Siman 34

A wicked person is disqualified from testimony, and even a valid witness who knows that his fellow is a wicked person, and the judges do not recognize his wickedness, it is forbidden for him to testify with him even though it is true testimony, as it is said: "Do not join your hand with a wicked person to be a witness of violence," meaning, do not testify with a wicked person, for you will cause the beit din to rule based on both of you and extract money based on a witness who is disqualified by the Torah, and there is no greater violence than this. And one should not say that its explanation is that the Torah forbade testifying falsely with the wicked person, for if so, it would be forbidden even without the wicked witness. And what should that valid witness do? He should testify alone in beit din, and the beit din will rule the law according to the law of one witness. And certainly regarding a witness who knows testimony, that he should not testify with his fellow who does not know this testimony and is a false witness—he should not testify with him even though he knows that the essence of the matter is true, as it is said: "Keep far from a false matter," meaning, even though the matter is true, nevertheless the speech of this one is a lie. And if the valid witness is disqualified because he saw the testimony together with the disqualified person, it will be explained in siman 36 with the help of Heaven. And even if there are two witnesses aside from the wicked person, and there is no practical difference in his testimony, they are forbidden to testify with him, for any testimony in which a disqualified person is found, the entire testimony is void, as written there, and it turns out that the beit din would extract money through disqualified testimony [Shach]. [And according to what I wrote, that which our teacher, the Beit Yosef, questioned on the Tur and the Rambam is settled, for they changed the midrash of the Gemara in Shevuot 30b; see there and examine it closely]:

Who is a wicked person? Anyone who has intentionally committed a Torah transgression for which one is liable for death, kareth, or lashes, whether he transgressed out of spite or whether he transgressed out of desire, for the Torah called him a wicked person, as it is said: "And it shall be, if the wicked person is worthy of being beaten." This applies all the more so to those liable for kareth and deaths by beit din. Regarding a transgression that does not carry lashes, he is disqualified rabbinically; so wrote our teacher, the Rema. And it is true that from the wording of the Tur and the Rambam in chapter 10 of Edut it is implied so. However, from the words of our teachers Rashi and Tosafot [Rosh Hashanah 22a], who wrote that the reason a lender with interest is only disqualified rabbinically—even though it is a Torah prohibition—is because the borrower gives it to him of his own will and it does not seem like a prohibition to people [Tosafot, and what Rashi wrote is according to Rava in Sanhedrin 107a]. It is thus explained that were it not for this reason, he would be disqualified by the Torah even though there are no lashes for interest, as it is transformed into a positive commandment of restitution [Bava Metzia 62a]. And if he committed a rabbinic transgression, he is disqualified rabbinically. One who cohabits with a gentile woman is disqualified by the Torah, and some say rabbinically [Sma]. It is possible they do not disagree: for if ten from Israel knew of this, such that it is public, where the law is that "zealots may strike him" as written in siman 425, he is disqualified by the Torah; and if not, his disqualification is rabbinic. Similarly, if she has a husband, he is disqualified by the Torah according to the opinion of Rashi and Tosafot that was explained, for there is a positive commandment in this: "and he shall cleave to his wife," and not to the wife of his fellow [Tosafot Kiddushin 21b, s.v. Eshet]. Similarly, if he cohabited with her in the manner of marriage, he is disqualified by the Torah according to the first opinion in Even HaEzer siman 16, see there. Similarly, if he was a kohen, as written there. [And one could say that Rashi and Tosafot also hold like the Rambam and the Tur, and a matter of money does not require lashes; for indeed the Tur and Shulchan Aruch also wrote that a lender with interest is disqualified by the Torah, as the Beit Yosef wrote, see there].

Our teacher, the Rema, wrote that there are those who say that regarding a rabbinic prohibition, one is not disqualified from testimony until he violates a prohibition due to the coveting of money, for then they feared that just as he violates a transgression for the sake of money, so too he will testify falsely for the sake of money. And their reasoning is that since in the Gemara there is one who holds that even regarding a Torah prohibition one is not disqualified unless there is the coveting of money in the transgression, although we do not rule accordingly, nevertheless, regarding a rabbinic prohibition it is certainly so, and we shall not create a distant dispute [and so it appears in the Mishnah in Sanhedrin 24b, which only considers prohibitions that involve monetary benefit, see there].

