One of the sacrifices detailed in Parashas Vayikrais known as the Korban Oleh Ve-Yored, which means an offering that “rises and falls.” This offering brought by a person, wishing to atone for the relevant sins’ varies according to the penitent’s financial situation: The wealthy bring a sheep, the less wealthy bring birds, and the poor bring a meal offering.
One of the sins for which this offering atones is withholding testimony. The Torah says: “Somebody who sins, in that he hears an adjuration to testify, and though he is a witness, whether he has seen or come to know the matter, yet does not speak, he shall bear his iniquity” (Vayikra 5:1).
Chazal derive the obligation to testify from this verse. As the Sefer Ha-Chinuch writes (122), a person is obligated “to testify in front of the judges, whether for capital punishment or for payment, or to save his soul or his money… In all matters it is incumbent upon him to give his testimony before Beis Din.”
In the present article we will discuss the obligation to testify and its laws. Does the obligation apply even to a single witness, or specifically to two witnesses? Is there an obligation to testify even where this involves a loss for the witness? Does the obligation apply even to a secular court? These questions, among others, are discussed below.
Testimony for Criminal and Civil Cases
The abovementioned Sefer Ha-Chinuch defines the difference between criminal cases and in civil suits: “There is a difference between civil and criminal suits. In the case of civil suits, a person is not obligated to testify of his own accord; he is only obligated to do so if he is called upon by one of the litigants or by the court. However, in matters of criminal law and Torah prohibitions a person is obligated to testify of his own initiative… to eradicate evil and to separate people from sin.”
This is also the opinion of the Rambam (Edus 1:1). Accordingly, a person does not transgress a prohibition by withholding testimony concerning civil issues unless he is called upon to do so.
This ruling is derived from the above-quoted verse, which refers to somebody who “hears an adjuration to testify,” meaning somebody who is called upon to testify. As the Mishnah (Shevuos 35a) rules, if a person called upon another to testify, and the other claims he knows no relevant testimony and makes an oath to this effect, but later admits that he did know relevant testimony, then the person who withheld his testimony must bring an offering to atone for his sin.
In contrast, the Mishnah (Sanhedrin 37b) rules that somebody who withholds testimony in criminal matters transgresses Torah law – even though nobody called upon him to testify. According to the Rambam and those who side with him, there is a distinction between civil and criminal cases, in that for criminal cases the obligation applies even without the witness being called to testify, whereas for civil cases the obligation depends on being called to testify.
Other authorities do not concur with this distinction. They rule that a person transgresses Torah law if he does not testify in civil matters even if not called to testify. Tosafos (Bava Kama 56a), for instance, explain that being called to testify is only relevant to the offering discussed in the verse, proving the point from the above Mishnah in Sanhedrin (Tosafos does not distinguish between criminal and civil suits). This is the opinion of several Rishonim (see Nimmukei Yosef, Bava Kama 24a in pages of Rif, citing Ra’ah).
Even according to the Rambam, who holds that the direct Torah obligation to testify applies in civil cases only where a person is called upon to do so, the Mishkenos Yaakov (no. 12) explains that an obligation to testify still applies, based on two additional Torah laws.
One is the obligation to return lost property. Although a direct obligation to testify might not apply, a person nonetheless must testify based on his obligation to return the “lost property” of the litigant.
In addition, the Rambam (Sefer Ha-Mitzvos, Negative Commandment 297) and others write that somebody who withholds relevant testimony will transgress the prohibition against “standing upon your fellow’s blood” – as recorded by the Sifra (Kedoshim 2:4).
For these reasons, the Ketzos Hachoshen (28:3) and Nesivos Hamishpat (1) write that even a witness who is disqualified from testimony must testify, if his testimony will be accepted (such as where both litigants agree to accept his testimony). Although the basic obligation to testify does not apply to him (because he is disqualified from testimony), in this case he must nonetheless testify to satisfy the two other reasons mentioned.
The Parameters of the Obligation to Testify
The Gemara (Shevuos 33b-34a) cites the opinion of Rabbi Yosi Ha-Glili, who extends the obligation to testify even to somebody who witnesses part of an event, or who can only testify to part of a civil claim. Although the testimony is not complete, and other factors must be added to it to reach a final verdict, the full obligation to testify nonetheless applies.
In addition, the Gemara (Bava Kama 56a) writes that the liability of a witness who withholds his testimony – a liability that is discussed below – applies even to a single witness, who cannot obligate payment but can only obligate an oath.
Rashi explains that although it is possible that the litigant will be prepared to swear – falsely – so that no money will be paid, the obligation to testify still applies because of the possibility that the litigant will admit and pay rather than take a false oath. Some opine that in these cases the obligation is only rabbinic (see Nesivos Ha-Mishpat 28:1).
It is worth noting again that even those disqualified from testimony – such as women, who are not qualified to testify in Torah law – remain obligated to testify if their testimony can contribute to the final decision, because of the obligations of returning lost property and of not “standing upon another’s blood.”
