Edut - Chapter 3

The process of derishah and chakirah mentioned in the previous chapter.

Hence the obligation for questioning and interrogation that applies with regard to cases involving capital punishment (Chapter 1, Halachah 4) also applies with regard to cases involving monetary law.

I.e., prospective lenders will fear that the witnesses to the loan will not be able to respond correctly to questioning and their testimony will be nullified. Hence the loan will be nullified and they will lose their money. Out of concern for such a possibility, the lenders may withhold granting loans. To avoid such a situation from arising, our Sages lifted the requirement for a full process of questioning and interrogation.

100 zuz.

Witnesses testify that so-and-so admitted a debt in their presence.

Witnesses testify that a loan or a present was given or a sale was made in their presence. The Talmud states this concept with regard to admissions of liability and loans. Our Rabbis extended it to presents and sales, because they are matters that continually arise and are necessary for the maintenance of ordinary commercial activity, for if they are not dealt with, the plaintiff will suffer financial loss.

E. g., inheritances (Sefer Me’irat Einayim 30:1).

Financial penalties in which the defendant is obligated to pay more or less than the damages involved, e.g., cases involving personal injury. See Hilchot Sanhedrin 5:8; Hilchot Nizkei Mammon 2:8.

Since these matters are uncommon and some do not involve financial loss, our Sages left the situation as prescribed by Scriptural Law and required the full process of questioning and interrogation (Sanhedrin 32b).

The punishments given for the violation of negative commandments and accidental murders. Since the failure to administer these punishments will not interrupt the normal commercial activity of society, our Sages did not alter the prescriptions of Scriptural Law. As stated in Hilchot Sanhedrin 11:4, all the requirements for cases involving capital punishment apply in these instances as well.

I.e., he suspects that the claim is contrived, but does not have definite indications of such. Were he to feel definitively that the case was contrived, he would have to withdraw from the case as stated in Hilchot Sanhedrin 24:3 (Kessef Mishneh).

Since these are essential matters on which the testimony is based and which are required by Scriptural Law, if there is a discrepancy in the testimony of the witnesses, the testimony is nullified. Although are Sages were lenient and did not require the full process of interrogation, if a discrepancy arises, it is considered significant and the testimony disqualified (Radbaz).

Since these are secondary matters, the testimony is allowed to stand. The Radbaz raises a question, noting that as the Rambam rules in Chapter 2, Halachah 3, if there is a discrepancy in the testimony of the witnesses, their testimony is nullified even if the discrepancy involves the bedikot. As explained, the rationale is that it is necessary for testimony to be “precise,” and when there is even a slight discrepancy, that requirement is not met. The Radbaz resolves this difficulty by explaining that the requirement for precise testimony applies only with regard to cases involving capital punishment (the subject of the prooftext cited in the previous chapter) and not ordinary business matters.

Based on the ruling of the Sefer Afe’irat Einayim 30:6, it appears that the Rambam’s decision applies not only when the plaintiff claims that only one loan was given, but even when he claims to have lent him money in both Nisan and Iyar.

The Sefer Me’irat Einayim 30:9 and Rabbi Akiva Eiger note that the testimony of the witnesses is disregarded entirely. We do not even consider it as equivalent to the testimony of one witness, in which instance the defendant is required to take an oath to free himself of obligation.

I.e., the silver was so old that it became tarnished and black.

I.e., the silver was new and had not changed color.
The Tur and the Ramah (Choshen Mishpat 30:2) state that this law applies only when the plaintiff demands payment for both these loans. If, however, he demands payment for only one, the claim is not accepted, for his own statements contradict the testimony of the other witness. The Sefer Me’irat Einayim 30:11 explains that there is a difference of opinion between the Rishonim whether this perspective should be followed or not. These principles also apply with regard to the other instances mentioned in this halachah.

The Kessef Mishneh explains that we are referring to a situation where an observer could see both storeys at the same time. If that is not the case, the testimony is nullified, because it is considered a discrepancy involving the place where the loan was given and that is significant.

Thus included in the testimony that the defendant owed 200 was the fact that he owed 100 (a maneh). The fact that there is a discrepancy between the two testimonies is not significant.

The Ramah (loc. cit.) concludes his discussion of this halachah with the statement: “Whenever we can resolve the statements of the witnesses so that they will not be in contradiction to each other, we do.”

Al pi, translated as “on the basis of,” literally means “on the mouths of,” implying that the testimony must be delivered orally by the witnesses.

