Siman 35

A minor is disqualified from testifying by Torah law, even if he were discerning and wise, until he produces two large hairs that are long enough to bend their top to their root, and he produces them at the time he is thirteen full years old. For it is written: "And the two men who have the dispute shall stand," etc., and our sages, of blessed memory, expounded that "the two men" are the witnesses; for if it referred to the litigants, do only men come to judge and not women or minors? Furthermore, if so, it is entirely redundant, for it is written "who have the dispute." Furthermore, do specifically two men come to judge? Behold, there could be three or four or more. Rather, it refers to the witnesses, for we require two adult male witnesses, and not women or minors, as a minor is called a "son" and not a "man." And when he is born on Rosh Chodesh Nisan, even at the end of the day, when Rosh Chodesh Nisan arrives at the completion of thirteen years and he has produced hairs, he becomes an adult from the beginning of the night, for we do not require "from hour to hour" [Shach]. And the hairs he produced before thirteen years, those hairs are nothing even when he reaches thirteen years, and he must produce other hairs. And if they did not examine him at this time, and afterwards they examined him and found he had produced hairs, our teachers the authors of the Shulchan Aruch ruled that he is presumed to be an adult from the time of thirteen years, and everything he testified or sold or gave from this time, his actions are valid.

And there are some of the great authorities who questioned this ruling, for we hold that one is not considered an adult regarding a matter involving a Torah prohibition even when he has reached his years until they examine him to see if he has produced two hairs. We do not say that when he has reached the years of adulthood he has presumably produced signs, for we only state this presumption for stringency and not for leniency regarding a Torah prohibition. If so, as long as it has not been clarified that he produced two hairs, we do not extract money based on his testimony. Therefore, some have written that it is a legal doubt [Pitchei Teshuvah]. However, it appears to me that the primary view is like the words of our teachers, the authors of the Shulchan Aruch; for granted that as long as they have not examined him we do not state the presumption that he produced signs, nevertheless, when they examined him after some time and found that he produced signs, we certainly say that since he has them now, he also produced them earlier, since it is the way to produce signs at this time. This is like what we say regarding a bogeret, that when she produced signs in the evening, she presumably produced them in the morning, as is written in Even HaEzer siman 37, and so it is in the Gemara (Kiddushin 79). So too regarding the signs of adulthood, even after several days. (Furthermore, we have already explained in the book Orach LeChayim siman 18 that in a case where there is a claimant, we state this presumption even for stringency. With this, that which the Tosafot wrote in Bava Batra 154b, s.v. "ve-od," is settled, and so it appears from Tosafot ibid. 156a, s.v. "bodkin," see there; and to this the Gra alluded in subsection 4).

When he has a multitude of hairs in his beard, even if they are very small, nevertheless he does not require an examination, for he has certainly produced two hairs properly. And if he reached the twentieth year, that is, he is nineteen years and thirty days old, and has still not produced two hairs, if signs of a saris appeared in him, which have been explained in Even HaEzer siman 172, he is an adult. And if signs of a saris did not appear in him, he is considered a minor until the majority of his years, which is until thirty-six years, which is the majority of seventy according to our years, which are seventy years.

Even though he is thirteen full years old and has produced two hairs, if he is not expert in the nature of business transactions, his testimony is not accepted regarding lands. However, regarding movables, his testimony is testimony, for since he does not know the nature of business transactions, land is not significant in his eyes and one cannot rely on his testimony regarding this. And some say that regarding testimony, his testimony is accepted even regarding land, for he would not testify falsely; rather, only regarding the appraisal of land, to testify that it is worth such and such, one does not rely on him (Shach). The later authorities agreed to this. And the same applies to anything that the beit din, according to their perception, sees that he does not understand—regarding this, his testimony is not accepted for the purpose of appraisal.

