Kosher Witnesses: Difference between revisions

From Halachipedia
 
(One intermediate revision by the same user not shown)
Line 49: Line 49:
#Someone who shaves with a razor, while he is violating a serious prohibition, might be a kosher witness since it is a prohibition that many violate and don't realize it is forbidden.<ref>Yabia Omer EH 10:32 s.v. amar hamechaber</ref>
#Someone who shaves with a razor, while he is violating a serious prohibition, might be a kosher witness since it is a prohibition that many violate and don't realize it is forbidden.<ref>Yabia Omer EH 10:32 s.v. amar hamechaber</ref>
#Someone who doesn't keep Shabbat publicly is an invalid witness.<ref> Yabia Omer EH 9:2:2 writes that someone who publicly violates Shabbat is an invalid witness since he violates a very serious prohibition. In Yabia Omer EH 8:5:7 he argues with Rav Aharon Volkin and Rav Uziel that today someone who desecrates Shabbat is valid since they don't realize that it is a serious sin.</ref>
#Someone who doesn't keep Shabbat publicly is an invalid witness.<ref> Yabia Omer EH 9:2:2 writes that someone who publicly violates Shabbat is an invalid witness since he violates a very serious prohibition. In Yabia Omer EH 8:5:7 he argues with Rav Aharon Volkin and Rav Uziel that today someone who desecrates Shabbat is valid since they don't realize that it is a serious sin.</ref>
##More generally, someone who isn't religious but was brought up not religious, many poskim hold that he is invalid to be a witness.<Ref>Radvaz 1:73 and 2:796 holds that the Karaites who don't follow Torah are invalid to be witnesses even though they were brought up with incorrect ideas. He quotes that the Mahari Bey Rav and Rav Shmuel Halevi agreed with him. Yabia Omer 8:12:2 quotes Maharshach 3:15, Maharikash (Ohelei Yakov 33), and Mabit 37 who agreed with the Radvaz. However, Rav Shlomo Gabizone (cited by Maharshach) and Rabbi Eliyahu Mizrachi 57 argued that they were kosher witnesses since they brought up with incorrect ideas. They are likened to a tinok she'nishba and considered an ones and as though they didn't sin. Radvaz argued that they're not tinok she'nishba since they had an opportunity to do teshuva and there were attempts to retrieve them in teshuva. Maharshach adds that even a tinok she'nishba should be invalid since he doesn't follow the Torah. Rav Moshe Feinstein (EH 1:82:11, 4:32:7) on his own accepts this second possibility that someone who isn't religious but was brought up with incorrect ideas is a tinok she'nishba but still an invalid witness. He says that they're comparable to non-Jews who don't follow the Torah and not acceptable as witnesses. Igrot Moshe EH 4:59 establishes that he's not a tinok she'nishba if he saw and knew about religious Jews and would be invalid. Shach YD 267:59 quotes the Radvaz. Even though Rama EH 4:37 seems to disagree with Radvaz, see Radvaz how he explains that it isn't a proof.</ref>
#Someone married to a non-Jew is an invalid witness.<Ref>Yabia Omer EH 8:3</ref>
#Someone married to a non-Jew is an invalid witness.<Ref>Yabia Omer EH 8:3</ref>


Latest revision as of 23:02, 22 November 2022

Who is a Kosher Witness

Relatives

Relatives.png
  1. The following relationships are considered first order relationships (rishon b'rishon):
    1. A sibling with another sibling, maternally or paternally or both
    2. A parent and a child[1]
    3. A husband and wife
  2. The following relationships are considered relationships between someone of one generation with someone one generation apart (rishon b'sheni):
    1. A descendant of a sibling
    2. A grandchild[2]
  3. The following relationships are considered second order relationships (sheni b'sheni):
    1. First cousins
  4. The following relationships are considered relationships between someone of one generation with someone two generations apart (rishon b'shelishi):
    1. A great grandchild[3]
    2. A grandchild of sibling
  5. The following relationships are considered relationships between someone of a second generation with someone one generation apart (sheni b'shelishi):
    1. A cousin to a descendant of a cousin i.e. first cousin once removed[4]
  6. The following relationships are considered second order relationships (shelishi b'shelishi):
    1. Second cousins
  7. The halacha is that the first four categories described above are relatives and may not testify together. There is a dispute if the fifth category is considered a relative, Sephardim holding it isn't and Ashkenazim holding it is[5], and the sixth category certainly isn't a relative.[6]
  8. Therefore, a father and child, brother and sibling, husband and wife, uncle and nephew, grandfather and grandchild, and first cousin are all relatives who may not testify about one another.[7]

