Siman 28

It is a positive commandment from the Torah for every man who knows testimony for his fellow, whether in a monetary matter or in a matter of prohibition, he is obligated to come before beit din and testify, as it is said: "And he is a witness, or saw, or knew; if he does not tell, then he shall bear his iniquity." And even if he is only one witness, he is obligated by rabbinic law to testify in a monetary matter, for even though one witness is not believed, nevertheless, he obligates the one who denies it to take a shvua, and perhaps he will not swear and will pay, and it turns out that through his testimony he saves the money of his fellow. And even in a matter of prohibition, in order to separate one from a prohibition, he is obligated to come to beit din and tell. But when the prohibition has already been committed, he should not testify alone, for he is nothing but one who spreads an evil name about his fellow, since the Torah did not believe one witness.

One is only obligated to testify if there is a benefit in his testimony, but when there is no benefit—such as if he is a relative, or disqualified, or has a personal interest in the testimony, or if he does not know clearly but only through hearsay or estimation—he does not need to testify. And if he is a relative or disqualified and the two litigants accepted him upon themselves, for he is then fit as written in siman 22, even though he does not transgress "if he does not tell" when he does not testify since the Torah disqualified him, nevertheless he is obligated to testify in order to save the money of his fellow since the litigants accepted him [Netivot HaMishpat].

The obligation takes effect upon him when one of the litigants claims that he should go and testify, or if the beit din sent for him. And sometimes, even if the litigant or the beit din did not claim that he should testify—for example, when they do not know that he knows this testimony—nevertheless, when he knows that the litigants are adjudicating this matter in beit din, the obligation takes effect upon him to go and testify in beit din. And as long as the litigants are not adjudicating in beit din, the obligation does not take effect upon him [Acharonim]. And it appears that if the witness knows that over the course of time they will adjudicate one with the other and he will not be in his home then, it is a mitzvah upon him to come to beit din and relate what he knows, and perhaps the beit din will send for the litigants to receive the testimony, for it is a mitzvah to save the money of one's fellow.

Anyone who is obligated to testify and suppresses his testimony and does not testify violates "do not stand idly by the blood of your neighbor" [Sefer HaMitzvot 297], and he is not forgiven by Heaven until he returns the money to his fellow according to what he caused him to lose by suppressing his testimony. And even if he is a single witness, he is liable by the laws of Heaven, for perhaps when he would have testified and would have obligated the litigant to take an oath, he would not have sworn falsely and would have paid, and it turns out that he caused him to lose money. But by the laws of man, we do not obligate him even when they are two, since they did not perform an action but merely a remote cause. And the beit din says to them or to him: Know that by the laws of Heaven you are liable, only we do not have the power to obligate you. And also seizure, if the litigant who lost through the suppression of their testimony seized from the witnesses, it is not effective and he must return it [Shach; and although in the Kesef Mishneh at the end of chapter 17 of Edut and in the Shiltei HaGiborim on HaKones sign 2 it implies that with two witnesses they are liable even by the laws of man, nevertheless all our teachers do not hold so].

If the witness says the truth that "I know this testimony but I took it upon myself not to reveal the matter," it is nothing, and the beit din decrees upon him that he must testify. And if he swore that he would not reveal the matter, if there is one other witness, the oath is nothing, as he is one who swore to nullify a mitzvah. But if there is no second witness with him, the oath takes effect, since according to the Torah he does not transgress "if he does not tell," and he requires regret and annulment [Urim VeTummim, see there]. And it is a mitzvah to annul the oath for him through regret, and it is a matter of a mitzvah in order to save the money of his fellow. And if there are two witnesses besides him, certainly the oath takes effect and they do not annul it for him unless the testimony of the others was not accepted for some reason. And the language of a neder does not take effect on this at all, for nedarim do not take effect on something that has no substance, and speech has no substance, unless he said, "Konam my mouth from speaking the testimony," as is written in Yoreh Deah siman 213. And it appears to me that in such a case, even when there is another witness, the neder takes effect, for nedarim take effect on a matter of a mitzvah, as is written there in siman 215, and therefore he requires annulment; whereas shevuot do not take effect on a matter of a mitzvah, but they do take effect even on something that has no substance, as is written there in siman 236, see there.