Any person is not believed to testify when he is an adult regarding what he saw in his childhood, for one cannot rely on what he saw in his childhood even though he is now an adult. However, there are matters where the sages believed him to testify regarding what he saw in his childhood, and these are they: A person is believed to say, "This is the handwriting of my father, and of my brother, and of my teacher." The reason is that since he was constantly accustomed to them, he certainly recognizes their signature. And specifically when there is another witness with him who saw their signature and recognizes them from his adulthood, for then he joins as a second witness. But two witnesses who testify that they saw their signatures and recognize from their childhood that this is their signature—such as for this one it was his father and for this one his teacher—nevertheless, our sages, of blessed memory, did not want to rely on two in such a case. And likewise, he is believed to testify regarding this woman that she was married when she was a virgin and her ketubah is two hundred, for he remembers that in his childhood they performed for her the custom of virgins at her chuppah. And the reason is that since the majority of women are married as virgins, this is merely a disclosure of a matter, and also in this case when there is another with him as I have written, and they collect for the woman a ketubah of a virgin based on their testimony. And he is also believed to testify regarding a beit hapras, which is a field in which a grave was plowed or in which a grave was lost, and he testifies that he remembers from his childhood that this field was established as having tumah and it is forbidden for kohanim to enter into it, and the rest of the fields are tahor. And likewise, he is believed to testify regarding the techum Shabbat, that he remembers from his childhood that until here we would walk on Shabbat. And likewise, he is believed to testify that so-and-so ate terumah of rabbinic origin while he was a minor, and that he would divide with us at the threshing floor terumah of rabbinic origin, and that we would bring challah and gifts to so-and-so the kohen. And specifically when he said that they sent it to the kohen through him, for this he certainly remembers well. And in all of these, he is believed alone, for there is no need for two witnesses for this. And the reason in all of these is because these matters are of rabbinic origin, and the sages believed him in matters of rabbinic origin. And as for that which we required another one for the authentication of documents, even though authentication is of rabbinic origin, nevertheless, since based on the document they extract money, it is impossible to authenticate based on one.

Furthermore, he is trusted to say that his father told him in his youth, "This family is fit and this family is disqualified," because it is merely the revealing of a matter, as the matter is certainly known. This too is specifically when there is another witness with him (Levush). Similarly, he is trusted regarding what was explained in Even HaEzer siman 2, to testify that the members of the family made a sign regarding one of their family members who married an unfit woman, to inform everyone that his offspring should not mix with their offspring; for this too is nothing but the revealing of a matter, as the matter is presumably known. And know that in all these cases that were explained, only an adult is trusted to testify regarding what occurred in his youth, but a gentile and a slave are not trusted to testify in their conversion and manumission regarding what they saw previously. For specifically a child, who knows he will grow up, is somewhat precise even in his youth; but these did not know they would be manumitted and were not precise at all. And even if they knew they would be manumitted, they were not precise at all beforehand, and therefore they cannot testify even in a rabbinic matter (Kesef Mishneh at the end of chapter 2 of Ketubot, see there).

A shoteh is disqualified from testimony. The Rambam, of blessed memory, wrote in chapter 9: Not only a shoteh who walks naked, breaks vessels, and throws stones, but anyone whose mind is deranged and his mind is found to be constantly confused regarding any matter, even though he speaks and asks relevantly regarding other matters, behold, he is disqualified and is considered among the shotim. Thus far his words. And the Tur wrote: A shoteh is disqualified from testifying, and this is a shoteh: one who goes out alone at night, one who sleeps in a cemetery, and one who tears his garment and loses what is given to him; and with one of these that he does in a foolish manner, he is called a shoteh. Thus far his words. And like his words, it is in Chagigah (3b). And it is called "doing in a foolish manner" when he does so many times, but regarding what he did once or twice, we do not establish him because of this as a shoteh. And the Rambam holds that what the Gemara enumerated is not specifically limited, and the same law applies if we see in someone that his mind is constantly confused regarding one matter to do an act which one complete in his intellect would not do, he is established as a shoteh. And the Gemara that enumerated these, it is a great novelty, for even though one can give a bit of a reason for those who do so, and it is possible to attribute it to things other than a lack of intellect—for one who goes out alone at night, it is possible that he has heat in his body and his desire is to breathe air; and one who sleeps in a cemetery, in order that a spirit of impurity should rest upon him; and one who tears his garment because he is a man of thought—and it comes to teach us that even so he is called a shoteh. And all the more so regarding a foolish matter for which no reason can be attributed, such as one who loses what is given to him [and therefore it did not count this there]. And there are some of the great authorities who hold that one is not a shoteh except from the matters that were explained in the Gemara as mentioned, and their words were rejected by all the poskim, and also the Tur agreed with the Rambam [see in the Beit Yosef, Even HaEzer siman 119 and 121]. And it appears to me that even these great authorities hold like the Rambam, but they hold that since in other matters he is not a shoteh, it is difficult for us to determine the matter that he does, whether he does it in a foolish manner or not [and also from the Yerushalmi in the first chapter of Terumot there is no proof that it disagrees with the Shas of Chagigah and holds that we require all of them, for it is not dealing with one who acts in a foolish manner, see there for it is so, and delve into it].

