פרשת משפטים תשכ"ב - מדבר שקר תרחק

The Sages taught: From where is it derived that a judge should not engage in advocacy [saneigeron] for his own statements and devise various pretexts to justify his erroneous rulings? It is derived as the verse states: “Distance yourself from a false matter” (Exodus 23:7). And from where is it derived with regard to a judge that a student who is an ignoramus should not sit before him to discuss the proceedings? It is derived as the verse states: “Distance yourself from a false matter.” When an ignorant student engages in the proceedings, he is apt to cause the judge to err in judgment.

MISHNA: The oath of testimony is practiced with regard to men but not with regard to women, with regard to non-relatives of the litigants but not with regard to relatives, with regard to those fit to testify but not with regard to those unfit to testify due to a transgression that they performed. And the oath of testimony is practiced only with regard to those fit to testify. The oath of testimony is practiced both in the presence of a court and not in the presence of a court, when the potential witness takes the oath on his own. But if the oath is administered by others and those denying that they witnessed the incident in question neither take an oath nor answer amen to the administered oath, they are not liable until they deny any knowledge of the incident in question in court. This is the statement of Rabbi Meir. And the Rabbis say: Whether one of the witnesses takes the oath on his own or whether the oath is administered by others, the witnesses are not liable until they deny any knowledge of the incident in question before the litigants in court. And one is liable for the act of taking a false oath with intent and for an unwitting act of taking a false oath, i.e., he is unaware of the liability for taking a false oath, provided that he takes the oath with intent in terms of the testimony, i.e., he takes an oath that he has no knowledge of the matter even though he knows that he witnessed the incident. But witnesses are not liable for taking the oath if they were unwitting in terms of the testimony, i.e., they believe that they have no knowledge of the matter. And what are they liable for by taking a false oath with intent? They are liable to bring a sliding-scale offering. GEMARA: The mishna teaches that the oath of testimony is not practiced with regard to women because they are unfit to testify. The Gemara asks: From where is this matter, that women do not testify, derived? The Gemara answers: It is as the Sages taught in a baraita: When the verse states: “If an unrighteous witness rises up against any man…then the two men shall stand” (Deuteronomy 19:16–17), it is with regard to witnesses that the verse is speaking. Apparently, men, not women, may testify. The baraita continues: Do you say that it is with regard to witnesses, or perhaps it is only with regard to litigants that the verse is speaking? When it states: “Between whom the controversy is” (Deuteronomy 19:17), the litigants are already stated in the verse. How do I realize the meaning of the phrase “then the two men shall stand”? Apparently, it is with regard to witnesses that the verse is speaking. And if it is your wish to say that this is not a proof, another proof may be cited. It is stated here: “The two men,” and it is stated there: “On the basis of two witnesses” (Deuteronomy 19:15); just as there, it is with regard to witnesses that the verse speaks, so too here, it is with regard to witnesses that the verse speaks. The Gemara asks: What is the meaning of the statement of the baraita: And if it is your wish to say? Why is the initial proof inadequate? The Gemara answers: And if you would say that from the fact that the verse did not write: Then the two men and those between whom the controversy is shall stand, which would indicate that the verse changes its focus from the witnesses to the litigants, perhaps throughout the entire verse it is with regard to litigants that it is speaking. Therefore, the tanna cites an additional proof. It is stated here: “The two men,” and it is stated there: “On the basis of two witnesses”; just as there, it is with regard to witnesses that the verse speaks, so too here, it is with regard to witnesses that the verse speaks. It is taught in another baraita: When the verse states: “Then the two men shall stand,” it is with regard to witnesses that the verse is speaking. The baraita continues: Do you say that it is with regard to witnesses, or perhaps it is only with regard to litigants that the verse is speaking? The tanna asks: Did you say that? If the reference is to litigants, why does the verse mention two? Do two people come to court for judgment