What Is a Litigant’s Admission? (Column 306)
This is a scholarly column that takes us a bit away from the various storms with which the last columns have dealt (political-ideological and theological). The time has come to deal a little with the things that are really important, and this will require the readers to make some effort in the next two or three columns (each one stands on its own; this is not a series).
A well-known dispute among the later authorities concerns the foundation of the force of a litigant’s admission (whether it is a matter of credibility or of creating an obligation). In the sugya in Ketubot that we have just studied I encountered an interesting proof for one of the sides, and I thought to examine it a bit and, through it, also the dispute itself.
A Litigant’s Admission as a Hundred Witnesses
As is well known, according to halakhah “a litigant’s admission is like a hundred witnesses” (Bava Metzia 3a and elsewhere). This means that the admission is the “queen of the evidences” (as jurists like to say)[1]. The expression “like a hundred witnesses” is strange, since in halakhah there is no difference between a hundred and two: “two are like a hundred”. It seems that the intent of this expression is that if a person admits, his admission overrides two witnesses. That is, if a person admits that he is liable, and two witnesses come and claim that he is not liable, the court will obligate him to pay.[2]
On the face of it this is only a hypothetical case, since if the borrower admits that he owes the money to the lender they simply do not come to court and no trial takes place. The borrower pays and that is all.[3] But slightly strange situations are possible in which this principle will find full expression. For example: Reuven sues Shimon, claiming that Shimon borrowed a maneh from him, and Shimon denies it: “It never happened.” Two witnesses now come and say that he did borrow, and Shimon retracts and corrects his claim: “Actually there was a loan, but I repaid it.” On this the Talmud says: “Whoever says ‘I did not borrow’ is as one who says ‘I did not repay’”, and therefore he is obligated to pay (when he said that he did not borrow, he implicitly admitted that he did not repay). What happens if now two witnesses come (perhaps the same two) and testify that he in fact repaid? According to halakhah this claim is not accepted. The court obligates him to pay on the strength of his admission. The reason is that his admission that he did not repay overrides the testimony of two witnesses who say that he did repay (see Shevuot 41b and Shulchan Aruch, Choshen Mishpat 79:1). It is indeed odd to regard such a claim as an admission, but that is what the halakhah states. We shall return to this pathology below.
A Litigant’s Admission
The matter of a litigant’s admission is based on a simple sevara (reason). If a person admits, it is very likely that this is the truth. If he did not owe, why would he admit and obligate himself? This is a kind of migo, but much stronger than an ordinary migo. The borrower here has a migo that he could have denied and not admitted, and thus won the case. Therefore, if he chooses the claim that is worse for him and admits, we believe him.
This is the logic, but according to the halakhic rules this law is nevertheless puzzling. The rule in halakhah is that there is a sharp distinction between a litigant and a witness, and the words of a litigant (which are defined as claims and not as testimony, contrary to modern law) have no evidentiary weight at all. A party to the case is disqualified from serving as a witness.[4] Moreover, it is accepted in halakhah that a party is disqualified from testimony both to acquit and to obligate. In other words, the disqualification is not because of a concern that he will lie in his own favor. This reflects a separation of powers in the court between the three authorities: litigants, witnesses, and judges. A litigant (ba’al din) is disqualified from being a witness and also from being a judge, and a witness also cannot become a judge. Indeed, the view of the Rashbam (Bava Batra 114a s.v. “ve’ein ed”) is that a witness cannot become a judge because of the verse “and the two men who have the dispute shall stand before the Lord” (Deut. 19:17), which is interpreted regarding the witnesses: the witnesses must stand before the judges, and from here we derive that these must be two separate functions (standing opposite one another). So, too, a litigant is disqualified from being a witness both to acquit and to obligate.[5]
Indeed, the Shach grappled with this question, and wrote (Choshen Mishpat 37:1):
For where he has benefit and is called “interested”, he is regarded as a relative; but where he testifies to obligate [the other], he is not “interested” and is not considered a relative; see there.
But this statement is puzzling, for plainly the disqualification of a litigant is not because he is an “interested party” (for example, a person cannot make himself a wicked person, even though it is against himself).
This question is also addressed by the author of Ketzot HaChoshen, in Choshen Mishpat 34:4. At the end of his words he wonders why the Shach is not bothered by the fact that we are dealing with only one witness. Therefore, removing the “interest” would not help here. Even if we proved that he is not disqualified as an interested party, we still have only one witness. Later in his discussion he brings two approaches that propose a solution to the difficulty: that of Mahari ben Lev and his own.
A Litigant’s Admission: Mahari ben Lev’s Approach
He begins by bringing the words of Mahari ben Lev (Responsa Mahari ben Lev, part I, §19):
And since one who receives legitimate wages from the Torah is valid, and we do not suspect that for monetary benefit he will testify falsely, it now requires an explanation: what is the reason that an interested party is invalid from the Torah, since we do not fear that for monetary benefit he will testify falsely? The language of the responsum there in Mahari ben Lev is as follows: If an interested party is invalid because of [being like] a relative, then to obligate, why is he believed, for a relative is invalid both to acquit and to obligate? And he concludes there that the reason he is valid to obligate is that we approach it as a matter of obligation and gift: since a person can obligate himself when he is not liable, one who admits that he is liable is as if he had said, “I owe you a maneh”, and he can obligate himself; as the Sefer HaTerumot writes (Sha’ar 42, part I, §9), etc., see there.
Mahari ben Lev writes that the credibility of one who admits is because he can obligate himself and give a maneh as a gift. In his view, an admission is essentially a kind of gift; that is, it creates a new obligation and does not constitute evidence about the content of the admission (for example, that there was a loan). It may be possible to bring support for this from the form of acquisition called “odaita”, whereby a person who admits before his fellow, his admission is considered as an act of acquisition regarding the item.
