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Shevuos, 31

1) HALACHAH: REPRESENTATION IN COURT

OPINIONS: The Gemara says that the verse, "And that which is not good he did among his nation" (Yechezkel 18:18)," refers to a person who comes to court with a "Harsha'ah." A "Harsha'ah" is a document granting power of attorney, which entitles the bearer to act on behalf of the issuer. While such an endeavor is legally permitted, it is considered "not good," because, as RASHI explains, by giving the right of litigation and advocacy to an agent, the plaintiff is causing harm to the defendant, since the defendant might have been able to appease the plaintiff himself or convince him to compromise, while the plaintiff's agent is not prepared to compromise with someone else's money. In addition, it is improper for a person who has no stake in the dispute to get involved in it.

What is the practical ramifications of this Gemara with regard to issuing a "Harsha'ah" in a court case? Is it ever permitted to represent someone else in court?

(a) The RITVA quotes the RE'AH who explains that there is a situation in which an agent is recommended. In a situation in which a monetary dispute has become the source of a extreme malevolence between the two parties, such that they are unable to discuss the issue in a calm and rational way when in each other's presence, it is a Mitzvah for an agent to take the plaintiff's place and represent him. This will make a more harmonious trial, and increase the peace in general. The Ritva states that for this reason it is also permitted to find a representative for the defendant (some, however, permit this only for the plaintiff).

(b) The SHULCHAN ARUCH (CM 123:15) quotes the opinion of the RA'AVAD (Hilchos Shutafin 3:5), who says that when the Gemara says that using a "Harsha'ah" is "not good," it is referring to a situation in which both litigants live in the same city and can easily come to Beis Din themselves, and there is no need to send an agent. However, when they live in separate cities, it is a Mitzvah to represent the plaintiff in the city of the defendant.

(c) The REMA adds the opinion of TOSFOS, who points out a different exception to the rule. According to the way the Rema understands Tosfos, the Gemara is referring to an agent whose personality is such that he gets pleasure out of going to court and being unyielding against the defendant. Someone who is always eager to get involved in someone else's dispute and take sides in order to express his toughness is considered "not good." However, if a person sees that his friend is having difficulty retrieving his money from the defendant, and he genuinely wants to help his friend recover that which is rightfully his, then it is a Mitzvah to be his agent.

(d) The SHACH (ibid.) understands the words of Tosfos differently. According to the Shach, Tosfos is not referring to the agent who finds pleasure in being unyielding. After all, if the agent is honest and truthful in his representation of the plaintiff, why is representing the plaintiff considered wrong? If he lies in court, then that is the wrongdoing, and not the fact that he is coming to court with a "Harsha'ah." The Shach therefore understands that the unyielding person whom Tosfos mentions is the *borrower* (the defendant). Tosfos is saying that a person should not become an agent and get involved in a dispute with a defendant who is unyielding, because he will end up involved in a severe altercation. The agent should not pick sides in a dispute which is none of his business. However, if the reason the plaintiff is not going to court is because he does not have the time or resources to devote to pursuing the case, then it is a Mitzvah for another person to represent him.

The ARUCH HA'SHULCHAN says that all of these opinions are true. He answers the Shach's question on the Rema's understanding of Tosfos by saying that there might be plaintiffs who become nervous when confronted with a large, powerful, angry defendant. This intimidation might cause the plaintiff to surrender his claims, or at least not express them clearly. Appointing an agent can ensure that the defendant's intimidating stature has no impact on the clarity of the plaintiff's claims. (Y. Montrose)

31b

QUESTION: The Mishnah teaches that if two potential witnesses are asked to come to testify in court and they swear five times that they do not know testimony regarding a particular case, and when they come to Beis Din they admit that they know testimony, they are exempt from bringing a Korban. If they deny their knowledge in front of Beis Din, then they are obligated to bring five Korbanos. If, however, they swore *in court* that they do not know testimony, and then they deny their knowledge, then they are obligated to bring only one Korban. Rebbi Shimon explains that the reason they are obligated to bring only Korban is because after swearing in front of Beis Din that they do not know testimony, they cannot retract their statement and admit that they do know testimony, because of the rule that "once witnesses have given testimony, they can no longer retract and give different testimony," and thus the additional oaths that they took saying that they did not know testimony were not valid Shevu'os ha'Edus. In contrast, when they swear *outside* of Beis Din, their statement is not considered testimony and thus this rule does not apply; consequently, each time they swear, the Shevu'as ha'Edus is valid.

The Acharonim ask that also in the case in which the witnesses swear *outside* of Beis Din there is a simple reason why only the first Shevu'ah should be a valid Shevu'as ha'Edus, and not the additional Shevu'os, such that the witnesses should be obligated to bring only one Korban Oleh v'Yored. Making a false Shevu'ah -- a Shevu'as Sheker or Shevu'as Bituy -- invalidates a person from being able to serve as a witness. When it is found that the witnesses made a false Shevu'ah about their knowledge of testimony, that Shevu'ah should invalidate them like any false Shevu'ah invalidates witnesses! As a result, the additional Shevu'os that they make should not be valid Shevu'os ha'Edus to obligate them to bring separate Korbanos, because only a valid witness can be guilty of falsely swearing that he does not know testimony (rather, they are guilty for making Shevu'os Bituy, for which they should be punished with Malkus)! (See AVODAS HA'GERSHUNI, Teshuvos #3.)

