Halakha Ulangan 19:15: Mishneh Torah, Sanctification, Shulchan Arukh, Choshen Mishpat, Chafetz Chaim & Mishneh Torah, Testimony

Two trustworthy men only are qualified to testify concerning the new moon, men that are fit to bear witness in any legal case. Women and slaves, however, are not eligible to bear witness, and their testimony is not accepted. A father and son that saw the moon go to court to testify. Not because testimony of the month is valid with relatives; but rather so that if one of them is found to be disqualified for being a thief or that which is similar to it from the other disqualifications, the second can join with another and they will [then] testify. And anyone who is disqualified from testimony by the words of the Scribes – even though he is fit according to the Torah – is disqualified from testimony of the month.

[If] less than three [Judges tried a monetary case] their decision is not binding,¹⁵San. 2b in accord with R. Abbahu. Thus also Alfasi, Asheri and Yad, Sanhedrin II, 10. The following sources in Rabbinic literature indicate that R. Abbahu’s view was the accepted law: San. 29b-30a: Regarding a deed of a debtor’s admission of indebtedness in the presence of witnesses (אודיתא) where it is taken for granted that the document was legally drawn up in the presence of a Court of three. Ket. 22a (cf. San. ibid.) : If one of the three Judges necessary for the authentication of signatures on documents (קיום שטרות) died before signing it, the document should contain such wording. So too, in B.B. 165b. B.M. 31b: ‘Go and bring three people in whose presence you made the division (of partnership).’ San. 2b-3a: Raba agrees with R. Abbahu that if two adjudicated a monetary case their decision is not binding. Thus also the opinion of R. Joḥanan and Resh Lakish in Y. San. I, 1(18a) cited by Tosaf., San. 2b s.v. דברי הכל. Mord. a.o. write that even Samuel who regards the decision of two Judges binding (v. supra par. 1) will agree that in the cases of אודיתא (admission of indebtedness) and קיום שטרות (authentication of signatures) mentioned above, three Judges are required. As to the statement in San. 30 and parallel references, ‘But perhaps the Rabbis of Rabbana Ashi’s academy agreed with Samuel,’ — it should be understood as refering to other cases of adjudication (v. Hag. Imre Baruk). This also follows from Alfasi and Maim., the latter holding that even a Mumḥeh is not qualified to deal alone in the above-mentioned matters, although in other cases he is qualified. BaḤ writes that if two Judges adjudicated a monetary case and exacted money from one person and gave it to another person and the latter betrothed a woman with this money, — we should be stringent and consider the marriage binding and in order to dissolve the marriage a Get (Bill of Divorce) is required. ShaK opposes BaḤ’s ruling. even [if] they did not render an erroneous decision,¹⁶Derived from San. 6a. unless the litigants accepted them [to abide by their ruling],¹⁷Ibid. or [in the case of] one who is a recognized Mumḥeh.¹⁸San. 5a; Bek. 37a. Tur citing R. Sherira Gaon, writes: ‘Whoever is considered like R. Naḥman in his generation (San. 6a) and is versed in Mishna and Talmud and likewise is an expert in weighing opinions and deciding between opposing parties (שיקול הדעת) and has perused legal texts for a number of years and was examined numerous times and gave no erroneous decision, — such a one is a recognized Mumḥeh.’ On the term Mumḥeh, cf. also Shab. VI, 2 and Gemara ibid. 53b — M.E. Nowadays we do not conduct proceedings of adjudication [of monetary cases by] a recognized Mumḥeh so that he judge [not] alone against the will of an individual.¹⁹MaHaRIW s. 147 — G. Cf. B.M. 67b and Tosaf. s.v. רבינא; Bek. 36b and Tosaf. s.v. פסק. The same ruling applies nowadays with respect to the release of vows where a single expert cannot deal with such matters, but a Court of three is required. , Tur and Sh. ‘Ar. Y.D. § 228, 1; § 243, 8, Gloss. The same applies to imposing the fine of a ‘Litra of gold’ in the case where one insults a scholar (v. supra § 1, n. 55) — M.E. However, if one recognized Judge rendered an erroneous decision, he is not liable to make restitution. In this sense the term Mumḥeh is still applicable — ShaK. Every [group] that does not consist of three [Judges],²⁰Tur on the authority of Yad, Sanhedrin V, 18; San. 31b. and [the litigants] did not accept them [to abide by their decision]²¹ Rashi, San. 5a, s.v. אי קבלוך. and they are not recognized Mumḥin,²²Tur — G. Hence, if they are experts (מומחין), even if less than three, an admission of indebtedness made before them is considered valid. Thus Tur on the authority of Asheri. Maim., however, holds (Yad, ibid.) that even if they are experts and duly ordained, — as long as they are less than three, an admission made before them is not binding. But if they are three, even laymen, it would be valid. This is the meaning of Caro’s statement, ‘even if they are duly ordained,’ i.e., even if they are experts (although Yad has ‘even if he is a rcognized Mumḥeh,’ it applies equally to two experts). Consequently, Isserles’ Gloss is difficult to comprehend, for it should have been stated as a dissenting opinion. Perhaps Isserles should be understood thus: ‘and they are not Judges who are recognized by the public.’ But this is a strained interpretation — M.E. ShaK rejects the interpretation of M.E. For even if the Judges are recognized by the public, their decision would still be invalid since they are less than three. The reason, therefore, why Isserles does not record this as a dissenting opinion is duel to the fact that the term ‘duly ordained’ (סמוכים) employed by Caro is unclear. For Judges may be duly ordained and yet not be experts (מומחין). , Tur and Asheri infra § 25 that ‘Ordination’ holds good even for a non-Mumḥeh. The law, however, is that even if they are duly ordained and also experts, — yet, if their number is less than three, an admission of indebtedness made in their presence is not binding (contra Isserles). Thus also ‘Ir Shushan — ShaK. A.H. rules that if the litigants accepted the Judges (although their number is less than three) or one Judge who was a recognized authority (מומחח לרבים), e.g., if the people accepted a Rabbi to judge all monetary matters alone, the latter has the status of a Court of Law and an admission made in his presence is binding and the litigants cannot alter their original pleas. Likewise, one who denies aught in his presence and subsequently witnesses appeared and refuted his evidence, is presumed to be a liar even in the future (v. Sh. ‘Ar. anon). So too, may this single Judge compel one to appear before him for judgment and may hear testimony, save that in one respect there is a difference between a single Judge and a Court of Law of three. For in the latter case, an admission made in their presence is regarded as an admission made in writing and another Court may adjudicate the matter in accordance with the testimony and the pleas heard by the first Court of three even if the testimony etc., is submitted by the first Court to the second Court in writing. But if one was accepted as the recognized authority, although, as stated above, an admission made in his presence is regarded as made before a Court of Law of three, and should he on the basis of the information he obtains, render a decision, it would be binding, — yet, if after hearing the testimony and obtaining all the information in the case, — for some reason, it is submitted to another Court for final adjudication, the evidence presented to the second Court for consideration is regarded as having the status of oral testimony offered by a witness testifying to what he has heard from an eye-witness’ (Bek. 36a a.e.) which is invalid. Consequently, the second Court cannot render a decision on the basis of the submitted evidence. And if this testimony is submitted in writing to the second Court, the latter would have to hear the evidence again directly from the contesting parties or the party that made the admission, for the law is that testimony must be offered by witnesses orally and not from their writing (derived from Deut. XIX, 15, At the mouth of two witnesses … shall a matter be established — Git. 71a). But if the single recognized authority completes the adjudication himself, his decision is as binding as the one given by a Court of three — Nethiboth. On testimony offered before a Court, v. infra § 39, 12 and on the authentication of documents, v. infra § 46, 4, Gloss. even [if] they are duly ordained in the Land of Israel,²³Cf. supra § 1, n. 1. — [the law is that] an admission of indebtedness made in their presence is regarded as an admission made outside the Court²⁴ San. 29b and infra § 39, 7. and they [the litigants] may alter their [original] pleas which they put forth before them [the Judges].²⁵B.B. 31a. One who denies aught before them [the Judges] and subsequently witnesses arrived [and refuted him], is not presumed to be a liar.²⁶B.M. 17a and Alfasi a.l. However, if he declared before them: ‘You are my witnesses’ or he phrased his statement in the form of a complete admission, he is presumed to be a liar (v. infra §32, 1 and § 81) — M.E. ShaK opposes M.E. and writes that even if he stated: ‘You are my witnesses,’ they are still not regarded as a Court of Law, but only as witnesses. Hence, if he later alters his pleas and states, ‘I paid you,’ he is not presumed to be a liar (v. infra § 79, 9). Cf. however, viewpoint of Nethiboth and A.H. supra n. 2 However, regarding the [Court which consists of] three [Judges], although they are not duly ordained, — [the law is that] the admission of indebtedness made in their presence is regarded as one made before a competent Court of Law. Likewise, in [the case of] one who denies [aught] and subsequently witnesses came [and refuted him], — he is presumed to be a liar and cannot amend his pleas.