Objections to This View
But the Ketzot HaChoshen rejects this reasoning with several very strong questions:
But even according to the reasoning of Mahari ben Lev, it is very difficult for me; for in the case where he says “it never happened” and afterwards witnesses come [and testify that he borrowed], he is not believed to say “I repaid”, even though the witnesses testify that he repaid, because he is believed about himself more [than they are], and “whoever says ‘I did not borrow’ is as one who says ‘I did not repay’” (Shevuot 41b); and there we cannot say that this is a matter of a new obligation, for on the contrary: he is coming to exempt himself with the claim that he repaid.
If we say that an admission creates a new obligation, then in the case we brought above, where the borrower denies the loan, he is certainly not intending to obligate himself. How, then, is he “believed” in his admission that he did not repay, against witnesses who say that he did pay?!
Afterwards he proves from the sugya in Bava Metzia 3a that even there it appears that the admission works by rules of evidence and not as a new obligation:
Furthermore, regarding a new obligation one certainly requires “you are my witnesses”, and without “you are my witnesses” it is nothing, as is written in the Shulchan Aruch (Choshen Mishpat 40:1); but regarding one who admits an old debt, we find that even without “you are my witnesses”, and where he did not raise that claim we do not raise it for him as a claim of error, he is obligated to pay, as it is in Sanhedrin, chapter “Ze Borer” (29b). So too in the Rambam (Hilchot To’en VeNit’an 6:8) and in Tur and Shulchan Aruch (Choshen Mishpat 81:1–3). And furthermore, we say at the beginning of the first chapter of Bava Metzia (3b): “Let not his oral admission be superior to the testimony of witnesses. Just as his mouth, which does not obligate him to pay money, obligates him to swear [etc.].” And the Gemara asks: “Does his mouth not obligate him to pay money? But a litigant’s admission is like a hundred witnesses!” Rather, [the comparison is] to his mouth which does not obligate him in a fine. And the Gemara asks: What comparison is there to his mouth which is not subject to rebuttal and falsification? Would you say the same regarding witnesses, who are subject to rebuttal and falsification? And if we say that the power of his mouth is because of a gift and a new obligation, how could rebuttal and falsification apply here, for certainly regarding a gift he can give [to whomever he wishes]? And in what respect would his mouth be greater than witnesses, for in terms of credibility, on the contrary, witnesses are more credible than his mouth?…
Another objection arises from the very law of the oath of “one who admits in part” (modeh be-miktzat):
Furthermore, the matter is decided from the law of one who admits in part, for whom the Torah obligated an oath. If he had denied the entire claim before the court, but said, “Nevertheless I obligate myself before you for fifty zuz”, there would certainly be no obligation of an oath. The primary obligation of an oath upon one who admits in part is because he has admitted to part of the claim, and therefore the Torah imposed an oath on the rest. But if we say that he is not believed at all except as a matter of a new obligation, there is no law of one who admits in part, and this is clear.
A Litigant’s Admission: The Ketzot HaChoshen’s Approach
On the basis of all these objections, the author of the Ketzot HaChoshen argues that this is a matter of credibility and not of creating an obligation or giving a gift:
Therefore it seems that the reason a person is believed about himself, even though he is close to himself, is due to a Scriptural decree that a person is believed about himself despite all the disqualifications that he has. And the light of the world, Rashi, has already enlightened our eyes in Kiddushin, chapter “HaOmer”, 65b, there regarding “a litigant’s admission is like a hundred witnesses”. These are Rashi’s words: “[As it is written] (Exodus 22:8): ‘As to whom the judges shall condemn, he shall pay double to his neighbor’ [lit. ‘that he shall say: this is it’] – behold, [the Torah] relied on part of his admission.” Thus, just as the Torah believed two witnesses about others, so it believed every person about himself, even though he is close to himself; for the Torah disqualified a relative only regarding others, but about himself he is believed. In contrast, to acquit, when he comes to testify about others, therefore he is not believed.
According to him, there is a novel halakhic decree of the Torah that a litigant who admits is believed about himself more than two witnesses. Essentially he has no explanation for it, and therefore he regards it as a Scriptural decree without reason.[6]
Another Proposal for Explaining Mahari ben Lev’s Approach
These objections are so strong that it is difficult to accept that Mahari ben Lev really intended to say that an admission in part does not operate within the laws of evidence but within the laws of obligations. It therefore seems better to interpret him as explaining that one who admits in part is believed because he could have given it as a gift or could have undertaken a new obligation. According to this, in the final analysis it is possible that Mahari ben Lev too agrees that we are dealing with credibility and not with the creation of an obligation.[7]
The Ketzot HaChoshen himself, at the beginning of his discussion, proposes a similar conception:
And behold, what was difficult for him regarding the reason of a relative – why he is believed to obligate – could be answered that we approach it by way of a migo: that if he wished, he could have given it to him as a gift, as it is stated in chapter “Asarah Yuchasin” (Kiddushin 78b) and in chapter “Yesh Nochalin” (Bava Batra 127b) regarding “yakir” (Deuteronomy 21:17), that a father is believed to say “this is my firstborn son”, and the Gemara asks: Why do I need “he shall acknowledge”? If he wished, he could have given it to him as a gift; see there.
He suggests that perhaps the one who admits has a migo that he could have given him the money himself (as we explained above), and therefore he is believed. But the Ketzot HaChoshen there also rejects this proposal, and writes:
However, if so, if there were witnesses against him that he is not liable, there would no longer be a migo, for that would be a migo in the face of witnesses; and likewise regarding “this is my firstborn son”, if there were witnesses against him, there would be no migo, as the Rashbam writes (Bava Batra there, s.v. “le-mai”). And a litigant’s admission is believed even against witnesses; therefore we cannot say that it is by virtue of a migo.
According to this conception, the admission would have the force of a migo, and a migo does not override witnesses. This is essentially an extension of the difficulty he raised above against the explanation of the Shach, where he explained that in any case we are dealing with a single witness who certainly cannot override witnesses.
