Halakhah su Esodo 23:7

A disciple who sits before his master and sees a point in favour of a poor man and the master wishes to pronounce him guilty, must plead in his [the poor man's] favour, and if he keeps silent he commits a sin on account of 'From a false matter keep far.'³¹Sheb. 31a: ‘Whence do we know that a disciple sitting before his master who sees a point in favour of a poor man or against a wealthy man should not remain silent? (upon noticing that his master has reached an erroneous decision). For it is said, From a false matter keep far’ (Ex. XXIII, 7). In San. 6b this is derived from, Ye shall not be afraid of the face of any man (Deut. I, 17). , Tosaf. Sheb. ibid., s.v. ורואה. Similarly, if both litigants are either poor or rich. The Talmud is stating ‘a point in favour of a poor man or against a wealthy man’ contains a remarkable feature (רבותא), viz., that the disciple should not think that although legally the poor man has a point in his favour, nevertheless, ‘My master must feel that a wealthy man is right, for how is it possible that a wealthy man should make a false claim against a poor man.’ Notwithstanding this line of reasoning, the disciple is dutibound to speak up — RaShaL, Tummim. For other opinions, cf. BaḤ and TaZ.

b) His prime intent must be to be zealous for the truth and to help him that has been wronged (i.e., the cheated one). And he must not rejoice in the shame of the cheater, even though he knows clearly that he cheated him. And in this connection we shall include yet another detail, that is almost the same as the original. That is, [in order to tell] he must assume that benefit will result — as opposed to an instance where he knows the nature of the cheated one not to be a man of words who would go to judgment and ask people to help him in this matter, but would only grieve in his heart at the story and harbor hatred in his heart against the merchant. [In such an instance] he should not tell him. Even more, if he asks him [to tell] in this instance and in the previous instance that we described — that is, in an instance where, according to the din, it is forbidden to back out of the transaction, it is a mitzvah to praise the purchase before him, and he does not thereby transgress (Shemoth 23:7): "From a thing of falsehood shall you keep far," (as Chazal have said [Kethuvoth 17a]: "If one made a bad purchase in the marketplace — he should praise it in his eyes.")

(13) And all this that we have discussed until now applies even when he speaks [lashon hara] about his friend that is true; but if within his lashon hara or rechiluth there becomes intermixed something which is partially false, he also transgresses a positive commandment of the Torah, viz. (Shemoth 23:7): "From a thing of falsehood keep far." And his name [i.e., his classification] also changes for the worse thereby, his now being called "motzi shem ra" ("the spreader of a bad name"). And his punishment is far more severe than that for the speaker of lashon hara and rechiluth in general.

Of even more significance insofar as actual execution of capital punishment is concerned are the rules of evidence governing criminal proceedings under Noachide law. Jewish courts require testimony of at least two credible eye-witnesses for imposition of either corporal or capital punishment. The Bible expressly declares, "At the mouth of two witnesses, or three witnesses, shall he who is worthy of death be put to death" (Deut. 17:6). The testimony of a single witness and, a fortiori, circumstantial evidence, is not admissible.⁵The testimony of witnesses who have actually seen the act may be dispensed with only if culpability can be inferred with absolute certainty from the facts to which eyewitness testimony is presented. For example, Shevu‘ot 46b, states that liability for battery may be established even if witnesses have not observed the act itself provided that the evidence incontrovertibly established (a) that the wound could not possibly be accidental or self-inflicted, e.g., a bite on the back or on the elbow joint; and (b) that no other person was present and hence the defendant must have committed the act. Tosafot, Shevu‘ot 34a, asserts that such evidence may be admitted in capital cases as well. Rambam, Sefer ha-Mizvot, mizvot lo ta'aseh, no. 290, basing himself upon Mekhilta 20:211, regards the verse "the guiltless and righteous you shall not kill" (Exodus 23:7) as an admonition addressed to the Bet Din directing its members not to execute judgment when it is at all possible that the accused is innocent, i.e., when the evidence is circumstantial in nature.

