KIDUSHIN 73-75 - Sponsored by the Turkels of NY to merit a Refu'ah Sheleimah for Mindl Adina bas Yentl Yenta Yehudis and Yehuda Leib ben Tzipora Rochel and Avrohom Yeshaya ben Aviva, among the ailing of Klal Yisrael.
1) THE REASON A "DAYAN" IS BELIEVED
QUESTION: The Gemara quotes a Tosefta which teaches that a Dayan is believed to say that he ruled in favor of one litigant and obligated the other to pay. The Gemara explains that the Dayan's word is accepted only when the litigants are still in the presence of the Dayan. If they have already departed from his presence, he is not believed to say who prevailed and who lost.
What is the reason for this Halachah? In the case of the Gemara's previous Halachah (73b), which states that the owner of an item is believed to say who bought the item from him as long as he is still holding it, RASHI explains that the reason why the owner is believed is that it is assumed that he would not lie in order to retract the actual sale lest he become subject to the curse of "Mi she'Para." Why, though, in the case of a Dayan is it assumed that the Dayan remembers better what happened during the litigation when the litigants are standing before him than when they are not standing before him?
(a) RASHI here (DH b'Zman) seems to address this question. Rashi writes that as long as the litigants are still standing in the presence of the Dayan, "it is upon him to remember [the details of the case], for they have not yet exited from there after the verdict was passed and the Dayan says one is innocent and the other is guilty." Rashi apparently understands that before the litigants exit, the Dayan must declare who wins and who loses. In order to fulfill this requirement the Dayan must remember which litigant won. (See AYELES HA'SHACHAR.)
(b) The TOSFOS RI HA'ZAKEN offers a different approach. The Chachamim instituted that a Dayan is believed to say which litigant won the case. Only the Dayan, and no other person, is believed. What, though, is the limit for accepting the Dayan's word? Until when does he remember who won?
The time when the litigants are standing before the Dayan ("Omdim l'Fanav") is the time period during which the litigants are still considered to be involved in the litigation and during which the Dayan fulfills his role as judge. Accordingly, during that time the Dayan is believed. Once the litigants depart, the involvement of the Dayan (and the litigants) in the case has ceased and the Dayan is no longer called the "Dayan" of this case. As long as the one judging the case has the status of "Dayan" he is entitled to the special status of a Dayan which includes the Halachah that he is believed to say who won the case. Once his role of "Dayan" has ceased -- which occurs when the litigants leave his presence -- the [former] Dayan's ability to testify about the case ceases as well.
2) THE POWER OF THE RECORD OF VERDICT
OPINIONS: The Gemara quotes a Tosefta which teaches that a Dayan is believed to say that he ruled in favor of one litigant and obligated the other to pay. The Gemara asks why the Dayan's testimony is necessary; if there is a doubt about who won the case, let them simply look at what is recorded in the "Zechusa," the written record of the litigant's victory. The Gemara answers that the case under discussion is one in which the "Zechusa" was torn up and thrown away.
In a case where the "Zechusa" is present, what is the extent of its power? May one rely on its words to determine who won the case?
(a) When the TUR (CM 23) quotes the Gemara here, he writes that "once the litigants have exited from before the Dayan, the Dayan is not believed [to say who won the case], if there is no Psak Din in his hand." The Tur apparently is giving guidelines for when the Dayan's word is believed. The difference between when the litigants are standing there and when they have departed applies only when the victorious litigant has no Psak Din in his hands. If he is holding a Psak Din, the Dayan is believed even after the litigants have departed. The litigant's possession of the Psak Din does not prove by itself that he was victorious. Rather, the Psak Din together with the testimony of the Dayan is what proves that this litigant was victorious.
The Acharonim (see SHACH and others) explain that the Tur's ruling is based on the RITVA's explanation of RASHI. When the Gemara asks that they should simply look at the "Zechusa" which the litigant is holding, it refers to the second part of the Tosefta's ruling, that when the litigants have departed the Dayan is not believed. When the litigants are still standing in front of the Dayan, what is written in the "Zechusa" is not relevant. Even if the Dayan testifies contrary to what is written in the "Zechusa," the Dayan's testimony is accepted over the written record. The "Zechusa" itself does not prove who the victor was, and thus after the litigants have left the court it cannot be used by itself as proof, but only as support for the testimony of the Dayan.
