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Beit Midrash Series P'ninat Mishpat

Chapter 77

Testimony That Was Accepted in the Absence of a Litigant

The defendant (=def) brought testimony that beit din used to confirm her status of being married (illegally, unregistered) to and later widowed from a certain man in order to note this in her identity card. The plaintiff (=pl) was legally married to the same man and seeks to overturn the ruling regarding def, at least until the witnesses testify again. She argues that testimony that affects her (regarding inheritance) must be done in her presence.
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P'ninat Mishpat (579)
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The defendant (=def) brought testimony that beit din used to confirm her status of being married (illegally, unregistered) to and later widowed from a certain man in order to note this in her identity card. The plaintiff (=pl) was legally married to the same man and seeks to overturn the ruling regarding def, at least until the witnesses testify again. She argues that testimony that affects her (regarding inheritance) must be done in her presence.


Ruling : The Shulchan Aruch (Choshen Mishpat 28:15) rules that one must accept witnesses in monetary matters in the presence of both litigants. However, in our case, the matter about which the witnesses testified was not one of money. At the time it was accepted, the issue at hand was def’s personal status. The Rashba (Shut IV, 200) says that we accept witnesses to allow one to marry a woman in the absence of his ex-wife despite possible impact on her if that was not the direct content of his testimony. Thus, we see in general that those who might be impacted by deliberations on another’s personal status need not be present at related testimony. The Meiri, Mahari Bei Rav and Radvaz concur. In our case, pl’s existence was not even known when def’s status was explored.
Pl’s claim is not one of personal status. She is certainly the deceased’s widow, even if def also is one. Her issue is monetary, since the law recognizes a widow as having a stake in her husband’s inheritance. Testimony that was accepted in regard to personal status alone can later be used in regard to monetary ramifications. The matter is clear based on logic. It is unreasonable to expect a couple dealing with the status of their marriage to bring to beit din every person who could be affected in the realm of inheritance (note- a man inherits his wife). We see a similar concept in the Chelkat Mechokek (EH 11:11). He says that while testimony about a wife’s adultery must be accepted in front of the husband and wife regarding making her forbidden to him, the adulterer (who also becomes prohibited) does not need to be present unless the woman is married to him at the time of the testimony.
Might we require a repeat of the testimony when the new issue arises? The Rama (CM 28:15) cites two opinions regarding if there is a need and an effect of new testimony after testimony was incorrectly accepted in the absence of a relevant party. The Maharam Padova (73) says that if beit din already paskened based on the testimony, all agree that the testimony does not have to be reheard and cannot be changed. In our case, not only was the testimony done appropriately but even had it not been done correctly, since the proceedings were completed, their testimony is final and cannot be altered.
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