From where do we know that if one litigant comes to beit din dressed in rags and the other in the finest of clothes, then the beit din orders the latter, “Either dress similarly to your adversary or give your adversary clothes of the same quality to wear”? As it says, “Avoid all falsities” (Shemot 23:7) [whereas the dayanim might judge a litigant more favorably due to his clothing]…. From where do we derive that one should not plead his case to the dayanim in the absence of the opposing litigant? [Also] as it says, “Avoid all falsities”....

2. One who hires false witnesses in order to transfer a maneh from Reuven to Shimon is exempt under human law but liable under heavenly law. RAMA: This only applies where he did not, in fact, owe him money. If, however, Reuven did owe Shimon money, but the witnesses happen to be false, he would be exempt even under heavenly law, but would violate “midvar sheker tirchak.” [Meaning, stay away from a lie]. The same applies if he did not hire them but simply convinced them to testify falsely (Tosefos). This all applies to a case where the individual hires false witnesses for a friend and the friend does not confess. If, however, he hired false witnesses for himself and illegally transferred money or if the plaintiff confesses, he is required to remove the stolen item from his friend’s hand (Beis Yosef). If he claims it was done properly, but the witnesses admit they testified falsely, they would be liable to pay, as was explained above in 29:2 and will be explained later in Siman 38.

To not hear the claim of a litigant when it is not in front of his fellow litigant: That the judge not hear the claim of one, not in front of his adversary, as it is stated (Exodus 23:1), "You shall not raise a false report." And the reason is because people will speak idle words when not in front of their adversary. And the judge is commanded about this so that he not bring the untruths of one of them into his soul. And so does Mekhilta d'Rabbi Yishmael 23:1 come [to tell us] that this warning of "You shall not raise, etc." is said about this. And they also said there that it is also a warning to the litigant, for him too, not to make his claims to the judge not in front of his adversary, and even if the judge wants to hear it. And about this, it is also said (Exodus 23:7), "From a false matter, distance yourself." And they, may their memory be blessed, also said (Makkot 23a) that this negative commandment includes telling evil speech, and accepting it, and giving false testimony.

To not conclude the judgment by estimation: That a court only kill the accused with witnesses that testify about the same matter about which he is to be killed; that they actually saw him with their eyes, [not] that they testify against him based on strong indications. And about this is it stated (Exodus 23:7), "and an innocent one and a righteous one you shall not kill" - meaning to say, be very careful not to kill a person about whom it is possible that he did not do what they said that he did. And so is it explained in Mekhilta d'Rabbi Yishmael 23:7:2, as there they said, "If they saw him pursuing another to kill him, the knife in his hand, and they [warned him, 'If you kill him, you will be killed.' And the witnesses] averted their eyes [and did not see him striking him] and afterwards they found him (the victim) in the death throes, the knife dripping blood in the hand of the murderer — I might understand that he is liable [for execution. Hence,] we learn to say, 'and a clean one and righteous one you shall not kill.'" Behold, because they averted their eyes at the time of the striking, this one is exempted. And the matter is proper and fitting to be like this. As if the Torah had permitted to establish the parameters of punishment with strong possibilities, it would come out from the matter that sometimes we would kill people for something they did not do, as there is great breadth to the possible. And know this and understand it, as it is a clear thing. And therefore, He, may He be elevated, closed this gate and commanded us about it. And all of "the precepts of the Lord are just, rejoicing the heart" (Psalms 19:9). And also included in this negative commandment is one about whom two witnesses have testified that he committed a [different] sin; for example, that one testifies that he did work on Shabbat and one testifies that he worshiped idolatry, such that this one is not condemned by their testimony, as it is stated, "and an innocent one and a righteous one do not kill." And so did they, may their memory be blessed, say (Mekhilta d'Rabbi Yishmael 23:7:2), "If one testified against another that he worshiped the sun, and another, [that he worshiped] the moon, I might understand that they combine (to constitute the necessary two witnesses). [Hence,] we learn to say, 'and an innocent one and righteous one you shall not kill.'"

