Hoda'at Ba'al Din

  • Rav Moshe Taragin

            Typically, legal disputes are decided by testimony provided by eidim (witnesses).  Yet Halakha does allow for an alternate form of testimony.  If a litigant unilaterally confesses, we treat his confession as valid testimony and award his opponent.  This principle is known as hoda'at ba'al din ke-meiah eidim dami - self confession is as powerful as witnesses.  This shiur will analyze the mechanism by which hoda'at ba'al din operates. 




            Conventionally, we might assume that a self-confession is treated as real TESTIMONY whose accuracy is unquestioned.  In fact, this would be the literal reading of the phrase "a hoda'at ba'al din is equivalent to a hundred witnesses."  This is based on the assumption that a litigant would not lie in order to incriminate himself and therefore he must be telling the truth.


            This would also seem to be the sentiment of a gemara in Bava Metzia (3a) in which Rav Chiya expands the scope of a shevuat modeh be-miktzat. If a defendant confesses only to part of the plaintiff's claim, he must pay that portion and swear that he does not owe the remainder which he denied.  This shevua - known as modeh be-miktzat - is one of three Biblical shevuot.  Rav Chiya suggests that if EIDIM were to independently verify part of the claim the same law would apply: the defendant would pay the part to which eidim attested (obviously, since there are eidim) and swear on the remainder of the claim which the defendant denied.  This latter clause is less than obvious since the official shevua is stipulated only in conditions of partial CONFESSION.  By functionally equating confession and eidim and consequently applying the shevua of partial confession to a case of partial testimony, Rav Chiya may be affirming that hoda'at ba'al din is effectively a form of testimony.  Why would the litigant lie in a self-incriminating fashion?  Confident in the veracity of his statement we accept it as testimony. 


            Rashi in Kiddushin (65b) actually derives the concept of hoda'at ba'al din from a pasuk (one which describes the mechanics of the modeh b'miktzat shevuah) and some believe that this indicates its function as a form of testimony. 




            There is a dissenting opinion which does not define hoda'at baal din as a form of testimony and that the efficacy is not based upon our actually BELIEVING the litigant's confession.  We cannot believe anything a litigant says since he is formally invalid to testify (even if we do not doubt his veracity).  Instead, a confession OBLIGATES the litigant to fulfill his own statement even though we may not BELIEVE him.  By confessing in public he is effectively creating a new obligation, rather than authenticating the prior existence of a debt.  This mechanism – known as hitchaivut - is proposed by the Maharin Lev (cited by the Ketzot Hachoshen 34:4) and is also asserted by the Pnei Yehoshua in his comments to Ketuvot (102a). 


            One indication that hoda'at ba'al din may not be an accepted testimony but an independent generator of a new debt, may be its supremacy to eidim.  If a litigant confesses, he is forced to pay - even if eidim contradict his confession and support his original position!  Typically one set of witnesses may not defeat an opposing set.  When their testimonies clash, a situation of impasse ("trei u-trei") emerges and neither testimony is adopted.  Yet hoda'at ba'al din may defeat opposing testimony.  If, indeed, hoda'at ba'al din were a form or testimony it should not overcome eidut!  Evidently, its strength rests, not in its believability but rather in its capacity as an independent generator of a debt.  We do not actually BELIEVE the litigant against opposing eidut (since we cannot) but once he confesses to a previous debt, he triggers a NEW OBLIGATION to pay money.  The very act of confessing is a manner of self-creating an obligation.




            An interesting question surrounds the scope of hoda'at ba'al din effectiveness.  The gemara in the third perek of Kiddushin lists situations in which a man marries a woman conditionally.  Some of the conditions surround his financial viability.  For example he may announce "I am marrying you on the condition that Reuven owes me a sum of money."  This condition is reasonable since it affords the woman a hint of financial security (which may factor into her decision to accede).  The Beit Shemuel in his commentary to Even Ha'ezer 38:31 relates to this case.  For this marriage to be valid the debt must exist at the time of marriage 'realization.'  What would happen if Reuven subsequently confessed to this debt?  Even though hoda'at ba'al din would obligate Reuven monetarily, the legal status of the marriage would fail.  We have no indication that Reuven owed money at the moment of the marriage only that he CURRENTLY owes him money, from the moment of confession.  Many argue against this position (see for example the Chelkat Mechokeik 38:22) asserting that once confession occurs we definitely know – even retrospectively - that the debt existed, thereby validating the marriage and its condition.  Undoubtedly, the Beit Shemuel believed that confession does NOT establish empirical knowledge but simply creates a new obligation.  We have no knowledge as to the existence of a debt at the moment of the marriage realization and therefore cannot corroborate the condition nor validate the marriage. 


            Perhaps this issue sits at the heart of an interesting dispute cited by the gemara in Bava Batra (33a).  Two litigants disputed land which belonged to a deceased person with each litigant claiming to be the rightful heir.  Facing this insoluble dispute beit din allowed either litigant to seize the land and begin using it.  Subsequently, one party confessed that the other party (named Rav Idi) was indeed the rightful inheritor.  Beit din immediately returned the land to Rav Idi since the confession of his counterpart tilted the case in Rav Idi's favor.  Abaye and Rava believed that in addition to returning the land, the confessor should also repay all the fruit he may have illegally eaten from the land prior to his confession.  Indeed this position makes eminent sense since, having heard his confession, we can firmly and unquestioningly establish Rav Idi as the rightful inheritor.  The fruits which the confessor had eaten were 'stolen' and should be repaid.  Astonishingly, Rav Chisda claimed that the confessor must return the land but does not have to repatriate the fruits.  If we believe that the land belonged to Rav Idi why not force his disputant to repay fruits which he illegally ate – based on his own confession?!


            In defending this peculiar opinion of Rav Chisda, the Rashbam claims that we do not actually BELIEVE the confessor that Rav Idi is the rightful owner.  If this were true then, indeed, the stolen fruits must be returned.  However the hoda'at ba'al din of Rav Idi's counterpart consists of a "gift" - he has generated an INDEPENDENT OBLIGATION to deliver that land to Rav Idi.  Since we do not actually know who owns the land we cannot force the confessor to repay the fruits, but we can force him to surrender the land to Rav Idi, based on his admission.  Presumably, Rava and Abaye, by obligating payment of fruits, view hoda'at ba'al din as a form of testimony, while Rav Chisda, by excusing payment of fruits, views it as hitchaivut.