Siman 33

All of Israel are fit for testimony except for women, slaves, and the wicked, which will be explained in siman 34; and the deaf-mute, the deranged, and the minor, which will be explained in siman 35; and those with a personal interest in the matter, which will be explained in siman 37; and relatives, which will be explained in this siman. And the reason is not lest they lie, for behold they are disqualified whether for merit or for liability, and behold even Moses and Aaron are disqualified for one another. Likewise, two relatives together are forbidden to testify even if they are not related to the litigants; rather, it is a decree of the Torah that relatives are disqualified for testimony. But the reason is not because of love or hatred, for a friend or an enemy is fit to testify if he is not a relative. And even though for judgment they are disqualified, as I wrote in siman 7—because judgment depends on the mind of the judge, we fear that perhaps due to love or hatred he will incline his mind without intention, as I wrote there—but for testimony they are fit, for the witness only testifies to what he saw and heard, and Israel are not suspected of testifying falsely due to love or hatred. And these are the relatives who are disqualified from testifying: first degree with first degree, first degree with second degree, and second degree with second degree. And from there onwards, that is to say second degree with third degree, and certainly those more distant than this, are fit. And regarding third degree with first degree, there are those who disqualify and there are those who validate. And what is first degree with first degree? A father and his son, and a brother to a brother. And the sons of brothers are second degree with second degree. It follows that a father is disqualified for his son's son, for this is first degree with second degree; and for his son's son's son, which is first degree with third degree, there are those who disqualify and there are those who validate, as I wrote. And our teacher, the Rema, decided that he is disqualified; however, his disqualification is only rabbinic, and the practical difference is regarding the matter of kiddushin, as I wrote in Even HaEzer siman 42. And there is no difference between paternal relatives and maternal relatives, for maternal relatives are also disqualified by the Torah [Shach], though some say they are only rabbinic. Likewise, relatives through marriage—that he should not testify for the wife of his relative or for the husband of his female relative, as will be explained—are only rabbinic; and this is the opinion of the Rambam, of blessed memory. And there is one who says that the wife of his relative is by the Torah and the husband of his female relative is rabbinic, and the reason is that the woman is the acquisition of her husband and she is exactly like him, but the man is not the acquisition of his wife [Mordechai in the name of Riban, Perek Zeh Borei]. And the opinion of many of our teachers is that all of them are by the Torah, for behold in the Gemara they derived from a verse that a husband is like his wife and a wife is like her husband, and it does not imply that it is a mere asmachta. See Noda BiYehuda, Mahadura Tinyana, Even HaEzer siman 76.

Just as a relative is disqualified from testifying for his relative, so too is he disqualified from testifying for the wife of his relative; and likewise, for a woman to whom he is related, he is disqualified from testifying even for her husband, for a husband is as his wife and a wife is as her husband. Only in the case of a third degree to a first degree, even one who disqualifies the relative himself validates testifying for his wife, since they are so far removed. Therefore, it is permissible to testify for the wife of the son of one's son's son, and likewise for the husband of the daughter of one's son's son. However, if this matter also affects him, such as if they are nikhsei melog from which he consumes the usufruct, it is forbidden to testify for her since he is an interested party; and likewise for the husband of the daughter of one's son's son, if the matter also affects her, he is disqualified.

This principle that a husband is like his wife and a wife is like her husband applies only to them alone and not to their relatives. For example, the son of the husband from another wife and the brother of the husband are fit for one another. Similarly, the brother of the wife, who is disqualified due to the kinship of her husband, and her son from another man are fit for one another, for they did not become relatives through the marital kinship of their relative. However, a husband is disqualified regarding the relatives of his wife, for he is like her. Therefore, he may not testify for her son, nor for the wife of her son, nor for her daughter, nor for the husband of her daughter, nor for her father, nor for the wife of her father, nor for her mother, nor for the husband of her mother. He is disqualified even for her father's father and her mother's father [Taz], and they likewise for him.

This concept of "a husband is like his wife" and "a wife is like her husband" applies even when they are from two sides, such as two men who married two sisters; the husbands become like "first in first." And so it is with all relatives, except that in "second in second" we do not say "twice a husband is like his wife." Therefore, two men whose wives are "second in second" are fit to testify for one another, and likewise to testify together. And some say that even in "first in second" we do not say "twice a husband is like his wife," and our teacher, the Rema, ruled accordingly. Therefore, a man is fit to testify for the husband of his wife's brother's daughter or for the husband of his wife's sister's daughter. And the reason for all this appears to be that this principle of "a wife is like her husband" and "a husband is like his wife" is derived from that which is written: "The nakedness of your father's brother you shall not uncover, to his wife you shall not approach, she is your aunt." This is superfluous, and we expound that it means "she is your aunt" for all matters she is your aunt, and the wife is considered like her husband, and consequently a husband is like his wife. And this verse refers to "first in second" and on one side. Therefore, in "first in first," such as if one married a woman and the second married her daughter, or if they married two sisters, which is the highest degree, we certainly say in this case "twice a husband is like his wife." And in "second in second," which is distant from what is in the verse, we certainly do not say "twice a husband is like his wife." And regarding the degree mentioned in the verse, which is "first in second," the "some say" hold that we should not learn more than what is explicitly stated in the verse, while the first opinion holds that there is no difference between one husband and two, and regarding arayot it is impossible to depict the prohibition of one's aunt with two husbands. And know that even though by the letter of the law "twice a husband" are fit in "second in second," nevertheless our teacher, the Rema, wrote that initially they should be careful not to sign together on one deed, because we fear a mistaken beit din might disqualify this deed [Sma]. Nevertheless, in a place where there are no witnesses but them, they shall come and testify and sign together when there are no others to sign.

