[1].     Compare with Devarim, 15:9.

[2].     Rambam, Shevuot 2:3, Rabad ad loc.; Ran, Nedarim 2a, s.v. U'shvuot.

Synopsis of Articles

Adjudication on the Basis of External Evidence

Introduction to the laws of testimony: Fixed rules and inner conviction (שכנוע הלב) – A study of the Rambam’s approach

The backbone of the laws of evidence in Halacha is the rules concerning the competence of witnesses. These rules usually produce a simple and unambiguous answer to the question: is the testimony admissible or not? A fundamental question therefore arises with regard to this system of rules — a question that is characteristic of predetermined systems of rules: assuming that the main purpose of the laws of evidence is to ensure the discovery of the truth, how is it possible to rule out certain testimonies ab initio, thereby reducing the quantity of information that comes before the judges, and “endangering” the degree of truth in the judicial determination?

From a study of the Rambam’s approach to the laws of testimony, Rabbi Michael Baris reaches the conclusion that the Rambam foresaw these difficulties, and even resolved them in his unique way, by distinguishing between the laws of evidence that apply in monetary cases (דיני ממונות) and the laws of evidence that apply in capital cases (דיני נפשות), similar to the distinction between civil and criminal law. Rabbi Baris proves that, according to the Rambam, there are two elements to the factual-legal investigation: the “weight of the evidence”, which is the main element of the factual investigation by the judge, and the “rules of admissibility and reliability”. The combination of the elements is what creates a system of laws of evidence that integrates the advantages of strict rules with those of inner conviction.

Adjudication without testimony: On the use of judicial assessment (אומדן) and modern evidence in the Rabbinical court

An accepted principle of Torah law is that a judge is not entitled to adjudicate in accordance with knowledge that does not derive from hearing the testimony of two competent witnesses. Notwithstanding this principle, from various sources it can be concluded that in certain situations the judge may adjudicate on the basis of his own knowledge. The judge may derive this knowledge from a range of different sources. In the course of reviewing these sources, and an attempt to reconcile them with the aforementioned principle, Rabbi Uri Rotem considers several fundamental principles of Torah law, which delineate the authority of the judge to adjudicate on the basis of his knowledge. In view of these principles, he endeavors to examine the position of the Halacha on the question of the significance of various kinds of modern evidence, such as fingerprints, tissue analysis and polygraph tests.

Judicial assessment (אומדן) in the laws of evidence

It can be seen from various issues in the Talmud that sometimes the judge is permitted to make use of an assessment (אומד הדעת), as one of the tools that assist him in discovering the truth. In a comprehensive article, Rabbi Avraham David Katz endeavors to describe and characterize these situations and their unique features. In doing so, the writer distinguishes between a judicial assessment that is used when no admissible evidence is presented to the court, and a judicial assessment that is used even when competent testimony is presented to the court. When no evidence is presented to the court, the writer distinguishes between a judicial assessment that is used to recognize the factual position and a judicial opinion that is used in order to establish the intention of someone carrying out an act; when evidence is presented, he distinguishes between a judicial assessment that is required in order to define the proceeding as “legal trickery” (דין מרומה), and a judicial assessment that is required in order to disqualify testimony. This is accompanied by a review of the various decisions in this matter, from the period of the Rishonim until the authorities of today.

The mitzvah of giving testimony

According to Torah law, the duty of giving testimony is not merely a duty of man to fellow man, but it is a religious duty to God, and anyone who suppresses testimony is defined as a sinner. In this, the duty to testify under Torah law is different from the civil duty to testify that exists in various systems of law. Rabbi Avi Vengrover endeavors to establish the uniqueness of this duty, by examining the sources of the mitzvah of giving testimony, its essence, its character and the ramifications of all of these on the scope of the duty and the law concerning someone who suppresses his own testimony.

