Translation:Shulchan Aruch/Choshen Mishpat/7

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Shulchan Aruch
by Yosef Karo, translated from Hebrew by Wikisource

Choshen Mishpat 7: Those who are eligible for judgeship and those who are not, whether in general or for specific cases appearing before the court

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610808Shulchan Aruch — Choshen Mishpat 7: Those who are eligible for judgeship and those who are not, whether in general or for specific cases appearing before the courtWikisourceYosef Karo

Chapter 7 - This chapter contains twelve sections: 7:1 | 7:2 | 7:3 | 7:4 | 7:5 | 7:6 | 7:7 | 7:8 | 7:9 | 7:10 | 7:11 | 7:12

7:1

If one of the members of a court of three is a convert they are invalid to judge people who were born Jewish unless his mother (or father) is Jewish (Mordechai in the name of Tosfos, chapter 2, Mishna 8 [IS THIS SOURCE CORRECT?]). A convert can judge another convert even though his mother is not Jewish (See Yoreh Deah, chapter 269).

7:2

A mamzer, or even if all the judges are mamzerim - they are permitted to judge any case. If all of the judges are blind in one eye they are also permitted to judge (ur5). Howver, one blind in both eyes is disqualified.(BY9)

Selected Commentaries: The Birkei Yosef
7:2 Commentaries [edit] Birkei Yosef (BY9): A judge who has weak eyesight but can see is permitted, as I have determined in siman 5, note 11, where I have discussed issues such as these at length. Also see the responsa Kenneses Yechezkel, responsa 80 for more on this issue.

7:3

The primary opinion rules that it is not appropriate for one to be a judge until he is 18 years old and has shown signs of puberty (defined as ‘two hairs’). A dissenting opinion rules that he is permitted to judge from 13 years and above, even without signs of puberty (SM9) (ur8) (TM4).

Selected Commentaries: The Sefer Mi’eros Anayim and the Urim v’Tumim

7:3 Commentaries

S"MA (9):

Even though witnesses must be a) 13 years old and b) show signs of puberty, the second condition is not required of a judge. This is because while the verse states "two MEN" by witnesses, there is no such specification by a judge, which only requires mental acuity and broad knowledge of the law. That's why the Tur writes in section 11 that if the 13-year-old is expert in the analysis of the law he can judge even if he has not shown signs of physical maturity, unlike one younger than 13, who certainly has the status of a child in all areas of the Torah and cannot be a judge. Furthermore, do not ask what this latter opinion will say to the axiom that one who cannot judge cannot be a witness and one who cannot be a witness cannot judge, as that only means that the two categories share the same criteria in concept, but each one applies the criteria according to its particular requirements.

Urim (ur8):

Even if he does not show signs of physical maturity, for to be a witness requires technical adulthood, in contrast to judgeship, which requires analytical ability and broad knowledge of the law. However, one less than 13 does not have the status an adult at all, and the commandment to be a judge cannot apply to him. Attend to the Tumim commentary, where I point out that a 13 year old who is expert in the law can judge cases involving movables by himself, while a case regarding real property would require him to partner with two other adult judges.

Tumim (TM4):

The S"ma wonders how there can be a rule that 'all who can be a judge can act as a witness' in light of the case here of a 13 year old without physical signs of maturity who can act as judge but is invalid to act as a witness (as is stated in chapter 34). He answers that they 'share the same category' of rules though each applies them in its particular way. The forced nature of this answer is obvious.

