Shabbat Parashat Shelach| 5766
From the works of Hagaon Harav Shaul Yisraeli zt”l - The Obligation to Testify - Part I - Based on Chavot Binyamin, siman 112
The Torah (Vayikra 5:1) says that one is obligated to testify on another’s behalf and that his failure to do so, coupled with an oath, obligates him in a korban. The gemara (Bava Kamma 66a) says that one who withheld testimony that would have helped his friend has a moral obligation to pay the money that his silence cost his friend. Are these halachot limitedto testimony in beit din?
Someonemade the following distinction. Only in beit din does the Torah obligate one to testify. However, regarding payment for causing a loss of money, the moral obligation applies even outside beit din. This explains why the Rambam (Edut 1:1), regarding the obligation to testify, mentions beit din, whereas the Tur (Choshen Mishpat 28), regarding payment, does not mention it. However, it is not understood, according to this approach, why the Tur says that the obligation to pay for damages is only when his friend demanded him to testify. According to the aforementioned distinction, damages should be dependent on the opportunity to testify, not the formal setting.
It appears [from this and other indications] that the Tur agrees that in order for one to be subject to damage payments for not testifying, there must be a formal obligation to testify. The logic is simple. The moral obligation to pay is for causing damage. But how is he causing damage by not doing anything? Only if he has an obligation to act can we say that inactivity can be damage. Now we understand the gemara’s (ibid.) question. The gemara asks on the statement that one who withholds testimony has a moral obligation to pay that it is obvious, since the need to testify is from the Torah. What is the connection? The Torah obligation is to testify, and we are discussing payment! It must be that the obligation to testify is the basis for possible payment.
Torat Kohanim (Kedoshim 4) brings a different source for the obligation to testify. It says that the commandment, “Do not stand by your friend’s blood” (Vayikra 19:16) covers not withholding helpful testimony. The Pitchei Teshuva (CM 28:4) adds that an extension of the mitzva of hashavat aveida (returning a lost object) should apply, even if his friend did not ask him to testify. Why does it depend on the request? One can ask why Torat Kohanim makes a difficult derivation, extending the spilling of blood to lost money, instead of learning from hashavat aveida?
Whatever the case, it is clear from the Shulchan Aruch (CM 28:1) that only when there is a demand to testify do these obligations take effect. Why is this so? The answer is apparently in the following direction. When one returns a lost object to his friend, he does his friend a favor without causing anyone else to lose. However, when one testifies for someone that he deserves money, it is naturally against someone else who owes the money. We have to take into consideration that there may be negative repercussions for the witness from those whom he testifies against.
Is a person required to put himself at odds with someone else when it could cause him damage? Only in regard to judging someone who is intimidating, the Torah commands: “Do not tremble before a man”(Devarim 1:17) and even that is only under certain circumstances. Halacha does not require one to give up money in order to return a lost object, and the same should apply to the hashavat aveida element of testimony. Only in the formal situation where the Torah requires people to testify (in court, after being demanded to do so) is testimony an absolute requirement, even in the face of potential loss.
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