ANSWERS:

(a) The TUMIM (28:19) says that this question is answered if we learn that the Mishnah is referring only to a case in which others administer the oath to the witnesses, and the witnesses remain quiet and do not even say "Amen." For example, the litigant says to the witnesses, "I hereby adjure you with a Shevu'ah that you do not know any testimony," and the witnesses do *not* say "Amen," but rather they simply state, "We do not know testimony." According to the laws of Shevu'as Sheker, this is not considered a Shevu'ah at all, and thus they do not become unfit for testifying. According to the laws of Shevu'as ha'Edus, on the other hand, when the witnesses later deny, in Beis Din, their knowledge of testimony, that denial is in response to the five Shevu'os with which the litigant adjured them, and thus they are Chayav to bring multiple Korbanos.

Even if we understand that the Mishnah is discussing a case in which the witnesses make the Shevu'ah on their own, their false Shevu'ah does not invalidate them from testifying. It could be that the Shevu'ah that the witnesses made was *not* a lie. For example, the litigant said to them, "I hereby adjure you that you shall come to court if you know testimony!" The witnesses answered, "Amen," effectively attesting that if they know testimony, they will come and testify. The litigant makes this statement, and the witnesses respond to it, five times. If the witnesses later come to court and *deny* (falsely) that they know testimony, they effectively make all of the Shevu'os that they accepted upon themselves into Shevu'os ha'Edus for which they are obligated to bring multiple Korbanos Oleh v'Yored. Since, however, at the time that they made each Shevu'ah they were not lying (because if they *do* know testimony, they might come to court to testify, as they promised), they do not invalidate themselves from testifying.

(b) The KETZOS HA'CHOSHEN (28:8) rejects the Tumim's approach. He understands that the Mishnah must be dealing with all cases of Shevu'as ha'Edus, including a case in which the witnesses say the entire oath themselves, since this is the first case mentioned in the Mishnah earlier.

He quotes the RAN who says that a witness is believed to say that he forgot that he knew testimony when the event in question did not occur recently (and thus it is reasonable to assume that he indeed forgot). The Ketzos ha'Choshen understands that even according to the opinions (see RASHBA cited by BEIS YOSEF CM 34) that maintain that one is not believed to say that he forgot, he is not believed only when he says, "I *never* saw anything that would be considered testimony for you." Everyone agrees that if he merely says, "I do not know any testimony," he is believed to say that he forgot and is not considered to have sinned by making a false Shevu'ah. This is because when he said, "I do not know...," he was not lying; at that moment, he truly did not know any testimony (because he had forgotten it). Therefore, he is not held liable for making a false Shevu'ah. In contrast, when he said, "I *never* saw anything...," his statement is certainly a lie (because even if he did forget that he saw anything, his statement is still not true).

Hence, as long as we do not know that the person maliciously lied, we assume that he merely forget that he knew testimony when he was asked about it outside of Beis Din. Accordingly, his oaths did not make him unfit for testimony.

This is also the approach of the RITVA. The Ritva asks that the witnesses should not be able to give testimony after swearing that they know no testimony, because we cannot believe them when they admit that they swore falsely. This is because of the principle that a person is not believed to state that he sinned such that he is called a Rasha -- "Ein Adam Mesim Atzmo Rasha." How, then, can we accept the testimony of the witnesses when they say that they were lying when they swore that they knew no testimony? (Since we cannot accept their testimony, they should not be obligated for all of the subsequent Shevu'os ha'Edus that they took, but only for the first one, because after the first Shevu'ah they cannot retract and give testimony, because of "Ein Adam Mesim Atzmo Rasha.")

The Ritva answers that it is possible to believe the witnesses when they say that they swore falsely, without the witnesses making themselves into Resha'im. The witnesses can claim that they swore falsely *by mistake*. They forgot that they knew testimony, swore that they did not know testimony, and then they remembered that they did know testimony. When they come to court and admit that they swore falsely, their word is accepted because they are not making themselves into Resha'im, since their false oath was taken by accident.

The Ritva adds that even if the witnesses do not claim that they were mistaken when they made their Shevu'ah, we may apply the principle of "Palginan Dibura" to their words. We believe them with regard to the testimony that they now give, while we do not believe them when they say that they intentionally swore falsely. Rather, we assume that they swore falsely by mistake. Even though, in such a case, they would not bring a Korban from Shevu'as ha'Edus, nevertheless their retraction in court will be accepted. In the case of our Mishnah, they did *not* come to Beis Din and admit that they knew testimony, but rather they maintained their denial, and therefore they are obligated to bring a Korban for each of their Shevu'os.

Similarly, the witnesses do not invalidate themselves from testifying by taking a false oath accidentally. Only an intentional Shevu'as Sheker will invalidate a person from serving as a witness.

