16 Jun WHY TESTIFY?

Society cannot
function if witnesses
remain silent.
Whether the issue is a
crime, a contract or a
disputed transaction,
justice depends on
people who are willing to step forward and tell
what they know. If those who know the truth
remain silent, they harm the person who needs
their testimony and weaken the very fabric of
society. And yet we find a surprising debate
whether a witness who knows information that
could determine the outcome of a financial
dispute must volunteer that testimony or may
remain silent unless called.
I. When to Testify
The Torah says: “If a person will sin: If he
accepted the demand for an oath, and he is
a witness — either he saw or he knew — if
he does not testify, he shall bear his iniquity”
(Lev. 5:1, Artscroll Stone tr.). This verse is
difficult to translate but essentially means that
if a witness fails to testify, he bears guilt and
must bring a sacrifice to the Temple.
The Gemara (Bava Kamma 55b) lists four
things that, if committed, do not merit
human punishment but still receive divine
punishment. Among the list is someone who
knows testimony in support of another but
does not testify. The Gemara (56a) challenges

this because the above verse says that such a
person is punished (“shall bear his iniquity”),
making the Talmudic statement redundant.
The Gemara responds that the biblical verse
refers to one of two witnesses, in which case
the testimony is actionable. The Gemara adds
that even a single witness must testify or
face divine punishment. It would seem from
here that a witness is religiously obligated to
testify.
However, Rav Yosef Karo (16th cen., Israel)
rules in Shulchan Aruch (28:1) that witnesses
of a financial transaction must testify only if
called on, i.e. subpoenaed. He must testify
only if called and if his testimony will affect
the judgment. Rav Yehoshua Falk (17th cen.,
Poland) rules likewise (Sema, ad loc., no. 6).
Later authorities find this puzzling.
II. The Ethics of Testifying
Rav Ya’akov Minkowski of Karlin (19th cen.,
Russia) challenges this ruling on two counts.
The Torah commands us: “Do not stand idly
by your fellow’s blood” (Lev. 19:16). The
Sifra comments on this verse: “And from
where do we know that if you can testify on
someone’s behalf, you are not permitted to
remain silent? From ‘Do not stand idly by your
fellow’s blood.’” Rambam explicitly includes
this in his Sefer Ha-Mitzvos (prohibition
297). In other words, we are prohibited from
standing by and watching someone lose

money when we can help him retain it by
testifying (truthfully, of course) on his behalf.
Additionally, there is a mitzvah to return lost
items to their owner. Preventing someone
from unfairly losing money also falls under
this mitzvah. Therefore, there is an obligation
to testify even if you are not subpoenaed
(Mishkenos Ya’akov, Choshen Mishpat, no.
12). Rav Avraham Hirsch Eisenstadt (19th
cen., Russia) quotes this and other sources
who argue similarly (Pischei Teshuvah,
Choshen Mishpat 28:4). Rav Yechiel Michel
Epstein (19th cen., Russia) also rules this way
(Aruch Ha-Shulchan, ad loc., par. 3).
The disagreement may reflect a distinction
between two different kinds of obligation.
The Mishnah (Shevu’os 31b) seems to say
that you only violate the obligation to testify
in a financial matter when a litigant says to
you “come and testify for me” and you refuse.
However, there also exist broader obligations
— what some call “meta-halachic” — that
extend beyond the procedural requirements of
testimony and require broader ethical behavior.
Even when the technical law exempts you
from testifying, the ethical law obligates you
to protect another person from avoidable loss

(see Rav Isser Yehudah Unterman, Shevet Mi-
Yehudah, vol. 1, sec. 5, pp. 460-462).

However, this seems to be a more ancient
debate. Rav Achai Ga’on (8th cen., Israel)
explicitly says that a witness who fails
to testify violates “‘Do not stand idly
by your fellow’s blood” (She’eiltos,
Vayikra, no. 83). He does not mention
any requirement that the witness first be
subpoenaed. As noted above, Rambam
agrees in his Sefer Ha-Mitzvos but in his
Mishneh Torah (Hilchos Edus 1:1) he says
that the obligation to testify only applies
in financial matters when the witness is

subpoenaed. The anonymous Sefer Ha-
Chinuch (13th cen., Spain) rules likewise

(no. 122). Similarly, Rav Yosef Ibn Chaviv
(15th cen., Spain) says that a witness who
is not subpoenaed is only obligated to
testify in a financial dispute as a matter of
chesed (kindness), which seems like less
than an actual obligation (Nimukei Yosef,
Bava Kamma, 24a in the Rif, s.v. mishum).
(More recently, see Meshech Chochmah,
Lev. 5:1 that it is a bad character trait to fail
to testify when not subpoenaed.)
The meta-halachic argument seems
quite straightforward. Even if you are
technically exempt from testifying, you
are still obligated to prevent someone’s
loss, possibly his financial ruin. How can
anyone rule to the contrary? Rav Chaim
David Halevi (20th cen., Israel) was so
bothered by this argument that he suggests
the Shulchan Aruch was only discussing
the most common case but would agree
that if a litigant neglected to subpoena
someone, that witness would still be
religiously obligated to step forward and
testify (Mekor Chaim, vol. 3, no. 48).
However, this is difficult to accept because
the Shulchan Aruch should have mentioned

this important qualification.
III. Explaining the Exemption
Rav Nachum Rabinovitch (21st cen., Israel)
suggests that there is no broader obligation
in a monetary dispute because one of the
two litigants will always lose (Yad Peshutah,
Hilchos Edus 1:1, s.v. ve-hu). Why should
you be obligated to protect one litigant’s
financial claim at the expense of another’s?
Additionally, perhaps the one who is
legitimately owed the money forgave the
obligation? I am not sure that either argument
applies broadly because generally one litigant
is correct and the other objectively owes him
money. And if he forgave the obligation, he
would not pursue the matter in court.
Perhaps we can suggest that these broader
ethical obligations apply only when the person
at risk is also doing his part. The litigant bears
the primary responsibility to pursue his claim
and present his case. If he knows of witnesses,
he must summon them. Even if he does not
know exactly who can testify, he can ask the
court to investigate or publicly seek relevant
witnesses. When he fails to take these basic
steps, he is declining to help himself.
This may be analogous to the Torah’s
requirement to help unload an overloaded
animal. The obligation is to assist another
person in addressing his problem rather than
solve it for him. The Torah says that if you
see your enemy’s donkey struggling under
a burden, “you must unload [it] with him”
(Ex. 23:5). The Gemara (Bava Metzi’a 32b)
notes that the word “with him” limits this
obligation. You only have to unload together
with him but if he refuses to unload, you
do not have to unload either. Rav Shlomo
Ephraim Luntschitz (17th cen., Czech) adds
that the same concept applies to charity. We
are obligated to charitably help someone
support himself. However, if he can but
refuses to work, he will not help himself,
we are not obligated to help him either (Keli
Yakar, ad loc.).
Maybe the same can be applied to these ethical
obligations to save someone’s money. If so,
the Shulchan Aruch’s ruling becomes easier
to understand. A witness certainly should not
conceal relevant testimony. However, when a
litigant has not even asked for that testimony,
the witness is not obligated to volunteer it.
The litigant has not yet taken the most basic
step necessary to protect his own interests.
At that stage, the witness’s silence reflects a
recognition that the primary responsibility
still rests with the litigant himself. It may still
be an act of kindness to help someone who
fails to pursue his case effectively but we do
not have to unload for someone who will not
unload himself and we do not have to testify
in a case for someone who will not himself
litigate the case wholeheartedly.