The witness must testify to the matter as it is, and he shall not add nor diminish. It is forbidden to testify that he saw a matter that he did not see with his own eyes, even though it is clear to him that the event occurred so—for example, if a trustworthy person, whom he knows does not lie under any circumstances, told him that the event occurred thus and so, or when he estimates according to the context that the event occurred so—it is forbidden for him to testify that the event occurred so. Rather, he should say, "According to my estimation," or "According to what so-and-so told me, it appears that the matter is so," and the beit din themselves will judge this according to the law or will inquire and investigate. The general principle of the matter: the witness must recount the entire matter as he saw or heard it, and he shall not add anything from his own mind. And similarly, if a faithful person requests of him: "Know that so-and-so owes me money, and I have only one witness; therefore, I request of you that you also be in the beit din so that my litigant will be afraid that you are also a witness in the matter and will admit to me regarding my money," it is forbidden for him to do so even though he says nothing, for perhaps due to fear he will settle with him unlawfully [Netivot HaMishpat], and regarding such as this it is stated: "Keep far from a false matter."

A person has the authority to place a ban in the beit knesset upon anyone who has knowledge of testimony for him, that he should come and testify. The ban applies to anyone who is fit to testify. Even those who are not fit to testify, such as relatives or those disqualified, if they know in which place the evidence of so-and-so is located, they are obligated to tell the beit din [ibid.]. However, to adjure a person as to whether he has knowledge of testimony is not within one's power, unless the beit din sees according to the needs of the hour that testifying falsely is light in the eyes of people; they have the power to adjure the witnesses before the delivery of their testimony that they should tell the truth. See what I wrote in siman 71. Specifically the beit din has this power according to their perception, but the litigant does not have the power to demand this from the beit din [Chatam Sofer]. See Yoreh Deah siman 232.

If a gentile sues an Israelite and demands that an Israelite testify for him in their courts against the Israelite, one must know if they will not extract more money in their courts than would have been extracted had it been according to our laws; if he is forced to testify, he should testify for him. But if they extract more than if it had been according to our laws, he must excuse himself. And if he was able to excuse himself and did not excuse himself and testified, he is liable to pay the Israelite when they obligated him more than if it had been according to our laws; we place him under a ban until he pays [Urim VeTummim and Netivot HaMishpat]. And if he was not able to excuse himself from testifying, such as if the matter is well-known among the gentiles that this person knows testimony, or if the gentile designated the Israelite to be a witness in the matter, and if he does not testify there will be a desecration of the Name of Heaven, he is obligated to testify for the sake of the honor of Heaven. And if the litigant clarifies that he testified falsely, he is liable to pay what he caused him to lose [and in our country, in the place of the courts of His Imperial Majesty where the laws are upright, every man of Israel is obligated, when the judges require him to testify, to testify the truth, for the law of the kingdom is law].

And a Israelite who sues an Egyptian and he denies it, and the Egyptian presents another Israelite as a witness, one must also see the principle that has been explained. However, since there are many details in this, and likewise in what was explained in the previous section there are many details, such as in the testimony of two relatives which in our laws is considered as one and in the laws of the Egyptians is considered as two, and it turns out that they will not act according to the law of the Torah, and so too anything similar to this; therefore, regarding the testimony of a Israelite in the laws of the Egyptians, whether he testifies for the benefit of the Israelite or whether he testifies for the benefit of the Egyptian, one must ask the question of a sage [Bach]. And all of this is not relevant in our times in the courts of the Emperor, as we have explained.

If a talmid chacham is required to be a witness before dayanim who are lesser than him in Torah, and among the three dayanim there is none greater than him or equal to him, if it is not his will to go before them due to the honor of his Torah, the authority is in his hand, and the beit din sends three people to his house and he testifies before them, and they transmit the matters to the beit din. However, to transmit the testimony to one or to two so that they may tell the beit din is forbidden, for it would be like a witness from the mouth of a witness, unless there is an enactment in the city regarding the reception of testimony, as I wrote in section 27. And this is specifically in a matter of money, but in a matter concerning a prohibition, there is no wisdom against Hashem, and he is obligated to go and testify. And even in a matter of money he may go, and a sage who waives his honor, his honor is waived, and through this he increases the honor of Heaven; and especially nowadays, it is remote that his intention would be for the sake of Heaven in his not wanting to go. And a Kohen Gadol, during the time the Beit HaMikdash existed, was not obligated to testify except in what concerned the collective, and he would go to the Sanhedrin and testify, and in other testimonies he was exempt [Rambam, chapter 1 of Edut]. And it is stated in the Gemara [Sanhedrin 18b] that when the Kohen Gadol needed to testify, the king would sit for his honor until they received his testimony. And all this is in a matter of money, but in a matter of a prohibition, he is obligated to go and testify, as I wrote regarding a talmid chacham. And it appears that a Kohen Gadol cannot waive his honor. And it appears to me that the Reish Galuta in the time of the Gemara has the status of a Kohen Gadol.