Relatives By Marriage

Relatives by marriage.png
  1. Anyone who is disqualified to testify about a man is also disqualified to testify about his wife. Inversely, anyone who is disqualified to testify against a woman is also disqualified to testify against her husband.[8] However, regarding the relationships between someone of one generation with someone two generations apart (rishon b'shelishi) if the person is only a relative through marriage he is fit to testify against him.[9]
  2. The first two categories are disqualified even if it involves going through two marriages.[10] Some say that the second category is permitted if it goes through two marriages.[11] The third category is permitted if it goes through two marriages.[12] Initially this should be avoided for witnesses signing a document.[13]
    1. For example, men who are married to woman who are first cousins (sheni b'sheni) are permitted to testify together.[14]
    2. A man is disqualified to testify about his wife's son-in-law from a daughter from another marriage (rishon b'rishon with two baal k'ishto's).[15]
    3. A man may not testify about his wife's sister's husband i.e. brother-in-law (rishon b'rishon with two baal k'ishto's).[16]
    4. A man may not testify about his wife's sister's son-in-law (rishon b'sheni with two baal k'ishto's). However, a person may testify about his wife's sister's husband's son from another marriage.[17]
  3. Anyone who one can't testify against since he is married to a relative is considered a relative but not his relatives. Similarly, any woman married to a relative of oneself is a relative but not her relatives.[18]
    1. For example, one's half-brother's half-brother isn't a relative for testimony.[19]
    2. Another example is the father of man and a father of a woman whose children are married (mechutanim) and aren't considered relatives.[20]
  4. A wife's relatives are one's own. For example, her children or children-in-law from another marriage, her parents or step-parents are all relatives.[21] There is a dispute about one's wife's grandparents if they are considered relatives for testimony.[22]
  5. A person may not testify about his wife once they are halachically engaged but he still may testify about her relatives.[23] However, a person may even testify about his wife to be without any halachic engagement or marriage. Nonetheless, he might be biased if he is testifying about her receiving money.[24]

Sinners

  1. Somebody who is guilty of stealing is not considered a valid witness.[25] Thus, his testimony is not admissible in beit din, and contracts signed by him aren't valid.[26] However, if when he stole he mistakenly believed that what he was doing was not prohibited, he remains a valid witness.[27] For example, if somebody didn't realize that stealing from a non-Jew was prohibited, he would not be invalidated as a witness unless he was informed that this was prohibited and would disqualify him as a witness.[28]
  2. A gambler, someone who collects interest, and someone who profits from produce produced during shemita are examples of invalid witnesses in general and specifically for Kiddushin.[29]
  3. Anyone who is invalid to be a judge is also invalid to be a witness except someone who loves or hates the litigant, who is invalid as a judge but valid as a witness.[30]
  4. A tinok she'nishba is an invalid witness.[31]

Laws for Witnesses

  1. The witnesses are called edim and must testify exactly what they heard and not just say someone is obligated to pay his friend because sometimes if the witnesses heard a person admit he owes money in truth he isn't obligated.[32]
  2. If a person hired false witnesses to testify that Reuven owes Shimon money and Reuven was awarded money based on these false edim, if in truth Reuven didn't owe Shimon, Shimon doesn't admit that he doesn't deserve the money, the edim don't admit to lying, and the one who hired them does admit that he hired them as false witnesses, in the heavenly court he is obligated to pay Reuven for his loss.[33]
  3. Someone who shaves with a razor, while he is violating a serious prohibition, might be a kosher witness since it is a prohibition that many violate and don't realize it is forbidden.[34]
  4. Someone who doesn't keep Shabbat publicly is an invalid witness.[35]
    1. More generally, someone who isn't religious but was brought up not religious, many poskim hold that he is invalid to be a witness.[36]
  5. Someone married to a non-Jew is an invalid witness.[37]

