Lesson # 445 Women as Participants in the Judicial Process There are two Talmudic passages which seem to give conflicting inferences whether a woman may testify. In one passage, the Talmud (Baba Kama 15a) asks why a Mishna which lists some of the eligible persons who can evaluate certain tort damages states that the witnesses are to be freemen and of the Jewish faith. The Talmud answers that the term ìfreemenî excludes a slave who may not testify. The term ìof the Jewish faithî excludes Gentiles. And both exclusions are necessary. For if the Mishna would have stated only ìfreemenî which would have excluded slaves it might have been thought that the reason for the exclusion is that the slave has no pedigree, but a Gentile who has pedigree might have been able to testify regarding tort damages. And conversely, had the Mishna stated only a Jew could testify, which would have excluded Gentiles, it might have been thought that a slave could testify, since he is obligated to perform certain commandments of the Torah. Therefore both terms ìfreemenî and ìJewsî are mentioned in the Mishna to teach that both slaves and Gentiles are excluded from testifying in tort actions. Maimonides (Laws of Damages Caused by Chattel) relying on this Talmudic passage writes in his code, ìOne should not think that because only slaves, shepherds, or similarly ineligible persons are found in horse stables, animal stalls or sheep enclosures, that they may testify that one animal damaged another animal; or that women or children should be permitted to testify that one person has injured another person, or that they may testify about other types of injury. This is not so. No person will ever be required to pay compensation on the testimony of witnesses unless the witnesses are eligible to testify in other casesî - In Rambam's opinion, the Talmud deems both clauses necessary to show that a person who is excluded cannot become eligible in tort cases just because there are no eligible slaves or Gentiles. It was necessary to exclude the latter since it might have been thought the law was made more lenient in tort matters. Most torts take place where slaves and Gentiles are present and only a few torts where the eligible witnesses are present. Most torts, whether committed by people or by animals, are usually in the presence of unlearned persons, slaves and Gentiles, therefore the necessity to teach us that witnesses must be only eligible witnesses, as in all other cases. Rambam contends that if an act takes place where there are usually only ineligible witnesses, such witnesses are nonetheless not permitted to testify. This would effectively exclude from testifying, the woman who witnessed the automobile accident. Rashba, living in the thirteenth century in Spain, also a Sephardic country, was approached by the local rabbis who wished to permit testimony of women regarding the transfer by a woman of her seat in the synagogue to a member of her family. Rashba in a responsum held that even if a thousand women testified to the same facts, their testimony is not admissible in monetary matters. He told the local rabbis to reject the earlier authorities who permitted women to testify regarding women's seats in the synagogue. The case before him was not like the case in the Talmud regarding the midwife, since in the case of the midwife it was inconceivable that a man would be present when a woman gave birth. But the transfer of the seats could have been witnessed by men. He also distinguishes situations where a woman may testify in certain matters such as testifying that a woman's husband had died, since not permitting such testimony would leave the wife permanently unable to marry. In such a case even a slave or maidservant could testify. (In spite of the fact that the wife could remarry, the son would not be able to inherit his estate without regular proof.) Asheri, a contemporary of Rashba, although writing in Spain, generally followed the Ashkenazic Gemanic, northern French tradition. In this case, however, he follows the Sephardic tradition. In commenting on the aforementioned Talmudic passage, he states there was a necessity to disqualify slaves and Gentiles. In a Gentile court, the plaintiff could be successful on the basis of their testimony, in the event that there was a lawsuit between a Jew and Gentile. It might have been thought that in cases of torts they could also testify in Beit Din; therefore it is taught that they may not testify. The same would apply to all ineligible witnesses. His son, R. Jacob Tur, also writing in Spain, in discussing the same law, quotes the language of Rambam. Sefer haChinuch, generally attributed to Rabbi Aaron Yosef haLevi of Barcelona, also a thirteenth century contemporary of Rashba and Asheri, asserts that women may not testify because of kalat datan. Kalah datan may be translated, in its most generous sense to mean that they are not interested in learning the facts of the case. R. Karo, following the Sephardic tradition during the 16th century is more concise in discussing the testimony necessary in damage cases and states ìTortfeasors are adjudicated liable to pay for the damages on clear proof and on the testimony of eligible witnesses.î Ramo, a younger contemporary of R. Karo, writing in Poland, generally follows the Ashkenzic Germanic northern French tradition. He does not offer any glosses to the law as stated by R. Karo but, as will be seen, this does not indicate his acceptance of R. Karo's views. Thus it seems that Rashba, Asheri, Tur, and R. Karo follow the lead of Maimonides in asserting that the unavailability of eligible witnesses in a situation will not permit ineligible witnesses to testify. But this is true not only where eligible witnesses happened not to be present, but even where eligible witnesses could have been present. At the same time there was another school of thought on this position. Another Talmudic passage teaches that a midwife is believed when she states which of twins were born first. This can make a difference in inheritances, since a first born son inherits twice as much as any other son. If the twins were a boy and a girl and the firstborn was the son, the father would have to pay five silver coins to the Kohen for the redemption of the first born son. Maimonides, Tur, and Karo state the law without any comment, although it sates that a woman may testify in an important monetary matter. Ramo does not add any glosses. It seems to me that the difference is one of degree in that there is no possible way for the information to be obtained except through the midwife. (to be continued) The subject matter of this lesson is more fully discussed in A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased at local Judaica bookstores. quint@inter.net.il [The Parshat Ha'azinu Homepage]
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