For many readers who learnt in
yeshiva, at least some of the intricacies of this topic will be familiar. For the
benefit of those who didn’t, I will try my best to explain clearly. The common
denominator for virtually all religious Jews is that this
discussion has important practical ramifications.
Basic principles
The gemara tells us in many
places that a litigant’s admission of liability (hoda’as ba’al din) is
equivalent to the testimony of a hundred witnesses. The basic case is a law
that will be obvious to all- if Reuven claims that Shimon owes him money and
Shimon admits that the claim is true, no further evidence is needed and Shimon
must pay.
In reality, the statement that
the admission is as good as a hundred witnesses does not convey the full
halachic power of hoda’as ba’al din. Even if the admission is contradicted by countless
witnesses, as long as no-one else stands to lose the witnesses are ignored.[1]
The above probably seems obvious,
but the strength of hoda’as ba’al din goes further. There is a dispute in the
gemara in a case where Reuven claims that he lent money to Shimon, who denies
the claim. Witnesses say that Reuven did in fact lend Shimon, but Shimon
subsequently paid back the money. Here it is not automatically obvious who we
should believe.
The halacha is that although no
actual liability was admitted, Shimon’s denial of borrowing implicitly incudes
an admission that he did not pay back. As witnesses support Reuven’s claim that
he lent the money, Shimon’s denial is not accepted. And as Shimon has admitted
that he did not pay back, this part of the testimony of the witnesses is
ignored. The result is that Shimon must pay.[2]
Belief or Authority?
Based on the above (and other
proofs), the Ktzos HaChoshen concludes that hoda’as ba’al din does not work by
creating a new obligation. If so, it could only obligate when liability is
accepted. Rather, it must be that we believe the admission. Although we cannot
believe what the litigant says entirely, when only he stands to lose the Torah
tells us to believe him.[3]
However, the Ktzos concludes that
there is a difficulty with this explanation. Rashi explains that the Torah
source that tells us to rely on hoda’as ba’al din appears within the halacha of
one who admits liability only for part of the debt claimed. The fact that the
Torah says that he must take an oath denying the other part of the claim is an
indication that he is believed about the part that he admits.[4]
The problem is that this source
does not prove that hoda’as ba’al din should be believed even in a case where
witnesses contradict. And the necessity to bring a source from a pasuk
indicates that logic alone is not sufficient to prove this point. Thus the
Ktzos is left with a difficulty that he has no answer to.
R’ Shlomo Fisher שליט"א explains hoda’as ba’al din differently, in
a way that eliminates the difficulty raised by the Ktzos. When a litigant
admits liability, or a fact which leads to liability, there is no need for us
to deliberate whether or not to believe him. The Torah gives a litigant the
authority to rule for himself about any detail which leads only to his own
liability, irrespective of how believable his statement is.[5] The
strength of hoda’as ba’al din against witnesses is a clear corollary, as the
litigant has the right to ignore witnesses and rule to his own disadvantage.[6]
Could it be more?
With the above explanations in
mind, we can move to a case in the gemara that some understand as extending the
concept of hoda’as ba’al din even further.
The gemara tells us the story of Issur Giyora, a convert whose
biological child Rav Mari was conceived prior to conversion (of his mother) but
born after conversion. When Issur was about to die, he realised that as Rav
Mari was not halachically his son, he would not naturally inherit his
significant estate. As someone with no halachic inheritors, his money would
become ownerless after his death. Various ways were suggested to circumvent
this problem, but technical problems existed with all of them.
Rav Ikka came up with a brilliant
but controversial solution:
ולודי איסור דהלין זוזי דרב מרי נינהו, וליקנינהו
באודיתא! אדהכי נפק אודיתא מבי איסור. איקפד רבא, אמר: קא מגמרי טענתא
לאינשי ומפסדי לי!
Let Issur admit that the money in
fact belongs to Rav Mari, and he will acquire them through udisa
(admission)! After this (suggestion was made), an admission was issued from
Issur’s house. Rava (who could have taken possession of Issur’s money after it
became ownerless) objected to this, saying “They teach claims to people
and cause me a loss!”[7]
There seems to be a contradiction
within this passage as to what this admission achieves. Rav Ikka says that
through the admission Rav Mari will acquire the money. However, Rava
objects and describes this idea of Rav Ikka a claim. The rishonim
dispute which term is the accurate one.
Rashbam explains that this gemara
deals with a regular admission, and proves from this story that the admission
of one close to death is taken at face value.[8]
Tosfos object to this explanation, and instead explain that here the admission
can be used as a means of transferring ownership (a kinyan). In the
first variation they suggest, this use of an admission is limited to one on his
death bed. Their second suggestion is that according to the conclusion of the
gemara, anyone can perform a kinyan just by ‘admitting’ that something
in his possession in fact belongs to someone else.
