One of the Ten Commandments is “lo sa’aneh…,” the prohibition against testifying falsely. What happens if a witness later admits that he testified falsely?
Reuven and Shimon were litigating in Rabbi Dayan’s beis din.
“Shimon owes me $5,000,” claimed Reuven.
“Why does he owe you?” asked Rabbi Dayan.
“I lent him $5,000 and he never repaid,” answered Reuven.
“What do you say?” Rabbi Dayan asked Shimon.
“I never borrowed!” replied Shimon. “He’s lying!”
“Do you have any evidence?” Rabbi Dayan asked Reuven.
“Yes, a loan document signed by witnesses,” replied Reuven. “I brought the witnesses to confirm their signatures.”
Rabbi Dayan examined the document; it seemed genuine. He called in the witnesses, Levi and Yehuda, one by one.
“This is my signature,” confirmed each witness.
“They’re liars!” insisted Shimon. “I never borrowed!”
“Reuven holds a loan document, confirmed by the witnesses,” ruled Rabbi Dayan. “You must pay.”
A week later, Levi and Yehuda came to the beis din. They asked to speak with Rabbi Dayan privately.
“How can I help you?” asked Rabbi Dayan.
“We testified here a week ago on behalf of Reuven against Shimon,” Yehuda said. “We admit now that our testimony was false. We were trying to help Reuven and signed the document, even though we never saw the loan.”
“This is extremely serious!” Rabbi Dayan rebuked them. “False testimony is a violation of the Aseres HaDibros (Ten Commandments)!”
“We are aware of that, and therefore came to rectify the situation and tell the truth,” Levi said. “If need be, we are willing to stand again on the witness stand and state that the document is false.
“What should we do now?”
“The Gemara (Makkot 3a) teaches that once a witness testified, he is not believed to retract and say that he testified falsely as an eid zomem (conspiring witness),” replied Rabbi Dayan. “His testimony remains valid” (C.M. 38:1).
“Rabbeinu Chananel (ibid.) and Rambam (Hil. Eidus 18:8) add that the witness is not liable to pay the person he conspired against, based on his admission, because the liability of an eid zomem is a Divine penalty (kenas) not invoked by self-admission.
Rosh (Responsum 58:6), however, writes that although witnesses who claim that they signed a document falsely through drunkenness are not believed, once their signatures are validated, they are believed in their admission regarding their obligation to pay – and whatever loss they caused through their false testimony is garmi (directly caused damage). Shulchan Aruch rules accordingly (C.M. 29:2; 38:1; 46:37; Gra 46:90).
Ramban (Makkos 3a), Darchei Moshe (38:1) and several Achronim (Lechem Mishneh, Hil. Eidus 18:8) understand this as a dispute between Rabbeinu Chananel and the Rosh, whether false witnesses are liable to pay based on their self-admission.
Shach (38:1) maintains that false testimony that caused loss is certainly garmi, so that the witness who admits to it is liable even according to Rabbeinu Chananel. He explains that Rabbeinu Chananel merely meant that he cannot be called an eid zomem and penalized based on self-admission if he didn’t cause loss, such as if the defendant didn’t pay yet.
“Other Achronim suggest various distinctions. Bach distinguishes between a false signature, which is considered garmi, and false verbal testimony, which is only grama and not liable. Pischei Teshuva (38:1) distinguishes whether the false witness admitted before the defendant paid or afterwards. Tumim (29:1) suggests a distinction between testimony that exempts, which is immediate garmi, and that obligates, which is grama. He further qualifies that the witness is liable only if he knows that other witness also lied” (see Pischei Choshen, Nezikin 4:26-27).
“Thus,” concluded Rabbi Dayan, “following the Shulchan Aruch’s ruling, you must pay Shimon his loss.”
Verdict: Shulchan Aruch rules, based on the Rosh, that witnesses who admit that they testified falsely and thereby caused a loss to the litigant are liable as a form of garmi (directly caused damage). Several Achronim suggest various limiting distinctions based on Rabbeinu Chananel, who seemingly exempts the witness.
