Verse: מדבר שקר תרחק
Command: Stay away from falsehood
Shemos 23:7
SMG
It is written in the verse[i] מדבר שקר תרחק – distance oneself from falsehood, and we derive from there in the Gemara[ii] that a judge cannot become an advocate for his own statements. We also derive from this verse that a judge who knows his friend is a bandit, and similarly a witness who knows is friend is a bandit; they should stay far away from them and not be counted together with them [in testifying[1]]. This is also an admonishment to a judge not to sit an ignorant student in front of him.[2] And also, a judge who knows in the court proceedings that one of the parties is being dishonest [even] while witnesses are testifying on his behalf – the judge should not say, I will wait [and allow the case to proceed] and let the witnesses hang themselves with their own words [when it inevitably is proven they testified falsely]. Also, a student sitting before his teacher, who see a meritorious argument for a poor litigant, or a counterargument against a rich litigant – he may not be silent. And we also derive from there that a student sitting in front of his Rabbi, who knows that the Rabbi has made a mistake, should not say, ‘I will leave it alone until he rules and then I will counter him and explain it – rendering the law one that will be attributed to me’. And a student whose teacher tells him, ‘You know I do not lie: I lent a Mana to so-and-so, to which I have [only] one (1) witness. Come and stand next to [the witness] when he testifies, and do not say anything[3].’ He [the student] may not do so. And one who claims from his friend a Mana (100) may not claim two hundred (200) knowing that the claimant will deny the full claim but admit to the partial claim of one hundred (100) rendering him obligated to swear an oath[4]. [Nor may he issue a false claim which would require the defendant to swear, and then] once the defendant is already taking an oath, the claimant can add content that he really wanted to litigate about [but did not have the correct support to obligate the defendant in an oath.] Similarly, one whom is defending a claim of a Mana (100) and the claimant is mistakenly demanding two hundred (200) one may not deny the claim entirely in court to avoid the oath [rendering him exempt from payment] and then later admit out of court that he truly owes the Mana. And two people who come to court, one dressed poorly (סמרטוטין) and the other dressed in clothing worth a hundred Mana (איצטלא) – we[5] tell the one dressed honorably either wear similar clothing or provide him [the other party] with clothing similar to your own, so that you might not cause us [the court] to favor one party over the other. Alternatively [the wealthy party] can appoint a proxy [who is dressed like the poor person] instead. [Notwithstanding all these cases of prohibiting even the potential for a falsehood] one may change something (modify the truth) for the sake of peace, or to make his opinions align with people who don’t know better.
We’ve said in the Gemara[iii] how do we dance in front of a bride. Base Sham’aye said, [we praise] the bride as she is. Base Hillel said, [we praise her by stating] the bride is beautiful and pious.[6] Base Hillel said [in arguing its position to Base Sham’aye], ‘one who buys a bad purchase from the marketplace, shall [bystanders] praise it [the purchase] in front of him [the buyer] or criticize it. You would state they would praise it.’
Shlomo stated[iv]
- שתים שאלתי מאתך, אל תמנע ממני בטרם אמות.
- שוא ודבר כזב הרחק ממני רֵאש ועשר אל תתן לי, הטריפני לחם חקי.
- פן אשבע וכחשתי ואמרתי מי ה’ ופן אורש וגנבתי, ותפשתי שם אלקי.
- I [Shlomo] asked two (2) things from you [G-d], do not withhold them from me before I die:
- Distance from me fictions and false things, [and] poverty nor wealth do not give to me. Feed me with my allotted sustenance,
- lest I become sated [with wealth and pride] and I would deny [the existence of G-d] and say, ‘Who is G-d’, and lest I become impoverished and I [would then] steal and take [become accustomed to swear by] the name of the Almighty [falsely (when brought to court over the thefts)].
In days of yore, when the Jewish courts were manned by the wise and understanding, a judge would depend on even a single woman to establish a document as being paid[7] or [to establish] a certain person as being suspected of swearing falsely,[8] when the lady who is testifying is known not to lie under any circumstances, and [those judges] would believe her with the same validity as two (2) [male] witnesses – as we learnt in the Gemara[v], the daughter of Rav Ĉisda told Rava[9], ‘I know that woman is suspected of lying in her oaths.’ However, after the conclusion [of the compilation] of the Talmud, when wisdom shrunk and deeds became frivolous the Geon’im decreed that they [the judges] should not do so, so that regular people shouldn’t say, ‘my heart believes this one [woman] and my opinion is to rely on this one [woman].’
