ב"ה
Rambam - 1 Chapter a Day
Edut - Chapter 17
Edut - Chapter 17
1When many men of great wisdom and fear of God testify to a person and tell him that they saw so-and-so commit a particular transgression or borrow money from a colleague, although the listener believes the matter in his heart as if he saw it actually transpire, he may not deliver testimony unless he actually sees the matter or the borrower acknowledges the debt verbally to him, saying: “Be a witness for me that so-and-so lent me a maneh.” These concepts are derived from Leviticus 5:1 which states: “And should he witness, see, or know of the matter....” There is no testimony that can be established through sight or knowledge1 alone except testimony involving financial matters.2אמִי שֶׁהֵעִידוּ לוֹ אֲנָשִׁים רַבִּים וּגְדוֹלִים בְּחָכְמָה וּבְיִרְאָה, שֶׁהֵם אוֹמְרִים שֶׁרָאוּ פְּלוֹנִי שֶׁעָבַר עֲבֵרָה פְּלוֹנִית אוֹ שֶׁלָּוָה מִפְּלוֹנִי, אַף עַל פִּי שֶׁהוּא מַאֲמִין הַדָּבָר בְּלִבּוֹ כְּאִלּוּ רָאָהוּ - לֹא יָעִיד, עַד שֶׁיִּרְאֶה הַדָּבָר בְּעֵינָיו, אוֹ יוֹדֶה לוֹ הַלּוֹוֶה מִפִּיו וְיֹאמַר לוֹ 'הֱיֵה עָלַי עֵד שֶׁפְּלוֹנִי הִלְּוָה לִי מָנֶה', שֶׁנֶּאֱמַר "וְהוּא עֵד אוֹ רָאָה אוֹ יָדָע" (ויקרא ה, א). וְאֵין לְךָ עֵדוּת שֶׁמִּתְקַיֶּמֶת בִּרְאִיָּה אוֹ בִּידִיעָה, אֶלָא עֵדוּת מָמוֹן.
Whenever a person delivers testimony on the basis of the statements of others, he is a false witness and transgresses a negative commandment, as Exodus 20:16 states: “Do not bear false witness against your neighbor.”3וְכָל הַמֵּעִיד מִפִּי אֲחֵרִים - הֲרֵי זֶה עֵד שֶׁקֶר, וְעוֹבֵר בְּלֹא תַעֲשֶׂה, שֶׁנֶּאֱמַר "לֹא תַעֲנֶה בְרֵעֲךָ עֵד שָׁקֶר" (שמות כ, יב).
2Therefore, we issue a warning also to witnesses who testify regarding financial matters.4בלְפִיכָךְ מְאַיְּמִין אַף עַל עֵדֵי מָמוֹן.
How do we warn them? We issue this warning in the presence of all onlookers,5 telling them the severity of bearing false testimony6 and the shame suffered by those who deliver such testimony in this world and in the world to come.7וְכֵיצַד מְאַיְּמִין עַל עֵדֵי מָמוֹן? מְאַיְּמִין עֲלֵיהֶן בִּפְנֵי הַכֹּל, וּמוֹדִיעִין אוֹתָם כּוֹחַ עֵדוּת הַשֶּׁקֶר, וּבֹשֶׁת הַמֵּעִיד בָּהּ בָּעוֹלָם הַזֶּה וְלָעוֹלָם הַבָּא.
Afterwards, we order all other people8 to go outside and leave the witness of the greatest stature inside. We say to him: “Tell us the basis on which you know that this person owes money to that person.”9וְאַחַר כָּךְ מוֹצִיאִין אֶת כָּל הָאָדָם לָחוּץ, וּמְשַׁיְּרִין אֶת הַגָּדוֹל שֶׁבָּעֵדִים, וְאוֹמְרִין לוֹ 'אֱמֹר הֵיאַךְ אַתָּה יוֹדֵעַ שֶׁזֶּה חַיָּב לְזֶה'.
If he says: “He told me that the borrower said that I owe him the money,”10 or he says: “So-and-so told me that he owed him money,”11 his statements are of no consequence. He must say: “In our presence, the defendant admitted to the plaintiff that he owes him the money.”אִם אָמַר 'הוּא אָמַר לִי חַיָּב אֲנִי לוֹ', 'אִישׁ פְּלוֹנִי אָמַר לִי שֶׁהוּא חַיָּב לוֹ' - לֹא אָמַר כְּלוּם, עַד שֶׁיֹּאמַר 'בְּפָנֵינוּ הוֹדָה לוֹ שֶׁהוּא חַיָּב לוֹ'.
Afterwards, we bring in the second witness and check his testimony in this manner. If their testimony corroborates each other’s, the judges deliberate over the matter and conclude the judgment.וְהָיוּ מַכְנִיסִין אֶת הָעֵד הַשֵּׁנִי וּבוֹדְקִין אוֹתוֹ כָּךְ. נִמְצְאוּ דִּבְרֵיהֶם מְכֻוָּנִין - נוֹשְׂאִין וְנוֹתְנִין בַּדָּבָר וְגוֹמְרִין הַדִּין.