That which has been explained, that regarding a rabbinic prohibition he is disqualified by rabbinic law, this is when he transgressed occasionally. However, one who casts off the yoke of rabbinic commandments from his neck, even the lightest commandment, behold he is a min and is disqualified by Torah law. And similarly, when he nullified a positive commandment of the Torah, such as not donning tefillin for one day or not sitting in a sukkah for one day during the festival, and anything similar to this—if he did so not as a casting off of the yoke but rather due to laziness or desire, he is not disqualified by a single instance according to the opinion of the Rambam, the Tur, and the Shulchan Aruch in section 2. But if he did so as a casting off of the yoke, such that he mocked this commandment or that he consistently does not care for this commandment, and similarly one who mocks the words of our sages, of blessed memory, behold he is a min and is disqualified for all testimony and for joining a minyan of ten until he returns in complete repentance, and he shall return and be healed.

There are matters that are transgressions, yet the masses do not consider them to be a transgression, such as with the prohibition of "do not covet," as it seems to them that there is no prohibition unless one covets so that it will be given to him for free; but when he pays for it, they imagine there is no prohibition in the matter. Therefore, those who transgress the prohibition of "do not covet" by giving money, even though they are transgressing a Torah prohibition, nevertheless, since they do not intend to commit a transgression, they are fit for testimony. And so too, anything similar to this which appears to the masses as permitted, they are not disqualified from testimony. And all the more so regarding transgressions where it seems to the masses that, on the contrary, they are performing a mitzvah, such as those who lend on books and study from them, or those who lend the money of orphans with fixed ribbit, for in their opinion they are performing a mitzvah for the benefit of orphans, or those who buried the deceased themselves on the first day of Yom Tov, for in their opinion they are performing a mitzvah in this. And even if the beit din excommunicated them for desecrating Yom Tov and afterwards they did so another time, they are also fit, for they believe that the excommunication is for atonement, and nevertheless they performed a mitzvah. And so too regarding other transgressions where we can say that they acted out of error, they are not disqualified thereby. However, transgressions that are known to all to be transgressions, but the masses have broken through the fence in this in certain places, such as those who measure and weigh with false measures and weights, or those who move money on Shabbat or other known types of muktzeh, and all the more so if they sit in shops on Shabbat, or shave their beards, or drink yayin nesech, or go to houses of prostitution and the like, they are disqualified from testimony until they perform a complete teshuvah with regret for the past and an acceptance for the future not to do so, for this is the essence of teshuvah. And one who is accustomed to raising a hand against his fellow is disqualified from testimony by rabbinic law, for the Torah called him wicked, as it is written: "And he said to the wicked one, why do you strike your fellow?" Nevertheless, he is not disqualified by Torah law because there are no malkot for this, for one who wounds his fellow is liable for payments and not for malkot, as I wrote in siman 420 [the Gra]. And according to this, in the opinion of Rashi and Tosafot in section 2, he is disqualified by Torah law.

One who violates an oath is disqualified from testimony, whether he violated a vain oath or whether he violated a false oath regarding money, or even a rash oath, and all the more so if he violated an oath of testimony or an oath of deposit. And even if he violated a communal ban [in ancient times]. And some say that he is only disqualified by an oath regarding the past, such as if he swore that he did not eat and he had eaten, for at the moment the oath left his mouth, it left in falsehood. But regarding an oath for the future, such as if he swore that he will not eat and he ate, he is not disqualified by this. And some say that even regarding the future, there is that which disqualifies and there is that which does not disqualify. How so? If he performed an action, such as one who swore that he will not eat and he ate, he is disqualified because he performs an action to violate his oath. But where he does not perform an action, such as if he swore to eat and did not eat, where he violated by "sit and do not act," he is not disqualified by this. And the primary view is according to this opinion [Netivot HaMishpat]. And one who violates an oath is not believed to say "I was unwitting" or "I was coerced" if there are witnesses that he violated the oath, for if not so, one would never find anyone who is disqualified by an oath, for everyone who violates would say so; unless the beit din estimates according to the matter that it is possible that he was unwitting or mistaken or coerced, and then when he claims so, he is believed [so it appears to me, and the difficulty of the Shach is settled, and delve into it].