The father of the groom and the father of the bride may testify for one another ab initio, for mechutanim have no legal kinship, only a closeness of mind. Therefore, even though regarding the laws of judges it is forbidden ab initio, as I wrote in siman 7, because a friend should not judge ab initio, nevertheless regarding testimony, it has already been explained that a friend and an enemy are fit to testify, for Israel is not suspected of lying for the sake of love or hatred.

The brothers of a brother from the mother may testify for one another. For example, Rachel gave birth to Yosef to Yaakov her husband, and Leah gave birth to Yehuda to Reuven her husband, and Rachel and Reuven died, and Leah married Yaakov and gave birth to a son named Shimon. Behold, Shimon is a brother to Yosef from his father, and a brother to Yehuda from his mother; nevertheless, between Yosef and Yehuda there is no kinship at all.

The betrothed man is disqualified from testifying for his betrothed woman, for since he has performed kiddushin with her, she is like his relative. Nevertheless, she is not exactly like his wife such that he would be disqualified even for her relatives; however, he should not testify for her relatives ab initio when there are other witnesses. All this applies to a betrothed woman, but regarding a fiancée after the writing of the conditions as is customary in our lands, the fiancé is fit to testify even for the fiancée herself. This is not yet considered a kinship since there is no Torah-based proximity between them yet, unless he is testifying regarding a monetary matter that she would merit, in which case he is like one with a personal interest in the matter, for it is his desire that she bring the money to him, and he is disqualified like any person with a personal interest in testimony.

Converts in ancient times have no kinship, as they are like a newborn child. One who was born during the period of his father and mother's gentility is permitted to testify for his brother, even if his brother was born when his father and mother had converted, for they have no kinship with one another. If they were twins and their conception was not in sanctity but their birth was in sanctity, they are disqualified for one another [Shach and Taz], for regarding the matter of a brother's wife, it is like a complete forbidden relation, as is written in Yoreh Deah siman 269. There are those who are uncertain about this, as testimony is not comparable to forbidden relations [see Yevamot 22b].

When the disqualification is due to the kinship of his wife, if his wife died or he divorced her, even if he has children from her, he has become distanced and is fit to testify for that relative who was previously disqualified due to her kinship, and likewise that relative is fit to testify for him. And specifically, he must be fit at the time of the witnessing of the testimony and at the time of the narration in beit din, to exclude if he witnessed the testimony before the death and the divorce, he cannot testify even afterwards. But when the witnessing and the narration in beit din were in fitness, even though in the middle he was disqualified—such as if he witnessed the testimony before the marriage of that woman and the narration was after the death and the divorce—it is fit. And even though regarding a disqualification of nogea badavar we do not require its beginning and its end to be in fitness, as will be explained in siman 37, however, regarding a disqualification of the person, we require its beginning and its end to be in fitness. For a nogea is not a disqualification of the person but merely a suspicion that perhaps he will lie because of his interest in the matter, and once the suspicion is removed, we are not concerned for it. But the disqualification of kinship, which is a disqualification of the person by decree of the Torah, we require that he be fit at the time of witnessing as well, as it is written: "And he is a witness, or saw or knew, if he does not tell," for we require the status of a witness there at the time of witnessing and at the time of narration. And likewise regarding all the disqualifications that will be explained, such as a blind person and a deaf person, we require its beginning and its end to be in fitness, and for its middle we are not concerned. And there are those who disagree even regarding nogea badavar, that we require its beginning and its end to be in fitness [Shach siman 37, subsection 32], for in this, testimony is more stringent than civil law.

Reuven had a legal case with Shimon, and Reuven said that he has witnesses, but the beit din did not accept their testimony because they were related to one of the litigants at that time through their wives, and the beit din ruled on the case as if he had no witnesses. Afterward, their wives died, and Reuven requested of the beit din to accept the witnesses now, since they are now fit, and the observation of the testimony was also prior to their marrying the women. Nevertheless, they do not listen to him, since the ruling has already been issued. Similarly, if Reuven brought witnesses and they gave their testimony, and afterward it became known to the witnesses and the beit din that they were disqualified due to the kinship of their wives, in this case, even if they had not yet issued the ruling and in the meantime their wives died, they do not accept their testimony again. Since they testified once while they were related, we are concerned that they will not retract the testimony they gave due to shame, and it will turn out that we are relying on the testimony they gave at the time they were related. Similarly, witnesses who saw an event at a time when they were related are disqualified from testifying even when they later became distanced [Haggahot Ashri, chapter 4 of Shevuot].