The explanation of the Ritva and Ketzos ha'Choshen, however, is problematic. They are explaining why a witness' initial false Shevu'ah that he knows no testimony does not invalidate him from further testifying, and why he remains a valid witness who may retract his earlier denial and testify in court (and thereby he can become obligated for multiple Shevu'os ha'Edus). They explain that since the witness can claim that he *forgot* that he knew testimony, his Shevu'ah does not invalidate him from testifying. However, if we accept the witness' claim that he forgot, then even when he swears *in Beis Din* five times, he should be obligated to bring five Korbanos for Shevu'as ha'Edus! Why does Rebbi Shimon (in the Mishnah) say that he does not bring multiple Korbanos because once he swears the first time, in Beis Din, that he knows no testimony, he may no longer retract his statement? Let him claim that he *forgot* that he knew testimony, and now he remembers! His initial testimony that he knows no testimony should no longer be considered testimony (since he is believed to say that, at the time that he made his statement, he forgot that he knew testimony), and his new testimony should now be accepted (and, consequently, if he swears five times that he does not know testimony, since he could claim after each Shevu'ah that he forgot that he knew testimony, he should be obligated to bring multiple Korbanos)!

The Ketzos ha'Choshen answers that only in the case of a Shevu'ah do we accept a person's claim that he forgot at the time of his Shevu'ah. When he swore that he knew no testimony, and now he claims that when he made that Shevu'ah he forgot that he knew testimony, his Shevu'ah is not false -- at that time, he indeed knew no testimony. In contrast, for any other Aveirah he is not believed to say that he acted accidentally, b'Shogeg or even b'Ones. When we see the person do an Aveirah (such as eating Chelev or stealing), the act itself is defined as a transgression; if he did it by accident, he is exempt from punishment, but the act itself is a clear transgression of the Torah.

When the witness swears in Beis Din that he does not know testimony, and then he retracts his statement and says that he forgot that he knew testimony, he is not only explaining that his *Shevu'as ha'Edus* was not a sin. He is also trying to tell us that he did no Aveirah of *withholding testimony* -- that he did not transgress the Isur of "Im Lo Yagid v'Nasa Avono" (Vayikra 5:1), because he forgot at that time that he knew testimony. This Aveirah is similar to other Aveiros (such as eating Chelev or stealing), for which a person is not believed to say that the act was done unintentionally. (See also what the Ketzos writes in MESHOVEV NESIVOS.)

The KEHILAS YAKOV (#27) questions this logic. Why should we differentiate between the Isur of withholding testimony, and the Isur of saying a false Shevu'ah?

The reason why we believe the witness when he says that he forgot at that time that he made the Shevu'ah is because if he did forget, the Shevu'ah itself was not an act of Aveirah; it was a true Shevu'ah. The same should apply with regard to the prohibition of withholding testimony. If he did not remember the testimony when he was asked to testify, then he did not transgress the Isur of not withholding testimony that he knew!

Apparently, the Ketzos ha'Choshen's logic was based on a different understanding of the prohibition of withholding testimony. He understood that the Aveirah is not because the person refused to tell what he really knew. Rather, the prohibition is addressing a person's actions -- if a person *saw* an event and knows testimony, he is required to come forth and give that testimony. Therefore, if he did see testimony, even though he forgot that testimony, the fact that he did not come forth is considered an act of Aveirah. Forgetting the testimony is comparable to eating Chelev when a person is not aware that the food in front of him is Chelev.

The Kehilas Yakov himself explains the difference between a witness who swears *outside* of Beis Din that he does not know testimony, and one who swears *inside* of Beis Din. When the witness claims that what he said outside of Beis Din was due to his forgetfulness, he is believed, for the following reason. The question, in that case, is not whether or not the statement that he said outside of Beis Din is true. Rather, the question is whether the witness himself is a liar (now that he says that he *does* know testimony) and invalid to testify. Since the person himself has a "Chezkas Kashrus" -- he is presumed to be a truthful person until proven otherwise -- we believe that he made his false statement not out of maliciousness, but out of forgetfulness. Now, he may testify further, since he is not invalidated as a witness.

In contrast, when he swears in Beis Din that he does not know testimony (and then he retracts his statement, saying that he forgot that he knew testimony), the doubt now is not whether the witness himself is a truthful person or is a liar. Rather, the doubt is whether his earlier statement was valid and irrevocable testimony, such that when he now gives different testimony, is he revoking his earlier statement (which he is not allowed to do), or is he not revoking any earlier testimony (but rather both statements are true -- when he said earlier that he did not know testimony, that was a true statement because he indeed forgot at that time that he knew testimony)? There is no reason to believe his present statement (that he knows testimony) over his earlier statement (that he knows no testimony). His own "Chezkas Kashrus" that he is a valid witness does not tell us anything about the validity of his statements. Since he originally stated that he did not know testimony, and now he says that he does know testimony, we are left with a doubt, and, out of doubt, we assume that he is now retracting his earlier statement, which he is not allowed to do.