But here we must pay attention to another point. First, I already noted that this migo is far stronger than an ordinary migo. An ordinary migo is built from two claims, both in his favor, one better than the other. Here the person is advancing a claim that is to his detriment. It is possible that such a migo is so strong that it overrides even two witnesses. We must remember that the person who admitted, if he wished, could have given the money as a gift, and even a hundred witnesses cannot stop him. It is therefore reasonable to give him a power that overrides a hundred witnesses.
In fact, it is more accurate to view this “migo” as a mechanism that in halakhah is called “b’yado” (“in his power”; so it is also mentioned in the Ketzot HaChoshen itself: a migo that if he wished he could have given it as a gift). Several commentators have already written that “b’yado” is much stronger than a migo. Regarding something that a person can bring about with his own hands, there is no reason not to give him absolute credibility about it (since he can bring about the result himself even if we do not believe him). See, for example, Responsa HaRosh, klal 11, and Piskei HaRosh on Gittin 54b (where he brings fourteen rules regarding the credibility of a single witness), where he explains that the credibility of “b’yado” is because the matter is in his ownership. The later authorities elaborated on this (see the survey here). Some thought that the intent is to proprietary ownership, but plainly this is not so. It seems more that the Rosh’s intent is that with regard to what is in a person’s power to do, he is the owner of it and is believed regarding it in all respects. It is not reasonable to tell a person that he is not believed where he can himself bring about that very result whenever he wishes.[8] This credibility is absolute, even against two witnesses (for no number of witnesses can prevent him from giving gifts and undertaking obligations). This is the meaning of the “ownership” that the one who admits has over the matter.
According to our approach, all the difficulties we have seen are resolved. The one who admits is believed, despite being a litigant, because the matter is in his hands and he thus has absolute credibility. If I am correct,[9] then even according to Mahari ben Lev a litigant’s admission belongs to the laws of evidence and not to the laws of obligations, and thus the Gemara in Bava Metzia 3a is resolved. So too regarding the difficulty from the very obligation of an oath upon one who admits in part. The difficulty from “whoever says ‘I did not borrow’ is as one who says ‘I did not repay’” seems more serious. But we must take into account that in that case, in any event, it is difficult to explain the credibility given to the “admitter” according to any explanation one offers. And if we assume that this is indeed considered an admission, then there is no greater difficulty in Mahari ben Lev’s words than in the other explanations. That person admitted that he did not repay, and therefore he is believed in this (for he could have given the other a gift even if he did not owe him anything). This credibility is absolute, and therefore it overrides even witnesses.
In the sugya in Ketubot that we have now studied, a proof for Mahari ben Lev’s position seems to emerge from the views of the Rif and the Rashba. Let us now see the sugya.
Combining a Witness and a Judge: The Rif’s Approach
In Ketubot 21a the Amoraim disagree about whether one may combine the testimony of a witness and a judge:
Rav Yehuda said in the name of Shmuel: “A witness and a judge combine [to form a pair of witnesses].” Rami bar Chama said: “How excellent is this teaching!” Rava said: “What excellence is there? For that which the witness testifies to, the judge does not testify to; and that which the judge testifies to, the witness does not testify to.”
Most of the early authorities explain that this refers to a loan document upon which, besides the witnesses, three judges who validated it (the “nafka” or “asharta”) also signed. But the Rashba brings the Rif’s view in Bava Batra, who explains the sugya differently:
And our teacher, the Rif, of blessed memory, explained in Bava Batra: A witness who testified that he saw the loan, and a judge who testified that in his court he was found liable on the basis of witnesses, combine. And Rava concludes that they do not combine, for the witness testifies about the loan, and the judge does not testify except that in his court he was found liable; but he does not know whether he was truly liable or not.
According to the Rif, this is about a witness who testifies in court that he saw Shimon borrow from Reuven, and together with him another witness comes to court and testifies that he himself was previously a judge on a panel before which two witnesses testified about that very loan. Rav Yehuda in the name of Shmuel maintains that these two combine as two witnesses to the loan, and in such a case Shimon is obligated to repay the debt. Rava argues that they cannot be joined, because the judge does not testify to what the witness testifies to. The witness testifies about the loan, and the judge testifies about testimony in a court case that was conducted about the loan. Rava’s assumption is that in order to combine two witnesses into a “set”, both must testify about the same thing. The halakhah is decided in accordance with Rava.
This explanation raises a difficulty regarding the law of “special testimony” (edut meyuchedet), which we shall now address. First, we must preface what special testimony is.
Introduction: Testimony and Special Testimony
The halakhic rule is that for almost any legal purpose two witnesses are required: “By the mouth of two witnesses a matter shall be established.” Moreover, they must testify about the same thing in order to combine. Therefore, if one witness testifies that he saw Reuven murder Shimon on day A, and another witness testifies that he saw Reuven murder Levi on day B, even though we have two witnesses that Reuven is a murderer liable to death, the court does not accept the testimony. This is what is called, in halakhic language, “special testimony” (edut meyuchedet).[10] As a rule, two witnesses combine only if both testify about the same act.
However, in monetary cases special testimony is accepted (see Makkot 6b and Sanhedrin 30b). The first case is “loan after loan”: if one witness testifies that Reuven borrowed a maneh from Shimon on day A, and another witness testifies that Reuven borrowed a maneh from Shimon on day C, the witnesses combine and the court obligates Reuven to pay one maneh (obviously not two, for there are two witnesses regarding one maneh). Another case is “admission after loan”: one witness testifies about the loan, and afterwards another witness comes and testifies that the borrower admitted before him that he had borrowed. Here as well we combine the two and accept the testimony, obligating the borrower.
In the next column we shall deal with a probabilistic view of the nature of special testimony. Here, however, our concern is to understand the mechanism of a litigant’s admission.
The Rashba’s Comment on the Rif
We have seen that in monetary cases special testimony is accepted. The Rashba there, immediately afterwards, raises a question against the Rif: why do we not combine the witness and the judge in a case that, according to him, involves special testimony (for we are dealing with monetary matters)?