Witnesses for a Wedding

  1. Relatives cannot be eidim for the chosson and kallah nor can the eidim be related to each other.[38]
  2. The mesader kiddushin is responsible to ensure that the witnesses for the kiddushin are valid witnesses.[39]

Links

Sources

  1. ↑ Rif (Bava Batra 56b) writes that the gemara concludes that we don't follow Mar Bar Rav Ashi because he permitted a grandparent thinking that he was considered rishon b'shelishi but really a father and son is rishon b'rishon and a grandson is rishon b'shelishi, which is permitted. The Rambam (Edut 13:5) agrees. The Tur and Shulchan Aruch 33:2 agree with the definition of the Rif that a parent to child is rishon b'rishon.
  2. ↑ Mar Bar Rav Ashi in Bava Batra 128a permitted a grandfather to testify about a grandchild but the gemara concludes that we do not follow his opinion.
  3. ↑ The Rashbam (Bava Batra s.v. leveyt) learns that once we don't follow Mar Bar Rav Ashi all direct descendants are relatives even a great grandchild and beyond. However, the Tosfot (s.v. leyt) argues as does Shulchan Aruch CM 33:2.
  4. ↑ Rabbi Abba in Bava Batra 128a states that a sheni b'shelishi is permitted. This is codified by Shulchan Aruch CM 33:2
  5. ↑ Rabbenu Tam (Bava Batra 129a s.v. iy) holds that a great grandfather is disqualified from testifying about his great grandson and the Rif (Bava Batra 56b) and Rambam (Edut 13:4) argue that it is permitted. Shulchan Aruch CM 33:2 quotes the Rambam as the primary opinion but also cites Rabbenu Tam and the Rama says that Ashkenazim hold like Rabbenu Tam.
  6. ↑ Shulchan Aruch CM 33:2. The source for relatives being disqualified to testify against one another or together according to Gemara Sanhedrin 27b is the pasuk "לא יומתו אבות על בנים" (Devarim 24:16). The Sama 33:5 infers from the Rama that the disqualification of all relatives is biblical with the exception of someone of one generation with someone two generations apart (shlishi b'rishon). The Rama 33:2 writes that some understood the Rambam to mean that maternal relatives are only rabbinic, however, the Shach 33:1 argues at length with this opinion and says everyone agrees that maternal relatives are biblically disqualified from testimony.
  7. ↑ Shulchan Aruch CM 33:2
  8. ↑ Gemara Sanhedrin 28b, Shulchan Aruch CM 33:3
  9. ↑ Yerushalmi Sanhedrin 3:6 asks whether Moshe Rabbenu would have been able to testify about the wife of pinchas and Rabbi Yochanan answers that it is permitted. From here the Rosh (responsa 57:3) learns that a relative two generations apart through marriage is permitted to testify. Shulchan Aruch 33:3 codifies this for the opinion of Rabbenu Tam.
  10. ↑ Shulchan Aruch CM 33:4
  11. ↑ Rama CM 33:4 writes that we hold like this opinion. The Bear Heitiv 33:4 says that initially this should be avoided for judges.
  12. ↑ Shulchan Aruch CM 33:4
  13. ↑ Trumat HaDeshen 226 and Rama CM 33:4 as we're concerned for a Bet Din who will make a mistake and invalidate these witnesses.
  14. ↑ Shulchan Aruch CM 33:4
  15. ↑ Shulchan Aruch CM 33:4
  16. ↑ Shulchan Aruch CM 33:4
  17. ↑ Shulchan Aruch CM 33:4
  18. ↑ Shulchan Aruch CM 33:5. Bet Yosef 33:5 writes that this rule is learned from the case of a half-brother's half-brother.
  19. ↑ Rav Chisda in Sanhedrin 28b, Shulchan Aruch CM 33:7
  20. ↑ Shulchan Aruch CM 33:6
  21. ↑ Shulchan Aruch CM 33:8
  22. ↑ Sama 33:5 and 33:16 holds that a wife's grandparent's are not considered relatives according to the Rambam. Bach 33:28 and Gra 33:23 agree. However, the Taz 33:8 argues that they are relatives. Darkei Moshe CM 33:7 and Bet Yosef CM 33:23 s.v. avi chamiv clearly hold like the Taz.
