The authority of a father to testify about the identity of his child

  • Rav Moshe Taragin

 

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Dedicated by the Wise and Etshalom families
in memory of Rabbi Aaron M. Wise, whose yahrzeit is 21 Tammuz.
Y'hi Zikhro Barukh.

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In loving memory of Fred Stone, Ya'acov Ben Yitzchak, A”H

beloved father and grandfather, by Ellen and Stanley Stone and their children Jake and Chaya, Zack and Yael, Ezra, Yoni, Eliana and Gabi.

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Money-related testimony can usually only be accepted if supplied by two witnesses. However, the Torah empowers a father to independently testify about the identity of his firstborn son, thereby enabling him to receive a double portion of the inheritance. By mandating that a father “yakir” or recognize his legitimate firstborn (as opposed to awarding that title to an impostor son), the Torah also AUTHORIZES a father to testify independently about his firstborn’s status. The father is thus one of the exceptions to the general rule –a lone individual who is trusted even without a second witness. Halakha awards a father similar abilities to testify about his daughter’s betrothal (et biti natati le-ish ha-zeh), and one witness is also believed to testify about a sota woman that she indeed committed adultery (thereby “sparing” her from the drinking ceremony but condemning her to death).

 

In truth, the extent of the father's reliability is debated between R. Yehuda and the Rabbanan. According to the Rabbanan, the father is only believed in the absence of ANY information. Accordingly, his status is not noteworthy. However, according to R. Yehuda (and in this instance, Halakha adopts his minority opinion), a father is believed to ALTER the conventional assumptions. According to R. Yehuda, the father is strongly empowered and this empowerment must be analyzed.

 

The most immediate question concerns the halakhic status of the father. Being that he testifies alone, he presumably does not attain the status of eidim. Presumably, he is BELIEVED because the information he possesses is private and difficult to be gathered by actual eidim. Hence, the Torah endows him with “ne'emanut,” which allows us to proceed even without ACTUAL testimony of EIDIM. The gemara in Kiddushin (73b-74a) lists two other individuals who are empowered to determine the identity of a baby – the midwife and the mother. The Tosafot Ha-Rosh claims that the validity of these latter two individuals is derived from the special status of the father. All three share the same advantage- they alone are generally privy to information which others are not. Hence they are RELIED upon even in the absence of classic EIDUT.

 

However, a gemara in Yevamot (47a) implies a very different view of this halakha. The gemara presents the case of a convert who disqualifies his own conversion and wants to similarly testify about his son. R. Nachman bar Yitzchak disqualifies the testimony about the son since the man has already disqualified his prior conversion, rendering himself a gentile, who is disqualified to serve as an eid. This newly confessed gentile cannot TESTIFY about his son. But who mentioned anything about testimony? A father’s statements about his son are accepted and actionable in the ABSENCE of eidut. Evidently, R. Nachman bar Yitzchak maintains that once the father is believed, he is afforded a status of eidut – even though he is only one person! He is not merely BELIEVED, but his statements are considered EIDUT. There are obviously many halakhot that would result from classifying the father’s statements about his son not merely as acceptable, but as authentic halakhic eidut.

 

Firstly if the father’s statement is considered “eidut,” we may expect the father’s testimony to defeat ACTUAL eidut. It is clear that according to R. Yehuda, a father’s testimony defeats conventional knowledge or chazaka. Even though we ASSUMED that one son was the bekhor, the father is believed to reject that assumption and reset our perspective.  Would a father be believed even if eidim have already provided information? The Rashbam in Bava Batra (128b) claims that he is not, while the Rambam describes a case in which the father is trusted even in the presence of eidim. The Ramban’s case does not entail a DIRECT contradiction between eidim and the father; the eidim had testified that a person was a bekhor and the father – in assigning a different person as HIS bekhor – merely claims that the eidim-recognized bekhor is probably the firstborn of ANOTHER man. Hence, the father does not directly refute the eidim, but he still offers his statements AFTER eidim have already testified, something the Rashbam would probably not allow.

 

The Mishnah Le-Melekh in Hilkhot Nachalot 2:14 cites opinions that claim that a father is believed to actually contradict eidim. If the eidim claim that a son is the bekhor, the father is believed even to contradict them, assigning a different child as bekhor and rejecting ANY bekhor status to the eidim-appointed bekhor. Certainly, this opinion cited by the Mishnah Le-Melech, as well as the Ramban, viewed the father’s strength as equivalent to eidut. As a Torah qualified eid, the father is allowed to testify in the presence of eidim and even contradict them. According to the Rashbam, perhaps the father does not achieve a status of eid and is only believed if eidim have not offered their testimony.