According to his explanation, this is not similar to “admission after loan”, where the testimonies are combined (Sanhedrin 30b); for there both testify to the truth: this one saw when he counted out the maneh to him, and this one saw that he admitted before him regarding that maneh. But here, perhaps those who testified about him in that court testified falsely; and the judge testifies only to what he heard. And the halakhah follows Rava, who said that they do not combine.
First, we must note that the Rashba compares this to “admission after loan” and not to “loan after loan”. And indeed this is the closer case, since Rava explains his words by saying that the judge testifies that testimony was accepted before him, and does not testify to another loan. If so, this is exactly parallel to one who testifies that an admission was accepted before him (for a litigant’s admission is like a hundred witnesses, and if he admitted before him, this is like testimony being given before him). Why, then, do we combine the testimonies in “admission after loan” and obligate the borrower, while in the case of a witness and a judge the Rif states that in practice (according to Rava) we do not combine them? Rava explains his ruling by the fact that the content of the testimonies is different; but that is also what happens in testimony about “admission after loan”, and yet in monetary law it is accepted.
The Rashba explains that this is not similar to special testimony. In special testimony we have two witnesses, each of whom testifies that Reuven owes a maneh to Shimon, so they combine. But in the Rif’s case the witness indeed testifies that Reuven owes a maneh to Shimon, whereas the judge does not know whether he owes. He testifies that testimony was given before him regarding liability for a maneh. Therefore he cannot say that Reuven owes a maneh to Shimon (he testifies to something else: not to the liability, but to a legal act that took place in his court – the acceptance of testimony about the loan).
The Rashba explains this by saying that perhaps the witnesses who testified before that judge in the past were lying. But this is seemingly absurd, for the assumption is that two witnesses do not lie (and we must remember that, according to him, their testimony was examined in that court and accepted). It is therefore clear that the Rashba does not actually mean that there is a real concern that those witnesses lied. He only argues that the judge cannot know about the maneh directly, and therefore he is not regarded as one who testifies about the maneh. The judge testifies only about the witnesses who testified about the maneh. (In other words: perhaps as a matter of fact the witnesses lied! Halakhically, as a judge, he was obligated to accept their testimony, but this does not mean that he has direct knowledge of the loan itself.) His intent is that the judge testifies about an event that took place in a court in the past, but regarding that event we now have only one witness. Therefore, the present court does not accept that testimony – that is, it does not accept that such an event actually occurred. Consequently, the judge does not add even a single witness for the existence of the borrower’s liability, and so there is not even special testimony here. Regarding the loan, we are left only with the first witness.
A Question on the Rif
We must raise a question about the Rashba’s words here regarding “admission after loan”. In the case of “loan after loan” we indeed have two witnesses that Reuven owes a maneh to Shimon, and therefore they combine as special testimony. But in “admission after loan” this is really like combining a witness and a judge. There too, in “admission after loan”, one witness testifies about the loan and the second witness testifies that testimony was given before him (a litigant’s admission was said before him, which is like a hundred witnesses). That is, just like the judge in the Rif’s case, he too does not testify about the liability for the maneh itself. Why, then, in “admission after loan” do we combine the testimonies, while in the case of a witness and a judge we do not?
Back to the Dispute About a Litigant’s Admission
It seems natural to connect this to the dispute we saw between the Ketzot HaChoshen and Mahari ben Lev. We saw that Mahari ben Lev claims that a litigant’s admission is not a matter of credibility but of creating an obligation. The one who admits obligates himself for the maneh in his admission, and therefore we, the judges, accept that he is obligated. According to him, this is not evidence of the loan but a new obligation. The Rif’s words here seemingly assume precisely this presupposition. Remember that according to Mahari ben Lev the admission indeed creates a new obligation, and therefore testimony about it combines with testimony about the loan. There is special testimony of two witnesses who testify that there is a liability for a maneh. In this sense, there is no similarity to combining a witness and a judge, since there the judge testifies about something else, and not about the liability at all.
However, as we saw above, the Ketzot HaChoshen brings against this view crushing proofs (which in my opinion have no real answer), and therefore concludes that a litigant’s admission is a matter of credibility like a hundred witnesses and not of creating an obligation. Therefore I argued that even according to Mahari ben Lev it seems that his intent is credibility and not obligation. But in the Rif’s approach it appears to be an actual new obligation; otherwise we cannot understand how a litigant’s admission differs from a judge’s testimony about the examination of witnesses before him. It seems, then, that the Rif here presents a position like the one the Ketzot HaChoshen identified in Mahari ben Lev, namely that a litigant’s admission is an actual renewed obligation (and not credibility), even though, as noted, this is a very problematic conception.
Explaining the Rif Like Mahari ben Lev
But it seems that we can explain the Rif in line with the direction we proposed for Mahari ben Lev as well – that a litigant’s admission is credibility based on the fact that it is “in his power” (b’yado) to give a gift or undertake an obligation.
We may suggest that the credibility of an admission, as we saw in Mahari ben Lev’s approach, is also, for the Rif, based on the mechanism of “b’yado” and not on a regular migo. For this reason, although it is a mechanism of credibility, it is nevertheless considered credibility only from the moment of the admission, and thus it is regarded as a liability that has now come into being. The one who admits is indeed believed that there was a loan, but his credibility exists only from now on, thanks to his ability to obligate himself at this moment. Thus, the admission is regarded as an obligation that is created now and not as evidence about the past. On the one hand, we have special testimony of two witnesses that he owes a maneh; on the other hand, this is unlike combining a witness and a judge (for the judge does not testify about liability at all).
We can phrase it as follows: Let us treat this mechanism as migo. Under the assumption that there is one witness to the loan, and the borrower had in fact obligated himself before the second witness, the court would certainly accept the two testimonies as joined. This is special testimony of two witnesses that the borrower is liable (either because of a loan or because of an obligation). If so, just as in a regular migo, even when the borrower merely admits before the second witness, by virtue of the migo that he could have obligated himself we grant credibility to the witness’s testimony and join it to that of the first witness.
