Siman 29

It was taught in the Tosefta of Ketubot [Chapter 2] and in the Yerushalmi there: Witnesses who testified, whether to declare impure or to declare pure, to distance or to draw near, to forbid or to permit, to exempt or to obligate—as long as their testimony has not been examined in beit din, if they said "we are liars," they are believed. Once their testimony has been examined in beit din, if they said "we are liars," they are not believed. And in the Yerushalmi it concludes regarding this that they treated witnesses signed on a document as if their testimony had been examined in beit din. And so wrote the Rambam in Chapter 3 of Edut and the Tur in this siman. Our teachers, the authors of the Shulchan Aruch, wrote: After the witness has testified in beit din, and it is after the time of "within the duration of a speech," he cannot retract. How so? If he said, "I was mistaken," "I was inadvertent and I remembered that the matter is not so," or "I did it out of fear," they do not listen to him, even if he gave a reason for his words. Thus far their words. And the reason they did not write "after their testimony was examined in beit din" is because monetary laws do not require derishah and chakirah, as will be explained in siman 30. Therefore, after they have testified, their testimony is completed and they cannot retract. However, in capital cases or fines, which require derishah and chakirah, they can retract even after the delivery of their testimony if the derishah and chakirah have not been completed. All of this we learned from the verse "if he does not tell," for once he has told, he cannot return and tell again, as one "telling" is written in the verse and not two "tellings" [Rashi there 18b]. And it implies that regarding a "telling" that has utility the verse wrote, which is in beit din, a place where they receive testimony. Therefore, in everything they spoke outside of beit din, they can retract; but from the time they spoke in beit din and their testimony was completed, they cannot retract. Within the duration of a speech they can retract, for in the entire Torah, "within the duration of a speech" is like the speech itself. The first witness can retract even within the duration of the speech of the second [Sma], because the two witnesses are considered as one. This is specifically when the second testified his testimony within the duration of the speech of the first; but if he testified after the duration of the speech of the first, they are not considered as one, and the first cannot retract after his own duration of a speech [Urim VeTummim]. The same applies to three witnesses. As for that which is said in the Yerushalmi, that they treated witnesses signed on a document as if their testimony had been examined in beit din—meaning that they cannot retract—this is specifically when they recognize their signatures, as will be explained in siman 46 with the help of Heaven. It implies from the wording of the Yerushalmi that it is a rabbinic enactment. Even though in our Talmud it is explained [that by Torah law] witnesses signed on a document are as if their testimony was examined in beit din, and the authentication of the document is rabbinic, it is possible that documents of acquisition and documents of divorce and betrothal, which the Torah commanded regarding them and we do not find that it required authentication, this is from the Torah like testimony examined in beit din; on the contrary, the authentication is rabbinic. But documents of evidence, such as one who borrows money and gives the lender a document so that he will not deny it, such a document has no basis in the Torah at all. And the document of Jeremiah the Prophet [32], even though it is written therein "so that they may last many days," implying it should stand as evidence, it was a document of acquisition as is explicit there, and incidentally he gave him good advice that the document should be preserved for a long time [Gittin 22b]. Therefore, all documents of evidence are a rabbinic enactment, that once they are authenticated they cannot retract. [And the Yerushalmi and the Bavli do not disagree, and from this is a great proof for the Rambam, of blessed memory, in Chapter 3 of Edut, that documents are rabbinic, and his intention was for documents of evidence, as I wrote in the previous siman, section 17. And you should precisely note that at the beginning of Gittin, which deals with a get, the Talmud says "witnesses etc. and it is the rabbis who required authentication," see there, for a get is from the Torah; but in Ketubot 18b, the Talmud does not use this wording, because it deals with a document of evidence, and its essence is rabbinic according to the opinion of the Yerushalmi].

According to what has been explained, it is implied that one may not rely on the testimony of people regarding any matters of the Torah except in a beit din. According to this, a great question must be asked: How do we rely on all matters pertaining to kashrut and tumah and taharah based on people who tell us that this is kosher and this is tahor? And similarly regarding witnesses of kiddushin and gittin, even when they do not testify in a beit din [and our sages, of blessed memory, said: "Is it so that everyone who divorces, divorces in a beit din?" in Erachin 23a]. Behold, there should be nothing in their words since they can retract them. The answer to this matter, in my humble opinion, is that the essence of the matter is as follows: Certainly, when witnesses testify to a person that he should perform an action based on their words—for example, they say to him, "This meat is kosher and you may eat it," or they say to a kohen, "This terumah is tahorah and you may eat it," or when one wishes to betroth a woman and does not know if she is unmarried and they testify to him that she is unmarried and he may betroth her, and all the more so when he betroths or divorces in their presence even though they do not testify in a beit din, or in matters of money where they say to a person, "This field or this house belongs to your father and you may take possession of it"—in all these cases, there is no difference whether they say so in a beit din or not in a beit din, for "by the word of two witnesses shall a matter be established." And similarly in a matter where a single witness is believed, as written in Yoreh Deah siman 127, there is also no difference between a beit din or not in a beit din. And they cannot retract their words since they commanded that an action be performed based on their words. And two other witnesses can come to a beit din and testify about the matter that they heard witnesses tell Reuven that he should do such and such. This is not "a witness from the mouth of a witness," for just as they testify about one who killed a person, so too they testify about this, since there is an action involved in the matter; for witnesses do not need to be designated as witnesses, as written in siman 39. That which the Torah disqualified "a witness from the mouth of a witness" and that the witnesses can retract as long as they have not testified in a beit din, this is when they are not testifying to a man to perform an action, but rather a mere narration of things. For example, if they say, "This meat is kosher," "This terumah is tahorah," "This woman is unmarried," "Ploni owes Aloni a maneh"—since they are not testifying to a person that he should perform an action based on their words, there is nothing in their words and they can retract until they testify in a beit din. And it is forbidden for witnesses to testify in a beit din what they heard from these people, and this is "a witness from the mouth of a witness," as written in siman 29, section 19. Consequently, in matters of shtarot, when we find a shtar where witnesses testify that Ploni borrowed from Aloni, or sold to Aloni, or gave, or a shtar that Ploni betrothed Alonit or divorced Alonit, and we do not know at all if the matter is true or if they wrote it for the sake of a joke or for the sake of forgery and the like—it would have been proper according to the law not to rely on these matters at all, for their writing is no better than their speech. And if we had heard two witnesses speaking thus outside of a beit din, there would be no substance in their words, and it would be forbidden to testify about these matters as has been written, and their speech would not be effective except when said in a beit din. If so, why does their writing have more power than their speech? However, it is a decree of the Torah that when we find a shtar, it is as if their testimony was examined in a beit din, and we act based upon it. And by rabbinic law, they required it to be specifically validated. And according to what I wrote in the previous section, this applies only to shtarot of acquisition, while shtarot of evidence are essentially rabbinic, as written there. And the verse "if he does not tell" proves this, as it is written therein "and he is a witness, or saw, or knew etc.," but not where he commanded to perform an action, for in that case a beit din is not required [so it appears to me].