The Sefer Me’irat Einayim 28:43 emphasizes that the legal document must be composed according to all the rules governing such archives; a personal note is not sufficient.

I.e., a person might refuse to give a loan out of fear that the witnesses will die or be unavailable and he will have no way of compelling the debtor to acknowledge the debt. If, however, the testimony of witnesses recorded on a legal document is deemed acceptable, that document could serve as proof and there would be no need for hesitation.
This concept applies not only to loans, but to sales, presents, and acknowledgments of responsibility as mentioned in Halachah 2. In all these and similar instances, our Sages enacted the acceptance of legal documents as testimony so that ordinary commercial activity could continue unhampered.

For ordinary commercial activity will continue even if these cases are not adjudicated.

According to Rashi (in his commentary to the above verse), if the witnesses do not testify orally, their testimony is nullified according to Scriptural Law. Tosafot, Yevamot 31b, however, rules that as long as witnesses are capable of testifying orally, their testimony is acceptable even if it is recorded in a legal document and sent to the court. Similarly, in his Kessef Mishneh, Rav Yosef Karo cites the opinions of Rabbenu Yitzchak Alfasi and the Rashbatz who admit such testimony. In support of this approach, they cite Jeremiah 32:44: “Purchase fields with silver, record [the sale] in a scroll, seal it, and have the witnesses testify,” which appears to indicate that written testimony is acceptable.
Rav Yosef Karo explains that since the verse is based on the words of the prophets, it is not able to serve as a proof of the Scriptural Law. Nevertheless, he cites a Talmudic passage (Ketubot 21a) which appears to indicate that according to Scriptural Law, testimony recorded in a legal document is acceptable. [Similar concepts are stated by the Ramban in his Hasagot to (Sefer HaMitzvot (mitzvah 178).]
Despite the above, in his Shulchan Aruch (Choshen Mishpat 28:11), Rav Karo quotes the Rambam’s ruling. The Siftei Cofzen 28:14, however, protests this decision, explaining at length that written testimony is acceptable according to Scriptural Law. Similarly, the Sefer Me’irat Einayim 28:42 states that there are sages who allow Torah scholars to convey their testimony in writing rather than appear in person in court.

I.e., the judges asked them the basic questions that determine the accuracy of their testimony.

If, however, a witness makes certain statements outside the court, he can change his mind and testify differently in court. When he provides a feasible explanation, the statements made outside the court are of no consequence whatsoever (Kessef Mishneh).

Ketubot 18b derives this concept from Leviticus 5:1, the source for the mitzvah to testify. That verse states: “If he does not testify, he will bear his sin.” Since the verse mentions testifying only once, the implication is that once he testifies, he cannot retract.
The Radbaz explains that if the intent of the witnesses’ original statements are not clear and they make additional statements that elucidate them, they are not considered to have retracted their statements.
The Sefer Me’irat Einayim 29:2 states that if a witnesses corrects himself in the midst of - or directly after the conclusion of - his testimony or even directly after the testimony of the other witness, the change in testimony is allowed to stand.

The Lechem Mishneh and the Shulchan Aruch (Choshen Mishpat 29:1) state that if it was apparent that a witness erred when testifying, he can correct his error.

I.e., I gave false testimony out of fear that the defendant would harm me.

The Kessef Mishneh explains that one might think that the witnesses’ retraction would not be accepted in situations where their second testimony would cause them to be considered as wicked, e.g., they state that we lied because of fear. In which case the rationale would be that a person’s own testimony can never be used to incriminate him.
The Kessef Mishneh states that this is not the case. Even when the witnesses’ second testimony does not incriminate them, it is not acceptable if it involves a retraction of the first testimony.

If the witnesses were to state that the contract was made conditional to the fulfillment of a stipulation, they would be in effect retracting their initial testimony, for were the stipulation not to be fulfilled, the contract would not be binding.
The Tur and the Ramah differ with this ruling and maintain that witnesses may amend their testimony and state that a condition was involved. The Siftei Cohen 29:2 elaborates in support of the Rambam’s position.

I.e., we assume that they sigried the legal document with the same seriousness with which they approach testifying in court.

See Chapter 6 which explains in detail the processes of validating the authenticity of a legal document.

This ruling applies even if the other witnesses appeared after the witnesses made the statements that raised questions concerning the validity of the legal document. See Chapter 8, Halachah 4.

