Disqualification of a Chashud from Taking a Shevua

  • Rav Moshe Taragin
Jeffrey Paul Friedman z"l
August 15, 1968 – July 29, 2012
 ז"ל יהודה פנחס בן הרב שרגא פייוועל 
כ"ב אב תשכ"ח י' אב תשע"ב
A person who has been caught swearing falsely or has violated infractions that disqualify for eidut is considered a chasud - a suspicious person who cannot take a litigational oath. How does this disqualification compare to the disqualification of witnesses?
By committing various aveirot (including some that do not necessarily compromise personal legal reliability), a person can be disqualified from serving as a witness. The status of kasher le-eidut can be suspended due to prohibited activities even if those activities do not suggest possible future falsified testimony. Is the status of chashud for shevuah similar in that it compromises a person’s “identity” as a potential swearer? Alternatively, perhaps swearing falsely and becoming a chashud is different than providing false testimony. Unlike someone who must maintain a legal status as a candidate for testimony or kasher le-eidut, there is no halakhic category of candidate to take oaths or kasher le-shevua: Instead, the disqualification of a shevua from a chashud is extrinsic; beit din will not accept this oath because we suspect that it is not accurate.
In other words, is a chashud inherently disqualified from shevua oaths because of his compromised legal status, or is he merely “procedurally” prevented from offering his suspicious oath as testimony?
One indication that a chashud is not inherently disqualified, but merely procedurally prevented, is provided by Tosafot (Bava Kama, 108a), who claim that the shevua of a chashud is only invalid mi-derabbanan. A second question which might emerge is the status of a chashud oath that was already proffered. If beit din incorrectly imposed an oath upon someone known to be chashud, would the oath be accepted bedieved? Similarly, if the chashud initiated his own shevua (a situation of kafatz ve-nishba), would it be legally accepted? If a chashud is inherently disqualified, his shevua would carry no meaning regardless of the situation. If, however, legal procedure warrants against imposing an oath, perhaps the oath is legally valid if it has already been taken.
A related question concerns someone who was identified as suspicious only after he took an oath. The Rambam (Hilkhot To’en Ve-Nitan 2:9) claims that the oath is retroactively annulled since it was determined to be an oath of a chashud. This implies a fundamental dismissal of chashud oaths. By contrast, some claim that this oath is accepted since at the point of issue the suspicions were not known. This may reflect a logic that the oath of a chashud is inherently valid but procedurally unacceptable. If at the point of issue suspicions were not known and procedural issues were not violated, the oath is ultimately actionable.
An interesting question surrounds the ability of the opposing litigant to unilaterally accept the oath of a chashud. Halakha usually allows litigants to accept testimony that would otherwise be unacceptable. This process, known as ne’eman alai, acknowledges certain objective “global” standards of testimony, but also allows for personal tailoring and adjustments. If a chashud is inherently disqualified, perhaps the opposing litigant can validate his oath. This position is cited by the Mordechai (Shevuot, siman 769). By contrast, most Rishonim (including the Rambam, HIlkhot To’en Ve-Nitan 2:11) do not allow this adjustment. It is possible that these Rishonim maintain that a chashud is indeed intrinsically disqualified, but the opposing litigant cannot alter this reality. Alternatively, these Rishonim may maintain that the unacceptability of a chashud oath is procedural and surrounds beit din’s ability to accept an oath that they are uncertain about, in which case the procedural limitation exists independently of the litigants and cannot be adjusted by them. The Ketzot Ha-Choshen (92:2) argues the latter; beit din cannot rely on this suspicious oath, because it would entail a desecration of Hashem’s name, which is perpetrated by a fake oath. The inadmissibility of this oath is therefore not subject to the personal preferences of the litigants.
Interestingly, this question may affect a larger issue of awarding payment to the plaintiff who is prosecuting the chashud. The mishna in Shevuot (48) awards the disputed monies to the tovei’a provided that he takes an oath that monies are owed. One approach suggest that this monetary award to the plaintiff is based upon the doctrine of mitokh, which obligates a defendant to pay monies that he could not swear about because his oath was unsuitable. Since the oath of a chashud is disqualified, he is subject to mitokh payments, which happen to include an oath on the part of his opposing litigant. This is the position of Tosafot (Bava Metzia 5a) in their initial comments.
Alternatively, a chashud may not be subject to mitokh, since his oath is not inherently disqualified and he is merely “procedurally” prevented from issuing his oath. Perhaps his obligation to pay is based on a completely different principle unrelated to mitokh, a concept which only applies to those who are intrinsically unable to swear. This is the second position of Tosafot and reflects the view that a chashud is only practically unable to issue his oath.
Finally, the nature of the chashud disqualification may affect which types of people are defined as chashud. This is a very extensive question, but two particular situations may be informative. Would someone caught swearing falsely about a heset situation be considered chashud? As discussed in a previous shiur (shiur #18: Shevuat Heset), the heset oath may not be an actual litigational oath, but rather an oath instituted to placate lingering worries of the plaintiff. Perhaps violating this non-litigational oath is insufficient to render someone an oath-violator. If, however, a chashud is merely procedurally inhibited, perhaps we would impugn anyone who violated any type of oath. The Rambam (Hilkhot To’en Ve-Nit’an 2:11) claims that this person would be considered a chashud, whereas the Me’iri (introductory comments to Shevuot, ch. 6) claims that he may not be considered a chashud.
A reverse question would surround someone who took a personal oath or shevuat bituy to perform some future activity, such as eating bread. If he does not fulfill his oath, would he be considered chashud? In a purely legal sense, he has violated an oath and may be defined as an oath-violator. This is indeed the position of Rashi and the Ramban (Shevuot 46a). Alternatively, one could argue that at the point of the issue of the oath, this person did not lie; he possibly had full intention to fulfill his forward-obligating oath. From a procedural perspective, perhaps we would accept his oath since he has not been caught falsifying oaths in a manner that arouses undue suspicion. The Rosh and the Mordechai cite Rabbenu Tam as disqualifying a forward-shevua violator based on the designation of chashud al hashevua.