After we’ve completed the laws of the Sanhedrin, we must warn [the judges] about what the Torah says[vi] ואלה המשפטים אשר תשים לפניהם – and these are the laws which you shall place before them, ‘before them’ and not before gentiles – even if one knows that legally the non-Jews would adjudicate a case under the same laws as the Jews, one may not use the gentile Justice system, as one who brings cases which belong in a Base Din to a gentile court desecrates G-d’s name and gives credence to the names of idolatry. As it says in the verse[vii] כי לא כצורנו צורם ואויבנו פלילים – [even] when our enemies admit – that is testimony which improves [the credibility] of that which they fear [their false idols]. However, in time periods when the nations were in control, and the other party is powerful and pays no attention to the Base Din, refusing to even appear in court – one may get permission from the Base Din, and [pursue the claim, thereby saving his money] under the non-Jewish laws. And we learnt in the Gemara[viii] [a popular saying in those days] ‘one who calls his friend and is not answered, throw a large wall and cast it at him.’ Rabeinu Yosef Tov Ilam explained this saying: ‘If one called his friend to a court case in the Jewish courts, and he did not answer the defendant refuses to go to Base Din, knock down on him the large wall – [“throw the book” – i.e. the laws of the gentile court] at him so that he will not be able to escape.’ In other words, take him to court [under the law of the land].
We learnt in the Gemara[ix] Rav Yosef[10] announced that ‘those who ascend [make Aliyah to Israel] and those who descend [make Yeridah to the diaspora] agree: a Jew who knows testimony in favor of a non-Jew concerning his friend the Jew and then goes and testifies in a non-Jewish court [on behalf of the non-Jew] is placed into שמתא.’ That applies only when testifying in a מגוסתא a kangaroo court [who make up the law as they go], but in a government courthouse [the witness is not excommunicated] because they too would proscribe an oath when there is only one (1) witness, just like the laws of the Jewish people. Rabeinu Shlomo (Rashi) explained that the villagers court is that which occurs in villages where they are not concerned about the rule of law. And Rabeinu Nissim explained that they [openly] accept trays full of food as bribery. And the word for trays is מגיסוהי. This applies only when there is only one (1) witness. However, if there are two (2) witnesses – this law does not apply. There is an unanswered question in the Gemara concerning a member of the Rabbinate witness whose character is sterling and is therefore believed as if he was two witnesses – could he then testify or not? Judges need to attempt with all their abilities to avoid accepting appointment as a judge to rule in Torah law, because our hearts have shrunken[11]. And we learnt in the Yerushalmi[x], as was quoted in the ספר חפץ, in the days of Rabbi Shimon son of Yoĉai[12] they stopped adjudicating monetary matters. Rabbi Shimon son of Yoĉai said, [in response to this decision] ‘Bless the Merciful One, because there aren’t any Wise [present on the court panel] to judge.’ Rabbi Yosi son of Ĉalafta [said] two (2) men came before him [presumably before Rabbi Yosi son of Ĉalafta[13]] and asked him to judge them in accordance with Torah law. He responded to them that he did not know [how to] adjudicate them under Torah law.
[1] Meaning, even if the judge or witness knows that they are telling the truth, for in fact he himself saw the same thing, nevertheless, they should not join with the bandit to form a duo of testimony.
[2] In those days, judges had to go through an apprenticeship of “sitting in front of” their teacher, who could monitor them and teach them – and from whom they could learn constantly.
[3] And the defendant will assume that he has two (2) witnesses and therefore will agree to pay rather than following through in defending his claim.
[4] מודה במקצת חייב בשבועה – One who partially admits is obligated to swear. Presumably, the defendant is claiming that he has fully repaid the loan, and the claimant has no other proof of the loan. In which case, the court will rule in favor of the defendant. However, now the defendant is not denying the claim [by stating he repaid it] but is rather partially admitting to the one hundred (100) and then adding the caveat that it was repaid. Since he partially admits, he must then swear. But an honest Jew would not wish to swear so he would probably elect to pay rather than take an oath – and the claimant will then receive the funds he claims was owed to him.
[5] The court functionaries, before admitting the parties into court.
[6] During one of my years in Montreal, my parents did not have sufficient funds to pay for me to come home for the holiday break [I am pretty sure this was for Pesaĉ]. So, I had to stay in the dorm for the Yom Tov on my own. When Rabbi Gurary found out about me staying there alone, he insisted I join him and his family for the Yom Tov meals. This happened to be during a time period when one of his daughters was engaged and the family was celebrating her pending marriage. They did their best to make me feel welcome, the only non-family member among them.
One of the things Rabbi Gurary explained during the Yom Tov is the difference between Base Sham’aye and Base Hillel in the Gemara mentioned above. On the surface, it would seem that Base Hillel, which is generally the opinion we follow, is being kinder to the bride. Regardless of her outward appearance and whether she is actually pious or not, we praise her as such in order to endear her to her husband-to-be. Which makes it seem like Base Sham’aye is somewhat cruel in their approach – only providing praise to the bride based on her actual qualities. And this is in fact what Base Hillel responded to Base Sham’aye.