A butcher who sold treifah to an Israelite under the presumption that it was kosher is disqualified by the Torah. Even though he does not eat treifot himself, nevertheless, since because of the desire for money—as kosher meat is more expensive than treifah—he is suspected of feeding treifot, so too he is suspected of testifying falsely for money that they will give him. And so too, anyone who sells a forbidden item under the presumption that it is permitted for the sake of monetary profit is disqualified from testimony. The general rule of the matter: anyone who commits even a light prohibition for the sake of money is disqualified from testimony by the Torah. And specifically, because aside from the prohibition that he causes others to stumble upon, the money is indeed theft in his hand; and since he is suspected regarding money, it is obvious that he would testify falsely because of money.

The thief and the robber are disqualified from testimony from the time of the theft and the robbery. And if he returned the theft or the robbery—if he returned it of his own accord and had not yet been established as a thief or a robber, but rather it was a chance occurrence, he returns to his fitness. But if he returned it through the compulsion of a beit din or through other compulsion, he is not rendered fit by this. And so too, if he was established as a thief or a robber, his voluntary return of one theft or one robbery does not avail until he performs proper repentance for all his thefts or his robberies. And one who shares with a thief, some say that he is disqualified from testimony, and some say that he is not disqualified. And if he is constantly engaged in this, it appears that according to all he is disqualified. And so it is proper to rule, that one who receives a theft or shares with a thief or assists a thief, when he is accustomed to this, they shall be disqualified from testimony, since they commit a transgression due to the coveting of money, as I wrote in the previous section. And so too, one who denies a deposit or a loan is disqualified from testimony, and in siman 92 it will be explained when he is disqualified; see there.

Edim zomemim are disqualified from the time they testified, for it is a decree of the Torah that the witnesses who disqualify them—when they say to the witnesses, "You were with us at that same time that you say the event occurred"—are believed, and the witnesses are disqualified from the time they testified. And even if they paid the money they sought to cause a loss of through their testimony, nevertheless, since they did not pay of their own accord but rather by the ruling of a beit din, they do not return to their fitness, as has been explained in the previous section. And if the hazamah was regarding a shtar, for example, if a shtar was produced before us signed by witnesses who testify that on Rosh Chodesh Nisan Reuven borrowed a maneh from Shimon in Jerusalem, and two witnesses came and said to them, "You were with us on Rosh Chodesh Nisan in Babylonia," they are not disqualified by this. Not only that, but even the shtar is valid, because we say that it is a post-dated shtar that was written before Rosh Chodesh Nisan for the date of Rosh Chodesh Nisan, and a post-dated shtar is valid regarding a loan, as has been explained in siman 43; for it has already been explained in siman 30 that we reconcile the words of the witnesses in any way we can, unless it is explicit in the shtar that it was written at its date, or the witnesses of the shtar stated orally before a beit din that the shtar was written at its date, for then the shtar is invalid and the witnesses become disqualified. And from when are they disqualified? If there are witnesses who know on which day the shtar was written, they are disqualified from that day. And if they do not know when it was written, they are disqualified from the day their signatures were seen on this shtar. And if witnesses did not see the shtar previously, and also do not know when it was written, they are not disqualified except from the time the witnesses of hazamah testified against them in beit din when it was written in the shtar that it was written at its date, and we do not have the power to disqualify them retroactively from the day of their signing, for perhaps on this day that they testified against them in beit din, they then signed the shtar in their wickedness for an earlier date. And even if it is not explicit in the shtar that it was written at its date, but they themselves testified that it was written at its date, nevertheless they are not disqualified except from that same day they testified about themselves that it was signed at its date, for perhaps on this very day they signed for an earlier date, and out of doubt we do not establish them as disqualified retroactively. For the reason they become zomemim even in a shtar is because witnesses signed on a shtar are considered as if their testimony was examined in beit din, and they become wicked from that time, as it is as if they testified at that time; if so, we should only disqualify them from the day they certainly signed the shtar, and we cannot look at the date written in the shtar, since they are wicked, who can tell us that it was signed at its date even if they say so? For their credibility is lost by the words of the witnesses of hazamah.

