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 Shabbat Parashat Tetzaveh | 5770P’ninat Mishpat: Disqualifications of Witnesses – part II(based on Sha’ar Ladin – Halacha Psuka, vol. 35, 36)
[We will continue looking at various disqualification of witnesses. This time we will discuss women and nogeiah b’eidut (those with an interest in the case’s outcome)].
The fact that women may not testify is a Divine decree. Yet, there were takanot to sometimes accept their testimony. The Rama (Choshen Mishpat 35:14) says that “early generations” instituted that regarding things that transpire in places that women alone frequent, women are able to testify. Some say that a woman, a relative, or a minor, are believed regarding cases like one hitting another, the degradation of a talmid chacham, or other fights, etc. because it is not normal and there is no time to prepare witnesses for these things. He limits this idea to cases where the plaintiff is certain about his claim.
On the other hand, Acharonim limit these exceptions to the rulesignificantly (see Pitchei Teshuva, ad loc.). It is possible that in our times we should institute such matters in a more expanded manner. Let us point out that the disqualification of certain witnesses is not a complete one. We have already pointed out that when a judge fully believes witnesses who are formally unfit, the dayan may rely upon him because “the dayan has only what his eyes see.”
The gemara (Bava Batra 44b) says that if Reuven sold his field to Shimon and then Levi came to take it with the claim that it had been stolen from him, Reuven may not testify on Shimon’s behalf. This is because Reuven has an interest that the field remain Shimon’s so that if one of Reuven’s creditors comes to collect fields if Reuven does not have from what to pay, they will be able to take from this field. In that way, Reuven avoids being an “evil person who borrows and does not pay back.” The Ri Migash asks: does it make sense that in order to not be “evil” by not being able to pay back, one would prefer to testify falsely? His first answer is that the disqualification of nogeiah b’eidut is not necessarily because of a fear he will lie. Rather, the connection makes him like a relative, who is unfit even when there is not a fear of lying. His second answer is that some people prefer avoiding being evil in the eyes of the public who know that he did not pay his debt than in the eyes of Hashem, who alone knows he is lying. Even though we don’t suspect the average person of lying to the court, we do suspect litigants, to whom a nogeiah b’eidut is similar. Most of the classical commentators to Choshen Mishpat 37 agree that there is a fear of lying.
One of the practical differences between the reasons for the disqualification is a case where one signed a contract that is dated at a time that he was not nogeiah b’eidut, but at the time it was presented to court, he was. If the disqualification is a Divine decree based on the similarity to a relative, then since at the time he signed (which is equivalent to testifying) he was valid, the contract can be used. If there is a fear of lying, then we must consider the possibility that he fabricated the testimony and predated the contract to the time before he was nogeiah b’eidut.
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