Consequences of Withholding Testimony
What is the law of somebody who withholds testimony? As we have seen, when the Temple stood a person who withheld testimony, if he swore ignorance and later admitted knowledge, had to bring an offering. Today, are there any legal consequences for withholding testimony?
The Chinuch writes: “One who transgresses the obligation to testify in civil cases… he transgresses a positive commandment, and his punishment is great.” Although the punishment is severe, the Chinuch implies that punishment is meted out by Heaven, and that there is no other sanction.
However, we find in the Tosefta (see Shevuos 3b) that somebody who withholds testimony in civil cases may be exempt from payment according to the law, but “Heaven does not forgive him until he pays.” The obligation to pay midinei Shamayim is noted by the Gemara (Bava Kama 55b) in the name of Rabbi Yehoshua, and this is ruled by the Shulchan Aruch (Choshen Mishpat 28:1): “He is exempt in the laws of man, but obligated in the laws of Heaven.”
According to the Meiri (Bava Kama 56a) somebody who does not testify is considered a gazlan (thief) until he pays, and is disqualified from testifying in other cases until he does so.
However, the Yam Shel Shlomo (Bava Kama 6:6) explains that the obligation “by Heaven” does not give the injured party the right to actually seize what is his. The halachah is limited to the declaration made by Beis Din: “We cannot obligate you, yet you need to pay to fulfill the obligation of Heaven” (Aruch Hashulchan 28:4). If the injured party actually seized that which he is owed “by Heaven,” authorities debate whether he must pay it back (see Ketzos Hachoshen 28:1).
The Gemara explains that a person does not have to pay (according to the law of men) for withholding testimony because this is not a case of direct damage.
Even according to those opinions that a person is liable for indirect damage (garmi), the Ramban (Kuntress Dina De-Garmi) states that the entire concept of testifying for others is a form of kindness, i.e. in this case, the Torah obligates a person to perform the kindness of testifying for others. If he refrains from doing so, he is not obligated to pay (see also Nimmukei Yosef, Bava Kama 24a, citing from Ra’ah).
The Ramban equates somebody withholding testimony to somebody who refrains from returning lost property: Returning lost property is a mitzvah, yet someone who refrains from doing so is not liable for the resultant damage.
Testifying in Secular Courts
Does the mitzvah of testifying apply even in secular courts?
First, it is important to note that it is not always permitted to testify in secular courts. For instance, we find in the Gemara that if a person is the only witness so that in Torah law he cannot extract money, he is not permitted to testify in a secular court that relies on a single witness for monetary matters (Bava Kama 113b; Choshen Mishpat 28:3).
Moreover, where the litigants are in the secular court in contravention of Torah law, the Rema (Shut, no. 52) writes that it is forbidden to testify in their case. This matter involves a dispute between later authorities, some of whom permit giving testimony even in these circumstances, whereas others prohibit (see Shaar Mishpat 26:1; Imrei Binah, Dayanim 27). The principle ruling follows the stringent position of the Rema.
In certain cases, such as matters where a Torah court of law would make similar rulings to those of secular law, some authorities are lenient (see Beis Yitzchak, Yoreh De’ah 2:75; Dovev Mesharim 1:76). In all cases a competent Torah authority must be consulted.
Even where it is permitted to testify, it appears that the Torah obligation to testify does not apply: since the testimony takes place outside of Beis Din, it is not a full Torah testimony and therefore the Torah mitzvah does not apply (see, however, Shut Divrei Yatziv, Choshen Mishpat 79 and Chikekei Lev, Choshen Mishpat 26). However, even where the direct obligation to testify does not apply, the obligation to testify based on the mitzvah of returning lost property will still apply.
Because the obligation to testify in secular courts will generally be based on these additional principles, it follows that the obligation will not apply where testifying involves a loss to the witness since under such circumstances we say that “your loss comes before your fellow’s.” This is true even for the obligation of not “standing upon your fellow’s blood” in the context of monetary matters (see Pischei Teshuvah, Choshen Mishpat 426).
Based on these principles, Rabbi Yosef Fleischman (Umka De-Dina, Vol. 3) ruled that where it was likely to lead to significant loss, there is no obligation to testify in secular courts in a case of medical malpractice (see sources cited therein, pp. 61-65).
Bringing Witnesses to Testify
If a witness refuses to come to Beis Din, how can he be brought to testify?
The Birkei Yosef (cited in Pischei Teshuvah, 28:5) writes that Beis Din can force a person to testify, just as all mitzvos can be enforced. Thus, Beis Din can employ different means, such as publicizing the person’s identity, or declaring him a thief (see the Meiri, above), to coerce him to testify.
The Israeli “Law of Batei Din” grants jurisdiction to the Rabbinate Beis Din to call witnesses to testify, and to fine those who refuse. Likewise, private Batei Din can call witnesses based on the (Israeli) Law of Arbitration – provided that the litigants signed the appropriate document of arbitration.
May we speedily see the fulfillment of the prayer, “Return our judges as former times, and our advisors as the beginning.”