Rabbi Meir Orlian
Mr. Rubin and Mr. Jacobs came to Rabbi Dayan’s beis din. Mr. Rubin, the plaintiff, presented his claim, which Mr. Jacobs refuted. “If your claim is true,” concluded Mr. Jacobs, “present evidence of it!”
Rabbi Dayan turned to Mr. Rubin. “Do you have any evidence for your claim?” he asked.
“I have no documents,” said Mr. Rubin. “However, I have witnesses who can testify about it.”
“Who are your witnesses?” asked Rabbi Dayan.
“Mr. Kahn and Mr. Weiss,” answered Mr. Rubin.
“Mr. Weiss!” objected Mr. Jacobs. “He is disqualified from testifying!”
“Why?” asked Rabbi Dayan.
“Mr. Weiss is a thief!” exclaimed Mr. Jacobs.
“How do you know?” Rabbi Dayan asked.
“Mr. Weiss was convicted of theft in court two months ago,” said Mr. Jacobs. “How can he testify?”
“Do you have witnesses to support this allegation?” asked Rabbi Dayan.
“Many people know about it,” replied Mr. Jacobs. “I can bring people to attest to it.”
“Are you aware of this?” Rabbi Dayan asked Mr. Rubin.
“Yes, but that was before,” said Mr. Rubin. “Mr. Weiss was ordered to pay for the theft, which he did. At this point, he’s honest. So why can’t he testify?”
“If Mr. Weiss was a thief when the agreement was made,” replied Rabbi Dayan, “he remains disqualified from testifying about it even if he becomes honest” (C.M. 33:13).
“That’s not a problem,” said Mr. Rubin. “The agreement was made after Mr. Weiss paid; he was honest already.”
“I don’t know how you can call him honest,” said Mr. Rubin. “He denied the charge in court. Only after evidence was presented against him did he acknowledge guilt; he’s not trustworthy.”
“Once he returned the theft, he’s no longer a thief,” argued Mr. Jacobs. “He should be allowed to testify!”
The two turned to Rabbi Dayan to hear his ruling.
“The Shulchan Aruch (C.M. 34:7) writes that a thief is disqualified from testifying from the time he stole — even after returning what was stolen — until he does teshuvah,” replied Rabbi Dayan. “He must indicate clearly that he is abandoning his illegal way of life. For example, a gambler is required to get rid of his gambling equipment; one who swore falsely is required to refrain even from honest oaths” (C.M. 34:29-35).
“The Rema (C.M. 34:29) qualifies this as pertaining to one who sinned on a regular basis,” continued Rabbi Dayan. “Regarding a person who stole on a one-time basis, once he returns the money it is considered teshuvah — provided, however, that the thief returned the money of own initiative, not through legal enforcement. Thus, if Mr. Weiss paid only after being convicted, he remains disqualified until he indicates that he has truly repented.
“I should note,” added Rabbi Dayan, “that some distinguish between a thief who returned the stolen item itself — who undoes the violation completely and therefore becomes qualified again even if forced to pay — and one who paid money in lieu of the theft, who becomes qualified only if he pays willingly. Others reject this distinction” (see Imrei Baruch 34:7; Imrei Binah, Eidus #31).
“What about one who steals from gentiles?” asked Mr. Rubin.
“It is prohibited to steal from gentiles,” said Rabbi Dayan, “so that one who stole from gentiles should also be disqualified. However, some write that he is not disqualified since people are not aware of the severity of this” (Pischei Teshuvah 34:16).
“And what about one who damaged property intentionally?” asked Mr. Jacobs.
“Some say he is also disqualified, like a thief; others disagree,” replied Rabbi Dayan (see Bach 34:12, based on B.K. 60b; Yam shel Shlomo, B.K., Hakones #30).