We can perhaps reinforce this reasoning by relying on what the later authorities call “migo of the power of the claim” (migo koach ha-ta’anah). In my booklet on migo I explained that the later authorities view the credibility of migo as a change in the status of the claimant. Since, legally, he is regarded as one who actually advances the alternative claim, he becomes the “muchzak” (the one in possession) when he advances his current claim (because he had it in his power to win with the other claim, and it is as if he actually advanced it). According to this, when a person admits a debt there is a reverse “migo of the power of the claim”: at the moment of his admission he is regarded as one who gives a gift (for his credibility is based on the fact that he could have given, so we regard him as if he is now giving), and therefore the witness before whom he admitted also becomes a witness to a debt that the borrower owes the lender, joining the first witness who testifies to the loan itself. This potential liability (for he has not actually undertaken an obligation, but only receives a power as if he had) comes into being from the moment the borrower admits. If so, it is reasonable to regard this as if another new obligation is being created at that very moment, despite the fact that both migo and admission belong to the laws of evidence and not to the laws of obligations. This can be the explanation in the Rif. He indeed holds like Mahari ben Lev, but according to both of them the admission is a matter of credibility and not of creating an obligation. The obligation gives the admission the power of a claim and is regarded legally as if it had occurred, and therefore the witness who testifies to the admission is regarded as a witness to a liability that the borrower has (and in this he does not resemble a judge who testifies about a prior court session, in the Rif’s case).
Let us note that the early authorities disagree (see here, s.v. “Anu makirim”) about whether the credibility of “b’yado” exists only when, at the moment he makes the claim, the matter is in his power, or whether it also exists when the matter was in his power in the past. For most of the early authorities, the credibility exists only when it is in his power now. Seemingly this depends on whether the credibility of “b’yado” is derived from migo or not. But according to our approach, even if the credibility of “b’yado” is not derived from migo, it is still a stronger migo. The basis of the matter is that we have here credibility grounded in the ability to obligate, and this ability must exist at present. If so, it is no wonder that the admission itself is regarded as a new obligation. From this it follows that testimony about an admission is also testimony that the one who admitted is liable (unlike a judge’s testimony about witnesses who appeared before him). Consider this well.
[1] In other legal systems, an admission is admissible also in criminal law (in halakhah this is only in monetary law. In criminal law the principle is the opposite: “A person cannot make himself wicked”). Therefore, there one usually requires some supporting evidence, since precisely because of the strength of the evidence there is concern that the admission was obtained by improper means (torture and the like). Otherwise, why would a person admit against his own interest?! In monetary law this consideration does not apply, since he is not under police interrogation and is not suspected of a crime. He is admitting in court.
[2] Admittedly, in Bava Metzia there it appears that two witnesses are stronger than an admission, but that sugya in any case requires explanation, and this is not the place to elaborate.
[3] I have already brought here in the past (see the beginning of Column 196) the case from Vayikra Rabbah regarding Alexander the Great in Africa. There we see that when there is no dispute, the court does not sit to judge, even if there is no way for the one who admits to pay (because the other is not prepared to accept). A court sits to judge only when someone’s rights have been infringed and he turns to the court seeking assistance in protecting his rights. If he wishes to give – let him give. And even if he does not succeed in giving as he desires, it is not the court’s role to help him do so.
[4] In the definitions accepted by many early authorities, a party to the case is not a disqualified witness but not a witness at all. One ramification concerns the rule of “we split the statement” (plaginan dibura), according to the Ra’avad as cited in the Rosh, Makkot 7a.
[5] This is in contrast to the “interested party” (nogea), regarding whom the views are divided, and this is not the place to discuss it.
[6] In my article on Scriptural decrees (gezerot ha-katuv) I distinguished between several types of Scriptural decrees. Here we have a limitation that is itself a Scriptural decree. The problem is not logical (for as we have seen, it is logical to believe a litigant’s admission), but one of consistency with the other halakhic rules (that disqualify a party to the case).
[7] His wording in the responsum is not entirely clear. In the formulation cited by the Ketzot HaChoshen it is indeed possible to fit in this interpretation, but further on there it appears more that his intent is to an actual gift.
[8] The reason brought there in the name of the Minchat Asher (so that people can eat at one another’s homes) does not fit our context, and I really disagree with it.
[9] This is not my original idea. I have seen later authorities who already proposed it.
[10] In the Talmudic source (Makkot 6b), what is called “special testimony” is a situation where the witnesses see the act from two different places (they observe the murder from two windows). In a murder case this is not accepted, but in monetary cases it is. The common explanation is that seeing the act from two windows raises the suspicion that there were two different acts, and then this is special testimony. And in monetary law, where special testimony is accepted, of course the testimony of two witnesses from two windows is also accepted.
Discussion
Mahariva”l is unclear for an additional reason: what connection is there between his ability to give a gift and the fact that this creates a liability? After all, even one who swears to give his fellow a gift—his fellow cannot sue him for it; rather, it is an obligation on the person, not a legal obligation in the judicial sense. If so, the same should apply to a litigant’s admission if we say it is an admission only because he can give the claimant a gift and witnesses cannot prevent him from doing so—but at the end of the day they also cannot sue him for it.
Seemingly there is no reason his credibility should be stronger just because he can give it; so what?! How can we obligate him merely because he could have given it as a gift? If because he could also have damaged or stolen, would we say that strengthens his claim? If he were a thief or a liar, would he therefore steal?!
Also, a migo claim is one that strengthens the proof from within the framework of the arguments; there is no room for a migo of credibility outside the walls of the present litigation, and certainly not as support for the force of the claim.
The organization B’Tzalmo responds: Mr. Michael Abraham, you are required to delete the incomprehensible post you wrote,
Your crude insinuations against the Haredi public under the guise of a learned column, intended to hint at the quality of study in Haredi yeshivot.
