One Witness

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by R. Gidon Rothstein

3 Sivan: One Witness

On the third of Sivan, 1933, R. Benzion Meir Chai Uzziel (later to be Sephardic Chief Rabbi of Israel), wrote about whether one witness can support a claim. Shu”t Mishpetei Uzziel 4; Chosen Mishpat, 24 is somewhat technical, but it is such technical discussions that let us articulate halachic principles that then shape our lives, both in the cases they affect and in our worldview.

In this case, the question is the role of one witness in a court case. A plaintiff who finds that one witness absolves the defendant of the obligation to swear he doesn’t have the plaintiff’s money will care greatly, for example. Although I mostly choose responsa with less of the kind of technical argumentation we will see here, I found it worth jumping into as a good exercise in halachic reasoning and also because of the personalities involved.

The responsum is written to R Eliezer Waldenberg, who later became the Tzitz Eliezer.  Interestingly, Hebrew Wikipedia implies the two only became friendly when R. Waldenberg returned from a brief stint as the rabbi of Kfar Vitkin (near Netanya), which was after his marriage in 1936. This responsum, addressed to “my friend, the great rabbi, both in breadth of knowledge and depth of insight, who is always involved in Torah,” seems to date their connection as early as R. Waldenberg’s seventeenth year (when R. Uzziel in his early fifties).

A Helping Witness

R. Waldenberg had apparently sent R. Uzziel his thoughts on the issue and asked for reactions.

It is agreed that if one person makes a financial claim against another, with a witness backing it up, the accused has to either pay or take an oath denying it (one witness cannot establish facts in halachah, as we will have cause to remember). R. Waldenberg had suggested that there were two ways to understand the witness’ ability to obligate the defendant’s oath: one witness doesn’t establish facts but can obligate an oath (a power of the witness’ testimony), or the testimony of the witness strengthens the plaintiff’s claim, leading to an oath.

R. Waldenberg suggested that’s at the root of a disagreement about the effect of one witness for the defendant.  Maharam held that such a witness absolves the defendant of the oath.  For him, R. Waldenberg had explained, lone witnesses may not prove matters in halachah, but they do obligate and/or remove the need for oaths.

Ramban and others disagree, betraying their assumption that the original witness strengthened the plaintiff’s claim, not through any power of his own. Said that way, we cannot necessarily assume that the witness can strengthen the defendant’s denial—the power to support might only work for the plaintiff, not the defendant.

A Tanna To Support You

R. Uzziel says the two views R. Waldenberg had suggested can be detected in Sifra Shoftim 88, where R. Yosi thinks a kal vachomer (an argument a fortiori, that the truth of a less obvious idea implies the truth of something more obvious) tells us that one witness supporting the plaintiff’s claim should obligate an oath.

The reasoning starts with the fact that a defendant’s partial (or whole) admission has no impact on a criminal case, certainly not to help the prosecution.  Yet a partial admission does obligate an oath. All the more so then that one witness—who, combined with another witness, could actually convince a court to enact a judgment, civil or capital—should obligate an oath on his own?

The Sifra concludes, however, that the two aren’t comparable, and one witness only obligates an oath because of the inference from Devarim 19;15, that one witness cannot establish a sin or punishment, but does make an oath. Once it’s derived from a special verse, we have to wonder how far that goes.

The Power of a Verse

R. Uzziel says that Maharam, who assumed that a witness for the defense could free him from the oath, saw the derivation as saying that one witness has the power to obligate or obviate an oath, where Ramban and others hold that we cannot go beyond what the verse establishes, that one witness obligates an oath. Support for that distinction comes from the fact that freeing the accused from an oath actually establishes the ruling in a case—that the defendant does not have to pay—whereas obligating an oath only moves the case one step down the road.

An explicit version is the view of Ramah (R. Meir haLevi Abulafia), that if there’s an argument about whether a sale came with a condition, with a witness on each side, the defendant would have to swear to the truth of his claim, because one witness (Ramah says) can only obligate. Even where the two testimonies seem to cancel each other out, Ramah holds that we apply the one witness where halachah tells us his words fully suffice to obligate an oath, and ignore the other one.

Tur, Choshen Mishpat 46, who quotes this, doesn’t accept that.  He holds that since they are directly contradicting each other, we cannot accept one and not the other. Same debate: did the Torah give the witness a particular power, or does one witness provide certain kinds of assistance to claimants, whether to obligate or absolve of oaths?

