Chapter 181 : Laws of Litigation and Testimony

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§1

When there is a controversy between two persons, it is best for them to agree to an acceptable compromise, with each side yielding somewhat, in order to avoid the humiliation of a lawsuit. They should make every effort to do so.

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§2

If it is impossible for them to reach an acceptable compromise, and they are forced to go to court, they should go before a Jewish Beis Din. It is forbidden to bring a suit before secular judges, and in their courts; even if their decision would be in accordance with the Torah law. Even if both litigants are willing to bring the case before them, it is forbidden to do so. Even if they had made a binding agreement, or they had a written agreement to that effect, it is of no avail. Whoever brings a case before them is a wicked person, and it is considered as if he had insulted, blasphemed, and rebelled against the Torah of Moshe Rabbeinu, peace be on him. Even in a case where a man is permitted to take the law into his own hands, as will be explained, God willing, in paragraph 9, it is forbidden to do so through non-Jews. Even if he does not bring the case before a secular tribunal, but uses non-Jews to force his opponent to go with him to a Jewish court, he deserves to be flogged.

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§3

When the defendant is a difficult person, and you live in a society governed by non-Jews; you should first summon him to appear in Beis Din. If he refuses to go, you may obtain the consent of Beis Din, and save your property in the secular courts.

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§4

If you are sued on a monetary claim, that you really owe, it is forbidden to seek ways of evasion, in order to force the creditor to compromise, and forgo the remainder of the debt. If you transgressed and did so, you are not discharged of your obligation before the judgement of Heaven, until you pay the claimant what is rightfully his.

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§5

A litigant is forbidden to present his case to the judge in the absence of his opponent. Therefore, one litigant should not present himself to the judge before the other, lest he be suspected of coming early in order to present his case in the absence of his opponent.

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§6

Just as the judge who accepts a bribe, even to acquit the innocent, transgresses a negative precept, so does he who offers the bribe transgress the negative precept, "You shall not put a stumbling block before the blind."

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§7

It is forbidden to enter a false plea. Even if you know you have a just claim, and if you tell the truth, the judgement will be against you, nevertheless, you may not enter a false plea. This is stated in the Talmud: "Our Rabbis have taught, from where do we know that one who has lent his friend one hundred shekalim, should not say I will claim two hundred, so that when he admits to owing one hundred, he will be obliged to take an oath,4 and then I will force him to take an oaths with regard to some other matter? We learn it from the verse: "Keep far away from anything false." From where do we know that if one has a claim against another for one hundred shekalim, but demands two hundred shekalim, that the borrower should not say, I will deny the whole claim in Beis Din, and will admit (to one hundred) out of Beis Din, in order not to be obliged to take an oath, and to prevent him from making me take an oath as regards some other matter? We learn it from the verse: "Keep far away from anything false." From where do we know that if three people have a claim of one hundred shekalim against one person, that one of them must not be the plaintiff and the other appear as witnesses, in order to obtain the one hundred shekalim, and divide it among themselves? We learn from the verse: "Keep far away from anything false."

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§8

Occasionally, the litigants choose men [arbitrators] to effect a compromise between them, either jointly with the Beis Din, or without Beis Din. This is a proper procedure, because each [arbitrator] promotes the cause of the one who has chosen him, and thus a just settlement will be reached. But the arbitration must be conducted in a just manner, [and not] Heaven forbid pervert the process of compromise. For just as we are commanded not to pervert judgement, so, too, we are commanded not to pervert the process of compromise.

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§9

A man may [sometimes] take the law into his own hands. If you see an article of yours in the possession of someone who had robbed it, you may take it away from him. If the latter tries to stop you, you may even strike him until he releases it, if you are unable to get it by other means. You may do so even if it is an article that will not depreciate if you wait until you summon him to Beis Din. If there are witnesses who [will] see you seize the article from this other's possession, you may not seize it by forceful means, unless you will be able to verify later that you took what is yours. For if you are unable to prove your ownership, your seizure is of no avail since there are witnesses that you took it by force. However, if there are no witnesses, whereby the seizure will be effective, you may seize it forcefully even though you will be unable to verify your ownership.

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§10

When the people of a city appoint a Beis Din for the community, they must ascertain that each one of the judges possesses the following seven qualities: wisdom in Torah, humility, fear of God, abhorence of money — even their own, love of truth, loved by their fellow men, and a reputation for good deeds. Whoever appoints a judge who is unfit for the position, transgresses a negative precept, as it is said, "You shall not respect persons in judgement." This means, you shall not favor anyone and say, "So-and-so is wealthy, or is my relative, I will appoint him as a judge." It is forbidden to rise before a judge who was appointed through the influence of money, or to show him any other honor. With reference to such a person, our Rabbis, of blessed memory, applied the verse: "Gods of silver and gods of gold you shall not make for yourselves."

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§11

In communities where there are no scholars who are qualified to be judges, they should appoint the best and wisest among themselves according to the understanding of the townsmen, and they should judge even though they are not qualified to be judges. We permit this so that people will not go to the secular courts. Since they were accepted by their townsmen, no one can disqualify them. All their activities should be for the glory of Heaven.