If one of the litigants claimed that he has witnesses and they are afraid to testify because his opposing litigant is a violent man and they fear him, if the beit din understands that the matter is true, they compel the violent litigant that he himself must bring those witnesses and they shall testify. We do not fear that they will testify falsely due to their fear of him, for this is not common; for although it is common that due to fear they would withhold their testimony and not testify at all, we do not fear that they would also testify falsely due to fear. All this is when it is known to the beit din that he has witnesses and they understand that they are afraid because of the violence of the second party, but if this is not known to the beit din, he is not believed to say so, for if not so, everyone would say this. See in section 101.

The dayanim must sit at the time of receiving the testimony and the witnesses must stand. In siman 17 it was explained that standing by means of leaning is called standing and also sitting; therefore, the dayanim are permitted even ab initio to stand by means of leaning and the witnesses shall stand, or the witnesses shall stand by means of leaning and the dayanim shall sit. However, for the dayanim and the witnesses to stand together by means of leaning, and to consider it sitting for the dayanim and standing for the witnesses, is a contradiction when they are in one standing. Ex post facto, if the dayanim stood at the time of receiving the testimony or if the witnesses sat, the testimony is valid. Therefore, if the witness is a talmid chacham, he is seated ab initio due to the honor of the Torah; see what I wrote there in section 5. It appears that even though ex post facto it is valid in all manners, nevertheless, if the dayanim stood and the witnesses sat, this is not a reception of testimony at all even ex post facto, and they must receive it anew.

They must receive the testimony in the place designated for the sitting of the judges. If they received it not in the place designated for their sitting, if nevertheless the beit din prepared themselves in some house and sat to receive the testimony, it is valid ex post facto. But if they received it in the marketplace or the like in the course of their walking, without preparation in some place, it is not considered a reception of testimony at all, and they must receive it anew [as above from Rashi Bava Kamma 75a]. [And see in the Shach and the later authorities; according to our words they do not disagree at all, and examine this closely].

The dayanim must understand the language of the witnesses and they may not receive their testimony through an interpreter. If they understand what the witnesses are saying, but only do not know how to respond, it is permitted to appoint an interpreter. All that was written in siman 17, section 9 regarding the litigants applies also to witnesses.

Before receiving the testimony, the dayanim intimidate the witnesses in the presence of everyone so that they will testify the truth, and they inform them of the punishment for one who testifies falsely in the World to Come and the shame that will reach him in this world; and even in the eyes of those who hired him he will be disgraced, as people say: "False witnesses are contemptible to those who hire them." Afterward, they send everyone outside, and only the dayanim, the witnesses, and the litigants shall remain there [Sma], for it is better to investigate and inquire when there are not many people. Also, of the witnesses, they send one outside in order to investigate them, this one not in the presence of that one, so that one will not learn from his fellow to lie. And the dayanim say to the witness: "Say, how do you know that this one is indebted to this one?" If he said, "He told me," or "A certain trustworthy man told me," or "According to my estimation he is indebted to him," there is nothing in his words until he says that he saw the loan or that in his presence he admitted to him with a complete admission that he is indebted, as will be explained in siman 81. And so too regarding other testimonies, they shall investigate and inquire very well until they establish the clarity of the matter. Afterward, they bring in the second witness; if he testified to the matter like his fellow, they send the witnesses and the litigants outside so that they do not hear who is the one who finds liable and who is the one who finds innocent. And the dayanim deliberate the judgment and conclude it. And the dayanim must be careful when the second witness says the entire wording that the first said word for word, whether there is a conspiracy between them in how they speak and it is not true testimony, and then they are obligated to investigate and inquire much [Yerushalmi, Perek 7, Halacha 8]. And if the second witness does not say all the details of his testimony but rather says, "I also say like the first witness," such as when he heard what the first said, even though according to Torah law it is effective even in capital cases [Sanhedrin 60a], nevertheless one should not do so, and they must investigate him as well, unless he is hurried to go on his way and it is impossible for him to testify in detail due to his haste, or he is ill and speech is difficult for him, for then we establish it according to the law. And a document with the validation of a beit din that came before us and it is written in it that the second said, "I also am like him," is valid [Taz], since it is valid according to the law and presumably they acted according to the law.