R. Uzziel also notes that for sotah (a woman who has given us halachically defined reason to suspect, but not convict her of, adultery) and sacrifices, particular textual inferences give one witness the power to establish facts. In those special cases, contradictory witnesses would nullify each other if they came at the same time, but if the first witness came and was investigated, a later witness to the opposite effect would not negate the testimony. Despite it looking like one vs. one, once the court had checked and accepted the one witness, it becomes accepted testimony and established fact, and then the other witness, coming later, is back to being only one witness.

The Logic of the Claims

R. Uzziel moves on to tease out their underlying concerns. Maharam argued that a witness’ obligating an oath takes more power than helping a defendant, since possession is assumed to be rightful until proven otherwise. If a witness can call it into question, a supporting witness should be no less effective.

Ramban makes the distinction we saw briefly before. Whatever the Torah allowed the witness to do in monetary cases, it explicitly said one witness cannot prove a case. Supporting a plaintiff creates an oath, not a verdict. The witness on behalf of the defendant, by absolving him of the oath, ends the case. Which the Torah prohibited.

Where an Oath is Impossible

After proofs and counterproofs we can skip, R. Uzziel notes that Shulchan Aruch, Choshen Mishpat 75;2 records both opinions, but Rema accepts Maharam’s view.  An exception, R. Uzziel notes, is a defendant who is unable to take an oath, since in that situation we would clearly be allowing the one witness to establish the law—even if we argue that ordinarily the one witness is helping the defendant avoid the oath, here he would be helping him get around his inability to take that oath.

Shach ruled that way explicitly, based on the view of Rosh, Baba Metzia 1;3 that if someone watching an object then appoints someone else to watch it, and it is lost or stolen, the first watchperson must pay for it (the watcher has to swear to the owner that there was no negligence in the item’s care, that he didn’t take it for himself, and that he does not know where it is—since he wasn’t watching the item at the time that it was lost or stolen, he’s unable to take those oaths). Rosh comments that since he’s obligated to pay the money, one witness could not help him.

Ketzot haChoshen disagreed, arguing that Rosh didn’t mean it as generally as Shach applied it, but R. Uzziel notes that Ran is explicit on that point, saying that the reason he’s obligated is that he cannot take the oath. If we accepted the second watcher’s testimony, it would be a case of one witness providing all the evidence to decide a court case.

Claiming to Be Grabbing One’s Own Property

R. Uzziel deals briefly with one more discussion of R. Waldenberg’s (and apologizes that he will not have time for one last piece of R. Waldenberg’s discussion), Ketzot’s concession that one witness in the case of נסכא דר’ אבא might be different. Nasca de-R. Abba (Baba Batra 33b-34a) deals with a witness who testifies that one person grabbed an item from another. The accused readily admitted it, claiming he had merely taken back that which belonged to him.

R. Aba pointed out that the accusing witness obligated the accused in an oath he wasn’t able to take. The claim that it was his is meaningless without proof, and he cannot swear he didn’t take it, since he admitted he had. Ketzot agrees that we wouldn’t accept the testimony of a witness that he hadn’t taken it. Even there, Shittah Mekubetzet records an opinion that we would believe the witness, and all the more so where the defendant is only prevented from taking an oath because he is suspect.

R. Uzziel finds the whole discussion surprising, since the helping witness in that case isn’t in fact helping him with an oath at all. In R. Uzziel’s construction, the second witness isn’t denying the first one’s claim, he’s supporting the defendant’s assertion that the item was his. That being so, the original witness’s claim has been weakened, in that we now have reason to believe the defendant’s assertion that he took what was his, taking it out of the realm of a person whose oaths are suspect.

How we evaluate evidence and witness’ testimony sits at the crux of any legal system and halachah is, in large part, a legal system. It also teaches us, more generally, how we determine truth as far as halachah is concerned, what kind of evidence we credit and what we do not.

Aside from all that, the back and forth here reminds us that the truest connection between servants of God is a discussion of Hashem and what Hashem wants of us. In this case, an established scholar built that connection with an up and coming seventeen year old, who would soon and over many decades become the Tzitz Eliezer. That’s how an older Torah scholar engages and encourages a younger one, in the flow and fights of Torah.

About Gidon Rothstein

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