Siman 36

It is written, "By the mouth of two witnesses or three witnesses etc." and our Sages inferred: if the testimony is established by two, why did the verse specify three? Rather, it is to compare three to two: just as with two, if one of them is found to be a relative or disqualified, their testimony is void, so too with three or more, if one of them is found to be a relative or disqualified, the testimony of all of them is void. This applies specifically when they all saw the act as one; however, if the relative or the disqualified person did not see it together with the qualified ones, their testimony stands [Shach]. And even though in monetary matters "special testimony" is valid, as written in siman 30, nevertheless, since in capital cases "special testimony" is invalid, the disqualified person does not have the power to disqualify the qualified ones through his sighting even in monetary cases unless he saw it together with them. According to this, in a case where it would be valid even in capital cases, such as where some of them saw one after another as written there, here too he disqualifies the qualified ones [as is implied in Tosafot Makkot 6a, s.v. Harei]. A woman, a slave, and a minor do not have this law, and the testimony of the qualified ones is not voided because of them [Netivot HaMishpat], for they are not within the category of testimony at all.

In what case is it said that their testimony is void? When they all intended to testify. But if they did not all intend to testify, the testimony is established by the valid ones. Therefore, the beit din asks the witnesses: "When you saw this act, was it your intention to testify or not, as perhaps your intention was only to see the act?" And all those who say, "Our intention was to testify," they separate them; and if a relative or an invalid witness is found among them, their testimony is void. And if the invalid witnesses were proven to be zomemim, the testimony of the valid ones is not void, for since they were proven zomemim and were not present at all at the time of the sighting, they have no connection with the valid ones, as I wrote in the previous section [Netivot HaMishpat].

That which we have said, that if the disqualified ones did not intend to testify they do not disqualify the fit ones, is not because testimony depends on intent. For testimony does not require intent, as the Torah requires seeing and knowing, as it is written, "whether he has seen or known," and not intent. It is only regarding a shetar that they cannot write it if the litigant did not invite them for this, for a reason that will be explained in siman 39. However, to state their testimony does not require intent. Nevertheless, since the fit ones intended to testify and the disqualified ones did not intend, they do not have the power to disqualify the fit ones. According to this, if the fit ones also did not intend to testify, their testimony is void since they are equal [Shach]. Therefore, when they ask about the intent, they ask everyone, for there is no benefit in the fact that the disqualified ones did not intend to testify if the fit ones also did not intend, and certainly if the disqualified ones intended to testify and the fit ones did not intend, their testimony is void.

There are some of the great early authorities who wrote that in a case where the disqualified and the valid witnesses saw the testimony together, they do not disqualify the valid ones unless they also testified together in beit din, and the disqualified do not disqualify the valid unless they saw together and told together. And it is a logical reason, for the primary verse of testimony refers to both—to the seeing and to the telling in beit din—as it is written: "and he is a witness, or saw," and "witness" refers to the time of telling the testimony in beit din, and "saw" refers to the time of seeing. And regarding the matter of testimony it is written: "by the mouth of two witnesses or three witnesses," from which we learned that when one is found to be a relative or disqualified, their testimony is void [Levush]. And furthermore, for if not so, in most instances the testimony would not be established, for the disqualified would see intentionally in order to disqualify the testimony [Sma]. And even according to the first opinion, that they are disqualified by their seeing together alone, nevertheless we require that at the very least the disqualified shall come to beit din, even if they have not yet testified. But if they did not come to beit din at all, the matters are evident that they did not see for the sake of testimony at all, unless the disqualified person revealed his intention at the time of seeing the testimony that he comes to testify by his seeing, such as if he warned him or the like [Netivot HaMishpat]. And likewise, if the valid witnesses do not know at all that the disqualified were present at the time of seeing, the disqualified are not believed to say that they were there at the time of seeing and to void the testimony [ibid.], unless they bring witnesses to this effect, that they were there. And likewise, that which has been explained, that when all of them did not intend to testify the valid are disqualified because of the disqualified, this is only specifically when the disqualified testified together with the valid in beit din, or if they testified within the time of a continuous utterance of the valid ones. But if they testified after the time of a continuous utterance, and certainly when they did not testify at all, the valid are not disqualified even according to the first opinion [ibid.]. And it is a logical reason, for since all of them did not intend to testify, they have no connection to one another when they did not all testify together in beit din. And according to the second opinion, even when all of them intended to testify, the valid are not disqualified unless they testified together or within the time of a continuous utterance, which is like together.

