Photo Credit: Jewish Press

Rabbi Dayan was teaching about Kiddush haChodesh. “Until 1,650 years ago, there was no set Jewish calendar,” he said. “The months were determined by the Sanhedrin based on the testimony of witnesses who observed the faint crescent of the new moon. Our current calendar was established by the second Hillel, about the year 359 C.E.

“The determination of Rosh Chodesh Nisan took on special importance toward the end of the Second Temple period,” Rabbi Dayan continued. “It became the subject of a struggle between the Sages and the Boethusians (a Jewish sect connected to the Sadducees, who did not accept the Oral Torah) relating to Shavuos.

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“The Sages maintain that the Omer is brought on the second day of Pesach, and Shavuos is seven weeks later, regardless of the day of the week, whereas the Boethusians maintained that the Omer was always brought on a Sunday, and then Shavuos was also set. Therefore, the Boethusians were interested that Rosh Chodesh Nisan fall on Shabbos, so that Shavuos would fall on Sunday, regardless, in line with their opinion.

“The Gemara (Rosh Hashanah 22b) relates that the Boethusians once wanted to rig the calendar, and sought to hire false witnesses to testify that they saw the new moon on Shabbos. An honest person, who was concerned that others might cooperate, ‘offered’ them his services.

“The person came and testified about the moon in a most bizarre way, alerting the Sanhedrin that something was awry, and he showed them the money he had received for the plot. The Sages awarded him the money as a gift and punished those Boethusians who had sent him. The Sages then instituted acceptance of new-moon testimony only from people who were known to Beis Din.”

Reuven, who heard this, sat with a contemplative look on his face.

“In this story, the witnesses were paid to deliver false testimony,” Reuven said. “What about honest testimony, though?

“Is there any issue with paying a witness to testify honestly?”

“The Mishnah (Bechoros 29a) teaches that the testimony of a witness who charges money to testify is invalid,” replied Rabbi Dayan. “This is because a witness is required by the Torah to testify (Vayikra 5:1), and so he should not be charging money for his performance of this mitzvah” (Rama C.M. 34:18; Sma 34:46).

“If the witness was paid to state a specific testimony, he is certainly disqualified as an interested party (noge’a b’davar), since if he will not testify as instructed he will not ‘earn’ his pay. However, if the witness was paid to state whatever testimony he knows regarding the case, according to most authorities the disqualification of his testimony is a Rabbinic penalty” (Pischei Teshuvah 34:25).

“According to the Bach (C.M. 9:9), the witness is not required to return this pay, unlike bribery, which the Torah specifically prohibited, so that if the judge does not return the bribe money it is considered as theft in his hands. However, many Acharonim disagree with the Bach, since the testimony is disqualified, so that his service is negated and not deserving of pay” (Machaneh Ephraim, Sechirus #16).

“Nonetheless, the witness himself does not become inherently disqualified, as other criminals who require a teshuvah process. Therefore, if the witness simply returned the money, his testimony is once again valid, but according to many authorities, he must repeat it after returning the money” (Rama, ibid.; Pischei Teshuvah 34:26).

However, if the witness incurred a loss in coming to testify, e.g., travel expenses or lost wages, he is entitled to ask for compensation for his loss” (see C.M. 9:4).

“Furthermore,” concluded Rabbi Dayan, “someone who initially undertakes to become a witness – e.g., to sign a kesubah, get, or other legal document – is allowed to receive payment. Some maintain that he should be paid by both parties” (Nesivos 34:10; Pischei Choshen, Sechirus 8:45).

Verdict: A person who is required to testify may not charge for it but can only charge for his expenses. If he charged for his testimony, it is disqualified until he returns the money.

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Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.