top of page

Parshas Vayeitzei 5785

בבא בתרא קנט.

"גזירת המלך הוא שלא יעידו"


If ראובן signs on a שטר for שמעון that he is owed money and afterwards ראובן marries his daughter and is now his son-in-law, ראובן may not confirm his signature (מקיים השטר) now for שמעון his father-in-Law. However, 2 other עדים may testify that the signature on the שטר is actually the signature of ראובן the SIL and it is acceptable.If the SIL himself is not נאמן, because we are חושש maybe the SIL forged it now for his FIL, what good is it if 2 other עדים are מקיים the SIL’s signature? This signature should not be accepted as we are חושש the SIL signed it now? The Gemara says the reason a SIL may not testify for his FIL is a גזירת המלך that קרובים may not testify for each other, but not because of a חשש משקר. The proof is משה and אהרן who are certainly not liars may not testify for their FIL’s, this proves that it is a גזירת המלך. The [חו"מ ס' לג,י'] שו"ע says קרובים are פסול to testify for each other not because they are "בחזקת אוהבים", because the דין is they may not even say testimony that is against their relative. Furthermore, משה and אהרן may not testify for each other, rather the reason they are unacceptable is a גזה"כ.The שו"ע paskens [סי' א'] that although a אוהב and שונא may say עדות, they are פסול to be דיינים. The סמע explains, that when one says testimony, he is saying over the facts as he saw them and we are not חושש because of his friendship or dislike for a person, he will intentionally change his testimony. However, when it comes to judging a court case,this depends on svara and logic which can be swayed due to a judges love or dislike for the litigant. This can happen even unintentionally and this is why they are פסול לדון.

The דין is [חו"מ ס' לג',יב] a SIL may not say עדות for his FIL, but if his wife dies the SIL is now considered "רחוק" and may now say עדות for the FIL. The רמ"א adds that if the case was already tried in ב"ד while the SIL was still married and consequently ב"ד paskened his עדות is unacceptable because they are related, even if later the SIL’s wife dies, the case may not be reopened to now accept the SIL’s testimony.The ש"ך says this מקור is from the ב"י in the name of the עיטור. The ש"ך says the sevara is, that since the SIL already said testimony, when the case is reopened he will certainly reinforce and corroborate his original testimony so he doesn’t look like a שקרן, as we have a חזקה that "עביד איניש לאחזוקי דיבוריה". The [חו"מ ס' לג' אות ח'] תומים brings this ש"ך and עיטור, but says צל"ע. Why should we care that he is now being מחזק דבריו? Relatives aren’t פסול because they are suspected of lying, rather it’s a גזירת המלך, so now that he has become a רחוק if we reopen the case, let him say עדות even if he might be reinforcing his original testimony, this is ok, as his original testimony was אמת, it just wasn’t acceptable because of גזירת המלך, but not because of שקר? עיי"ש. In Yeshivah they answer בשם ר' שמואל בירנבוים זצ"ל, that a הגדת עדות has to be a pure testimony, if it is influenced or being said because עביד איניש לאחזוקי דיבוריה, this הגדה is not a כשר עדות, but not because of חשש משקר.

 
bottom of page