Sanhedrin 059

1:
Our present mishnah seeks to describe the procedure in adjudicating Dinei Mamonot [cases involving monetary claims]. Before anything else we note two major differences between what is described in our mishnah and procedure that is familiar to us from Western practice. Firstly, neither the plaintiff nor the respondent (defendant) has to say anything at all. As long as the witnesses have not established the fact of the case (not 'the facts', details, but 'the fact' – that there is a case to be answered) neither of the litigants need address the court at all. We have mentioned on many occasions in the past that the Halakhic system recognizes two kinds of testimony: testimony establishing that "a crime' has been committed, and testimony about the incidental circumstances of the case. [For further details see the shiur of 1st September 1998.] The second major difference is that the witnesses are not 'sworn in'. This is the subject of the Reisha [first section] of our mishnah.

2:
Only under certain very restricted circumstances will a Bet Din administer an oath – and then, it will not be to the witnesses. (Basically, and without going into detail, an oath may be administered to a plaintiff who has no acceptable evidence that the respondent does indeed owe him money, and the judges have the impression that he is, indeed, telling the truth.) In the Western system a witness is required to swear on oath that he will tell the truth. The rabbis saw two very serious drawbacks to such a procedure. Firstly, if someone has decided not to tell the truth, the administering of an oath will not really deter them. But worse, perjury is a sin against one of the Ten Commandments ("You shall not bear false witness…"); if a person perjures himself because the Court required him to take an oath, the Court is in fact making itself an accessory before the fact of the sin. Thus it is that our mishnah requires that the witnesses be 'warned' of the consequences to themselves of committing the sin of perjury – even in a case where the litigant only stands to lose money or property. (The Hebrew term used by our mishnah is, in fact, even stronger than 'warn', and might well be construed as 'threatening' the witnesses.

3:
Even today, the secular courts in Israel recognize the right of all persons appearing before them to refrain from swearing an oath. Other institutions which also require the administration of an oath by law, permit an alternative: soldiers enlisting in the army, members taking up their seats in the Knesset, Presidents entering upon office, Judges upon appointment… In all such cases, it is permitted to refrain from taking an oath and instead to "pledge upon my solemn word of honour".

4:
Probably the most infamous case of perjury related in the Bible is that involved in Naboth's vineyard [1Kings 21]. Naboth [Navot] was a citizen of Shomron whose ancestral property included a vineyard close by the palace of King Aĥ'av [Ahab]. Ahab wanted to acquire the property and to turn it into a vegetable garden. Naboth was not prepared to sell at any price: since the property was ancestral he felt that he was in duty bound to pass it on to his descendants just as he had received it from his ancestors. Ahab sulked, because he realized that he had no way under law to compel Naboth to sell. His wife, Jezebel [Izevel], as a Phoenician princess unlearned in the more democratic ways of Israel, arranged for two witnesses to accuse Naboth of a capital crime. This perjured testimony, of course, secured the conviction and execution of Naboth whose property thus became forfeit to the crown…

5:
The Torah stipulates one very simple rule for the treatment of perjured witnesses:

The Torah thus creates one very simple rule of thumb: someone guilty of perjuring themselves in order to ensure the conviction of a litigant must be punished with whatever punishment the other would have suffered if he had been convicted. Rambam [Maimonides, North Africa, 12th century CE] describes this in sweeping terms (a free translation):

6:
The Gemara [Sanhedrin 29a] discusses the nature of the "warning" that is administered to the witnesses. The Amora Rav Yehudah suggests that a Biblical verse [Proverbs 25:14] is quoted to them, a verse whose midrashic interpretation suggests that perjurers will be plagued by bad weather. The Amora Rava rejects this suggestion since it would hold no terrors for tradespeople, only for agriculturalists. So instead, he suggests a different verse from the same chapter [Proverbs 25:18] whose midrashic interpretation suggests that perjurers will die prematurely. The Amora Rav Ashi rejects this suggestion since most people would quote a proverb that "for the past seven years no one here has died except of old age". Rav Ashi says that the witnesses are warned that "perjurers are held in contempt by everybody" – because when Jezebel arranges for the two "witnesses" to incriminate Naboth she herself refers to them as "worthless men". Obviously, these three Amora'im are not suggesting that these Biblical verses are quoted verbatim to the witnesses, but that the judges must "put the fear of God" into the hearts of the witnesses as regards the fearful consequences of offering false testimony.

To be continued.