Let's take a look at the Tosfos entitled "All..." in Gemara Niddah, who asks the same question from the point of view of the opinion that allows women to act as judges, though they cannot act as witnesses. Tosfos answers that the dictum equating witnesses with judges is read "the categories of people who are valid witnesses can all act as judge". However, this does not mean there are no other categories who can act as judge. The reverse dictum ("all who can judge can be witnesses") we would then read "All adults who act as judges are part of the category of people who can be witnesses," unlike children. If I was not afraid I would dispute the Tur, who writes that a 13 year old with no physical signs of maturity who is expert in the law can judge alone. The Yirushalmi that seems to state this rule cannot possibly be taken literally, as the child a) does not have a mature mindset (as is asked in Gemara Gittin by a mentally incompetent person writing a bill of divorce), and b) if he ruled incorrectly, can he be compelled to repay the loss he caused, as is the law? Even if he damages someone outright he is not personally responsible under the law! Even King Solomon felt that he did not have the wherewithal to judge and so requested wisdom from G-d. Should then a child act as judge?

Rather then, when the Yirushalmi states that a child can judge it means together with two adults. Only on a Biblical level can one judge by himself (as the Rambam states), however the Rabbis instituted the 'rule of 3' thereupon. In the case under consideration the child would partner with the other two if he was sufficiently knowledgeable. There is a similar case in the Yirushalmi regarding the blessing after meals, where a child can join with two adult to form a 'zimum' (a group blessing). In addition, it’s more than likely that the Yirushalmi is referring to a 13 year-old whose physical maturity status is unknown, not one who is certainly known to be a minor. Now if he were to judge alone that would present a problem, since we do not rely on a presumption of validity when a Biblical law is at stake. However, since a 3-judge group is Rabbinical, and he is with the adults, the Rabbis rely on the presumption of physical maturity. The only other reasonable answer is to say that he is certainly known to have physical signs of maturity and he has partnered with two other judges, though his permissibility in this case would be obvious. Either way, it is difficult to understand that a minor could judge by himself.

This 'partnering' concept could also function as another answer to the question above regarding the general dictum equating judging with being a witness, as it is similarly found that a minor can testify to what he has seen if an adult testifies with him (this case is explained in chapter 24). The truth is, all this above is according to Rabbi Meir, the dissenting opinion, who proposes that the Torah law allows a single judge, later modified by the Rabbis to the rule of three. The majority opinion, however, rules that 3 judges are required by the Torah, and according to them a minor could not judge with two adults either.

Now though I know my opinion is not worth one thousandth of the Tur's, I still do have a question on his position. If it is true that a minor cannot be prosecuted in court, as is explained in chapter 96, why isn't the legal concept of 'fix thyself first and then fix others' applied here to invalidate his judgeship? This concept is seen in Gemara Sanhedrin and is used to require that one who can judge be able to be judged himself. Now I have already written at the end of section 3 that Tosfos states that the concept of 'fix thyself...' does not apply when one is partnered with 2 other judges; however according to the Tur's opinion this technical minor is judging by himself, so the question still stands. To answer this one would need to say that the Tur is referring to judging cases regarding moveable property only, and as we learn in chapter 96, section 3, a claim can be made against a child in the area of buying and selling objects [his ability to buy and sell being an enactment of the Rabbis for his good] and so he can likewise act as a judge if able in only these matters. It is clear, therefore, that a legal minor cannot act as judge in a case of real property, as he cannot be judged himself since his purchase and sale is not recognized by law. Here the concept of 'fix thyself...' applies. This can serve as yet another answer to the S"ma's question, as the judge - witness equivalence might only be referring to the subject of a lone expert judge, where a 13 year old legal minor might be able to judge cases involving movables. Either way, one thing is certain; a 13 year old legal minor cannot judge a case involving real property.

7:4

A woman is invalid to serve as a judge.

7:5

There is an opinion that states that one who has drunk wine can judge monetary cases.

A witness cannot be a judge. This refers specifically to a witness that will testify in the case. For example, if one of the three judges testifies on an act he saw in the case before him he can no longer serve as judge on the case. If, however, they do not function as witnesses, as for example when three judges see the act in question, even intending to function as witnesses - if they saw the act in the daytime they can prosecute the case directly as judges who saw the incident, as is their right. If they saw the act at night, they cannot function as judges who saw the act and must rely on other witnesses' testimony.