    • Tur CM 33:23 writes that a person is not a relative of one's wife's grandparents. However, Darkei Moshe and Bet Yosef disagree and emend the Tur, since one's wife's grandparents are a sheni brishon with one relationship through marriage (baal kishto), which the Tur 33:13-14 says is a relative. Also, Tur 33:28 says that a wife's grandchild are not relatives and in Tur 33:8 he says that a step-grandfather isn't a relative. Tur 33:28 implies that grandchildren's spouses are relatives. Bach 33:18 and 33:28 holds grandchildren's spouses are not relatives and rereads the Tur.
    • בן חורגו is not a relative. Pirush Hamishnayot of the Rambam (Sanhedrin 3:4), Aguda (Sanhedrin 28b), Riaz 3:9, Piskei Rid (Sanhedrin 28b), Raavan (Sanhedrin s.v. velu hen hakrovim), Rabbenu Yerucham (Meisharim 2:3), Knesset Hagedola 33:12 quoting Maharshal 80, Radvaz 3:588, Sama 33:15 according to Rambam, Erech Lechem 33:8, Levush 33:8, Taz 33:8, and Gra 33:23 all hold that a wife's grandchild is not a relative. However, Tur and Bet Yosef 33:5 imply it is a relative according to the Rambam. Rabbi Akiva Eiger (on Sama 33:15) writes that it is a relative. The Levush and Taz explain that even though this is a case of rishon bsheni it is permitted since a person isn't as emotionally connected to a wife's grandchildren from another marriage as he is to his wife's grandparents.
    • חתן בנו or כלת בנו is a relative. Tur 33:28 says a child's son-in-law is a relative. Raavan (b"b s.v. haya yodeh), Ravyah (responsa 1044 quoting R' Yehuda Bar R' Natan), Bet Yosef 33:5, and Taz 33:8 agree. However, Radvaz 3:588, Bach 33:18, and Gra 33:23 hold that even a grandchild's spouse is not a relative. Yerushalmi says that Moshe is not a relative of Pinchas's wife. Bach says that the Yerushalmi in its conclusion would have even permitted Aharon to Pinchas's wife. Gra emends the Yerushalmi to say Aharon instead of Moshe.
    • אבי חמיו is a relative. Darkei Moshe 33:7, Bet Yosef 33:20 and 33:23, Taz 33:8, Rabbi Akiva Eiger (on Sama 33:15), Netivot 33:8, and Tumim 33:5 all hold that a wife's grandfather is a relative. However, Radvaz 3:588, Bach 33:28, Gra 33:23, Sama 33:16 according to the Rambam, and Erech Lechem 33:8 hold that the Tur 33:23 who wrote that אבי חמיו is not a relative is correct. Ran Sanhedrin 27b, Riaz 3:9, and Piskei Rid (Sanhedrin 27b) all write that a wife's grandfather is not a relative. See Chavot Yair 17-18.
  23. ↑ Shulchan Aruch CM 33:9. The Sama 33:17 writes that even testifying about one's engaged wife's relatives is only permitted after the fact.
  24. ↑ Rama CM 33:9
  25. ↑ Shulchan Aruch CM 34:7, Halachos of Other People's Money pg. 79
  26. ↑ Shulchan Aruch CM 34:7, Halachos of Other People's Money pg. 79
  27. ↑ Halachos of Other People's Money pg. 80 based on Gemara Baba Metzia 4a (Shulchan Aruch 92:4), 5b (Sm"a 359:14) and 6a (Shulchan Aruch 92:3)
  28. ↑ Halachos of Other People's Money pg. 80 based on Radvaz 4:205, quoted by Rabbi Akiva Eiger Choshen Mishpat 34. see Halachos of Other People's Money pg. 80 note k that this must be what he believes sincerely, and not that he rationalizes his actions by saying that everybody does it
  29. ↑ Mishna Sanhedrin 24b. The Gemara explains that all of these fall under the category of theft because people who violate laws when it comes to money cannot be trusted in telling the truth in general.