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§12

If you are able to bear witness for your neighbor and are qualified to testify, and your neighbor would benefit from your testimony, and asks you to testify on his behalf in the presence of Beis Din, you are obliged to testify, whether there is another witness besides you or you are the only one. If you withhold such testimony, you will have to answer to the Heavenly Court. It is forbidden to testify about anything you do not know (firsthand), and not even if the man who told you is someone you are certain that tells no lies. Even if the litigant says to you, "Come and stand next to the one witness that I have, not to testify, but just to intimidate my debtor, so he will think that I have two witnesses, and he will consequently admit (his obligation to me)," you must not listen to him, as it is said, "Keep far away from anything false."

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§13

The law that states that the testimony of one witness is valid, is only when money matters are involved; for then, the testimony of even one witness is sufficient to require the administration of an oath. Similarly, with regard to a sinful act, if the prohibition was not yet violated, the singular witness may testify in order to prevent him from sinning. However, if the sinful act had already been committed one witness should not testify to it; since one witness is not believed, he will only be spreading an evil report about another person.

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§14

If you accept a reward for your testimony, your testimony is null and void. This is true only after you had already witnessed the facts, for then it is your duty to testify free of charge. However, (if you are asked) to witness a certain transaction in order to subsequently testify, you are permitted to take compensation. It is permitted to take compensation only to the extent that you were inconvenienced and no more. Also, if it is an inconvenience for you to go to Beis Din, you are entitled to compensation for your inconvenience, but only to the extent that it is proper for this inconvenience, and no more.

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§15

Any testimony from which you derive benefit, or in which you have a personal interest, even if remote, disqualifies you as a witness.

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§16

It is written, "And that which is not good, he did among his people." This is homiletically interpreted to refer to a person who comes with power of attorney, and argues about a quarrel that is not his. This applies only when both litigants are in town, but the borrower is a strong man, and a good pleader, and the lender fears the confrontation with him, and thus gives power of attorney to someone else. This is the case of someone arguing about a quarrel that is not his. However, if the defendant is in another city, and the plaintiff cannot trouble himself (to go personally), and gives someone the power of attorney, then the latter is doing a meritorious deed in rescuing the wronged person from the hand of the one exploiting him. Some Poskim maintain that if you accept a power of attorney in order to receive a fee, and not because you are a quarrelsome person, it is permitted.

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§17

You should distance yourself from taking an oath, even if it is a truthful one. You should make every effort to refrain from it.

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§18

If your opponent is obliged to you for an oath, and you realize that he is prepared to swear falsely, Heaven forbid, you should reach the best possible compromise with him, and not permit him to swear falsely, for it is said, "an oath to Adonoy shall be between them." And this is expounded to teach, that [the punishment of] the oath rests on both of them.

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§19

If a Jew knows of evidence that favors a Gentile who has a lawsuit with a Jew in the secular courts, and his testimony will cause his fellow Jew to be liable for a larger amount than he would have been liable to according to Jewish law, he is forbidden to testify for him; but if not, he is permitted to testify for him. If initially the Gentile arranged for the Jew to testify for him, since the Name of God will he desecrated if he does not testify (as he had agreed to), he should testify under all circumstances.

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§20

So long as you remember the facts, you may testify at any time and you need not fear that because it happened long ago, you do not remember clearly. Even if you only remember the testimony from the record you made. If for example when they gave you [a document etc.] you wrote the information in your book, in order to have a record of it, and you had forgotten the facts and only remember them from your records, even in such an event you may testify. This is true only if upon reading the records, your memory is refreshed. Also, if your memory is refreshed by someone else who reminded you, you may testify; even if the one who reminded you is the second witness. However, if the litigant himself reminded you and refreshed your memory, you may not testify. The litigant, however, may present the facts to someone else, and that person may in turn remind you, for then your memory will have been refreshed by a third party.

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§21

A witness who is related to one of the litigants, or to one of the judges; or witnesses who are related to one another, even if the relationship is on their wives side, may sometimes be disqualified to testify. Even if they are related only to the guarantor, and not to the borrower, they are also disqualifed from testifying on behalf of the borrower. The Torah has disqualified the testimony of relatives, not because of the love they have for one another, for they are disqualified to testify whether it is in his favor or against him; but rather, it is a Divine decree. Even Moses and Aaron were not qualified to testify for one another. Therefore, any witness who is related to any one of the above mentioned individuals, or was once related, but the relationship no longer exists — should the judges be unaware of the situation, the witness must inform them, and they will tell him if in accordance with Torah law, the relationship is significant enough to disqualify him, or not.

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§22

If there are two witnesses and one of them knows that the other is a sinful man, and is not qualified to testify according to the law of the Torah, and the judges are unaware of his wickedness, it is forbidden to testify with him, even though the testimony is true, for it is said: "Do not join your hand with a wicked man to be a corrupt witness. It is a Divine decree that the entire testimony be invalidated even if there are many witnesses, should one of them be disqualified to testify. Who is considered sinful enough to be disqualified as a witness by decree of the Torah? Whoever transgresses in a matter which has been accepted by the Jewish people as a sin, and which is a Divine prohibition, that he violated intentionally and has not (been known to have) repented. However, if it is possible to assume that he did it unintentionally, or in ignorance, not being aware of the prohibition, he is not disqualified to bear testimony.