But if they see that the sinner is one of the foolish scoffers who hate their reprovers, as it is written (Mishlei 9:8): "Do not reprove the scoffer, lest he hate you," and their words will certainly not be accepted, and men such as these readily return to their folly, so that he may very likely come to sin again — if so, it is better for them if they tell it to the judges of the city, so that they chastise him for his sin and keep him from future transgression. And it would seem that the same holds true for [telling] the relatives of the sinner if [we know that] their words [of reproof] will be accepted by him [see Be'er Mayim Chayim]. And the entire intent of the teller should be for the sake of Heaven and in zeal for the L–rd, and not because of their hatred of him for something else. And the judges, too, should chastise the sinner in secret and not "whiten his face" in public, as it is written (Vayikra 19:17): "Reprove shall you reprove your neighbor, but do not bear sin because of him." And all this if they saw him with [i.e., if they were] two witnesses, but if he were a single witness, he may not testify against his friend, for his testimony is in vain, the judges being unable to rely upon it, viz. (Devarim 19:15): "One witness shall not arise against a man for every transgression and for every sin." Therefore, [if he does so], he is considered a motzi shem ra [the spreader of an evil report], concerning which our Rabbis have said (Sha'arei Teshuvah 22): "One who testified singly against his friend receives stripes of rebellion." And our sages have said (Pesachim 113b): "Three are hated by the Holy One Blessed be He," one of them being "one who sees a thing of ervah [immorality] in his friend and testifies against him singly." But he can reveal the thing secretly to his [the sinner's] Rabbi and to his close confidant, if he knows that his words will be accepted as those of two witnesses. And his Rabbi is permitted to hate him for this and to distance himself from his company, until it becomes known to him that he has repented of his evil way. But his Rabbi may not tell this to others, it being no better than seeing it himself, as we have written above in section 4.