However, this approach to the argument fails to take into account an actually beautiful and righteous woman. She too, according to Base Hillel, would be praised in the same way as the regular girl – rendering the praise meaningless for both of them, because if everyone gets the same praise, then the statement is more of a rote recital than actual praise. Accordingly, Base Sham’aye says we praise the bride with her characteristics. Furthermore, it is an expression of a lack of אהבת ישראל to assume that a bride is like a bad purchase – certainly a bride, who experiences great חן during this time of her life, has many characteristics to praise, and is not a bad purchase.
Why then would Base Hillel argue that we should choose a generic praise. The answer of course is because that isn’t generic. Base Hillel is providing a base line praise that all brides experience [even those who might be considered a bad purchase to a bystander]. During this time of their lives, they are נאה וחסודה – pleasant and pious [pious because when getting married, all sins are forgiven as we learn [Beraishis 36:3] regarding Esav’s wife מחלת, so named because brides are forgiven of all their sins on their wedding day]. There may be additional qualities inherent to the bride, but those aren’t the qualities of the bride, they are the qualities of the person – present before she was a bride. And therefore, the woman getting married should have those inherent qualities praised regardless of whether she is a bride or not. But a bride should only be praised with נאה וחסודה.
He concluded that the Gemara notes that these qualities are discussed in answer to the question “How does one dance in front of the bride.” The awareness of these qualities in the bride must cause joy sufficient to make those at the wedding dance.
[7] It appears to me that there is a mistake in the print here. The Hebrew reads על פי אשה להחזיק שטר אחד פרוע. The word אחד seems to be a mistake. As there would be no difference if we were talking about a single document or multiple. I am assuming, based on the further context of the SMG, that he means to write על פי אשה אחד להחזיק שטר פרוע – and that is how I have translated the text.
[8] The two (2) examples provided by the SMG seem to be to be deliberate. In both cases, the testifying that a document is paid, or that another person swears falsely, the witness is not acting to establish a fact but is rather testifying to let us know about a fact that already exists. In the laws of witnesses, there is a difference between the two types of testimony. It is for this reason, that even after the Geon’ic decree not to allow women to continue testifying, that we still believe women in the case of an Aguna – because that testimony doesn’t establish the fact of the husband’s demise. It reveals a [generally] pre-existing fact. It is for the same reason that עד אחד נאמן באיסורין – a single witness is believed in matters of the forbidden, because in those matters, the single witness is not creating the forbidden’ess of that which he is testifying about, he is only bringing it to light.
[9] This is especially significant, because, not only is this a woman [the daughter of Rav Ĉisda] testifying about another woman of being suspected of lying under oath – which implies that the woman was called to testify and swear previously, during which time she lied, about which case the daughter of Rav Ĉisda is testifying, and that this is the same woman who is being considered by the court to be called up to testify and swear again – but she is testifying to Rava, her husband, who should normally be considered related and thus נוגע בדבר – biased. This illustrates the extent that women can be believed when they are known to the ‘wise and discerning judge’ to be trustworthy.
[10] Our version of the Gemara attributes this to Rava, and some say Rav Huna
[11] A euphemism to our inability to discern things. בינה לִבָא ובה הלב מבין.
[12] Who lived through the destruction of the second Base Hamikdash. I believe the SMG is referring to a time before the destruction, when the Sanhedrin voluntarily gave up some of its powers and removed themselves from their seat in the Base Hamikdash [among other exiles that they took upon themselves].
[13] He was an ordained student of Rabbi Akiva – one of the five (5) who survived the plague that wiped out Rabbi Akiva’s students – a Tanna, who is often quoted simply as Rabbi Yosi. He established the Yeshiva in Tzipori and is the author of the book Seder Olam. The Gemara notes several discussions of his in which he engaged Eliyahu the prophet. If he didn’t know how to adjudicate according to Torah law, how in the world can?
[i] Shemos 23:7
[ii] Gem. Shavuos 30b
[iii] Gem. Kesuvos 16b
[iv] Mishley 30:7-9
[v] Gem. Kesuvos ? 85a
[vi] Shemos 21:1
[vii] Devarim 32:31
[viii] Gem. פרק החובל 92b
[ix] Gem. Bava Kamma 113b
[x] Yer. Sanhedrin 1:1
AMUDAY SHLOMO
[the Maharshal does not have a comment on this Mitzva, either because the manuscript is incomplete or this section was lost]
RASHI
Rashi does not comment on this part of the verse.
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