Hoda'at Ba'al Din
Please daven for a refua sheleima for YHE alumnus
Rav Daniel ben Miriam Chaya Rut
This week’s shiurim are dedicated in memory of Israel Koschitzky zt"l, whose yahrzeit falls on the 19th of Kislev.
May the worldwide dissemination of Torah through the VBM be a fitting tribute to a man whose lifetime achievements
exemplified the love of Eretz Yisrael and Torat Yisrael.
1. Bava Metzia daf 3b "u-mai kal ve-chomer ... tomar be-eidim she-yeishnan be-hakchasha ve-hazama." Rashi
2. Tosefta Bava Metzia 1:6 "Hoda'at...," Kiddushin 65b "Amar lei R. Ashi le-Rav Kahan, ma da'atakh ... hakha chayav le-achrini." Rashi s.v. Hoda'at
3. Ketzot 34:4.
4. Bava Batra 33a "Kerivei de-Rav Idi bar Avin shakhiv ... keivan de-odi odi."
Rashbam s.v. Odi; "Ze she-amar she-hoda... u-piv mechayvo mammon."
1. What is the relative strength of hoda'at ba'al din as evidenced in our sugya and what are its boundaries?
2. What is the source of this halakha?
3. What is its scope?
4. What is the nature of the din?
1. How does hoda'at ba'al din work?
Our sugya (daf 3b) deals with the relationship between hoda'at ba'al din (the admission of the defendant) and testimony of witnesses. The gemara quotes the Tosefta (1:6) that one's admission is the legal equivalent of a hundred witnesses. We will first examine the status of hoda'at ba'al din in and of itself and then discuss its application to our sugya.
Rashi (Kiddushin 65b s.v. Hoda'at) identifies the source in the Torah for hoda'at ba'al din (Shemot 22:8): "For any matter of negligence, whether for an ox, a sheep, a garment or anything that has been lost OF WHICH ONE CAN SAY (admits) - THIS IS IT - the cause of both parties shall come before the judges..." We see that beit din does relate to the defendant's incriminating confession and, on its strength alone, may exact payment from him.
There is a dispute, however, between the Acharonim as to the nature of hoda'at ba'al din:
1. NE'EMANUT - Belief
The most forthright approach to the halakha of hoda'at ba'al din is ne'emanut. We believe the confession of the defendant. Although the evidence of a litigant is inadmissible, since he is intimately involved in the case, we can assume his confession is accurate, though we tend to doubt any statement made to support his position.
2.. HITCHAYVUT - Voluntary Obligation
According to the Mahari ben Lev (Siman 32; also quoted in the Ketzot 34:4) the defendant is NOT believed that he owes money. Rather, he VOLUNTARILY OBLIGATES himself to pay the plaintiff - just as one might obligate himself to give a gift to another.
He cites the following proof: One who is partial to the legal proceedings being conducted (nogei'a be-davar) is unfit to give testimony either because we do not trust him to be honest, or simply because he is categorized as one related to one of the litigants. The litigant who admits, is most certainly a nogei'a be-davar. Therefore, believing his admission makes sense if a nogei'a be-davar is disqualified because he is not trusted. After all, there is no concern that he may be lying as he testifies to his own detriment. However if a nogei'a be-davar is disqualified because he is considered a relative, the disqualification of a relative is categorical. To paraphrase the words of the gemara (Bava Batra 159a) even Moshe and Aharon - whom we do not suspect of lying - are unfit to testify about each other. Therefore, it makes no difference whether the purpose of the testimony is to incriminate or exonerate. Since a person is his own closest relative - his declaration should not be believed at all by beit din. Thus, we must conclude that indeed, we do not relate to his statement as a testimony to his guilt. Rather, we require him to pay since he has voluntarily OBLIGATED himself to do so.
