THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean One of the parties to the litigation does not know who has evidence that he requires or who may act as a witness on his behalf. Such party may apply to Beth Din to proclaim a general ban on all those who have evidence or testimony to aid his claim or his defense. The general ban also applies to the other litigant and also relatives or other persons who might be ineligible to testify. The ban is only to obtain evidence. Even the other party and relatives or others who are ineligible to testify may produce evidence to the party seeking it. Of, course the Beth Din will have to decide upon the admissibility of the evidence. The Beth Din proclaims a ban in accordance with the provisions of Shulhan Aruch Hoshen haMishpat chapter 71. It is assumed that a person will not want to risk being placed under the ban by not coming forward with evidence or testimony. There is rule of law that if a person knows testimony on behalf of a party and refuses to come forward to testify, then although he has no monetary liability to the party, he has liability to Heaven, and that obligation can only be removed if he makes financial restitution to the party on whose behalf he did not testify.
The ban in this case is in the nature of a broad-based subpoena to all who know of testimony or evidence to come forward.
The bans were usually proclaimed in the synagogue, or in any other place of general assembly on Mondays and Thursdays. A ban may not be used to discover evidence in a criminal proceeding nor even in a civil suit if it will turn up criminal evidence.
Either party may demand of the other party or of a third party a specific document which he thinks may contain something to help his case.
If either party states in his pleadings that he will introduce a document in evidence and the other party alleges that it is a forgery, then the latter may obtain a copy prior to the trial. If the other party does not allege that the document is a forgery but alleges that there are defenses against the document, there are those who say that the other party may not obtain a copy prior to the trial. The theory of those who would deny turning over a copy of the document to the other side is that given time, the other party may devise some scheme to offset the document. I prefer the view that holds that the other party may obtain a copy of the document prior to trial.
If the party knows the name of a witness who refuses to come to Beth Din to testify, the party may give the name to the Beth Din and they will send the Beth Din officer to serve the witness with an order to testify. Should he witness fail to appear, he will be placed under a ban.
A litigant who does not know whether there are any witnesses to his claim may apply to the Beth Din to proclaim a general ban that all those who have information regarding his case should come forward to testify. The litigant cannot adjure persons to come forward to swear that they have no knowledge on which to testify.
Ordinarily a ban is issued by the Beth Din when it declares that so and so is under a ban and shall be ostracized. The person under a ban may not cut his hair or wash his clothes. He is similar to a mourner during his period of being under a ban. He is not included in a minyan or in a zimmum. Others should not come within four amot (about 7 feet) of him. If he dies while under the ban, Beth Din sends a messenger who places a stone on his coffin. No eulogies are recited for him nor is his coffin accompanied by the people of the community. [Rambam in Laws of Talmud Torah chapter 6, law 14 lists 24 reasons why a person may be put under a ban. They include the following dealing with Beth Din proceedings. (1) a person who embarrasses the agent of the Beth Din (when being served with a summons). (2) a person who was ordered by Beth Din to appear before them at a specific date and time and did not appear. (3) a person who does not comply with the orders of the Beth Din and their decisions.
An interesting question arises. The person under the ban described in this lesson is the only one who knows that he is under the ban. No one else knows that the transgressor has evidence or information regarding the litigant's case. What does the ban or curse achieve if no one else knows that the person is under a ban? Furthermore, one who has facts that he refuses to testify about in Beth Din owes a judgment to Heaven for failing to testify. The ban and the accompanying curse whether issued by the judge of the Beth Din or by the litigant can be effective only if Heaven joins in the curse. But Heaven is already playing a role if the witness is liable to its judgment. What does the extra curse achieve? Both questions, what does the ban achieve and why the need for the extra ban have one answer. The ban places psychological pressure on the witness to come forward. A person may pay little heed to a person who curses him, but when the curse is in furtherance of the authority of the Sages, then it may have more effect on the reluctant witness. The litigant who curses him does so knowing that the Sages instituted the curse. The person who is being cursed also feels additional pressure to comply with the ban. I discussed the question with the gaon Rav Adin Steinsaltz and he agreed with me that the psychological pressure is important. He provided the following insightful example. During the twelfth century there was a Sage called Rabbi Yehudah he-Hasid. His students attributed many ethical and mystical teachings to him. Upon his death, many of these teachings were published under the title Zavva'at Rebbi Yehudah he-Hasid. (The Will of Rabbi Yehudah the Pious). Many halachik works contain some of these non-halachik teachings as part of the halachah. Rav Steinsaltz stated that if the will of Rabbi Yehudah he-Hasid had contained the admonition against stealing, it might be taken more seriously than the admonition against stealing contained in the Torah. The ban known, although known only to the witness himself, might prove effective in compelling him to come forward.
The subject matter of this lesson is more fully discussed in Vol. 1, Ch. 15, of A Restatement of Rabbinic Civil Law by E. Quint - on sale at local bookstores.
Address comments to quint@inter.net.il
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