Rambam, Hilchos Eidus, Chapter 3

Chapter 3: Testimony by monetary cases

Halacha 1: The interrogation and accuracy of testimony required by monetary cases

• Ideally, both monetary cases in capital punishment cases have the same laws regarding the interrogation of witnesses. Nonetheless, in order to make it easier for borrowers to borrow, the sages instituted to not require the normal questioning and interrogating of the witnesses [i.e. Derisha Vechakira] as done by capital punishment cases.
• The law if information is missing from their testimony: Due to the above, the witnesses testimony is accepted even if they do not provide any information regarding the month and location and currency in which the loan took place.

Halacha 2: Cases in which proper interrogation of witnesses [i.e. Derisha Vechakira] is required

• While the above is the general rule, that by monetary cases we do not interrogate the witnesses, nonetheless, there are cases of exception in which proper interrogation [i.e. Derisha Vechakira] is required of the witnesses, including some monetary cases. These are:
• Cases involving lashes.
• Cases involving exile.
• In all cases that the judge suspects foul play, then a proper interrogation [i.e. Derisha Vechakira] is to be done even by a monetary case.
• The following monetary cases do not require interrogation of the witnesses:
  • 1) Admissions of monetary liability.
    2) Loans.
    3) Gifts.
    4) Sales.

Halacha 3: The law if the witnesses contradict each other by monetary cases

• Although we do not require interrogation of the witnesses by monetary cases, nonetheless, if they contradict each other in their testimony then at times their testimony is deemed invalid depending on the type of contradiction.
• Contradictions in Chakiros Vederishos: If they contradict each other in those interrogation matters defined as Chakiros Vederishos, then their testimony is invalid.
  • For example, if they contradict each other regarding which month the loan took place in then their testimonies invalid.
  • Likewise, if they contradict each other regarding the location that the loan took place in, then their testimony is invalid.
  • Likewise, if they contradict each other regarding the object which was loaned, then their testimony is invalid.
• Contradictions in Bedikos: If they contradict each other in those interrogation matters defined as Bedikos, then their testimony remains valid.
  • For example, if they contradict each other regarding the color of the item that was loaned, then their testimonies remains valid.
  • Likewise, if they contradict each other regarding which floor of the building the loan took place in, then their testimony remains valid.
  • Likewise, if they contradict each other regarding the sum which was loaned, nonetheless, their testimony remains valid.

Halacha 4: Oral testimony of witnesses versus documentation

• According to biblical law, by both monetary and capital punishment cases, testimonies only accepted from witnesses if they give it orally. Written testimony of the witnesses is not acceptable.
• Nonetheless, by monetary cases the sages permitted the acceptance of written testimony, in order to ease the chances of receiving a loan.
• Nonetheless, there still remain cases in which the original law applies that written testimony is not acceptable and only oral testimony of witnesses is valid. These cases Are:
  
  • Cases involving lashes.
  • Cases involving exile.

Halacha 5: Retracting, and adding to, one’s testimony

• Once a witness has given over his testimony in front of the court, he may no longer change his testimony neither to retract from it, add to it, or stipulate it.
• This applies by both monetary cases and cases of capital punishment.
• This applies even if he offers a reason for the retraction or addition, such as that his original testimony was due to lack of memory, or human error, or due to fear and intimidation.

Halacha 6: Retracting, and adding to, one’s testimony on a document

• Authenticated document: Witnesses that have signed a document cannot retract from the testimony of the document, just as we stated above. This, however, only applies if the authenticity of their signatures on the document can be ascertained from external sources.
• Non-authenticated document: If, however, it can only be ascertained through their testimony, then they are believed to retract from their statements, such as by saying that they were forced into signing it, or that they were underage, or relatives of the parties, and in such a case we nullify the document.

Halacha 7: Witnesses which self-incriminate themselves

• Even if the witnesses self-incriminate themselves of being invalid after they already gave their testimony, nonetheless, they are not believed.
• Rasha: For example, if they say that prior to the testimony they transgressed a sin which deems them invalid, they are not believed.
• Bribe: Likewise, if they say that they took a bribe for their testimony, they are not believed.
• First draft: Likewise, if they say that the document was a first draft that was never actually used, they are not believed.

Halacha 8: Testifying to a protest against a sale document

• If the witnesses which were signed on a sales document testify that the seller protested against the sale prior to the signing, then they are believed and the sale is invalid even if the document is authenticated from an external source.

Halacha 9: Testifying to a clause applicable to the document

• If the witnesses testify that a stipulation was made regarding the document, they are only believed if the document cannot be authenticated from an external source, otherwise, they are not believed.

Halacha 10: A contradiction between the witnesses regarding a clause

• If the witnesses contradict each other regarding whether or not a clause was made to the document, then we consider the document to have only been signed by one witness [and hence depending on the content of the document, it is either completely invalid, or can only be used to force an oath on the other party.]

Halacha 11: Accepting testimony in the presence of the defendant

• Oral testimony: Even by monetary cases, testimony is only acceptable when done in the presence of the defendant. Nonetheless the following exceptions apply in which case we permit their testimony even not in the presence of the defendant:
  • The defendant is ill and cannot come to court.
  • The witnesses must travel overseas, and the defendant was summoned and did not show up.
• Documents: The above necessity for the defendant to be present only applies by oral testimony, however, a document may be read and authenticated before the court even not in the presence of the defendant.
• If the defendant claims the document is invalid: We do not pay any attention to the defendant’s claim of invalidity of the document, unless he brings proof to his claim. Thus, even if he screams and says that it is a false document, or that the witnesses are invalid, we nonetheless pay no attention to him and authenticate the document unless he brings proof.

Halacha 12: The party responsible for bringing the witnesses to court

• In general, whichever party has witnesses to testify on his behalf is responsible for bringing them to the court.
• Witnesses who fear the defendant: If, however, the witnesses for the plaintiff do not want to come due to their fear of the defendant, then the court forces the defendant to bring those witnesses.