THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean Who may be witnesses (part 1)
This is the third lesson dealing directly with the trial of the complaint of the plaintiff against the defendant. There was previously discussed how the witnesses testify. Rabbi Yosef Karo in Shulhan Aruch Hoshen haMishpat has several chapters devoted as to who are eligible witnesses.
He first discusses those who are ineligible on account of kinship. In Volume I of A Restatement of Rabbinic Civil Law at page 235, I list 35 different persons who are ineligible because they are related in degrees that prohibits them from testifying. The witnesses are ineligible if they are related to each other or to one or both of the litigants or to at least one of the judges. It is required that the witness be eligible both at the time of the transaction and the time the testimony is given. If he was ineligible at the time of the transaction because of his status as a related party, but he is eligible at the time of the trial because he is no longer related, he may still not testify.
A system of law may prohibit a person from testifying if he is guilty of a crime against society. In halachah, the transgression is against the system of law, that encompasses all types of transgressions. It certainly includes transgression that are indicative of a lack of trustworthiness, such as having testified falsely at prior trials or having forged documents and financial instruments. The halachah also includes transgressions against other laws of the Torah and are not the types of laws that man creates to protect society. The punishments for transgressions differ depending upon the transgression.
The halachah prohibits a wicked person from testifying. It also prohibits the other witness from testifying with the wicked person. A wicked person is one who transgresses a law of the Torah for which the penalty is death at the decision of the Lesser Sanhedrin or flogging at the decision of the Beth Din. See Torah Tidbits #384 and #385 for classes of people subject to the death penalty. Thus if the person killed someone inadvertently, he is not ineligible. The fact that at the present time there is no death sentence because there is no Great Sanhedrin sitting in the "Chamber of Hewn Stone" and no Lesser Sanhedrin in existence is of no significance to these laws. If the transgression is one for which the Lesser Sanhedrin would have been able to mete out the death penalty then the transgressor is ineligible to testify. Similarly if the transgression is one which the Beth Din could have decreed flogging, the person is ineligible to testify. It does not matter if he transgressed out of spite or for personal gratification.
Any transgression that renders a person wicked makes him ineligible to testify although he is seemingly credible in other ways.
A few examples as set forth in the codes follow that render a person ineligible.
If someone swore falsely at a previous trial or even if he took a false oath outside of Beth Din. (The question of what constitutes an oath is taken up by me on page 242 of Volume I of A Restatement of Rabbinic Civil Law.)
A butcher or slaughterer (or any storekeeper) who sells nonkosher meat as kosher. I would like to add to this list, butchers who sell kosher meat at higher-than-warranted prices so that poor persons and others who are not strictly kosher are induced to eat nonkosher meat. I have seen several such cases, especially among new immigrants here and in America.
A thief and robber are ineligible from the time of the theft or robbery. One who falsely denies a bailment or the borrowing of money.
A witness who knowingly signs a predated instrument.
One who hires witnesses other than expert witnesses to testify on his behalf. A person may hire expert witnesses and expert witnesses may be paid for their testimony.
Both the lender and the borrower who transact a loan that includes usury (interest) payments.
By Rabbinic decree the following are also ineligible.
Strong-armed persons who buy things that the sellers do not wish to sell.
Shepherds who graze their sheep on land belonging to other individuals.
Tax collectors who act contrary to the law of the land and keep the illegally collected taxes for themselves.
Pigeon raisers in a populated area. The presumption is that that they decoy pigeons belonging to others to join their flocks and thus steal from others.
Those who trade in produce of the seventh (shmittah) year.
A gambler who has no other means of support. There are authorities who hold even if he has another means of support but some of his support comes from gambling, then he is ineligible.
Whoever has no knowledge of Torah or Mishna or of proper conduct, unless his life if full of religious and benevolent acts. This was usual in some societies where there was no universal education. People were observant but their knowledge was limited to the actual performance of the mitzvoth.
Informers to armed robbers or Gentiles regarding someone else's assess. If not for the informer the Gentile or robber would not be aware of the assets of the other Jew and would not have robbed him.
Heretics. I have discussed this category with great sages and their definitions were broader but some said that most non-observant Jews are not heretics, but just ignorant, the same as a child who is kidnapped and brought up among Gentiles and thus does not know any Jewish customs and laws.
Transgressors of Rabbinic decrees.
There are certain transgressions where the person does not lose his ineligiblity, such as:
Those who bury the dead on the first day of a Holy Day. They are certain that they are engaged in a most pious act, which they are assuredly are. It is just the timing that is not permitted. They are not aware of the distinction between the first Holy Day and the second Holy Day.
A sharecropper who took a tiny amount of the crop for himself before the harvest was completed.
The ineligibility commences if two witnesses testify that he committed the transgression, even if he was not warned not to do it. The ineligibility commences only when the proof of his having performed the wicked act prior to the testimony has been established.
The ineligibility should be proclaimed in the synagogues and houses of study.
The commission of any readily recognized transgression renders him a wicked person. Examples given is swearing falsely, robbing or stealing or eating non-kosher food.
If the transgression is not widely known to be prohibited (such as tying or untying a knot on Shabbat) and the person who does the act is not aware that it is prohibited, there must first be an admonition to the transgressor that his conduct is prohibited.
A person may not to be deemed wicked on his own confession. It is a fundamental principle of halachah that a person's confession to illegal or wicked conduct is absolutely not admissible in Beth Din. A person may not incriminate himself. The law is absolute and may not be waived as can be done in the United States under the fifth Amendment.
A transgressor who repents of his actions is immediately eligible, no matter how serious his transgression. If after two witnesses testify that a person is a transgressor and two other witnesses testify that he has repented, he is immediately eligible.
In cases involving money, the general rule of repentance must be supported by evidence of restitution.
The subject matter of this lesson is more fully discussed in Volume 1, Chapters 33 and 34, of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores.
Address comments to quint@inter.net.il
[The Shlach Homepage]
|