(b) The RITVA, however, disagrees with Rashi. The Ritva asks that if the "Zechusa" is not a proof by itself, and the credibility of the Dayan (after the litigants have left the court) is also not sufficient by itself, why should they work together? (See RAV BARUCH ENGEL quoted by CHIDUSHEI REBBI AKIVA EIGER on the Shulchan Aruch CM 23.)
The Ritva explains that the question of the Gemara, that they should simply look at the "Zechusa," refers to the first part of the Tosefta's ruling, that when the litigants are present the Dayan is believed. The Gemara asks why the Dayan's word is accepted when the litigants are present, when they should simply look at what is written in the Psak Din. The Gemara answers that the Psak Din is no longer extant. If, however, the Psak Din would be present, it indeed would override the testimony of the Dayan. (Similarly, according to the Ritva, the Psak Din alone suffices even when the litigants are no longer standing before the Dayan, in contrast to the ruling of the Tur.)
3) A DAYAN'S REFUTATION OF THE CLAIM OF A LITIGANT
QUESTION: The Gemara teaches that a Dayan is believed to say that he ruled in favor of one of the litigants, but only when they are still present in front of him. Once they have departed from his presence, he is not believed to say that he ruled in favor of one of them.
The KETZOS HA'CHOSHEN (23:1) questions the Gemara's ruling here from the Gemara in Kesuvos (74a). The Gemara there teaches that when a woman says that a certain Chacham permitted her Dam (he ruled that it was not Dam Nidah) and the Chacham denies her claim, the Chacham is believed. If the woman was married and was found to claim falsely that she was Taharah, she even loses her Kesuvah (according to the RAMBAN, see there). Although the Chacham is only a single witness and the testimony of a single witness usually is not accepted with regard to monetary matters, this case is an exception. Since the woman's claim of Taharah is based entirely on the Chacham (i.e. that he was Metaher her) and the Chacham challenges that claim, the basis for her Taharah is undermined.
Why does the Gemara here not apply the same rule to the case of the Dayan? The Dayan should be believed even when the litigants are no longer in front of him. When each litigant claims to have won the case, he essentially claims that the Dayan ruled in his favor. If the Dayan refutes that claim, there should be no basis for the claim at all and the claim of the other litigant should prevail.
The KETZOS HA'CHOSHEN
answers that although the Dayan is believed to refute the claim that he ruled in a certain way, he is not believed to say outright who won the case (once the litigants have left his presence). When they have left his presence, the testimony of the Dayan is considered as though it contains two components: a refutation of the claim of one of the litigants, and a declaration of the victory of the other. The litigant who challenges the Dayan is not believed to say that he won the case (because the Dayan's testimony contradicts his claim), but he is
believed to say that the Dayan did not
favor the other party (since the Dayan, once the litigants have left his presence, has no credibility to say that he ruled in favor of the other party). This is a form of "Palginan Ne'emanus" (see Insights to Kidushin 64:1
), in which there is counter-testimony to one part of the testimony but not to the other.
4) THE FATHER'S RIGHT TO TESTIFY ABOUT THE STATUS OF HIS SON
QUESTION: The Gemara quotes a Beraisa in which Rebbi Yehudah states that just as a man is believed to say that "this son is my firstborn son," he is believed to say that his son is a Ben Gerushah or Ben Chalutzah. The Chachamim argue and say that a man is not believed to testify that his son is a Ben Gerushah or Ben Chalutzah.
The testimony of the father that his son is the firstborn (Bechor) is pertinent to the division of assets after the father's death. If this son is the firstborn, he receives a double portion. Hence, the father is believed only with regard to a monetary matter (Mamon). Why does Rebbi Yehudah learn from there that the father is also believed to disqualify his son from the Kehunah, which is a matter of Isur and not Mamon?
(a) In his first answer, TOSFOS explains that the Torah gives credibility (Ne'emanus) to the father to testify about his son in all respects. Even if the father claims that his youngest son is the Bechor, he is believed. Even if he claims that all of his other children are Mamzerim and that only this son is legitimate, he is believed. It is clear that the father has Ne'emanus even with regard to matters of Isur.
(b) Tosfos gives a second answer based on the verse which serves as the source for the Ne'emanus of the father to testify about his son's status. The Torah says, "Ki Es ha'Bechor Ben ha'Senu'ah Yakir" (Devarim 21:17). The Gemara earlier (68a) explains that "Senu'ah" refers to a woman whom he married by transgressing an Isur. Accordingly, the verse teaches that the father is believed to say that this child was born from a prohibited union (such as from the marriage of a Kohen with a Gerushah).