Shabbat Parashat Shelach 5774

P'ninat Mishpat: Testimony Not in the Presence of a Litigant

[A beit din heard witnesses’ testimony that someone had a chazaka on property (effective control for an extended time) when the original owner, who wants his property restored to him, was not present. While the general rule is that witnesses may not be accepted in the absence of a litigant, the party who brought them claimed that sources indicate that one may accept witnesses when they are allowing one to just hold on to property already in his possession.]

The ostensible sources that allow accepting witnesses on behalf of a defendant without the plaintiff all refer to cases that are not equivalent to ours. The Ran (Ketubot 57a of Rif’s pages) refers to a widow who sold property in order to support herself as she deserves, and there is just a question whether she did so in a responsible way. Regarding the Ran’s case, there are special leniencies regarding the payment of a ketuba to a widow.

Even if we extend the leniency to other cases where one is only trying to hold on to that which is in his possession, it should not apply to one who has a chazaka on someone else’s land. This is because one continues to live in the property that was owned by another and needs to remove the other’s established ownership. Even regarding a classic defendant, such as a borrower with a document against him, how can we contemplate accepting witnesses not in the presence of the apparent lender to uproot the latter’s likely rights?

The only case where it makes sense to make an allowance for the borrower is when they are about to extract money from him and the lender is not available to be present at the testimony, as the witnesses can help prevent the extracting of payment. While we do not extract payment from young orphans, they cannot extract money from the widow when she has witnesses. If no one is challenging her, she may not bring the witnesses when the orphans are not able to represent themselves; if they are initiating litigation and are not able to be represented in beit din, then she can bring witnesses in any case.

We find another case where it is permitted to accept witnesses (Tur, Choshen Mishpat 160 in the name of Rabbeinu Yona) – once again, witnesses who saw one living in a certain property and performing chazaka. However, that is yet another case where the litigants are not available and if we wait, the witnesses will no longer be valid. That is similar to the case in the gemara (Bava Kama 112b) of hearing witnesses who are in danger of dying or about to move abroad. Without the factor of inability to wait, we see that this type of testimony would be invalid.

Even after the testimony was accepted, it cannot be validated after the fact. This is especially true because the dayanim made a mistake on a clear matter, which invalidates the processes they undertook. Although there are opinions that the testimony is valid after the fact, one cannot gain rights to that which was once another’s property based on such testimony.

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