A drunken person, as long as he has not reached the drunkenness of Lot, his testimony is testimony. And when he has reached the drunkenness of Lot, he is like a shoteh, as is written in siman 235 regarding the matter of buying and selling [it appears to me]. And likewise, if he saw the testimony at the time he reached the drunkenness of Lot, one does not rely on him afterwards when he testifies, even when his drunkenness has departed from him [it appears to me].

The epileptic—which is a sickness where one falls to the ground and is not in his right mind at all during the time of his seizure—is disqualified, and during the time that he is healthy, he is fit. And whether it is one who is an epileptic from time to time or an epileptic without a fixed time, this is his law. In what case are these words said? When he is, during the time of his health, like other healthy people; but there are many epileptics who even during the time of their health their mind is not clear, and they are disqualified even during the time of their health. Therefore, one must be very precise and deliberate regarding the testimony of epileptics.

The extremely foolish who do not recognize things that contradict one another and do not understand any matter in the way that the masses of people understand, and likewise those who are confused and impulsive in their mind and the extremely insane, they are all in the category of the shotim. And this matter is according to the perception of the judge, for it is impossible to explain these things in writing.

A cheresh is disqualified, whether he speaks and does not hear or hears and does not speak, even though his mind is sound, because he must testify in beit din with his mouth and must be fit to hear the words of the judges and the admonishment with which they admonish him. And similarly, if he became mute, even though he was examined in the manner that they examine one who divorces regarding a get and his testimony was found to be consistent, and he testified before us in his handwriting, it is not testimony at all from the Torah, as it is written: "from their mouth," and not from their writing. And even according to that opinion explained in siman 28 that a witness may testify in writing, nevertheless, a mute who is not fit to tell is disqualified according to everyone from the Torah, as I wrote there, except for testimony for a woman whose husband died, for in the case of an agunah they were lenient for the reasons explained in Even HaEzer siman 17. And similarly, one who is blind in both his eyes, even though he recognizes the voice and the people and his testimony is consistent, is disqualified from the Torah, as it is written: "and he is a witness, or saw," etc. But with one of his eyes he is fit, even ab initio, for behold, he sees.

If he was a deaf-mute or blind at the time the testimony was delivered to him, and healthy at the time of his testifying in beit din, or vice versa, he is disqualified. But if he was healthy at the time the testimony was delivered to him and at the time of his testifying in beit din, even though in the interim he became a deaf-mute or insane or blind, he is qualified, since his beginning and his end were in a state of fitness, as has been written regarding relatives in siman 33.

Just as a woman is disqualified from testimony, so too are a tumtum and an androgynos, because they are a doubt whether they are a man or a woman, and so too anyone who is a doubtful disqualification, for this is a doubt regarding a Torah law and we follow the stringent view. And even if they testified and an action was performed based on them, we reverse the action. And all those disqualified mentioned in these simanim, even if there are no fit witnesses here at all, we do not accept their testimony. However, our teacher, the Rema, wrote that it is an enactment of the early authorities that in a place where men are not usually present, such as in the synagogue in the women's section or in other incidental matters where women are usually present and not men—for example, to say that a certain woman wore these clothes and they are hers—women are believed by virtue of the enactment. Therefore, there is one who wrote that even a single woman, or a relative, or a minor are believed in a matter of striking or shaming a Torah scholar, or in other quarrels, disputes, and informing, and we judge based on them because it is not the way to invite fit witnesses for this and there is no time to invite them. And specifically when the claimant claims with certainty, but if he himself does not know except through these witnesses, their testimony is not effective. And even after the enactment, nevertheless, one fit witness is believed more than several disqualified ones [Shach]. And so too their testimony is not effective regarding the hazakah of three years that she held in a place in the women's synagogue to remove it from her hazakah based on them [Maharshal], for it is impossible to give them so much credibility to remove from a hazakah. And there is one who wrote that the enactment of the early authorities was only in a place where the essence of the matter is known to the public or where the defendant does not deny the claimant, for then we accept the testimony of women regarding the details by virtue of the enactment; but in a place where the entire matter is not known except through them and the defendant denies it completely, we do not judge based on their testimony [Knesset HaGedolah]. And so too when the woman is an enemy to the litigant, we do not accept her testimony; even though an enemy is fit for testimony, that is regarding a fit witness. And so too regarding a relative, we do not accept based on the enactment except to the disadvantage of his relative and not to his benefit. And two women are believed more than one woman when there is a contradiction between them, even though according to the law it is all the same. And other disqualified individuals, such as the wicked, a deaf-mute, and an imbecile, are not believed even by virtue of the enactment, for regarding them they did not enact, because one cannot rely on them at all in any matter. And regarding a blind person, it requires deliberation.