You have twenty-four hours to publish an apology to those who did not understand your learned insinuations.
Of course. The Rosh himself there cites a dissenting opinion (we split the statement and credibility). Many disagree with him.
If he undertook an obligation, then he can be sued for it. An undertaking is not an oath. An undertaking belongs to Choshen Mishpat, and an oath belongs to Yoreh De’ah. And when he is believed regarding the admission because of the ability to undertake, then obviously this is a credibility on the basis of which one can sue him. We do not obligate him because he can give. We obligate him because of his admission. But his admission is valid because he can give.
Since my regard for that organization is at grass level, I seriously thought this really was a response from them. We’ll wait for the investigation and see.
What creates the obligation? This is circular.
If I obligate myself to pay you money for no reason, can you sue me for it? How, in fact, does one undertake an obligation? After all, the whole obligation is only because we view his statement as testimony that obligates, and not because he can simply undertake an obligation for no reason.
According to the way the rabbi explained that a litigant’s admission is only a kind of upgraded migo, seemingly that would not solve the problem of how he can be believed against witnesses. Surely regarding something within his power, against witnesses, witnesses are stronger (this is stated explicitly in Shev Shema’teta 6, and it is perfectly logical as well).
Besides, the major difficulty that led the Acharonim (Shev Shema’teta and others) to say that something being in his power is a matter of ownership and not migo is precisely because migo does not apply retroactively. And according to your approach, ownership too is ultimately just a stronger migo (you mentioned this, but I didn’t understand what you wrote about it…). And regarding retroactive migo, that is a consideration that topples the whole mechanism of migo, and it won’t help that this one is stronger…
If the goal is that the judgment be a true judgment, then why are there various strange rules that are unrelated to the concept of a “true judgment”?
The question whether a litigant’s admission counts or not should be decided during the trial, not by some a priori rule.
Any rule that does not include within it the concept of a “true judgment” leads to a false judgment. And to injustice.
A nice question I heard on Mahariva”l’s view. The Gemara in Shevuot derives that the oath concerning testimony applies to monetary testimony from the verse, “or he saw or knew”—what testimony is there that involves seeing and not knowing, or knowing without seeing? And the example of testimony of knowledge that is not seeing is witnesses who testify that so-and-so admitted to a maneh. According to Mahariva”l, that is testimony of seeing.
This is exactly what Mahariva”l argues (and also Ketzot HaChoshen himself in the suggestion that he rejects because migo does not help against witnesses): one can create an obligation (it really doesn’t matter in what way), and because of that he can also admit and be believed. Because of the obligation he is believed in the admission, and not the other way around.
As for the question how a valid obligation is created, if at all, I won’t get into that here. It is a complicated sugya, and as is known the Rishonim disagreed about it.
Are you unfamiliar with the concept of procedure versus substance?
Absolutely not true, and not logical either. What is in his power overrides witnesses. That is the meaning of the “ownership” the Rosh is speaking about. After all, if he had actually undertaken the obligation, it would have been effective even against witnesses.
I explained that there is no retroactive migo here, since according to most opinions among the Rishonim, something being in his power also does not help retroactively.
And let us say amen!!!
Not necessarily. According to my explanation, Mahariva”l too sees admission as credibility, except that it is based on the ability to undertake an obligation. Therefore this is not testimony of seeing. It really is a subtle point, in light of what I tried to argue in resolving the Rif, but that is the claim.
By the way, Rashba on Rosh Hashanah 25 discusses the rule “hearing should not be greater than seeing,” and explains what happens when the court itself saw the moon at night. If they could judge at night, this would be testimony of seeing (they would be considered witnesses), but when they come to judge in the morning based on what they saw at night, they are considered witnesses of hearing and a new testimony is required. He distinguishes there between judging on the basis of knowledge and judging on the basis of seeing. According to this, a witness who testifies about an admission is in any event not a witness of seeing, even if one understands Mahariva”l in the simple sense.
Procedure such as “be thorough in examining the witnesses”? Of course. That is how one arrives at the truth.
But to establish an a priori rule that whoever admits, his testimony is true—or false—harms the truth. And in general, every generalization harms the truth. The truth about the judgment of a particular individual is particular, and every case must be judged on its own merits.
At the very least, if one is already setting some rule, one should indicate how often it is correct or incorrect. Otherwise it is not serious at all by any scientific standard.
Indeed, words of truth are recognizable 🙂
I have a feeling that the question asked here was a practical halakhic one, and therefore I must add a clarifying/warning note, contrary to my usual practice.
Ordinarily I do not respond to the words of this posek, because he tosses out slogans with no basis whatsoever and makes no arguments. Usually it is not worth responding. But here he is tossing out slogans that could be misleading in practice. Therefore I must add a warning: what he says here (as in other places) is nonsense. Without any internal logic and without any halakhic basis. Therefore anyone who wants to know the halakhic position should please ignore his words.
Obviously what I said is the opposite of halakha. The halakhot and laws themselves are often established on the basis of various presumptions and various rules such as “a person is close to himself,” “a person does not make himself wicked,” and various strange migo arguments.
These rules make claims about the human psyche that are true in some cases and not true in others, and therefore they do not guarantee a true judgment and should therefore be disqualified as a matter of principle.
As for the basis, what I say is based on logic and on the concept of “truth,” and I think it is fairly clear that this is what it is based on from the way I wrote the remarks.
I am only arguing what any reasonable person should agree to: that truth is not determined by rules of thumb, and the human psyche does not operate according to such rules.
And the simple proof that I am right is that there are disputes about these issues. If they were correct, there would be no dispute. 🙂
You wrote: “The matter of a litigant’s admission is founded on a simple rationale. If a person admits, it is highly probable that this is the truth.”
That is a very big leap from “admits” to “truth.” What is its basis?
What is true to say is that if a person admitted, then apparently he wanted to admit.