That He prohibited the judge - not to listen to one of the disputants when it is not in front of his [adversary]. And that is His saying, "You must not carry a false rumor" (Exodus 23:1). For usually the words of a diputant that are not in front of his [fellow] dipuatant are false. And He warned the judge from listening to those words, so that the image [created] by these words - that have no uprightness and have no truth to them - do not enter his soul. And the language of the Mekhilta (Mekhilta d'Rabbi Yishmael 23:1:1) is, "'You must not carry a false rumor' - that is a prohibition to a judge not to hear the words of one disputant until the other is with him; and it is a prohibition to the disputant not to state his case to the judge until his fellow [dipuatant] arrives." And to prohibit this very same content, He said, "Keep far from a false matter" (Exodus 23:7) - as it is explained in the fourth [chapter] of Shevuot (Shevuot 31a). And they said that also included in this negative commandment is the prohibition against one who speaks evil speech, one who accepts it and one who testifies with false testimony, as it is explained in Makkot (Makkot 23a). (See Parashat Mishpatim; Mishneh Torah, The Sanhedrin and the Penalties within their Jurisdiction 21.)

One who suffered a bereavement and it was not known to him, — [the law is that] it is not obligatory that they inform him [thereof], even in [the case of] his father and/or mother [who died],³⁹M.K. 20a-b, derived from the case of R. Ḥiyya. supra par. 1, n. 11. also Naz. 44a, where it is reported that the father of R. Isaac died at Ginzak, and the son was informed about it three years later. and regarding such a one, [i.e., who does inform], it is said, 'And he that uttereth a slander is a fool';⁴⁰Prov. X, 17. and it is permissible to invite him to a feast of betrothal and marriage and [likewise to] every [type of] festivity, since he knows not thereof.⁴¹Hag. Maim. to Ebel VI on the authority of Rashi. A husband who knows that his wife suffered a bereavement of which she is unaware, is permitted to cohabit with her — P.Tesh. However, if he asks about him, one should not lie and say that he is alive,⁴²Mord. and Hag. Maim. In reporting a death one should phrase his statement in such a manner so as to convey a double meaning, i.e., there should be the possibility of interpreting his words both for life and death — TaZ. Cf. case of R. Ḥiyya supra par. 1, n. 11. On a Festival, however, one should not report a death, so as not to grieve the mourner which is not in keeping with the festive spirit of the Holiday — P.Tesh. for it is written, 'Keep thee far from a false matter.'⁴³Ex. XXIII, 7. Gloss: Nevertheless, in [the case of surviving] male children it is customary to inform [them thereof] so that Kaddish¹⁸ Glos. be recited, but in [the case of surviving] daughters it is not customary to inform them at all.⁴⁴MaHaRIW s. 13 — G. It is a religious duty to fast [on] the day that one's father or mother died,⁴⁵Kol Bo on the authority of R. Meir of Rothenberg and other Codifiers. By fasting a person will repent, investigate his conduct and improve it. This has a redeeming power for the parents. At the Afternoon Service (Minḥa) on the Yahrzeit day, one who fasts should recite the עננו prayer (v. Siddur) as in the case of any other fast day. and one fasts on the day of death and not on the day of burial,⁴⁶MaHaRIW s. 121 and Isserlein s. 296 and Later Codifiers — G. unless one was present at the burial and not at the death.⁴⁷On tradition from a distinguished Elder, R. M. Landau — G. The anniversary of death (Yahrzeit) and the fast are always observed on the day of death — TaZ. If, however, three or four days elapsed between death and burial, the law is that the first year one observes the Yahrzeit on the day of burial and every succeeding year on the day of death —ShaK. On the Yahrzeit day a lamp is lit. If one observes Yahrzeit for both parents on the same day, two lamps or candles are lit — Sefer Amarkol. For one who died at twilight (בין השמשות), one observes the Yahrzeit on the following day — Resp. Minḥath Elazar. If one who observes Yahrzeit on the Sabbath, forgot to light the Yahrzeit lamp before the advent of the Sabbath, — if he reminds himself on the eve of the Sabbath at twilight, he may instruct a non-Jew to light it for him — M.Abr. (O.Ḥ. § 261, n. 6). One may light a Yahrzeit lamp on a Holiday — Ketab Sofer. One who is in doubt whether the Yahrzeit should be observed on the fourth or the fifth day of the month, — the law is that if he has other brothers elsewhere who know the exact day when Yahrzeit falls (it is understood that he is unable to contact them in order to determine the correct day), he should observe the Yahrzeit on the fourth day (i.e., the first doubtful day). But it there is no one else in the family to observe the Yahrzeit, he must observe both days — Ḥatam Sofer. If this day occurred on a day during which Taḥanun¹⁸ Glos. is not recited, one does not fast at all.⁴⁸Thus also if the Yahrzeit day falls on the day when one’s child is to be circumcised, the father or the Sandek or the Mohel, who may be observing Yahrzeit, do not fast. Likewise, in the case of the redemption of a first-born child, the father or the Kohen who may be observing Yahrzeit, do not fast — O.