OPINIONS: The Gemara teaches that the verse, "... and he did that which is not good among his people" (Yechezkel 18:18)," refers to a person who comes to court with a "Harsha'ah." A Harsha'ah is a document which grants power of attorney to its bearer to act on behalf of the issuer. While such an instrument is legally permitted, it is considered "not good" because, as RASHI explains, by giving the right of litigation and advocacy to a proxy, the plaintiff causes harm to the defendant; the defendant might have been able to appease the plaintiff himself or convince him to compromise, while the plaintiff's proxy is not prepared to compromise with someone else's money. Moreover, it is considered improper for a person who has no stake in the dispute to get involved in it.

What practical ramifications may be derived from the Gemara with regard to issuing a Harsha'ah in a court case? Is one ever permitted to represent someone else in court?

(a) The RITVA quotes the RE'AH who explains that there is one situation in which a proxy in court is recommended. In a situation in which a monetary dispute has blown up into an extremely malevolent feud between the two parties such that they are unable to discuss the issue calmly and rationally in each other's presence, it is a Mitzvah for a person to take the plaintiff's place and represent him. This will generate a more harmonious trial and increase the peace in general. The Ritva writes that for this reason it is also permitted to find a representative for the defendant. (Some, however, permit representation only for the plaintiff.)

(b) The SHULCHAN ARUCH (CM 123:15) quotes the opinion of the RA'AVAD (Hilchos Shutafin 3:5) that when the Gemara says that the use of a Harsha'ah is "not good," it refers to a situation in which both litigants live in the same city and easily can come to Beis Din themselves, and there is no need to send an agent. However, when they live in separate cities, it is a Mitzvah to represent the plaintiff in the city of the defendant.

(c) The REMA quotes the opinion of TOSFOS, who adds another exception to the rule. According to the way the Rema understands Tosfos, the Gemara refers to an agent whose personality is such that he derives pleasure out of going to court and asserting his uncompromising stance against the defendant. A person who is always eager to get involved in someone else's dispute and take sides in order to express his toughness is considered "not good." However, if a person sees that his friend is having difficulty retrieving his money from the defendant, and he genuinely seeks to help his friend recover that which is rightfully his, then it is a Mitzvah to serve as his proxy in court.

(d) The SHACH understands the words of Tosfos differently. According to the Shach, Tosfos does not refer to the agent who finds pleasure in being unyielding. After all, if the agent is honest and truthful in his representation of the plaintiff, why is it wrong to represent the plaintiff? If, on the other hand, he lies in court, then the wrongdoing clearly is his dishonesty and not the fact that he comes to court with a Harsha'ah. The Shach therefore understands that the unyielding person whom Tosfos mentions is the borrower (the defendant). Tosfos is saying that a person should not become an agent and get involved in a dispute with a defendant who is unyielding, because he will end up involved in a severe altercation. The agent should not pick sides in a dispute which is none of his business. However, if the reason the plaintiff is not going to court is that he does not have the time or resources to devote to pursuing the case, then it is a Mitzvah for another person to represent him.

The ARUCH HA'SHULCHAN writes that all of these opinions are true. He answers the Shach's question on the Rema's understanding of Tosfos by saying that there might be plaintiffs who become nervous when confronted by a large, powerful, and angry defendant. This intimidation might cause the plaintiff to surrender or compromise his claims. Appointing an agent may ensure that the defendant's intimidating stature has no impact on the clarity of the plaintiff's claims. (Y. MONTROSE)

QUESTION: The Mishnah (30a) teaches that when two potential witnesses are asked to come to court and testify, and they swear five times that they do not know testimony about a particular case, and when they come to Beis Din they admit that they know testimony, they are exempt from bringing a Korban. If they deny their knowledge in front of Beis Din, they are obligated to bring five Korbanos. If, however, they swear in court that they do not know testimony and then they deny their knowledge, they are obligated to bring only one Korban. Rebbi Shimon explains that the reason why they are obligated to bring only one Korban is that after they have sworn in front of Beis Din that they do not know testimony, they cannot retract their statement and admit that they do know testimony, because of the rule that "Keivan she'Higid Shuv Eino Chozer u'Magid" -- "once witnesses have given testimony, they no longer may retract and give different testimony" (Kesuvos 18b). Accordingly, their additional oaths that they do not know testimony are not valid Shevu'os ha'Edus. In contrast, when they swear outside of Beis Din, their statement is not considered testimony and thus the rule of "Keivan she'Higid" does not apply; consequently, each time they swear, the Shevu'as ha'Edus is valid.

The Acharonim ask that even when the witnesses swear outside of Beis Din there is a simple reason why only the first Shevu'ah should be a valid Shevu'as ha'Edus, and the witnesses should be obligated to bring only one Korban. One who makes a false Shevu'ah -- a Shevu'as Sheker or Shevu'as Bituy -- becomes disqualified from serving as a witness. Accordingly, when it is discovered that the witnesses made a false Shevu'ah about their knowledge of testimony, they should become disqualified from serving as witnesses. The additional Shevu'os that they make should not be valid Shevu'os ha'Edus to obligate them to bring separate Korbanos, because only a valid witness can be guilty of falsely swearing that he does not know testimony. (Rather, they should be guilty for making Shevu'os Bituy, for which they should be punished with Malkus.) (See AVODAS HA'GERSHONI, Teshuvos #3.)

