Shabbat Parashat Sukkot| 5771

P’ninat Mishpat: Payment for a Polygraph Test

Case: Beit din, in the context of divorce proceedings, instructed a couple to each be tested at a polygraph (“lie detector”) testing center (=pl), which enables most accurate results. The man (=def) was told to pay initially; eventually, whoever was indicated to not be telling the truth would pick up the charges. Pl set the testing for a certain date, with the wife being tested first, to be followed later by def. However, def did not show up and refuses to be tested. The wife was found to be telling the truth, but inconclusively, because her results could not be compared to def’s. Def says that since he was not tested, he need not pay, especially since his wife’s results were inconclusive.

Ruling: The main question is whether def is deemed to have agreed to pay for pl’s services since he did not protest beit din’s instructions. The general rule is that silence is deemed as acquiescence. One example is the Rama’s ruling (Choshen Mishpat 81:7) that if one hires someone to teach his friend’s son on his friend’s behalf and the father is present at the time and is silent, the father must pay the teacher. The Rama explains that he should have considered that if he did not protest, people will assume that he agreed to paying and, thereby, it is considered acquiescence to pay. On the other hand, the Tumim (81:13) asks against the Rama that the source (Shulchan Aruch, CM 81:13) that silence is like agreement discusses a case where originally the person said yes and at the critical moment he remained quiet but not to a case where the person was silent the whole time.

The Netivot Hamishpat (81:5) answers based on the following distinction: if someone did an action in front of a person who remained silent, we say that under those circumstances, his silence is like admission. According to the Netivot, we need to determine whether to view our case as one without an action or to say that the fact that the polygraph testers scheduled the two makes it considered like an action, as def should have informed them he had no intention to pay. Additionally, the Gra (CM 81:15) seems to disagree with the Netivot and say that whenever one should have realized he is being relied upon, his silence obligates him. He apparently understands that this occurs when the action that could have caused a protest was a major one. In our case, the fact that beit din stipulated the payment should suffice. Only if there is a reason to explain why the person would be quiet would silence not obligate.

It should not make a difference if the matter for which he is obligated is good for the person who becomes obligated, like in the case that work was done on his behalf. Rather, the important thing is whether he should have realized that people would expect him to pay. The fact that it was not proven that def was lying is not an issue because instead of “hiding behind” the doubt, he should be tested and prove his innocence. There is precedent that when one is recalcitrant in the judicial process, he may be penalized for his actions (see Shulchan Aruch, CM 14:5). Therefore, if def continues to refuse to be tested, he should pay pl’s fee.

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