Testimony Offered in Separate Installments

  • Rav Moshe Taragin

The requirements for testimony in monetary cases are not as formal as those governing capital cases. This is understandable; dinei nefashot entail weighty verdicts and must therefore be based on testimony that is both factually accurate and formally solid. With regard to capital punishment, the Torah directs, “ve-hitzilu ha-eida,” which implies an inclination to acquit and a consequently general stiffening of standards for testimony in dinei nefashot.


In these shiurim, we will explore three different but possibly related leniencies allowing unconventional testimony in cases of dinei mamonot. Each leniency may have an independent logic; alternatively, they may all stem from a similar reality about the role of testimony and witnesses in monetary situations.


The first leniency surrounds the delivery of testimony. Monetary cases – similar to capital ones – require a minimum of two witnesses. Must the two testify jointly, or can they offer their testimony in separate installments? This issue was debated between the Chakhamim and R. Natan cited in several gemarot in Shas (Ketuvot 26b; Sanhedrin 30b), with the latter surprisingly allowing independent installments; witness A can testify on Sunday and witness B can testify on Monday. The testimony of a lone witness is insufficient for monetary verdicts and can only obligate a shevua (an oath) from the defendant. If two witnesses testify independently, why aren’t their testimonies considered independent oath obligating testimonies relevant for obligating actual monetary verdicts? How can the testimony of one witness, which obligates an oath, be reconfigured and combined with that of another witness, who also only obligates an oath, to create monetary obligations? This is indeed the position of the Chakhamim, who reject the possibility of two witnesses testifying at two different times. What is R. Natan’s logic in allowing this leniency?


One possibility is that R. Natan asserts that oaths and monetary obligations are not legally different. An oath is not simply a court-compelled mandate to verify claims (beirur), but rather entails a mini-obligation (chov) to the plaintiff. If TWO witnesses support the claim of the tovei’a (plaintiff), the defendant must render actualpayment. If only ONE witness supports the claim of the tovei’a, the defendant must render an oath to assure the TOVEI’A that he owes no money and thereby mollify his concerns.


Viewing an oath as a chov or alternative form of payment significantly impacts the halakhot governing the shevua. Perhaps the most discernible indicator that a shevua can function as a pseudo-obligation is the law of mitoch, which dictates that if the defendant cannot testify, he must render monetary payment. A straightforward explanation of this halakha would suggest that inability to deliver a pseudo-debt in the form of an oath demands rendering of actual monetary payment. If an oath can be taken, it suffices as a pseudo-debt. If, for whatever reason, the oath cannot be delivered, the debt reverts to a monetary form.


The question of how to view the shevua was raised by a gemara in Shavuot (32a), at least according to an initial interpretation offered by the gemara. Halakha permits summoning testimony from uncooperative witnesses. A litigant who can potentially benefit monetarily may demand that an alleged witness swear that he does not possess relevant testimony (and that is the reason the witness is not actually testifying). This oath – known as shevuat ha-eidut – is applicable only to scenarios in which testimony will actually yield monetary collection. Yet the gemara cites a dispute regarding whether one alleged witness can be subpoenaed. At most, his testimony will only generate an oath, not monetary collection. Why should he be susceptible to subpoena?


The gemara’s initial logic is quite telling: a lone witness IS considered a monetary witness, even though practicallyhe only obligates an oath. Evidently this opinion maintains that an oath can be conceived of as a pseudo-debt, and a lone witness is therefore a candidate for subpoena. The gemara rejects this logic and explains the ability to subpoena one witness with a different reasoning. However, the rejection may not dismiss the basic notion that an oath can be viewed as a pseudo-debt; it may simply reject the extreme application that a subpoena is possible for a pseudo-debt.


According to this explanation of the role of the shevua,two witnesses generate an inescapable monetary debt, whereas one witness generates a variable debt.


