Disqualification of Witnesses Who Have Vested Interests

  • Rav Moshe Taragin

The Torah iterates several individuals who cannot be accepted as witnesses in a Jewish court.  This list includes, amongst others relatives, minors, criminals, women, and Jewish kings.  Each of these examples is derived from a pasuk.  Yet in several places the gemara also invalidates a "nogei'a be-davar," someone who has a vested interest in the outcome of a case, from testifying; the gemara never elaborates the nature of his disqualification.  This week's shiur will examine the basic models suggested to explain his disqualification.


     The gemara in Bava Batra (44b-45a) claims that someone who sold a field to another cannot subsequently testify to his past ownership of that field when the current ownership of the field is challenged by a third party.  Seemingly, he has little to gain since he already sold the field to another and is only testifying so that his purchaser will retain those rights.  In fact, the gemara claims that even if he did not guarantee the sale (in which case he will not be obligated to compensate the purchaser if the sale if voided), he is still invalid as a nogei'a be-davar.  The gemara attributes his stake to the fact that he might have creditors who will seek collection of their loans.  In theory, if he were to default, his creditors could appropriate former lands of his which were subsequently sold.  If, however, the litigant who is challenging the sale succeeds in proving that the lands never belonged to the supposed seller and thereby extracts them from the purchaser, such creditors would have no recourse, and the seller would absolutely default on the loan.  As such he would fall within Tehillim's observation that "loveh rasha ve-lo yeshalem" - a wicked man borrows and does not repay (37:21).  Since he obviously wants to avoid such opprobrium, it is in his interest to support the purchaser and testify on his behalf.  He is therefore considered a nogei'a be-davar.


     The Ri mi-gash questions this gemara: Do we really suspect that a person would commit the grave sin of giving false testimony - and a Biblical prohibition, simply to avoid an immoral situation of defaulting on loans?  The Ri mi-gash supplies two answers to this question, each of which assumes a different understanding of the nogei'a be-davar rule.  His first answer assumes that such suspicions still indeed obtain.  Even though legally perjury is more severe than defaulting on a loan, the second "crime" carries social repercussions which the seller might be tempted to avoid.  No one will discover his perjury, while his default will soon be public knowledge.  Indeed, we do suspect him of LYING simply to avoid an absolute default. 


     The Ri mi-gash's second answer suggests that we do not harbor these suspicions and do not suggest that he will lie to avoid such default.  Yet he is still invalidated as a witness since the rule of nogei'a be-davar has little to do with our personal suspicions.  Instead nogei'a be-davar is a formal disqualification: if a person has a stake in the case he is legally considered to be a litigant himself and procedurally cannot testify.  Once we can trace him to some vested interest in the outcome, he is formally disqualified from continuing as an eid. 


     The Ri mi-gash then articulates the basic question surrounding nogei'a be-davar: Do we suspend him because we suspect he will lie, or do we unilaterally reject his testimony on formal grounds because we view him as a litigant and not a witness?


     This question spurs an additional debate in a parallel gemara in Bava Batra (43a).  The gemara allows a partner who has since withdrawn or sold his share to testify on behalf of his former partner.  Tosafot questions this rule based upon a gemara (Bava Batra 128a) which requires that a witness be qualified to testify both at the point at which he witnesses the testimony and, of course at the point at which he delivers his testimony.  This condition, known as "techilato ve-sofo be-kashrut," does not seem to be fulfilled in a case in which he was once a partner who later withdrew.  After all, he was once a nogei'a be-davar!!!


The Ra'avad (cited in the Rashba) responds that this rule of techilato ve-sofo be-kashrut would not apply to nogei'a be-davar since his disqualification is based upon suspicion of lying.  Once this suspicion is removed through the partner's withdrawal, we no longer harbor such suspicions, and he may testify.  The rule of techilato ve-sofo be-kashrut only refers to formal disqualifications such as a relative.  Only in regard to formal disqualifications, do we require a person to have been valid both at the point of witness and at the moment of testimony.  The Ra'avad clearly defines nogei'a be-davar as a case of suspect testimony. 


     The Ri mi-gash offers a different response.  As the partner was once a nogei'a be-davar, at that early stage he was not at all considered a witness.  As stated earlier, a nogei'a be-davar might be considered a litigant and not a witness at all.  The disqualification of techilato ve-sofo be-kashrut only applies to someone who was an invalid witness, such as a relative, at the initial stage (of seeing the event) but not to someone who was not a witness at all at the time, such as a nogei'a be-davar. 


     The Mishna la-Melekh (in his commentary to the Rambam Hilkhot Eidut 5:4) explores a related issue which might also revolve around the basis of the nogei'a be-davar's disqualification.  If a set of witnesses is formed and one of its members is subsequently discovered to be an invalid witness, the entire set of witnesses is suspended from this suit (nimtza echad meihem karov o pasul kol ha-eidut beteilah) see Makkot (6b).  What would occur if after joining a set of witnesses a person was disclosed as a nogei'a be-davar?  Would his presence affect the other witnesses who belong to that set? Presumably, this issue would be impacted by our previous discussion.  If a nogei'a be-davar is considered a "suspicious witness" then his membership in the set might indeed negatively affect the other members who belonged to this "rotten set."  If we treat him as a litigant, however, then by disclosing his interest we in fact determine that he never joined the set (since he was a litigant), and not a witness and we might not invalidate the remaining members of the set. 


     The gemara in Sanhedrin (23b) presents an additional scenario which should be assessed in light of our fundamental question.  A case is brought before a Beit Din in which the litigant arrives with two independent groups of witnesses, either of which can help prosecute the case.  Initially the defendant teams up with another person to disqualify one set of witnesses (set A).  His eidut is accepted for since another set of witnesses remains, and therefore he has no vested interest in the legitimacy, or lack thereof, of the first set.  Afterwards, though, the remaining set of witnesses (set B) becomes disqualified.  At this stage he really does have an interest in the continued invalidity of set A which he helped establish because set B has ceased to be a factor.  The gemara issues an ambiguous response: "Kevar hei'idu eidim ha-rishonim," – the first set has already testified.  Rashi provides two alternate readings of the gemara.  According to the first one, as the defendants testimony was already accepted when he was not officially a nogei'a be-davar, his testimony stands even though future events render him a nogei'a be-davar.  The second opinion in Rashi claims that once his interest emerges, his testimony is retroactively annulled because of his developed status as a nogei'a be-davar. 


     Possibly, Rashi is debating our very issue.  If our rejection of a nogei'a be-davar stems from the suspicion that he might lie, we might sustain testimony which was delivered without this suspicion, even though eventually he transforms into a nogei'a be-davar.  At the point of testimony, he had no vested interest and no cause to lie!! If, however, a nogei'a be-davar is considered a litigant and his disqualification is formal in nature, we might retroactively reject the testimony once his status as litigant is established.