but three people do not come to court for judgment? And if it is your wish to say that this is not a proof, another proof may be cited. It is stated here: “The two men,” and it is stated there: “On the basis of two witnesses”; just as there, it is with regard to witnesses that the verse speaks, so too here, it is with regard to witnesses that the verse speaks. The Gemara asks: What is the meaning of: And if it is your wish to say? Why is the initial proof inadequate? The Gemara answers: And if you would say that even though there are cases where there are more than two litigants, it is with regard to a plaintiff and a defendant that the verse is speaking. Therefore, the tanna cites an additional proof. It is stated here: “The two men,” and it is stated there: “On the basis of two witnesses”; just as there, it is with regard to witnesses that the verse speaks, so too here, it is with regard to witnesses that the verse speaks. It is taught in another baraita: When the verse states: “Then the two men shall stand,” it is with regard to witnesses that the verse is speaking. The baraita continues: Do you say that it is with regard to witnesses, or perhaps it is only with regard to litigants that the verse is speaking? The tanna asks: Did you say that? If the reference is to litigants, why does the verse mention men? Do men come to court for judgment but women do not come to court for judgment? And if it is your wish to say that this is not a proof, another proof may be cited. It is stated here: “The two men,” and it is stated there: “On the basis of two witnesses”; just as there, it is with regard to witnesses that the verse speaks, so too here, it is with regard to witnesses that the verse speaks. The Gemara asks: What is the meaning of: And if it is your wish to say? Why is the initial proof inadequate? The Gemara answers that it means: And if you would say that with regard to a woman, it is not typical conduct for her to appear in court due to the verse that is stated with regard to women: “All the glory of the king’s daughter is within” (Psalms 45:14), and that is why the verse addressed a situation that is prevalent, i.e., a case where the litigants are men, and there is no proof that women are unfit for testimony. Therefore, the tanna cites an additional proof. It is stated here: “The two men,” and it is stated there: “On the basis of two witnesses”; just as there, it is with regard to witnesses that the verse speaks, so too here, it is with regard to witnesses that the verse speaks. § The Gemara cites another interpretation of the verse. The Sages taught: “Then the two men shall stand”; this indicates that there is a mitzva for the litigants to stand during the court proceedings. Rabbi Yehuda said: I heard that if the judges wished to seat both of the litigants, they may seat them. What, then, is prohibited for the judges? They must ensure that there will not be a situation where one litigant is standing and one litigant is sitting, or a situation where one litigant says everything that he needs to say to present his case and one litigant, the judge says to him: Curtail your statement. The Sages taught: The verse states: “But in righteousness shall you judge your colleague” (Leviticus 19:15), from which it is derived: The court must ensure that there will not be a situation where one litigant is sitting and one litigant is standing, or a situation where one litigant says everything that he needs to say to present his case and one litigant, the judge says to him: Curtail your statement. Alternatively, it is derived from the verse: “But in righteousness shall you judge your colleague,” that you should judge another favorably, and seek to find justification for his actions, even if when interpreted differently his actions could be judged unfavorably. Rav Yosef teaches that from the verse: “But in righteousness shall you judge your colleague [amitekha],” it is derived: With regard to one who is with you [im she’itekha] in observance of Torah and in fulfillment of mitzvot, try to judge him favorably, in the manner that the Gemara will now explain. The Gemara relates: Rav Ulla, son of Rav Ilai, had a trial pending before Rav Naḥman. Rav Yosef sent a message to Rav Naḥman: Ulla our friend is a colleague in Torah and mitzvot, with regard to whom the verse states that you should judge him favorably. Rav Naḥman said: For what purpose did he send this message to me? Does he expect me to grant him preferential treatment? Every judgment must be undertaken with righteousness. Rav Naḥman then said: Rav Yosef sent me the message to ensure I would open with Rav Ulla’s dispute in the event that other cases come before me for judgment, in deference to the Torah because he is a Torah scholar.

