Parashas Mishpatim includes the basic classification of those disqualified from bearing testimony: “Do not join your hand with the wicked to be an unrighteous witness” (Shemos 23:1).
Chazal interpret the “unrighteous (hamas) witness” to refer primarily to a witness who has transgressed monetary offenses. A witness who is unscrupulous in monetary affairs cannot be relied upon to be faithful in giving testimony, and is thus disqualified from the witness stand. By extension, the disqualification applies to anybody who is categorized as a rasha, an evildoer – somebody who wilfully transgresses Torah law.
In the present article we will address the specific category of a witness who is paid for testifying. Witnesses need to give of their time when giving testimony, and it is accepted in modern courts of law to compensate them with payment. What is the Torah position on this issue? By extension, what are the principles of paying Dayanim? What is the status of private investigators and expert witnesses?
We will seek to clarify these matters below.
The Disqualification of a Paid Witness
The Mishnah (Bechoros 49a) teaches that the testimony of somebody who is paid to testify is disqualified. The basic reason for this is that it is forbidden to take money for a mitzvah, including the mitzvah to testify (see Sema, Choshen Mishpat 34:46). Having transgressed this prohibition, the witness (and the person paying him) is penalized, and the testimony is null.
This halachah is ruled by the Rema (Choshen Mishpat 34:18): “Anyone who is paid to testify, his testimony is null, just as a judge who is paid to give judgment.”
The Rema, citing the Ran, adds some further details: “In this case the judgment and testimony is null even without an official declaration. If he gives back the money, the judgment and testimony are valid. This is unlike other disqualifications, which require a declaration to invalidate and repentance to revalidate. It is rather a fine that the Sages enacted whereby receiving payment invalidates his actions.”
See also Shut Divrei Shalom (Choshen Mishpat, 1:28), who clarifies that a witness (or a judge) who receives payment is obligated to return the money he received.
Torah or Rabbinic Disqualification
It seems from the above ruling that the disqualification of a paid witness when paid by both sides evenly, is rabbinic in nature. The Sages penalized the person who paid for the testimony by disqualifying it. Yet they also ruled that the testimony is valid if the money is returned.
The Netivos Hamishpat (34:10) notes that if both sides pay the witness evenly, the disqualification is, as noted, rabbinic in nature, and this is the kind of disqualification to which the Rema refers. If, however, a witness is paid by one side alone, his disqualification is grounded in Torah law, for he is considered as somebody having a personal interest in the case who is disqualified from testifying. In this case, paying back the sum will be of no avail.
This ruling emerges from the wording of the Rema, who compares the disqualification of witnesses to that of a judge: If a judge is paid by one party alone, his judgment is disqualified by the Torah prohibition of taking bribes. This indicates that the entire halachah relates to a witness or judge who are paid evenly by both sides.
It is noteworthy that the Ketzos Hachoshen (34:4) disputes this ruling, claiming that even when paid by one party alone, the disqualification is only rabbinic. Although the witness has an interest in testifying, his interest does not relate to the content of the testimony in any way, and therefore he is not disqualified by Torah law. This assumes of course that the money is paid for the act of testifying, and not to influence the specific content.
The primary source for this question is a teshuva of Shut Mahari Ben Lev (cited by the Ketzos), who explains that the nature of the disqualification where one side alone pays the witness is contingent on the reason a witness with personal interest (noge’a) is disqualified from testimony. If the usual noge’a disqualification is because we are concerned that a witness with an interest in the case might lie, the disqualification will apply even to a witness who is paid. However, if the disqualification of a witness with a stake is because he is considered as though he is testifying about himself, then this will not apply to a paid witness, whose stake is external to the case itself.
Permission to Receive Payment
It is permitted for a witness to receive payment if the purpose of the payment is to compensate the witness for losses incurred in order to testify. This payment is known as sechar batalah, literally “compensation for being idle,” which refers to money a person would have earned had he not come to testify. This halacha is based on principles found in the laws of Dayanim.
The Mishnah writes: “One who receives payment for passing judgment, his rulings are null” (Bechoros 29a). The Gemara (Kesubos 105a) explains that this is due to the obligation to teach Torah for free, since passing judgment is included in teaching Torah. Just as Hashem taught us Torah without payment, so we must teach for free.
As explained above concerning witnesses who are paid, this refers to judges who are paid by both parties, so that the disqualification of taking bribes does not apply. The Ramban (Kiddushin 58) writes that although there is no disqualification when both sides pay evenly, the Sages fined the judge and those who paid him by invalidating the judgment.
The Gemara (Kesubos 105a) qualifies this statement, explaining that if the Dayan is not receiving payment for the judgment itself, but rather sechar batala, compensation for income he loses on account of sitting in judgment, he is permitted to receive payment. This payment has to come from both parties, so that it should not be considered a bribe.
How sechar batala should be defined raises some issues. The Shulchan Aruch (9:5) rules the basic halacha that a Dayan must not take payment for passing judgment and that doing so disqualifies all his rulings, aside from those that we can show no payment was made for (see Shut Divrei Shalom, Choshen Mishpat 1:28, concerning past rulings; his conclusion is that only future rulings are invalidated). The Shulchan Aruch continues: “However, if he only takes compensation for loss of income, it is permitted, provided we know that he does not take more than this compensation. Thus, if he has a known job where he can work instead of sitting in judgment, he tells the litigants: Pay me my sechar batala for the work I would do—which he must receive from both of them. However, if his income is not known, but he says: Perhaps I would have an opportunity to earn income by buying and selling, and he therefore asks for payment – this is forbidden.”