By Torah law, the testimony of witnesses is not accepted from writing, such that they would send their testimony in writing to the beit din, as it is stated, "By the mouth of two witnesses... shall the matter be established," and the tradition has come: "by their mouth," and not by their writing. And there are some of our teachers who hold that this only refers to a mute person, whom the Torah excluded from "if he does not tell," excluding a mute who is unable to tell [Gittin 71a]. And as was written in siman 35, the Torah excluded him in this regard even though he can tell through writing, since he is not fit to speak with his mouth. But one who is able to speak can speak even from writing, just as the Sages, of blessed memory, said regarding the mixing of the meal-offerings, that if one did not mix it, it is valid, however we require that it be fit for mixing [Menachot 18b], for anything that is fit for mixing, the mixing does not hinder it. And the proof for this opinion is that if it were not so, why do we need an exclusion for a mute? Rather, it is certain that "telling" also includes through writing, and if the Torah had not excluded the mute from "if he does not tell," we would not have derived "by their mouth and not from their writing," for this verse is not superfluous, as it was needed so that they should not hear from the mouth of an interpreter [Makkot 6b]. And now that the verse excluded the mute from "if he does not tell," we derive this verse regarding a mute, that it must be "by their mouth and not from their writing," meaning that even if the mute can write, it is not effective; and without this, we would not have known from "if he does not tell" except that his gesturing would not be effective, but regarding writing we would not know [so it appears to me in the intention of Rabbeinu Tam in Tosafot Yevamot 31a and Gittin ibid.]. However, the custom is according to the first opinion, as most of the poskim hold so. Nevertheless, one of the great Acharonim wrote that he saw authorities of instruction who were accustomed to accept testimony from a Torah scholar from writing and they rely on this opinion, and in a time of pressing need one may rely on this opinion. And even according to the first opinion, if the witness himself is in the beit din and writes his testimony in writing and says, "I testify to what is written in this document," it is called "by their mouth" [Ritva]. And when they accept testimony in writing in a time of pressing need, the judges must read the writing before the litigant, for there must be the receiving of testimony before the litigant, as will be explained; and if they do not hear what is in their writing, it is considered as not in the presence of the litigant [Netivot HaMishpat]. And when he sends the testimony in writing, he should write: "I, so-and-so son of so-and-so, testify as formal testimony, etc." Therefore, if it is necessary to collect testimony from a man who is in another place where a beit din is not easily found, he should write his testimony in writing and send it to the beit din of the place of the litigants.

According to the first opinion that has been explained, a beit din should not accept documents in which witnesses are signed according to Torah law when the witnesses are not before the beit din, for how can they judge based on them when this is "from their writing"? Rather, it is an enactment of the sages to accept documents and to judge based on them so as not to lock the door before merchants, as it is impossible to always bring the witnesses before the beit din when they are not in the city, or have died, or for another reason. And in siman 46 and 61 it will be explained what constitutes a document, for a matter that was written only as a mere memorandum does not have the status of a document; see there. Many of our teachers disagree with this and hold that testimony in a document is according to Torah law [see the Shach]. And even according to the first opinion, this only applies to documents of evidence and not to documents of acquisition [Netivot HaMishpat].

When a witness testifies, he must remember the matter clearly as he testifies. If some details are forgotten by him or he does not remember them clearly, he shall say so: "This I have forgotten" and "This I do not remember clearly." He should not rely on his imagination or his estimation, for this is not true testimony. However, that which he remembers he may testify even after many years, and we do not say that it was presumably forgotten by him over the length of time, for a person can remember for a duration of many years. Furthermore, even if the matter was forgotten by him and he found the matter written among his records, and he took it to heart and remembered the event clearly, he may testify. But if he did not remember, it is forbidden for him to testify; rather, he shall say, "This I found among my records and I do not remember," and automatically the beit din will not judge based on this, but will investigate and inquire. Similarly, if he forgot the event and another person reminded him, and after he reminded him he took it to heart and remembered the event clearly, he may testify. Even if the second witness reminded him, or even if a relative of the litigant reminded him, since he afterwards remembered on his own, he may testify. But if the litigant himself reminded him, or the wife and sons of the litigant—who are like his own person—he shall not testify even if he remembered after they reminded him, for we fear perhaps they presented the matter to him so persuasively that they misled him so that he would not sense that he does not remember well, and he imagines in his mind that he remembers even though he does not remember well. If the witness is a talmid chakham, he may testify even if the litigant himself reminded him, for a talmid chakham will not allow himself to be misled by the litigant. Some have written that one does not have the status of a talmid chakham in this time, but this is not a general rule in all matters and depends on the perception of the judges according to his wisdom and his fear [of Heaven]. All this is when the litigant conveys his words to the witness himself, but if he conveyed his words to the beit din or to a messenger of the beit din that they should tell the witness in his name that such and such was the event and at that time and in that place, and they told the witness and the witness remembered on his own, any person may testify, for since he did not hear it from the litigant himself, there is no concern here [Urim VeTummim].

