Rabbi Meir Orlian
“Have a good day,” Mr. Reich wished his wife. “I’m heading off to work.”
He hurried out to his car, but his heart sank immediately. His tires had been slashed.
“Who did this?” Mr. Reich cried out. “He’s going to pay for it!”
Mr. Reich suspected that it might have been his neighbor, Mr. Plaut, with whom he had a very icy relationship. Finally, Mr. Reich located two teenagers who said that they’d seen Mr. Plaut slashing the tires during the night.
Mr. Reich summoned Mr. Plaut to Rabbi Tzedek’s beis din and accused him of slashing the tires. Mr. Plaut, for his part, denied the charge outright.
Rabbi Tzedek, the head of the beis din, called upon the first witness to testify. “We were walking home from a friend’s house at 1:30 AM when we saw Mr. Plaut crouching next to Mr. Reich’s car. We saw him take a jab at the tires with a knife. When Mr. Plaut noticed us coming, he quickly put the knife in his shirt and walked away.”
Rabbi Tzedek called in the second witness, who provided similar testimony. He asked them each a few questions to corroborate their story, which seemed intact.
“These fellows are liars and known thieves!” Mr. Plaut responded. “You can’t accept their word. For all I know, they slashed the tires and are trying to shift the blame to me.”
“Do you have evidence to disqualify their testimony?” Rabbi Tzedek asked him.
“Yes,” Mr. Plaut replied. “I can prove that they’ve been involved in a series of thefts.”
Rabbi Tzedek scheduled another session and instructed Mr. Plaut to bring his counter evidence.
The following week, Mr. Plaut presented three pairs of witnesses who said they had seen the two teenagers involved in theft. However, two pairs were dismissed out of hand because they were related to Mr. Plaut, and the third pair had not observed the theft firsthand.
At that point, the original witnesses stepped forward. “We admit that we were previously involved in theft,” they acknowledged, “but are willing to return what we stole.”
“I told you they are liars,” Mr. Plaut exploded. “They admit that their testimony is invalid!”
“Testimony of thieves is invalid, but a person is not able to disqualify himself after testifying,” said Rabbi Tzedek. “Once testimony is accepted by beis din, the witness is not able to retract his testimony or undermine it in a way that invalidates it. This principle is called: keivan shehiggid, shuva aino chozer u’magid – once he testifies, he is not allowed to testify otherwise (C.M. 29:1). Therefore, since we cannot corroborate the theft, their original testimony remains intact and you remain obligated to pay for the tires.”
It took Mr. Plaut some time to compose himself. “I’ve been framed,” he insisted. “If the witnesses admit that their testimony was invalid, they caused me an unfair loss! I demand that they reimburse me the money that you’re making me pay based on their original testimony!”
“We don’t feel that we should have to pay,” said the witnesses. “Even if we were not qualified to testify, we still know that you slashed the tires. We didn’t cause you any loss.”
All eyes turned to Rabbi Tzedek.
“The Shulchan Aruch rules that if witnesses admit that they testified falsely, they are obligated to pay for the damage they caused (29:2; 38:1; 46:37),” said Rabbi Tzedek. “However, there are three reasons why the witnesses are not obligated to pay in this situation.”
“Why not?” asked Mr. Plaut.
“First, although the witnesses acknowledge that their testimony was invalid because they were thieves, they still insist that the facts are true (Aruch Hashulchan 46:39). If they would not know the facts firsthand, though, they are liable if they improperly testified based on what they heard from other people (Mishnat d’Rabbi Eliezer 29:2).
“Second, some maintain that the witnesses carry liability only if they didn’t retract until the money was paid. However, if they retracted beforehand, although we cannot accept their retraction and rule based on their original testimony, they are not considered as causing damage and are not financially liable (Pischei Teshuva 38:1).”
“Third, there is a minority opinion that witnesses who admit that they testified falsely do not carry financial liability (see Bach 38:5; Shach 38:5; Pischei Choshen, Nezikin 4:ftnt. 65). Most authorities follow the Shulchan Aruch, but this opinion is additional basis to exempt the witnesses in conjunction with the other reasons.”
Mr. Plaut pulled out his checkbook and paid Mr. Reich.