OPINIONS: The Gemara records three Beraisos which prove from verses in the Torah that a woman generally may not serve as a witness. The third Beraisa quotes the verse, "The two men shall stand" (Devarim 19:17), which presumably refers to two witnesses, because if it refers to the plaintiff and defendant, then it would not use the term "men," since women also may come to court as a plaintiff or defendant. The Gemara rejoins that perhaps women may not come to court as a plaintiff or defendant because the verse says, "Kol Kevudah Vas Melech Penimah" -- "All of the glory of the princess is within" (Tehilim 45:14), implying that the princess, the Jewish woman, is honored by staying within her home. The Gemara concludes that the verse refers to witnesses from the usage of the word "two"; just as the word "two" is used elsewhere to refer to witnesses, the word "two" in this verse refers to witnesses.

(a) According to the Gemara's explanation, the Beraisa maintains that a woman should not come to court, even as a plaintiff or defendant. Are women indeed exempt from being present at a Din Torah?

1. The RI MI'GASH writes that based on this Gemara, it is fitting for a woman not to appear before Beis Din as a litigant. Rather, a woman who is summoned to court may have the court appoint an agent on her behalf. This agent then relays the court's proceedings to the woman and returns to the court with her response. The Ri mi'Gash writes that this was the practice followed by his teacher, the RIF. Although the Gemara later (30b) mentions that Rav Huna's wife came to Beis Din, she did so only because she wanted to represent herself.

2. The RITVA argues that there is no proof from the Gemara that a woman should not appear in court. He agrees that when the woman is the defendant, she does not have to come to court if the plaintiff agrees to litigate with her representative. However, if the plaintiff insists that she come (perhaps because he assumes that she will be less inclined to lie in his presence), then she must come to court. The Gemara is not teaching the rule, but rather it is stating the common practice; people usually do not make women come to Beis Din.

The ARUCH HA'SHULCHAN (CM 124) writes that, in practice, we follow a compromise between these two opinions. The woman may have an agent come to her home so that she does not have to go to Beis Din. At the same time, the plaintiff is allowed to be present when she states her claims.

(b) The argument between the Ri mi'Gash and the Ritva involves only having an agent relay the woman's responses to Beis Din. Does the Halachah allow for the woman to have an agent represent her in Beis Din and make claims on her behalf, without traveling back to the woman to get her responses?

1. The RI MI'GASH and the RIF agree that the appointment of a full representative is not allowed. The Gemara in Bava Kama (70a) states that a plaintiff may turn over a case to another person by transferring to him the rights to the money if he wins the case. This procedure essentially makes the plaintiff's representative equal to the plaintiff, since he is now a partner in the plaintiff's interest. However, in the case of a defendant, who stands only to lose money, the defendant may not give anyone a share in the money in order for that person to represent him. Since a representative cannot be considered like the defendant himself, his presence does not fulfill the requirement of the verse, "The two men... shall stand before Hash-m" (referring to standing before Beis Din, the representative of Hash-m). In contrast, in the case of a simple messenger who conveys messages between the Beis Din and the woman, the messenger is considered like the woman herself, based on the principle of "Shelucho Shel Adam Kemoso."

The RAMBAN and other Rishonim give another reason for why a representative cannot be appointed to represent the defendant. There is a concern that the representative will lie and add his own claims in order to win the case. The RITVA adds that the defendant will be more inclined to send lies through the representative, since the defendant does not stand face-to-face with his or her opponent. (This problem applies equally in the case of a messenger, as mentioned above.)

2. The ARUCH and RABEINU CHANANEL maintain that a defendant may appoint an agent to represent him in court. The representative is considered a Shali'ach of the defendant, and thus it is considered as though the defendant himself is standing in court.

They argue that there is no concern that the representative will lie and add his own claims, because of the principle that a person is not suspected of lying when he will not benefit ("Ein Adam Chotei v'Lo Lo"). However, they write that one may appoint a representative only for the normal proceedings in the court case; one may not appoint a representative to take an oath on his behalf.

They prove that the defendant may appoint an agent to represent him in court from the Yerushalmi in Sanhedrin (2:1). The Mishnah there states that a Kohen Gadol may be judged in Beis Din. The Gemara asks that he should be able to appoint an agent to represent him in Beis Din. The Gemara answers that the Kohen Gadol might have to take an oath, and his agent would not be able to take an oath for him. This implies that an agent is acceptable for the rest of the proceedings.

The RAMBAN refutes this proof. He explains that the Yerushalmi's statement applies only to a Kohen Gadol, whose honor must be guarded carefully. In the case of a Kohen Gadol, even sending a messenger to his home would be disgraceful. Therefore, he is permitted to appoint an agent to represent him in court. This allowance applies only to a Kohen Gadol and not to any other defendant.