A witness from the mouth of a witness cannot testify, and even if he heard from two kosher witnesses that Ploni borrowed from Ploni or sold a certain field to Ploni, it is forbidden for him to testify about the event since his eyes did not see the essence of the event. For a witness is not so called, whether in monetary laws or in capital laws, except for one who saw the event and not one who heard from the mouths of others. And regarding this it is stated, "by the mouth of two witnesses," and not one who heard from the witnesses. And that which we find regarding the matter of a get, when the husband said to two, "Tell Ploni and Ploni that they should write and sign a get for my wife," there is an opinion in the Gemara that those Ploni and Ploni may write the get even though they did not hear it from the mouth of the husband. And also in monetary laws, there are those among the poskim who validate it in a case of "say, 'tell Ploni and Ploni that they should write and sign a deed of gift to Ploni,'" as written in siman 244. This is not like a witness from the mouth of a witness, for a witness from the mouth of a witness only exists when they heard from Ploni and Ploni that Ploni borrowed a maneh from Ploni, or sold, or gave him a gift, where the testimony was not handed over to these [witnesses]. But in "say, 'tell,'" the primary testimony was handed over to these, and the first ones are agents of the owners to command these to act [Tosafot Gittin 67a, s.v. "Amru"]. And nevertheless, they write specifically by the word of two and not by the word of one [Chiddushei Rashba ibid. 29a]. And even though a person's agent is like himself, nevertheless witnesses may not perform an act based on the reliability of one witness. And only regarding gittin did the sages trust an agent to bring the get, for the reason that since there is a signed get in his hand, and witnesses signed on the deed are considered as if their testimony was investigated in beit din, and the rabbis required confirmation, and because of the ordinance of agunot, the rabbis were lenient to trust one who brings it [beginning of Gittin]. And one should not ask in this matter: since two witnesses are trusted in all laws of the Torah, why can two other witnesses who heard from their mouths not come to beit din and testify about the event? For it can be said: since we hold that witnesses, as long as their testimony has not been investigated in beit din, even though they testified outside of beit din, they can retract their testimony, whereas once they have stated their testimony in beit din they no longer retract and state [otherwise], as written in siman 29; if so, how can they testify about what they heard from the mouths of two witnesses outside of beit din? Behold, the witnesses themselves can retract their testimony; if so, this is not testimony at all. Therefore, two who heard from the mouths of witnesses who testified in beit din that Ploni borrowed from Ploni, or bought, or sold, or gave, and the beit din ruled accordingly based on them, they may testify in another beit din afterward, and that beit din rules the law based on them. And a proof for this matter is that behold, even in capital laws, when two testify that a certain man's verdict was finalized in a certain beit din, they execute him based on them, as the Rambam wrote in chapter 13 of Sanhedrin. And all the more so in monetary laws, for it is certainly more required for witnesses to see the event in capital laws than that they should hear from the mouth of the litigant in monetary laws. And one should not raise a difficulty: since outside of beit din the witnesses can retract, if so, in "say, 'tell,'" how do the others perform an act based on the two who told them that the owners commanded them to tell them to do such and such? Behold, they did not state this in beit din and they can retract. For it can be said that certainly two are trusted not to cause others to stumble. And that which they have the ability to retract when they did not state it in beit din, this is only in a mere recounting of things when they stated such and such and not for the purpose of performing an act, for then they were not concerned to state the truth. But when they command a person to perform an act, certainly two are trusted even not in beit din, just as they are trusted in any matter of prohibition to remove it from a status of prohibition, or one witness who is trusted in prohibitions in a place where it is in his power or where there is no status of prohibition, as written in Yoreh Deah siman 127. For it is simple that there is no difference in their reliability between in beit din and not in beit din. However, the Rambam and many of the poskim disqualify in "say, 'tell'" for the reason that "words are not handed over to an agent," as written in siman 244, see there. [And the words of the Netivot HaMishpat in the Biurim subsection 7 were not clarified to me.] And in siman 29 it will be further explained in this matter with the help of Heaven.

