|Friday, 18 August 2017||
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By Rabbi Meir Orlian, Halachah writer for BHI
One day Mr. Hyman received a summons in the mail to appear before beis din as a witness. He inquired of the litigants and found out that it related to an event that he had observed together with Mr. Gold.
“Is Mr. Gold also invited to testify?” Mr. Hyman asked.
“Yes, he also saw what happened,” said the plaintiff.
Mr. Hyman knew Mr. Gold a long time, way before he had moved into the neighborhood a year ago.
“I know him from before, and he was convicted of theft,” Mr. Hyman said to himself. “In the previous town, beis din disqualified him from giving testimony. I guess the Dayanim here are not aware of that.”
He wrestled with what he should do: “On the one hand, I know that Mr. Gold is disqualified and shouldn’t be testifying,” he thought. “On the other hand, I saw exactly what happened and there is no doubt that the money is owed. If I raise the issue of Mr. Gold’s disqualification, I’ll remain a single witness and it’s liable to mess up the case. That’s not fair either.”
Mr. Hyman shared his dilemma with a friend. “What do you suggest I do?” he asked.
“I don’t know what to advise you,” said his friend. “However, I plan to attend a shiur tonight given by Rabbi Dayan in the beis medrash. You can come and ask him after the shiur.”
“That’s a great idea,” replied Mr. Hyman. “What time is the shiur?”
“It’s at 7:30,” his friend replied.
Mr. Hyman joined his friend for the shiur. Afterward he approached Rabbi Dayan and shared his dilemma. “Should I testify along with Mr. Gold?” he asked.
“It says in Parashas Mishpatim (Shemos 23:7): “Midvar sheker tirchak — Keep far from falsehood,” replied Rabbi Dayan. “The Gemara (Shavuos 30b) understands that not only is actual falsehood prohibited, but also actions that lead to falsehood.”
“One example is that a witness who knows that his fellow witness is a thief should not testify along with him. The Rambam and Shulchan Aruch explain that a valid witness may not testify with someone disqualified, unknown to the Dayanim, even though the testimony is true” (Hil. Eidus 10:1; C.M. 34:1).
“But if the testimony is true, what’s the problem?” asked Mr. Hyman. “Regardless, the truth will come out.”
“There are three reasons to consider this as falsehood,” answered Rabbi Dayan. “Sma (34:1) explains that because the disqualified witness is irrelevant, the single valid witness who testifies along with him causes the judgment to be decided improperly as if there were two witnesses, and thereby also is a deceitful witness.
“The Shach (34:3), however, finds it difficult that the valid witness knows his testimony to be true, yet should avoid testifying just because the other witness is disqualified,” continued Rabbi Dayan. “Therefore, he explains that since the Torah declared that a disqualified witness invalidates the entire testimony (eidus shebatla miktzasa batla kula), the testimony of the valid witness is considered falsehood, since it also becomes invalidated incidentally.
“Third, the Shach points to certain cases where the presence of two valid witnesses is crucial for the transaction itself, e.g., witnesses of kiddushin,” added Rabbi Dayan. “Even if the event is true, it lacks legal status without the second witness.”
“So I can’t testify without raising the issue of Mr. Almoni’s disqualification?” asked Mr. Hyman.
“That is correct,” concluded Rabbi Dayan. “I should point out that Shaar Mishpat disagrees and cites from Kol Bo that the valid witness may testify in our case, unless he states that he and his fellow were witnesses, which would confirm the disqualified one. However, the accepted ruling follows the Shulchan Aruch who says that even to testify without saying so is prohibited, since it causes beis din to rule in an improper manner, as the Sma explained.” (See Mishpat Aruch, 34:1:20.)
FROM THE BHI HOTLINE
Tracking Down a Plumber
Submitted by the Bais Hora’ah
We would like to share with the readers an interesting letter the BHI received several weeks ago.
About two years ago, a Jewish plumber fixed something in our house. He was supposed to send us an invoice but we never received a bill. We don’t have his contact info and tried calling some local plumbers, but without success.
Q: How much effort do we have to invest to find him?
A: BHI responded that they have invested sufficient effort. If the situation involved returning stolen money, they would be obligated to exert themselves to track down the service provider. If that proved unsuccessful they would have to donate the stolen funds for communal needs (C.M. 366:2). (We hope to write an article about this in the coming weeks.)
But this situation does not involve theft; it involves paying the plumber for services he provided but for which he neglected to submit a bill. Accordingly, if the customer could easily track down the plumber’s contact information, he would be obligated to do so. Paying a service provider who seemingly forgot to submit a bill is included in the mitzvah of hashavas aveidah. There is no obligation for one to overexert himself to find the service provider.
A short time later we received a follow-up email which read:
Last week the drain needed the same servicing as two years ago. My wife opened the phone book and called a random number. Incredibly, the same plumber showed up to fix it. We asked whether he remembered doing the same service two years ago. He responded that he had a vague recollection and intended to check on it when he got home. We of course paid for both visits and were happy to be able to pay for the service he provided more than two years ago.
I think that there are two lessons from the story.
1) When a person wants to do the right thing Hashem will help him reach that goal (Yoma 38b). We wanted to pay the person who provided us with a service (see Beitzah 29a). Hashem helped us find him even though halachically we were not obligated to pursue the matter any further.
2) Hashem in His hashgachah pratis constantly plans whom we will meet and when. The fact that we ended up contacting the same plumber shortly after we asked a she’eilah and basically gave up is nothing less than Hashem guiding every event. We need to learn to keep this in mind when we are waiting for something to happen or hoping to meet the right contact at a certain time. We must realize that Hashem already designed the schedule and everything will happen at the right time in our life when the true Manager of our lives wants it to happen.
The second point is clearly expressed in sefer Chovos Halevavos (Shaar Hateshuvah 10). He notes that there are times that it is very difficult for one to repent for a transgression he committed. However, if the sinner does everything within his power to rectify the situation, Hashem will make the process easier for him. For example, if one stole money, Hashem may provide the thief with the means to repay his victim so that the victim will forgive him.
Similarly, if one oppressed a friend, Hashem will make the offended party receptive to forgiving the offender. “Furthermore, if the offended party is nowhere to be found, Hashem will arrange that they should run into one another so that the offender will be able to secure forgiveness for his offense.”
The Business Halacha Institute serves the community in all areas of monetary law according to Halachah. Please contact our confidential hotline with your comments or halachic questions at 877-845-8455 or firstname.lastname@example.org.
(Based on writings of Harav Chaim Kohn, shlita)
Q: I was offered work for a certain salary, and was told that this is what everyone is paid. After completing the job, I found out that the going rate is significantly higher. Am I entitled to extra?
A: Rema rules that if one party misled the other and stated: “Such and such a salary, like the going rate,” which turned out to be untrue, the amount agreed was in error; it is like work without any salary agreement, so that the employer pays the going rate. If there is a salary range, he has to pay only the lower end, even if most pay more (C.M. 332:4).
However, Shach (332:16) and Taz (332:4) rule that since they agreed on that salary, the employer has to pay only that amount, but the worker has a rightful complaint. Nesivos (332:4) limits also the Rema’s ruling to cases where “like the going rate” was an integral part of the salary arrangement, but not if only mentioned incidentally that this is the going rate (Pischei Choshen, Sechirus 8:10).