Shalom and Ari were learning at a table right in front of Rabbi Dayan. “I’d like to borrow $200 to buy sefarim on the way home,” Shalom said to Ari. “Do you happen to have money with you?”
“I usually don’t walk around with that amount of cash,” replied Ari, “but I just took out money this morning.”
Ari took $200 out of his wallet. He said to two friends at the adjacent table: “For the record, see that I’m lending Shalom $200.”
Meanwhile, Rabbi Dayan was watching. “Shalom is reliable, but it’s good that you lent before witnesses,” he said. “To prevent misunderstandings, there should always be proof of a loan.” (C.M. 70:1)
A month later, a dispute arose between Shalom and Ari over payment of the loan. They tried to resolve the issue between themselves, but were not successful.
Finally, Ari submitted a claim against Shalom in Rabbi Dayan’s beis din. The beis din issued a summons for a din Torah before Rabbi Dayan and his colleagues.
Shalom was surprised to see the summons by Rabbi Dayan. “Before Rabbi Dayan?!” exclaimed Shalom. “He was sitting right there; it’s not fair that he should serve as a dayan! How can he be objective?”
“What’s wrong?” asked Ari. “Do you suspect him of being partial?”
“Chas v’chalila,” replied Shalom, “but I don’t think someone who was present at the event should be able to serve as a dayan afterward. I also remember learning somewhere that a witness cannot serve as a dayan.”
“We can ask Rabbi Dayan himself whether this is a problem,” said Ari. Shalom agreed.
“I summoned Shalom to a din Torah about something you were witness to,” Ari said to Rabbi Dayan. “Are you allowed to serve as a dayan for such a case?”
“Indeed, the Gemara (Kesubos 21b; B.B. 114a) states that a witness cannot serve as a dayan,” replied Rabbi Dayan. “However, the Rishonim dispute when to apply this principle.”
“What are the various opinions?” asked Shalom.
“Rashbam [B.B. 113b-114a] maintains that anyone who intended to testify is considered a ‘witness’ and can no longer serve as a dayan, even if ultimately he did not testify,” explained Rabbi Dayan. “He suggests the source for this rule is the verse, ‘The two men … should stand before [the court] of Hashem’ (Devarim 19:17), which indicates distinct roles of witnesses – ‘the two men’ – and dayanim – ‘the [court of] Hashem.’ ”
“Conversely,” continued Rabbi Dayan, Tosfos and the Rosh maintain that only a witness who testified cannot serve as a dayan. This follows from the verse cited by Rashbam; only when the witnesses actually ‘stand before the court’ are they disqualified. Alternatively, the rule is a corollary of the principle that testimony must be open to hazama, total rejection by opposing witnesses. If a witness who testified were to serve as the dayan, he would not accept opposing witnesses to reject his testimony.”
“There is a third, compromise position of the Ramban and Ran,” added Rabbi Dayan. “One who intended to testify can serve as a dayan if he didn’t testify, but not one who was explicitly appointed to serve as a witness of the event.”
“What is the halacha?” asked Shalom.
“Shulchan Aruch [C.M. 7:5] rules according to Tosfos and the Ramban, and disqualifies only a witness who testified or was explicitly appointed as a witness,” replied Rabbi Dayan. “Thus, although I observed the case – since I was not explicitly appointed a witness and did not testify – I am able to serve as a dayan, whether I initially intended to testify or not.”
“I should point out,” concluded Rabbi Dayan, “that to authorize signatures – kiyum shtaros – the sages allowed even a witness who testified about the signatures to subsequently serve as a dayan, since the requirement for kiyum shtaros is rabbinic.” (C.M. 46:24)