Photo Credit: Jewish Press

Mr. Hyman received a summons in the mail to appear before beis din as a witness.

He inquired with the litigants and found out it related to an event he had observed together with Mr. Gold.

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“Is Mr. Gold also invited to testify?” Mr. Hyman asked.

“Yes, he also saw what happened,” said the plaintiff.

Mr. Hyman knew Mr. Gold a long time, way before he had moved into the neighborhood a year ago.

“I know him from before, and he was convicted of theft,” Mr. Hyman said to himself. “In the previous town, beis din disqualified him from testimony. I guess the dayanim here are not aware.”

He wrestled with the question of what to do: “On the one hand, I know Mr. Gold is disqualified and shouldn’t be testifying,” he thought. “On the other hand, I saw exactly what happened and there is no doubt the money is owed. If I raise the issue of Mr. Gold’s disqualification, I’ll remain a single witness and it’s liable to mess up the case. That’s also not fair.”

Mr. Hyman shared his dilemma with a friend. “What do you suggest I do?” he asked.

“I don’t know,” said his friend. “However, I plan to attend a shiur tonight by Rabbi Dayan. You can join me and ask him afterward.”

Mr. Hyman joined his friend for the shiur. Afterward, he approached Rabbi Dayan and shared his dilemma. “Should I testify along with Mr. Gold?” he asked.

“It says in Parshas Mishpatim [Shemos 23:7]: “Midvar sheker tirchak – Keep far from falsehood,” replied Rabbi Dayan.

“The Gemara [Shavuos 30b] understands that not only is actual falsehood prohibited but also actions that lead to falsehood,” Rabbi Dayan continued. “One example is that a witness who knows his fellow witness is a thief should not testify along with him. The Rambam and Shulchan Aruch explain that a valid witness may not testify with someone disqualified, unknown to the dayanim, even though the testimony is true.” (Hil. Eidus 10:1; C.M. 34:1)

“But if the testimony is true, what’s the problem?” asked Mr. Hyman. “Regardless, won’t the truth will come out?”

“There are three reasons to consider this falsehood,” answered Rabbi Dayan. “Sma (34:1) explains that because the disqualified witness is irrelevant, the single valid witness who testifies along with him causes the judgment to be decided improperly as if there were two witnesses, and thereby also is a deceitful witness.”

“The Shach (34:3), however, finds it difficult that the valid witness knows his testimony to be true yet should avoid testifying just because the other witness is disqualified,” continued Rabbi Dayan. “Therefore, he explains that since the Torah declared that a disqualified witness invalidates the entire testimony – eidus shebatla miktzasa batla kula – the testimony of the valid witness is considered falsehood, since it also becomes invalidated incidentally.”

“Third, the Shach points to certain cases where the presence of two valid witnesses is crucial for the transaction itself; for example, witnesses of kiddushin,” added Rabbi Dayan. “Even if the event is true, it lacks legal status without the second witness.”

“So I can’t testify without raising the issue of Mr. Gold’s disqualification?” asked Mr. Hyman.

“That is correct,” concluded Rabbi Dayan. “I should point out that Shaar Mishpat disagrees and cites from Kol Bo that the valid witness may testify in our case, unless he states that he and his fellow were witnesses, which would falsely confirm the disqualified one. However, the accepted ruling follows the Shulchan Aruch that even to testify without saying so is prohibited, since it causes beis din to rule in an improper manner, as the Sma explained.” (See Mishpat Aruch, 34:1:20[24])

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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.