(a) The TUMIM (28:19) explains that this question is not problematic if the Mishnah refers only to a case in which others administer the oath to the witnesses, and the witnesses remain quiet and do not even say "Amen." For example, the litigant says to the witnesses, "I hereby adjure you with a Shevu'ah that you do not know any testimony," and the witnesses do not say "Amen," but rather they state simply, "We do not know testimony." According to the laws of Shevu'as Sheker, this is not considered a Shevu'ah at all, and thus they do not become unfit for testifying. According to the laws of Shevu'as ha'Edus, on the other hand, when the witnesses later deny in Beis Din their knowledge of testimony, that denial is in response to the five Shevu'os with which the litigant adjured them, and thus they are obligated to bring multiple Korbanos.

Even if the Mishnah is discussing a case in which the witnesses make the Shevu'ah on their own accord, their false Shevu'ah does not disqualify them from testifying, because it is possible that their Shevu'ah is not a lie. For example, the litigant says to them, "I hereby adjure you that you shall come to court if you know testimony." The witnesses answer, "Amen," effectively attesting that if they know testimony, they will come and testify. The litigant makes this statement, and the witnesses respond to it, five times. If the witnesses later come to court and deny (falsely) that they know testimony, they effectively make all of the Shevu'os that they accepted upon themselves into Shevu'os ha'Edus for which they are obligated to bring multiple Korbanos. However, since at the time that they made each Shevu'ah they were not lying (because if they do know testimony, they might come to court to testify as they promised), they do not disqualify themselves from testifying.

(b) The KETZOS HA'CHOSHEN (28:8) rejects the Tumim's approach. He understands that the Mishnah must be dealing with all cases of Shevu'as ha'Edus, including a case in which the witnesses say the entire oath themselves, since this is the first case mentioned in the Mishnah earlier.

He quotes the RAN who says that a witness is believed to say that he forgot that he knew testimony when the event in question did not occur recently (and thus it is reasonable to assume that he indeed forgot). The Ketzos ha'Choshen understands that even according to the opinions (see RASHBA cited by BEIS YOSEF CM 34) that maintain that one is not believed to say that he forgot, he is not believed only when he says, "I never saw anything that would be considered testimony for you." Everyone agrees that if he merely says, "I do not know any testimony," he is believed to say that he forgot and is not considered to have sinned by making a false Shevu'ah. This is because when he said, "I do not know...," he was not lying; at that moment, he truly did not know any testimony (because he had forgotten it). Therefore, he is not held liable for making a false Shevu'ah. In contrast, when he said, "I never saw anything...," his statement is certainly a lie (because even if he did forget that he saw anything, his statement is still not true).

Hence, as long as it is not known for certain that the person maliciously lied, it may be assumed that he merely forget that he knew testimony when he was asked about it outside of Beis Din. Accordingly, his oaths do not render him unfit for testimony.

This is also the approach of the RITVA. The Ritva asks that the witnesses should not be able to give testimony after they swore falsely that they know no testimony, because Beis Din cannot believe them when they admit that they swore falsely. Beis Din cannot accept their admission because of the principle that a person is not believed to testify about himself that he sinned in such a way that he is called a Rasha -- "Ein Adam Mesim Atzmo Rasha." How, then, can Beis Din accept the testimony of the witnesses when they say that they were lying when they swore that they knew no testimony? (Since Beis Din cannot accept their testimony, the witnesses should not be obligated for all of the subsequent Shevu'os ha'Edus that they took, but only for the first one, because after the first Shevu'ah they cannot retract and give testimony because of "Ein Adam Mesim Atzmo Rasha.")

The Ritva answers that it is possible to believe the witnesses when they say that they swore falsely, without the witnesses making themselves into Resha'im. The witnesses can claim that they swore falsely by mistake. They forgot that they knew testimony, swore that they did not know testimony, and then they remembered that they did know testimony. When they come to court and admit that they swore falsely, their word is accepted because they are not making themselves into Resha'im, since their false oath was taken by accident.

The Ritva adds that even if the witnesses do not claim that they were mistaken when they made their Shevu'ah, the principle of "Palginan Dibura" may apply to their words. They are believed with regard to the testimony that they now give, but they are not believed when they say that they intentionally swore falsely. Rather, Beis Din assumes that they swore falsely by mistake. Even though, in such a case, they would not bring a Korban for Shevu'as ha'Edus, their retraction in court is accepted. In the case of the Mishnah, they did not come to Beis Din and admit that they knew testimony, but rather they maintained their denial, and therefore they are obligated to bring a Korban for each one of their Shevu'os.

Similarly, the witnesses do not disqualify themselves from testifying by taking a false oath accidentally. Only an intentional Shevu'as Sheker disqualifies a person from serving as a witness.