It is written regarding an ox that killed and was forewarned to its owner, the Torah said: Let the owner of the ox come and stand over his ox. From here the sages relied that in all testimony, they do not receive their testimony except in the presence of the litigant [our teacher, the Beit Yosef]. And reason dictates this, for when they testify before the litigant, they will take it more to heart to testify to the truth of the matter [Levush]. Therefore, in a clear matter where there is no concern that they would lie if it were not in his presence, such as in wills and the like, they receive it even not in the presence of the litigant [Sma]. And this too appears to be specifically when there is great burden for them to testify in the presence of the litigant; but in matters of commerce, admissions, and loans, they are obligated to receive it only in the presence of the litigant. However, if the beit din fears that perhaps they will show favoritism to one of the litigants, it is good and proper that they first ask them not in the presence of the litigant, and afterwards they shall testify in the presence of the litigant, so that they will be ashamed to retract their words [Yam Shel Shlomo, HaGozeil Batra, siman 8]. And so the Rivash used to do [ibid.]. And three laymen shall not receive testimony, for they will easily err in the reception of their testimony, and anyone who receives testimony and is not fit to judge, it is as if he received false testimony [ibid. siman 9 in the name of the Rif in a responsum]. However, in a place where there is no beit din and necessity leads to the reception of testimony there, the three who receive the testimony should be careful to write word for word as the witnesses said, and they shall send them to the hand of a beit din, and they will see if there is substance in the reception of their testimony or not.

And if they received testimony not in the presence of the litigant, our teachers the authors of the Shulchan Aruch ruled that one may not judge based on this testimony, and they must return and receive it in the presence of the litigant. And even though there are some of our teachers who ruled that after the fact their testimony is valid testimony, and they brought proof for this from that which we see that in a case of duress the sages were lenient, as will be explained—and if you were to think that even after the fact it is nothing, how could the sages, of blessed memory, be lenient in a case of duress [Ra'avan and Ra'avyah]? Nevertheless, we do not hold according to this opinion. And even though it is from an enactment of the sages, nevertheless they said and they said that even after the fact it is nothing, and in a case of duress they receive it initially [our teacher, the Beit Yosef]. And our teacher, the Rema, wrote that if they testified not in the presence of the litigant and we required them to return and testify before the litigant, and they changed their testimony from what they testified at first, we follow the second testimony that they testified in his presence, even though they testified previously under oath, for anything not in his presence is considered like outside the beit din, and they return and testify. Thus far his words. And I wonder at this: since according to the Torah their testimony is valid testimony, it should be a case of "once he has testified, he cannot testify again," and is it possible that by an enactment of the sages they would transgress a Torah law? And especially if they testified under oath, the great later authorities questioned that he should be disqualified from testimony due to a vain oath. And they answered that certainly if they swore that they would tell the truth, they cannot retract; only if they swore that they would give testimony can they say "we did not transgress the oath," for the intention was for testimony that would be effective according to the law, which is in the presence of the litigant [Netivot HaMishpat]. And it appears to me that all this is specifically when the reception of their testimony was not absolute such that they would not be required of them again in the presence of the litigant, such as when the litigant was in the city. Therefore, even though according to the Torah it is effective, nevertheless, since by an enactment of the sages they do not receive testimony not in the presence of the litigant, automatically they did not intend it as complete testimony the first time, and this is not "once he has testified, he cannot testify again" even by Torah law. But if they received their testimony absolutely, they can no longer retract [and there is some proof for this from the words of the Maharam of Padua brought in the Beit Yosef, which is the source of this law; see there]. And since there are some of our teachers who hold that after the fact one has the power to judge based on this testimony, therefore our teacher, the Rema, wrote that if the litigant is a violent person such that the witnesses are afraid to testify in his presence, they receive it initially even not in his presence, so that a sinner should not profit, unless the beit din has the power to compel the violent person so that they may testify in his presence; and if they do not have the power, they shall receive it not in his presence. And in the business of a minor, they do not receive testimony, for a minor lacks legal competence and it is like being not in his presence, unless it is a clear matter or in the presence of his guardian, as I wrote in siman 110; see there for several detailed laws regarding this.