Ḥ. ibid. par. 9. TaZ and Sha‘are Tesh. ibid. So too, a groom during the seven days of his wedding-feast, does not fast on the Yahrzeit day. However, one observing Yahrzeit is not permitted to eat at the feast held on the completion of a Talmudical tracate (סיום) — ShaK. One who does not know the day of his father’s or mother’s death, should select a certain day during the year on which to observe the Yahrzeit and fast, but he may not encroach upon the rights of others with respect to the Kaddish — M.Abr. (O.Ḥ. § 568, n. 20). If one who has to observe Yahrzeit is unable to say Kaddish, e.g., when he is on the road, he may recite Kaddish at the evening service (Ma‘arib) following the Yahrzeit day — Matte Efrayyim. If at the place of death it was already night when the person died and at the place of the near-of-kin it was still day, the Yahrzeit day is fixed according to the place of death — Sh.M.B. contra Kol Bo(G). Cf. supra par. 1, n. 2. If they died during [the month of] Adar⁴⁹In an ordinary year. and the year was a leap year,⁵⁰e., the following year or years when Yahrzeit is observed. Thus M.Abr. — the fundamental principle is to fast [and observe Yahrzeit] during [the month of] Adar I,⁵¹T. ha-Deshen s. 294 and R. Judah Minẓ — G. although there are some who differ with [this], — yet, thus is the fundamental principle. However, if they died in a leap year during Adar II, one likewise fasts in a [subsequent] leap year during Adar II⁵²Ibid. — G. e., in a subsequent leap-year he fasts during the Adar that death occurred, and in the following ordinary years he fasts during Adar. If the death occurred during an ordinary year, then in a subsequent leap-year he fasts during Adar I and during Adar II he recites the Kaddish but does not take precedence over others in leading the services etc. — ShaK, P.Tesh., M.Abr. The month of Ḥeshvan is sometimes full (i.e., it consists of thirty days in which case the first of the month (Rosh Ḥodesh) of Kislev, following, consists of two days, of which the first day of Rosh Ḥodesh is the thirtieth day of Ḥeshvan and the second day of Rosh Ḥodesh is the first day of Kislev) and sometimes the month of Ḥeshvan is defective (i.e., it consists of twenty-nine days, in which case, Rosh Ḥodesh Kislev, following, is observed only one day). Consequently, if one dies on Rosh Ḥodesh Kislev when Rosh Ḥodesh is observed only one day, — the law is that in a subsequent year when Rosh Ḥodesh Kislev consists of two days, the Yahrzeit should be observed on the second day of Rosh Ḥodesh, which is the first day of the month of Kislev. However, if one died on the first day of Rosh Ḥodesh Kislev when Rosh Ḥodesh consisted of two days, the question is — when should one observe Yahrzeit in a subsequent year when Rosh Ḥodesh Kislev consists of one day only? Should one observe the Yahrzeit on the twenty-ninth day of Ḥeshvan, since the death took place on the last day of Ḥeshvan, or do we say that since in matters pertaining to vows (v. end of Gloss anon) we follow the language of the people, he should observe Yahrzeit on Rosh Ḥodesh Kislev? — The following procedure should be adopted: If during the first year following the death, Rosh Ḥodesh Kislev is observed for one day only, the Yahrzeit should be observed on the twenty-ninth day of Ḥeshvan. Thus also whenever the month of Ḥeshvan is defective, then on the following day (i.e., Rosh Ḥodesh Kislev), if there are no mourners in the Synagogue, he should also recite the Kaddish and lead the services. But if during the year following the death, Rosh Ḥodesh Kislev consists of two days, consequently, the Yahrzeit becomes fixed for Rosh Ḥodesh Kislev and he should observe it thus every subsequent year, even when Rosh Ḥodesh Kislev consists of one day. The same principle applies to other months which are sometimes full and sometimes defective — M.Abr. Since Rosh Ḥodesh Tebeth is sometimes observed one day, in which case the sixth day of Ḥanukkah is the first of Tebeth, the seventh day, — the second of Tebeth and the eighth day, — the third of Tebeth; and sometimes Rosh Ḥodesh Tebeth consists of two days, i.e., the sixth and seventh day of Ḥanukkah, in which case the seventh day of Ḥanukkah is the first day of Tebeth and the eighth day, — the second day of Tebeth, — consequently, one who observes Yahrzeit during these days should not err by counting the days of Ḥanukkah, but one must always count the days of the month — M.Abr. and O.H. § 568, 8. supra § 391 that one should not eat at a feast on the night of [which the following] day is the death anniversary of one's father or/and mother.⁵³ supra § 391, 3, Gloss n. 38. [If] this fast falls on the eve of the Sabbath, the law is as [on] other fastday[s]. O.H. § 249. In any case, — [the law is that] if the first time one fasted the whole day, one should adopt this practice all the days of his life.⁵⁴For it is then regarded as a vow. Hence, he must always fast on that day. Should one, however, be ill or should there be any other reason which prevents him from observing the fast-day, he must first be released from his vow. But if, prior to observing the first fast-day, one explicitly stated that he fasts on the condition that this should not be regarded as a vow for the following year, he does not require any release (v. O.Ḥ. § 568 and Ḥ. Adam).