 

A second issue surrounds the rule of keivan she-higid. Is a father believed if he recants or changes his testimony. Typically, eidim have ONE opportunity to testify. Any further attempt is blunted by the rule of keivan she-higgid shuv eino chozer u-maggid (once they have testified that cannot longer offer a second testimony). Would a father enjoy a second chance to alter his testimony? The Ramban claims (perhaps true to form) that he WOULD be impeded from a second testimony based on keivan she-higgid concerns. Those who deny the father a status of eid may not apply keivan she-higgid issue to his testimony.

 

Interestingly, the Rashbam ALSO mentions keivan she-higgid, complicating his position. On the one hand, he does not empower the father to be believed in the presence of eidim, suggesting that the father DOES NOT achieve a status of an eid. But by acknowledging keivan she-higgid concerns, he implies that a father DOES enjoy eid-like status.

 

In truth, the gemara may present the father as someone who is uninhibited by keivan she’higgid. The gemara (126b) only allows a father to recant his testimony if he JUSTIFIES his initial comments (which he now claims were false). For example, if he initially claims that a person is his son and later recants to designate him as his slave, he is only believed if he can explain – through a justification known as amatlah – his initial misleading statements. If his first statements were voiced near a tax collector, the father may claim that he initially referred to him as a “son” to avoid unfair taxation upon slaves. By offering this amatlah the father justifies his original misleading statement and is now believed to offer his authentic testimony. The ability to recant statements by offering a simple amatlah may itself prove that a father is NOT considered an eid and is NOT hampered by formal kivan she’higgid concerns; he must only EXPLAIN his initial deceit so that we trust his veracity and can accept his final statements as true. If the father WERE considered a halakhic eid, perhaps amatlah reversal would be insufficient.

 

Some (see Shev Shmayta 6:8) infer a different conclusion: They assume that a father is DEFINITELY an eid and if he can employ amatlah to facilitate reversal, then others who also are considered eidim may retreat by offering an amatlah as well.

 

The question of the father’s status emerges within an interesting dispute between the Ramban and his disciples regarding employing a migu on behalf of the father’s recantation. As stated above, if a father explains his initial deception, he is believed to recant and offer contradictory testimony. The RIshonim question the NEED for an amatlah. After all, he should be believed to recant his testimony since this is a case of “migu.” For example, in a situation in which he aims to recant his testimony that the person is his “slave” and instead wants to designate him as his son and rightful inheritor, he possesses an alternative approach toward achieving THAT VERY goal: he could unilaterally transfer all his holdings through kinyan and thereby achieve the same result.

 

The Ramban accepts the premise but disqualifies the migu on unrelated grounds (see http://vbm-torah.org/archive/metho-by-topic/bava-batra.html, shiur #16, which discusses the Ramban’s theory about a migu le-chatzi ta’ana). By contrast, the Ritva validates the integrity of the migu but questions its relevance. Migu can be used by a litigant against his adversary; it cannot be employed by a father seeking to recant his prior statement authorized by yakir. Although the Ritva does not actually articulate this, it is feasible that since the father’s initial statements were afforded EIDUT status, they cannot be undone through migu, which is a tool for disputants and not for eidim. This further complicates the Ramban’s position. As stated earlier, he trusts the father even in the presence of eidim and applies keivan she’higgid concerns to the father, suggesting that the father enjoys a status similar to EIDIM. However, by theoretically allowing a healthy migu to empower the father’s recantation, he may be denying the father a status of eid.

 

A final question concerns an issue the Ritva raises. The gemara extends the father’s authority beyond merely assigning the bekhor to receive a double portion of inheritance. A father is also believed to impugn his son’s pedigree by admitting that the child is a mamzer or ben gerusha. The exact SOURCE and LOGIC of this rule aside, the Ritva questions his ABILITY. By admitting that his child is the product of an illicit relationship, he is incriminating himself, and the rule of ein adam meisim Atzmo rasha disallows self-incriminating eidut. The Ritva’s first answer assumes that the case describes a situation without self-incrimination – for example, the father testifies that the child was produced by a shogeg illicit relationship. The son remains non-pedigreed, but that father/witness has not self-incriminated. However, the second answer of the Ritva claims that the concern of self-incrimination would not apply to the father’s special authority.

 

Perhaps the two different answers of the Ritva are disagreeing precisely about the nature of the father’s yakir authority. If he indeed is considered a witness, he would be plagued by the problem of self-incrimination. Assuming this problem, in his first answer, the Ritva was forced to assume that the situation was one absent of self-incrimination (he engaged in a shogeg relationship). However, the second answer of the Riva denies the status of eidut and therefore is not concerned by the rule against eidim self-incriminating.