Exceptions To The Hearsay Evidence Rule (Siman 75:23)

Sa’if 23, Mechaber: The plaintiff says that although he is not sure of his claim, he was told by someone that the defendant took a maneh from him. The defendant denies it. The plaintiff then produces the witness who testifies in favor of the plaintiff in beit din. In such a case, the defendant must take the Torah-mandated oath required when one witness testifies against him. The presence of the witness testifying in court makes up for the plaintiff not being certain of the claim. The claim is now considered a claim about which the plaintiff is certain.

Rama: If, however, the witness is not present to testify in beit din, then the claim, based as it is on hearsay, is not considered a claim about which the plaintiff is certain and the defendant is therefore not required to take the oath to rebut an uncertain claim. (The Tur in the name of the Ra’avad)

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Other halachic authorities however,(the Tur in the name of the Rif, the Rambam, the Rosh, the Beit Yosef in the name of the Ramban and the Ran and the Nimukei Yosef) are of the opinion that even if the witness who told the plaintiff about the loan is not present to testify in beit din but is trustworthy, the defendant must swear the Shevuat Heiset oath of denial. This is so even if the witness is a relative of the plaintiff. This is how the matter should be decided, provided that such witness has no economic interest in the outcome of the case. (Terumat Hadeshen Siman 308.)

Ner Eyal: Although the plaintiff has no first-hand knowledge of the loan and is uncertain of his own claim, the claim is substantiated by a witness who testifies in court. This in itself is sufficient evidence to oblige the defendant to take the Torah oath of denial which is required whenever one witness testifies in favor of the plaintiff. Had the plaintiff brought two witnesses to testify in his favor, he would have won the case and judgment would have been entered against the defendant. Although the testimony of one witness does not have the probative power to extract money from the defendant, it does have the power to extract a Shevuat Heiset oath of denial from him. If the defendant is prepared to take this oath, the case against him is dismissed. If he is not, a judgment will be entered against him.

There is a difference of opinion as to whether the result would be the same even if the single witness did not testify in court and the plaintiff simply repeats to the beit din what he heard from a trustworthy source. According to Rabbeinu Epharaim and the Ri Halevi, hearsay evidence repeated by the plaintiff in court is insufficient evidence to require the defendant to take a Shevuat Heiset oath of denial.

The Rif, the Rambam, the Rosh, and the Tur, in the name of the Ramban, rule that this is sufficient evidence to oblige the defendant to take the Shevuat Heiset oath of denial before a judgment is rendered in his favor, provided the witness does not have an interest in the outcome of the case. If the witness does have an interest in the outcome of the case, his evidence will be disregarded and the beit din will view the claim as one about which the plaintiff was uncertain. The beit din would then enter judgment for the defendant without requiring him to take the oath of denial.

An example of such a situation is as follows. The plaintiff deposits money in the hands of an agent and instructs him to pay the money over to the plaintiff’s creditor on his behalf. The creditor claims he never received the money from the agent and sues the plaintiff for the return of the loan. The agent assures the plaintiff, outside court, that he did indeed fulfill his agency and that he handed over the money to the creditor as instructed. The plaintiff tells the court that the agent, a trustworthy person, assured the plaintiff, outside court, that he repaid the loan on his behalf. Clearly, the agent has an interest in claiming he repaid the creditor as instructed. This is because if the court finds that he did not, the agent, when sued by the plaintiff for breach of his agency, may be required to take a Shevuat Heiset oath of denial or be liable to pay the plaintiff.

Both of these options are unpalatable to the agent. Such an out-of-court statement by the agent is, therefore, disregarded by the beit din and judgment will be entered for the creditor without the need for the creditor to take the oath of denial. Of course if the agent sues the creditor directly and claims with certainty that he paid over the money to creditor as instructed and the creditor denies it, the creditor will be obliged to take a Shevuat Heiset oath of denial, just like any other defendant who denies a claim about which the plaintiff is certain.

ruThe authorities mentioned above who are of the opinion that a hearsay statement from a reliable, disinterested third party, repeated in court by the plaintiff, is sufficient to oblige the defendant to take a Shevuat Heiset oath, rely on the decision of a gaon mentioned by the Rif in the following case. A plaintiff sued the defendant claiming he had a witness who saw the defendant enter his house in the plaintiff’s absence and steal a bale of cotton. The defendant admitted he entered the house of the plaintiff and took the bale of cotton, but claimed he was entitled to it because the plaintiff, with whom he had a running account, allowed him to do so in repayment of a debt the plaintiff owed him. Although the plaintiff’s witness who saw the defendant take the bale of cotton did not testify in court and the evidence was therefore hearsay, the gaon ruled that that it was sufficient evidence to require the defendant to take a Shevuat Heiset oath that he was entitled to take the bale of cotton in repayment of his loan.

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