That we not profane our words from vows: That we have been prevented that we not change that which we obligate ourselves in speech (see Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 157) - and even though it is without an oath. And these are vows - for example, a person will say [that] fruits of the world, or fruits of country x or y type of fruits are forbidden to him; and so too, [that] he will say his wife is forbidden to him; and similar to these things - that he is obligated to fulfill them. And about this is it stated (Numbers 30:3), "he shall not profane (yachel) his word." And they, may their memory be blessed, explained (Sifrei Bamidbar 153:4), that he should not make his word non-sacred (chullin), meaning to say, that he obligate something on himself and not fulfill it. And the language of the Gemara [in] Shevuot 20b [is that] they, may their memory be blessed, said [times that a person say] konam (a pledge to bring a sacrifice), he [is liable to] transgress because of "he shall not profane his word." And so [too,] with anything that a man vow for a sacrifice or upkeep of the [Temple] or charity or for the synagogue or similar to them, he [is liable to] transgress because of "he shall not profane his word." But with other matters - such as one who vows something to his fellow or who says, "I will" or "I will not do thing x" - even though it is ugly, and it is only small-souled people who do it, he does not transgress because of "he shall not profane his word"; only in the way that we have written. However, about it all is it stated in the Torah (Exodus 23:7), "Keep far from a false thing." And Ramban, may his memory be blessed, wrote that they are two separate commandments, vows to the Elevated realm and vows of utterance, and as we will write below in the Order of Ki Tetseh in the commandment of fulfilling what comes out of the lips (Sefer HaChinukh 575).