Ketubot 18 - 24 Issue #323
12 - 18 Nissan 5760 / 17 - 23 April 2000

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The Limits of Martyrdom

Two witnesses who verify their signatures on a document but add that the loan or sale never really took place and that they signed under duress are sometimes believed and sometimes not. If there was no other source but them for certifying the document on the basis of their signatures, we assume they are telling the truth because if they were interested in falsely discrediting the document they could simply have remained silent and refrained from verifying their signatures. Should there be another source for verification, such as other witnesses who recognize their signatures, we do not accept their claim that the document is false and that they signed under duress.

Even in the case where they are believed, it is only if they say they were threatened with their lives. Should they state, however, that they signed the false document because of financial inducement, we do not accept their testimony because it is self-incriminating and "a man is not believed to testify that he is wicked."

This is the position of the majority of the Sages. Rabbi Meir, however, goes one step further by declaring that we do not accept their testimony even when they say they signed a lie in order to save their lives. When Rabbi Chisda explained Rabbi Meir's position based on an approach that witnesses faced by the threat of death must choose martyrdom rather than bear false witness (and that their testimony is therefore self-incriminating and invalid) he is challenged by the Sage Rava with the halachic ruling (Mesechta Sanhedrin 74a) that the only sins for which a Jew must sacrifice his life are idolatry, sexual immorality and murder.

Rabbi Chisda's explanation is the subject of much discussion by the leading commentaries. A number of approaches are proposed, including one that Rabbi Meir actually adds theft (which false witnesses are guilty of) to the list of the aforementioned three cardinal sins. The solution to this problem proposed by Ran and Ritva is that we do not consider witnesses who signed out of fear for their lives as sinners, and their testimony to that effect would indeed not be self-incriminating. Since, however, testifying falsely is such a disgusting crime in the eyes of people we assume that these witnesses would have chosen to die rather than sign on a lie, and we therefore do not believe them when they say they submitted to pressure. Rava, nevertheless, dismisses this explanation of Rabbi Chisda. Had these witnesses asked a rabbinical court whether to sign or to die, he points out, they would have been instructed to sign in order to save their lives. How then can we assume that they, on their own initiative, would have chosen martyrdom? Rava therefore proposes an alternative explanation of Rabbi Meir's position.

The Dishonest Document

"If there is a lie in your possession distance it from yourself and do not retain a dishonesty in your household." (Iyov 11:14)

This warning about a dishonesty in your household is given varying interpretations by the Sages. Rabbi Yehoshua ben Levi says that it refers to a creditor holding on to a loan note after it has already been paid. Rabbi Cahana states that it means a note testifying to a loan which has not yet taken place but is in the creditor's possession with the potential borrower's consent so that it will be handy when a quick loan is needed.

The common denominator of both approaches is that there is a potential for dishonesty on the part of the note holder who can demand payment not due him. Rabbi Yehoshua ben Levi, says the gemara, will certainly hold that it is a dishonesty to hold on to a note testifying to a loan that has not taken place since this is even worse than a note which has already been paid which once had an element of truth. But what will Rabbi Cahana's position be in regard to a note that has been paid?

This, says the gemara, will not be considered a dishonesty in the view of Rabbi Cahana because there may be a justification for retaining a paid note. The expense of hiring a scribe to write a loan note is incumbent on the borrower. Sometimes the borrower is so short of funds that he cannot afford to make this payment. The creditor then has the option of laying out the money for the scribe's services, reserving the right to hold on to the note even after the loan is paid until he receives repayment of the writing expenses as well. Since he has a legitimate right to hold on to the paid-up note it cannot be labeled a dishonesty.

What is Rabbi Yehoshua ben Levi's view of this right?

Tosefot and Rosh contend that even he will agree that the creditor may retain the paid-up note until he collects the money he laid out for its writing. The dishonesty enters the scene only when he continues to hold on to the note even after receiving that additional money and thus exposes himself to the danger of forgetting the loan payment and unjustly demanding payment once again. This is in contrast to Rabbi Cahana who holds that since this later forgetting to return the note was the result of an initial legitimate retention of the note it cannot be termed "dishonesty."

Rabbeinu Nissim (Ran), whose view is the only one cited by the Shulchan Aruch (Choshen Mishpat 57:1), contends that Rabbi Yehoshua ben Levi's opinion is that there is a "dishonesty" in retaining a paid-up note, even if the motive is to collect expenses laid out for its writing, because of the danger that he may forget the loan payment and dishonestly demand payment once again.

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