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Shabbat Parashat Balak 5775

P'ninat Mishpat: Testifying in Non-Jewish Court

(based on Shut Chatam Sofer, Choshen Mishpat 23)

Case: A Jew litigating in non-Jewish court subpoenaed an important rabbi to testify under oath against another Jew. If he testifies, money may possibly be extracted without two valid witnesses. If he refuses, he is likely to cause a chillul Hashem and be punished. What should he do?

 

Ruling: The gemara (Bava Kama 113b-114a) says that one may not testify in non-Jewish court when they extract money based on a lone witness, but as one of two witnesses, he may. The gemara then asks whether an important person, to whom the courts give credibility like two witnesses, is forbidden to testify for that reason or whether it is permitted because it is difficult for such a person to get out of testifying. The gemara leaves the question unsolved (teiku). The Ra’avad seems to set the halacha in the following way. In a case where it is not clear how the courts will accept the testimony, we say that there are multiple reasons to allow the testimony: 1) the gemara does not come to a conclusion; 2) it is possible that the testimony will not be given too much weight; 3) he may be forced to swear that he does not know testimony, and it is forbidden to swear falsely.

The Ramah says that such a person should not testify, but if he did, he is not disciplined. However, that may only be referring to a case where they will definitely accept his testimony alone. It is also clear that the Ramah agrees that one does not swear falsely to save someone from the consequences of his testimony. According to some versions, it depends whether the witness was singled out to testify, in which case there is a chillul hashem if he refuses to come. However, it seems clear that the whole gemara is talking about a case where the person was demanded to come and not when he just considered volunteering.

We should look into the logic of the whole matter. Since witnesses who are not causing undue damage (i.e., two witnesses) are permitted to testify, why is it forbidden for one witness who knows the truth to testify honestly? The only thing he is doing is preventing someone from extracting himself from an obligation! The Mordechai is careful in his language in saying that we censor him for the chutzpa of going against the rules of beit din, who do not let him testify because they do not know he is telling the truth. We use the working assumption that the litigant does not owe money in regard to censoring him for his action but cannot extract money from him for causing damage to the litigant because we do not know his testimony is wrong.

If we have someone who is important in the eyes of the non-Jewish courts but not known by beit din for his honesty, we may not let him testify. However, there is a concept of knowing that a person is totally honest (see Ketubot 85b). It is true that we cannot treat that person like two witnesses. However, we can trust him to tell the truth to the extent that we would allow him to testify in the non-Jewish courts and avoid chillul Hashem. Also, if he is compelled to swear, he may do so, obviously truthfully. The only caveat is that if the court obligates the litigant more than it should, based on his testimony, he must pay from his pocket for the damage he caused the litigant even though he was coerced into the situation. That is because while one may save his life at the cost of his friend’s money, he must pay his friend afterward.

 

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