There are some among the great Rishonim who hold that the law of hazamah does not apply to a document in any case, for since hazamah is a novelty—in that the Torah believed the latter witnesses—you have only its novelty, and that is specifically regarding their oral testimony and not in a document [Ran at the end of the second chapter of Ketubot in the name of the Me'or]. Many disagree with this, and some say that even according to this opinion, the witnesses are certainly disqualified, for it is no worse than hazamah not in the presence of the witnesses, which was explained in siman 38; for granted that there is no law of hazamah in this to fulfill "as he conspired," but it is at least a contradiction to disqualify the witnesses. And such is the law regarding a document, that it is like hazamah not in their presence, such that they are disqualified, but we do not fulfill "as he conspired" regarding them and they do not need to pay [Bach]. According to this, it is possible that all the poskim agree to this [Shach]. [And it requires further study, for according to this, why should the witnesses also be disqualified for all testimony? For behold, in hazamah not in their presence, they only have the status of a contradiction, such that this testimony is void, but they are not disqualified for all testimony, as is proven from the Gemara Ketubot 20a. See there in Rashi, and it is also apparent from the Rambam, chapter 18, halakhah 5, and from the Tur there. And one must say that he holds even in hazamah not in their presence that the witnesses are completely disqualified, and it is only to punish them that is impossible not in their presence. And from the Gemara, Rambam, and Tur there is not such a proof, see there. And I found in the Tumim who raised this difficulty, see there].

One who hired false witnesses to testify for him—they are not disqualified until the time they testify, and not from the time he hired them, even if they received money from the one who hired them; for it was within their power to retract and return to him the money they took from him, and on account of their thought to commit a transgression, it is not possible to disqualify them. They are not disqualified except from the time they testified in beit din. And so too regarding all types of disqualification involving thought and action, they are not disqualified except from the time of the action, for a bad thought is not joined to an action. And one who testifies by means of coercion and duress, and certainly by means of physical suffering, there is no substance to his testimony, for he would testify falsely on account of his duress. It is only the litigant himself, when his falsehood is apparent, whom we coerce so that he will admit the falsehood he committed, as is written in siman 42, section 3.

One who lends with ribbit is disqualified, both the lender and the borrower. And if it was ribbit ketzutzah, they are disqualified by Torah law; and even though there is no liability of malkot for ribbit, in a matter involving monetary benefit, a liability of malkot specifically is not required [Beit Yosef], and as I wrote in section 7. And even regarding the borrower there is monetary benefit, for he lent to him at a time when he was in need of money. And if it was avak ribbit, they are disqualified by rabbinic law [and according to what I wrote in section 7, their disqualification could be by Torah law]. And some say that in avak ribbit only the lender is disqualified and not the borrower, and even in ribbit ketzutzah the borrower is only disqualified by rabbinic law [Urim VeTummim]. And the witnesses and the guarantor, even though they violate a negative commandment, nevertheless, since it is not apparent to people that they are committing a transgression, they are not disqualified for testimony [Shach]. But witnesses who signed their names to a predated document intentionally are disqualified for testimony, for it is known to all that it is a transgression to collect from purchasers unlawfully.

A borrower who testified against the lender that he lent to him with ribbit, and there is one witness with him, they combine to disqualify him. And even though a person cannot make himself out to be wicked and is not believed regarding himself, nevertheless, we split his statement; he is believed regarding the lender but not regarding himself. And even if he said that he gave him the ribbit, we split his statement [ibid.]. And so too when he testified that so-and-so sodomized him, even if he says it was with his consent and he makes himself out to be wicked, we split his statement and he is believed regarding the other person but not regarding himself. And so too when he testifies that so-and-so had relations with his wife, even though regarding his wife he is not believed, for his wife is like his own body, nevertheless he is believed regarding the other person for the reason that has been explained. And so too when he says so-and-so sodomized my ox, he is believed even to kill the ox, for we do not say a person is a relative to his property [Sma]. And if there is another witness with him, they disqualify him. And so too the victim of a robbery can testify against the robber, provided that no benefit reaches him from his testimony. And so too one who swears to contradict a witness—the witness and the litigant who was sworn against combine to disqualify him, but they must testify against him anew in beit din that he swore falsely in that oath, and it is not sufficient with what they said at the time of the claim in beit din [Sma]. And the reason is because at the time of the act the litigant is not a witness, and behold, when he swore to contradict the witness he was believed in his oath by Torah law, and how could he be disqualified then? Rather, afterwards they can come and testify like any other testimony. And so too when he swore to two litigants, they can disqualify him afterwards when they testify against him that he swore falsely. And there is no difference between whether he swore to them as one or whether he swore to them one after the other. And some disagree in all of this, for since the Torah believed him to swear against the witness and the litigant, they do not have the power to disqualify him afterwards by means of this oath. And therefore, even if there were two litigants and each one had one witness, and he swore against each one because it was regarding different matters, the two witnesses and the two litigants do not have the power to disqualify him afterwards because of these oaths. And specifically after he stood in judgment and swore, but prior to that, two litigants can testify against him, even when they testify against him regarding two types of robberies—one testifies that he robbed him in Nisan and the second testifies that he robbed him in Iyar—they combine to disqualify him if they are not interested parties in their testimony, such as when they forgive the robbery [Netivot HaMishpat]. And even after the forgiveness he is disqualified, for behold he did not perform repentance since he did not return the stolen object; however, if he endeavored so that the victim of the robbery would forgive him, certainly he returns to his fitness, for this is like a return. And see what I wrote in section 16.

