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Shabbat Parashat Tzav| 5771

P'ninat Mishpat: Steps Against a Uncooperative Litigant

(condensed from Shurat Hadin, vol. VII, pp. 53-58)

Case: A husband (=pl) demands that his wife (=def), from whom he has been separated for two years, receive a get, while she demands reconciliation. Pl claims that def is psychologically unstable and has been guilty of infidelity more than once. Pl wants def’s medical file to be shown to a neutral doctor for evaluation and wants to present witnesses as well as videos that were taken regarding inappropriate behavior. Def threatened the witnesses and those involved in the videos that she will have them prosecuted for breech of privacy (she works for the police) if they present evidence against her, and they backed down.


Ruling: The Rosh (Shut 107, accepted by the S’ma, 15:13 and the Shach 15:5) says that if a litigant refuses to respond to interrogation in a suspicious manner, beit din can view the silence as admission of the other litigant’s claims. This is similar to the disqualification of witnesses who do not answer questions raised to them. Although the Rosh discusses a case where the dayan was a mumcheh (expert), who might have more authority to make such assessments, he does not seem to make it a condition, and this is the way he is cited by later poskim.

Since the witnesses had indicated that they had testimony about infidelity, which would have made def forbidden to pl, and she has effectively blocked access to them, she is presumed to be forbidden. Therefore, until she frees access to this evidence, she is obligated to receive a get and is not entitled to payment of her ketuba since the need for the get comes due to her behavior. This is analogous to the case where a woman is obligated to drink sota water and refuses, where the Rambam (Sota 2:1) says that she is to be divorced and not receive a ketuba [ed. note- one can distinguish, because regarding sota, witnesses testified that she was in a secluded place with a man she was warned to avoid.] The Kesef Mishneh explains that when she says she is afraid to drink, it is to be assumed that this is because she knows she is guilty. Another case where we see that a lack of cooperation is viewed as admission is where two witnesses say that a woman was divorced recently and two say she was not and she does not produce evidence. We take this as an indication that she was not divorced, and she is forbidden to remarry. It is generally easier to rely upon circumstantial evidence, such as implied admission, regarding questions of whether she should receive a get than regarding extracting money. In general, we say that when there is a question whether something is permitted or not and the matter can be clarified, it is treated as if it is forbidden until the clarification has been made.

Regarding witnesses who are afraid to testify, most Rishonim understand the gemara (Ketubot 27b) that the intimidating party has to bring the witnesses or suffer consequences. Even those who disagree would agree in our case where there was an explicit threat made to them in front of beit din.


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