The duty to testify, when giving testimony may damage the witness

When a person is asked to testify before a religious or a civil court, he sometimes encounters a difficult problem: on the one hand, his civil duty — or his religious duty where a proceeding before the Rabbinical court is concerned — is to attend and testify. On the other hand, testifying may cause him damage or loss. This happens, for example, when a person is required to testify against his employer, against the authorities, or in similar cases. How should the person act in this situation? Rabbi Chaim Vidal endeavors to answer this question in his article. To this end, the writer presents a comprehensive discussion of fundamental questions concerning the duty of testifying, such as: does the duty give a litigant a “right of claim” against the witness? Can someone who suppresses his testimony be compelled to testify by court or is he subject only to Divine retribution? If he can be compelled to testify, is this obligation a civil one or a criminal one? Does the duty to testify include a duty to give a professional opinion?

Clarification of facts in a trial by violating the privacy of the individual

In many modern legal systems, the privacy of the individual has become a supreme value, the attainment of which sometimes overrides even the need for reaching the truth within the framework of a criminal trial. Recently, there have been calls to disqualify evidence that was obtained in the course of violating the person or privacy of the individual. According to this approach, for example, the court would not accept as evidence a bag of drugs that came out of the body of the accused after he was forced to drink laxative drugs, and no use would be made of an eavesdropping that was made unlawfully, even though these items of evidence might prove that the accused committed a serious felony. In his article, Rabbi Dr. Itamar Warhaftig endeavors to examine the position of the Halacha on this issue, the tension between a person’s right to individual privacy and the duty of the court to ascertain the truth. In the course of the deliberation, the writer sets forth important criteria in this regard, which concern the degree of the violation of an individual’s privacy as opposed to the degree of benefit that will arise from the violation. The writer applies the criteria to various investigations in which the benefit is great (such as saving of life), or in which the violation of an individual’s privacy is great (such as an invasive physical examination or a psychiatric examination). The writer also considers the authority of the judge to reach conclusions to the detriment of a litigant who refused to clarify his pleadings before the court, with a comparison to current Israeli law.

Should he not tell? – Concerning privileged evidence in Torah law

The presentation or non-presentation of testimony is of great significance to the litigants, on the individual level. Sometimes the presentation of testimony or its concealment from the religious or civil court also has public significance. This would be the case, for example, when a defendant wishes to present to the court evidence in his defence, but the revelation of this evidence may harm the security of the state. Situations of this kind create a conflict between the interest of the individual to present the testimony, which can help him further his case, and the public interest to prevent the presentation of the testimony, which may harm the public interest. The consideration of dilemmas of this kind is a consequence of the existence modern Israeli legislation, which requires the principles of “private” law to be examined in the light of the principles of “public” law, which did not find any real expression in the Diaspora. An Israeli statute resolved the dilemma by means of granting a privilege to various kinds of evidence, which it states cannot be presented to the court as evidence. Within this framework, various kinds of privilege have been recognized, such as privilege in the interests of State security, lawyer-client privilege, and medical privilege. Rabbi Yaron Unger endeavors to outline ways to resolve the dilemma, by using the principles from Jewish “public” law.

On the evidential significance of refusing to cooperate with the court

Often, the willingness of the parties to cooperate with the court constitutes a basic condition for the ability of the court to ascertain the truth. For this reason, the question of the significance of the refusal of a litigant to cooperate with the court arises quite frequently. Should evidential significance be attributed to such a refusal, so that the actual refusal indicates that the litigant has something to hide? This question was referred to Dr. Michael Wygoda in his capacity as head of the Jewish Law section in the Advice and Legislation Department at the Ministry of Justice. In his reply, the writer focuses on two rulings issued by the High Rabbinical Court. Some of these rulings reject any evidential significance of a refusal to cooperate, others attribute full evidential significance to this refusal, and still others lend probative value to such a refusal dependent upon its context. In the course of the deliberation, additional factors arise that may also affect the evidential weight of the refusal to cooperate with the court, such as the benefit that may accrue from the cooperation, and the nature of the proceeding (criminal or civil).

