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Beit Din and Dayanim: Difference between revisions
From Halachipedia
→Relatives
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# 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.<ref>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. </ref> | # 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.<ref>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. </ref> | ||
===Relatives=== | ===Relatives=== | ||
[[Image:Relatives.png|right|250px]] | |||
# The following relationships are considered first order relationships (rishon b'rishon): | # The following relationships are considered first order relationships (rishon b'rishon): | ||
## A sibling with another sibling, maternally or paternally or both | ## A sibling with another sibling, maternally or paternally or both | ||
## A parent and a child | ## A parent and a child<ref>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.</ref> | ||
## A husband and wife | ## A husband and wife | ||
# The following relationships are considered relationships between someone of one generation with someone one generation apart (rishon b'sheni): | # The following relationships are considered relationships between someone of one generation with someone one generation apart (rishon b'sheni): | ||
## A descendant of a sibling | ## A descendant of a sibling | ||
## A grandchild | ## A grandchild<ref>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.</ref> | ||
# The following relationships are considered second order relationships (sheni b'sheni): | # The following relationships are considered second order relationships (sheni b'sheni): | ||
## First cousins | ## First cousins | ||
# The following relationships are considered relationships between someone of one generation with someone two generations apart (rishon b'shelishi): | # The following relationships are considered relationships between someone of one generation with someone two generations apart (rishon b'shelishi): | ||
## A great grandchild | ## A great grandchild<ref>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.</ref> | ||
## A grandchild of sibling | ## A grandchild of sibling | ||
# The following relationships are considered relationships between someone of a second generation with someone one generation apart (sheni b'shelishi): | # The following relationships are considered relationships between someone of a second generation with someone one generation apart (sheni b'shelishi): | ||
## A cousin to a descendant of a cousin | ## A cousin to a descendant of a cousin i.e. first cousin once removed<ref>Rabbi Abba in Bava Batra 128a states that a sheni b'shelishi is permitted. This is codified by Shulchan Aruch CM 33:2</ref> | ||
# The following relationships are considered second order relationships (shelishi b'shelishi): | # The following relationships are considered second order relationships (shelishi b'shelishi): | ||
## Second cousins | ## Second cousins | ||
# 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<ref>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. </ref>, and the sixth category certainly isn't a relative. <ref>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.</ref> | # 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<ref>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. </ref>, and the sixth category certainly isn't a relative. <ref>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.</ref> | ||
# 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.<ref>Shulchan Aruch CM 33:2</ref> | |||
# 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.<ref>Gemara Sanhedrin 28b, Shulchan Aruch CM 33:3</ref> 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.<ref>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.</ref> | # 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.<ref>Gemara Sanhedrin 28b, Shulchan Aruch CM 33:3</ref> 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.<ref>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.</ref> | ||
# The first two categories are disqualified even if it involves going through two marriages.<ref>Shulchan Aruch CM 33:4</ref> Some say that the second category is permitted if it goes through two marriages.<ref>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.</ref> The third category is permitted if it goes through two marriages.<ref>Shulchan Aruch CM 33:4</ref> Initially this should be avoided for witnesses signing a document.<ref>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.</ref> | # The first two categories are disqualified even if it involves going through two marriages.<ref>Shulchan Aruch CM 33:4</ref> Some say that the second category is permitted if it goes through two marriages.<ref>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.</ref> The third category is permitted if it goes through two marriages.<ref>Shulchan Aruch CM 33:4</ref> Initially this should be avoided for witnesses signing a document.<ref>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.</ref> | ||
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## Another example is the father of man and a father of a woman whose children are married (mechutanim) and aren't considered relatives.<ref>Shulchan Aruch CM 33:6</ref> | ## Another example is the father of man and a father of a woman whose children are married (mechutanim) and aren't considered relatives.<ref>Shulchan Aruch CM 33:6</ref> | ||
# 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. <ref>Shulchan Aruch CM 33:8</ref> There is a dispute about one's wife's grandparents is they are considered relatives for testimony. <ref>Sama 33:16 holds that are not relatives. Gra 33:23 agrees. However, the Taz 33:8 argues that they are relatives. See the Darkei Moshe CM 33:7 and Bet Yosef CM 33 s.v. avi chamiv who clearly imply that they hold like the Taz.</ref> | # 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. <ref>Shulchan Aruch CM 33:8</ref> There is a dispute about one's wife's grandparents is they are considered relatives for testimony. <ref>Sama 33:16 holds that are not relatives. Gra 33:23 agrees. However, the Taz 33:8 argues that they are relatives. See the Darkei Moshe CM 33:7 and Bet Yosef CM 33 s.v. avi chamiv who clearly imply that they hold like the Taz.</ref> | ||
# A person may not testify about his wife once they are halachically engaged but he still may testify about her relatives.<ref>Shulchan Aruch CM 33:9. The Sama 33:17 writes that even | # A person may not testify about his wife once they are halachically engaged but he still may testify about her relatives.<ref>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.</ref> 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.<ref>Rama CM 33:9</ref> | ||
==Related Pages== | ==Related Pages== | ||