The Ketzot rejects the approach of the Mahari ben Lev attacking him on several counts:
1. Shavuot 41b - A recalcitrant borrower is required to repay a loan which he denies ever having taken, if the lender can bring witnesses that the loan did in fact take place. Even though a borrower is usually believed that he has repaid his debt, in this case he himself implicitly admits that he has not paid by arguing that the loan never took place (kol ha-omer lo laviti ke-omer lo par'ati dami). Based on this implied admission, he is obligated to pay even if witnesses testified that he paid the loan. It is clear that in this case the borrower is not voluntarily obligating himself to give a "gift" to the lender as he insists that he does not owe anything. Nevertheless, he is still liable to pay on the basis of his implied admission (that he has not repaid). Therefore, we are forced to conclude that mechanics of hoda'ah is that beit din BELIEVES the admission.
2. Ketubot 101b - In order for one's verbal obligation to be binding, he is required to formally appoint witnesses ("atem eidai") before obligating himself (CM 40:1). It is clear, however, that one who admits does NOT have to do so (CM 81:8) and thus, the liability incurred cannot be based on voluntary obligation. Rather, it must be that beit din BELIEVES the defendant.
3. One who admits to part of the claim is obligated to take a shevu'a that he does not owe the rest (modeh be-miktzat). This law seems absurd if we accept the premise that hoda'at ba'al din is based on hitchayvut. According to the approach of the Mahari ben Lev, the defendant fully denies the entire claim but offers to give the plaintiff a gift, unrelated to the legal battle that is being waged. The concept of modeh be-miktzat makes sense only if we BELIEVE the defendant that he owes part of the claim. [It is possible to refute this attack based on an alternate explanation of the mechanics of modeh be-miktzat. However, this goes beyond the scope of this shiur.]
To summarize, according to the Mahari ben Lev, hoda'at ba'al din is based on hitchayvut; whereas according to the Ketzot, it is based on ne'emanut.
The approach of the Ketzot is further strengthened by Rashi (quoted above) who identifies a pasuk in the Torah as the source for the halakha of hoda'at ba'al din: If the Mahari ben Lev is correct, why is it necessary for the Torah to tell us this halakha - we know that one can voluntarily obligate himself - even outside the context of litigation. We must, therefore, conclude that the Torah is teaching us a novel halakha – the confession of a person is believed regarding his own affairs, despite the fact that he is not impartial to the proceedings.
In addition, the ketzot attacks the Mehari Ben Lev based on our sugya: According to R. Chiya, one would be required to take the shevu'a of a modeh be-miktzat in the event that he denies the entire claim but witnesses testify that he indeed owes PART of it. This is based on a kal va-chomer - if one can obligate himself to swear by his OWN admission (i.e., the regular case of modeh be-miktzat) surely witnesses can cause him to take a shevu'a. For it is inconceivable that one's own admission (hoda'at piv) should be more powerful than the testimony of witnesses (ha'adat eidim). The gemara ultimately points out that, contrary to R. Chiya's position, hoda'at piv is more powerful than ha'adat eidim for two reasons:
1. One's own admission is not neutralized by contradictory testimony of witnesses (hakchasha) - and he is still required to pay - whereas testimony of two witnesses is neutralized under such circumstances.
2. One's own admission is not at all affected by witnesses who testify that he must be lying as he was somewhere else at the time he claims the transaction took place (hazama). The testimony of two witnesses, however, is thrown out of court (and the witnesses are suitably punished) under the same circumstances.
The Ketzot observes that the gemara's logic is absurd if hoda'at ba'al din is based on hitchayvut. The concepts of hakchasha and hazama clearly apply only to eidut and, thus, we must explain that we actually believe the litigant - to the extent that his testimony cannot be overturned even by two witnesses.
2. Nafka Minot
I. MI-KAN U-LEHABA vs. LE-MAFREI'A
The Rogetchover (Tzofnat Pa'aneach, Na'ara 1:1) claims that the argument between the Mahari ben Lev and the Ketzot is in actuality a machloket Amoraim. The gemara (Bava Batra 33a) records the following case: A relative of R. Idi bar Avin passed away leaving an inheritance of a date palm which was consequently seized by another member of the family even though R. Idi claimed to be first in the line of succession. The usurper maintained to be the rightful heir, and it was only after some time that he admitted that in fact R. Idi deserved the date-palm. Accordingly, R. Chisda ruled that R. Idi should be instated as the rightful successor. However, despite R. Idi's appeal, he refused to award him with payment for all the fruit that had been produced during the time that the usurper had possession of the date-palm. The gemara continues, though, that Abaye and Rava disagree with R. Chisda's ruling and are of the opinion that, in such a case, complete restitution should be made.