An interested witness whose interest has ceased to exist

It is well-known that, under Torah law, the testimony of someone who has a personal interest in his testimony is invalid. An important question is whether someone who saw an act when he was an interested party is competent to testify after his interest has ceased to exist, or should we adopt in this case the rule that valid testimony is the testimony of someone who was competent to testify from the time when he saw the act concerning which he is testifying until the time of his appearance before the court? The Rishonim suggested a wide range of answers to the question. In his article, Rabbi Hillel Gefen considers the various responses, and explains their ramifications and the differences among them.

Written testimony

It is well-known that, under Torah law, written testimony is inadmissible, as long as the witness does not appear before the court. Notwithstanding that rule, Torah law recognizes the validity of deeds (שטרות), even though, prima facie the signature of the witnesses is merely written testimony. The Rishonim suggest various explanations for distinguishing between deeds and written testimony. Many of the Rishonim accept the distinction between testimony that was written with the consent of the person making an undertaking, which is valid (deeds), and testimony that was written in the presence of one party only, which is invalid. However, the answer to the question, who is a “person making an undertaking”, is not at all simple. HaGaon Rabbi Zalman Nechemia Goldberg reviews the different responses given to this question by the halachic authorities, while discussing the difficulties presented by each of the responses, and he suggests an original solution of his own to the definition of “consent of the party making an undertaking.” In the course of the deliberation, the Rabbi distinguishes between a “direct obligation” and an “indirect obligation,” between “evidential testimony” and “declaratory testimony,” and even touches upon fundamental questions concerning the rights and duties of a wife and husband arising from marriage.

Written testimony for proving deeds

For a deed to be legally valid, it must be proved. It is proved by means of testimony concerning the signature of the witnesses to the deed, to the effect that it is indeed the signature of the witnesses and not forged. This testimony is unique in that it is not subject to various restrictions imposed on ordinary testimony. For example, it does not need to be given in the presence of the litigant. Is such testimony also not subject to the restriction discussed in the previous article, concerning the invalidity of written testimony? An attempt to derive a clear answer from the authorities on this question leads to considerable confusion, since sometimes it appears that the rulings are inconsistent. These difficulties have been discussed by many, and various answers have been suggested. Rabbi Moshe Ehrenreich reviews the difficulties, the various explanations that have been suggested in order to reconcile these difficulties, and the principles that arise from the explanations.

Reconciling the approach of the Rambam concerning testimony in a deed

It is well-known that Jewish law rejects the giving of written testimony. Notwithstanding this rule, Jewish law does not reject the evidential validity of deeds on the grounds that, prima facie, the evidence derived from them is written testimony. The Rambam has a unique approach in this regard. According to him, under Torah law the deed does not in fact have any evidential force, since it constitutes written testimony. The validity of the deed derives from an enactment of the Rabbis, who declared the written testimony delivered by means of a deed to be valid. The main difficulty that this approach raises is that from various sources one can see that the evidential force of the deed is valid even for matters that do not originate in the enactments of the Rabbis, such as divorce. How can a piece of evidence whose validity derives merely from an enactment of the Rabbis be capable of constituting a basis for dissolving a marriage? This question has been asked by many. The accepted answer distinguishes between “acquisitional” deeds, in which testimony changes a legal status (such as a divorce bill), and “evidential” deeds, in which testimony is required in order to clarify factual truth. “Acquisitional” deeds are valid written testimony, according to this explanation, under Torah law.

Rabbi Michael Baris presents this classic explanation, discusses the difficulties that arise from it, and presents another innovative explanation, which considerably strengthens the power of the Rabbis in the laws of evidence. According to this explanation, the Rabbis have the power to introduce new evidence which according to Torah law is inadmissible. However, when they have made such an innovation, the force of the “new” evidence is not limited to the sphere of Rabbinical enactments alone, but it is valid for every Torah law. In short, borrowing an expression from acquisitions law: evidence of Rabbinical origin is effective for Torah law. This determination has important ramifications, which can illuminate various laws in the Rambam’s work, and these are discussed in detail by Rabbi Baris.