This and the clause that follows are dependent on two halachic principles: a) miggo, and b) that we do not apply the principle of miggo in a situation where witnesses are present.
To explain: Miggo means that a person’s statements are accepted, because we say that had he desired to lie, he would have told a more effective lie. For example, with regard to the second clause of this halachah, had the witnesses desired to lie, instead of offering the arguments which they did offer, they could have claimed that the signatures are forgeries. Nobody could have disproved their statements, for no one else was familiar with their signatures. Since their word would have been accepted with regard to that statement, it is also accepted with regard to the other claims.
When does this concept apply? When there are no other witnesses involved. When, as in the present clause, there are other witnesses involved and they corroborate the original statement of the witnesses, we do not say: “Had they desired to lie....” For they do not have the option of lying. Even if they would desire to lie, their statements would be contradicted by the other witnesses. Hence, their word is not accepted with regard to other claims.

I.e., “we were compelled to sign because of danger to our lives, but the transaction never took place.” If they said that they were compelled to sign because of financial loss, their word is not accepted. The rationale is that it is forbidden to sign a legal document under such circumstances. Thus by making such an admission, they are acknowledging committing a transgression. In such an instance, their word is not accepted as stated in the following halachah.

And a minor’s testimony is unacceptable.

And a relative’s testimony is unacceptable. This could be speaking about a situation where the relationship came about through marriage. Hence it is possible that at the time the document was composed a family connection existed, but afterwards, because of divorce, it was broken (Sefer Me’irat Einayim 46:100).

And thus unknowingly made our statements in error.

I.e., we committed a transgression punishable by lashes. Hence we are disqualified as witnesses. See Chapter 10.

And we testified falsely. Alternatively, even if they say that they testified truly, but were paid for testifying, their statements are not accepted and the legal document is valid. For the testimony of a person who takes payment for testifying must be disqualified. Thus even in such a situation, their testimony would disqualify them as witnesses (Merkevat HaMishneh).
In his Commentary to the Mishnah [Ketubot 2:3; see also Shulchan Aruch (Choshen Mishpat 46:37)), the Rambam states this ruling applies if they were threatened with financial loss and saved their property by delivering false testimony.

The rationale is that for his testimony to be accepted, the person would have to testify against himself. This is unacceptable, because he is an involved party and thus unacceptable as a witness, as stated in Chapter 12, Halachah 2.

I.e., the witnesses say that the lender promised to give the loan and on the basis of his promise, they signed the promissory note even though they did not witness the loan actually being given. This is considered as giving false testimony, for they state that the loan was given when in fact it was not. See Ketubot 19a, Hilchot Malveh ViLoveh 14:5.

The Radbaz emphasizes that the Rambam’s choice of wording is exact. It is only “as if” the witnesses gave false testimony. Although they should not have signed the legal document, they are not considered as having committed perjury, nor are they disqualified as witnesses in the future.

The Shulchan Aruch (Choshen Mishpat 46:37) states that in both the clauses mentioned in this halachah, the legal document is allowed to stand and a judgment is rendered on its basis. This applies even if the witnesses repented for giving improper testimony. Nevertheless, since the witnesses admitted that they gave improper testimony, they are required to reimburse the litigant who suffered the loss.

As the Rambam states in Hilchot Mechirah, Chapter 10, when a person compels a person to sell property, the seller can nullify the sale by issuing a protest in which he states that he sold the property under duress. According to the Rambam, even if the witnesses know of that protest beforehand, it was still legitimate for them to have signed the deed of sale. Hence even if the validation of their signatures is not dependent on their word, their statements are accepted.

Thus if the condition is not fulfilled, the document will be nullified. Thus in effect, their testimony is nullifying the legal power of the document. Since the condition is not stated in the document, we assume that such a stipulation was not made and we accept their testimony only in the specific instance the Rambam mentions.
This reflects the opinion of the Rambam and his teacher’s master, Rabbenu Yitzchak Alfasi. The Ra’avad takes issue with the matter, noting that other authorities ruled that the statements of the witnesses are accepted in all instances, even when the authenticity of the document could be verified without their testimony. The Radbaz notes that Ketubot 19b appears to support the Ra’avad’s approach although it could be interpreted in a manner that fits the Rambam’s interpretation. The Shulchan Aruch (Choshen Mishpat 46:37) quotes the Rambam’s view. (In Choshen Mishpat 82:12, however, the Shulchan Aruch quotes the view of the Ra’avad. See the Siftei Cohen 82:34 who discusses the matter.)