Then the question is why he wanted to admit. And then we enter into issues of various strange interests and the way different people perceive reality (some make a mountain out of a molehill and some do not), at different times and in different situations, and many other complex questions that have no simple answer.
Therefore the Torah takes care to say that what matters is that the judge’s mind be clear and that he be objective, so that he can judge a just judgment anew each time without any a priori rules whatsoever.
Posek, I fear you are an ignoramus, but for the sake of the minority chance that you are not, I ask you to think a bit about how basic and essential procedural rules are in life.
Ish
What do you mean? Give an example.
Posek, I don’t have the time, so I’ll show you a place—Civil Procedure—between substance and procedure in Jewish law and in general law
Dr. Itamar Miron, dissertation | Bar-Ilan University | 2010
I have more, if you want.
[I once worked on this, and you won’t believe it—I think that in the disputes of Abaye and Rava, there is a resemblance to this ancient debate… but of course this is not the place.]
Where is the dispute? It says there exactly what I said. It’s just that there it is explained that rules have importance for preserving stability and efficiency and the like.
And what can you do—that sins against the concept of a “true judgment.” That is what is written there and that is what I said.
So why did you call me an ignoramus? It’s not clear.
The reason one needs a true judgment is the same reason one needs to preserve stability and efficiency—to sustain the world.
There is no need for a true judgment in and of itself.
Sorry that I called you a name; it wasn’t because of the argument, but because of the form of your give-and-take with Michi.
Is there a practical difference between the explanation in Mahariva”l and Ketzot’s own view (if you can’t beat ’em, etc.)? The explanation in the Rif, I think, can also be suggested for the words of Ketzot HaChoshen (because from the verse of partial admission one cannot learn more than credibility from this point onward).
“Without any internal logic.” What.
Rabbi Posek, make room, I’m joining you on the pillar of shame.
What does the rabbi think of a somewhat similar possibility brought partially in Terumat HaKeri 1, that this is by the rule of shavya anafshei? In credibility based on something being in his power, the credibility is toward the whole world, and the assumption is that a person tells the truth. Also, from the perspective of the force of a claim, seemingly a claim of exemption—like in the sugya of “whoever says: I did not borrow”—the claim is one of exemption. If I see this as a law of credibility regarding oneself, then the court does not view the person as truth-telling; rather, it obligates him to stick to his version.
If this were by the rule of shavya anafshei, could the recipient betroth a woman with this money? After all, from his standpoint it is not his. In one way or another, this is an obligation. It doesn’t matter what you call it. Especially since all the difficulties that show this is a matter of credibility still remain (for example, “whoever says: I did not borrow”).
I was speaking about the concept of a “true judgment,” from which it follows directly that all kinds of a priori rules can lead to a false judgment.
Michi did not address this argument at all. His arguments have been stopped up. Or perhaps he agrees with me, because silence is like admission.
And even when you responded, you mistakenly thought you had proofs against me, when in fact you brought proofs in my favor.
Do you treat this “silence as admission” as an a priori rule, or as something arising from the discussion?
Better that I remain silent
I do not agree at all. In Meiri on Bava Batra 128b, the language is: “there are no witnesses where there is a litigant’s admission.”
And in Nimukei Yosef on Bava Batra it is explained that accepting upon oneself three cattle herders as judges is on the basis of a litigant’s admission. And certainly not because they know the law. Also, see the Gemara in Nedarim 27a, where a litigant’s admission applies there conditionally (in Ran there), and many other proofs.
And in general, in the Rosh in HaNizakin, the rule of “in his power” is not on the basis of migo at all (this is explicit in the Rosh there), but on the basis of “ownership.” The explanation of this is found in the Chazon Ish (whose source I do not remember at the moment) based on Tosafot HaRosh, Kiddushin 64a, and also 74a regarding the midwife being believed to say “this is the son of a kohen,” etc. The gist is that in a place where the natural reality is that a particular person is found in a particular place, like a delivering midwife—then common sense says to place the credibility in her hands, for she certainly was there and the matter was done by her, and we have no reason to suspect her of lying without a serious cause [that is approximately the Chazon Ish’s wording]. But certainly, certainly not on the basis of migo. There is no connection.
Therefore, “in his power” and the rule of “one witness” are things that are entirely on the same plane (as explained in the responsum of Maharik under discussion in Tosafot 2b). [Just as one witness is natural credibility, for otherwise no one could ever…—we must view reality simply, and if a prohibition has not been established, we need not entertain suspicions upon suspicions when someone tells us everything is fine; the same applies when it is “in his power”—this is natural credibility.]
If I was not clear enough:
I just want to emphasize that my intent in the proofs from the above Meiri and Nimukei Yosef is that this is not credibility like all other forms of credibility. We simply place the law in the hands of the one making the admission, and he thereby determines his law. This too is explained in the Chazon Ish, though I do not remember the source right now.
And in the Rosh it is explained explicitly that this is not on the basis of migo, since he does not want to render his pure foods impure, etc.; see there. And certainly this does not help against witnesses.
Also, in the Gemara Bava Batra 33b it is explained that “in his power” does not help against witnesses, and likewise in Rashbam there on 134b.
Tosafot HaRosh, Kiddushin 64a: the reason the father is believed to say that his son is of a certain age
is that it is considered like “in his power,” in that the father has to pay attention to his two sons, because he knows people rely on him for this, to inform them of their age.
Chazon Ish, Bava Kamma, siman 18, se’if 6:
For admission is not an acquisition, but rather the power of the law to judge according to his admission whenever he is not harming others but only himself; consequently all the results are determined by the law in accordance with his admission, and this is what the decisors called kinyan odita…
The second Chazon Ish I do not recall.
Why does the rabbi call this “to engage a bit in the things that are truly important”? Is dealing with the question of knowledge and free choice less important than the law of a litigant’s admission? And regarding the presentation of the sugya itself—why does the rabbi trouble himself to explain the words of the Rishonim instead of giving a direct interpretation of the issue, according to your own approach that you are not bound by them?