If they are requested to testify, even when there are addtional witnesses that will testify, they cannot serve as judges. There is a dissenting opinion that states that they may serve as judges in this situation. (This is all regarding cases involving Biblical laws. If the law at stake in Rabbinic, a witness can serve as judge.) (Tosfos, chapter 2 of Gemara Kesuvos and Nimukei Yosef there [REST OF SOURCE?])

7:6

A scholar who is called to court in front of a judge of lesser status than himself is not forced to appear, rather the scholars in the city gather and look into the matter.

7:7

It is forbidden for one to act as a judge in a case involving one he loves, even if he is not one that would be close enough to be part of his wedding party or a friend he loves as his own soul. Nor can he judge one whom he hates, even though he is not a actual enemy whose downfall he seeks. Rather the two litigants should be equal in the eyes and hearts of the judges. When he does not recognize them personally or know of their behavior there is no more righteous judge than he. (Rema: If they judged these cases nevertheless the rulings stand (Hagaos Ashrei, beginning of Gemara Sanhedrin). There is an opinion that rules that in the case of an actual enemey - one he would not speak to for three days due to his hatred - or a friend who would be in his wedding party and is very close, any ruling is void (Tur). Conversely, there is an opinion that rules that if he is not a true enemy or friend it is acceptable to judge the case, and only as a matter of pious behavior should one demur. Therefore, it is permitted to be judge with a personal relationship to the litigants when each chooses his judge (See later the beginning of Chapter 13), since each will chose one he is close to. Certainly a Rabbi can judge a case involving his student (Maharik, Shoresh 16), and even a court whose members are invalid due to their love or hate may appoint another group of uninvolved judges in their place (Rulings of the Mahari, Siman 258 and Maharik, Shoresh 21).

One litigant who claims that the judge loves or hates his counter-litigant is not believed, and he needs to show proof of his charge (Tur). One who is excommunicated because he shamed his friend is able to judge after the ban expires, as he does not really hate him. (See later Chapter 33, Section 6).

7:8

Two scholar who are enemies cannot sit on the same court, as their intent will be to contradict each others' words.

7:9

All those who are invalid (to testify as a witness) because of familial relation or the commission of sins are likewise invalid to serve as judge. (See later chapters 33 and 34, where the laws of those invalid to testify are specified. The same laws would apply to judgeship, including the prohibition of having judges realted to each other or the witnesses) (Ran, 2nd Chpater of Gemara Kesuvos and Responsa of the Rashba, Siman 790)(See later chapter 33, section 17)

7:10

A judge who knows his fellow to be a robber or immoral cannot join with him to judge a case.

7:11

A court of three requires each of its judges to possess these seven qualities: Wisdom, humility, fear of G-d, hatred of pursuing financial gain, love of truth, be loved by the community and be the possessor of a good reputation. (See later, chapter 8, section 1)

7:12

In any situation where the outcome of case may benefit one of the judges he must be removed from the case. Therefore, if a city's Torah scroll was stolen the case may not be tried by the judges in the city, unless they have another Torah scroll to use. Similarly, if one says "give a maneh [monetary contribution] to the poor of my city" the case cannot be heard by the judges in that city. (See previously in chapter 4 regarding if one of the interested parties can take the law into his own hands [CORRECT?]. Also see chapter 37, section 19 and 20 for more on this topic.)

Therefore, communal tax levies cannot be judged by judges from the same city because they or their relatives have a share in the responsibility of its payment. (Unless it is a specific tax that part of the congregation can withdraw themselves from, where neither they nor the judges would derive benefit from the outcome of the case. (Responsa of the Rosh, Rule 6, Siman 18 states that removal does not help, although in Rule 99 he states that it does, and the difference is caused by the type of tax under discussion in each case.)

If a decree is enacted or a custom has held whereby the city's judges do judge their internal issues, they may even judge on tax issues. (See later, at the end of chapter 37, section 22 on this ruling.)