עד מתי יכול להביא ראיה לסתור דין. ובו סעיף אחד:
מי שנתחייב בב"ד והביא עדים או ראי' לזכותו סותר הדין וחוזר אע"פ שכבר נגמר ואפי' אם פרע כבר כל זמן שהוא מביא ראיה סותר אמרו לו הדיינים כל ראיות שיש לך הבא מכאן ועד ל' יום אע"פ שהביא ראיה לאחר ל' יום סותר את הדין שאל"כ מה יעשה אם לא מצא בתוך ל' ומצא לאחר ל' אבל אם אמרו לו להביא עדים או ראיה ואמר אין לי אע"פ שמצא אח"כ אינו כלום ואצ"ל אם אמרו לו יש לך עדים ואמר אין לי עדים יש לך ראיה ואמר אין לי ראיה ודנו אותו וחייבוהו כיון שראה שנתחייב אמר קרבו איש פלו' ופלו' והעידוני או שהוציא ראיה מתוך אפונדתו (פירוש חלוק קטן בתפירות כעין כיסין) אין זה כלום ואין משגיחים עליו ועל ראייתו: הגה אבל אם לא אמר אין לי ראיה אע"פ ששתק עד שנתחייב בדין ואח"כ אמר קרבו פלוני ופלוני ויעידו סותר הדין (תשובת הרא"ש כ"ו וי"ג סי' י"ט): בד"א כשהיתה הראיה אצלו והעדים עמו במדינה (אבל) אם אמר אין לי עדים ואין לי ראיה ולאחר מכאן באו לו עדים ממדינת הים או שהיתה דסקיא של אביו שיש שם השטרות מופקדת ביד אחרים (וי"א ה"ה שטרות שלו) (טור) ובא זה שהפקדון אצלו והוציא לו ראיותיו הרי זה מביא וסותר מפני שיכול לטעון ולומר זה שאמרתי אין לי עדים ואין לי ראיה מפני שלא היו מצויים אצלו (ודוקא שבאו עדים שאותן השטרות היו באותן שטרות המופקדים) (מרדכי ס"פ זה בורר) וכ"ז שיכול לטעון ולומר מפני כך וכך אמרתי אין לי עדים ואין לי ראיה והיה ממש בדבריו הרי זה לא סתר טענותיו וסותר לפיכך אם פירש ואמר אין לי עדים כלל לא הנה ולא במדינת הים ולא ראיה כלל לא בידי ולא ביד אחרים אינו יכול לסתור בד"א בגדול אבל יורש שהיה קטן כשמת מורישו ובאו עליו טענות מחמת מורישו אחר שהגדיל ואמר אין לי עדים ואין לי ראיה ואחר שיצא מב"ד חייב אמרו לו אחרים אנו יודעים לאביך עדות שתסתור בה דין זה או שאמר ליה אחד מורישך הפקיד ראיה זו הרי זה מביא מיד וסותר שאין היורש קטן יודע כל ראיות מורישו: הגה וכל זה בסתמא אבל אם הביא הגדול אח"כ ראיה ועדים שלא ידע מאלו עדים שהביא אח"כ או (קטן) שבאו עדים ואומרים ששטרות של אביו היו בידו וידע בהן כשירד לדין הולכים אחריהם (מרדכי ס"פ ז"ב): One who was found guilty in the Court of Law and [subsequently] produced witnesses or proof in his favour, it1The Court of Law. Thus Rashi. can upset the verdict and [the decision] is reversed,2Yad, Sanhedrin VII, 6. Derived from Mishna San. 31a. , supra § 16, 1 and notes. although [the trial] had already been concluded3Y. San. III, 12((21d). and even if he [the guilty party] had already made payment,4San. 31a (ref. to text cited supra § 16, 1, n. 4): ‘Rabbah b. R. Huna stated: The law follows Rabban Simeon b. Gamaliel. Rabba b. R. Huna also said: The law does not follow the Sages. But is this not self-evident; since he states that the law follows Rabban Simeon b. Gamaliel it automatically follows that the law does not rest with the Sages? — What you might have said is that his statement (that the law follows Rabban Simeon b. Gamaliel) applies only at the outset (i.e., even if evidence was produced after the thirty days it should be accepted); but ex post facto (i.e., where his proof was rejected by the Court and a decision was given accordingly) it holds good: we are therefore informed by the second statement, (viz., that the law does not follow the Sages) that even then (the verdict) is upset.’ According to the interpretation of R. Zeraḥiah ha-Lewi, this latter statement ‘but ex post facto etc.,’ should be understood as referring to a case where money had already been exacted from one party, and we might have thought that in this case the law should rest with the Sages and the verdict should not be upset, we are therefore informed otherwise. This is the source of the present ruling ‘even if he had already made payment.’ Hence, according to this interpretation ‘at the outset’ (לכתחילה) means that the verdict was given but not yet carried out, and ‘ex post facto’ means that the verdict was already carried out. — [yet] as long as he produces proof, it1The Court of Law. Thus Rashi. upsets [the verdict]. [If] the Judges told him, 'All proofs which you have in your possession, produce within thirty days' — [the law is that] although he produced proof [only] after thirty days, it1The Court of Law. Thus Rashi. upsets the verdict; for if this were not so, what is he to do if he did not find [evidence in his favour] within the thirty [days] but only after the thirty days?5Mishna San. 31a in accord with Rabban Simeon b. Gamaliel. , text supra § 16, 1, n. 4. However, if they told him to produce witnesses or proof, and he stated, 'I have none,' — [the law is that] although he found [proof or witnesses] subsequently, — it is of no legal effect.6Mishna ibid. in accord with the Sages who oppose Rabban Simeon b. Gamaliel because he might have forged a document or engaged false witnesses. For we take for granted that when he gave them a negative reply he made a thorough investigation whether he has evidence or witnesses. Thus Rashi. M.E., writes that even if it becomes apparent that he did not engage false witnesses, nevertheless, if he is of majority age and gave them a negative answer at the outset, we no longer accept these afterwards. And needless to say, if they said to him, 'Do you have witnesses?' and he replied, 'I have no witnesses,' [or they said to him], 'Do you have proof?' and he replied, 'I have no proof,' and they tried him and found him guilty,7Not necessarily if they had already convicted him, but even if he made this statement on seeing that he was about to be convicted. and [then] on seeing that he is convicted,7Not necessarily if they had already convicted him, but even if he made this statement on seeing that he was about to be convicted. he said, 'Admit So-and-so and let them testify in my favour,' or he [then] produced [documentary] evidence from his funda,8Gr. ϕοȗνδα. A money bag, purse or wallet for keeping money or documents, or a hollow girdle in which money is kept. Cf. Latin funda. i.e., [a garment in the form of] a small shirt [sewn] by stitches similar to wallets,9, ‘Ar. Comp. s.v. אפנדה where this definition is found. — it has no legal effect,10Yad, Sanhedrin VII, 7 in accord with all the authorities. and they pay no attention to him nor to his proof.11For since he knew about it and did not produce it, we apprehend that it is false and he merely kept it as a last resort — M.E. Gloss: However, if he did not say, 'I have no proof' [or 'I have no witnesses'], [then] although he was silent until he was convicted by Law and afterwards he said, 'Admit So-and-so and So-and-so and let them testify in my favour', it1The Court of Law. Thus Rashi. can upset the verdict.12Asheri Resp. Rule VI, s. 15 and Rule XIII, s. 19 — G. The statement in the Mishna ibid.: ‘On seeing that he was about to be convicted he said, Admit … my favour etc.,’ refers only to a case where he previously stated, ‘I have no proof or witnesses’ whence we infer that had he remained silent we would now accept his evidence. Likewise, if he has additional pleas in his defence, as long as they do not contradict his original pleas, he is permitted to state them — Asheri. When does this apply?13That if he answered, ‘I have no witnesses’ or ‘I have no proof,’ he can no longer produce them later. — When the proof was in his possession14Or in another’s possession when he stated before the Court ‘I have none’ — M.E. and the witnesses [were residents] with him in [the same] country; but if he stated, 'I have no witnesses and I have no proof,' and subsequently witnesses arrived [to testify in] his favour from overseas or his father's saddle-bag15Heb. דסקיא. Gr. δισάκκιον; Lat. Bisaccium, a bag with two pouches. containing the documentary [proof] was deposited with strangers,16And the one with whom they were deposited is not present in the city; and even if the document is not in the saddle-bag but is separate and the one with whom it was deposited is not available in town. — and some say likewise his own documents,17Tur — G. But the one with whom they were deposited is in another country. — and [then] the trustee arrived and produced his proofs, — [the law is that] in this case he may bring forward [the new evidence] and it1The Court of Law. Thus Rashi. can upset [the verdict]18Yad, Sanhedrin VII, 8. Derived from San. 31b in accord with R. Samuel b. Judah on the authority of R. Joḥanan. because