A shekhiv mera who made a will for his sons before witnesses who are valid for his sons but disqualified for him, such as if he is a second-degree relative to the witnesses, there are those who disqualify because they must testify to what they heard from his mouth, and a relative is disqualified for testimony. And there are those who validate because the primary testimony concerns the sons and not him. And so too in any gift of a shekhiv mera where the witnesses are related to the shekhiv mera and distant from the recipients of the gifts, or in one who made a shtar khatzi zakhar for his daughter with witnesses who are valid for his sons and disqualified for him, there is also this dispute. And specifically in wills and in a gift of a shekhiv mera of his entire property and in a shtar khatzi zakhar; but in a gift of a healthy person or in a gift of a shekhiv mera of part of his property, whose law is like a gift of a healthy person as I wrote in siman 250, and so too in all matters of negotiation, according to everyone witnesses who are related to him are disqualified even if they are distant from the recipients of the gifts and from the buyers. For since according to their testimony this giver or seller cannot retract, it results that the testimony concerns him as well, and a relative is disqualified. And only in wills and in gifts of a shekhiv mera of his entire property, which he has the power to retract as long as he is alive, and so too a shtar khatzi zakhar which does not concern him at all and the entire essence of the testimony is for after his death, in this there are those who validate. And the Rosh and the Tur hold according to the first opinion.

Witnesses who are related to the guarantor are disqualified from testifying regarding this loan for the borrower, whether to his benefit or to his detriment. Since the guarantor is connected to this loan if the borrower does not pay, it follows that their testimony affects their relative, and a relative is disqualified whether to benefit or to detriment, as I wrote at the beginning of the siman. There is no difference whether the borrower comes to exempt himself with a claim of "the things never happened," where he denies the loan and they testify that he borrowed, or if he exempts himself with a claim of payment and they testify that he did not pay. And likewise the opposite, where he brings witnesses that he paid or that they promised to lend and he did not borrow even though there is a document in the hand of the lender. We do not say that they should be believed regarding the borrower and not regarding the guarantor when they obligate the borrower, for testimony that is voided in part is voided in its entirety. This is not similar to what will be explained in siman 34 regarding a person who testifies about his fellow and makes himself a wicked person, where we split his speech and he is believed regarding his fellow and not regarding himself, for a person regarding himself is not in the category of testimony at all; however, regarding testimony, we do not split his speech [Beit Yosef in the name of the Ritva].

Witnesses who are related to the judges: some disqualify them because it is testimony that you are unable to refute through hazamah, for the judges will not accept the witnesses of hazamah against their relatives. And some validate them, for although this beit din will not accept the hazamah, they can surely testify in another beit din. Furthermore, in monetary matters we do not require testimony that you are able to refute through hazamah at all, for the reason for the seven inquiries is because of hazamah, as I wrote at the beginning of siman 30, and in monetary matters the Sages, of blessed memory, abolished the seven inquiries because of "locking the door," as I wrote there; evidently, in monetary matters we do not require testimony that can be refuted through hazamah. However, witnesses who are related to one another are disqualified according to all opinions. And even though in the Yerushalmi it says the reason for the disqualification of the witnesses' relation to one another is also because of hazamah—for when they are refuted and punished, it turns out that a relative causes his relative to be executed, as they do not become zomemim until both are refuted—nevertheless, our Shas rejects this reason and holds that it is a decree of the Torah and applies to every matter of testimony.

Reuven who killed or struck Shimon, the relatives of Shimon are fit to testify against Reuven in a matter where no benefit will reach Shimon through their testimony, such as to expel him from the beit knesset and the like. Not only this, but even Shimon himself is fit for this; and even though he is his enemy, nevertheless it has already been explained that an enemy is fit for testimony. A witness who is a tereifah is disqualified in cases of dinei nefashot, as is written in siman 425, because it is testimony that you are unable to subject to hazamah, for if they prove the conspirators to be zomemin, they would not be liable for death since they only sought to kill a tereifah, see there. But in dinei mamonot he is fit, even according to the first opinion in the previous section, for a monetary obligation applies even to a tereifah, for even a tereifah who borrowed money is obligated to pay, as what does money have to do with being a tereifah [Shach].

Our teachers, the authors of the Shulchan Aruch, wrote: If the community appointed witnesses and enacted that no testimony besides theirs shall be valid, they are fit to testify even for their relatives, since they accepted them upon themselves. However, if they merely appointed witnesses in the city, their intention was not that they should testify for those disqualified [to them]. Similarly, dayanim appointed in a city shall not judge their relatives, and such is the practice. Thus far their words. And see what I wrote in siman 8.