A person is not disqualified by a transgression based on his own word, but rather based on witnesses, for a person cannot make himself out to be wicked; for behold, a relative is disqualified from testimony, and you have no closer relative than a person to himself, so how could he testify about himself to disqualify himself? Nevertheless, we do not entrust him with testimony ab initio to designate him for testimony. Similarly, a person is not disqualified based on a mere rumor or suspicion, even with a rumor that does not cease. Similarly, one who is suspected regarding forbidden relations, who is accustomed to being in seclusion with them and a rumor goes out about him without clear testimony, is fit for all testimony except for the testimony of a woman; and see Yoreh Deah siman 119. Similarly, a mamzer, one with crushed testicles, one with a severed male organ, and an uncircumcised man whose brothers died due to circumcision are fit for testimony even ab initio. Similarly, if two testified about someone that he is disqualified due to some transgression, and two others came and testified about him that he performed repentance, behold, he is fit. But if two came and contradicted them, saying that he did not commit that transgression, behold, he is of doubtful disqualification regarding any testimony he gives afterward, because it could be said that with any "two against two" we establish him upon his presumption of fitness; yet it is possible to say that we do not establish him upon his presumption of fitness to extract money through his testimony, though regarding testimony he gave previously, we certainly do not remove it from its presumption of fitness [Sma]. And it is not similar to two sets of witnesses who contradict one another, where each comes on its own and testifies as I wrote in siman 31, for two witnesses are different; but one who is disqualified because of two, even though there are those who contradict them, nevertheless we do not have the power to extract money based on his word. And although there are those who disagree on this and hold that here too we establish him upon his presumption of fitness [Ran in the name of Rabbeinu Chananel, second chapter of Ketubot, and Tosafot ibid. 22b], nevertheless most of the poskim agreed to this, and so our teachers, the authors of the Shulchan Aruch, ruled without qualification. Therefore, he shall not testify and shall not judge until it becomes known to us that he performed repentance. Similarly, anyone who was liable for malkot and was lashed in a beit din returns to his fitness. And even now, when we do not adjudicate laws of malkot, if they punished him according to the assessment of the beit din and he accepted the judgment upon himself willingly, he returns to his fitness.

Two witnesses who testified about one person that he is disqualified through different matters, such as if one testified that he robbed and the second testified that he lent with interest, they join together to disqualify him, since in any event two witnesses testify about him regarding wickedness.

Witnesses are disqualified even not in their presence, and even if they died, if two witnesses testified about them that they committed a transgression for which they are disqualified for testimony; their testimony is disqualified from the time they transgressed, and the documents they signed upon are disqualified [Shach siman 46, subsection 102]. And these words apply when one cannot attribute the act they testified about to a permitted manner, but when it can be attributed to a permitted manner—for example, if they testified about them that they lent with fixed ribbit and they were guardians or appointees over the property of gentiles or orphans—we attribute it that perhaps they lent these funds. And even though it is forbidden to lend the funds of orphans with fixed ribbit, nevertheless they thought they were performing a mitzvah, as I wrote in section 5. And so too, when the beit din understands according to the matter that they did not know there was a prohibition in this, we attribute it to this. But if they do not understand according to the matter that it was in a permitted manner or that they did not know the prohibition, we do not attribute it as a matter of course, unless the witnesses were famous for their fitness; then we attribute it saying that they certainly acted in a permitted way or did not know the prohibition, and they are not disqualified unless there is no way at all to attribute that they acted in a permitted manner or did not know the prohibition [so it appears from the Levush, section 12].