3The following rules apply if a person hid witnesses against his colleague and that colleague acknowledged his obligation to him in private. The witnesses saw and heard him tell him: “Certainly, I owe you this and this amount, but I am afraid you will call me to judgment tomorrow.” This is not valid testimony12 unless he makes the acknowledgment in the presence of witnesses.13גהַמַּטְמִין עֵדִים לַחֲבֵרוֹ, וְהוֹדָה לוֹ בֵּינוֹ לְבֵין חֲבֵרוֹ, וְהָעֵדִים רוֹאִין וְשׁוֹמְעִין שֶׁהוּא אוֹמֵר לוֹ 'וַדַּאי יֵשׁ לְךָ אֶצְלִי כָּךְ וְכָּךְ, אֲבָל מִתְיָרֵא אֲנִי שֶׁמָּא תְּכֻפֵּנִי בַּדִּין לְמָחָר' - הֲרֵי זוֹ אֵינָהּ עֵדוּת, עַד שֶׁיּוֹדֶה בִּפְנֵי עֵדִים.
4Whether a person acknowledged a debt to a colleague, making the admission in a sincere manner that he owes him such-and-such an amount, he told the witnesses: “You are my witnesses,” or he told them “Serve as witnesses for me,” they are valid witnesses.14 This applies whether the statement is made by the borrower or whether it is made by the lender and the borrower remains silent as if he is accepting his words.15דאֶחָד הַמּוֹדֶה בִּפְנֵי עֵדִים, וְאָמַר דֶּרֶךְ הוֹדָאָה 'זֶה יֵשׁ לוֹ אֶצְלִי כָּךְ וְכָּךְ', אוֹ שֶׁאָמַר 'אַתֶּם עֵדַי', אוֹ 'הֱיוּ עָלַי עֵדִים' - בֵּין שֶׁאָמַר הַלּוֹוֶה, בֵּין שֶׁאָמַר הַמַּלְוֶה וְשָׁתַק הַלּוֹוֶה דֶּרֶךְ מַאֲמִין לִדְבָרָיו - הֲרֵי אֵלּוּ עֵדִים.
Needless to say, it applies if he affirmed the appointment of the witnesses with an act of contract, telling them: “Compose a legal document stating that I owe so-and-so this-and-this amount,”16 or the like, his statement is considered as an admission and the witnesses may testify on this basis.וְאֵין צָרִיךְ לוֹמַר אִם קָנוּ מִיָּדוֹ, אוֹ שֶׁאָמַר לָהֶם 'כִּתְבוּ עָלַי שְׁטָר שֶׁיֵּשׁ לְזֶה אֶצְלִי כָּךְ וְכָּךְ', וְכָל כַיּוֹצֵא בִּדְבָרִים אֵלּוּ - הֲרֵי הֵם הוֹדָאָה וּמְעִידִין עַל פִּיו.
5When a teacher tells a student: “You know that if they would give me all the money in the world, I would not lie. So-and-so owes me a maneh. I have one witness against him. Please, join him.” If he joins him, he is a false witness.17 התַּלְמִיד שֶׁאָמַר לוֹ רַבּוֹ 'יוֹדֵעַ אַתָּה שֶׁאִם נוֹתְנִין לִי כָּל מָמוֹן הָעוֹלָם אֵינִי מְשַׁקֵּר, מָנֶה לִי אֵצֶל פְּלוֹנִי וְיֵשׁ לִי עָלָיו עֵד אֶחָד, לֵךְ וְהִצְטָרֵף עִמּוֹ' - אִם נִצְטָרֵף, הֲרֵי זֶה עֵד שֶׁקֶר.
6If he tells him: “Come and stand together with the witness. You do not have to testify, but the borrower will become frightened and panic, thinking that you are two witnesses and he will admit the debt on his own volition,” the student is forbidden to stand and make it appear that he is a witness ever though he does not deliver testimony.ואָמַר לוֹ 'בּוֹא וַעֲמֹד עִם הָעֵד, וְלֹא תָּעִיד, אֶלָא כְּדֵי שֶׁיִּרְאֶה הַלּוֹוֶה וְיִפְחַד וְיַעֲלֶה עַל דַּעְתּוֹ שֶׁאַתֶּם שְׁנֵי עֵדִים וְיוֹדֶה מֵעַצְמוֹ' - הֲרֵי זֶה אָסוּר לוֹ לַעֲמֹד וּלְהֵרָאוֹת שֶׁהוּא עֵד, אַף עַל פִּי שֶׁאֵינוֹ מֵעִיד.
With regard to this and similar matter Exodus 23:7 states: “Keep distant from words of falsehood.”18וְעַל זֶה וְכַיּוֹצֵא בּוֹ נֶאֱמַר "מִדְּבַר שֶׁקֶר תִּרְחָק" (שמות כג, ז).
7A person who hires false witnesses to testify against a colleague is no liable according to a court of law,19 but does have a moral and spiritual obligation.20זהַשּׂוֹכֵר עֵדֵי שֶׁקֶר לְהָעִיד לַחֲבֵרוֹ - פָּטוּר מִדִּינֵי אָדָם, וְחַיָּב בְּדִינֵי שָׁמַיִם.
