Translation:Shulchan Aruch/Choshen Mishpat/36
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. 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. 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. 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. 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. 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.
Paragraph 2- If a relative testified with a non-relative and the non-relative is unaware that the other witness is related, there are those that say that the testimony of the non-relative is valid and would require the party to take an oath. The witness is believed to say he is unaware of this fellow witness’ relationship so long as he is not often together with him. If, however, the non-relative is often together with the relative, he is not believed. There are those that disagree with this and say that the testimony of the non-relative is void, even if he was unaware of the relationship of the other witness since the disqualified witness testified with him in court.