Although the RITVA rejects the proof from the Gemara here, he accepts the proof from the Yerushalmi. He points out that the wording of the Yerushalmi implies that anyone may appoint an agent to represent him in court. He also writes that sending a messenger from Beis Din to the home of the Kohen Gadol is not disrespectful to the Kohen Gadol. Accordingly, the Ritva concludes that any person may appoint an agent to take his place in court. He writes that this was the common practice of his teacher, the RE'AH, and that he also heard this from the RASHBA (see footnotes of MOSAD HA'RAV KOOK edition). (Y. MONTROSE)

QUESTION: The Gemara records a dispute about whether a Talmid Chacham is required to testify in front of a Beis Din of judges whose scholarship is inferior to his own. Rabah bar Rav Huna states that a Talmid Chacham is not required to testify in front of such a Beis Din. Rav Shisha brei d'Rav Idi supports this view from the laws of returning a lost object: a Talmid Chacham is not obligated to return a lost object when carrying it would be disrespectful to him, as the Gemara in Bava Metzia (30b) derives from the verse, "v'His'alamta" (Devarim 22:1). The Gemara rejects Rav Shisha's proof and says that this type of exemption from a Mitzvah applies only in monetary matters. In a matter that involves an Isur (such as testifying that a woman is an Eshes Ish), the Talmid Chacham's superior scholarship does not exempt him from testifying.

Why, though, must he testify when doing so is a disgrace to his honor? The Gemara in Berachos (19b) teaches that when Kavod ha'Beriyos, the honor of a person, is involved, one may refrain from performing a Mitzvah through "Shev v'Al Ta'aseh," passively refraining from the Mitzvah. For example, when a person is on his way to bring the Korban Pesach or to perform Bris Milah for his son, and he comes across a Mes Mitzvah (a corpse with no one to take care of the burial), he is obligated to bury the Mes Mitzvah even though doing so will make him Tamei and cause him to forfeit the Mitzvah of Korban Pesach, or of Bris Milah on the eighth day. Since his forfeiture of the Mitzvah is done passively through "Shev v'Al Ta'aseh" and not as an active transgression, the honor of a person takes precedence over the Mitzvah. Why, then, must the Talmid Chacham testify when doing so will offend his honor? He should be permitted to refrain from testifying because his forfeiture of the Mitzvah is done only passively. (TOSFOS DH Aval Isura)

(a) TOSFOS answers that the Gemara in Berachos refers to a case in which the dead person will experience a very significant form of disgrace -- remaining without burial. In such a case, a person is required to refrain, passively, from performing another Mitzvah in order to bury the Mes Mitzvah. A Talmid Chacham who testifies before an inferior Beis Din does not experience such a great disgrace, and therefore his honor does not override the obligation to testify.

(b) Alternatively, Tosfos answers that the ability to testify is not called refraining from performing a Mitzvah. Since his refusal to testify could cause severe prohibitions to be transgressed (such as in the case of an Eshes Ish who is trying to get permission to marry another man), he is not permitted to refrain from testifying, even by passively refraining through "Shev v'Al Ta'aseh."

What is the logic behind this answer of Tosfos? Apparently, Tosfos understands that offending human dignity has the same severity as other transgressions. When faced with a situation in which one must choose one transgression over the other, one should do nothing to actively transgress any prohibition.

RAV ELCHANAN WASSERMAN Hy'd (in DIVREI SOFRIM 3:28) elaborates on this explanation. He writes that the logic that Kavod ha'Beriyos overrides other Mitzvos through "Shev v'Al Ta'aseh" is normally understood as follows. The sin of disgracing human dignity has the same severity as other transgressions. When a person is faced with two sins of equal severity -- disgracing human dignity or transgressing a different Mitzvah -- he should remain passive in order not to transgress any Mitzvah in an active manner. This logic, however, does not apply in the case of a Talmid Chacham who is asked to testify in court. Tosfos states that the Talmid Chacham is required to testify in order to prevent a severe transgression from being done by the person for whom the Talmid Chacham is called upon to testify. According to the above logic, however, his choice of conduct still should be inaction; instead of actively transgressing the sin of disgracing human dignity, he should remain passive (and passively cause the other transgression to occur). It must be that Tosfos maintains that a disgrace to human dignity is more severe than a sin transgressed passively, and is less severe than a sin transgressed actively. Accordingly, Tosfos says that even if that active sin is going to be done by someone else, since it will be an active transgression it overrides concern for Kavod ha'Beriyos. Rav Elchanan explains that this is logical; the Gemara states that one who is able to stop someone else from sinning and does not do so is considered guilty of transgressing that sin. If, by not testifying, the Talmid Chacham is allowing a sin to be transgressed actively by someone else, he is considered as though he also actively transgresses that sin. This is why Tosfos says that not testifying would be considered an active sin, which overrides concern for Kavod ha'Beriyos.

The KEHILOS YAKOV offers an alternative explanation for the words of Tosfos. He agrees that Tosfos maintains that insulting human honor is more severe than a sin transgressed passively but less severe than a sin transgressed actively. When a sin is going to be transgressed actively in order to uphold Kavod ha'Beriyos, then it does not matter who transgresses the sin. Even if somebody else will transgress a sin in an active manner, concern for Kavod ha'Beriyos does not override the transgression. The Torah requires that a person forgo his honor when not doing so will cause anyone to actively transgress a sin. Therefore, the Talmid Chacham must forgo his honor and testify in order to prevent someone else from actively transgressing a sin. (Y. MONTROSE)