A second major consequence of this dispute concerns the status of a lone witness in monetary litigation. The Torah demands a minimum of two witnesses to process monetary cases. Does this indicate that one witness is entirely insufficient? Or is a lone eid simply irrelevant until he comprises part of a “kat”? If an oath is completely unrelated to monetary obligations, a lone eid may be considered meaningless regarding dinei mammanot. The fact that he obligates an oath does NOT INDICATE partial abilities in monetary matters since an oath is not a pseudo-debt. However, if an oath isconsidered a pseudo-chov, a lone witness DOES possesspartial influence in dinei mamanot. This question affects several related questions about the operational capacity of a lone witness. For example, can a lone witness exempt an oath in a situation in which his testimony supports the defendant (eid mesayei’a)? If the Torah assigns partial mammanot status to a lone eid, he should be equally empowered to dismiss the need for a shevua as he is to generate the need for one. This issue is raised by several Rishonim in their comments to Bava Metzia (2b). A second question relates to a lone eid who has been contradicted by an opposing lone eid (eid echad be-hachasha). When two eidim are contradicted by two others, they bear certain consequences, such as inability to testify in future litigations (at least according to one opinion in Bava Batra 31). Would a lone eid whose testimony was contradicted by a different lone eid also sufferthese consequences? This question was the topic of interesting debate among the talmidei chakhamim of the town of Brisk, a discussion cited by the Shach in Choshen Mishpat (31:1).


It is quite possible that the debate between R. Natan and the Chakhamim centered around this question. Perhaps the Chakhamim claim that a lone eid is irrelevant; only when part of a unified group of at least two does he achieve relevancy. Hence, he must testify conjointly and not independently. By contrast, R. Natan may have assumed that the requirement of two witnesses is 1+1, not 2 unified witnesses. Each lone eid is relevant for monetary issues, but merely insufficient; to extract money, he must marshal additional testimony. However, since he DOESpossess independent potency, he CAN testify independently. The debate between R. Natan and the Chakhamim revolves around whether a lone eid has capacity for monetary matters but is insufficient or whether he is irrelevant until he comprises part of a group of two.


Alternatively, R. Natan may have agreed that a lone eid does not possess monetary capacity and can only trigger an oath. An oath is ONLY a beit din imposed beirur and not a pseudo-chov, and his ability to obligate oaths therefore does NOT reflect limited monetary capacity. Indeed, when he arrives independently, he does not participate in potential monetary procedures. Each eid arrives with the sole agenda of triggering oaths. Nevertheless, beit din can reconfigure the testimonies of two independent eidim and distill a newtestimony capable of obligating monies. The Chakhamim assume that once a witness is tagged as an oath obligator, his testimony cannot be re-tracked to create monetary evidence. Once the testimony has been designated as “oath-creating testimony,” it cannot be recombined into monetary testimony. R. Natan may have disagreed with the Chakhamim about the role of beit din in framing testimony, viewing the beit din as more proactive; eidut which was originally assigned for one halakhic purpose can be fused together by beit din to accomplish an entirely different agenda.


There are numerous ramifications of these two different strategies, but the most obvious is the question of scope. Would R. Natan allow independently offered testimony in non-monetary situations? According to the first model, his leniency was based on the fact that from the outset, a lone eid possesses relevancy for monetary matters. His ability to trigger an oath demonstrates this relevancy. His eidut was alwaysdefined as monetary; when coupled with another independently offered testimony of a lone eid, it can naturallyobligate actual monetary debt. This flexibility would obviously only apply to monetary situations, in which a lone eid possesses basic relevancy. Similar flexibility would not apply to issurim-based scenarios, in which a lone eid does not possess that basic potency. However, if R. Natan introduces a novel concept of re-tracking or recombining testimony, perhaps this flexibility would be operative even in non-monetary litigation.


It appears that the non-monetary applicability of this maneuver was asserted in a discussion cited by the gemara in Ketuvot (26b). A person known to be a kohen was suspended from kohen activities because of a rumor. A lone eid testified to his pedigree, effectively quelling the rumor and reinstating him. Subsequently, two witnesses testified that he was not pedigreed, effectively overpowering the lone eid and leading to his suspension. Finally, a second lone eid emerged attesting to his pedigree. Can this late arriving lone eid be combined with the earlier lone eid to offset the two eidim who wanted to invalidate the kohen? R. Shimon ben Gamliel allowed the recombination, whereas the Chakhamim did not. R. Ashi assumes that R. Shimon ben Gamliel’s flexibility stems from his adopting R. Natan’s approach. When he first arrived, the original eid was merely quelling a rumor. Later in the litigation, he can be re-tracked to join a second independent eid to offset two other eidim.



Evidently, then, R. Natan’s approach canbe applied to non-monetary situations. The simple reading of the gemara strongly indicates that R. Natan’s flexibility was not based on a parochial understanding of the overlap between shevua and actual monetary payments. Rather, R. Natan is introducing a global question about the ability of beit din to reconfigure testimony offered for one agenda and recombine it for a different agenda.