Someone who signs a deed without reading it or understanding its contents – A “standard contract” in Halacha

The accepted Halachic approach is that a signature on a contract creates an absolute presumption that the signatory read the contents of the contract, understood it and reached a firm resolve (גמירות דעת) to agree to its terms. However, this approach is based on contracts that are drafted by the two parties to the transaction, and not a contract drafted by one party in order to serve as a basis for many contracts, with many unspecified persons. In recent times, with industrial development on the one hand, and the creation of powerful corporations on the other, a new type of contract developed, namely the “standard contract.” The characteristics of this contract are that it is drafted by one party to the transactions, typically the stronger party, and the signatory is placed in a difficult bargaining position, since he is required to choose between one of two options: to sign the contract in its entirety or to do without the services that he very much needs.

The Knesset, being aware of the special problem of the “standard contract”, enacted a statute that is designed to solve the problem of standard contracts. In his article, Rabbi Eliyahu Gurfinkel endeavors to prove that the correct Halachic position is that the signature on the contract creates a prima facie presumption that the signatory was indeed aware of all of the terms of the contract. This presumption is rebuttable, in accordance with the circumstances of the signature. From his remarks, it emerges that this approach has antecedents in Halacha before the “standard contract” came into the world, and it can protect the signatory even where the Standard Contracts Law does not protect him.

Adjudication on the Basis of the Litigants’ Statements:
Pleadings and Oaths

Concerning miggo as exempting someone from an oath

In the laws of pleadings, under Jewish law, great weight is attributed not merely to the pleading that was actually made, but also to the pleading that a litigant potentially could have made. Someone who could have won a case by means of one pleading, which he refrained from making before the court, will be deemed someone who has a miggo. In other words, since the defendant could have won the case by means of the alternative pleading, he should be found not liable when he makes the pleading that he has actually made.

The Rishonim were divided on the question whether a miggo has the power to exempt the party claiming it from an oath that would have been imposed on him had he not had a miggo. In the course of the discussion of the various approaches and the difficulties that they raise, HaGaon Rabbi Shaul Yisraeli discusses the nature of the power of a miggo, and he makes important distinctions between the various strengths of a miggo, such as a distinction between a situation where the defendant could have refrained from responding to the plaintiff’s claim, because he presented no evidence supporting his claims, and a situation where the plaintiff has presented evidence and the defendant is required to present his response to it. In the course of doing so, Rabbi Yisraeli makes an innovative distinction between a miggo which is valid under Torah law and a miggo which is only valid for Rabbinic enactments.

Should they “be regarded by you as wicked”? (The force of a person’s pleading in his own favor)

Every legal proceeding begins with a claim, and this is followed by the response of the defendant. These simple stages raise a very fundamental question — when a person makes a pleading in his favor, does he improve his legal position as compared with a person who makes no pleading at all, or is it the case that a person’s pleading in his own favor does not improve his position, whereas silence may be construed sometimes as an admission of the pleadings of the other litigant?

Rabbi Ido Rechnitz considers this original question and proves that it stands at the center of a wide-ranging dispute between Rishonim. The Baalei HaTosafot are of the opinion that a person’s pleading in his own favor improves his position. The Rambam is of the opinion that a person’s pleading in his own favor does not improve or worsen his situation, and only silence is construed as an admission. This dispute finds expression in three main issues: making pleadings on behalf of orphans, a definite pleading against a hypothetical one, and the issue of miggo.

Miggo – On the border between pleading and evidence

One of the most fascinating issues in the laws of pleadings is the issue of miggo, namely, believing a person who made a certain pleading, because he could have made an alternative pleading and won the case. The uniqueness of the rule of miggo is that the court considers not only what was said in the proceeding but also what was not said and could have been said. The court in practice reads between the lines of the testimony. The nature, validity and limitations of the miggo engaged many of the Rishonim and Acharonim.