The Geonim enacted that in matters of quarrels and disputes, we accept testimony not in the presence of the litigant, because there is a concern that by the witnesses testifying in their presence, the quarrels and disputes will be further aroused; and also the beit din shall not reveal who the witnesses are so that they do not quarrel with them. And this is specifically when they do not judge this with actual Torah law, but rather to quiet the dispute and to instruct according to the need of the matter, and to fine the liable party only according to what is necessary to quiet the quarrel. But when they wish to punish and judge one of them according to the law, one should not accept the testimony except in the presence of the litigant, as written in Even HaEzer siman 11, unless the witnesses are afraid to testify in their presence, for then we accept it not in their presence.

And because the essence of this law is an enactment of the sages, therefore our teachers, of blessed memory, said that when there is a concern that if they wait for the litigant the testimony will be nullified—for example, if the witnesses are ill and if they wait for the litigant perhaps they will die or become too weak to testify—they receive [the testimony] not in his presence and there is no need to send for him. And so too if the plaintiff is ill and requests from the beit din to receive the testimony immediately while he is alive so that he may remind the witnesses of the matter precisely; even though they remember on their own, nevertheless he will arouse them more by mentioning the matter, they do not send for the defendant and they receive their testimony. But when the defendant is ill, they do not receive [testimony] not in his presence, for however you look at it: if he lives, they will receive it in his presence, and if not, we will receive it afterwards not in his presence. And even though there is reason to fear that the property will fall before orphans and then it will not be possible to receive the witnesses, as written in section 21, nevertheless, since regarding the essence of the testimony nothing more is rectified now, they do not receive it not in his presence.

And so too, if the witnesses seek to go to a distant place and the plaintiff requests to receive their testimony not in the presence of the defendant, we listen to him. And specifically if the defendant is not in the city, but if he is in the city, they shall send for him. And if they sent for him and he did not come, they receive it not in his presence. And in this it is more stringent than the sick, for there is no need to wait at all because of the panic of death or the confusion of his mind; but in this, where there is no panic, they must send for him when he is in the city. And it is explained from this that if the witnesses are so pressed for time that they have no leisure at all to wait, they receive it immediately not in his presence even when he is in the city.

According to what has been explained, specifically when the witnesses desire to go to a distant place and they sent for him and he did not come, they receive [testimony] not in his presence; but when the witnesses do not desire to go to a distant place, even though the beit din sent for him and he did not come the first time, they wait regarding the reception of the testimony until they send for him at another time and he comes. And some say that when they sent for him and he did not come, in any case they do not wait for him and they receive his testimony not in his presence. And specifically when the judges are permanent judges in the city, or even if they are not permanent but they accepted upon themselves to judge before them—and that is, they already began to plead before them—and therefore, since they sent for him to come and hear the reception of the testimony and he did not come, he is the one who caused himself the loss. But if he did not accept to judge before them and they are not permanent judges, in a manner that he can say "I will not judge before you," as I wrote in siman 3, section 2, they do not have the power to receive testimony even though they sent for him and he did not come. However, with witnesses who are ill or desire to go to a distant place, even such judges may receive [testimony] not in his presence.

And so there are times when they receive testimony not in the presence of the litigant, such as Reuven who sues Shimon and Reuven has witnesses in another city; the beit din says to Shimon, "If you desire, go to the location of the witnesses and they shall testify in your presence." And if he does not want to, the beit din in the location of the witnesses receives their testimony and sends it to the beit din of the location of the litigant, and they judge them based on this deposition. And even though there are those who disagree on this, nevertheless our teacher, the Rema, wrote that such is the widespread custom and they rule accordingly. And so if he found his witnesses in another city, they receive their testimony there.

The entire essence of this law is only regarding a claimant who comes to extract money from the defendant, where they must testify in the presence of the defendant. However, when the defendant brings witnesses to exempt himself, they are received even not in the presence of the claimant. This is specifically when through their testimony they do not extract anything from the claimant; but if according to their testimony it will be necessary to further extract from the claimant, or for example if the claimant holds a document or a pledge and it will be necessary to extract it from him, they do not receive them not in the presence of the claimant [Shach]. And some say further that even without extracting anything from the claimant, it is only specifically if the claimant already sued him; then, when the defendant obtained witnesses, they are received even not in the presence of the claimant. But if the claimant has not yet sued him, they do not receive the witnesses of the defendant not in the presence of the claimant, for why should the beit din receive his witnesses since no man is suing him [Netivot HaMishpat]. And it appears to me that if the beit din understands that this one who brings witnesses speaks the truth, that the claimant will certainly sue him when it becomes known that the defendant has no witnesses here, it is a mitzvah to receive his witnesses in order to frustrate the craftiness of the claimant. The general principle of the matter in this regard is that although they do not receive witnesses not in the presence of the litigant, when the beit din sees in the waiting for the litigant a loss to one of the litigants, they collect not in the presence of the litigant. And one who is established as the possessor of some house or land and brings witnesses regarding his chazakah, even though there is no claimant before us, they receive their testimony, for perhaps some challenger will come against his chazakah; and so too in all matters of chazakah [Rashba]. And specifically when he is the possessor now before us; but when we knew that this one dwelling there or the one possessing the field—it is not his, and in days past it was rented in his hand, and now he brings before us witnesses that he purchased it from the one who rented it to him, they do not receive their testimony not in the presence of the lessor [Netivot HaMishpat, and this settles that which is in siman 140], and so too anything similar to this.