Following the rationale explained in Halachah 6.

I.e., this is speaking about a situation where the authenticity of the document could be verified without the testimony of the witnesses. Therefore it is considered as if there are two witnesses who testify to the veracity of the legal document and one who states that a condition was involved. The statement of that witness is not of consequence (Radbaz).
The Kessef Mishneh, however, states that this is speaking about a situation where there are no other witnesses to verify the signatures of the witnesses. Hence, everything depends on the testimony of those witnesses. Since one of them does not testify that the legal document is valid - for he claims there is a condition involved - the document cannot be substantiated.
Thus there is one witness who claims that the transaction was ordinary and did not involve a condition (thus he supports the plaintiff's claim) and one who claims that it did. Since there is one witness in support of the plaintiff's claim, the defendant is required to take an oath to deny it. We do not free the defendant from that responsibility because of the testimony of the witness who claims that a condition was involved.
Although the Shulchan Aruch (Choshen Mishpat 46:37) quotes the Rambam’s words when discussing these laws, both the Sefer Me’irat Einayim 46:101 and the Siftei Cohen 46:109 explain that he relies on his ruling (Choshen Mishpat 82:12) in which he states that if one witness states that there was a condition and the other says there was not, the defendant is required to take only a sh’vuat hesset.

I.e., the principle to be stated applies not only in cases involving capital punishment, but also with regard to those involving monetary law. Although there are differences With regard to other matters, with regard to this point, there is an equation between the two.

With regard to an ox suspected of killing a person, Exodus 21:29 states: “And testimony must be brought against its owner,” i.e., in his presence. From that instance, we extrapolate to others (Bava Kama 112b). In an ordinary situation, if testimony is received in the absence of the opposing litigant, it is unacceptable [Kessef Mishneh; Shulchan Aruch (Choshen Mishpat 28:15)).

Testimony is received so that the case can be tried in the plaintiff’s lifetime. In this way, he will be able to hear the testimony of the witnesses and point out certain factors. The Shulchan Aruch (Choshen Mishpat 28:16) states this leniency also applies when the witnesses are deathly ill. If the defendant is deathly ill, by contrast, we do not take this leniency. Even though this may require the suit to be pressed against the defendant’s heirs (and thus there will be certain difficulties for the plaintiff), we do not allow the witnesses to testify in the defendant’s absence.

I.e., first the defendant must be summoned. There is no concept of having testimony offered without him having the opportunity to be there and hear it firsthand.

The Radbaz states that if a summons was given him and he did not appear, the witnesses may testify in his absence even if they are not planning to travel overseas.

That ordinarily testimony must be given in the litigant’s presence.

I.e., in all instances, even if the defendant is not sick or does not refuse to come to court. For as stated in Halachah 6, when witnesses sign on a legal document, it is as if their testimony was delivered in court. Hence their testimony is a closed issue. It makes no difference whether the defendant was present or not.

Witnesses who support his claim.

In Hilchot Malveh ViLoveh 22:2, the Rambam writes:
[The following rules apply when the borrower] claims: “The promissory note concerning which [the signatures of the witnesses] was validated is a forgery. I will bring proof and nullify [the matter]. The witnesses are located in this and this place and their names are so and so and so and so.” If it appears to the judges that there is substance to his words, a time is established in which he must bring his witnesses [to court]. If it appears to them that he is merely raising deceptive arguments and fallacious claims, they should tell him: “Pay.” Afterwards, if he brings proof of his claim, [the money] should be returned to him.

The Kessef Mishneh explains that the Rambam’s wording is precise. For this ruling to be followed the court must know that the defendant is strong and stubborn and the plaintiff must claim that the witnesses are afraid. The Tur and the Ramah (Choshen Mishpat 28:5) are more stringent and require the plaintiff to prove his claim that the witnesses are afraid.

Although we suspect that the witnesses will refrain from testifying out of dread, we do not suspect that they will lie on behalf of the defendant (Bava Metzia 39b).
In his commentary to that passage, Rashi states that unless the witnesses testify in support of the defendant, the plaintiffs claim is vindicated. Tosafot (Ketubot 27b) differs and maintains that unless the witnesses support the plaintiffs claim, the defendant is released from obligation.

The Kessef Mishneh states that although this ruling is somewhat discriminatory, for it puts the strong and stubborn people at a disadvantage, it is desirable that they feel this compulsion, so that they repent and give up their undesirable paths of conduct.