It has already been explained that after their testimony in beit din, they cannot retract, even if they provide an explanation for their words, saying "we were unintentional" or "we were mistaken," or "we remembered that the matter is not as we testified," or if they say "we acted out of fear," and the like—there is nothing in their words. We lash them, and their first testimony stands, unless other witnesses contradict them. Even to add to their testimony they are unable. And even if they say "the matter was conditional," they are not believed, since they did not state so previously. And there are those who say that they can add a condition, for this is not a contradiction to their testimony; see in siman 46. The main ruling is according to the first opinion [Shach], and there it will be explained.

But regarding an error that witnesses are prone to make according to the understanding of the beit din, and the beit din understands that they erred in this, they are believed to say that they erred. And so too if it is proven that they erred, such as if the beit din commanded one of the litigants to bring witnesses that he is not a deceiver, and he brought the witnesses, and the beit din asked them, "Do you know this man to be a deceiver?" and the witnesses said, "Such is the case," and the litigant said to them, "Am I then a deceiver?" and they said, "We did not say that you are a deceiver, rather we said that you are not a deceiver," we listen to their latter words. This is because, presumably, a person does not bring witnesses to his own detriment, and certainly they erred; and so too in any similar case.

And so, if their words were obscure and could bear two interpretations, they are believed to interpret their words and to say that such was their intention. And even if they provide a remote interpretation that, according to our estimation, we would not have interpreted so, nevertheless they are believed to say that such was their intention, since their previous language can also bear this explanation. And the general principle of the matter is: as long as we are able to reconcile their words that they speak now with their previous words so that they do not contradict one another, we must reconcile them. And in all this, there is no difference between one witness and two witnesses.

When a proclamation is made in the beit knesset after some testimony that anyone who knows anything should come and testify before they exit the beit knesset, and when they exited the beit knesset witnesses came to tell and said that at the time they were in the beit knesset they did not set their hearts to remember the matter and testify, and now they set their hearts and remembered, they are able to testify. And we do not say that they are lying since they were silent initially. And even if they said while they were still in the beit knesset, "We do not know of this testimony," and afterwards they gave an explanation for their words as to why they said so, they are able to testify, since they did not say previously the opposite of what they are saying now. And all the more so if they said in the beit knesset, "We do not remember now," that they are able to testify afterwards even without an explanation, for it is simple that afterwards they remembered. But in beit din, when they asked them and they said, "We do not remember," they are not able to testify afterwards unless they said, "We do not remember now" [Sma]:

Witnesses who said, "We testified falsely," even though they are not believed to nullify their testimony, nevertheless, regarding themselves they are believed and are obligated to pay that litigant everything he lost through their testimony. And if one witness testifies, "I testified falsely," he must pay half. And if there were three or more and one of them admitted that he testified falsely, it is a matter of doubt if he must pay according to his portion, or perhaps since even without his testimony there were two witnesses, he does not need to pay at all, for even without him the testimony was sufficient. And reason inclines that he must pay, and it is not similar to what was written in siman 25, section 8, for there the two judges did not agree with the three, whereas here they all testified equally. See further regarding this law in siman 38. And it appears that in that case of section 3, they do not need to pay at all, for granted that according to their words they testified falsely, nevertheless, according to their words they were under duress, except that we do not believe them, and why should they be obligated to pay? But when they say, "We testified falsely" intentionally, they are certainly obligated to pay.

One witness testifies that he saw this matter and the second says he did not see it; if they stood somewhat distant from one another, this is not contradictory testimony, for it is possible that this one saw and this one did not see, and "we did not see" is not proof that the event did not occur. However, when they stood in one place and the one said "I did not see," it is like a contradiction. And this is specifically when the second admits that he was with him in one standing and did not see; but if the second says that he was not there at all, even though the first says that this second one was with him, this is not a contradiction. For in this, an error is common, as a witness is not exacting as to who was with him at the time of the testimony, and in his imagination, this person was with him, and this is not a lie like one who testifies falsely. For it is a great principle that anything we are able to reconcile of the words of the witnesses so that they will not be contradictory, we settle their words, as will be explained in siman 30.