One who violates a rabbinic prohibition of gezel is disqualified by rabbinic law. How so? For example, one who robs the find of a deaf-mute, an insane person, or a minor; or one who is a chamsan, who takes land or movable property against the will of the owners even though he pays them money; and similarly the shepherds who will be explained in siman 409; and similarly the tax collectors who collect tax according to their own discretion and do not collect the amount fixed by the government, for they presumably show favoritism to some and increase the burden on others. However, when they collect according to the tax fixed by the government, he is not presumably disqualified unless it becomes known that he took more than the fixed amount one time, for then we presume he did so many times. But for one time alone he would not be disqualified, as we would attribute it to an error [Sma]. And from the wording of the Rambam it implies that he is disqualified even for one time [ibid.]. And if he returns what he took that time, he returns to his fitness, and we do not say that he certainly took several more times [it appears to me]. Therefore, the city assessors must be careful when they perform an assessment in the city [by command of the government] that they act with truth and do not flatter one and increase the burden on another, for by this they would be disqualified from testimony and from an oath. But those who take from their fellows something that many are accustomed to treat as permitted to take without the knowledge of the owners—such as in our times when they take without permission the herb from which they produce smoke, and similarly from the way of one who enters the house of his fellow at the time they are drinking hot liquids, he takes for himself a cup of hot liquid and does not ask the owner's discretion—since the custom is so, this is not like gezel. And regarding similar matters the sages, of blessed memory, said that a sharecropper who takes a small amount of the fruits that ripened in the days of Nissan and Tishrei before their work is completed, even though he took without the knowledge of the owner of the field, he is not a thief and is fit for testimony, for they find a pretext of permission for themselves and imagine that they are not performing a prohibition in this. And some say that specifically regarding something whose work is completed they find a pretext of permission [see in the Tur and Beit Yosef].

There are others who are disqualified from testimony by rabbinic law because they do not engage in the settlement of the world, such as one whose entire occupation is to play with dice and has no other craft; such a man is suspected of everything and is disqualified from testimony. And it is not specifically one who plays with dice, for the same law applies to one who plays with nutshells or pomegranate shells and the like, or one who plays with the racing of domestic animals, wild animals, or birds, where the play consists of whoever defeats his fellow or whoever precedes him in movement taking from his fellow, or one who plays with pigeons such that whichever pigeon arrives first, its owners win the other pigeon, and anything similar to this where his craft is from such vanities—they are disqualified from testimony. And all the more so one who trains his pigeons to steal the pigeons of others, for this is actual robbery. And likewise, one who engages neither in Scripture, nor in Mishnah, nor in the way of the world—meaning some craft or some business—and goes about idle, behold he is presumed to be a wicked person and is disqualified from testimony by rabbinic law. Therefore, one does not entrust testimony to an am ha'aretz and one does not accept testimony from him unless he is established as one who engages in mitzvot and acts of kindness, and conducts himself in a straight path and possesses derekh eretz. It is found according to this that a typical talmid chakham is in a presumption of fitness until he is disqualified, and any am ha'aretz has no presumption of fitness until he is established as one who walks in the straight path. And anyone who accepts the testimony of an am ha'aretz before he has this presumption, or before witnesses come and testify about him that he conducts himself with mitzvot and the way of the world, behold he is an ignoramus and is destined to give an account, for he extracts money based on people who are not proper. And likewise, the contemptible are disqualified from testimony by rabbinic law, and they are people who go and eat in the street regularly a fixed meal in front of all the people, or those who go naked in the marketplace at the time they are engaged in a degrading craft and the like, who are not careful about shame; for all these do not have the form of a man but are like a beast and a dog, and they are not careful about false testimony. And included in these matters is something similar to this: those who receive charity from gentiles in public when it is possible for them to receive in private—they too are not careful about their shame and are disqualified by rabbinic law. And know that regarding the law of one who plays with dice, the Rambam, of blessed memory, has another opinion, that their disqualification is from the Torah, and it was explained with the help of Heaven in siman 207, section 23; see there.