From a close reading of the Rashbam (s.v. A-man ka-Samikh) it is evident that R. Chisda regards one's admission as hitchayvut. The usurper agreed to give R. Idi a gift, which takes effect at the time of the admission. . According to Abaye and Rava, however (s.v. Ve-Abaye ve-Rava savri), hoda'at ba'al din is based on ne'emanut. Since we believe the usurper that the date-palm belongs rightfully to R. Idi as the rightful heir, he should be awarded all the produce from the time of the inheritance.
II. CONTRADICTING KNOWN FACT
Rabbeinu Tam applies the rule of hoda'at ba'al din, even though we know that he is lying. Clearly we can not believe the admission in this case. Apparently, Rabbeinu Tam adopts the approach that hoda'ah is rooted in hitchayvut. (See Tosafot Ketubot 54b s.v. Af al piý.)
3. The Shaklya V'tarya of our Sugya
The Rogetchover sides with the Ketzot but explains that according to the hava amina of our gemara, hoda'at ba'al din is based on hitchayvut. It is only after this initial assumption is attacked that the gemara concludes that hoda'at ba'al din is based on ne'emanut: At first the gemara compares hoda'at piv with ha'adat eidim and states that if one's own admission obligates him to take a shevu'a, even though it does not obligate him to pay, kal va-chomer, testimony of witnesses which does obligate him to pay should obligate him to take a shevu'a as well. The gemara then objects to this kal va-chomer citing the principle that "hoda'at ba'al din ke-mei'a eidim dami" (ie. one can obligate oneself to pay) and answers that we are referring to kenas (monetary penalties) which one cannot be liable for on the basis of his own admission - only eidim can obligate one to pay. Note that initially the gemara stated that admission does not obligate one to pay! Is it possible that for a moment the gemara could entertain the notion (even as a hava amina) that one is unable to obligate oneself to pay?
The Rogetchover explains that according to the hava amina, one's admission cannot be believed to obligate one to pay. At this stage the gemara understands that hoda'ah functions as hitchayvut. The gemara then reponds that "hoda'at ba'al din ke-mei'a eidim dami" in other words; hoda'ah works along the same lines as witnesses - ne'emanut.
A comprehensive analysis of the entire discussion of the gemara regarding the kal vachomer, is worthwhile, but goes beyond the parameters of this shiur. Nonetheless, it was worth noting the point in the sugya, when the gemara tries to prove from korban that hoda'at piv is stronger than ha'adat eidim - one can obligate oneself to bring a korban by admitting guilt; whereas testimony of witnesses as to one's disobedience does not have the same affect. It is clear from this argument that hoda'at piv is based on ne'emanut as one is not able to voluntarily obligate oneself to bring a korban Chatat or Asham.
The machloket between the Mahari ben Lev and the Ketzot corresponds to an interesting linguistical point.: The Tosefta use the term "hoda'at ba'al din KE-mei'a eimim dami - one's own admission is LIKE the testimony of a hundred witnesses." The expression "ke" is somewhat ambiguous. How far does the comparison between hoda'at ba'al din and hada'at eidim extend? It is possible that "ke" is merely a simile and does NOT imply a complete comparison - hoda'at piv has the same RESULT as ha'adat eidim but it works through a different process (Mahari ben Lev). One could argue, however, that "ke" involves a complete identification between hoda'at ba'al din and hada'at eidim - both are based on the acceptance of testimony as truth (Ketzot). [A similar dilemma is faced whenever the gemara compares two phenomena, e.g., davar ha-gorem le-mammon KE-mammon dami, shomei'a KE-oneh, mehalekh KE-omed and countless other examples.]