The explanation of the Ritva and Ketzos ha'Choshen, however, is problematic. They explain why a witness' initial false Shevu'ah that he knows no testimony does not disqualify him from further testifying, and why he remains a valid witness who may retract his earlier denial and testify in court (and thereby he can become obligated for multiple Shevu'os ha'Edus). They explain that since the witness can claim that he forgot that he knew testimony, his Shevu'ah does not invalidate him from testifying. However, if Beis Din accepts the witness' claim that he forgot, then even when he swears in Beis Din five times, he should be obligated to bring five Korbanos for Shevu'as ha'Edus! Why does Rebbi Shimon (in the Mishnah) say that he does not bring multiple Korbanos because once he swears the first time in Beis Din that he knows no testimony, he may no longer retract his statement? Let him claim that he forgot that he knew testimony, and now he remembers! His initial testimony that he knows no testimony should no longer be considered testimony (since he is believed to say that he forgot, at the time that he made his statement, that he knew testimony), and his new testimony should now be accepted (and, consequently, if he swears five times that he does not know testimony, since he could claim after each Shevu'ah that he forgot that he knew testimony, he should be obligated to bring multiple Korbanos)!

The Ketzos ha'Choshen answers that only in the case of a Shevu'ah does Beis Din accept a person's claim that he forgot at the time of his Shevu'ah. When he swore that he knew no testimony, and now he claims that when he made that Shevu'ah he forgot that he knew testimony, his Shevu'ah is not false; at that time, he indeed knew no testimony. In contrast, for any other Aveirah he is not believed to say that he acted accidentally, b'Shogeg or even b'Ones. When a person does an Aveirah (such as eating Chelev or stealing), the act itself is defined as a transgression; if he did it by accident, he is exempt from punishment, but the act itself is a clear transgression of the Torah.

When the witness swears in Beis Din that he does not know testimony and then retracts his statement and says that he forgot that he knew testimony, he is not merely explaining that his Shevu'as ha'Edus was not a sin. He is also trying to say that he did no Aveirah of withholding testimony -- that he did not transgress the Isur of "Im Lo Yagid v'Nasa Avono" (Vayikra 5:1), because he forgot at that time that he knew testimony. This Aveirah is similar to other Aveiros (such as eating Chelev or stealing), for which a person is not believed to say that the act was done unintentionally. (See also what the Ketzos ha'Choshen writes in MESHOVEV NESIVOS.)

The KEHILOS YAKOV (#27) questions this logic. What is the basis to differentiate between the Isur of withholding testimony and the Isur of saying a false Shevu'ah?

The reason why Beis Din believes the witness when he says that he forgot at that time that he made the Shevu'ah is that if he did forget, the Shevu'ah itself was not an act of Aveirah; it was a true Shevu'ah. The same should apply with regard to the prohibition of withholding testimony. If he did not remember the testimony when he was asked to testify, then he did not transgress the Isur of not withholding testimony that he knew!

Apparently, the Ketzos ha'Choshen's logic is based on a different understanding of the prohibition against withholding testimony. The Ketzos ha'Choshen understands that the prohibition does not state that a witness shall not refuse to tell what he knows. Rather, it states that a person who saw an event and knows testimony is required to come forth and testify. If he saw testimony and fails to come forth to testify, he transgresses the prohibition even if he forgot the testimony. The fact that he did not come forth is considered an act of Aveirah. Forgetting the testimony is comparable to eating Chelev when one is unaware that the food he is eating is Chelev; the act is still an act of Aveirah.

The Kehilos Yakov himself explains the difference between a witness who swears outside of Beis Din that he does not know testimony and a witness who swears inside of Beis Din. When the witness claims that what he said outside of Beis Din was due to his forgetfulness, he is believed for the following reason. The doubt in that case is not whether the statement that he said outside of Beis Din is true. Rather, the doubt is whether the witness himself is a liar (now that he says that he does know testimony) and unfit to testify. Since the person himself has a "Chezkas Kashrus" -- he is presumed to be a truthful person until proven otherwise -- it is assumed that he made his false statement not out of maliciousness, but out of forgetfulness. Now that he remembers he may testify, since he is not disqualified as a witness.

In contrast, when he swears in Beis Din that he does not know testimony (and then he retracts his statement, saying that he forgot that he knew testimony), the doubt is not whether the witness himself is a truthful person or a liar. Rather, the doubt is whether his earlier statement was valid and irrevocable testimony, such that when he now gives different testimony, is he revoking his earlier statement (which he is not allowed to do), or is he not revoking any earlier testimony (but rather both statements are true; when he said earlier that he did not know testimony, he was telling the truth because he indeed forgot at that time that he knew testimony)? There is no reason to believe his present statement (that he knows testimony) over his earlier statement (that he knows no testimony). His own "Chezkas Kashrus" that he is a valid witness does not provide any information about the validity of his statements. Since he originally stated that he did not know testimony, and now he says that he does know testimony, Beis Din is left with a doubt, and, out of doubt, Beis Din assumes that he is now retracting his earlier statement, which he is not allowed to do. (Y. MONTROSE)