Women, slaves, and Egyptians are disqualified from testimony by the Torah, and this matter has no reason other than from the decree of the Torah. Likewise, informers, heretics, apikorsim, and apostates are disqualified from testimony by the Torah. If he recanted and took repentance upon himself, he is fit immediately, even though he has not yet performed the repentance; for since he separates himself from his desires to cling to the religion of Moses our teacher, certainly his heart is whole with Hashem and His Torah. Likewise, other transgressors, when they took upon themselves to abstain from the transgression, are fit immediately [Sma]. An informer, even if the one informed upon forgave him, is disqualified until he performs proper repentance for the greatness of his sin. Those disqualified from testimony because of money that they stole, or robbed, or seized by force: if it was merely incidental, as soon as he returned what he stole, it is repentance and he is fit for testimony. This is specifically when he returned it of his own accord, but when he returned it through coercion, the return is of no avail until he performs the repentance that the beit din of that city imposes upon him. However, if they stole, or robbed, or seized by force many times, their repentance is of no avail until it is known in beit din that they have turned back from their evil way. How so? For example, lenders with interest: it is of no avail that he returns all the interest he ever took, but rather he must also tear up all his documents of his own accord and turn back from this with a complete return, such that they do not lend with interest even to an Egyptian. Likewise, thieves, robbers, and those who seize by force must return everything they stole, robbed, and seized by force; and in siman 366 it will be explained from whom we accept and from whom we do not accept. If he does not know from whom he stole or robbed, he shall use them for public needs. The repentance of one who lent with interest is that he shall not lend even to an Egyptian.

The repentance of those who play with dice is from the time they break and tear their gaming instruments and return with a complete repentance such that they will not play even for free. And the repentance of those who fly pigeons is from the time they break the instruments with which they hunt them and return with a complete repentance such that they will not do this even in the wilderness. And some say that regarding those who play with dice and those who fly pigeons, they must also return the money they gained through them, but we do not rule accordingly, for it is only the dust of robbery [Sma]. However, according to the opinion of the Rambam that we explained in siman 87, section 23, it is complete robbery by rabbinic law.

During the time when our ancestors were in the Land of Israel and the mitzvah of shemittah was practiced, it was forbidden to engage in commerce with shevi'it fruits that grew on their own, for the Torah gave them to us for eating and not for commerce, as it is written: "And the Sabbath of the land shall be for you for food," etc. And one who violated this was disqualified from testimony, and his repentance is when shevi'it arrives once again and he does not do so. And this alone is not sufficient; rather, whatever he gathered from shevi'it fruits, he must pay the value to the poor. And he must write or say orally: I, so-and-so son of so-and-so, gathered one hundred zuz from shevi'it fruits, and behold they are for the poor.

The return of one who profaned oaths is from the time he comes to a beit din that does not recognize him and says to them, "I am suspect," or that he becomes liable for an oath in a beit din that does not recognize him, and the oath was regarding a significant sum of money, and he pays and does not wish to swear. The return of false witnesses is that he goes to a place where they do not recognize him, and they offer him a significant sum of money to testify falsely, and he does not agree. The return of a butcher who was selling treifot as kosher is that he wears black and wraps himself in black and goes to a place where they do not recognize him and returns a lost object of significant value, or removes treifah from his possession at a significant cost, for then it is apparent that he has returned in complete repentance. And it appears to me that he also needs to return the money he took for the meat, as I wrote in siman 234, and it is possible that it is proper to open for him a path of repentance and not accept it from him, as I wrote in siman 366. And so too, anyone who was removed from his craft because of a transgression he committed in his craft, such as with measures and weights and the like, his law is like the butcher regarding this matter. And there is a great principle in these matters: whenever the beit din sees according to the matter that he has performed complete repentance according to his sins, he returns to his fitness. And the prohibition of informing is very severe, for even if he only said "I will inform," he is disqualified from testimony and needs repentance according to the sight of the eyes of the beit din. And when he returns in repentance, any testimony that he testified afterward, his testimony is fit, even though it was not yet known to the beit din that he repented [Ran, chapter 2 of Ketubot].

In the previous siman it was explained that regarding relatives we require that its beginning and its end be in fitness, as was written there in section 9. And so too regarding those disqualified due to transgression, we require its beginning and its end be in fitness; and even if in the middle he became a wicked person, since his seeing and his testifying in beit din were in fitness, he is fit [Netivot HaMishpat]. And even regarding those disqualified by rabbinic law, we require its beginning and its end be in fitness [Ktzot HaChoshen siman 35]. And there is one who wishes to say that in a matter where repentance is in his hand, he is trusted to testify when he returns in repentance even regarding testimony that he saw during the time of his wickedness; but this does not seem so, and most of the great later authorities agreed as I have written [and the Shach himself, it appears that in siman 35, subsection 7, he retracted].