Two are not fit for the receiving of testimony, as it would be like a witness from the mouth of a witness, but rather a beit din of three, and they must be wise men proficient in the laws of testimony and careful in their receiving [of testimony] to align the testimony of each and every one, as we learned in Avot: "And be careful with your words, lest from them they learn to lie." And whenever they received testimony and are not fit to judge, their receiving is nothing; rather, a fit beit din returns and questions the witnesses if such is possible. And in any event, in a time of pressing need when there is no expert beit din, they should be careful that the three of them sit together and demand of the witnesses [to speak] under the penalty of "if he does not tell, then he shall bear his iniquity," and they shall write what they say and neither add nor subtract. And then, if it is impossible for the witnesses to come before an expert beit din, they necessarily judge based on their receiving [of testimony] if the expert beit din sees that they received it, in any case, without disqualification, as I wrote in section 20. And it is proper that those receiving testimony who do not judge themselves but rather send the record of testimony to a beit din should write who the witnesses are; however, if they did not write this, it is not disqualified thereby if only they collected [the testimony] according to the halacha.

If there is an enactment in the city that these two specific individuals shall receive testimony, or any other enactment regarding matters of testimony, even if it is not according to the law, their enactment stands. For the community has the authority to make enactments for themselves, and every community in its city is like the Great Beit Din for all of Israel, as I wrote in siman 2.

One who said in beit din that he has two sets of witnesses, and they examined one set and they said that they know nothing of this testimony, nevertheless, he has not lost his right and he may bring the second set. We do not say that he has been established as a liar, for it can be said that it seemed to him that these also knew of this. And so too, if he said that he has three sets, and two said that they do not know of this, he may bring the third set. And the beit din is not obligated to examine them as long as the defendant has not yet responded to the claim of the plaintiff, for perhaps the defendant will admit to the plaintiff and we will not need witnesses, and why should they trouble themselves for nothing? And of necessity it must be so, for since they do not receive testimony except in the presence of the defendant, as has been written, it follows that first they hear the response of the defendant to the claim of the plaintiff and afterwards they receive the witnesses.

One does not accept testimony at night, even when the witnesses are ill or are pressed to travel to a distant place, and when they collected it at night, it is nothing, and they can retract, for it is as if they testified outside of beit din; for the essence of the judgment is the acceptance of testimony. It has already been explained in siman 5 that it is from the Torah that one judges by day, and even if they already judged based on this testimony, it is nothing and they must judge anew [Netivot HaMishpat there]. And all this is without the consent of the litigant, but if they consented to this, they accept it at night even ab initio, as was written there.

If the defendants are two or more, they must all be present at the time of the reception of the testimony. If they received it in the presence of one of them, and the second admits that he has nothing to add or to deny them, but rather his desire is that they testify in his presence, we do not heed his claim, for the reception of testimony is the same for one as for two, and presumably the beit din was meticulous in the reception of the witnesses, as I wrote in siman 176 regarding an oath. However, if he says that he has something to add, they must receive it once more in his presence. And if the plaintiff comes to beit din to request a verdict after the first testimony, and the beit din does not know if the second has anything to add or not, then if the second was in the city at the time of the reception of the testimony and the beit din informed him and he did not come, they do not need to inform him another time, and they give the plaintiff a verdict since one defendant was in the beit din, unless he comes and says that he has things to add; and then, even after they gave a verdict, they return and hear it in his presence, for he shall not lose out because he did not come. And if he was not in the city then, when he comes, the beit din must inform him how they received their testimony in the presence of the defendant so-and-so, and perhaps you have things to add, come and say. And if he said that he has nothing to add but rather his desire is to hear it himself, we do not heed him, as I wrote [so it appears to me from Ketubot 94a, see there and examine carefully].