There are three halakhot with regard to a judge: From where is it derived with regard to two individuals who came to judgment, one dressed in rags and one dressed in a garment worth one hundred times one hundred dinars, that the judges say to the wealthy person: Dress like the poor person or dress the poor person in a garment like yours? It is derived as the verse states: “Distance yourself from a false matter.” The Gemara relates: When individuals would come before Rava bar Rav Huna for judgment he would say to them: Remove your fine shoes [puzmukaikhu] and descend for judgment, so you will not appear more distinguished than the other litigant.

Alternatively, Rav Yosef informed me that Rav Ulla is a Torah scholar with regard to circumstances where the ruling is not clear-cut and the decision is rendered based on the discretion of the judges, that is, when the court is unable to rule solely based on the testimony presented in court and the judges arrive at their ruling based on their sense of the matter. Rav Yosef informed Rav Naḥman that if the case is decided based on judicial discretion, Rav Ulla is worthy of having the decision ruled in his favor. § Ulla says: The dispute between the Rabbis and Rabbi Yehuda with regard to the obligation to stand in court is only with regard to the litigants; but with regard to the witnesses, everyone agrees that they testify while standing, as it is written: “Then the two men shall stand” (Deuteronomy 19:17). Rav Huna says: The dispute whether the litigants are required to stand is only at the time of the deliberation, but at the time of the verdict, everyone agrees that the judges issue the verdict while sitting and the litigants receive the verdict while standing, as it is written: “And Moses sat to judge the people and the people stood” (Exodus 18:13). The Gemara presents an alternative version of the statement of Rav Huna: The dispute whether the litigants are required to stand is only at the time of the deliberation, but at the time of the verdict, everyone agrees that the judges issue the verdict while sitting and the litigants receive the verdict while standing, as concerning the witnesses, the status of the stage of their testimony is like that of the stage of the verdict, and it is written concerning them: “Then the two men shall stand.” The Gemara relates: The wife of Rav Huna had a trial pending before Rav Naḥman. Rav Naḥman said: What should we do? If I will arise before her in deference to her status as the wife of a Torah scholar, the claims of the other litigant will be suppressed, as it will be mistaken as a display of preference for the wife of Rav Huna, since not everyone is aware that one is required to show deference to the wife of a Torah scholar. If I will not arise before her, that would run counter to the principle that in terms of deference, the status of the wife of a ḥaver is like that of a ḥaver, who is devoted to the meticulous observance of mitzvot. Rav Naḥman said to his attendant: Go outside and cause a duck to fly and cast it onto me, and in that way I will be forced to arise in a manner that will fulfill the obligation to rise, without intimidating the other litigant. The Gemara asks: But doesn’t the Master, Rav Huna, say: The dispute between Rabbi Yehuda and the Rabbis whether the litigants are required to stand is only at the time of the deliberation, but at the time of the verdict, everyone agrees that the judges issue the verdict while sitting and the litigants receive the verdict while standing? How, then, can Rav Naḥman rise? The Gemara responds: One may fulfill both requirements in a case where he sits like one who unties his shoe, neither completely standing nor completely sitting, and says his verdict: So-and-so, you are innocent, and so-and-so, you are guilty. § Rabba bar Rav Huna says: In this situation where a Torah scholar [letzurva merabbanan] and an am ha’aretz have a court case with one another, we seat the Torah scholar, and to the am ha’aretz we also say: Sit. And if he chooses to stand due to deference, we have no problem with it. The Gemara relates: Rav bar Sherevya had a trial pending before Rav Pappa. Rav Pappa seated him and also seated his litigant counterpart, who was an am ha’aretz. An agent of the court came and kicked and stood the am ha’aretz on his feet to show deference to the Torah scholars there, and Rav Pappa did not say to him: Sit. The Gemara asks: How did Rav Pappa act in that manner by not instructing the am ha’aretz to sit again? But aren’t the claims of the am ha’aretz suppressed by Rav Pappa’s perceived preferential treatment of Rav bar Sherevya? The Gemara responds: Rav Pappa said to himself that the litigant will not perceive bias, as he says: The judge seated me; it is the agent of the court who is displeased with me and compelled me to stand. And Rabba bar Rav Huna says: In this situation where a Torah scholar and an am ha’aretz have a court case with one another, let the Torah scholar not come to court early and sit with the judge in order to learn from him, due to the fact that by doing so he appears as one who is consulting the judge to arrange his legal claims, and that is prohibited. And we said this only in a case where there is not a fixed time for the Torah scholar to study with the judge at that hour; but if there is a fixed time for him to study with the judge at that hour, we have no problem with it, as the other litigant will say: He is occupied with his fixed study time, and the fact that he sat before the judge is unrelated to the case. § And Rabba bar Rav Huna says: In the case of a certain Torah scholar who knows testimony relevant to a certain individual, but it is a demeaning matter for him to go to the court consisting of a judge who is less prominent than he in order to testify before him, let him not go and testify. Rav Sheisha, son of Rav Idi, said: We learn that halakha in a mishna (Bava Metzia 29b) as well: If one found a sack or a basket, and it is not his typical manner to take it, he shall not take it in order to return it to its owner. Evidently, a Torah scholar may refrain from performing the mitzva to return a lost item (see Deuteronomy 22:1–3) if it is not in keeping with his stature. The Gemara notes: This matter applies only with regard to cases involving monetary matters; but in cases involving ritual matters, the dignity of the Torah scholar is not a consideration, as it is written: “There is neither wisdom nor understanding nor counsel against the Lord” (Proverbs 21:30), from which it is derived: Wherever there is desecration of the name of the Lord, one does not show deference to the teacher. Rather, the Torah scholar forgoes the honor due him in order to avoid violation of any prohibition that would desecrate the name of God. The Gemara relates: Rav Yeimar knew testimony relevant to the case of Mar Zutra. He came before Ameimar, who seated all the witnesses in deference to Rav Yeimar. Rav Ashi said to Ameimar: But doesn’t Ulla say that the dispute between the Rabbis and Rabbi Yehuda with regard to the obligation to stand in court is only with regard to the litigants, but with regard to the witnesses, everyone agrees that they testify while standing? Ameimar said to him: This, i.e., witnesses standing during testimony, is a positive mitzva, and that, i.e., treating Torah scholars with deference and allowing Rav Yeimar to sit, is a positive mitzva, and the positive mitzva of deference to the Torah takes precedence. Ameimar seated Rav Yeimar in deference to the Torah. In order to prevent a miscarriage of justice, he seated all the witnesses. § The Gemara provides a mnemonic for the ensuing discussion: Advocacy, ignoramus, robbery, fraud. The Sages taught: From where is it derived that a judge should not engage in advocacy [saneigeron] for his own statements and devise various pretexts to justify his erroneous rulings? It is derived as the verse states: “Distance yourself from a false matter” (Exodus 23:7). And from where is it derived with regard to a judge that a student who is an ignoramus should not sit before him to discuss the proceedings? It is derived as the verse states: “Distance yourself from a false matter.” When an ignorant student engages in the proceedings, he is apt to cause the judge to err in judgment. From where is it derived that a judge who knows that another judge is a robber and is disqualified from serving as a judge; and likewise, a witness who knows that another witness is a robber and is disqualified from serving as a witness; from where is it derived that he should not join him in judgment or testimony? It is derived as the verse states: “Distance yourself from a false matter.” From where is it derived that in a case where a judge who knows that the witnesses testifying before him are lying even though he is unable to prove it through their cross-examination and with regard to the verdict the result will be that it is fraudulent, that he should not say: Since the witnesses are testifying and I cannot prove their deceit, I will decide the case based on their testimony, and let