Based on these principles, it follows that a judge should not be paid more than he can demonstrably earn were he not sitting in judgment. It is only permitted to pay him money that he could have actually earned. In case the Dayanim make a Peshara, a compromise between the parties the Shach (9:7) rules that it is permitted to take payment for making a compromise, and the Pischei Teshuvah notes that Dayanim are accustomed to being lenient in this regard. However, he adds that the Panim Me’iros is stringent in this matter, arguing that it is a mitzvah to make a Pesharah between the parties.
The Tur and Shulchan Aruch (9:3) write that it is customary to provide salaries for Dayanim from public funds, and, “it is an obligation upon Israel to support their judges and sages.” The reason there is no need to limit the amount to sechar batala, and it is permitted for the Dayanim to receive a larger amount is because the prohibition of receiving income applies to payment from the litigants, and not to payment from the community.
The Common Custom
In the past, it was common for Dayanim to receive “demei pesak” from the litigants. Although this seems to be in contradiction to the formal halachah, the Tiferes Yisrael (Bechoros 4:6) explains why this was necessary:
“[The prohibition applies] specifically where the Dayan is not a permanent position…. But who will force him to agree to a permanent position if he will work for free? Surely in this case it is permitted to stipulate in advance that he should receive such-and-such a sum for a get, for chalitza, and so on. This is not considered receiving payment for judgment, but rather payment for his agreement to do so as a permanent position. This is included in the statement, “A time to do for Hashem, they have transgressed his Torah” – for if not for this arrangement, nobody will agree to be a permanent judge at all hours.”
Today, Dayanim on a private Beis Din generally receive limited remuneration from the litigants, which one can safely say is within the boundaries of sechar batala. In cases of zabla, where each of the litigants chooses one Dayan and the two Dayanim proceed to choose a third, prices are often much higher. (In general, zabla as practiced today in the United States should be avoided because the practice does not conform with the halacha and does not lead to justice.)
Based on the principles described above, this is only justified where the respective Dayanim have high-income alternatives, though as noted there is room for leniency for cases in which a compromise (Pesharah) is involved.
In Shut Teshuvos Vehanhagos (2:508), Rav Moshe Sternbuch writes about a case of a Dayan who took money from potential converts to Judaism, making them pay a handsome sum for his signing on the conversion.
Rav Sternbuch finds additional grounds to criticize the Dayan, but is particularly severe concerning taking money from converts, and he writes that this is grounds to disqualify the Dayan altogether and to render his conversions null.
He explains that although the Rema (Even HaEzer 154) explains that a Dayan who takes money for Gittin is not disqualified (arguing on this with Rav Ovadya Bartenura), this is only true for Gittin, which are not considered judgment (there are other reasons for this, too). This is not true for conversion, for which an act of Beis Din is required.
Therefore, there is no room for leniency to take money for conversions.
Back to Testimony
Based on the sechar batala concept, it will likewise be permitted to cover the concrete losses of income of a witness, which he loses on account of his coming to testify before the court. This, however, raises the question of expert witnesses, who are sometimes summoned to provide information about an area of their expertise which impacts the case.
It is customary today, in Beis Din and in secular courts alike, that expert witnesses may take money to testify. The reason for this is that an expert witness is not being paid to provide specific information about what transpired in this case, but is rather there to provide general knowledge that the Dayanim need to know in order to rule on the case.
Yet, when one of the litigants unilaterally pays the expert witness, it follows that the witness has a personal interest in the case, rendering his testimony invalid. When preparing a case to present to Beis Din, it is therefore a waste to pay expert witnesses who will support one side’s case. Instead, Beis Din will hire an expert witness, and charge both sides equally for his payment.
Note also that the Rema (34:18) rules that that although one may not receive money to testify about something he already saw, it is permitted to take payment for coming to witness something so that he can testify about it in the future. This is because the mitzvah to testify takes effect only after one has the information concerning which testimony is given.
Rav Yosef Shalom Elyashiv (Kovetz Teshuvos 2, p. 331ff) discusses the testimony of a private investigator, who is paid for his services by one party alone.
He notes the opinion of the Beis Din of Haifa, which pointed out that part of the salary is for giving testimony – an integral part of the job of a private investigator. The Beis Din ruled that this cannot be considered sechar batala, because sechar batala refers to somebody who has an alternative job, and not to somebody being paid for the job of testifying. He is therefore disqualified as a witness.
The Haifa Beis Din noted another reason to disqualify him as a witness, because of the stake he has in ensuring his testimony is accepted, since this is important for his reputation. This is a monetary gain that disqualifies a witness.
Rav Elyashiv did not concur with this ruling, and argued that there is no reason to disqualify the testimony out of doubt that perhaps he has been paid to testify falsely. He explains that until it becomes clear to Beis Din that the witness in question has cause to testify falsely, there are insufficient grounds to disqualify the testimony.
Only in cases where the payment is made contingent on the success of the investigator’s testimony in winning the case, does the payment disqualify the witness. Where this stipulation is not made, the investigator does not have explicit financial interest in the testimony since he will be paid even if his testimony fails to win the case, and his testimony is not invalidated.