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Kidushin, 74

1) THE REASON A "DAYAN" IS BELIEVED

QUESTION: The Gemara quotes a Tosefta that says that a Dayan is believed to state that he ruled in favor of one litigant and obligated the other to pay. The Gemara says that this applies only when the litigants are still standing in front of the Dayan. If they have already departed from his presence, though, he is not believed to say who prevailed and who lost.

What is the reason for this Halachah? In the previous Halachah that the Gemara (73b) quotes, which says that the owner of an item is believed to say who bought the item as long as he is still holding it, RASHI explains that the reason the owner is believed is because we assume that he would not lie in order to retract the actual sale, because he would then be subject to the curse of "Mi she'Para." Why, though, in the case of a Dayan, should we assume that the Dayan remembers better what happened in the litigation when the litigants are standing before him than when they are not standing before him?

ANSWERS:

(a) RASHI here (DH b'Zman) seems to address this question. Rashi writes that as long as the litigants are still standing in the presence of the Dayan, "it is upon him to remember [the details of the case], for they have not yet exited from there after the verdict was passed and the Dayan says so-and-so is innocent and so-and-so is guilty." Rashi appears to hold that before the litigants exit, the Dayan must declare who wins and who loses, and therefore the Dayan must remember which litigant won in order to fulfill this requirement. (See AYALES HA'SHACHAR.)

(b) The TOSFOS RI HA'ZAKEN offers a different approach. The Chachamim instituted that a Dayan is believed. Only the Dayan, and not any other person, is believed to say which litigant won the case. What, though, is the limit for accepting the Dayan's word? Until when can we assume that he remembers who won?

Since "Omdim l'Fanav," when the litigants are still standing before the Dayan, is the time period during which the litigants are still considered to be involved in the litigation and during which the Dayan is fulfilling his role as judge, it is during that time that he is believed. Once the litigants depart, the involvement of the Dayan and the litigants in the case has ceased, and the Dayan is no longer called the "Dayan" of this case. As long as the one judging the case has the status of "Dayan," we can attribute to him the special Halachos of Dayan, including this new Halachah of believing him. However, once this role of "Dayan" has ceased -- which occurs when the litigants leave his presence, the [former] Dayan's ability to testify about the case ceases as well.

OPINIONS: The Gemara quotes a Tosefta that says that a Dayan is believed to state that he ruled in favor of one litigant and obligated the other to pay. The Gemara asks why we need to rely on the Dayan's testimony when we can simply look at what is written in the "Zechusa," the written record of the litigant's victory. The Gemara answers that the case under discussion is one in which the "Zechusa" was torn up and disposed of.

In a case where the "Zechusa" is present, what is its power? Can we fully rely on it to tells us who won the case?

(a) When the TUR (CM 23) quotes this Gemara, he writes that "once the litigants have exited from before the Dayan, the Dayan is not believed (to say who won the case), if there is no P'sak Din in his hand." The Tur seems to be giving guidelines in the Ne'emanus of the Dayan. The difference between when the litigants are standing there and when they have departed only exists if the victorious litigant has no P'sak Din in his hands. If he is holding a P'sak Din, though, then the Dayan is believed even after the litigants have departed. That is, the fact that the litigant is holding the P'sak Din is not enough, by itself, to show us that he was victorious.

Rather, the P'sak Din together with the testimony of the Dayan is what shows us that this litigant was victorious.

The Acharonim explain (see SHACH and others) that the Tur's ruling is based on the RITVA's explanation of RASHI. When the Gemara says that we should simply look at the P'sak Din that the litigant is holding, it is referring to the second part of the Tosefta's ruling, that when the litigants have departed, the Dayan is not believed. This implies that when the litigants are still standing in front of the Dayan, it makes no difference what is written in the P'sak Din. Furthermore, even if the Dayan testifies one way, and in the P'sak Din is written another way, the Dayan's testimony is accepted over the P'sak Din. In other words, the "Zechusa" is not a proof itself to whom the victor is. Hence, after the litigants have left the court, the "Zechusa" cannot be used by itself, but only as a support for the testimony of the Dayan.