ולא תענה על רב לנטת וגו׳, and if the defendant asks you about that judgment do not give him as a reply concerning the dispute any statement which will incline after that majority, thereby wresting judgment from the truth, but pronounce the decision just as it should be and let the collar hang around the neck of the majority (i. e. if you be outvoted let them bear the responsibility).

מדבר שקר תרחק, [these words are addressed to the judges Ed.] if you feel that that a perversion of justice is about to take place, aided and abetted by witnesses who perjure themselves, disqualify yourself from participating or presiding in such proceedings unless you know that you can convincingly prove the perversion of justice about to take place.
ונקי וצדיק, if the guilty party has been exonerated at his trial you cannot subsequently “kill him,” i. e. reopen the proceedings seeing that you had accepted the testimony of the witnesses at the trial and brought the trial to a close. The reason is that if you mistakenly exonerated a guilty party, I. G’d, am the last recourse and will see to it that the guilty party will not remain perceived as righteous. We have had Exodus 21,13 והאלוהים אנה לידו as an example of G’d taking corrective action, causing someone who had been wrongly exonerated to be killed by his fellow man (though inadvertently).

From where is it derived with regard to a student whose teacher said to him: You know concerning me that even if one were to give me one hundred times one hundred dinars, I would not fabricate a claim. Now, I have one hundred dinars in the possession of so-and-so, to whom I lent money, but I have only one witness of the two required to testify about the loan and enable me to collect payment; from where is it derived that the student shall not join with the other witness and testify? It is derived as the verse states: “Distance yourself from a false matter” (Exodus 23:7).

From where is it derived with regard to a student whose teacher said to him: You know concerning me that even if one were to give me one hundred times one hundred dinars, I would not fabricate a claim. Now, I have one hundred dinars in the possession of so-and-so, to whom I lent money, but I have only one witness of the two required to testify about the loan and enable me to collect payment; from where is it derived that the student shall not join with the other witness and testify? It is derived as the verse states: “Distance yourself from a false matter” (Exodus 23:7).