We continue the episode from two issues ago…
Mr. Isaacs borrowed $10,000 from Mr. Silver for a two-year period, and later claimed that he repaid in the presence of witnesses. Mr. Silver denied having received payment.
One witness, Mr. Weiss, was disqualified, because he was the father-in-law of the guarantor, who is considered a relevant party to the loan.
“Do you have other witnesses?” Rabbi Dayan asked Mr. Isaacs.
“Yes, I have another witness,” answered Mr. Isaacs. “He is not related to any of the involved parties.”
“Who is the other witness?” asked Rabbi Dayan.
“His name is Mr. Weintraub,” replied Mr. Isaacs.
Rabbi Tzedek, who was serving on the panel as one of the three dayanim, perked up his ears. “What is Mr. Weintraub’s first name?”” he asked.
“Moshe,” replied Mr. Isaacs. “He is a well-known, trusted, and reliable person.”
“I’m afraid this might be a problem for me,” said Rabbi Tzedek.
“What problem could there be?!” asked Mr. Isaacs. “What’s wrong with Mr. Weintraub?”
“Mr. Moshe Weintraub is my brother-in-law,” replied Rabbi Tzedek. “He is my wife’s brother – she was a Weintraub. So we are related!”
“What difference does that make?” asked Mr. Isaacs. “You’re not a relevant party to the case. Mr. Weintraub is not related to any of the relevant parties: lender, borrower, or guarantor!”
“Nonetheless, since the witness is related to me, there may be a problem with my adjudicating this case,” explained Rabbi Tzedek. “If he is a necessary witness, it might require a different dayan to serve on the panel.”
Mr. Isaacs turned to Rabbi Dayan and asked, “Can Mr. Weintraub testify with Rabbi Tzedek on the panel?”
“The Gemara (Sanhedrin 27b-28a) derives the disqualification of relatives as witnesses from the verse ‘Lo yum’su avos al banim’ (Devarim 24:16),” replied Rabbi Dayan. “It interprets the verse to mean that people should not be held liable on account of their relative’s testimony.”
“The Yerushalmi (Sanhedrin 3:9), cited by the Rif (8b) and Rosh (3:32), teaches that the witnesses also cannot be relatives of the dayanim, since then – if the witnesses were to prove eidim zomemim (scheming false witnesses) – they would be punished partly on account of their relatives. Rashba (Responsum 2:156) rules that even ex post facto, their testimony is void.
Ran (Kesuvos 12b) explains that although the Bavli seemingly rejects this logic – since punishment through hazama is considered something external – and bases the disqualification of witnesses who are relatives to each other on Scriptural derivation, it extends also to witnesses who are relatives of the dayanim.
Mordechai (Sanhedrin #695-696), as well, cites the Yerushalmi, and explains that the testimony is disqualified as eidus she’i ata yachol l’hazima – that cannot be proven blatantly false – since the dayanim will not accept hazama on their relatives. However, he cites also an opposing opinion that relatives of the dayanim are valid witnesses, since their testimony can be debunked in another beis din. Tosafos (Kesubos 21b; B.K. 90b) similarly maintains so.
Beis Yosef (C.M. 33) cites the Rif and Rosh. Darchei Moshe (ibid.) cites the Mordechai, but notes that regarding monetary issues we do not require eidus she’ata yachol l’hazima.
Shulchan Aruch (C.M. 33:17) rules simply that witnesses who are relatives of the dayanim are disqualified, and Rema does not comment, seemingly accepting the Shulchan Aruch’s ruling. Sma (33:26) notes that Darchei Moshe cites opposing opinions, and suggests that he did not comment, since many concur with Shulchan Aruch’s ruling.
Tumim (33:12) explains that although we do not require verification of details to enable eidus she’ata yachol l’hazima in monetary matters, it needs to be implementable should it occur; not so when the witnesses are relatives of the dayanim. Alternatively, Noda B’Yehuda (vol I, E.H. #72) explains that we compare monetary cases to capital cases through “mishpat echad” (Vayikra 24:22) to disqualify relatives of the dayanim.
Despite Shulchan Aruch’s ruling, Gra (33:35) references Tosafos, who disagrees with the Yerushalmi. Shach (33:17) and Urim (33:26) cite the Bach (33:34) and others who conclude that the issue remains questionable, so that ex post facto perhaps the testimony should not be disregarded.
“Thus,” concluded Rabbi Dayan, “Mr. Weintraub should not testify before Rabbi Tzedek. Ex post facto it is questionable whether such testimony may be considered.”
Verdict: Witnesses who are relatives of the dayanim are disqualified. Ex post facto, it is questionable whether their testimony may be considered.