4. Additional Models
The Tashbetz offers a novel approach to the understanding of the nature of hoda'at ba'al din: We BELIEVE the defendant as he has a migu - had he so desired, he could have given the money as a GIFT to the plaintiff. Thus, we should believe his admission..
The Ketzot raises this possibility, but subsequently rejects it. He argues that we see from our sugya that one's own admission is accepted even in the face of contradictory testimony by witnesses. However, we rule that a migu is insufficient to overcome contradictory testimony (migu bimkom eidim LO amrinan).
According to the Tashbetz, we can thus understand why hoda'at ba'al din triumphs over ha'adat eidim (when the two contradict each other). The Mahari ben Lev can also explain this phenomena relatively easily - since the defendant is voluntarily obligating himself to pay - it matters little what anyone else has to say about the matter. The Ketzot, however, who bases hoda'at ba'al din on NE'EMANUT is faced with a problem; why is the litigant believed more than witnesses? We must explain, based on Rashi, that there is a gezeirat ha-katuv that we believe the defendant even when he is contradicted by two witnesses.
Terumat Ha-Kri (1:1) offers the following suggestion - Although we do not really believe the defendant's admission, nevertheless, since he is convinced that he OWES money, we compel him to re-pay. [This is similar to the din of "shavya nafshei chatkha de-issura" where one testifies, for example that a certain woman is forbidden to him as he married her daughter. Although we do not believe him, we act as if we do with regards to him. Thus, he is prohibited from having relations with this woman. It should be noted that the Ketzot rejects this approach and claims that we actually believe him - just as in the case of hoda'at ba'al din.] Even when one's admission is contradicted by the testimony of witnesses, we treat him on the basis of what he has claimed.
Returning to the two basic understandings; ne'emanut and hitchayvut, it is possible to adopt a complex approach. Accordingly, hoda'at ba'al din can work in either way, depending on the specific situation. In some cases it may function only as hitchayvut (i.e. when contradicting fact). In other cases only ne'emanut may be employed (i.e. to create the obligation to bring a korban). Some Achronim adopted variations of this complex approach:
1. Pnei Yehoshu'a (Ketubot 102b s.v. ve-Rabbeinu Tam Mefaresh) - Hoda'at ba'al din works on the basis of ne'emanut if the admission is made before BEIT DIN (as in the pasuk) but on the basis of hitchayvut if made merely in front of witnesses.
2. Divrei Chaim (Bava Metzia daf 3) - When the defendant admits as a response to the claim of the plaintiff, we accept his words on the basis of ne'emanut. However, when he admits without the plaintiff claiming anything from him, we accept his words on the basis of hitchayvut.
Sources and questions for the next shiur:
- דף ג. "מאי שלא תהא ... שישנן בהכחשה והזמה".
- רש"י ד"ה דליכא למימר הכי, חי' הרמב"ן ד"ה אבל עדים.
- ב"ק דף עה. "איתמר מודה בקנס ... חייב".
- משנה כריתות יא: עד מזיד הייתי פטור", תוס' ב"מ ד"ה מה לפיו, מה אם ירצה, רמב"ן ד"ה מה לפיו, מה אם ירצה.
- תוס' ד"ה אשם, רמב"ן ד"ה אלא מה לפיו.
1. What does the Gemara mean when it says: "Aval be-eidim de-leka lemeimar hakhi" ("But as regards the testimony of witnesses, where this argument does not apply"), according to Rashi? According to the Ramban? What is the difficulty with Rashi's explanation?
2. In the previous shiur, we cited the position of Mahari ben Lev that the law that a litigant's admission of a debt is binding is based on the idea that a person can accept upon himself a monetary obligation. How can we explain our sugya according to this approach?
3. What is the foundation of the dispute in Bava Kama regarding one who admits liability to a fine, and then witnesses appear? According to which position can we understand the proof in our sugya that witnesses are stronger than admission?
4. What are the two understandings of the opinion of the Sages in Keritut? According to which opinion is it easier to understand our sugya?