because these individuals did not have the intention of testifying. (Rivash) (See later 45:12-13). If the plaintiff called valid witnesses and relatives or those otherwise disqualified were standing there, the testimony of the valid witnesses would not be disqualified even if the disqualified witnesses had the intention to testify and actually testified. Similarly, when a party is in need of testimony and puts a cherem on those that know testimony to come and testify and both valid and disqualified witnesses testify, the testimony of the valid witnesses would not be void because the party’s intention was only for those that are capable of testifying.