Similarly, one witness21 who refrains from testifying is not liable according to a court of law, but does have a moral and spiritual obligation.וְכֵן עֵד שֶׁכָּבַשׁ עֵדוּתוֹ וְלֹא הֵעִיד - פָּטוּר מִדִּינֵי אָדָם, וְחַיָּב בְּדִינֵי שָׁמַיִם.
Footnotes
1.
Sh’vuot 33b interprets testimony that is acceptable which involves sight, but not knowledge as referring to an instance where the plaintiff told the defendant: “I lent you money in the presence of so-and-so and so-and-so,” the defendant asks him to bring the witnesses to testify and the witnesses testify that they saw the plaintiff give the defendant the sum mentioned, but they did not know why he gave it to him. An instance where the witnesses know without seeing is when the defendant admits the debt in their presence.
2.
I.e., with regard to cases involving capital punishment or lashes, by contrast, the witness must both see and know.
3.
Sefer HaMitzvot (negative commandment 258) and Sefer HaChinuch (mitzvah 37) count this as one of the 613 mitzvot of the Torah. I.e., this command does not involve only a prohibition against telling an outright lie, but also against delivering any testimony that should not be given.
4.
See Hilchot Sanhedrin 12:3 which discusses the warning issued to witnesses in cases involving capital punishment.
5.
Although the witnesses testify in private, they are given a warning in public to create a greater sense of shame and embarrassment if they are in fact lying (Radbaz).
6.
Sanhedrin 29a relates that famine and bloodshed come to the world because of the sin of delivering false testimony.
7.
Sanhedrin, loc. cit., cites the example of the false witnesses hired by Izebel to testify against Nabot. Izebel herself referred to the witnesses as “unscrupulous men” (I Kings 21:10), implying that even she who hired hem looks down at them with scorn. Needless to say, in the world to come, the world of truth, they will be overwhelmed with shame.
8.
This does not include the litigants themselves. For the witnesses must testify in their presence. See Sefer Me’irat Einayim 28:37.
9.
As the Rambam states in Hilchot Toen ViNitan 6:1, we always ask a plaintiff and a defendant to clarify the claims they make. Similarly, the witnesses are asked to clarify their testimony.
10.
But did not do so with the assurance necessary for a statement to be considered as an admission of debt. See Hilchot Toen ViNitan 6:7 which states that a person may admit owing other people money so that he does not appear wealthy. Such an admission is not binding in court.
11.
For he must have direct knowledge of the matter, as explained above.
12.
As the Rambam explains in Hilchot Toen ViNitan 6:7, the defendant can excuse himself saying: “I was only jesting with you.” Since he was not aware of the presence of the witnesses, we do not know whether or not he was speaking sincerely.
13.
I.e., witnesses whom he sees.
14.
In these instances, since the plaintiff was present and the defendant made these statements with a serious intent, we cannot accept the argument that he was jesting, speaking facetiously, or made the statement so as not to appear wealthy, as the Rambam explains in Hilchot Toen ViNitan 7:1-2.
15.
If, however, he remained silent, but appeared to mock the lender, he is not considered to have accepted them as witnesses (Radbaz).
16.
This statement serves as a legal record for the loan. It does not have the strength of a promissory note unless the borrower specifically requests that it does, as stated in Hilchot Malveh V’Loveh 11:1.
17.
As stated in Halachah 1.
18.
I.e., the student does not transgress the prohibition against giving false testimony, because he does not testify. Nevertheless, creating a false impression is also forbidden.
19.
Since he himself did not cause his colleague financial loss - for the loss was caused by the witnesses who actually testified falsely, and they are responsible for their own conduct - he has no liability. His act is considered a secondary cause of damage (Bava Kama 56a and commentaries).
20.
The literal translation of the Rambam’s words is “He is obligated according to the laws of heaven.” The Ramah (Choshen Mishpat 32:2) adds several qualifications to the Rambam’s ruling. Among them: a) If the plaintiffs claim is valid, although the person who hired the witnesses was forbidden to have done so, that person does not have even a moral and spiritual obligation to the defendant. b) If the person did not hire the false witnesses, but merely convinced them to testify, that person does not have even a moral and spiritual obligation to the defendant. c) The Rambam is speaking about a situation where a person hired witnesses to testify on behalf of a colleague. If he hired witnesses to testify on his own behalf and expropriated money not due him by law, he is liable to make financial restitution.
21.
The Sefer Me’irat Einayim 28:10 rules that this law applies even if two witnesses do not deliver testimony. By mentioning one witness, the Rambam (and Bava Kama 56a, his source) are emphasizing that even in such a situation, the witness has a responsibility. Although his testimony would not obligate the defendant to make financial reimbursement - for financial responsibility is established only on the basis of the testimony of two witnesses - he would obligate the defendant to take an oath. And since it is possible that the defendant would rather pay than take the oath, the witness could have caused the plaintiff a loss.
Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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