he can plead by saying, 'This statement [viz., that] I have no witnesses and I have no proof I made [previously] because they [the witnesses or proof] were not accessible to me.'19But we do not put forward this plea on his behalf if he makes no mention of it. And [this applies] only where witnesses came [and testified] that those documents were among the deposited documents.20Mord. to San. III end. Derived from Tosef(Z). VI, 4. And as long as he can advance a plea and state, 'On account of such and such circumstances I stated [that] I have no witnesses or I have no proof,' and there was substance in his pleas, — [the law is that under] these [circumstances] he did not declare his case to be closed and it1The Court of Law. Thus Rashi. can [still] upset [the verdict].18Yad, Sanhedrin VII, 8. Derived from San. 31b in accord with R. Samuel b. Judah on the authority of R. Joḥanan. Therefore, if he explicitly stated, 'I have no witnesses at all neither here nor overseas,' or 'I have no proof at all neither in my possession nor in the possesssion of strangers,' it1The Court of Law. Thus Rashi. cannot upset [the verdict].21San. 31a: ‘A youth (minor) was once summoned to appear for trial before R. Naḥman. Said the latter to him: Have you any witnesses? No, he replied. Have you any (written) evidence? No, he answered. R. Naḥman convicted him. As he walked along weeping, certain people heard him and said to him, We are acquainted with your father’s affairs (and can offer testimony in your favour). Said R. Naḥman: In this case even the Sages (who differ with Rabban Simeon b. Gamaliel) agree that the youth is not supposed to know his father’s affairs (and consequently the verdict may be upset).’ From this we infer that in the case of one of age who said, ‘I have no evidence here or in any other locality’ and thereafter produced evidence, he is not believed. When does this apply? — In the case of an adult, but a legatee who was a minor when his legator died and claims were brought against him on account of his legator after he came of age, and he stated, 'I have no witnesses' or 'I have no proof,' and after he left the Court of Law [where he was pronounced] guilty, strangers said to him, 'We are aware of testimony on your father's behalf whereby you may upset this verdict, or a certain individual said to him, 'Your legator deposited this proof [with me],' — [the law is that] he may produce [this evidence] forthwith and it1The Court of Law. Thus Rashi. upsets [the verdict], — for a minor legatee is not [supposed] to know all the [available] proofs of his legator.21San. 31a: ‘A youth (minor) was once summoned to appear for trial before R. Naḥman. Said the latter to him: Have you any witnesses? No, he replied. Have you any (written) evidence? No, he answered. R. Naḥman convicted him. As he walked along weeping, certain people heard him and said to him, We are acquainted with your father’s affairs (and can offer testimony in your favour). Said R. Naḥman: In this case even the Sages (who differ with Rabban Simeon b. Gamaliel) agree that the youth is not supposed to know his father’s affairs (and consequently the verdict may be upset).’ From this we infer that in the case of one of age who said, ‘I have no evidence here or in any other locality’ and thereafter produced evidence, he is not believed. Gloss: This entire [aforementioned law] applies to an undefined case,22e., where we are unaware whether he knew of the evidence or not. but if the adult subsequently produced proof and witnesses [to prove] that he was unaware of these witnesses [or proofs] which he subsequently produced, or [in the case of] a minor [legatee regarding] whom witnesses came and stated that his father's documents were in his possession and [that] he knew about them when he went to law, — [the law is that] we accept them.23Mord. to San. III end — G. In the former case we upset the verdict though he is of age and the witnesses and proofs were available in his city; in the latter case the verdict stands even though he is a minor.