Tosfos conclude that their first
variation is superior, i.e. only one on his deathbed can transfer ownership by
admission. The Ri Migash explains similarly, and this also is the position of
the Tur and Shulchan Aruch.[9]
The reason for the special
dispensation given for someone on his deathbed is clear. Elsewhere we are told
of an institution of Chazal that no kinyan is necessary when one on his
deathbed wishes to give a gift. This institution was necessary in order to
protect someone ill from losing his mind out of fear that he would not manage
to complete the necessary transaction. His word is considered as written and
signed, with the proviso that if he recovers he may retract.[10]
For a healthy person to be able
to transfer ownership by ‘admission’ seems counter-logical, according to any
explanation of how hoda’as ba’al din works. Furthermore, in my humble opinion
the easier reading of the gemara is that no kinyan was involved in the
story of Issur Giyora. An obvious difficulty with the story is the surprising
response of Rava to Rav Ikka’s suggestion. Why was Rava so upset that Rav Ikka
helped someone on his deathbed bequeath his inheritance to the person he
wanted?
If this ‘admission’ did not cause
any transferral of ownership, we can understand why. Rav Ikka taught Issur a
deceitful way to mislead Beis Din. The money which belonged to Issur would in
reality become ownerless after his death. However, Beis Din would have no
choice but to believe the admission that the money belonged to Rav Mari, even
if a hundred witnesses contradicted him.
Practical Applications
The Rambam and Shulchan Aruch
never mention any option of enacting a transfer of ownership by admission, in
concurrence with most of the opinions we have seen above. However, in at least
two cases the poskim do make use of the dissenting view.
A common halachic problem in
writing contracts is the issue of asmachta, conditional obligations. For
example, the gemara tells us that if a contractor takes on to sow a field with
a large penalty for reneging, this penalty is void.[11] The
logic is that one who agrees to a disproportionate penalty never really
considered the possibility of reneging and having to pay.
The laws of asmachta are
complicated, but one common means of overcoming this problem is performing a kinyan
in front of a distinguished beis din.[12] The
Rema, quoting the Maharam Mirotenburg, rules that even this is not necessary.
It is sufficient for the person taking on the obligation to sign on a statement
that he has performed a kinyan in front of a distinguished beis din. Even though the statement is false, hoda’as ba’al din is
as good as a hundred witnesses.[13]
This ruling is clearly predicated
on the idea that admission can create a kinyan out of nothing.
Surprisingly, none of the major commentators point out the fact that this is a
minority opinion and even contradicts other rulings of the Shulchan Aruch.[14] The
use of this trick is widespread, and virtually any contract written with
halacha in mind will include such a clause.
Another important use of kinyan
by admission was started by the Ktzos Hachoshen. Due to various disputes between
the poskim as well as practical difficulties, there is a question about which kinyan
to use for the sale of chamtez to a non-Jew. The Ktzos suggests that one
should simply ‘admit’ that the chametz belongs to the non-Jew, automatically
transferring ownership.[15] In practice, to cover all
bases many different kinyanim are performed, and one of them is this ‘admission’.
Finally, the pre-nuptial
agreement enforced by the Rabbinical Council of America includes two uses of false
admission. One of them is the standard statement of a kinyan in a
distinguished beis din, to avoid the problem of asmachta. Additionally,
the husband waives his rights to the earnings of the wife after separation, and
‘admits’ that this waiver is repeated at the time of the wedding.[16]
Here, not only is the admission
false, but the husband is admitting something that hasn’t even taken place yet!
Support for this can be found from the words of some poskim, but it seems to
defy logic. I would be much happier if the waiver really was repeated at the
time of the wedding, despite the extra half-a-minute this would add to the marriage
ceremony.
As I have written before, all of
this could be different if halachic rulings were issued from first principles, not
by automatically accepting rulings from the past while losing sight of the
inherent understanding of the concepts involved.[17] All
the above issues have alternative (if less convenient) ways of working, without
resorting to tricks that make the Torah seem illogical to the world.
[1] See
Bava Metsia 3b where the gemara says that one’s own admission cannot be
effectively contradicted. The exception, when someone else stands to lose,
appears in Kesuvos 19a.
[2] Shevuos
41b, Choshen Mishpat 79:1
[3] Ktzos
HaChoshen 34:4. It might seem strange to say that we believe one statement for
some purposes but not for others, but what we mean to say is that the admission
is some degree of evidence of the truth of the liability. This degree of
evidence is sufficient in order to obligate the litigant who makes the
admission, but not in order to obligate others.
[5] Beis Yishai
siman 90
[6] In
the case of the gemara above, the defendant rules against the witnesses that he
did not pay back the loan. As he has no authority to rule that he didn’t
borrow, here beis din accept the testimony of the witnesses and obligate him to
pay.
[7] Bava Basra
149a
[8] And
not as an effort to conceal the wealth left to his inheritors.
[9] Choshen
Mishpat 250:3
[10] Bava Basra
146a-147a.
[11] Bava
Metsia 104b
[12] Nedarim
27b
[13] Choshen
Mishpat 207:15.
[14] Although
the Sm”a explains that the purpose of this admission is to demonstrate that
there is true intent to obligate oneself, thus negating the problem of asmachta,
in reality this is hard to support. The general practice is to include this
clause in the small print of the contract, and it often isn’t even read by the
signatories.
[15] 194:3
[17] I do
not chas v’shalom mean that these earlier rulings were issued without a proper
grasp of these concepts, or without grounding in the gemara. What I mean is that
they should not be relied upon unless this grounding is fully understood by the
one using them. See “How
does halacha work?”
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