That which we must ask the witnesses whether they intended to testify or not is specifically when a relative or one disqualified is found among them. However, without this, there is no need to ask, as there is no practical difference in this, as I wrote in section 3. And even when some of the witnesses were contradicted, such that the entire testimony is void—whereby it would have been proper by law to require asking them, since there is a practical difference in this: for if those contradicted intended to testify, the testimony of all of them is void, and if they did not intend to testify, the testimony of those who were not contradicted stands if they intended to testify, as I wrote regarding a relative or one disqualified—nevertheless, we do not ask them, for we say that presumably they intended to testify and the entire testimony is void [Shach and Netivot HaMishpat]. For specifically regarding a relative or one disqualified is there reason to say they did not intend to testify, since they know they are disqualified, and therefore it is necessary to ask them, but not in other testimony.

All this that has been explained—that the relative or the disqualified person invalidates the entire testimony—this is specifically when they all saw the testimony on their own and the claimant did not invite specific witnesses for this. However, if the claimant invited specific witnesses, other witnesses do not have the power to disqualify them, even if they saw together with those who were designated for testimony and testified with them together in beit din; for how can they make themselves witnesses against his will? Furthermore, even if the claimant saw many people and said, "Two of you shall testify for me," certainly his intention was only for those fit to testify, and then no relative or disqualified person has the power to disqualify the testimony, even with seeing and testifying together in beit din, for certainly it is not pleasing to the claimant that they should make themselves witnesses against his will and disqualify his testimony. However, fit people whom he did not designate are fit to testify if those he designated went away [it appears to me]. And that which has been explained is only when he said, "Two of you shall testify for me," for certainly his intention was only for fit people. But if he said to the entire group, "You are my witnesses," if there is a relative or a disqualified person among them, they are all disqualified according to the opinions that have been explained. And according to what has been explained, if a person needs testimony and they issue a proclamation in the synagogue that anyone who knows testimony for him should come and testify, his intention is also only for fit people; therefore, even though disqualified people also testified, they do not disqualify the testimony of the fit ones.

According to what has been explained, it is proper when going to the chuppah and there are many relatives present—even though they certainly do not intend to be witnesses to the kiddushin and the chuppah—nevertheless, it is correct and proper to designate witnesses for the kiddushin [Shach]. And so they have practiced in several communities, that the cantor or the sexton says to one kosher witness: "Let us be witnesses to the kiddushin," and they hear well when the groom betroths the bride, and they are the witnesses and no others. Therefore, one must be very careful that the Rabbi be present at the time of the kiddushin, so that the kiddushin shall emerge kosher without any doubt.

Some say that this which has been explained, that when one relative or disqualified witness is found their testimony is void, this is specifically when the distant one knew of the kinship of the relative or the disqualification of the disqualified one; but if he did not know, his testimony is valid. And if he is one valid witness, he obligates the litigant in an oath according to the law of a single witness, and if they are two valid witnesses, they obligate him in payment. And the distant one is believed to say that he did not recognize the kinship of the relative or the disqualification of the disqualified one, specifically when he is not accustomed to him. But if he is accustomed to him, he is not believed to say that he did not know of his kinship; however, regarding a disqualification, he is believed even when accustomed to him to say that he did not know of his disqualification, because a disqualification can be something that is not public. And so too regarding kinship between the litigant and the witness, he is also believed to say that he did not know even when accustomed to him, for from where would he know this? And that which we said, that when accustomed to him he is not believed, this is specifically regarding the kinship of the witnesses themselves (Shach and latter authorities). But there are some of the great authorities who disagreed with all of this and hold that even if the distant one did not know of his kinship or disqualification, the valid ones are disqualified when they testified together in beit din according to the second opinion, and according to the first opinion, through seeing and intending to testify they are all disqualified, for the Torah disqualified them without qualification and did not make it dependent on knowledge or recognition (Levush). And one should not raise a difficulty for the first opinion—for we compare three to two, and with two, even if he did not know of his kinship, he is disqualified—for in truth, with two, the disqualification is only because two valid witnesses do not remain. And the first opinion is the view of the Rif, of blessed memory, and the latter opinion is the view of the Rosh, of blessed memory.