Rabbi Yehuda Yifrach discusses the dispute of the Rishonim on the issue, and in the course of restating the investigations of the Acharonim he presents a tension between two opposing views: on the one hand, an approach that regards the existence of the miggo as evidence in favor of the person arguing it, namely the mere fact that a person refrained from lying proves that he is telling the truth in the pleading he actually made. An analysis of this approach shows that it is based on a significant innovation, that the pleading of miggo is not an ordinary pleading that expresses the position of one of the parties, but that it has a real and unique force, and in practice its status is “upgraded” to the status of evidence. A second approach regards the miggo as a sign of the balance of forces between the litigants, after weighing the evidence, and not as independent evidence. According to this approach, the existence of the miggo adds data to, and casts new light upon, the evidential balance of forces between the parties. Refraining from lying does not constitute evidence, but the theoretical ability to win the case with a different claim proves that the evidence presented hitherto is insufficient.

The basis for imposing oaths in the Torah

Under Torah law, there are three situations in which a person is liable to take an oath: a bailee who claims that the item that was deposited in his possession was lost and that he was unable to prevent the loss; a defendant who admits part of the claim and denies part; a defendant against whom one witness has testified. These oaths were derived by the Rabbis from the verses of the passage concerning bailees in the book of Shemot. In a comprehensive article, which is divided into three sections, Rabbi Itai Elitzur endeavors to prove that a study of the laws concerning oaths and the approaches of the various Rishonim can reveal that the various approaches in the Halacha, on various questions in the law concerning oaths, have one basis — the manner in which the authorities understand the meaning of the verses in the Biblical passage concerning bailees.

Oath – Payment, trust or exemption for lack of evidence?

One of the special tools of Jewish law for ascertaining the facts is the imposition of an oath. When a defendant is obliged to take an oath, his oath exempts him from paying, and his refusal to take an oath will make him liable to pay. Rabbi Yedidya Kahana considers the meaning of the use of an oath. The article presents three main approaches: first, that the oath is a kind of payment to the plaintiff; second, that the oath is evidence in favor of the defendant; and third, that an oath constitutes an exemption from paying and only a refusal to take an oath creates a monetary obligation.

The oath in the Rabbinical court – Between vision and reality

Over the years, we have witnessed a continual decrease in the readiness of the courts to impose an oath on litigants, to the point that some researchers have claimed that the law of oaths is a thing of the past. Rabbi Natan Chai analyzes the reasons that underlie this process, and he answers the question, whether the oath remains a vision that has no basis in reality, or whether there are cases where the courts still make use of the oath, and if so, on what conditions, and subject to what provisos.

The oath of someone who makes a partial admission and a consideration of the reasons for the mitzvot

Under Torah law, someone who admits part of a claim is liable to take an oath. Rabba explained this rule by suggesting a “psychological” reason for the partial admission: someone who makes a partial admission is interested in denying the whole claim, since he does not have the money to pay his debt. However, since a person does not dare deny the debt in the presence of his creditor, he admits part of the claim, in order to “gain time.” Among the Rishonim, a dispute arose concerning the question whether the remarks of Rabba were really intended to explain the reason for the law that requires someone who makes a partial admission to take an oath, or whether his remarks sought to achieve a more modest goal: to explain why someone who makes a partial admission is not exempt from an oath on the grounds that he could have denied everything. Rabbi Shmuel Tal's study of the approaches of the Rishonim in understanding the significance of Rabba’s remarks examines a fundamental dispute in halachic jurisprudence, which goes beyond the boundaries of the laws of oaths: can halachic authorities investigate the reasons for the mitzvot, and if so, to what extent? And what are the ramifications that can be derived from these reasons?

“An oath of the Lord shall be between the two” – The use of an oath to restore faith between the litigants

The accepted approach concerning the obligation of taking an oath is that the obligation is intended to help the litigants ascertain the truth. According to this approach, the oath is a minor form of evidence, and it is the court that demands the oath, by virtue of the powers granted to it by the Torah, to interrogate the litigants in order to reach the truth. Rabbi Yair Frank endeavors to question this approach, and to prove from various sources that the oath has a completely different function. Sometimes the oath is not a part of a proceeding taking place before the court but is an external proceeding, which is intended to resolve the dispute amicably out of court, by using the oath as a tool to restore faith between the litigants.