Anyone about whom they testified that he committed a certain transgression, even though they did not warn him, he is disqualified, even though he is not liable for lashes without a warning. And specifically when he transgressed a matter that is known to all of Israel to be a transgression; but when it is possible that he did not know it was a transgression, he is not disqualified until they inform him that it is a transgression. For example, if one saw him tying or untying on Shabbat, or moving muktzeh that is not known to all to be muktzeh, they must inform him that there is a prohibition in this. And similarly, when one saw him performing labor on Shabbat and there is a concern that he forgot that today is Shabbat, they must inform him that today is Shabbat. And similarly, one who plays with dice or who became a tax collector and adds to the tax, they must inform him that it is a transgression and he is disqualified from testimony, because there are those who do not know that these are transgressions. And similarly, a creditor who goes to the house of the debtor to take a security for his debt not at the time of the loan, or who presses the debtor while knowing he has nothing with which to pay—for this is forbidden by the Torah as written in siman 97—they must inform him beforehand that there is a prohibition in the matter, and when he does not listen, he is disqualified from testimony; and so too anything similar to this.

Many types of transgressions have been explained in this siman; some of them are from the Torah and some of them are rabbinic. There is a practical legal difference in this: for a Torah prohibition, one is disqualified immediately from testimony when he commits the prohibition and it is known to him that this is prohibited, even though they did not announce it concerning him in the synagogues and study halls. However, for rabbinic prohibitions, he is not disqualified until they announce it concerning him beforehand in the synagogue or the study hall. In our time, when we do not have the power to announce concerning transgressors, if it has become publicly known that he commits this transgression, it is like an announcement and it is forbidden to accept testimony from him. If it is within our power to remove him from the synagogue, we must do so in place of an announcement; and if even this is not within our capability to do, he is disqualified when it becomes publicly known, as I have written. And even a disqualification from the Torah, one should not disqualify him except with certainty, but not from doubt. For example, if he testified in beit din and afterwards witnesses came that he committed such-and-such a transgression for which he is disqualified by the Torah, but they do not know if he transgressed before he testified or afterwards, we establish the man upon his status of fitness, and everything he testified is valid testimony until it becomes known that he transgressed prior to that.

It is forbidden to take payment for the delivery of testimony, for all mitzvot must be performed for free, and one who takes payment to testify, his testimony is void. If he returned the money, his testimony is valid, for this is not like other disqualifications that require a proclamation and repentance; rather, it is merely a penalty that the sages penalized him, that his testimony be voided when he took payment. Therefore, when he returned it, his testimony became fit. All this is specifically when he took from both parties, but when he took from one party, he is disqualified due to being an interested party, and even if he returned the money after he testified, he is disqualified [Netivot HaMishpat], since he was an interested party at the time of the delivery of the testimony. And that he should testify a second time after his return of the money is of no avail, for it is impossible for him to retract after he has testified once. And this entire prohibition is only regarding a witness who saw the act and is obligated to testify, for then it is forbidden for him to take payment for his delivery in beit din. But when he takes payment to go and see the matter, it is permitted, for he is not obligated to see the matter, and he takes payment for his exertion to go see the act and to be a witness afterward, like the witnesses of a get who take their payment to stand during the writing of the get and to be witnesses. And even this is not permitted except when he takes from both parties equally, or that the litigants agreed between them who would pay the fee for their exertion, like in a get where the man and his wife arrange between them who will pay the fee for the get, for in this it is as if he takes from both of them. But from one party, even this is forbidden for him to be a witness, unless he takes payment for idleness that is evident, such as where he is idled from his craft and his livelihood [ibid.]. And the general rule of those disqualified by transgression: when he committed a rabbinic transgression, he is disqualified rabbinically, and a Torah transgression, he is disqualified from the Torah. And according to the opinion of the Rambam, the Tur, and the Shulchan Aruch, specifically for a transgression that carries a liability of lashes; but in a matter of money, we do not require lashes. Therefore, a lender with fixed interest is disqualified from the Torah. And we have already written in section 2 that according to Rashi and Tosafot, it is possible that we do not specifically require lashes [and so it appears from the Gra, subsection 2]. However, since in money we do not require this condition, it can be said that in other matters they agree with the Rambam, as I wrote there; however, regarding interest they disagree, since he gave it of his own will, as I wrote there.