(b) The RITVA himself, however, argues with Rashi. The Ritva asks that if the "Zechusa" is not a proof by itself, and the Ne'emanus of the Dayan (after the litigants have left) is also not sufficient by itself, then why should they work together? (See RAV BARUCH ENGEL quoted by CHIDUSHEI REBBI AKIVA EIGER on the Shulchan Aruch, CM 23.)

The Ritva explains that the question of the Gemara, that we should just look at the "Zechusa," is referring to the first part of the Tosefta's ruling, that when the litigants are present, the Dayan is believed. The Gemara is asking why we give Ne'emanus to the Dayan when the litigants are present, when we should simply look at what is written in the P'sak Din! The Gemara then answers that the P'sak Din indeed is no longer extant. If, however, the P'sak Din would be present, then it would override the testimony of the Dayan. (Likewise, according to the Ritva, we would be able to rely on the P'sak Din alone even when the litigants are no longer standing before the Dayan, in contrary to the ruling of the Tur.)

QUESTION: The Gemara teaches that a Dayan is believed to say that he ruled in favor of one of the litigants, but only when they are still present in front of him. Once they have departed from his presence, he is not believed to say that he ruled in favor of one of them.

The KETZOS HA'CHOSHEN (23:1) asks that the Gemara in Kesuvos (74a) says that if a woman says that a certain Chacham was Matir her Dam, and the Chacham denies her claim, the Chacham is believed. If the woman was married and was found to say, falsely, that she is Taharah, she even loses her Kesuvah (according to the RAMBAN, see there). Even though the Chacham is only a single witness, and the testimony of a single witness is normally not accepted with regard to monetary matters, this case is an exception. Since the woman's claim of Taharah is based entirely on the Chacham (i.e. that he was Metaher her) and the Chacham is challenging that claim, the bases for her Taharah falls apart.

Why do we not apply the same rule to the case of our Gemara? The Dayan should be believed even when the litigants are no longer in front of him! Since each one claims to have won the case, each one is in essence saying that the Dayan ruled in his favor. Hence, if the Dayan refutes that claim, then there should be no basis for the claim at all, and the claim of the other litigant should prevail!

ANSWER: The KETZOS HA'CHOSHEN answers by saying that although it is true that the Dayan is believed to refute the claim that he ruled in a certain way, he is not believed to say outright who won the case (once the litigants have left his presence). When they have left his presence, the testimony of the Dayan is viewed to contain two components -- a refutation of the claim of one of the litigants, and a declaration of the victory of the other. The litigant who is challenging the Dayan is not believed with regard to his claim that he won the case (because the Dayan's testimony contradicts that), but he *is* believed with regard to saying that the Dayan did *not* favor the other party (since the Dayan, once the litigants have left his presence, has no Ne'emanus to say that he did favor the other party). This is a type of "Palginan Ne'emanus," where there is counter-testimony to one part of the testimony, and not to the other.

QUESTION: The Gemara quotes a Beraisa in which Rebbi Yehudah says that just as a man is believed to say that "this son is my firstborn son," he is also believed to say that his son is a Ben Gerushah or Ben Chalutzah. The Chachamim argue and say that one is not believed to testify that his son is a Ben Gerushah or Ben Chalutzah.

The testimony of the father, when he says that his son is the Bechor, is pertinent to the division of assets after the father's death; if this son is the firstborn, then he receives a double portion. Hence, the father's Ne'emanus is only with regard to a monetary matter (Mamon). How, then, can Rebbi Yehudah learn from there that the father is also believed to disqualify his son from the Kehunah, which is a matter of Isur and not Mamon?

ANSWER:

(a) TOSFOS first answers that the Torah gives Ne'emanus to the father to testify about his son in *all* respects. Even if the father claims that his youngest son is the Bechor, the father is believed. Even if he were to say that all of his other children are Mamzerim and that only this son is legitimate, he would be believed. Hence, we see that the father has Ne'emanus even with regard to matters of Isur.

(b) Tosfos gives a second answer based on the verse which serves as the source for the Ne'emanus of the father to testify about his son's status. The Torah says, "Ki Es ha'Bechor Ben ha'Senu'ah Yakir" (Devarim 21:17). The Gemara earlier (68a) explains that "Senu'ah" refers to a woman whom he married through an Isur. Thus, we can derive from the verse that the father is believed to say that this is a child born through a Lav, such as from a Kohen married to a Gerushah.

74b