A document upon which kosher and disqualified witnesses signed, the document is void just as if they testified orally. Nevertheless, if the kosher witnesses remember the testimony, they may come to beit din and testify orally regarding the matter of the document. For since they have not yet related their testimony in beit din, but only in the document, they may now relate their testimony orally, and the beit din shall write a document based on their testimony. However, if they testified orally together with the disqualified witnesses and the testimony was voided, they cannot afterwards come and testify; for since they testified once and their testimony was disqualified, they are no longer fit for this testimony, as we say generally: "Once he has related, he cannot return and relate." But the relating of the document is not considered a relating in this regard, such that he would be unable to return and testify that same testimony. And specifically regarding a document, the beit din may now write the document for the time of the previous document if there was a kinyan then; but the witnesses are not permitted to write the document, for they have already fulfilled their mission (Acharonim). And if there was no kinyan then, even the beit din cannot write another document from the first date, for until now the document was merely a shard and his properties were not liened (Netivot HaMishpat in siman 45). Nevertheless, if the borrower went back and told the witnesses, "Now write and sign," the witnesses may now write another document from today (ibid.).

As has been explained, there is a leniency regarding a document over oral testimony; for in oral testimony, since they saw the evidence together and testified together in beit din, the testimony is disqualified according to all opinions. Whereas in a document, even though they saw the evidence together and signed together, nevertheless, since they did not state their testimony orally before the beit din, the testimony is not disqualified according to the opinion we explained in section 4, that we require seeing and testifying (this is the opinion of the Sma in this siman and in siman 45, subsection 34, and in siman 51, subsection 11).

And there are those who say that there is no difference between being signed on a shtar and oral testimony, for witnesses signed on a shtar are as if their testimony was examined in beit din. Therefore, even in a shtar, if they saw the testimony together, they are disqualified according to all opinions since they signed together. And that which we validated in a shtar when they signed together was specifically when they did not see the testimony together, for then they are valid according to all opinions. And even according to the opinion in section 2 that through seeing alone the valid ones are also disqualified, nonetheless, regarding testimony alone without seeing together, even according to this opinion it is valid, and even when they testified together orally before the beit din. And even if they testified together and saw together, but the disqualified ones did not intend to testify, it is also valid even in oral testimony (Shach, subsection 10, like the Mahari Berav and not like the Maharam Alashkar). And according to this, there is no difference at all between a shtar and oral testimony (Shach, subsection 12 and Netivot HaMishpat, siman 45, subsection 23). However, according to the first opinion, even if they saw together and the intention of the disqualified ones was to testify, since they did not testify together before beit din, the valid ones are not disqualified even though they signed together, for the testimony of the shtar is not considered testimony regarding this matter, as has been written in section 9. And there is one who says that as long as beit din has not adjudicated the matter of the shtar, their signature is not like the delivery of testimony, but once beit din has adjudicated the matter of this shtar, it is certainly considered like testimony (Taz). And it appears to me that the primary view is like this opinion, and the first opinion also agrees to this, and so appears the opinion of our teacher, the Rema, and logic dictates this; for certainly witnesses signed on a shtar are as if their testimony was examined in beit din, but this is only when beit din adjudicated based on this shtar. But without this, there is no beit din yet upon this and there is no utility in it. And if so, if before the beit din adjudicated they nullify the entire testimony because of the disqualified ones, behold the valid ones have not yet testified in beit din and they can testify according to the second opinion in section 4. And know that according to the opinions we have explained in this, likewise shall be interpreted the law in siman 45, section 18 and siman 51, section 4.

A document upon which the interested party himself is signed along with the witnesses does not disqualify the document. Even though he is disqualified for this testimony, this is because an interested party is not in the category of a witness, and it is not relevant to say regarding him that his intention was to testify. And likewise, regarding any communal enactment where disqualified individuals signed it—such as those who have an interest in the matter of the enactment—they do not disqualify the enactment. And it is not necessary to say according to what will be explained in siman 37, that now it is the custom to accept witnesses from the community itself regarding their enactment and their agreement; and even though it is not according to the essence of the law, nevertheless, the public has already accepted it upon themselves, and it is like "my father or your father or a relative is trusted by me," which was explained in siman 22. Rather, even according to the essence of the law, granted that one who has an interest in the matter is not fit for testimony, nevertheless, he also does not disqualify the fit witnesses, since he is an interested party, as I have written.