Mr. Samuel was having major renovations done to his house. His architect drafted detailed plans for the contractor, Mr. Frankel, who provided a clear estimate and a proper contract for the job.
As is the nature of construction, various modifications to the plans were implemented during the course of work. Mr. Frankel was careful to have these changes, with any additional cost, put down in writing and signed. However, one modification was not recorded but instead remained a verbal agreement. When the work was completed half a year later and final payment was being arranged, a dispute arose between Mr. Samuel and Mr. Frankel about the cost of that modification.
Both Mr. Samuel and Mr. Frankel were adamant that their recollection was correct. The amount in dispute was significant – $10,000 – so that they were unable to reach a compromise. Mr. Frankel decided he had no recourse other than to sue Mr. Samuel in a din Torah.
The two came before Rabbi Dayan’s beis din. Mr. Frankel stated his claim. “Ask anybody in the business,” he said. “The $25,000 price I gave Mr. Samuel was already a discount, and I can’t accept any less than we agreed upon.”
“The entire project was very substantial,” Mr. Samuel replied. “We agreed to have this modification done almost at cost, for $15,000.”
“Is there any sort of documentation?” Rabbi Dayan asked Mr. Frankel.
“Unfortunately, this one modification was agreed upon informally, so we have no documentation,” replied Mr. Frankel. “We were at the bris of Mr. Samuel’s nephew, and were discussing the plans with his relatives. We agreed to this modification while sitting around the table.”
“Is there anyone who can testify about the agreement?” asked Rabbi Dayan.
Mr. Frankel thought for a moment. “You know who was there?” he said. “Mr. Samuel’s brother-in-law, Rabbi Cohn; we were consulting with him on some halachic issues. Mr. Samuel’s younger brother was also there. They very clearly heard the amount; they even assured Mr. Samuel that I was giving him a very good price! We can call on them to testify.”
“They’re relatives of mine, though,” Mr. Samuel pointed out.
“Do you expect Rabbi Cohn to lie?” asked Mr. Frankel. “He’s known as a man of impeccable honesty who wouldn’t lie for anything! Anyway, I understand that relatives can’t be trusted to testify on your behalf, but I’m calling on them to testify against you. Is there an issue with that?”
“Despite the impeccable reputation of integrity that Rabbi Cohen has,” said Rabbi Dayan, “he is disqualified to serve as a witness, even to the detriment of his brother-in-law.” (C.M. 33:3)
“Why is that?” asked Mr. Frankel.
“The Shulchan Aruch, based on the Rambam [Hil. Edus 13:15] establishes an important principle,” answered Rabbi Dayan. “He writes: ‘The fact that the Torah disqualified the testimony of relatives is not because they are presumed to love each other, since they are disqualified to testify for [their relative] whether for his benefit or his detriment. Even Moshe and Aharon are not qualified to testify for each other. Rather, it is a gezeras hakasuv [scriptural decree].’ ” (C.M. 33:10)
“What does that mean?” asked Mr. Samuel.
“It means that the disqualification of relatives as witnesses is a procedural issue, not a question of honesty,” explained Rabbi Dayan. “Even relatives of the greatest integrity, such as Moshe and Aharon, may not serve as witnesses, and it makes no difference in whose interest they are testifying.
“Even so, I’m wondering if there is any way we could call upon them to testify,” said Mr. Frankel. “I suspect Mr. Samuel would accept Rabbi Cohn’s word as correct, regardless.”
“Although Mr. Cohn is a disqualified witness,” answered Rabbi Dayan, “if Mr. Samuel is willing to accept him as a witness to testify against him, it is allowed. The acceptance should be confirmed through a kinyan sudar. This is done through having Mr. Samuel take a handkerchief or other item, as a symbolic gesture of committing himself to the outcome of their testimony.” (C.M. 22:1)
“Thus,” concluded Rabbi Dayan, “Rabbi Cohn – despite his reputation of honesty – and Mr. Samuel’s brother cannot serve as witnesses, even for their relative’s detriment, unless Mr. Samuel explicitly agrees to accept their testimony as valid.”