• Question: [Wednesday, 29^th Adar, 5783]

I am getting married in a few days and I would like to honor a friend of mine to be one of the witnesses. He is of course an Orthodox Jew who keeps Shabbos, although I was recently told that I must also choose a witness that does not have the habit of eating in public is one who eats in public is invalid for testimony. I indeed have eaten together with this friend in public while walking [we often eat sunflower seeds on Friday night while walking] and we never thought of it as an issue. May I still take him as a witness?

Answer:              

The invalidation of a person who eats in public to serve as a witness is very limited, and only applies to very specific scenarios, as we elaborated below. Bottom line, so long as your friend is not accustomed to eat a meal, such as a sandwich, or shawarma or falafel or pizza, while walking in public in front of many people, then he remains valid to act as a witness even if he snacks and drinks while walking in public. Certainly, eating at a restaurant does not invalidate one as a witness even if he eats a meal in an outdoor restaurant, and even if he eats it while standing by the restaurant bar.

Explanation: It is ruled in the Babylonian Talmud that individuals who eat in public are deemed rabbinically invalid to serve as witnesses. The reason for this is because people who are shameless do not care to testify falsely. However, in the Jerusalem Talmud it states that merely a Torah scholar should not eat in public, which implies that it is permitted for everyone else to do so without being invalidated as a witness. In answer to this contradiction we find a number of options in the Poskim. The Rambam when he codifies this law states that people who walk and eat in public in front of everyone are invalid for testimony. Some understand his opinion to be that the invalidation only applies when eating in front of everyone shamelessly, as opposed to eating inconspicuously in public, in which only the Jerusalem Talmud states that it is improper for a Torah scholar to do. Others understand his opinion to be that the invalidation only applies if one eats while walking, while if he eats while sitting then there is no invalidation, even though a Torah scholar should not do so even in public. Practically, the Shulchan Aruch records the ruling of the Rambam that the invalidation applies when eating while walking and in front of everyone, and the Nosei Keilim conclude that the invalidation only applies when eating brazenly in front of everyone, and not simply when eating inconspicuously in the marketplace. Likewise, they conclude that the invalidation only applies when eating while walking, however to eat in a restaurant, even if it is outdoors, does not invalidate one for testimony, even though a Torah scholar should avoid it.

Furthermore, even when eating in public in front of everyone, it still remains to be understood for which foods the above invalidation applies. Does it apply even to a mere snack, such as chewing a candy bar, or chewing a piece of gum, or drinking a beverage? Or does it only apply if one eats an actual meal while walking, such as eating a shawarma or falafel or sandwich while one is walking? So, the Tosafus states that possibly the invalidation only applies if one eats bread in public, and not if he eats fruits. So is likewise written in Miseches Kallah Rabasi that it only applies to bread or other food that satiate’s a person from hunger, and not to mere snack. And so likewise concludes the Aruch Hashulchan that the invalidation is only if one eats a set meal all the time in the marketplace while walking.

From the above Aruch Hashulchan it is also understood that the invalidation is only applicable if one does this all the time and not on a mere occasion when necessary [although there are opinions who rule that it applies even after eating one time].

Furthermore, some Poskim of today conclude that the above invalidation only applies in areas where it is not acceptable for one to do so, however, whenever the matter is considered acceptable by the public, then it is no longer considered shameless, and there is no basis to invalidate the person as a witness.

According to all the above, we see that the above invalidation of an individual to act as an witness due to him eating in public is very limited and only applies if all the following conditions are fulfilled:

1. he does so while walking in public
2. he does so brazenly in front of all the people who are there
3. he eats a meal and not just a snack or drink
4. he does on a constant basis

Sources: Michaber C.M. 34:18; Rambam Hilchos Eidus 11:5; Hilchos Deios 5:2; Kiddushin 40b; Yerushalmi Maasros 3:2; Kalah Rabasi 10; Kesef Mishneh on Rambam ibid; Bach C.M. 34; Smeh 34:44; Urim 34:38; Hagahos Yavetz Kiddushin ibid; Aruch Hashulchan 34:18; Mishneh Halachos 15:61; Otzer Hamishpat 2:286