Because these are words of Torah, and the question of free choice is just a question in general philosophy.
Why shouldn’t I trouble myself? For most of my life I have been occupied with the views of the Rishonim. Does the fact that I am not bound to accept everything they say compel the conclusion that there is no value in studying their views?! What has the sabbatical year to do with an omelet?
Seemingly, from Mahariva”l’s language it sounds like he is saying this is an actual gift, and not that he is believed by virtue of the fact that he can give a gift:
And from here the Rishonim learned that one who admits before two witnesses with “you are my witnesses,” whether he admitted regarding something for which he is liable or whether he admitted regarding something for which he is not liable, but rather gives it to him as a gift—he acquires it, for it is as though he said, “I gave such-and-such a field to so-and-so” … And so ruled the Geonim, who wrote of admission in their compilations as one of the modes of acquisition …
I noted that his words do carry such an implication.
Since, following the attack of the accursed Persians, the response was deleted, I hereby reconstruct it: the question is whether one can at all read any other meaning into his words.
“The Persians coerced him” (to eat matzah)—he fulfilled his obligation.
I think his wording has implications in both directions, and reason suggests that my interpretation is the only possible one. Otherwise his words are absurd in the extreme. In balancing wording against logic, I came away with the impression that this interpretation is possible (though at the moment I do not remember, since I saw his words a long time ago).
“Migo as the force of the claim”
Sorry for discussing a marginal point in the article, but does the rabbi understand the above phrase?!?!
Absolutely. See my booklet on migo here on the site.
It seems to me that one can challenge the simple understanding of Mahariva”l from the Gemara in Yevamot.
The Gemara Yevamot 87b-88a tries to bring a Torah source (Tosafot) for the credibility of one witness. The Gemara cites a baraita that derives from what is said regarding the sin-offering, “or his sin be made known to him,” and the Gemara explains it as involving the testimony of one witness, and there is still no problem of unconsecrated animals in the Temple courtyard. But afterward the Gemara explains that the obligation is because of his silence, and silence is like admission. So one witness does not obligate him to bring an offering, but if he was silent in response to the witness’s words, then he becomes obligated to bring an offering. From this it seems to me that one can learn that a person’s admission is not by way of undertaking an obligation but rather a kind of ownership, as you explained. For one cannot say that this is credibility, since Tosafot wrote that his admission does not stem from knowledge, but rather that it seems true to him and there is some basis for it. So although this is not a full admission, he is nevertheless believed regarding the offering, and that seems to be because of his ownership/ability to bring about the situation or prevent it himself, just as the Gemara presented according to the Sages regarding two who said to him, “You ate forbidden fat,” and he denies them and does not bring an offering because of his ability to say, “I acted intentionally”—this is not a matter of ordinary credibility, but of the fact that the matter is placed in his hands.
If what I wrote is nonsense, I would be happy if you explained. Thank you.
There are quite a few crushing difficulties with Mahariva”l, so even without this sugya it seems that this was not his intent. But regarding your point itself, this requires thought, and offhand I think there is no proof from here. If he is not sure about the matter, then even from the standpoint of vow and gift there is no settled intent here. It seems that the novelty here lies in the laws of “or it be made known” (and not necessarily ordinary credibility), that such a thing too is considered a person’s knowledge and is enough to obligate a sin-offering, and we are not concerned about unconsecrated animals in the Temple courtyard. Moreover, here his admission only has to join with the one witness who is already there, and there is no proof that it really has the status of two witnesses.
By the way, there is Reish Lakish’s view in Pesachim 22 that unconsecrated animals in the Temple courtyard is only rabbinic.
I did not understand the two sides in Maharib ben Lev: why is one who takes payment disqualified from testifying? Either because we are concerned lest he lie, or because he is a relative.
And similarly the Acharonim who explain that one with an interest is disqualified from testifying because he is a relative.
But that is exactly the question: why is a relative disqualified?!
What is the difference between someone with an interest and a relative? It sounds like saying, “Why is the payee / interested party disqualified? Because he is a payee / interested party.”
In short, what is the other side of the coin?
You explained in the Rashba that the witnesses are believed (this is clarification and not merely legal conduct), but he only argues that the judge cannot know about the maneh directly, and therefore he is not considered one who testifies about the maneh.
I did not understand the problem. So what if he does not know directly but only indirectly? The main thing is that he knows! According to your explanation, it turns out that we know with certainty that he owes a maneh, but we do not obligate him to pay simply because we knew it somewhat indirectly. Isn’t that strange?
An interested party is someone who has a financial stake, meaning that the outcome of the litigation affects him. A relative is a familial relation. It is not the same thing. A litigant is one concerning whom the litigation is conducted (the most interested party there is).
The question why a relative is disqualified has no clear answer. It is only stated that this is not because of concern for his reliability. I once thought that this is an extension of the litigant’s disqualification (because the relative is the litigant’s periphery).
In halakha, indirect knowledge is not testimony. Like testimony from written notes, and like one who did not see directly but heard from someone else (hearsay testimony).
I understand. In the end, are two witnesses legal conduct or clarification? Because in the next post you bring from Rabbi Shimon Shkop as well, and he too writes that perhaps the witnesses lied and we do not really know the truth.
It is clarification, but not certain clarification. The Torah instructs us to rely on it.
How is clarification that is not certain, which the Torah instructs us to rely on, different from legal conduct, where the Torah instructs us to act according to the testimony?
What is the difference between* … and* legal conduct …
No clarification is certain. Clarification is evidence of some strength (not 100%). Legal conduct means relying on something that is not evidence.
Good and fine, and indeed Riva”l’s words are so puzzling!
By the way—I seem to recall almost with certainty that there are those who disagree [and perhaps there are also proofs against] the Ra’avad, and a litigant is defined only as a relative. (Perhaps in the Maggid Mishneh on Sanhedrin 10:)