  30. ↑ The gemara Sanhedrin 29a states that even according to the rabbanan who say that someone who loves or hates a litigant is valid as a witness is invalid as a judge and learn it from a pasuk. Shulchan Aruch CM 33:1 rule like the rabbanan. The Sama 33:1 explains that whereas for testimony we assume that someone who loves or hates the litigant won't lie in court and alter the facts he witnessed, the role of a judge involves much more subjective assessments which could be easily biased.
  31. ↑ Igrot Moshe EH 1:82 s.v. vamina. See Rambam Avadim 6:6
  32. ↑ Shulchan Aruch CM 32:1
  33. ↑ Bava Kama 55b, Shulchan Aruch CM 32:2
  34. ↑ Yabia Omer EH 10:32 s.v. amar hamechaber
  35. ↑ Yabia Omer EH 9:2:2 writes that someone who publicly violates Shabbat is an invalid witness since he violates a very serious prohibition. In Yabia Omer EH 8:5:7 he argues with Rav Aharon Volkin and Rav Uziel that today someone who desecrates Shabbat is valid since they don't realize that it is a serious sin.
  36. ↑ Radvaz 1:73 and 2:796 holds that the Karaites who don't follow Torah are invalid to be witnesses even though they were brought up with incorrect ideas. He quotes that the Mahari Bey Rav and Rav Shmuel Halevi agreed with him. Yabia Omer 8:12:2 quotes Maharshach 3:15, Maharikash (Ohelei Yakov 33), and Mabit 37 who agreed with the Radvaz. However, Rav Shlomo Gabizone (cited by Maharshach) and Rabbi Eliyahu Mizrachi 57 argued that they were kosher witnesses since they brought up with incorrect ideas. They are likened to a tinok she'nishba and considered an ones and as though they didn't sin. Radvaz argued that they're not tinok she'nishba since they had an opportunity to do teshuva and there were attempts to retrieve them in teshuva. Maharshach adds that even a tinok she'nishba should be invalid since he doesn't follow the Torah. Rav Moshe Feinstein (EH 1:82:11, 4:32:7) on his own accepts this second possibility that someone who isn't religious but was brought up with incorrect ideas is a tinok she'nishba but still an invalid witness. He says that they're comparable to non-Jews who don't follow the Torah and not acceptable as witnesses. Igrot Moshe EH 4:59 establishes that he's not a tinok she'nishba if he saw and knew about religious Jews and would be invalid. Shach YD 267:59 quotes the Radvaz. Even though Rama EH 4:37 seems to disagree with Radvaz, see Radvaz how he explains that it isn't a proof.
  37. ↑ Yabia Omer EH 8:3
  38. ↑ There is a discussion as to which type of relatives cannot serve as eidim. The psak is that although strictly speaking only a rishon be’rishon, a sheni be’sheni, or a shlishi beshlishi cannot serve as eidim, we are machmir that even a revi’i berevi’i should not serve as eidim. These terms describe how many generations removed the relation is. For example, a rishon berishon are siblings because their parents are one generation above them and are the cause of the relation between them. A sheni besheni are first cousins, because their grandparents are the common ancestor, who are the source of their relation. So we say that shlishi beshlishi is not permitted to be eidim together, which are three generations removed from the source of their relation, and we are machmir to not even allow revi’i berevi’i to be eidim together, which are four generations removed from the source of their relation. Even if someone married into the family and is not related by blood, they are still not permitted to serve as eidim for the chasan and kallah. See Wedding Questions] by Rabbi Aryeh Lebowitz
  39. ↑ Halachos of Other People's Money pg. 81, Hanisuin Kehilchatam pg. 234
Retrieved from "http://localhost:80/index.php?title=Kosher_Witnesses&oldid=31093"